Ethics Commission
City and County of San Francisco

Minutes – February 27, 2017

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
February 27, 2017
Room 400 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved March 27, 2017)

1. Call to order and roll call.

Chairperson Renne called the meeting to order at 5:36 PM.

COMMISSION MEMBERS PRESENT: Paul Renne, Chairperson; Peter Keane, Vice-Chairperson; Beverly Hayon, Commissioner; Daina Chiu, Commissioner; and Quentin L. Kopp, Commissioner.

STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Johnny Hosey, Campaign Finance Assistant; Eric Willett, Auditor.

OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney.

OTHERS PRESENT: Larry Bush; David Pilpel; Charles Spencer; Hülda Garfolo; Dr. Derek Kerr; Michael Petrelis; Ray Hartz; Elena Schmid and other unidentified members of the public.

MATERIALS DISTRIBUTED:

  • January 23, 2017 draft minutes.
  • February 21, 2017 Staff Memorandum regarding the election of Ethics Commission Officers and attachment.
  • February 21, 2017 Ethics Commission’s Records Management Policy Memorandum.
  • February 21, 2017 Education and Compliance Report.
  • February 21, 2017 Enforcement Report and attachments.
  • February 21, 2017 Executive Director’s Report and attachments for the February 27, 2017 Regular Meeting.

2. Public comment on matters appearing or not appearing on the agenda.

Ray Hartz, Director of San Francisco Open Government, stated his belief that Commissioner Hayon is biased in her decision-making.

The following written summary was provided by the speaker, Ray Hartz the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

In December, this Ethics Commission held a hearing in the referral by the SOTF Ray Hartz v Eric Mar. Commissioner Beverly Hayon, as exhibited by her statements during the hearing, should clearly have recused herself from the matter! Rather than participating in a fair hearing as defined by the Good Government Guide which is to be based on the facts and the law, Commissioner Hayon’s statements clearly indicated her prejudice in the matter. Her statements in part included “the issue of disclosure by the library,” “the belief that there is something amiss about The Friends, “and “individuals who use this measure of requesting IDR’s as a form of harassment.” None of these issues has any bearing whatsoever on the case before this commission. As a former member of the Library Commission, Hayon had a “personal ax to grind” and a clear conflict of interest. She wanted to cover her backside!

 

Michael Petrelis expressed concern regarding a previous meeting in which he felt his free speech was violated by the Commission. Michael Petrelis read a portion of the First Amendment.

3. Discussion and possible action on draft minutes for the Commission’s January 23, 2017 meeting.

Commissioner Kopp made various grammatical corrections to the minutes.

Public Comment:

David Pilpel made various grammatical corrections for the Ethics Commission staff to consider.

Motion 170227-01 (Kopp/Chiu): Moved, seconded and passed (5-0) that the Commission approve the minutes for the January 23, 2016 special meeting, as amended by Commissioner Kopp and David Pilpel, though staff was given discretion to implement Mr. Pilpel’s suggestions as it deemed appropriate.

4. Discussion and possible action to elect a Chair and Vice-Chair to serve for the coming year.

Chair Paul Renne called for nominations for Chair of the Ethics Commission.

Commissioner Kopp moved to nominate Commissioner Peter Keane as Chairperson.

Public Comment:

Ray Hartz stated support for Commissioner Peter Keane’s nomination as Chair.

Larry Bush stated support for Commissioner Peter Keane’s nomination as Chair.

Motion 170227-2 (Renne/Chiu): Moved, seconded and passed (5-0) that the Commission elect Commissioner Keane as Chairperson effective March 1, 2017.

Chairperson Paul Renne called for nominations for Vice-Chair of the Ethics Commission.

Commissioner Hayon moved to nominate Commissioner Chiu as Vice-Chair of the Ethics Commission.

Public Comment:

None.

Motion 170227-3 (Renne/Keane): Moved, seconded and passed (5-0) that the Commission elect Commissioner Chiu as Vice-Chairperson effective March 1, 2017.

5. Discussion and possible action to provide policy guidance on a proposed update to the San Francisco Ethics Commission’s Records Management Policy.

Deputy Director Blome presented information summarizing the Ethics Commission’s Records Management Policy.

Commissioner Renne asked clarifying questions regarding the Email Repository System.

Commissioner Chiu asked clarifying questions regarding the Retention and Destruction Schedule.

Commissioner Kopp asked clarifying questions regarding time frames for retention of certain categories of records included in the policy. Commissioner Kopp suggested staff lengthen the retention period for legislative drafts to a minimum of two years and added suggested revisions to the policy to correct for grammar.

Public Comment:

David Pilpel expressed his support of the policy and asked that this item be voted on by the Commission later.

Elena Schmid asked if this item would come back for a vote and expressed support for the Commission’s decision to update the policy. She asked the Commission to consider using the policy as an opportunity to clarify when records stored on personal electronic devices are subject to public disclosure. She suggested that staff periodically update the policy on an annual or semi-annual basis.

Ray Hartz stated his support for the policy. He further suggested that it is important for the Ethics Commission to have a strong record retention policy because we will be able to better enforce similar requirements on various City agencies.

Larry Bush asked to what extent this policy would influence other city department’s record retention policies. He stated that records retention is important.

Chair Renne stated he believes this item will be considered by the Commission again when a final version is competed by Ethics Commission staff.

6. Discussion of Education and Compliance Report. A periodic update on various programmatic and operational highlights of the Education and Compliance division.

Executive Director Pelham highlighted the various outreach efforts and trainings surrounding the April 3, 2017 Statement of Economic Interests Form 700 filing deadline.

Chair Renne asked about the password function of the electronically filed Form 700.

Commissioner Chiu asked what percentage of designated employees electronically file the Form 700 versus the number who file on paper.

Executive Director Pelham stated she believes it is around 500 or more who file electronically, while 3000 or more file on paper.

Commissioner Chiu asked a clarifying question regarding the process for paper filers to electronically file the Form 700.

Commissioner Keane asked if there was any estimate given at the previous meetings to indicate the number of filers who may not easily be able to complete the Form 700 electronically.

Executive Director Pelham stated that it was not an issue that has been raised in those conversations.

Public Comment:

Larry Bush stated that issues of privacy must be considered regarding the Form 700.

Ray Hartz stated that while having people file the Form 700 is good, it is not good enough if those forms are not reviewed for enforcement when violations are found.

David Pilpel stated that he is concerned with consultants and contractors working with the City and their obligation to disclose potential conflicts of interest using a Form 700. He stated that there is not enough consistency as to how department heads determine which contractors file a Form 700 and which do not. He stated that he hopes this is an area discussed in the next report from Ethics staff.

7. Discussion of Enforcement Report. An update on various programmatic and operational highlights since the last monthly meeting.

Deputy Director Blome outlined her research on various case management systems. She added information about Michael Petrelis’ Sunshine Ordinance complaints and Ray Hartz’s Sunshine Ordinance complaint. She highlighted the progress that has been made on hiring enforcement investigators and collecting fees through payment plans on enforcement matters.

Commissioner Kopp asked who is interviewing the investigators.

Executive Director Pelham answered that Civil Service rules require that interviewees be interviewed by a panel of three subject matter experts.

Commissioner Kopp asked when the interview process would end and how many finalists there were.

Deputy Director Blome stated she believes the panel interviews will commence on March 15 and she believes the hiring will be completed by the end of March. She stated that there are fourteen finalists.

Commissioner Kopp asked if there was further information to report on the Chris Jackson case that staff referred to the Bureau of Delinquent Revenue (BDR). He asked if the Bureau has obtained an Order of Examination.

Deputy Director Blome stated that she does not know whether BDR had obtained an Order of Examination since their presentation in January, but she will find out.

Commissioner Kopp asked why there is no status shown for all persons on the BDR Report.

Deputy Director Blome explained that the Bureau of Delinquent Revenue only reports limited information and that she would find out more.

Public Comment:

David Pilpel stated that Chris Jackson has moved to Oakland and suggested grammatical changes in the Enforcement Report.

Ray Hartz asked that the Commission respect the public’s right to speak.

The following written summary was provided by the speaker, Ray Hartz the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

If you review the recording for the January 23 meeting of the EC, during my public comment you will hear a chime indicating 30 seconds remaining, I then continue my public comment for a few more seconds until Commissioner Kopp interrupts me. He placed me in a position where I had no recourse but to challenge him and then you hear the three-minute chime. At that point I asked the chair for compensatory time I was told that my three minutes were up. My public comment was clearly abridged! Commissioner Kopp or any other member has a right to respond to public comment. However, like any member of the public, he is required to follow the rules. AFTER PUBLIC COMMENT, he can ask for recognition from the chair and then is entitled to make any comment he wants. No member is entitled to abridge public comment and that’s the law!

8. Discussion of Executive Director’s report.

Executive Director Pelham highlighted various areas of the report and mentioned awards presented to Ethics Commission staff and Commissioner Keane.

Commissioner Chiu encouraged Executive Director Pelham to continue to pursue budget increases.

Commissioner Keane encouraged Executive Director Pelham to continue to pursue budget increases and stated that the Commission has been severely underfunded over the years and wondered whether the Commission should put a measure for separate funding on the ballot.

Public Comment:

David Pilpel stated support of the Commissioners’ comments regarding more funding.

Dr. Derek Kerr stated that it is important for the Ethics Commission to be fiscally independent from the Mayor’s office.

The following written summary was provided by the speaker, Dr. Derek Kerr the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

Your record of sustaining zero retaliation claims won’t improve because the burden of proof is stacked against whistleblowers. Retaliation is covert and orchestrated. The plotting is secret. Incriminating correspondence is restricted. Managers work with Human Resources professionals and lawyers to craft pretexts that camouflage retaliation. Whistleblowers are largely unaware of these maneuvers. In short, whistleblowers lack access to the “preponderance of the evidence” that you require. They cannot prove their whistleblowing was a “substantial motivating factor” for their termination without a discovery process. OSHA’s Whistleblower Program has revised its burden of proof standard for retaliation. Instead of a “preponderance of evidence”, investigators accept “reasonable cause” to believe retaliation occurred. And if whistleblowing is a “contributing factor” to termination rather than a “substantial motivating factor”, it’s retaliation. Consider adopting OSHA’s standards. If Ethics never validates retaliation claims, whistleblowers will shun you and go to the courts and media.

9. Closed session to discuss the status of current investigations. This session is closed because complaints and investigations are confidential under SF Charter section C3.699-13, Cal. Govt Code section 54956.9, and Sunshine Ordinance section 67.12.

Public Comment:

None.

Motion 170227-4 (Renne/Chiu): Moved, seconded and passed (5-0) that the Commission move into closed session.

The Commission entered closed session at 7:19 PM. All Commissioners, Deputy City Attorney Andrew Shen, Executive Director Pelham, Deputy Director Blome, and staff persons Hosey and Willett remained in the hearing room. The Commission returned to open session at 7:32 PM.

Public Comment:

None.

Motion 170227-5 (Renne/Keane): Moved, seconded and passed (5-0) that the Commission will not disclose its closed session discussion.

Chair Renne commented that the Commission discussed the status of various investigations underway as a matter of routine oversight.

10. Discussion and possible action on items for future meetings.

Commissioner Keane stated that he will provide Executive Director Pelham with more information regarding the work done to rewrite proposition J and commended Chair Renne on his tenure as Chair.

11. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

Public Comment:
None.

12. Adjournment.

Motion 170227-6 (Renne/Chiu): Moved, seconded and passed (5-0) that the Commission adjourn.
The Commission adjourned at 7:40 PM.

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