Minutes of the Regular Meeting of
The San Francisco Ethics Commission
April 24, 2017
Room 400 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
Approved May 22, 2017
1. Call to order and roll call.
Chairperson Keane called the meeting to order at 5:30 PM.
COMMISSION MEMBERS PRESENT: Peter Keane, Chairperson; Daina Chiu, Vice-Chairperson; Paul Renne, Commissioner; Quentin L. Kopp, Commissioner.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Kyle Kundert, Senior Policy Analyst; Manisha Lal, Auditor; Tanya Smith, Investigator/Legal Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney (DCA).
OTHERS PRESENT: Ace Washington; Larry Bush, Friends of Ethics; Trevor Martin; David Pilpel; Debbi Lerman, SF Human Services Network; Marc Saloman; Elena Schmidt, Friends of Ethics; Fernando Martin, Council of Community Housing Organizations; other unidentified members of the public.
MATERIALS DISTRIBUTED:
- March 27, 2017, draft minutes.
- April 19, 2017, Staff Report Regarding Commissioner Keane’s Campaign Finance and Ethics Proposal, Introduced at the March 27, 2017, Ethics Commission Meeting and attachments.
- April 19, 2017, Enforcement Report and attachment.
- April 19, 2017, Executive Director’s Report and attachments.
2. Public comment on matters appearing or not appearing on the agenda.
Ace Washington thanked Commissioner Kopp for bringing up the issue of double-dipping in the City. Mr. Washington also noted the Black population in the City is going down because they cannot afford to pay high rent.
Larry Bush, speaking on behalf of the Friends of Ethics, stated he had two issues to raise that were not on the agenda. First, Mr. Bush submitted excerpts from Patrick Lynette-Shaw’s essay in the West Side Observer regarding the Whistleblower Ordinance. He urged the Commission to host an additional Interested Persons meeting regarding the changes to the Ordinance.
The second issue Mr. Bush brought to the attention of the Commission concerned a Planning Commissioner who had accepted a full-time position at the San Francisco Bay Area Planning and Urban Research Association (SPUR) as its advocate. Mr. Bush provided a copy of correspondence between the Mayor’s and City Attorney’s Offices indicating that the Mayor’s office was interested in seeing that the above-referenced Planning Commissioner does not have to recuse herself on issues that are important to the administration. Mr. Bush stated that Commissioner Johnson intended to vote on a matter regarding inclusionary housing, on which SPUR had advocated a position. Mr. Bush stated his position that Commissioner Johnson’s dual role posed a conflict of interest and that she should resign from the Commission.
Trevor Martin, a District 11 resident and Field Organizer for California Clean Money Campaign, thanked Mr. Bush for raising the conflict of interest issue occurring within the Planning Commission. Mr. Martin stated he is in full support of Chairperson Keane’s campaign finance and ethics proposal. Mr. Martin stated his opinion that some of the policy decisions and contracts that lead to this housing crisis were made with developers, campaign contributions, and campaign promises in mind rather than the merit and what is most beneficial to the people and public common good.
Marc Saloman associated himself with Mr. Bush’s comments about the Planning Commissioner’s conflict of interest. Mr. Saloman stated that the Planning Commission’s policy decision will have bearing on the complexion of Eastside communities for decades to come. He further stated it is the job of the Ethics Commission to ensure that San Franciscans are front and center in the planning process instead of aggregators like SPUR, whose members are lobbyists that aggregate campaign contributions for elected officials. He further stated his opinion that the Ethics Commission should have its own independent counsel.
Commissioner Kopp stated he agreed with Mr. Bush’s comments and the supporting comments of other members of the public regarding Planning Commissioner Christine Johnson. Commissioner Kopp noted that Christine Johnson became Executive Director of SPUR’s San Francisco Chapter last month, and SPUR donors caused SPUR to take positions in support or opposition of various San Francisco ballot measures in 2016. He stated he strongly believes Commissioner Johnson should recuse herself from voting on the Planning Commission’s agenda items concerning matters that overlap with SPUR’s positions at the Planning Commission’s April 27, 2017, meeting.
Commissioner Kopp moved that the Ethics Commission transmit a letter to Commissioner Johnson recommending and requesting that she recuse herself from any item dealing with the subject matter which Commissioner Kopp characterized as low-income housing in a residential project. Commissioner Chiu seconded the motion.
Deputy City Attorney [DCA] Andrew Shen interjected on a procedural matter to state that the Commission did not have an item on its agenda regarding Commissioner Johnson for this meeting and therefore thought it was outside the scope of the notice requirements per the Brown Act. He further noted that there was nothing about the Brown Act to stop an individual Commissioner who may want to, separately and individually, send a letter or communication to Commissioner Johnson.
Chair Keane noted DCA Shen’s remarks for the record but stated that this was a pressing matter and clearly within the Ethics Commission’ purview. Chair Keane stated his believe that the Ethics Commission should indeed speak about Commissioner Johnson’s potential conflict of interest because of the importance of the ethical issue involved. Chair Keane therefore ruled Commissioner Kopp’s motion was in order and stated that the Commission should go forward with a discussion, debate, and vote.
Public Comment:
David Pilpel stated that, while he agreed with Commissioner Kopp’s underlying concern, he urged the Commissioners to give weight to DCA Shen’s caution. Mr. Pilpel stated he agreed with Commissioner Kopp’s concern but believed the Commission should put the matter over to its next meeting. He expressed support for DCA Shen’s recommendation for individual commissioners to send personal letters to Commissioner Johnson. He advised that the Commission should, in either event, note the urgency of the issue in its letter(s) to Ms. Johnson. Mr. Pilpel noted that any effort by the Commission now could compromise the integrity of an ethics investigation.
Ace Washington stated he is in support of Commissioner Kopp’s investigation into Commissioner Johnson’s “double-dipping.” Mr. Washington further stated his opinion that the African American community is in a state of emergency.
Larry Bush, speaking on behalf of Friends of Ethics, stated they supported the motion and agreed with Mr. Pilpel’s recommendation to relay the urgency of the motion to Commissioner Johnson. He stated that the Ethics Commission “should not be a prisoner of the calendar.” Mr. Bush stated this matter should also be an opportunity, when reviewing conflict of interest policies for the City, to address the appearance of a conflict because the City Attorney’s Good Government Guide is almost exclusively about a financial conflict. He noted that Commissioner Johnson’s opinion, as stated at the Planning Commission’s prior meeting, is that there is no conflict so long as SPUR does not directly lobby the Commission.
Marc Saloman stated the worst that could happen with a resolution urging Commissioner Johnson to do something is that somebody could go to court and draw more attention to it and possibly get the Ethics Commission’s resolution urging that there not be corruption thrown out in court. Mr. Salomon urged the Commissioners to take the minor risk by taking a stand for the right thing and let that stand for itself.
Executive Director Pelham stated the Commission needs to be able to express its views as issues come up. She encouraged the Commission to think seriously about taking a formal action on a matter that was not on the agenda. Director Pelham stated an alternative approach would be to have Staff work with Chair Keane to communicate the Commission’s comments that evening and have a letter to that effect sent to the Planning Commissioner to raise whatever questions or points wished which may be one way of achieving it without compromising the Commission’s commitment to open government processes.
Commissioner Kopp reiterated his motion was to transmit a letter from the Commission signed by the Chair. Commissioner Kopp stated he had no view as to who should write the letter, but he would offer his time and attention to the wording of the letter. He reiterated he was not making a motion for a resolution but rather a motion for a simple letter. Commissioner Kopp then asked DCA Shen to relay the content of the advice he gave Ms. Johnson regarding her ability to vote during the Planning Commission’s Thursday meeting. DCA Shen declined to relay the content of his advice, citing attorney-client privilege. Commissioner Kopp stated he would be making a consequent motion based on DCA Shen’s remarks to send a letter, sent from the Ethics Commission to the City Attorney Dennis Herrera asking whether DCA Shen’s advice was written and, if so, for a copy of written advice.
Motion 170424-01 (Kopp/Chiu): Moved, seconded, and passed unanimously (4-0) that the Ethics Commission transmit a letter to Commissioner Johnson recommending and requesting that she recuse herself from any item dealing with the subject matter which Commissioner Kopp characterized as low-income housing. The letter is to include a preamble recognizing the Ethics Commission’s actions as extraordinary and necessary due to the upcoming vote by the Planning Commission on Thursday, April 27, 2017.
Commissioner Kopp then moved that a letter be sent by Chair Keane asking the City Attorney if the relevant opinion to the Planning Commission Commissioner was written and if so, for a copy of that advice. Chair Keane seconded the motion.
Commissioner Renne expressed his difficulty with the motion because only the individual or commission can waive attorney-client privilege, as the client holds the privilege. Commissioner Renne reminded the Commissioners that the Ethics Commission has jealously taken the position that attorney-client privilege applies to it and the City Attorney cannot waive the privilege if the Ethics Commission does not waive it. Commissioner Renne stated that this reasoning probably would apply to whatever instructions or advice the City Attorney may have given to Commissioner Johnson and/or the Planning Commission.
Commissioner Kopp stated the City Attorney serves the people of the City & County of San Francisco as well as the Ethics Commission and the Planning Commission. Commissioner Kopp further stated that the people of San Francisco are preeminent and ranked higher than any Commissioner of San Francisco. He stated he intended to make a motion for the Ethics Commission to formulate a simple charter amendment which removes from the law the provision that the City Attorney is the attorney for the Ethics Commission and enable the law to state the Ethics Commission will have the power to retain its own counsel. Commissioner Kopp referred to his experience with transactions like this as a civil grand jury judge, with county counsel representing various districts, representing special school districts in San Mateo County, one of which was the subject of a grand jury investigation for violations of the Brown Act and consequent report. He stated it took a year and a half to obtain a change in procedure so that County Counsel no longer sat with the Grand Jury through all its deliberations. He recounted a similar episode with Santa Clara county about fifteen years ago with County Counsel and the Civil Grand Jury engaged its own attorney. He further stated that there is a conflict of interest which cannot be cured with a City Attorney under San Francisco law representing every Commissioner, Commission, or employee who is accused of a violation of one of the laws over which the Ethics Commission has responsibility. Accordingly, Commissioner Kopp would add to the letter a request that the City Attorney act immediately, before Thursday, April 27, to obtain the consent of his client, Commissioner Johnson of the Planning Commission, for publication of any written opinion.
Commissioner Chiu asked DCA Shen if, falling short of sharing any written or oral advice, there is any way for him to enlighten the Commissioners in terms of where they may be interpreting these Ethics Rules incorrectly. Commissioner Chiu asked DCA Shen if there were points of law the Commissioners may not have honed in on. DCA Shen responded he could speak to the Commission about conflict of interest laws and ethics laws within the jurisdiction of the Ethics Commission. DCA Shen suggested he could have that discussion with the Commissioners at a future meeting, subject to proper notice, and his presence at the meeting was to engage in and help aid general policy discussions. Commissioner Chiu asked if there was anything that could be done between that moment and Thursday morning that could help educate the Commission given the urgency and short timeframe. DCA Shen responded that, subject to the Brown Act and Sunshine Ordinance, he could make himself available for individual discussions with members of the Commission of the Commission’s Staff before Thursday.
Commissioner Renne asked Commissioner Kopp what difference it would make at this stage as to what the City Attorney may or may not have advised Commissioner Johnson since the Ethics Commission has made the decision to tell her that she should not sit on that matter regardless. Commissioner Kopp responded that it makes a difference to the public, this Commission, and himself. Commissioner Kopp further stated that whether or not the opinion exists is not part of attorney-client privilege sufficient to thwart the public which has an abiding interest in it.
Chair Keane suggested the matter be placed on the agenda for the next meeting in full discussion of the matter with all the ethical aspects related to it and respectfully asked Commissioner Kopp to withdraw his motion. Commissioner Kopp withdrew his motion and stated he would send a letter to the City Attorney’s office asking individually if the opinion given to Commissioner Johnson was in writing or if it was an oral conversation.
Public Comment:
Larry Bush stated the public does not know if there ever was a City Attorney opinion, oral or otherwise, only that Commissioner Johnson said there was. Mr. Bush further stated that this matter raises, not for the first time, a serious issue of a firewall between different parts of the City and how they are advised.
Mr. Bush stated in this case, there is a consequential issue at hand because it will affect what gets built in the City and who is able to live here for the next twenty years. He said developers are the ones who are paying for much of what SPUR’s work is. He noted Commissioner Johnson was a member of the board at SPUR when this policy was adopted and when the policy was issued in February, she was in negotiations with the City Attorney’s office on whether or not she had a conflict of interest. He stated he therefore believed asking the City Attorney’s office if there was an opinion is well within the bounds of what would be allowable.
Ace Washington stated this topic had been very educational to him. Mr. Washington also stated pay-to-play has been going on for years and that the City has been run for a long time without accountability but hopefully that will change with the Ethics Commission.
David Pilpel re-iterated caution about the Brown Act and noticing. Mr. Pilpel pointed out that if someone brought a Sunshine Complaint about this sort of conduct at any other board or commission meeting, the Ethics Commission would likely have to hear it on the merits. Mr. Pilpel stated the letter the Commission agreed to send should be attached to the summary of actions and that the letter should be posted to website so everyone could see it, not just Commissioner Johnson. He further stated that the Ethics Commission could request the City Attorney’s office to craft a public opinion that addresses conflict of interest of this kind because it could happen elsewhere. Mr. Pilpel noted that the City Attorney does have screens set up to deal with due process, ethics, and other kinds of circumstances that arise.
3. Discussion and possible action on draft minutes for the Commission’s March 27, 2017, meeting.
Commissioners Kopp and Renne made a few clerical corrections to the minutes.
Public Comment
David Pilpel provided non-substantive edits.
Motion 170424-02 (Kopp/Chiu): Moved, seconded, and passed unanimously (4-0) that the Commission approve the minutes for the March 27, 2017, regular meeting, as amended by Commissioner Kopp and Commissioner Renne.
4. Continued discussion and possible action on Commissioner Keane’s campaign finance and ethics proposal, introduced at the March 27, 2017, meeting.
Executive Director Pelham introduced Kyle Kundert, the new Senior Policy Analyst, and turned the Item over to him to present the overview of the memo.
Mr. Kundert presented information via a PowerPoint presentation summarizing the project of revising Proposition J. He stated there would be a draft available for public review and announced two Interested Persons meetings, both at 25 Van Ness Ave, on May 9th at 5:30 pm and May 11th at noon. He asked the Commissioners what they would like Staff to address at the IP meetings regarding questions or concerns going forward.
The Commissioners thanked Mr. Kundert for his analysis.
Public Comment:
Larry Bush stated he was very impressed with the quality of analysis and looking at other cities that passed the Oaks version. Mr. Bush also recommended considering the city of Richmond as a case study. He encouraged robust outreach of the IP meetings.
Debbi Lerman stated she spoke on behalf of the SF Human Services Network, an association of about eighty health and human non-profits, most of which contract with the City and County of San Francisco. Ms. Lerman stated she deals with legislative issues on a regular basis and even she was confused and overwhelmed by the fifty-page packet attached to this Item. She stated she hoped the process of receiving public input would be extended, particularly if the Board is not going to take up the matter until the Fall and there is no election until June 2018. She stated her opinion that the written comment deadline for the day after the IP meetings would not facilitate her being able to put together a well-reasoned piece of public comment. She stated an extension of the deadline would enable better legislation for the Board of Supervisors.
Fernando Martin from the Council of Community Housing Organizations, representing twenty-four affordable housing developers and community advocates, commended moving the Prop J issue forward. Mr. Martin also expressed an interest in amending the proposed timeline to allow for more public comment. He stated large coalitions of groups would need time after the IP meeting to write comments to bring back to the Ethics Commission. He stated that since the Board of Supervisors is scheduled to be in recess, he wondered why there is such a rush to move something forward.
An unidentified member of the public stated the Mayor reported trying to procure gifts for some sort of business eighty-two times in twenty-four months. He stated he imagined the real figures would be much worse, not only with the Mayor but all other offices. He stated that perhaps Prop J does not have the teeth needed.
David Pilpel stated he agreed with several previous comments about getting it right and not rushing. Mr. Pilpel brought up the difference between discretionary approvals and by-right/ministerial approvals. He stated it is important to understand as much as one can the breadth of types of approvals and contracts, permits, licenses, and entitlements that the City grants and the potential for problems and advised narrowly tailoring the Proposition J restrictions.
5. Discussion of Staff’s Enforcement Report. An update on various programmatic and operational highlights of the Enforcement Program’s activities since the last monthly meeting.
Deputy Director Blome stated that she incorporated recommended changes from the City Attorney and Controller’s Offices into the draft Records Retention and Management Policy. She also stated that the number of complaints had slowed down.
Commissioner Chiu noted that the report stated Ethics has one matter that is greater than twenty-four months and another thirteen that are anywhere from sixteen to twenty-one months. Commissioner Chiu asked whether it would be feasible to set a goal for reducing the number of outstanding matters, particularly the ones that are most aged. Deputy Director Blome stated when she had an investigator on staff, she completed matters from 2013 for exactly that reason. Deputy Director Blome further stated that a lot of the investigative work has already been done on the 2014 matters and that many are ready for probable cause hearings or potential settlement.
Commissioner Kopp asked about the status of matters with the Bureau of Delinquent Revenue. Deputy Director Blome responded she had copied status updates from the Bureau of Delinquent Revenue’s communication to Staff.
Public Comment:
Elena Schmidt from Friends of Ethics stated that she would like to Staff to add a section to the Enforcement Report regarding actions taken by agencies with enforcement authority over ethics matters. Ms. Schmidt stated that adding a simple statement of what is going on would reassure the public that it is not all Ethics Commission that has to take enforcement actions but that there are other enforcement agencies that are doing some work for the public.
David Pilpel stated he agreed with Ms. Schmidt’s point and thought it would be helpful to include the last action date in the status box. Mr. Pilpel suggested the Bureau of Delinquent Revenue obtained an abstract of judgement in 2013 that does not yet indicate a writ of execution but that some steps have been taken. Commissioner Kopp asked Deputy Director Blome to ask the Bureau for the most recent update.
An unidentified member of the public stated that he wondered if there is a conflict of interest issue with the City Attorney’s office writing this legislation and its close ties to the people at City Hall. He stated he would like to attend the IP meetings at 25 Van Ness and to make written observations to the Proposition.
6. Discussion of Executive Director’s Report. An update highlighting various programmatic issues and operational activities of the Commission’s staff since the previous monthly meeting that covers a range of topics such as the Commission’s budget, policy developments, outreach activities, audit program, and future staff projects.
Executive Director Pelham reported Staff was very sad to say good-bye to one of its longtime staff members, Assistant Deputy Director Shaista Shaikh, who was with the Commission for nineteen years and has taken a new position within the City to help roll out an accounting program. Executive Director Pelham reported that Kyle Kundert had started April 10th and that she is looking forward to having his insights going forward on all of the policy issues. Director Pelham announced three investigators will be joining staff: Tanya Smith, who has experience directly in this area having worked for the FPPC joined today; Jeff Pierce, formerly with the Animal Legal Defense Fund, will be starting May 8; and Eric Willett will be transitioning from the audit program and starting early June with the Enforcement staff. Director Pelham stated two new temporary staff members, Alexis and Cheryl, will be working with staff from now until the end of the fiscal year.
Executive Director Pelham stated next month’s report will summarize what Staff learned from this year’s annual filing process of Form 700 and the next steps towards the proposal to mandate all filings to be done so electronically.
Commissioner Kopp asked why the Education & Compliance position was listed as exempt. Director Pelham responded that the 1844 position was created as an exempt position in the mid-2000s, when the public financing program was created.
Public Comment
Larry Bush recommended an advanced copy of the document retention policy be circulated and that it also be subject to at least a virtual IP meeting by inviting people to submit comments rather than having a meeting to which people must be physically present. Mr. Bush stated the rules about document retention have changed with recent California Supreme Court decisions on emails and texts.
David Pilpel stated he looks forward to working with the new staff that has been hired and noted that Executive Director Pelham has done a good job of attracting and retaining talent. Mr. Pilpel agreed with Mr. Bush’s comment that the proposed records management policy should be made available to allow the public more than three days before the meeting to review it.
7. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission, including the Whistleblower Retaliation Complaint Report required by Ethics Commission Enforcement Regulation IV.A(a)(1)(b).
Agenda Item heard after Agenda Item 8.
8. Discussion and possible action on items for future meetings.
Commissioner Kopp requested the Deputy Director to prepare for consideration for the next meeting legislation to remove the City Attorney as the Attorney for the Commission and language authorizing use of the Deputy Director as the Commission’s attorney. Commissioner Kopp stated that the Commission must recognize that the City Attorney cannot serve two masters and that the City Attorney should not be forced to go into contortions to serve two masters. Chair Keane suggested Commissioner Kopp work with Executive Director Pelham on the wording of that agenda item for the next meeting.
Commissioner Chiu asked if the budget will be presented at the next meeting for the upcoming fiscal year and Executive Director Pelham stated it would.
Public Comment:
Larry Bush stated the Charter allows the Ethics Commission to name an outside attorney, but only with the permission of the City Attorney, when the City Attorney feels there is a conflict. Mr. Bush suggested asking for a ruling from a City Attorney that when there will be a conflict that will allow the Ethics Commission to name an outside attorney and, if necessary, include funding to pay for a contract. Mr. Bush stated he understood that John Tucker may be available.
Commissioner Kopp responded that he did not want the Commission spending money on outside attorneys because enough money is spent on outside attorneys. He stated he wants the Commission to have its own attorney: a City employee who answers to the Ethics Commission. Commissioner Kopp stated he is satisfied with the Deputy Director acting as the Commission’s attorney.
David Pilpel stated that existing provisions allow the Commission to get outside counsel in the circumstance of a conflict, with the City Attorney’s concurrence. Mr. Pilpel noted there are two departments in the City that have designated attorneys to advise in addition to the City Attorney—the Tax Collector’s Department and the Sheriff’s Department.
An unidentified member of the public stated that he wondered what the attorney-client contract looks like between the City and the Ethics Commission, what clauses there are and what teeth that has. Commissioner Kopp clarified that there is no contract between the Ethics Commission and the City Attorney. Commissioner Kopp stated that there is no contract between any City department and the City Attorney. Commissioner Kopp stated that the Charter of the City & County of San Francisco makes the City Attorney the Attorney for City business and City departments with the exceptions noted by Mr. Pilpel and that is consistent with the Charter section which established the Ethics Commission twenty years ago.
Continuation of Agenda Item 7 – Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission, including the Whistleblower Retaliation Complaint Report required by Ethics Commission Enforcement Regulation IV.A(a)(1)(b).
Motion 170424-03 (Kopp, Chiu): Moved, seconded, and passed (4-0) that the Commission move into closed session.
Public Comment
None.
The Commission entered a break at 7:40 PM. The Commission resumed from break in closed session at 7:47 PM. The Commission returned into open session at 7:58 PM. No members of the public were in attendance.
Motion 170424-04 (Kopp/Renne): Moved, seconded, and passed (4-0) that the Commission not disclose matters discussed in closed session.
9. 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.
10. Adjournment.
Motion 170424-05 (Kopp/Chiu): Moved, seconded, and passed (4-0) that the Commission adjourn.
Public Comment:
None.
The Commission adjourned at 8:00 PM.