Minutes of the Regular Meeting of
The San Francisco Ethics Commission
May 22, 2017
Room 400 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved: June 26, 2017)
1. Call to order and roll call
Chairperson Keane called the meeting to order at 5:36 PM.
COMMISSION MEMBERS PRESENT: Peter Keane, Chairperson; Daina Chiu, Vice-Chairperson; Paul Renne, Commissioner; Quentin L. Kopp,Commissioner.
STAFF PRESENT: Jessica Blome, Deputy Director; Patricia Petersen, Education and Compliance; Gayathri Thaikkendiyil, Senior Fellow; 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: Larry Bush, Friends of Ethics; David Pilpel; Debbi Lerman, SF Human Services Network; Jonathan Mintzer, Sutton Law Firm; Peter Cohen, Council of Community Housing Organizations; Anita Mayo, Pillsbury Winthrop Shaw Pittman; Elena Schmidt, Friends of Ethics; Louis Dillon; Jess Montejano, Legislative Aide for Supervisor Mark Farrell; Lee Hepner, Legislative Aide for Supervisor Aaron Peskin; other unidentified members of the public.
MATERIALS DISTRIBUTED:
- April 24, 2017, draft minutes.
- May 19, 2017, Staff report and attachments on filing process for 2017 Annual Statement of Economic Interests (Form 700).
- May 17, 2017, Staff report and attachments regarding the Ethics Commission’s Records Retention Policy.
- May 17, 2017, Staff report and attachments regarding the Proposition J Revision Project.
- May 17, 2017, Staff report and attachments regarding proposals for amending the San Francisco Campaign & Governmental Conduct Code.
- May 17, 2017, Staff report and attachments on information requested by Commissioner Kopp regarding process to obtain independent legal counsel for the Ethics Commission.
- May 17, 2017, Enforcement Report and attachment.
- May 17, 2017, Executive Director’s Report and attachments.
2. Public comment on matters appearing or not appearing on the agenda.
Larry Bush, speaking on behalf of the Friends of Ethics, stated he urged DCA Shen to clarify to the Commission and the public the provisions of the Brown Act specifically dealing with items that are not on the agenda. Mr. Bush stated there is a specific exemption within the Brown Act addressing when an issue has arisen after the agenda was created or it is important for the Commission to act and for the Commission to then vote that it is going to act and then do so. He stated that this scenario is what happened at the Commission’s April meeting. Mr. Bush asked whether DCA Shen now elects to amend or retract his public remarks which omitted all mention of this provision and are now being cited in formal complaints against the Commission. Mr. Bush further stated for the record that the timing of the issue is dispositive because the Planning Commission agenda was not made public until the actual day of the Ethics Commission’s meeting. Mr. Bush stated that according to the Sunshine Ordinance responses, the Planning Commissioner did not notify the other Planning Commissioners or the Planning Director of any potential conflicts. Mr. Bush supplied copies of the Sunshine responses from the Planning Commissioners saying they had no advance information of this new assignment with SPUR. Mr. Bush stated the only formal notification received by the Planning Commission was the letter from the Ethics Commission suggesting her recusal. Mr. Bush stated that the DCA speaking at the Planning Commission said there had been no independent investigation of the facts in the case, but had merely accepted Commissioner Johnson’s statements. Mr. Bush stated if an interview/investigation had taken place, they would have seen that the Commissioner was a member of the Board of SPUR for the entire time the negotiations were underway for her to take that job. Mr. Bush stated the larger question was why the DCA did not take a moment in closed session to offer legal advice per protocol.
David Pilpel commented on the matter raised by Mr. Bush. Mr. Pilpel stated he believed the Commission could have made the appropriate Brown Act findings that circumstances arose and that putting the matter over would do serious injury but that the Commission did not make those findings.
Commissioner Kopp associated himself completely with Mr. Bush’s comments and noted the Chair uttered facts which give rise to either one or maybe two of the exceptions in the Government Code Section. He stated he was not only dismayed but surprised the DCA did not state that there are exceptions to the notice in the agenda provision. Commissioner Kopp stated he was also surprised because knowledge of the Brown Act for the attorney assigned to the Ethics Commission includes knowledge of the exceptions.
Commissioner Renne stated he did not think it was productive to be criticizing the DCA since throughout the duration of his term as Commissioner, DCA Shen has done a splendid job. Commissioner Renne stated the circumstances were such that DCA Shen should not be criticized.
Chair Keane recapped the events of the April Commission meeting to which Commissioner Kopp had referenced. Chair Keane stated he was fairly confident that the Ethics Commission would prevail since it was acting properly and pursuant to an exemption in the Brown Act to do its job for the City and County of San Francisco on an ethical matter.
3. Discussion and possible action on draft minutes for the Commission’s April 24, 2017, meeting.
Commissioners Kopp stated he had two non-substantive corrections to make to the draft minutes, which he would provide to Staff.
Public Comment:
Mr. Bush stated the minutes appear to reflect one vote about the letter going to the Planning Commissioner when he recalled there were two.
David Pilpel stated he thought the tape should be reviewed to clarify what happened and thinks in general the characterization in the Draft Minutes is accurate. He stated he may also provide some non-substantive edits at a later date.
Motion 170522-01 (Renne/Chiu): Moved, seconded, and passed unanimously (4-0) that the Commission approve the minutes for the April 24, 2017, regular meeting, as amended by Commissioner Kopp.
4. Presentation and discussion of Staff report on filing process for 2017 Annual Statement of Economic Interests (Form 700).
Patricia Petersen of the Education and Compliance Division of the Ethics Commission provided highlights of the programmatic information and the operational updates regarding this year’s Annual Statement of Economic Interests, also known as the Form 700 filings, via a PowerPoint presentation. She and Gayathri Thaikkendiyil, FUSE Senior Fellow, presented a report including detailed information about the status of the Form 700 this year and the initiatives and outreach to assist filers in complying with the filing requirements. Ms. Thaikkendiyil reported that two surveys were sent: one that was focused on filers and another for filing officers. Ms. Thaikkendiyil stated links to the surveys, offering a rating scale of very poor to very good, were sent to filing officers to be forwarded to the different audiences.
Chair Keane complimented the presenters and stated he learned a lot from the analysis.
Commissioner Renne asked if there was a hotline filers could utilize to get questions answered to which Ms. Thaikkendiyil responded that filers called the Ethics Commission’s office.
Commissioner Chiu acknowledged that follow-up is absolutely critical to improving the processes going forward.
Commissioner Kopp asked whether the feedback received from filers was in line with what was expected to which Ms. Petersen stated she had expected a different response with more complaints and greater negativity.
Public Comment:
Larry Bush stated the Friends of Ethics had a discussion about the enforcement issue and penalties arising from late filings. Mr. Bush suggested the Commission consider whether it has the authority to prohibit officeholders that have not filed a Statement of Economic Interest from casting ballots.
Commissioner Kopp asked the Chair and Commissioner Renne if that issue had ever been examined. Commissioner Renne responded that he did not know of any such examination and that he had wondered what happens to those who do not file timely since the fine currently imposed seems miniscule. Commissioner Kopp responded by asking the Chair if the law would permit such a penalty and invited submission of a possible addition to the law. Chair Keane stated he did not see any reason why the law would preclude the Commissioners from precluding an officeholder who has not filed from voting on matters that come before him or her in that function as an officeholder.
DCA Shen stated the Form 700 is a State requirement and it was an interesting proposed concept. DCA Shen stated his office and Staff could look into it and come back to the Commission with a recommendation.
David Pilpel stated he thought it was a novel issue and did not recall its coming up before. Mr. Pilpel stated he hoped he would see the presentation on the web-site since copies were not available at the meeting. Mr. Pilpel asked how many respondents there were to the surveys and what the population was. He stated seeing the percentage of responses would be helpful. He stated it was easier to find the non-filers on the Commission’s web-site in past years. He stated he hoped Staff would look into the narrative takeaways as the electronic requirement will be extended to department filers.
5. Discussion and possible action on Ethics Commission Records Retention Policy.
Deputy Director Blome presented the updated records management policy which was first brought to the Commission in February and had since implemented written public comment. Deputy Director Blome stated recommendations from the Controller’s office and the City Attorney’s office were also implemented. She stated that sections on back-up tapes or similar archival systems are not required be retained. She stated the proposed policy was forwarded to the Controller’s office, the City Attorney’s office and the Retirement system for final approval.
Commissioner Renne noted an error on page 3 and asked why historical records that are no longer of use to the Commission may not be destroyed. Deputy Director Blome responded that requirement came from the ordinance.
Commissioner Kopp asked if the policy would be considered for adoption to which Deputy Director Blome responded that the proposed policy did not require any formal action from the Commission since it was a policy document at the Staff level.
Commissioner Kopp asked about portions of the retention policy that might leave the Commission open to criticism.
Commissioner Chiu asked about the compliance efforts to manage the different timeframes referenced in the proposed policy. Deputy Director Blome responded that once the policy was approved, it would be distributed to Staff and training would ensue. She further stated that everything would be migrated to a cloud-based system and the Commission does not want to pay for storage.
Public Comment:
David Pilpel stated he was not sure if permanent and essential records could be imaged for purposes of retention and the paper copies destroyed. Mr. Pilpel stated Staff should look at the City’s record retention ordinance which dates back to a long time ago. He also stated he hoped the policy could be a model record management policy for all City departments.
Larry Bush, Friends of Ethics, stated there was a time when department record retention policies were submitted to the Board of Supervisors for adoption. Mr. Bush recommended including a copy of the City Attorney’s memo on the San Jose case decision from the California Supreme Court about retention of records which included records on private devices also had to be disclosed and released upon request.
6. Continued discussion and possible action on Proposition J Revision Project.
Chair Keane noted that Staff had conducted two interested persons’ meetings and that he attended one and it was very productive.
Kyle Kundert, Senior Policy Analyst, guided the Commission through a PowerPoint presentation outlining what was heard at the IP meetings. Mr. Kundert noted that public commenters were worried about actual and perceived political corruption in San Francisco. He stated that the issue of the influence of money in politics was another topic that arose at the meetings. He stated a number of individuals raised the potential constitutional concerns with the proposed provisions. Mr. Kundert stated that the Prop J project would be part of the larger Campaign Finance Reform Ordinance review. He stated it is essential to review the continuing strength and enforceability of the Campaign Finance Reform Ordinance.
Chair Keane observed that the CFRO review timeline went through August. He stated he understood the Prop J revision would be voted on at the June meeting. Deputy Director Blome stated it would behoove the Commission to receive the full package in August to give Staff time to discern how all the proposed changes would interact and compete with each other, particularly since a number of proposals had been received, including proposals from Supervisor Peskin, Supervisor Ronen and Supervisor Farrell. Deputy Director Blome further stated that the Board of Supervisor’s recessed in August. Commissioner Chiu stated she was very much in favor of Staff’s recommended timeline to allow for a comprehensive review and discussion.
Mr. Kundert stated that Staff would be presenting something more concrete on Prop J again at the June meeting so that the public would not be commenting on something abstract and present the full review in August. Commissioner Chiu asked whether it would make sense to have a standalone discussion about Prop J at the June meeting if a comprehensive review and assessment of a CFRO overhaul. Mr. Kundert responded that the public had expressed an interest in seeing something more concrete to afford them a better, more meaningful opportunity to participate in the drafting process.
Public Comment:
Louis Dhillon stated he was flabbergasted that the matter would be postponed another year. Chair Keane clarified that the matter would not be put off another year but only until August since the July meeting had been cancelled per usual cancelling of one of the summer meetings. Commissioner Kopp stated the Ethics Commission, under law, makes recommendations and he predicted those recommendations would be delivered to the Supervisors in August 2017 which would give the Board of Supervisors ten months before the next scheduled municipal election to evaluate the recommendations.
Debbi Lehrman stated the written comment deadline was extended a month to give the public a greater opportunity to respond. Ms. Lehrmer stated she appreciated Chair Keane’s attendance at the IP meeting and that she felt listened to. She further expressed concerns about the complexity of the proposal and whether the average non-profit organization would be able to understand what they could or could not do without having to hire an attorney. She stated she would like to see it simplified because in its current form it would create undue barriers to the opportunity for advocacy and expression of First Amendment rights. She stated the extra time was very much appreciated and valued. She stated the Board of Supervisors would not touch the proposal until at least September anyway.
Jonathan Mitzer, attorney with the Sutton Law Firm, asked when the public would see a revised, redlined version of Proposition J, and that he was concerned that members of the public would be forced to write comments on the revision without having hard language in front of them or will have a very short timeframe for which to do that. Deputy Director Blome responded that Staff would incorporate the written public comment received by June 12, 2017 into the draft that will be presented to the Commission.
Peter Cohen, Council of Community Housing Organizations (CCHO), echoed comments made by Debbi Lerman. Mr. Cohen stated CCHO is a coalition of non-profit organizations in the housing development and services delivery world. He stated that as staff to this coalition, he attempts to get folks to understand complex pieces of policy, which is difficult. He stated the extra time for written comments extension of the timeline is much appreciated. He asked if it would be possible to pose questions to Staff if some members of Staff are available to meet with member organizations who are unable to attend the Commission’s meetings. Mr. Cohen noted there was a challenging process with Prop C two years ago and that a lot of people in the non-profit world are intimidated by advocacy. He stated it was good to be civically engaged in the political process but also intimidating when these types of regulations come up because non-profits tend to do more of the mission-based work. He stated allowing more time into the drafting process would make for a better measure proposal to the Board of Supervisors.
Anita Mayo, Pillsbury Winthrop Shaw Pittman, commented on the current version of Prop J as requested by Staff. She stated Prop J is too complex and overly-broad. She stated the use of terms like “public benefit” and “personal campaign advantage” is problematic because they are not similarly defined in State law resulting in an area without history of regulations or advice letters to assist in the understanding of the terminology. Ms. Mayo further stated Prop J as proposed is too broad in coverage, to the point of being a significant infringement of Board or Commission members’ First Amendment rights to support or oppose a candidate. She stated Prop J unfairly targets developers even though developers are already required to file detailed reports under the current law. She stated Prop J would result in unjust enrichment and encourage frivolous lawsuits. Ms. Mayo further stated that the goal of Prop J is already met with current San Francisco laws that address potentially corruptive influence on public officials from campaign contributions, gifts, promised employment and other emoluments. Ms. Mayo reminded the Commission that courts prefer disclosure over prohibitions.
Elena Schmidt, Friends of Ethics stated the Commission may want to consider another opportunity for the public to comment on Staff’s final draft before it goes before the Commission because there will be disagreements amongst the parties. She reminded the Commission that once the proposed changes have been sent to the Board of Supervisors, Staff will need time to develop the computer program.
Deputy Director Blome announced that Staff would welcome written public comment at any time, not just at the scheduled IP meetings.
Larry Bush, Friends of Ethics, stated he had discussions with the Controller’s office in the past week and had asked them to draft a budget of what it would cost to create a system that would allow Staff to interface between contracts, behest payments, travel, major developers, permit consultants and other lobbyist activities to track how money flows. Mr. Bush stated he was also in conversation with MapLight, a nationally-recognized organization that had recently endeavored on a project to track local campaign money.
David Pilpel stated he agreed with Peter Cohen’s and Elena Schmidt’s comments. Mr. Pilpel observed that the City’s financial system replacement project is underway and the Controller’s office and various finance people may be massively consumed with that over the next month, which may limit the availability of budget personnel to comment.
Chair Keane observed that Prop C, although it may have appeared rushed, was a first-rate measure.
7a. Discussion and possible action regarding the following proposals for amending the San Francisco Campaign & Governmental Conduct Code: Ordinance amending the Campaign and Governmental Conduct Code to require additional disclosures for campaign contributions from business entities to San Francisco political committees. BOS File No. 161196 (Introduced by Supervisor Mark Farrell); and
Kyle Kundert, Senior Policy Analyst, introduced item 7A and provided background. He stated the proposal was a ban on limited liability companies, S Corporations and other partnerships and would require disclosure of certain activities occurring in San Francisco. Mr. Kundert noted that recent caselaw has shown a preference of disclosure over prohibition.
Jess Montejano, Legislative Aide for Supervisor Mark Farrell, stated the proposal from his office aimed to shed more light on campaign contributions coming from business entities. He stated new disclosure regimes demanding more disclosure from campaign donors are becoming the frontline of campaign finance regulation in the wake of the Citizens United decision. Mr. Montejano stated that since the decision, business entities have been enjoying an expanded voice in politics at the expense of average citizens. He stated this issue came to his office’s attention last year when a local LLC contributed nearly half a million dollars to five separate ballot measure committees and that all of the spending from that LLC was directed at five ballot measures directly related to that LLC’s business interests. He stated that the source of these contributions was money siphoned from taxpayer-funded affordable housing projects. He stated he believed this example is illustrative of why his office’s proposal is necessary. He stated the new disclosure requirement would include the purpose, names of the principal officers, and information about any funds received through any contract or grant from any governmental agency of the contributing entity.
Chair Keane asked how these suggestions would fit within the Prop J revisions. Mr. Kundert replied that with enough time, it would be feasible to encompass the suggestions. Chair Keane then asked Mr. Montejano if Supervisor Farrell would object to the Commission incorporating the Supervisor’s proposal with the Prop J revision rather than separately to which Mr. Montejano responded he had not had the opportunity to discuss that suggestion with Supervisor Farrell. Mr. Montejano stated he could see the convenience of incorporating all of the changes together but that he also believed the public’s interest would be served by having a separate policy moving forward to bring shed light and disclose the business entities’ contributions. Commissioner Kopp told Mr. Montejano he could advise the Supervisor that the proposal would have a better chance of passing if it is included with the Prop J revision. Chair Keane stated that it is the intention of the Commission of sending Prop J to the Board of Supervisors and if they do not pass it, the Commission will put it on the ballot next year. Chair Keane reminded Mr. Montejano that the Commission has had fair success and overwhelming support over the last couple of years with measures on the ballot.
Commissioner Chiu told Mr. Montejano that it would be helpful to have information regarding how much money these business entities received via government contracts to create a good record that there is a harm the Commission is trying to prevent. Commissioner Chiu requested Mr. Montejano ask for Supervisor Farrell’s view on how the Commission and Supervisors could collectively fund resources to implement disclosure technology and infrastructure to be able to make the disclosure requirements effective. Mr. Montejano responded that this scenario is a common predicament that many members of the board have in that funding is not identified. He stated that when Supervisor Farrell was the Chair of the Budget and Finance Committee, he supported the Commission’s increased budget. Mr. Montejano stated he would be happy to find ways to advocate for this policy.
Commissioner Chiu stated she would appreciate getting the Supervisor’s support on including a standing component of the Commission’s budget every year an ordinance-related fund that could always be relied upon.
Public Comment:
David Pilpel stated he generally supported disclosure. He queried why the proposal only listed three business entity types and not others. He stated the timeframe of fifteen years is arbitrary and the proposed burden on contributors does not clearly relate to an existing problem.
Louis Dillon stated Proposition J had overwhelming support from San Francisco voters. He stated that extending the timeline would provide for loopholes.
Anita Mayo, Pillsbury Winthrop Shaw Pittman, stated the proposed legislation imposes an incredible burden on candidates, PACs and primarily-formed committees to request and disclose information going back fifteen years. She stated that laws that impose on First Amendment rights must demonstrate an important interest and be closely drawn to avoid any unnecessary abridgement of associational freedoms. Ms. Mayo stated that the true source of donations must already be disclosed under current law. Commissioner Kopp asked Ms. Mayo if she would be satisfied if it was five years rather than fifteen to which Ms. Mayo responded that she did not think it was needed because current State and local laws already exist to prohibit money laundering.
The Commission entered a break at 7:54 PM. The Commission resumed from break in open session at 7:59 PM.
7b. Discussion and possible action regarding the following proposals for amending the San Francisco Campaign & Governmental Conduct Code: Ordinance amending the Campaign and Governmental Conduct Code to require disclosure of contributions solicited by City elective officers for ballot measure and independent expenditure committees; require disclosure of bundled campaign contributions; and prohibit campaign contributions to members of the Board of Supervisors, candidates for the Board, the Mayor, candidates for Mayor, and their controlled committees, from any person with pending or recently resolved land use matters. BOS File No. 170029 (Introduced by Supervisor Aaron Peskin).
Kyle Kundert, Senior Policy Analyst, gave a brief introduction of the proposal received from Supervisor Peskin’s office which would add three additional requirements to CFRO.
Lee Hepner, Legislative Aide for Supervisor Aaron Peskin, discussed the three distinct parts of the proposal. Mr. Hepner noted the significant overlap with the third prong of the proposal and Prop J. He stated the campaign finance crisis people are facing is an abstract problem but a crisis nonetheless. Mr. Hepner stated he liked the idea of sending his office’s policies along with other suggested revisions as a CFRO package for the Board of Supervisors with enough time for the Board to act accordingly. He noted that candidates have already begun declaring intent to run for office in next year’s elections. He stated he would appreciate the Commission’s attention to the details of the proposal and welcomed any suggestions as potential amendments.
Chair Keane stated that ideally the Board of Supervisors would pass the combined Prop J materials in a timely manner but if they do not pass it, it would go on the ballot. He asked Mr. Hepner if it would be important for his office’s proposals to be presented by itself or if it would be suitable to incorporate it into the Prop J materials the Commission has and go forward with the collective strengths. Mr. Hepner responded he would happily defer to the Commission’s recommendations as to what it sees fit. Chair Keane then asked Mr. Kundert if Supervisor Peskin’s proposals could fit into the Prop J materials to which Mr. Kundert responded that it could, particularly since there was a lot of overlap in terms of types of disclosure provisions.
Chair Keane noted that Supervisor Peskin is due some credit for the Prop J material the Commission has been working on with Mr. Bush and others. Chair Keane also noted that the Commission is in sync with Supervisor Peskin’s thoughts on campaign finance reform.
Commissioner Chiu encouraged Mr. Hepner and Staff to look at the outright ban from a constitutional viewpoint because she would like to ensure that whatever proposal is put together and sent to the Board of Supervisors would pass constitutional scrutiny and not struck down in a subsequent lawsuit. Commissioner Chiu asked Mr. Hepner what Supervisor Peskin has indicated he would do to support finding resources for the Commission to enact the revisions. Mr. Hepner responded he appreciated that the Staff report itemized the amount of money needed to implement and that he would take that question back to Supervisor Peskin.
Public Comment:
Larry Bush sought clarification about whether or not solicitations for $10,000 or more should be prohibited for non-elected City officials as well as City elected officials. Mr. Bush cited the example of Recology’s contributions to various ballot measure committees. He stated that since he is on a bond oversight committee, he is familiar with the fact that type of activity occurs. Mr. Bush suggested taking a look at elected officials as well as individuals acting in an official capacity who have an ability to confer a benefit.
Commissioner Kopp asked that Mr. Bush’s suggestions be transmitted to Staff to evaluate and present in legal form.
Anita Mayo, Pillsbury Winthrop Shaw Pittman, stated the proposed ordinance imposes unreasonable disclosure obligations on City elected officials who solicit contributions for ballot measure and independent expenditure committees. Ms. Mayo stated the requirement to disclose such detailed information within twenty-four hours after the contribution is made is unreasonable especially when the lobbying information is not related to the election. She further stated that the bundling section of the proposal is overly broad in its coverage and would make it impossible for City elected officer to accurately who has bundled contributions for his or her campaign.
Commissioner Kopp asked Ms. Mayo how ‘bundled’ is defined in election law to which Ms. Mayo responded that it is generally regarded as an individual raising money on behalf of a candidate or official obtains those checks and hands them over to a candidate or committee. She stated the proposed legislation is so broadly defined that inviting someone to a fundraiser, regardless of whether that person attends the fundraiser, would trigger the disclosure requirement if that invitee later contributes. Commissioner Kopp asked if substituting the word “collection” would be more palatable to which Ms. Mayo responded the naming convention would not change anything if the law has other various definitions.
Public Comment:
David Pilpel noted that some definitions vary from Supervisor Farrell’s proposal and the current version of CFRO. Mr. Pilpel stated he is unsure why the proposal limits land use matters to a permit or variance and not a franchise or lease, which are different concepts in law.
8. Discussion and possible action on information requested by Commissioner Kopp regarding process to obtain independent legal counsel for the Ethics Commission.
Commissioner Kopp proposed a letter be sent to the City Attorney asking whether the legal advice delivered to Commissioner Johnson was in writing or whether it was oral. Chair Keane agreed with Commissioner Kopp that the attorney-client privilege extends to the content of matters between an attorney and a client and that the privilege does not extend to disclosing the particular form of the advice given. Commissioner Renne agreed with the conclusion and expressed his concern that it was not an item on the agenda and that if the Commission wished to have a discussion about whether or not it should take further action, it should have been on the agenda.
Commissioner Kopp modified his proposal and requested that Staff prepare a letter for his signature.
DCA Shen made a point of information that at the ensuing Planning Commission meeting on April 27th, when the inclusionary housing item was called, Commissioner Johnson spoke to what the Ethics Commission discussed three days prior. DCA Shen stated that one of his colleagues addressed any potential conflict of interest concerns that could be implicated by Commissioner Johnson’s voting on the matter. DCA Shen confirmed that there had been oral advice given by his office on this question which is on a recording of the Planning Commission’s April 27th meeting.
Chair Keane asked whether the conclusion of the advice was that the individual did not have a conflict of interest to which DCA Shen responded in the affirmative. Chair Keane observed that it was an unfortunate conclusion and completely wrong. He noted that the San Diego Ethics Commission does not use a City Attorney, it uses separate counsel. Chair Keane recognized that Dennis Herrera is a fine City Attorney and he respects the office. He stated that the Commission should perhaps have a separate attorney mainly because the City Attorney has to look out for City agencies and City employees that may be involved in unethical activities and the Commission’s finding of things regarding those agencies and activities could subject the City to liability which the City Attorney’s office has an overall obligation to try and protect against.
DCA Shen responded that the assumption that the City Attorney’s office does not tell separate city clients what they do not want to hear is incorrect. DCA Shen reported that the City Attorney’s office has a history of advising clients that they do have a conflict of interest and that they should not vote on a given matter in instances where there is a conflict of interest. He stated his office is willing to advise clients that they should not participate in matters where there is a legal conflict of interest under State, local or other law. DCA Shen noted that his office has always taken the position that it makes sense for the City to have a single source of legal advice so everyone gets the same answer to a question. He noted that the recipient of the advice may disagree on the appropriate response or what is the right way to legislate against that issue but at least s/he all have the same underlying legal understanding of what the issues are.
Chair Keane responded that while he was a public defender, he heard similar arguments from many other counties throughout the State where one public defender would defend three defendants accused of a bank robbery because all of the defendants have a joint interest and should therefore put on joint defenses. Chair Keane noted that those arguments were struck down by the Supreme Court of California and encompass similar arguments to what DCA Shen had put forward. Chair Keane stated the Ethics Commission, which is looking at ethical questions in San Francisco, should particularly have separate counsel that is not burdened by serving two masters.
Commissioner Chiu stated she appreciated DCA Shen’s input and recounted her long experience in the corporate world where general counsel would tell executive clients that they may not engage their own outside counsel. Commissioner Chiu stated she appreciated the rationale, purpose and benefits of having the City Attorney providing advice. Commissioner Chiu recognized that the criminal context is very different from what the Commission does. Commissioner Chiu requested a copy of the transcript of the advice given to Commissioner Johnson of the Planning Commission. Commissioner Chiu stated that at the April meeting, the Commission felt there were exigent circumstances and therefore went down the path it did. Commissioner Chiu stated the Commission would now benefit in reading the transcript to understand the analysis of the facts that the City Attorney went through to truly understand what really happened. DCA Shen stated his office would be happy to provide the transcript.
Commissioner Kopp stated he has heard the argument that the City must speak with one legal voice for many years and he also noted that the Ethics Commission does not administer healthcare or the building of roads. Commissioner Kopp read from an email dated January 25 from Nicole Elliott, Director of Legislative and Government Affairs, and asked DCA Shen if a meeting referenced in the email took place. DCA Shen responded that the Commission is well-aware that the City Attorney’s office did speak with Commissioner Johnson and the Mayor’s office and that since he did not have his calendar on him, he could not recall the date and time of the meeting.
Commissioner Kopp stated he would still like Staff to draft a letter for his signature so that there is a written record. Commissioner Renne noted that the agenda item is about Commissioner Kopp’s inquiry of whether the Commission should seek independent counsel as opposed to the City Attorney. Commissioner Renne stated the Commission should submit a request to the Board of Supervisors that there be an amendment to the charter to state the Ethics Commission has the right to independent counsel. Commissioner Renne stated it would be preferable for the Commission to have independent counsel. He stated he has no complaints with the objective, fair, honest advice received from the City Attorney’s office, particularly in the Farrell matter. He stated he is not critical of the City Attorney’s office and there is merit to the idea of having separate counsel when the Ethics Commission is dealing with alleged wrongdoing of City officials.
Deputy Director Blome stated that it would be possible for the Commission to have independent counsel and still have the City Attorney’s office represent the Commission in litigation when the Commission is being sued.
Commissioner Kopp stated San Diego had already written law on this matter which may be used as the Commission’s model. Chair Keane stated he expected Staff to draft something within the next few meetings to put forward to get the Board of Supervisors to amend the Charter.
Public Comment:
Larry Bush, Friends of Ethics, stated that as an interim step, the Commission could ask the City Attorney to designate an amount of money for the Ethics Commission to have its own attorney. Mr. Bush asked the Commission to consider that the City Attorney accepts campaign contributions from people that the Commission may be investigating.
Elena Schmidt, Friends of Ethics, stated as foreperson of the Civil Grand Jury, she had recommended the Commission seek independent counsel. She stated there was a charter change in 2002 allowing independent counsel to come for commissions and department heads in instances where the City Attorney agreed to it. Ms. Schmidt stated she knew of at least two instances where the Ethics Commission has used an independent attorney.
David Pilpel stated he was able to pull up the caption notes from the Planning Commission’s April 27 meeting from sfgovtv.org and read what Mr. Givner presented. Mr. Pilpel stated a charter amendment could change the relationship with the City Attorney’s office and allow for outside counsel. He stated he was reminded Prop F in 1997 and the Tammy Haygood matter when there was one body of government seeking to remove someone from civil service. Mr. Pilpel asked about a May 15th Staff analysis that was referenced but not made available to the public. Deputy Director Blome stated he could request the document under the Sunshine Ordinance.
9. 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.
Commissioner Kopp observed that he did not think closed session is necessary to encumber the public by going into closed session and forcing members of the public to leave the room for this Item. Commissioner Kopp noted the Staff report indicated the Commission has a full complement of investigators.
Deputy Director Blome stated that she was happy to entertain questions about the Bureau of Delinquent Revenue or Staff’s caseload data. Deputy Director Blome stated she is taking a comprehensive look at enforcement processes employed at other Ethics Commissions in California and will bring a new draft of proposed changes to the June meeting.
Commissioner Kopp stated he is satisfied progress at the Bureau of Delinquent Revenue is being made.
Public Comment:
David Pilpel stated he appreciated the additional narrative in the BDR chart. He suggested the chart may be a good central repository to list other individuals with outstanding Form 700 filings, fees or fines.
10. 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.
Deputy Director Blome spoke on behalf of Executive Director Pelham who was unable to attend the meeting.
Commissioner Chiu requested an update on the budget to which Deputy Director Blome responded that Staff received everything that was asked for including new positions, exempt from civil service. Commissioner Chiu asked if the added positions would be sufficient to meet current workload or the proposed increased workload to which Deputy Director Blome responded these additional positions were created knowing that the Prop J project would be underway and that the budget request did not include the funding necessary for the contractors to build databases.
Commissioner Chiu asked about if there would be funding in the translation services and investments in Staff development training line items to which Deputy Director Blome responded there would be no funding.
Commissioner Chiu asked for the overall budget number for FY 2018 to which Deputy Director Blome responded she would get that information to her after the meeting.
Public Comment:
David Pilpel suggested the policy plan be visited more frequently than annually.
11. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission.
Motion 170522-02 (Renne/Chiu): Moved, seconded, and passed (4-0) that the Commission drop Agenda Item 11.
Public Comment:
None.
12. Discussion and possible action on items for future meetings.
Agenda Item heard after Agenda Item 13.
13. 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:
Louis Dillon stated the Commission is about transferring power back to the citizens from the entities that have power in City Hall.
Continuation of Agenda Item 12 – Discussion and possible action on items for future meetings.
Public Comment:
Larry Bush, Friends of Ethics, stated he would like to bring up the Whistleblower issue which was brought to the Board of Supervisors about one year prior. He stated San Francisco law does not protect individuals that make public whistleblower complaints from retaliation. He urged the Commission to have an Interested Persons meeting on the topic.
14. Adjournment
Motion 170522-02 (Kopp/Chiu): Moved, seconded, and passed (4-0) that the Commission adjourn.
The Commission adjourned at 9:17 PM.