Ethics Commission
City and County of San Francisco

Minutes – November 27, 2017

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
November 27, 2017
Room 400 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved December 18, 2017)

1. Call to order and roll call.

Chair Keane called the meeting to order at 5:35 PM.

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

STAFF PRESENT: LeeAnn Pelham, Executive Director; Kyle Kundert, Senior Policy Analyst; Pat Ford, Policy Analyst; Jeff Pierce, Senior Investigative Analyst.

OFFICE OF THE CITY ATTORNEY: Joshua White, Deputy City Attorney (DCA).

OTHERS PRESENT: Vivian Imperiale, Nancy Nielsen, Debbi Lerman and other unidentified members of the public.

MATERIALS DISTRIBUTED:

  • October 23, 2017 Draft minutes
  • November 17, 2017 Staff memorandum and attachments regarding draft Ethics Commission bylaws amendment to change date, start time, and location of Ethics Commission Regular monthly meetings.
  • November 20, 2017 Staff report and attachments for possible action on request from Kearstin Dischinger for waiver from post-employment restrictions in San Francisco Campaign & Governmental Conduct Code section 3.234(a)(2).
  • November 20, 2017 Staff cover memorandum and draft opinion in response to the request by David Maass for an Ethics Commission formal opinion regarding the applicability of Ordinance 001-17 to his duties as a member of the Sunshine Ordinance Task Force.
  • November 20, 2017 Staff report and attachments on revised version of the 2017 San Francisco Anti-Corruption and Accountability Ordinance following Commission’s actions at its October regular meeting.
  • November 20, 2017 Staff report and attachments on monthly Staff Policy Report and update of the Commission’s Annual Policy Plan.
  • November 20, 2017 Enforcement Report and attachments.
  • November 20, 2017 Executive Director’s Report and attachments.

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

Ray Hartz spoke regarding the history of Sunshine Ordinance Task Force (SOTF) and the Ethics Commission. Audrey Leong, employee of the City and County of San Francisco, thanked the Ethics Commission for contacting her regarding her complaint. Ms. Leong asked for another investigation into the program manager who is retaliating against her for speaking up. Ellen Lee Zhou, an employee of the City and County of San Francisco, spoke in support of Ms. Leong and many other City and County employees who are afraid to speak up for fear of retaliation. Ms. Zhou asked the Ethics Commission to investigate the many complaints they have filed with the Commission. Vivian Imperiale spoke regarding the Anti-Corruption and Accountability Ordinance.

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:

The Civil Grand Jury, C&C of San Francisco 2010 to 2011, issued a report entitled “San Francisco’s Ethics Commission: The Sleeping Watchdog.” The report includes the following: “Because of the Ethics Commission’s lack of enforcement, no city employee has been disciplined for failing to adhere to the Sunshine Ordinance. The commission has allowed some city officials to ignore the rulings of the Sunshine Ordinance Task Force.” The kabuki theater piece at your last meeting, which purported to be a “hearing” on a SOTF referral, displays this body’s blatant disregard for the rule of law! In the Good Government Guide there is a section entitled “Roles of Commissioners.” The section mentions “due process” and directs commissioners, when acting in a quasi-judicial capacity, to “base their decisions upon the evidence and the governing law.” As the Civil Grand Jury reported in 2010, so it is now and so it shall continue!

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

Commissioner Kopp noted one correction in Agenda Item 9:  the last sentence should read the “December” meeting not at its “next” meeting. Commissioner Renne stated that when he reads the meeting minutes, if he was a private citizen, he would have no idea what the various speakers said. DCA White replied that the minutes, as is, are legally sufficient; it would be up to the Commission if they wanted to add more detail.

Public Comment:

Ray Hartz spoke in favor of more details in the minutes. He also spoke regarding the 150-word summaries that should appear in the actual minutes, not as an addendum, citing a previous item heard at the October 23rd Commission meeting.

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 the minutes before you are two 150-word summaries: one from Dr. Derek Kerr and the other submitted by myself. I would challenge any member of this Ethics Commission, which has approved literally dozens of meeting minutes with such summaries, to provide any evidence that the responsibility for keeping minutes has in some way been compromised! For approximately 5 years, from 2011 until 2016, this body relegated the statements to the status of “an addendum.” Then in 2016 the summaries began to appear as they are now: “in the minutes!” So the Sunshine Ordinance states, so the Task Force has for years both ruled and directed be done, and the wheels of government have yet to grind to a halt! I find it truly hypocritical that the only person who expressed any basis for exempting the Board of Supervisors was Commissioner Kopp, appointed by the Board of Supervisors!

Motion 171127-1 (Kopp/Chui): Moved, seconded, and passed unanimously (5-0) that the Commission approve the minutes for the October 23, 2017, regular meeting, as amended by Commissioner Kopp.

Chair Keane advised the Commission will take a matter out of order, Agenda Item 8 section II(A)(2), so Supervisor Jane Kim may address the Commission to present a substitute draft of her proposed campaign finance legislation.

8. Discussion and possible action on monthly Staff Policy Report and update of the Commission’s Annual Policy Plan.

Supervisor Kim advised that she is presenting a second version of a proposed ordinance she originally introduced in July 2017. Supervisor Kim expressed her interest in helping strengthen our disclosure and transparency requirements. Her goal is to increase transparency and disclosure requirements for candidates and third-party committees.

In addition, her office is currently working on a few items that did not make it into the second version of the ordinance: re-examining the City’s public financing system; whether the City should limit fundraising windows for office holders; and if we should we require social media companies to archive all online advertisements. For the last two items they would like feedback from the Commission while the ordinance is in the beginning stages.

Chair Keane thanked Supervisor Kim and commended her for her work on campaign finance issues. Commissioner Kopp confirmed that Supervisor’s Kim’s new proposal was not duplicative of the Anti-Corruption and Accountability Ordinance passed by the Commission in November. Commissioner Kopp also inquired about the candidate coordination prohibition in City law. Supervisor Kim asked for the Commission’s advice, expertise, and cooperation on her proposal. Vice-Chair Chiu advised that public financing and social media issues were already a part of the Commission’s policy plan and offered to work with her office as the Commission continues its work.

Public Comment on Supervisor Kim’s matter:

Larry Bush, Friends of Ethics, agreed with Supervisor Kim’s concern that the amount of money spent is having less impact than the reach of advertisements. Ray Hartz, San Francisco Open Government, referred to a Civil Grand Jury result, suggested that we should let our leaders demonstrate their honesty with respect to campaign finance donations.

4. Discussion and possible action regarding draft Ethics Commission bylaws amendment to change date, start time, and location of Ethics Commission Regular monthly meetings.

Executive Director Pelham detailed the proposed change to the Commission’s regular meeting date and start time. Commissioner Lee stated that her choice would be to change the meeting date and times. Chair Keane agreed with Commissioner Lee, adding that the Commissioners would be better equipped to do their jobs if they were able to have meetings during regular business hours; he also cited that Staff overtime and travel time home for late meetings is also a consideration. Vice Chair Chiu agreed with both Commissioners and noted that earlier meetings may result in more people staying until the end for late agenda items. Commissioner Renne was persuaded that individuals who could not attend in person could take advantage of the option for telephonic appearances.

Public Comment:

Larry Bush reminded the Commission of his opposition but expressed support for telephonic appearances. Elena Schmid, Friends of Ethics, expressed reservation that that five hours is long enough for a Commission meeting. Ray Hartz, San Francisco Open Government, noted that this change is only for the convenience of the Commissioners and the Staff. Charlie Marsteller encouraged the Staff do outreach to younger members of the public to spark more interest in the Commission meetings.

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:

Let us not pretend that this change is for any reason other than the convenience of the commissioners! The only reason I see for making the change is that some members of this commission just aren’t used to being up beyond their “normal bedtimes.” The interests of the public be damned! Even your informal poll, conducted at the last meeting, indicated that three quarters of those who responded would be inconvenienced by this change. So, without making any real effort at all to determine how this would affect public attendance and participation, you will make the change you intended all along. I believe, even more than the commissioners this change will benefit Ethics staff. After all, why should they be inconvenienced to accommodate the public? This one sided memorandum, produced by the staff, deals with nothing but the mechanics of making the change. Again, the public be damned!

Motion 171127-2 (Lee/Chiu): Moved, seconded, and passed unanimously (5-0) that the Commission approve to change the date, start time and location of Ethics Commission Regular monthly meetings.

Commissioner Kopp proposed an amendment to the motion that a maximum number of phone lines be made available to those who are unable or unwilling to attend the day time meeting.

Motion 171127-3 (Kopp/Chiu): Moved, seconded, and passed unanimously (5-0) to amend the previous motion to allow for the maximum number of phone lines available during Commission meetings.

5. Discussion and possible action on request from Kearstin Dischinger for waiver from post-employment restrictions in San Francisco Campaign & Governmental Conduct Code section 3.234(a)(2).

Chair Keane advised this agenda item had been withdrawn at the request of Ms. Dischinger and, therefore, would not be considered by the Commission

6. Discussion and possible action on formal opinion draft in response request by David Maass for an Ethics Commission formal opinion regarding the applicability of Ordinance 001-17 to his duties as a member of the Sunshine Ordinance Task Force.

Senior Policy Analyst Kyle Kundert provided a brief background, noting that it has been some time since a formal request for an opinion has been made to this Commission. Mr. Kundert advised that Staff is recommending the Commission vote to approve the opinion so that they can transmit it to the City Attorney and District Attorney at the earliest possible date.

Public Comment:

None.

Motion 171127-04 (Kopp/Chiu): Moved, seconded and passed unanimously (5-0) to adopt Staff report as the Commissions formal opinion on the David Maass matter.

7. Discussion and possible action on revised version of the 2017 San Francisco Anti-Corruption and Accountability Ordinance following Commission’s actions at its October regular meeting.

Policy Analyst Pat Ford went through the November draft of the Ordinance, highlighting the changes from the draft submitted for the October meeting. Highlights included changes to Section 1.126 to strengthen notification requirements for citizen suits; Section 2.231 prohibiting fundraising by boards and commissioners for their appointing authorities; and Section 3.207(A)(4) requiring disclosure of behested payments.

Chair Keane and Vice Chair Chiu expressed support for Staff’s recommended changes. Commissioner Lee remarked she continues to have a concern on the definition of payment, as well as the disclosure requirement on the part of the payment recipient. Commissioner Kopp expressed his dismay and disappointment at the weakening of this Ordinance. Vice Chair Chiu addressed Commissioner Kopp regarding the private right of action issue; she also respectfully disagreed with his opinion regarding behested payment disclosure because she believes disclosure will offer clarity in the influence (or not) of money in our City decisions.

Public Comment:

Charles Marsteller recommended that the official, when sending his report, would want to make sure that the donor met his requirement under the law. If the official receives a courtesy copy of the notification by the donor this could prevent the official from being blind-sided. Debbi Lerman, San Francisco Human Services Network, highlighted two of their many remaining concerns that are dangerous issues with the legislation: the nexus that defines “interested party” is too broad and would be too difficult to enforce; and the disclosure, potentially publicly, of the bidding information, even before the bidding process has closed, opens up the door to collusion, bid rigging, and other types of corruption. Ms. Lerman thanked the Commission for working with them though this extensive process. Lauren Kahn, HealthRight 360, asked the Commission to please consider that when large requirements are put on smaller dollar donations it takes money away from those they serve and will likely scare donors away. David Maass, Electronic Frontier Foundation and also serves on the Sunshine Ordinance Task Force, expressed concern for individuals like him who work for a non-profit and serve on a Commission in a voluntary capacity in a position where both services are incompatible; specifically, the notification section which does not clarify a dollar amount of the donation. Nancy Nielsen, Lutheran Social Services, thanked the Commission for its work on this Ordinance but noted that as it stands this Ordinance does more harm than good, echoing Debbi Lerman’s concerns. Jan Masaoka, California Association of Non-Profits, commended the Commission on the changes to this legislation but is shocked at what is a deeply flawed piece of legislation: behested payments. Peter Cohen, Council of Community Housing Organizations, thanked Staff and Commissioners, and encouraged the Commission to pass this on to the Board of Supervisors and let them work through the fine details. He also noted the definition of “interested party” is too broad and dramatically changes the nature of the interaction of folks who are potential donors with City government. Commissioner Kopp asked for clarification on a comment by Mr. Cohen regarding the competitive bidding process; Mr. Cohen directed him to Ms. Lerman for discussion. Ms. Lerman, Commissioner Kopp and Mr. Kundert spoke briefly. Ray Hartz, San Francisco Open Government, recapped the motions that were made, this meeting and last, regarding the Ordinance, asked for clarification on what exactly this public comment is on. Mr. Hartz also advised that he agrees with all the non-profit speakers on this agenda item. Larry Bush, Friends of Ethics, reiterated that the main point in all of this is to open up government so we have an ability to participate in decisions; with this ordinance, in the last few months, there has been an effort to trim back and repeal things which provided public greater access to decisions.

Motion 171127-05 (Renne/Lee): Moved, seconded and passed (4-1) to adopt the Ordinance as presented today and submit to the Board of Supervisors with the Commission’s recommendation to pass it. Commissioner Lee requested that public comment received be attached to the Ordinance when submitted to the Board of Supervisors.

8. Discussion and possible action on monthly Staff Policy Report and update of the Commission’s Annual Policy Plan.

Senior Policy Analyst Kyle Kundert described the revision of the annual policy report, advising that it will be divided into two sections: section one will be current, ongoing policy initiatives, so that Commissioners will see what Staff is working on; section two will be items that are reflected on the Annual Policy Plan. Mr. Kundert highlighted several items from the report in both sections, asking for direction from the Commission as to which items Staff should focus on. Mr. Kundert also asked the Commission for input on Supervisor Kim’s proposed legislation and the direction the Commission would like Staff to take. Chair Keane advised Mr. Kundert that they would speak to that in their meeting with Supervisor Kim on Friday, December 1, 2017. Mr. Kundert asked the Commission to adopt the Policy Plan as presented. The Commissioners agreed to the all the recommendations with the amendment to Section C Item 5, moving that item to the January Commission meeting.

Public Comment:

Larry Bush, Friends of Ethics, advised the Sunshine Ordinance will need to be rewritten because it calls for one of the appointees to be someone who comes from the New American Media, which went out of business as was noted in the paper today, November 27, 2017. Ray Hartz, San Francisco Open Government, commented on two items: Form 700 and the Sunshine and Ethics Training.

9. Discussion of Enforcement Report. An update on various programmatic and operational highlights of the Enforcement Program’s activities since the last monthly meeting.

Executive Director LeeAnn Pelham presented the report in the absence of Deputy Director Blome, highlighting most recent enforcement statistics, status of cases pending before BDR, and a related information on several matters pending before the Sunshine Ordinance Task Force. This report also updates the stakeholder engagement process for revising our enforcement regulations, with a draft planned for the December meeting for an initial presentation and discussion. Vice Chair Chiu conveyed her thanks and congratulations to the enforcement team for working through the backlog.

Public Comment:

Ray Hartz, San Francisco Open Government, called attention to the letter in the Enforcement Report from the District Attorney to Executive Director Pelham, dated October 18, 2017, acknowledging that the Commission violated the Brown Act at its April 24, 2017 meeting.

10. Discussion of Executive Director’s Report. An update of various programmatic and operational highlights of Ethics Commission staff activities since the Commission’s last monthly meeting. The written report, which is available at the Commission office and on its website, covers a range of topics such the Commission’s budget, outreach activities, campaign finance disclosure and public financing programs, audit program, lobbyist program, campaign consultant program, permit consultant program, major developer program, and future staff projects. Any of these subjects may potentially be part of the Director’s presentation or discussed by the Commission.

Executive Director Pelham reviewed her report, highlighting the staffing update. Executive Director Pelham noted that four members of Staff will be attending the Council of Governmental Ethics Law Conference in Toronto, Canada, in December. Vice Chair Chiu requested Staff asks questions about what other jurisdictions are doing with respect to social media and election integrity, and if they have any insights to share.

Public Comment:

Ray Hartz, San Francisco Open Government, requested that when at COGEL the Executive Director also asks when there is a law and the body that is supposed to enforce it refuses to enforce, what do they do? Larry Bush, Friends of Ethics, stated if AAO ordinance that passed today and is watered down at the Board of Supervisors, Friends of Ethics and allies will mount a signature campaign and put on the ballot a robust version, stronger than what was passed tonight. Regarding the Ethics Commission enforcing the Sunshine Ordinance, Mr. Bush reminded the Commission that only the appointing authority has the power to remove someone they’ve appointed.

11. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission. Possible Closed Session.

The Commission did not go into closed session.

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

Chair Keane remarked that the Commission discussed several items already.

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:

Ray Hartz, San Francisco Open Government, produced an Order of Determination: Ray Hartz, Jr. v. Commissioner Quentin Kopp and the Ethics Commission, from the Sunshine Ordinance Task Force, dated March 15, 2017, and presented his opinion.

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:

SOTF Order of Determination in file #16116 Ray Hartz V. Commissioner Quentin Kopp and the Ethics Commission. Findings of Fact and Conclusion of Law: Based on the testimony and evidence presented the SOTF found that Commissioner Quentin Kopp and the Ethics Commission violated Administrative Code (Sunshine Ordinance), Section 67.15. If a member of the commission wishes to unlawfully interrupt a member of the public that’s okay with you. But when a member of the public speaks out of turn, that’s a no-no. What hypocrites you are! Particularly hypocritical was Chair Keene’s comment at your last meeting demanding I respect the “democratic process!” I’m truly surprised those words didn’t turn to ash in his mouth when spoken! And frankly, I take Quentin Kopp’s referral to me as “that person” a badge of honor! Isn’t it ironic that it comes from a person who is shown himself to be without honor?

14. Adjournment

Motion 171127-06 (Keane/Chiu): Moved, seconded, passed unanimously (5-0) that the Commission adjourn .

The Commission adjourned at 9:32 PM.

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