Ethics Commission
City and County of San Francisco

Minutes – April 18, 2018 – Draft

Minutes of the Special Meeting of
The San Francisco Ethics Commission
April 18, 2018
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved ____ __, _____)

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1. Call to order and roll call.

Acting Chair Daina Chiu called the meeting to order at 1:37 PM.

COMMISSION MEMBERS PRESENT: Daina Chiu, Vice-Chair and Acting Chair; Paul A. Renne, Commissioner; Quentin L. Kopp, Commissioner; Yvonne Lee, Commissioner; and Kevin V. Ryan, Commissioner. A quorum of members was present.

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

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

OTHERS PRESENT: Charlie Marsteller, Julian Munoz, Erica Burn, Debbie Lerman, Jan Matsuoka, Toren Lewis, Elena Schmid, and other unidentified members of the public.

MATERIALS DISTRIBUTED:

  • April 12, 2018 Staff memo and attachments regarding process for election of Chair and Vice-Chair to serve for the coming year.
  • April 12, 2018 Ethics Commission Staff Report and attachments regarding Anti-Corruption and Accountability Ordinance to amend the Campaign and Governmental Conduct Code to institute campaign finance and conflict of interest reforms, as amended on April 3, 2018, at the Ethics Commission Special Joint Meeting with the Board of Supervisors (see Board of Supervisors File No. 180280).

Acting Chair Daina Chiu welcomed Kevin V. Ryan on behalf of the Commission on his April 16, 2018 swearing-in as the Commission’s newest member. She noted that due to room scheduling constraints, the Commission would need to vacate the meeting room at 4:15 PM.

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

Charley Marsteller, Friends of Ethics, welcomed Commissioner Ryan. He suggested that the Commission Staff consider holding a workshop to brief Commission and the public on the scope, mission, mandates, laws and other related items, with packets, to the work the Commission has been doing over the past 20+ years.

Julian Munoz spoke in support of candidacy of Quentin Kopp as president of the Commission. Has followed his career closely as an elected local official, State Senator, and judge, and believes he is a fair individual who would fulfill the mission of the Commission.

Erica Burn commented on the Mayoral election in which David Chiu ran for Mayor. She stated that because there were so many candidates and so few spots of the ballot, everybody who voted for all women or for Harvard alumni did not get a chance to vote for the final two candidates. She is concerned that with another Mayoral election coming up this should be taken care of.

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

Acting Chair Chiu described the Commission’s past practice for nominating and voting on officers as described in the memo at Agenda Item 3. She then opened the floor for nomination of Chair.

Commissioner Renne nominated Acting Chair Daina Chiu to be the next Chair. He stated this is in accordance with past Commission practices in which the Vice Chair was moved as Chair and then a new Vice Chair is selected. Commissioner Chiu said she would be happy to accept the nomination. Commissioner Lee seconded the nomination. She stated she believes Commissioner Chiu to be a person of high integrity and honor, and open to different ideas and working with all sectors in the City, adding that she has led the Commission as Acting Chair with distinction. Commissioner Chiu thanked Commissioner Lee for her comments and noted that under the Commission’s nomination procedures no second is necessary.

Hearing no other nominations, Commissioner Chiu closed the nominations and called for public comment.

Public Comment:

Charlie Marsteller stated that Friends of Ethics has no position on this but noted that there is also a Vice Chair nomination that follows this process, and so a second officer will also be voted on today.

Commissioner Chiu asked the Executive Director to conduct a roll call vote. Director Pelham stated she will call Commissioner names in alphabetical order and asked that each member state the name of the nominee for whom he or she is voting.

Commissioners Chiu, Lee, Renne and Ryan stated their vote for Daina Chiu. Commissioner Kopp stated his vote as a “no” vote. By a vote of 4-1 with Commissioner Kopp dissenting, the Commission elected Daina Chiu as Chair of the Commission for the coming year.

Chair Chiu then opened the floor for nominations for Vice-Chair. Commissioner Renne nominated Commissioner Kopp for the position. Commissioners Chiu and Ryan stated they also would nominate Commissioner Kopp for Vice Chair.

Hearing no other nominations, Chair Chiu closed the nominations for Vice-Chair. Commissioner Kopp confirmed he would agree to serve. Chair Chiu called for public comment.

Public Comment:

No public comment was received.

Director Pelham stated that for the roll call vote she will call Commissioner names in alphabetical order and asked that each member state the name of the nominee for whom he or she is voting.

Commissioners Chiu, Kopp, Lee, Renne, and Ryan stated their vote for Quentin Kopp. By a unanimous vote of 5-0 the Commission elected Quentin Kopp as Vice-Chair of the Commission for the coming year.

Commissioner Chiu stated she looks forward to serving with Commissioner Kopp in the coming year.

4. Consideration and possible action on Anti-Corruption and Accountability Ordinance, as amended on April 3, 2018 at the Ethics Commission Special Joint Meeting with the Board of Supervisors, to amend the Campaign and Governmental Conduct Code to institute campaign finance and conflict of interest reforms (see Board of Supervisors File No. 180280).

Chair Chiu briefly explained background on the Commission’s process to date on Agenda Item 4, the Anti-Corruption and Accountability Ordinance. At its February meeting, the Commission voted to work with the Board of Supervisors to enact the Ordinance legislatively. She stated the Commission has had the unique opportunity to forward a proposal to the Board of Supervisors for its action at a Special Joint Meeting held with the Ethics Commission on April 3. At that joint meeting, the Commission voted on an Ordinance, and submitted it to the Board. At the joint meeting, the Board made several amendments with a super majority vote provision of 8/11ths of the Board. That amended Ordinance is now before the Ethics Commission to determine what action it wishes to take. For the Ordinance to become law the Commission must adopt it by a 4/5 vote. If the Commission has any further changes to the Ordinance, those amendments require a 3/5 vote to be adopted, but a 4/5 vote of the Commission would be required to approve the Ordinance as amended. If the Ordinance is further amended by the Commission, that revised Ordinance would then require an 8/11 vote of the Board to be adopted.

Chair Chiu noted that any amendments Commissioners wish to present will be discussed by the Commission before opening it to public comment. Public comment will occur once for this Agenda item.

Commissioner Kopp asked whether the items would be voted ad seriatim. Chair Chiu confirmed that the Commission can vote on each amendment in that manner.

Policy Analyst Pat Ford then provided a brief overview of the Staff memo for Agenda Item 4. He noted it summarizes amendments approved at the April 3 meeting. These appear in Section 3 of the memo, lettered A through I. Section 4 lists three technical clean up amendments proposed by Staff on top of the amendments made by the Board. Those shown as A and B are to correct section cross references. A third shown as C is an amendment initially proposed by Supervisors Tang and Peskin that they had intended to include at the April 3 meeting but inadvertently did not. Staff includes it here as a recommended amendment. While it slightly alters the substance of the behested payment reporting by modifying language of the public appeals exception, (that is, how many need to be present at a gathering and how many items need to be distributed for the exception to apply), it is consistent with language that appears elsewhere in Article 1 Chapter 1 of the Ordinance. Ford further noted language Staff recommends to clarify Supervisor Kim’s proposed language regarding “electronic media technologies” in 1.110 and 1.162. Instead, the language would not use that term but would rather refer to communications distributed electronically. Chair Chiu asked if Supervisor Kim’s office has been informed of this recommendation and Ford confirmed that Staff had conveyed that specific information.

Ford added that the phrase “electronic media technologies” would be unnecessarily narrow, and Staff recommends the change to provide harmony in the language used in the Code. He noted the change would retain the intent and effect of Supervisor Kim’s proposal, but the revised language would work more seamlessly. Lastly, section 1.163 language referencing the operative date of the Ordinance would show January 1, 2019 along with Sec 1.162.

Commissioner Renne moved that the Commission accept recommendations of the staff and to send back to the Board of Supervisors the revised ordinance with is consistent with what they sent to the Commission for action and consistent with changes recommended by Staff. Commissioner Lee seconded the motion.

Commissioner Kopp stated he is prepared to vote.

Commissioner Chiu asked if Commissioners have any amendments to offer before opening the floor to public comment.

Commissioner Kopp stated he would like to see a definition of “promptly” in section 1.114 subsection F on forfeitures. This appears on Page 5 at line 22 of the larger blue and yellow highlighted document in the Commissioners’ packet. Commissioner Kopp stated he also understands it can be clarified by regulation. After additional discussion about when a regulation to clarify language in the pending Ordinance could be prepared for the Commission’s consideration, Chair Chiu confirmed that the Commission would ask for proposed clarifying language to be presented by Staff once the Ordinance goes into effect for consideration by the Commission at the next practicable meeting.
Commissioner Kopp directed the Commission’s attention to draft Ordinance Page 7, line 8 and 9, and moved to amend the language to state “the office and the name of the City elective officer” in place of the phrase “the name of the City elective officer.” Chair Chiu seconded the motion.

Commissioner Kopp cited his proposed motion to amend Section 3.203 and subsequent sections to restore the original language of 2000, which prohibited behested donations at the request of a City elective officer or a member of a board or commission. He read the language in the motion he distributed in writing. He believes the proposal has the same merit as it did when enacted originally in 2000 and as it did when the Commission first recommended it in 2017. Without a prohibition, he stated, this is a toothless ordinance as far as that subject matter is concerned. Mere disclosure of these amounts of money has the promise of no effect whatsoever for members of the public.

Commissioner Renne stated he will second the motion as a courtesy to Commissioner Kopp, noting that he voted for it in the original set of recommendations considered by the Commission. He added that it was the removal of that language, however, that enabled the Commission to get four votes to send the Ordinance to the Board for action. He stated that although Commissioner Kopp sought to reinsert that language at the Joint Special Meeting, that motion failed for lack of a second. He stated he did not second it then because he felt it would not have passed and that if it had passed it would have killed the whole bill. Presently, he stated, he is going to vote against that amendment because he believes the Commission should approve the Ordinance as adopted by the Board of Supervisors and amended as proposed by Staff. He believes this would provide a package that the Board could approve unanimously when it gets back to them. He does not believe adding this major change back in would allow the Ordinance to be enacted into law. If experience shows the law is not effective, there is nothing that stops the Commission from putting something directly on the ballot in the future to deal with any inadequacies.

Commissioner Ryan asked for Staff to briefly summarize the procedure that was followed for this amendment. He stated his understanding that the Staff originally was in favor of the provision, but then after receiving extensive public comment and through a vote of the Commission it was removed. Senior Policy Analyst Kundert confirmed that and that the motion for the Commission to reinsert the prohibition at the Joint Special Meeting on April 3 failed for a lack of a second.

Chair Chiu echoed Commissioner Renne’s remarks that the Commission has the opportunity to place items on the ballot in the future should that be needed, and the responsibility to do so should that be the case.

Commissioner Kopp made a motion to amend Section 1.170 to provide a 25% recovery of the award, with 75% going to the City’s general fund, for the person who successfully brings the action in citizen suit.

Commissioner Ryan asked Staff to clarify the current language and practice regarding percentage awards, and whether this was considered by the Board. DCA Shen stated it would be a new proposal for the Board of Supervisors.

Commissioner Renne noted this provision engendered a fair amount of controversy in public hearings. He would be concerned that a substantive issue would now be opened in discussions with the Board, rather than technical changes. He is inclined to vote against it even though he has no problem with the concept. Chair Chiu stated that she agreed that adding a new substantive provision at this point is not the path she wishes to pursue at this time. Commissioner Lee is not in favor of adding the proposal and supports moving forward to enact an Ordinance. She stated her view that both issues have been thoroughly discussed she has heard no new information that would change her mind at this time.

Chair Chiu asked if there was a second to Commissioner Kopp’s motion to amend Section 1.170 and Commissioner Renne said he would second it.

No further amendments or changes were proposed by Commissioners.

Public Comment:

Charlie Marsteller of Friends of Ethics stated that Prop. O was passed by an overwhelming majority in 2000. This bill is no son of Prop. J. It is the weakest bill that could ever come out of any committee. He provided background on the Oaks initiative that underpinned the earlier law, and stated he believes the behested payments process now is an egregious area of the law that has grown immeasurably in San Francisco to include big money going to special events like the Americus Cup. He recommends that the Commission enact the behested payments ban and raise the issue back at the Board.

Debbie Lerman, San Francisco Human Services Network, urged adoption of the Ordinance as amended by the Board of Supervisors and with the amendments proposed Staff and move the proposal back to the Board for action. It is a 40-page piece of comprehensive ethics reform. She thanked the Commission for addressing a number of their concerns. The amendments that have been made in the sections they are concerned about have made it better and more practical with how private public partnerships work in real life. She believes that this is a package that should be implemented by the Board.

Peter Cohen, Council of Community Housing Organizations, stated he echoes many of Ms. Lerman’s comments. He has urged that the Commission not over-reach, and believes that the Commission has addressed many of those issues. He believes today is an opportunity to get the Ordinance into practice and allow provisions that do not require new systems to be put in place can become operative as soon as possible. He looks forward to continuing to be an active participant in this process.

Jan Matsuoka, California Alliance of Non-Profits, commented on her organization’s interest in the vitality of non-profit organizations and ensuring that legislation does not inadvertently impact that economy. Banning behested payments would put volunteers and donors in jeopardy and would negatively impact nonprofits.

Toren Lewis, Alliance for Justice, stated that he believes each successive revision of the Ordinance has reflected the concerns of the community. He joins his non-profit colleagues in requesting that the Ordinance be moved forward back to the Board for its action. He thanked the Commission for the process

Anita Mayo, Pillsbury Winthrop Shaw Pitman, commented on various provisions. She stated that Section 1.126 unfairly extends beyond the party to a contract to a wider net of officers and provides a disincentive to civic minded individuals who would otherwise serve on non-profit boards. Sec. 1.161(a)(2) should be revised to apply solely to committees required to file reports with the Commission. Sec. 3.203 and 3.207 create new conflict of interest provisions that are not needed due to existing state law and regulations that already mandate recusals when conflicts exist and state advice exists that provides clarity for interpreting those laws. As to behested payments, state and City laws already regulate behested payments. The proposals would create unnecessary complication. She recommends that the Commission not adopt the amendment to ban behested payments. She also recommends against adoption of the amendment to allow for 25% recovery proposal as she believes it would simply lead to frivolous lawsuits.

No further public comment was provided.

Chair Chiu asked the Executive Director to call the motion and do a roll call of each pending motion. Director Pelham read the pending motions and called for Commissioner votes in alphabetical order.

Motion 180418-01 (Renne/Lee): Moved, seconded and passed (4-1; Kopp in dissent) to adopt the Ordinance as amended by the Board of Supervisors on April 3 with the recommendations contained in the Staff presentation today.

Motion 180418-02 (Kopp/Chiu): Moved, seconded and passed (5-0) to amend the language on Page 7, lines 8 and 9, to state “the office and the name of the City elective officer” in place of the phrase “the name of the City elective officer.”

Motion 180418-03 (Kopp/Renne): Moved, seconded and not approved (1-4; with Chiu, Lee, Renne and Ryan in the dissent) to amend the Ordinance at Sections 3.203 and 3.207 as detailed in Commissioner Kopp’s printed motion to re-insert language banning behested payments donations made at the request of city board and commission members.

Motion 180418-04 (Kopp/Renne): Moved, seconded and not approved (1-4; with Chiu, Lee, Renne and Ryan in the dissent) to amend Sec. 1.170 regarding the private right of action and allowing a resident to recover 25% of the amount recovered as detailed in Commissioner Kopp’s printed motion.

Commissioner Kopp was recognized by the Chair and commented that he will not vote for the ordinance. He believes it is regressive from what voters passed in 2000. He stated that the proposed legislation is palliative and does not believe the law will be revisited for another decade. He believes the law uniquely allows the Ethics Commission to submit measures directly to the voters to stop iniquitous practices like pay to play. In summary, for these reasons he will not support the Ordinance and will vote no.

Commissioner Lee stated that she does not question Commissioner Kopp’s view of pay-to-play around certain players, but she also feels it is important to speak up on behalf of non-profit service providers. She stated there are thousands of service providers who work in the non-profit sector who are working in support of the common good for City, yet a part of a community that does not always have a voice in the City’s policy and legislative-making process. She salutes them for standing up on behalf of the clients and communities they serve.

Commissioner Renne stated that he believes all Commissioners would like legislation to legislate money out of politics, however it cannot be done. He stated there is no simple legislation that can deal fully with problems around money in politics. He commends Staff and those who attended public meetings of the Commission for the serious attention given to these issues while also doing so within the confines of the law. This Ordinance is a step in the right direction. He sees no reason the Commission cannot be vigilant and propose further additional regulations as they may be needed in the future to moderate the influence enormous sums of money in politics. flow. It is a complex problem, this ordinance sends a message, and we will continue to work on it and are moving in the right direction.

Chair Chiu stated that she would like to associate herself with Commissioner Renne’s remarks. She then asked the Executive Director for a roll call vote on the motion.

Motion 180418-05 (Renne/Lee): Moved, seconded and passed (4-1; Kopp in the dissent) to adopt the entirety of the Ordinance as amended by today’s motions and give final approval to sending the amended Ordinance back to the to Board of Supervisors for enactment.

5. 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:

No public comment received.

6. Adjournment.

Motion 180418-06 (Kopp/Ryan): Moved and seconded and passed 5-0 to adjourn the meeting.

Adjourned at 2:58 PM.

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