Ethics Commission
City and County of San Francisco

Minutes – March 16, 2018 – Draft

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
March 16, 2018
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved ____ __, _____)

Note: SFGovTV provides a continuous archive of selected Commission, council and board meetings that allows viewers to watch those meetings online in full at the viewer’s convenience. Video and audio archives of Ethics Commission meetings may be accessed here.

1. Call to order and roll call.

Acting Chair Daina Chiu called the meeting to order at 2:13 PM.

COMMISSION MEMBERS PRESENT: Daina Chiu, Vice-Chair and Acting Chair; Quentin L. Kopp, Commissioner; Yvonne Lee, Commissioner. Commissioner Renne was not present due to an excused absence. A quorum of members was present.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jessica Blome, Deputy Director; Kyle Kundert, Senior Policy Analyst; Pat Ford, Policy Analyst; Jeffrey Pierce, Senior Investigative Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney (DCA).
OTHERS PRESENT: Ellen Lee Zhou, Charlie Marsteller, Larry Bush, Bob Planthold, Elena Schmid, David Steinberg, and other unidentified members of the public.

MATERIALS DISTRIBUTED:

  • Draft minutes from the February 16, 2018 regular meeting.
  • Staff memo and attachments regarding election of a Chair and Vice-chair to serve for the coming year.
  • Staff report and attachments regarding Department of Public Works Statement of Incompatible Activities (SIA) as provided for in SF Campaign & Governmental Conduct Code Sec. 3.218.
  • Staff report and attachments regarding proposed Whistleblower Protection Ordinance approved by the Ethics Commission in January 2018 (SF Campaign & Governmental Conduct Code Sec. 4.100 et seq.).
  • Staff report and attachments on process to obtain separate legal counsel for Ethics Commission.
  • Staff’s monthly Policy Report and attachments, including possible updates to Annual Policy Plan.
  • Staff’s monthly Enforcement Report and attachments.
  • Executive Director’s Report and attachments.

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

Ellen Lee Zhou, a City and County of San Francisco employee, stated that she brought five public workers from April to June 2017 to the Commission alleging corruption and retaliation, and that the Commission lost the records. She stated she is before the Commission today to urge the Commission to follow up on her investigations.

Commissioner Kopp stated that the record should show that the Staff has provided a detailed schedule of dates of complaints raised by Ms. Zhou and action taken thereon. He asked whether Ms. Zhou has read those documents. Commissioner Kopp asked the Staff to make those available to Ms. Zhou. He stated that each of her complaints were investigated. He recommended Ms. Zhou read those reports before devoting further time to alleging inaction by the Commission. Commissioner Kopp also stated that he believes the Staff has investigated thoroughly and carefully each of the allegations that have been delivered to the Commission by Ms. Zhou over the past three months and has found them to be without justification. Commissioner Chiu stated she wished to echo Commissioner Kopp’s statements.

Submitted Statement of Ellen Lee Zhou:
Good afternoon Ethics Commissioners, thank you for serving our City. My name is Ellen Lee Zhou (E-l-l-e-n, L-e-e, Z-h-o-u). I have been working as a Social Worker for our City and County government for more than 13 years. I am a Union Shop Steward and I am a Bargaining Team member for SEIU1021. We have 16,000 SEIU1021 members. Between April 2017 to June 2017. I brought five public workers to Ethics Commission who experienced retaliation and discrimination. We, the public workers took courage that collaborated with FBI investigation for extortion and corruption.
I am here today to follow up with you to see if your investigation has started yet on Ethics Commission that our records and audio record were missing. We have six people did the intake interview in different days. Many SEIUI 021 city employees from different departments spoke in front of the Civil Services Commission and testified in December 2015, August 15th, 2016, September 9th, 2016, September 18th, 2017 and January 22nd, 2018. I also came here and spoke to you, the Ethics Commissioners on 10/23/2017, 11/27/2017, 01/19/2018, 02/16/2018 and today, about extortion, bribery, retaliation, discrimination and ongoing harassment for people who stood up for their rights, workers’ rights to equal work opportunities.
The last contact we had with the Ethic Commission employee who informed us that the EEO dept., Whistleblower dept. and DHR were refused to give out our record for Ethics Commission to take action against corrupted management staff. We were told our record will be released only with a court order. But now, our employee records are missing with the Ethics Commission Dept.
By Ellen Lee Zhou
March 16th 2018

Larry Bush, Friends of Ethics, stated that information on disclosures posted on the Commission’s website is not current, and that this is making it difficult to view lobbyists’ contributions and behested payments information. He noted permit consultant and major developer information is also not current. He asked that notice be placed on the site as an interim measure to inform the public regarding when the information will be accessible online.

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

Commissioner Kopp made a motion to postpone the item until the April meeting so that all members of the Commission can be present to vote on its officers, noting that there were only three Commissioners present today and one vacancy on the panel. Commissioner Lee echoed Commissioner Kopp’s motion and thanked Commissioner Chiu for leading the Commission during the prior two months in a period of transition. She expressed her hope that Commissioner Chiu would be able to continue in her capacity as Chair until that vote can occur. Commissioner Chiu agreed it would be useful to have Commissioner Renne present and hoped there would be a new Commissioner appointed by that time to fill the vacant fifth seat.

Public Comment:
Larry Bush spoke in favor of the postponement given the absence of members to show that it is a regular process and that the Commission is unified.

Motion 180316-01 (Kopp/Lee): Moved, seconded and passed (3-0) that the Commission hold over the annual election of officers for the coming year to its next regular meeting on April 20, 2018.

4. Discussion and possible action on draft minutes for the Commission’s February 16, 2018, regular meeting.

Commissioner Kopp stated he had a number of corrections. Commissioner Kopp moved adoption of these amendments to the minutes. Commissioner Lee seconded the motion.

City Attorney Shen stated that due to the complex motions on the Anti-Corruption and Accountability Ordinance, or “ACAO,” at the February meeting, he recommended that the Commission continue the minutes to review the record and ensure the record is accurately reflected in the minutes. Executive Director Pelham stated the Staff agrees that the minutes should be reviewed again to ensure the accuracy of items acted on at the February meeting. Commissioner Lee withdrew her second of Commissioner’s Kopp’s motion to adopt the minutes as amended. Commissioner Kopp’s motion was not acted upon due to a lack of a second.

Commissioner Lee then made a motion to continue consideration of the February meeting minutes to the regular meeting on April 20, 2018. Commissioner Kopp seconded the motion.

Public Comment:
Larry Bush, Friends of Ethics, stated he agreed with the continuance and requested that the minutes also reflect each time that the Deputy City Attorney spoke up to give guidance every time there was a motion made. He stated he believes this is important because the Commission deferred and did not make many of the amendments Friends of Ethics supported following recommendations of the Deputy City Attorney.

Commissioner Kopp moved to amend the pending motion accordingly based on Mr. Bush’s recommendation. The motion to amend failed for a lack of a second.

Bob Planthold suggested that the draft minutes could be approved. He noted that the only comments provided by the City Attorney were related to Item 4, so the Commission could defer only that item and then approve or accept other parts of the minutes.

Motion 180316-02 (Lee/Kopp): Moved, seconded and passed (3-0) that the Commission continue action on draft minutes for the February 16, 2018 regular meeting to its April 20, 2018 regular meeting.

5. Discussion and possible action to amend Department of Public Works Statement of Incompatible Activities (SIA) as provided for in SF Campaign & Governmental Conduct Code Sec. 3.218.

Senior Policy Analyst Kyle Kundert briefly introduced the item. He summarized that the item is before the Commission to enable the Department of Public Works (DPW) to update its SIA to reflect current DPW policies. Kundert introduced David Steinberg, Executive Assistant to the Director of Public Works, who provided further background. One change is to update the statement of the department’s mission, while others are to update language to be consistent with more current language also used by other City departments.

Commissioner Kopp asked who wrote the proposed amendments. Mr. Steinberg stated he was in charge of drafting them, with changes lifted from the DPW’s revised mission statement and language from other Departments, such as Planning and the Department of Building Inspection. It was further reviewed by additional DPW Staff and the Office of the City Attorney and Ethics Commission, as well as all affected bargaining units. He stated that the language was revised slightly in response to comment received regarding Section 3.A.1 on page 4 of Agenda Item 5. That language applied to all employees in the Department and was revised to apply instead to officers and employees who are required to file a Statement of Economic Interests (Form 700). He noted all meet and confer requirements have been satisfied.

Commissioner Lee asked whether the provision of language services would fall within the restriction in the SIA on “selective assistance.” Mr. Kundert stated that the term “selective assistance” would not prevent the department from providing that kind of assistance. Commissioner Lee asked the Department to spell out that certain assistance will not be considered “selective assistance.” Mr. Steinberg stated it would not be an issue so long as such assistance is provided on an equal basis to anyone who requests it. Commissioner Lee requested that the language be clarified to explicitly include the provision of linguistically and culturally competent services provided on an impartial basis. Mr. Steinberg stated he believed the department would be agreeable with that change. After further discussion, Commissioner Lee relayed the language she suggests be inserted to read “provided that such assistance, such as linguistically and culturally competent services, is provided on an impartial basis to all applicants who request it.” Mr. Kundert confirmed that the language would be added on Page 6 under amended language, Item A, in the last sentence.

Public Comment:
None.

Motion 180316-03 (Lee/Chiu): Moved, seconded and passed (3-0) that the Commission approve the revised Statement of Incompatible Activities for the Department of Public Works as proposed by the Department of Public Works and as amended by the language proposed Mr. Steinberg at the podium, and as further amended as proposed by Commissioner Lee.

6. Discussion and possible action on proposed Whistleblower Protection Ordinance approved by the Ethics Commission in January 2018 (SF Campaign & Governmental Conduct Code Sec. 4.100 et seq.).

Senior Policy Analyst Kyle Kundert offered to provide a Staff report on the item. Commissioner Kopp stated he did not believe a Staff report was needed due to the brevity of the item presented. The Commission then took public comment.

Public Comment:
Dr. Derek Kerr thanked the Commissioner Kopp and Commission Staff for taking the time to research the differences between the Ordinance before the Commission and recent developments in state law. Dr. Kerr sated that he is a former government employee and whistleblower. He stated his concern that the Staff relied on input from the Office of the City Attorney in analyzing the issues. He believes the proposed Ordinance provides only nominal remedies. He requested that Commission Staff do two things to promote justice for whistleblowers: 1) encourage whistleblowers who come to the Commission to obtain their own private counsel, and 2) notify them that they can contact the media to expose official misconduct.

Commissioner Kopp asked why the Controller’s Office has any control of or role with regard to the City’s Whistleblower program. He stated he believes the law should be changed so that all duties and responsibilities related to whistleblower complaints should be the duty of the Ethics Commission. Commissioner Kopp asked to have legislation prepared for the next meeting providing that all authorization and responsibilities for the Whistleblower program be the authority of the Ethics Commission. Deputy Director Blome responded that the Commission does not have the authority to originate that change as it would require a structural change under the Charter requiring initiation by the Board of Supervisors or the voters. Acting Chair Chiu stated she believes that the question pertains to the Commission’s policy priorities and should be considered by the Commission as a whole before directing Staff to prepare legislation. Commissioner Kopp reiterated that he would like legislation to be prepared for the next meeting. Commissioner Lee stated that she believes there are so many other policy discussions that have been started recently, as a body they need to determine how to prioritize staff time and the Commission’s focus. She would not object to a broader discussion at the next meeting about how to proceed, but at this time she believes there are a number of other items that require priority attention. Commissioner Chiu proposed that Staff prepare a discussion document for the Commission to consider how it wishes to proceed in prioritizing issues. Commissioner Lee said she would welcome information about the background of this issue, and what it would take to proceed to get that done. She does not have enough information to proceed at this time. Commissioner Kopp said that is not acceptable and he would like a simple piece of legislation in the form of a Charter amendment for the April Commission meeting.

Commissioner Chiu stated she would like the Commission to discuss the policy agenda that, as a body, it wishes to pursue. Commissioner Lee relayed she believes it would be beneficial to wait to consider sufficient background before supporting Commissioner Kopp’s request.

Executive Director Pelham redirected the Commission to the pending question as to what further policy direction, if any, the Commission wishes to take on the pending Whistleblower Ordinance so that Staff can pursue next steps, accordingly. She suggested the Commission may wish to take public comment at this time.

Public Comment:
Larry Bush, Friends of Ethics, commented that the Whistleblower issue has been discussed in the past by the Civil Grand Jury, and by the Ethics Commission, and encouraged Commissioners to do their homework to fully understand the issues. He provided further background on the Whistleblower program and his role in drafting changes to the law in response to the Civil Grand Jury report. He believes the Commission needs to do a better job to inform the public about where they can go to have matters resolved and is concerned aiding the public in this way is being sacrificed by what he sees as bureaucratic infighting.

Bob Planthold commented that it would be useful to know what past practice or precedence has been with regard to a request by a Member of the Commission to get the information he or she seeks.

No further public comment was provided.

Director Pelham stated that the item before the Commission does not require the Commission to act. It was presented to provide the opportunity for the Commission to provide any further policy direction it may wish to with regard to the pending Ordinance. Absent further action or policy direction by the Commission today, the Staff will plan to reach out to the Board and proceed legislatively to seek enactment of the Ordinance approved by the Commission at its January 2018 meeting.

Commissioner Kopp restated his request that the minutes reflect his request to have a Charter amendment prepared for the next Commission meeting that would transfer authority and responsibility on Whistleblower complaints from the Controller’s Office to the Ethics Commission, and that it be accompanied by any additional report and information that the Staff believes is advisable, and that his request for preparation for this legislation was denied by the Chairwoman.

Commissioner Chiu stated her disagreement with the process rather than the substance of Commissioner Kopp’s approach. She asked for further information and background from the Deputy City Attorney and the Executive Director about how the Commission has tackled this kind of process question in the past.

Director Pelham stated that the Commission initiated use of an Annual Policy Plan in 2016 as a tool to help it prioritize and sequence policy issues it wished to consider. That process was designed to provide a framework for these kinds of discussions. It was designed to assist the public in understanding what guides the Commission’s prioritization of issues, and to enable the public to have some predictability about when to plan to engage with the Commission so those efforts can be effective. It was also designed so that the Commission could make the best use of its Staff resources to support the priorities the Commission identifies as a body. Deputy City Attorney Shen added that his office has worked closely with the Commission and Staff on policy issues over time and traditionally on the request of the Commission as a whole.

The Commission took no action to further amend the item or provide further policy direction to the Staff.

7. Discussion and possible action on process to obtain separate legal counsel for Ethics Commission.

Deputy Director Jessica Blome noted the memorandum was provided at the request of Commissioner Kopp to describe the process that would be required to change the Charter to provide outside legal counsel for the Commission.

Commissioner Kopp stated his disappointment that the memo did not provide information about the practice in other cities, such as San Diego, Los Angeles, Oakland, and San Jose with respect to independent counsel. He now requests that on the April meeting agenda there be an item that will enable the Commission to recommend to the Board of Supervisors a charter amendment taking the San Diego language verbatim. He does not see any magic about it. He stated that he will plan to pursue it independently with the members of the Board of Supervisors. He continues to believe that the evidence shows a conflict with having the City Attorney provide counsel to the Ethics Commission.

Deputy Director Blome clarified that the information on counsel for Ethics Commissions in other jurisdictions appeared in a prior memo to the Commission. Commissioner Kopp stated he also wished to see information about Commissions across the United States, as well as which other City Departments in the City and County of San Francisco have independent counsel.

Public Comment:
Bob Planthold noted the agenda item appears as an action item by the Ethics Commission but that the Staff memo itself speaks only to information being provided in response to a request. It does not reference adoption or direction of a matter by the Commission for consideration by the Board of Supervisors. The two items should be consistent regarding the action they intend to convey.

Larry Bush, Friends of Ethics, stated the recommendation for independent counsel came initially from a prior Civil Grand Jury report and was supported by Friends of Ethics. He described examples involving policy development and advice given by the City Attorney’s office to other City officials that he believes demonstrate the existence of a conflict

No vote on the item was required and the Commission took no action on the item.

8. Discussion and possible action on Staff’s monthly Policy Report, including possible updates to Annual Policy Plan.

Senior Policy Analyst Kyle Kundert provided a brief summary of the March 12, 2018 monthly staff report and attachments. He noted that the Board of Supervisors voted unanimously on March 6 to adopt the ‘no file-no vote’ ordinance proposed by the Ethics Commission. The Ordinance is pending with the Mayor, who has until March 16 to act on the item or it becomes law absent any Mayoral action.

Acting Chair Chiu asked about the communication plan underway to inform Board and Commission members about the new law. Director Pelham noted initial communications have been undertaken as part of the annual Form 700 filing process to alert departments to the pending Ordinance. Additional communication is planned for the coming weeks should it be implemented into law. Commissioner Chiu asked for an update on the communication plan for this Ordinance at the next regular commission meeting.

Commissioner Kopp asked about the status of potential regulation to limit the use of political party central committees for City campaign purposes. Policy Analyst Pat Ford responded that advice has been sought from the Fair Political Practices Commission, however the advice received so far has been inconclusive. He stated the next step will be to seek formal advice from that agency. Commissioner Kopp urged that formal advice be sought by the Staff with all due haste.

Mr. Kundert also pointed out the public financing program review and analysis that is underway and highlighted the status of initial outreach being undertaken to assess potential issues and recommendations.

Lastly, with regard to the online election integrity/social media project, Mr. Kundert noted continuing outreach to subject matter experts to learn more. He also noted positive feedback from other local ethics agencies regarding potential coordinated outreach to the state on the issues. Commissioner Chiu requested that the next Policy Plan identify steps to proceed with this work in the year ahead.

Acting Chair Chiu requested that the Staff prepare an after-action report on the process around enactment of the Anti-Corruption and Accountability Ordinance (ACAO) so that the Commission can consider the pros and cons of seeking enactment of ordinances by means of either ballot measure or legislation through the Board of Supervisors. She also requested a matrix or method by which the Commission can have a broad discussion of the guiding principles and methods it can use going forward to sequence and prioritize policy its many policy initiatives.

After discussion and receiving public comment, took no action on its planned and pending policy projects as detailed in the monthly Staff Policy Report.

Public Comment:
Bob Planthold addressed reference made in the policy report to legislation introduced nine months ago by Supervisor Cohen. He suggested a letter to the sponsor, Board President, or Chair of the Rules Committee to encourage action. He also noted there is a formal State Legislative Committee, and suggested that the Commission monitor their activities and provide regular input.

Larry Bush, Friends of Ethics, suggested Commissioners review the record of the Commission before identifying where it wishes to go in the future. He noted that the transfer of slate mailers from the Elections Department to the Ethics Commission should occur before the June 2018 election. He urged the Commission to adopt specific timetables for the Commission’s legislative work. He is concerned that the Commission has not made any outreach in an attempt to strengthen the Anti-Corruption and Accountability Ordinance that will be considered before the Board of Supervisors in a joint meeting on April 3rd.

Following public comment, Commissioner Kopp asked that Assembly Bill 664 be placed on the next agenda for the Commission’s consideration and action.

Chair Chiu stated the Commission would take a brief recess until 4:10 PM.

The Ethics Commission resumed its meeting at 4:10 PM.

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

Deputy Director and Director of Enforcement Jessica Blome reviewed highlights from the March 12, 2018 monthly Enforcement Report. She noted the Commission’s new Enforcement regulations take effect on Monday, March 19, 2018. She added that Staff had recently undertaken training on personnel investigations conducted by the Department of Human Resources. She noted that this month’s enforcement caseload statistics show that matters in preliminary review now are, on average, five months old. This is an improvement from prior months when their average age was much higher. Investigators have continued to work to reduce the backlog of these cases.

Ms. Blome also introduced and welcomed Thomas McClain, the Commission’s new Senior Investigator/Legal Analyst, who joined the Commission’s staff on Monday, March 12th.

Public Comment:
None.

No vote on the item was required and the Commission took no action on the item.

10. Discussion of Executive Director’s Report.

Director Pelham noted the attachment to Agenda Item 10 regarding the Commission’s budget submission for FY19 and FY20. She noted that priority focus is being given to the public financing program and that candidates are continuing to be qualified to receive public financing. New dashboards that visualize campaign fundraising and expenditure activities for the June 2018 election are now posted on the Commission’s website. The Annual Form 700 filing process is underway, and four information sessions have been held to provide information to departments and filers. Staff are also busy assisting filers with their Ethics and Sunshine training certification — a new singular report required to certify completion of both trainings — that is now synchronized with the Annual Form 700 filing requirement. Audits of 16 committees from the 2016 audit cycle are now posted online on the Commission’s website. To ensure priority audit work can continue despite the press of the 2018 elections, audit resources are being re-balanced to ensure continuity on that critical work. Eleven audits remain to be completed from the 2016 audit cycle.

Ms. Pelham recognized this as the last Commission meeting for Ms. Blome, who has decided to take a new position and leave the Commission. She noted that Ms. Blome had done an extraordinary amount of creative and important foundational work for the Commission over the past 19 months of her tenure. The legacy of work she is leaving will provide benefit for the Commission long into the future with the work she has contributed.

Chair Chiu stated she is grateful for the work and contribution of Ms. Blome and wishes her all the best. Commissioner Kopp thanked Ms. Blome her for time and attention to all the Commission’s requests and assignments, and wishes her further professional achievement in a new responsibility and personal satisfaction in that new responsibility. Commissioner Lee also extended her best wishes and thanks.

Commissioner Chiu urged that it be relayed in all budget discussions how critical it is that the Commission not suffer cuts going forward to ensure the Commission has the resources it needs to do its work.

Public Comment:
Charlie Marsteller extended his sincere thanks to Ms. Blome for all the work she has done. He believes she has done astounding work in a profound way in just 19 months. He clarified that the public financing filings will also appear among dashboards on the Ethics Commission website.

No vote on the item was required and the Commission took no action on the item.

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

Public Comment:

None.

Motion 180316-04 (Kopp/Lee): Moved, seconded and passed (3-0) that the Commission go into closed session to discuss Agenda Item 11 regarding the status of complaints received or initiated by the Ethics Commission.

The Commission went in to closed session at 4:33 PM.

The Commission resumed into open session at 4:55 PM.

Motion 180316-05 (Chiu/Kopp): Moved, seconded and passed (3-0) that the Commission not disclose information about matters discussed in closed session.

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

Commissioner Kopp stated he obtained a document that he will deliver to Staff from the Mission Local detailing activity by Mr. Ron Conway backing candidate London Breed for Mayor, and communications and arrangements with the Mayor of New York City to participate in Ms. Breed’s campaign for Mayor. It also references a 2015 meeting and statements by City officials at a meeting organized by then Mayor Ed Lee in which Mayor Lee and his staff told those present that anyone who donated money to then candidate Supervisor Peskin and not Mr. Lee’s appointment, Julie Christiansen, could expect unfavorable treatment from the City in doing business in the City and County of San Francisco. Commission Kopp stated these are an alarming recitation of events and statements. He asked that Staff begin an investigation into all such activities. He believes they also should be the subject of a special hearing by the Ethics Commission either in April or in May. He stated that he believes the public should have the benefit of the results of the allegations contained in the article by the reporter before the June 5 election.

Acting Chair Chiu requested that the article referenced be provided to all Commissioners.

Commissioner Kopp stated he also wished to ask for a response to a Friends of Ethics question that has been posed to the Staff regarding the behested payments requirement. Ms. Blome noted a regulation could be used to further define the issues following enactment of the Ordinance.

No other items were discussed.

No vote on the item was required and the Commission took no action on the item.

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:
None.

14. Adjournment.

Motion 180316-06 (Kopp/Lee): Moved, seconded and passed (3-0) that the Commission adjourn.

Public Comment:
None.

The Commission adjourned at 5:05 PM.

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