Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, July 20, 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.
Chair Daina Chiu called the meeting to order at 2:03 pm.
COMMISSION MEMBERS PRESENT: Chair Daina Chiu, Vice-Chair Quentin Kopp, Commissioners Noreen Ambrose, Paul Renne, and Yvonne Lee. A quorum of members was present.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jeffrey Pierce, Acting Director of Enforcement & Legal Affairs; Pat Ford, Policy Analyst; Thomas McClain, Senior Investigative Analyst.
OFFICE OF THE CITY ATTORNEY: Deputy City Attorney Andrew Shen.
OTHERS PRESENT: Ellen Zhou, Tony Kelly, Ian Lewis, Jeff Sheehy, Charley Marsteller, Jesse Mainardi, Pius Lee, Eddie Siegal, Milo Trauss, Ben Libby, Adam Goldstein, Vadim Duboice, Tom Hirshfeld, Steven Buss, Amir Avner, Rothchild, Sonja Trauss, Anika Steg, Mark Press, Jay Chang, Uzuri Peace-Green, Anita Mayo, and other unidentified members of the public.
- Draft minutes for the June 15, 2018 regular meeting of the Ethics Commission and attachment.
- July 16, 2018 cover memo from Staff and Proposed Stipulation, Decision, and Order in the Matter of UNITE Here Local 2 (Ethics Commission Case No. 1617-127).
- Staff report dated July 16, 2018 and attachments regarding a request for a waiver of post-service employment restriction by Former Supervisor Jeff Sheehy.
- Staff report dated July 16, 2018 and attachment regarding requests by the following candidates in the November 2018 election to appeal ineligibility for public financing under SF Campaign & Governmental Conduct Code Section 1.142(a):
- Sonja Trauss, Supervisorial Candidate, District 6
- Trevor McNeil, Supervisorial Candidate, District 4
- Arthur Tom, Supervisorial Candidate, District 4
- Uzuri Pease-Greene, Supervisorial Candidate, District 10
- Staff report dated July 16, 2018 and attachments presenting an overview of the City’s limited system of public financing for elections for City elective office (SF Campaign & Governmental Conduct Code Sec. 1.136 et seq., and associated regulations).
- Staff report dated July 16, 2018 and attachments presenting an overview of draft Ethics Commission Advice and Opinion Regulations.
- Staff’s monthly Policy Report dated July 16, 2018 and attachments.
- Staff’s monthly Enforcement Report dated July 16, 2018 and attachments.
- Executive Director’s Report dated July 18, 2018.
2. Public comment on matters appearing or not appearing on the agenda.
Ellen Lee Zhou, a social worker with the Department of Public Health, provided comment. She stated she was formerly a Mayoral candidate in the June 2018 election and reported not being allowed to participate in candidate debates during her campaign despite the debates being held in public buildings. She stated the City should not support corruption and urged the Commission to evaluate the election process and ensure all candidates are allowed to participate in debates held in public-owned buildings.
Vice-Chair Kopp noted that participation in the debate events Ms. Zhou referenced was up to the sponsoring organizations of those events, something which was outside the purview of the Ethics Commission.
Tony Kelly, candidate for Board of Supervisors in District 10 in the November election, commented on the public matching funds qualification process for candidates. He stated his initial qualifying request did not receive a response and his revised submission took 30 days to deny. A third declination of eligibility cited follow up that wasn’t cited before. He feels this year has been much more difficult than in the past, and communications from Ethics Commission staff to campaigns needs to improve.
CONSENT CALENDAR ITEMS
Chair Chiu called for public comment on the consent calendar item, and hearing none called for a motion to approve item 3.
3. Draft minutes for the June 15, 2018 Ethics Commission regular meeting.
Motion 180720-01 (Renne/Ambrose): Moved, seconded and passed unanimously 5-0 that the Commission adopt the draft Minutes for the Commission’s June 15, 2018 regular meeting.
4. Discussion and possible action on Proposed Stipulation, Decision, and Order In the Matter of UNITE Here Local 2 (Ethics Commission Case No. 1617-127).
Acting Director of Enforcement and Legal Affairs Jeffrey Pierce introduced the item and reviewed the process established under the Commission’s enforcement regulations that guide its action on proposed stipulations. He noted the Commission may approve the stipulation as presented, or, if it did not wish to approve the stipulation as proposed, it may provide guidance to staff on what settlement it believes would be more appropriate. Pierce then briefly reviewed the matter, which stemmed from the 2014 and 2015 elections and which was detailed in the proposed stipulation, decision, and order. He described the filings omitted by the committee and explained the proposed penalty amount of $5,500. Referencing page 3 of the exhibit, he explained the factors that were the basis for the proposed penalty amount.
In response to a question from Chair Chiu about the respondent’s history of late filings beginning in 2012, and whether its recent filings have been timely, Pierce confirmed that the respondent’s filings in 2017 and 2018 had been timely. Vice-Chair Kopp asked Pierce for the amount of the late penalty assessed against respondent in 2012, and Pierce responded he would get that information.
Ian Lewis, Local 2 PAC assistant treasurer, stated there was no intent to conceal information and stated he believed the amount of the late penalty in 2012 was $229.50. Vice-Chair Kopp then asked for additional information about 2015 and 2016 late penalty amounts. Pierce responded that the 2016 late fee amount was $425, and the September late fee was $75.
Chair Chiu asked Mr. Lewis what steps the committee had taken to ensure timely filings on a going-forward basis. Lewis responded that he has attended training since and that the committee had retained legal counsel to provide advice.
Chair Chiu asked for public comment and seeing none called for a motion.
Vice-Chair Kopp cited the respondent’s history of late fees and stated he believed the proposed penalty amount represents nothing more than a slap on the wrist. He stated he would not vote to approve any stipulation less than $13,000 for this violation, the fourth disclosure violation within the last six years. He called for the stipulation to be sent back to staff to renegotiate and bring a revised settlement to the Commission at a subsequent meeting.
Chair Chiu asked Pierce to confirm the maximum penalty amount for the two violations at issue. Pierce stated could be either $5,000 per violation or three times the amount unreported. Chair Chiu asked whether any Commissioner wished to make a motion.
Commissioner Renne stated that while he was troubled by the prior late filings, he moved to accept and authorize the Executive Director to enter into this stipulated settlement. Commissioner Ambrose stated she is prepared to support Commissioner Renne’s motion seeing that the respondent had demonstrated timely filings in the past two years and seconded the motion.
Chair Chiu called the question. The proposed Stipulation was approved by a vote of 4 to 1 with Vice-Chair Kopp voting no.
Motion 180720-02 (Renne/Ambrose): Moved, seconded and passed 4-1 (with Kopp in the dissent) that the Commission approve the proposed Stipulation, Decision, and Order In the Matter of UNITE Here Local 2 (Ethics Commission Case 1617-127).
5. Discussion and possible action regarding a request for a waiver of post service employment restriction by former Supervisor Jeff Sheehy.
Pat Ford, Senior Policy Analyst, noted the agenda item and staff memo and explained that this item represents a request by former Supervisor Jeff Sheehy for a waiver of a provision of the City’s Campaign & Governmental Conduct Code regarding a post-employment restriction that applies in certain circumstances. He noted Mr. Sheehy was a member of the Board of Supervisors until earlier this month when Rafael Mandelman was sworn into office following the June 2018 election. He noted the provision at issue applies to a city officer who has participated substantially in awarding a contract. For 12 months after the time that contract is awarded, that the city officer may not be employed or receive compensation from an organization as a party to the contract. In this case, Supervisor Sheehy asked for a waiver from that provision of the code to seek employment from the University of California which was a party to three contracts approved by the Board of Supervisors during Mr. Sheehy’s tenure on the board and were each matters on which he voted. Under the law, voting is considered having personally and substantially participated, and so the provision would clearly apply under these circumstances. Ford stated the staff memo provides an overview of the law and how it applies in these circumstances. He noted it provides a framework for the Commission’s consideration of the issues and recommends that, if the Commission does decide to approve a wavier, that it be tailored to the position detailed in Mr. Sheehy’s memo and request, which he believes would result in an extreme hardship were he not able to pursue that position.
Commissioner Renne clarified that the contracts involved matters that did not confer a benefit on the University of California. Ford confirmed that the Board actions involved votes to settle two lawsuits in which the University of California paid money to the City and County of San Francisco, and a third was a resolution to allow the SF health department to receive a grant from UC. Ford added that the primary factor in the Code section at issue considers the likelihood of extreme hardship if a waiver is not granted. Commissioner Renne stated a concern that essentially losing the value of 17 years of prior UC service or preventing 20 years of service is something that could contribute to hardship.
Commissioner Ambrose echoed Commissioner Renne’s view that there did not, in actuality, seem to be any participation by Supervisor Sheehy that was to the benefit of the university, or any expectation of being hired back by them. She stated her inclination to offer a motion to authorize the waiver as to employment with the University of California without requiring the question to be brought back to the Commission for possible additional waiver action. Commissioner Lee asked for additional information about the status of the position the Supervisor would like to pursue. Chair Chiu invited comment from Supervisor Sheehy.
Supervisor Sheehy stated he has not yet applied for the position. He explained that in an abundance of caution he has been in discussion with Jon Givner from the City Attorney’s Office about opportunities he has been looking at and stopped looking at additional positions once he became aware of a potential conflict and the need to seek a waiver from the Commission. Sheehy stated that as a 61-year old living with HIV, the stigma of living with a life-threatening chronic disease provides real obstacles for getting employed in the private sector due to the burden a private sector employer’s insurance would carry. U.C., however provides very good disability benefits and very good life insurance benefits. As the main provider for his family and given his career in this field, he is seeking to obtain a waiver, if that is possible, before proceeding with any other discussions with U.C.
The Commission discussed the potential breadth of a waiver if were one to be granted by the Commission. Chair Chiu asked if the role contemplated by Supervisor Sheehy included any duties for interacting with the City or any programs the City is running. Supervisor Sheehy clarified that there would be no contacts trying to get resources to go from the City to UC. Commissioner Lee asked Staff to clarify if Supervisor Sheehy were not to get this position for any reason but something else came up, would he be required to come back to the Commission for another waiver at that time if this waiver were applicable only to the specific position noted in the current request. Ford responded yes, if a waiver were specifically tailored to this position only. If Mr. Sheehy wanted to then obtain compensation in a different position with UC, it would be outside the scope of this waiver request and he would need to get a separate waiver.
Commissioner Lee recommended that the Commission craft a waiver tailored to his background and certain classifications of positions in health education and research at UC such that he would not have to come back for a subsequent waiver.
Chair Chiu then called for public comment.
Charley Marsteller stated that he supported Mr. Sheehy’s waiver request and that he believes UC would be pleased that Mr. Sheehy has been very forward and up front about this issue and would likely be very cautious about putting him in an area where there may be a conflict.
Commissioner Kopp then moved that the waiver application be granted based on a finding of extreme hardship for an exemption of Mr. Sheehy from the ban on employment with UCSF and that it not be limited to the position for which he has applied at UCSF but that it be applied to any position at UCSF, and also based upon the fact that his participation in the three contracts did not cost San Francisco taxpayers any money.
Chair Renne seconded the motion. The Commission approved the motion unanimously 5-0.
Motion: 180720-03 (Kopp/Renne): Moved, seconded and passed 5-0 that the Commission adopt a waiver for Jeff Sheehy from the restriction of Campaign and Governmental Conduct Code Sec. 3.234(a)(3) based on a finding of extreme hardship and that it not be limited to the position for which he has applied at UCSF but that it be applied to any position at UCSF.
Supervisor Sheehy stated that based on the motion, if he were to look for opportunities at UC Berkeley, the motion would exempt him only from a job at UCSF. Commissioner Renne stated that when he voted for the motion he believed the assumption was that it applied to the University of California, not limited to UCSF. Chair Chiu noted it should apply to the University of California.
Commissioner Kopp moved to rescind the prior action. Chair Chiu seconded. Motion approved unanimously 5-0.
Motion: 180720-04 (Kopp/Chiu): Moved, seconded and passed 5-0 that the Commission rescind its prior action adopting a waiver for Jeff Sheehy from the restriction of Campaign and Governmental Conduct Code Sec. 3.234(a)(3).
Commissioner Kopp then moved that the application for a waiver be granted without the condition of obtaining the specific unidentified position at the University of California adding the motion was based upon a finding of extreme hardship and de minimis participation in three contracts. The motion was seconded by Commissioner Renne.
Motion 180720-03 (Kopp/Renne): Moved, seconded and passed unanimously 5-0 that the Commission grant Jeff Sheehy’s request for a waiver from the provisions of Campaign and Governmental Conduct Code section 3.234(a)(3) based on a finding of extreme hardship and that it not be limited to the position for which he has applied at UCSF but that it be applied to any position at the University of California.
6. Discussion and possible action on request by the following candidates in the November 2018 election to appeal their ineligibility for public campaign financing (Code Section 1.142(a)).
Chair Chiu explained that each appeal would be taken in the order identified in Item 6. Executive Director Pelham introduced the item and noted in response to a question by Commissioner Kopp at the June meeting, Staff developed a current snapshot of public financing qualification by candidates in the November 2018 election, Public Financing Status of Board of Supervisor Candidates, November 2018 Election as of July 19, 2018 REVISED. She explained the information provided on the chart and highlighted that there were 39 candidates for the November election who filed a campaign filing with the Ethics Commission, and of those 39, 59 percent qualified for the ballot. Of those 39 who filed to run for supervisor campaign statement, 25 of those 39 filed a statement of participation or non-participation with our office. Of those 25 who filed a statement with the Commission, 76 percent filed their statements timely, and 24 percent, or six candidates, filed after the deadline.
Commissioner Renne asked if candidates must file papers of their intent to seek office with the Elections Department by a certain date. He asked Staff if the Elections Department has ever allowed a candidate to run for office who has failed to file by a certain date. Deputy City Attorney Andrew Shen stated he is not aware of such an extension for election related papers. Commissioner Lee asked Shen if the extension of a filing deadline in District Four was unusual, and Shen replied that he district for extension is a standard approach in elections law it doesn’t happen that often.
Chair Chiu asked Ford to clarify what communications were provided to candidates leading up to the June 12th filing deadline. Ford noted the Commission’s website provides information on public financing requirements and added that a supplemental guide for candidates also appears there to provide greater detail and explain program requirements. He stated an email was sent on June 4 to all Board of Supervisor candidates who had declared as a candidate as of that day, and to their treasurers, stating the deadline was approaching. That email linked to the relevant section of the Code, the e-filing system, and a link to the website. A June 13th email was sent to candidates who failed to file by the 12th regarding their failure to file. Candidates in Districts 4 and 8 were notified that filing deadline was extended due to the Election Department’s extension of filing candidacy papers. He added that is it staff’s standard practice to deny eligibility to public financing to any candidate that fails to file that form by the deadline and that it is not Staff’s practice to accept them late.
Director Pelham added that for context, a review of information in the handout showed that 77 percent of candidates facing a June 12 filing deadline filed their statement of participation timely, while 75 percent of those with a June 18th deadline filed timely. In reviewing the program information, Staff found it notable that there were candidates who abided with the program requirements and hoped that the program would be administered uniformly and predictably based on the on the requirements of the law so that candidates that do apply are not subject to unequal treatment.
Commissioner Renne asked if the deadlines should not be extended, how does the Staff explain allowing candidate Gordon Mar to file late. Pelham clarified that Mr. Mar did not file late. She explained that the law establishes a deadline based on a date, and that statements may be filed using the electronic filing system and will be timely if filed by 11:59pm on the date of the filing deadline. She stated that Mr. Mar’s filing was made at approximately 5:40pm on the filing date before midnight and therefore not filed late.
Chair Chiu then invited Sonia Trauss to provide comment to the Commission. Jesse Mainardi provided comment as the attorney representing Ms. Trauss. Board candidate in District 6. He referenced the letter and arguments made and documentation provided in support of her appeal request and asked the Commission to rule in favor of her appeal.
Commissioner Renne asked what is the reason the Commission should not strictly enforce the statute? Mainardi described that based on the entire set of circumstances in the case of Ms. Trauss it would be elevating form over substance. He referenced filed six qualifying requests over a period of at least four months, and that the underlying purposes of the statement of participation to provide notice to the public and other candidates had been met as information about the qualifying statement and the applications pending were on the Commission’s website. In a race with three strong candidates with very different points of view, an inability to access public funds will make things much more difficult for Ms. Trauss. This is not the case of someone who came late to the game.
In additional discussion with the Commission, Chair Chiu noted a June 4 email to candidates and referenced the statement candidates sign verifying they have read and understand applicable provisions. Mainardi responded the committee treasurer received the June 4 email, but Ms. Trauss never did; that was the treasure’s mistake. In this request, she is not asking for funds but for the opportunity to qualify.
Commissioner Kopp stated Ms. Trauss filed her declaration to be a candidate in July 2017, 11 months before this filing deadline and she is not new to civic endeavors and asked what the reason is, therefore, that she would not be held to the legal requirement of the June 12 deadline. Commissioner Lee asked Mainardi if he believed the Commission staff had done its due diligence in keeping his client informed and whether the failure to forward Ms. Trauss the deadline reminder is an issue between Ms. Trauss and her committee. Mainardi responded that Ms. Trauss had general knowledge of the laws and demonstrated a lot of participation over the course of four months. He urged the Commission to look at the volume of documents submitted; there was an assumption everything was in order and that nobody said anything otherwise. Mainardi cited Municipal Election Code section 205 and stated he believes the law in the Mar situation is clear, that the deadline applies at the end of business hours as posted, which in the case of the Ethics Commission is 8:00am to 5:00pm. He urged the Commission to look at the general context and the purpose of the rule and not apply the rule in a way that leads to extreme and unreasonable results. Commissioner Lee observed that deadlines are set for a reason and the Committee has admittedly missed it. Mainardi said the Commission has the ability to look at the totality of circumstances and allow for the qualification process to proceed. Chair Chiu stated Ms. Trauss filed a statement six times under penalty of perjury and asked what the Commission should make of that. Mainardi responded it was a mistake, and that these filings were in fact made by the treasurer, Ms. Dean. He asked what reason is served by denying her appeal at this point.
Commissioner Ambrose asked Staff to clarify why would candidates file a detailed qualifying request before they are required to file a statement of participation. Ford responded that the law allows for the filing to be non-sequential. After a brief discussion, the Commission then took public comment.
Eddie Siegal, a volunteer with the Trauss campaign, spoke in support of public funding for Ms. Trauss and urged the Commission to enable San Francisco to support candidates that do not need relationships with big donors to run. He stated that a failure rate of 25 percent is pretty high and accept that people who intend to participate in matching funds deserve to participate. Technicalities of the law due to a single check of a box should not prevent someone that wants to be an activist for the city and wants to run from participating.
Pius Lee spoke as a supporter of Ms. Trauss and asked the Commission to give Ms. Trauss another chance to enable her to deliver her message out to the district. The goal of public financing is to have as many candidates as possible.
Ben Libby stated he was a campaign worker for Ms. Trauss and stated the committee’s intent to participate has been clear. He said the committee has gone back and forth with Commission Staff, including over a $14,000 worth of fines for a committee over which the Commission did not have jurisdiction. He added that the standards for public financing have been extremely unclear, and that documentation provided by the Commission is too vague. He stated he got different answers at different times on different days. He stated the Trauss campaign is a grassroots campaign that has more than enough donors to qualify, and he urged the Commission to grant the appeal.
Adam Goldstein stated he was a long-time supporter of the Trauss campaign. He described the competitive nature of the district race and said the winner is likely to be the tie-breaking vote on many issues at the Board of Supervisors, so the results of this election will be very high. He cautioned against ruling on technicalities in light of the public interest. A clerical error should not prevent San Francisco voters from getting an adequate understanding of the choices in this election. The rules are not meant to restrict democracy and when the principles outweigh the rules we have to make an exception.
Vadim Duboice commented that as a Trauss supporter and contributor, he was shocked to find out that a small error meant the contribution will not be matched. It looks like the spirit of the law was followed and it would be a tragedy for the voters of District Six if that small paperwork error prevented them from having the full choice of candidates in this upcoming election. He urged the Commission to grant the appeal.
Tom Hirshfeld stated that denying Ms. Trauss public financing will punish the voters and the City’s democratic process for a clerical error.
Steven Buss spoke and said Ms. Trauss got him into political activism and he is a donor to her campaign and excited about her candidacy. He added that Ms. Trauss has always intended to participate in public financing and that it was a great part of San Francisco. He urged the Commission to support all appeals before the Commission today and not deny public funds over a simple mistake. Staff shouldn’t be reviewing submissions if this form hasn’t been submitted and the website shouldn’t accept submissions if the form hasn’t been submitted. This is a failure at many levels.
Milo Trauss said it is important to encourage more participation and compliance should not have to mean that all candidates have to bring in professional lawyers and accountants. Moving forward we can improve and simplify things. The Commission should see past these shortcomings and grant the appeal. If a candidate missed the deadline their entire campaign should not be torpedoed when they have worked so hard and clearly had the intent to follow the rules. He believes the law is clear under the City Charter that candidates must file nomination papers no later than the 147th day before the municipal election during normal offices hours as posted.
Amir Avner stated he is not a part of the Trauss campaign but believes Ms. Trauss should be given this chance to run a fair campaign against other candidates who are plugged into the system in San Francisco.
Sonia Trauss addressed the Commission and explained the filing process from her perspective as candidate. She stated the system does not allow her to sign in and file along with her treasurer, that only one committee representative can file. She said her accountants did many steps and did a lot of work and forwarded to her what she needed to file, and she believed them. That was their job. Fairness should be an important consideration, and most candidates hire accountants for this work so candidates are able to spend more time talking to voters and working on issues. The interests of fairness are not necessarily being served by torpedoing this campaign. She noted that if she cannot participate in public financing, she will have to spend dramatically more time fundraising and much less time in the community, which will be a shame as that is the opposite of the point of the public financing system.
Rothchild spoke in favor of the Trauss appeal and urged the Commission to approve the appeal so that Ms. Trauss could have a fair footing with the other candidates.
Anika Steg stated she recently joined the Trauss campaign team. She had looked up which candidates were participating in public financing and saw that from the number of requests filed, Ms. Trauss seemed like a good candidate to support. Public financing is a vital part of the elections process in the City, but she finds that many candidates and treasures find the program confusing. The program is constantly improving, and the Commission should rule in favor of the Trauss campaign.
Mark Press stated he works on the Trauss campaign and encourages the Commission to support the Trauss appeal as it is important part of public financing to get as many voices out there as possible.
Charley Marsteller stated that the law is never perfect, and in acting very much like a judge in this instance, the Commission must make a decision based on the law. He added that whatever decision comes today, this is a great turnout and he appreciates the eloquent, reasoned statements by the public. This shows how much the system is evolving in the right direction.
Commissioner Kopp made a motion to deny the appeal by Ms. Trauss, citing among other factors that Ms. Trauss has been a candidate since July 2017, the accountant is acting as her agent, Commission staff have been in communication with her campaign about the program requirements, and the Commission has the responsibility in this and all instances to pay attention to the law. He stated that the language is not vague and the evidence is clear and convincing. While she may have a cause of action against her treasurer, she does not have any recognizable ground for the granting of an appeal. The motion was seconded by Commissioner Lee.
Commissioner Lee stated she agrees this is a difficult matter when you look at the spirit of the law and the goal to have a broad candidate base of candidates that would not normally have large resources to enable them to run. She noted the issue is about deadlines and also about fairness to all candidates. If her accountant were to miss an IRS filing deadline, she noted, the IRS would not fault her accountant but would hold her accountable as the person responsible for missing a deadline. The deadlines need to matter and they mean something to other candidates who abide by the spirit and the law.
Commissioner Renne commented that as a big proponent of public financing, he finds it troubling to take a position on what some have called a technicality, however there have to be rules in the game and in fairness everybody has to abide by those rules and be treated the same. He said he does not see ambiguity in the requirement that a certain document must be filed by a certain date. That’s not a bureaucratic thing and he cannot disregard that. He will support the recommendation that the appeal be denied.
Commissioner Ambrose stated that she shared the sentiment of the commission. She found the materials and website to be clear about the statement’s filing deadline by the date that the nominating papers are filed and about the later date for qualifying. She said she would be concerned if there is a perception that if you have a problem or an issue that people will think that those deadlines are not real and that the Commission somehow has the ability to just forgive deadlines. She stated we can always learn and continue to improve the system, but it’s clear that candidate didn’t meet that requirement and that she would support the motion.
Chair Chiu called the question and the motion to deny the appeal was unanimously approved.
Motion 180720-04 (Kopp/Lee): Moved, seconded and passed 5-0 that the Commission deny the appeal of Sonia Trauss.
Chair Chiu called item 6b, the appeal of Trevor McNeil, Supervisorial candidate in District 4.
Mr. McNeil introduced himself and described his experience filing to be a candidate for the November election. He stated he filed on June 18 with the Department of Elections and was not informed at that time that he needed to submit a statement of participation that day. He stated he intended to apply for public financing but was told by the Elections Department that he could wait until later in the week to file with Ethics. He noted he did not have a professional political consultant to tell me otherwise and he missed the deadline. Because he was not yet a candidate as of June 14, he did not receive an email from Commission Staff. He was informed on June 25th that he missed the deadline for filing a statement of participation, rushed to submit his form, and was informed the next day of his ineligibility. He stated that the process of filing papers with both offices needs improvement and regrets the mistakes he made in the public financing filing process. He urged the Commission to consider that the goal of the public financing program is to allow everyone who wants to run a substantive campaign to participate. Without public financing, he stated, it will be very difficult for his campaign to be competitive against other political candidates who have robust financing. He asked the Commission to approve his appeal.
Commissioner Kopp stated for the record that he has known Mr. McNeil for a couple of years and noted he had run previously as a candidate for Board of Education. He added that Mr. McNeil had sent him an email last month saying he had been denied public financing and recalled having responded that he could file an appeal, and that he has had no other communication with Mr. McNeil since that time.
Mr. McNeil added that his filing at Elections was on the last day of the filing and that lots of people were caught off guard when the election for that district seat was called. With the truncated election window for this seat, public financing is important for candidates who take a chance to be able to qualify and communicate with voters. He concluded and said he is only asking or a chance to qualify.
Commissioner Lee asked about actions Staff took to communicate to candidates in Districts Four and Eight. Pat Ford said the Staff communicated with individuals who were declared candidates at that time. He noted that three of the five candidates who declared their candidacies after June 12 also filed timely statements of participation. Commissioner Ambrose inquired about the window candidates had to file. She stated she attended the training as a new commissioner and cited a supplemental guide on the process and asked whether Mr. McNeil was not able to get to the website to get this information.
He responded that the process was prohibitive and stated he did not get accurate information from the Elections Department, however he did not contact the Ethics Commission. He appreciates that there is a guide online, but he did not see information about the elections deadline online. The information and forms are not intuitive.
Chair Chiu called for public comment.
Jay Chang commented that he is a supporter of Trevor McNeil and urged the Commission to support Mr. McNeil’s request. He believes vagueness did exist in the District Four race with regard to the filing deadlines. He cited a 5:45 pm filing by Gordon Mar as an example of a lack of clarity by the Commission on the filing deadline imposed by the Elections Code, so how can candidates follow the appropriate reasons and determine the correct nomination deadline.
Steven Buss stated he supports the request by Trevor McNeil. He stated that the rules are too strict and need to accommodate difficult circumstances like what was described earlier. Public financing, should make it easy for people that are not part of the political machine to run for office.
Ms. Uzuri Pease-Greene spoke in support of Mr. McNeil’s request. She suggested taking all the paperwork necessary to run for office and putting it in the same packet to make it easier for candidates to know that they are required to file and by when.
Milo Trauss spoke in support of Mr. McNeil’s appeal request. He urged consideration of new methods for disclosure filings so that deadlines are not even necessary and that offer immediate transparency, for example, to flag who is a San Francisco resident for public financing qualification purposes. The current system is a disaster and we need something better that’s easier and more streamlined.
Charley Marsteller commented that the Ethics Commission follows such strict rules is because public funds are involved. While that may be the elephant in the room, there are tremendous accountability issues at the core of public financing. He suggested the Seattle voucher approach to public financing may be one way to solving these issues.
Chair Chiu commented that public financing is a vital part of the political landscape that San Francisco is fortunate to have. These are taxpayer dollars, and that there are rules and regulations and procedures put in place in order to allow for the fair and predictable administration of the — administration of the dissemination of those funds, and that there’s a qualification process. It’s not an entitlement, it’s a privilege. There is a lot of food for thought that has been presented here today, but the way that the law exists today is that the forms need to be filed by a certain deadline, and that is one gatekeeper in order to qualify to receive these taxpayer dollars.
Commissioner Renne moved that the Commission deny the appeal requested by Trevor McNeil.
Motion 180720-05 (Renne/Lee): Moved, seconded and passed 4-1 (Kopp in the dissent) that the Commission deny the appeal requested by Trevor McNeil.
Chair Chiu called item 6c, the appeal request by Arthur Tom, Supervisorial candidate in District 4.
Arthur Tom, Supervisorial candidate in District 4, addressed the Commission. He stated that the Election deadlines for the District 4 race provided little time to get all the petitions signed and do everything necessary to file for the ballot, much less file for public financing. He said he is going to be completely dependent on public financing for his campaign. Without it, he stated he cannot be a part of the democratic process to effectively campaign against people with greater resources.
Commissioner Renne asked if he made any investigation of the public funds program when Mr. Tom decided to run. Mr. Tom responded that he did not have a campaign strategist to advise him. He urged the Commission to allow him the chance to represent the community.
Commissioner Kopp stated for the record he received a call from Mr. Tom to urge him or acquaint him with the fact that he was running for Supervisor and to urge him to grant his appeal, and that when he called him back he simply inquired if he had filed a request for an appeal.
In response to a question from Commissioner Renne, Deputy City Attorney Shen clarified that Mr. Tom filed his statement of participation on June 20. He added that the deadline was June 18.
Chair Chiu called for public comment.
Steven Buss stated we should be making participation in public financing easier for candidates.
Chair Chiu stated she would entertain motions at this time.
Commissioner Renne stated that he would move denial of the appeal request by Arthur Tom. Commissioner Ambrose seconded the request.
Motion 180720-06 (Renne/Ambrose): Moved, seconded and passed 4-1 (Kopp in the dissent) that the Commission deny the appeal request of Arthur Tom.
Commissioner Renne stated that he would suggest consideration of a change that might allow candidates who, at the last minute, decide that they want to run and, obviously, are not political insiders, that there’s some period that they would have in which to comply with the requirement. But as the rules now stand, the answer has to be no.
Chair Chiu added that she believes the full Commission is sympathetic to the challenges facing candidates, but as the rules stand right now, there’s not much leeway.
Chair Chiu called item 6d and invited Uzuri Pease-Greene, Supervisorial candidate in District 10, to address the Commission.
Ms. Pease-Greene stated that the Commission should not even have an appeals process if these rules are going to be followed and candidates’ appeals not considered. She stated her campaign treasurer dropped the ball and as a first-time candidate with no money she followed that individual’s advice. She only found out in the newspaper that she did not qualify. She stated that she has found the whole experience to be disheartening. She questioned why she needed to be at this meeting today if it the appeals were not going to be granted. The paperwork for candidates needs to be in once place to make it easier.
Chair Chiu called for public comment.
Steven Buss spoke that he is very disappointed that these innocent mistakes cannot be overlooked. If the Commission can’t help people get public financing, what’s the point?
Milo Trauss commented that the Commission has discretion and should use that decision making to figure out what works and what is not working. He noted that the Commission granted a waiver in an earlier matter today and urged the Commission to rule the right way in this matter by also granting this appeal request.
Commissioner Ambrose clarified that the ordinance the Board of Supervisors adopted that governs the matter involving Mr. Sheehy’s request gave the Ethics Commission authority to grant waivers in cases of extreme hardship, provided that a finding was made. The ordinance governing the issues here that requires a candidate to file a statement of participation no later than the date that the nominating papers are filed does not grant discretion to give candidates an extension of time. She noted that is what the Commission has been struggling with throughout this hearing.
Chair Chiu invited motions from the Commission.
Commissioner Renne made a motion to deny the appeal of Ms. Pease-Greene. The motion was seconded by Commissioner Ambrose.
Motion 180720-07 (Renne/Ambrose): Moved, seconded and passed 5-0 that the Commission deny the appeal requested by Uzuri Pease-Greene.
The Commission took a brief recess and convened at 5:35 pm.
10. Discussion of monthly Staff Enforcement Report, including an update on various programmatic and operational highlights of the Enforcement Program’s activities since the last monthly meeting.
Acting Director of Enforcement and Legal Affairs Jeffrey Pierce introduced Jeff Smejkal of the Bureau of Delinquent Revenues (BDR) to give a presentation on the current efforts to collect outstanding fines and penalties that delinquent respondents owed to the Ethics Commission. Smejkal described the two judgments against Chris Jackson as both pending an order of examinations hearing to obtain information on Mr. Jackson’s assets on August 30. The same is true for Jacqueline Norman, for whom an order of examination hearing is also set for August 30. He stated Isabel Urbano was previously on a payment plan, but she has recently missed some payments and so the Bureau is considering whether legal action may be pursued. He noted Lynette Sweet filed for Chapter 13 bankruptcy in 2015 and BDR’s legal team has filed a lawsuit against her. He expects additional information following a final confirmation hearing on a date yet to be determined. Responding to a question by Commissioner Lee, Mr. Smejkal stated he will need to confirm whether Ms. Sweet is currently employed, but he noted that records do show she owns several properties of substantial value, which is BDR’s basis for pursuing her legally.
Chair Chiu then invited public comment.
Charley Marsteller stated that Ms. Sweet had used public financing in her campaign for office and therefore appreciates BDR’s diligent pursuit of that matter.
Enforcement Director Pierce briefly reviewed highlights from the monthly Enforcement Report, including the average age of cases currently in preliminary review, which has continued to decrease, and the average age of formal complaint cases, which has gone up slightly. He stated that investigators continue to work diligently on their caseloads.
No action was taken as the item was presented for informational purposes only.
7. Informational staff presentation and overview of the City’s limited system of public financing.
Senior Policy Analyst Pat Ford walked through an informational PowerPoint presentation that provided a high-level overview of the public financing program. He noted the presentation, which was an attachment under Item 7, was designed to provide detail about the program to support the Commission and public in having a common place of understanding as the Commission commences its priority review of the public financing system to identify possible improvements. During his presentation, Ford reviewed program goals and funding, candidate qualification and matching funds requirements and deadlines, candidate spending limits and how they are administered under current law and answered several clarifying questions from the Commission on those topics.
Chair Chiu thanked Ford for the informative presentation and said she looked forward to the interested persons meetings planned for receiving feedback from stakeholders. She then called for public comment.
Charley Marsteller described his involvement and support of the public financing program over the past 20 years and his understanding of the origins of Proposition O, which created San Francisco’s public financing system. He noted that public campaign financing is not intended to level the playing field among candidates, but instead to be a platform for debate. He believes it also is a check against political corruption. He added that it would be helpful call “independent expenditure” committees non-candidate controlled committees as the phrase “independent expenditure committee” pre-judges the independence of a committee in fact.
Anita Mayo thanked Ford for an excellent presentation and encouraged the Commission to develop a one-stop shopping concept for candidates so that elections and public financing information can be provided in one place and avoid the issues that required attention on today’s agenda. Commissioner Kopp asked if there was some legal impediment to posting signs or other information in the Elections Department directing candidates to the Ethics Commission for information on public financing. Director Pelham responded that she did not know the answer to that question but that she agreed with Ms. Mayo’s point and shared the view that the Commission could do more, including for example, place staff on site with Elections during candidate filing periods. Chair Chiu invited additional information from Staff in the future about how that might be implemented.
Commissioner Ambrose noted that giving people a heads up to not wait until the end of the filing period will be very important.
No action was taken as the item was presented for informational purposes only.
8. Informational staff presentation and overview of draft Advice and Opinion Regulations.
Senior Policy Analyst Pat Ford presented an overview of draft Advice and Opinion Regulations for the Commission. He explained the Commission’s Charter-based authority to provide advice to persons who ask about their duties under the law and how the law applies to their specific situation. He described the most common method for providing this guidance is informal advice, for example by phone call or email. Staff routinely provides informal guidance, but that guidance do not carry immunity if the requestor is later subject to an enforcement action based on having followed that guidance. He also described the Commission’s authority for issuing an opinion. An opinion provides a requestor with immunity if the person complies with the recommendation in the opinion and have provided all of the facts and have followed the guidance provided.
He added that the Charter establishes the requirement that both the District Attorney and City Attorney offices are provided a copy of the opinion, but that the Charter does not address the legal status of an opinion that the Ethics Commission adopts but which has not yet received or never received the concurrence of the City Attorney or District Attorney. On that, the Charter is silent.
Deputy City Attorney Shen stated that where different agencies disagree, only the bodies that agreed would be bound in terms of subsequent enforcement action. For example, if the Ethics Commission were to adopt a formal opinion, and the City Attorney were to concur, those two agencies would be bound on future enforcement. That is, immunity would be provided based on the circumstances of the opinion. If the District Attorney disagreed with the opinion, that office could still exercise its discretion to initiate a criminal action based on what is described in the subject matter of the opinion.
Ford stated that Staff have scheduled two Interested Persons meeting for July 31 and August 1 for additional public feedback.
Chair Chiu called for public comment.
Anita Mayo asked for the regulations to state a specific timeframe for notifying the requestor once the Executive Director has determined the opinion or advice request is complete and proper, rather than stating the requestor will be notified “as soon as practicable” after that determination. She urged that no probable cause should be made by the Executive Director regarding any opinion in which there is the absence of concurrence by the District Attorney or City Attorney. She stated the proposed language preventing advice regarding hypothetical situations is contrary to existing statutory language that allows for any person to request advice with respect to their duties under Code section 1.168(d) that provides that any person may request advice from the Ethics Commission or City Attorney with respect to any provision of that Chapter.
No action was taken as the item was presented for informational purposes only.
9. Discussion of monthly Staff Policy Report.
Policy Analyst Pat Ford introduced Agenda Item 9 and briefly explained the report contained two sections that reflect the dual purpose of the division: ongoing policy initiatives and projects that support execution of policies and serve a more general program administration role. He stated that the public financing review continues to be his primary focus, followed by a review and update of campaign ordinance regulations, and thirdly, looking at online political communications. Regarding other ongoing projects, Ford noted the staff has been in communication with Board President Cohen’s office to seek a hearing on the Whistleblower Ordinance to move that to final enactment. The trustee elections ordinance is scheduled for July 25 at Rules. The ordinance by Supervisor Kim on campaign issues is pending at Rules.
11. Discussion of Executive Director’s Report.
Director Pelham announced the appointment of Chief Programs Officer Gayathri Thaikkendiyil as Deputy Director and Chief Programs Officer effective July 2, 2018. She noted Ms. Thaikkendiyil has been serving as Acting Deputy Director since late March. Prior to her appointment Chief Programs Officer in September 2017, she served a one-year Senior Executive Fellowship with us as part of the FUSE program administered by the Mayor’s Office where she designed and implemented approaches to leverage online technology to improve public engagement and strengthen accountability in city government. Prior to joining the City and County of San Francisco, Ms. Thaikkendiyil led geographically distributed cross-functional teams of technical and business stakeholders as an Applications Development Manager with American Airlines. She holds a Master of Business Administration from the University of Texas at Austin, McCombs School of Business, and a Master of Science in Computer Science from the University of Texas at Dallas, School of Engineering and Computer Science.
Pelham also highlighted the status of positions on the Commission’s staff that remain in recruitment.
No public comment was received.
Commissioner Kopp left the meeting at 7:12 pm.
12. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission. Possible Closed Session.
The Commission did not enter closed session and held no discussion on this item. No public comment was received.
13. Discussion and possible action on items for future meetings.
No items were discussed, and no public comment was received
14. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
No public comment was received.
The Commission adjourned at 7:30 pm.