Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, September 21, 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 2:07 pm. and called the roll.
COMMISSION MEMBERS PRESENT: With Chair Daina Chiu, Commissioner Paul Renne and Commissioner Noreen Ambrose in attendance, a quorum of members was present. Vice-Chair Kopp and Commissioner Lee later joined the meeting while it was in progress.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jeffrey Pierce, Director of Enforcement & Legal Affairs; Eric Willett, Senior Investigative Analyst; Thomas McClain, Senior Investigative Analyst; Jeffrey Zumwalt, Investigative Analyst.
OFFICE OF THE CITY ATTORNEY: Deputy City Attorney Andrew Shen.
OTHERS PRESENT: Charley Marsteller, Elena Schmid, Anita Mayo, Louis Dillon, Mr. Antonio, and other unidentified members of the public.
MATERIALS DISTRIBUTED:
- Draft minutes for the July 20, 2018 regular meeting of the Ethics Commission and attachment.
- September 17, 2018 cover memo from Staff and Proposed Stipulation, Decision, and Order In the Matter of Quintin Mecke (Ethics Commission Complaint No. 27-151015).
- Staff report dated September 17, 2018 and attachments regarding a proposed 2018 biennial Conflict of Interest Code update for Ethics Commission.
- Staff report dated September 17, 2018 and attachments regarding proposed Ethics Commission Advice and Opinion Regulations.
- Staff’s monthly Policy Report dated September 17, 2018 and attachments.
- Staff’s monthly Enforcement Report dated September 17, 2018 and attachments.
- Executive Director’s Report dated September 17, 2018.
2. Public comment on matters appearing or not appearing on the agenda.
Charley Marsteller stated he hoped Commissioner Kopp would attend today’s meeting. He noted Judge Kopp recently celebrated his 90th birthday and stated today was his birthday. The Commissioners wished Mr. Marsteller a happy birthday.
CONSENT CALENDAR ITEMS
3. Draft minutes for the July 20, 2018 Ethics Commission regular meeting.
Chair Chiu called for discussion or comments on the draft minutes. Hearing none, Chair Chiu called for public comment. No public comment was received. Chair Chiu called for a motion to approve Item 3.
Commissioner Ambrose moved adoption of the minutes, seconded by Commissioner Renne. The motion was adopted by a vote of 3-0.
Motion 180921-01 (Ambrose/Renne): Moved, seconded and passed 3-0 (Kopp and Lee not present) that the Commission adopt the draft Minutes for the Commission’s July 20, 2018 regular meeting.
NON-CONSENT ITEMS
4. Discussion and possible action on Proposed Stipulation, Decision, and Order In the Matter of Quintin Mecke (Ethics Commission Complaint No. 27-151015).
Senior Investigative Analyst Eric Willet introduced the item and noted that the proposed Stipulation, Decision, and Order was removed from the Consent Calendar at the request of Vice-Chair Kopp so the item could be heard separately, however he had not yet joined the meeting. After inquiring of Deputy City Attorney Shen regarding procedure, Chair Chiu stated Item 4 would be taken up again when Commissioner Kopp was present and then called Item 5.
5. Discussion and possible action on proposed 2018 biennial Conflict of Interest Code update for the Ethics Commission.
Executive Director LeeAnn Pelham provided background on the biennial process and highlighted the purpose of the proposed changes for Form 700 (Statement of Economic Interests) purposes. She stated that state law requires local agencies to review and update their Conflict of Interest Codes no less than every two years to ensure that the positions identified on the code and the disclosure categories that apply to those positions reflect current organizational structures and position responsibilities. As the Code reviewing body for the City and County of San Francisco, the Board of Supervisors is the body that ultimately must adopt an ordinance to update the City’s lists of Form 700 filers. She added that today’s item seeks the Commission’s adoption of the proposed changes so its updates can be reported to the Board for inclusion in this year’s biennial update. She referenced a memo provided to staff in August to provide time for comments or questions and stated none had been received. She stated changes primarily updated titles and added positions that did not exist at the time of the last biennial review in 2016.
Chair Chiu asked if the titles listed in the attachment reflect the current organizational structure and the vacant positions expected to be filled this year. Pelham confirmed that was the case. She added that departments can also propose updates to their disclosure lists at any time and need not wait for the required biennial code review if changes are needed.
Hearing no other questions from the Commission, Commissioner Renne moved adoption of the proposed updates and Commissioner Ambrose seconded.
Chair Chiu called for public comment. None was received, and Chair Chiu called the question.
The Commission voted 3-0 (Kopp and Lee not yet present) to approve the updates as proposed in the staff memorandum.
Motion: 180921-02 (Renne/Ambrose): Moved, seconded and passed 3-0 that the Commission adopt the updates proposed to its Conflict of Interest Code as detailed in the staff memorandum dated September 17, 2018.
6. Discussion and possible action on proposed Advice and Opinion Regulations.
Pelham introduced the item noting Pat Ford was out the office and unable to be at the meeting. She stated the item presented proposed regulations to provide clarity and structure for those who are seeking advice from the Ethics Commission about the advice process and what an opinion or advice from the Commission provides. She added that the documents include some additional feedback received based on interested persons meetings Staff conducted. She noted that the regulations adopted by the Commission must be forwarded to the Board of Supervisors for a 60-day period of review. If the Board does not act on them within that time, the regulations automatically take effect after 60 days.
Vice-Chair Kopp joined the meeting at 2:18 pm.
Commissioner Renne noted proposed language at Regulation 699-12(a)-1(B)4 stating a request for an Opinion is not complete and proper if it asks a general question of interpretation or policy and asked about the purpose of that limitation.
Director Pelham responded that the goal is to clarify that an Opinion requires a particular set of circumstances to be provided prospectively by the requestor when the requestor is seeking guidance about his or her duties under the law. Commissioner Renne confirmed this was his understanding and added that the requestor has to be impacted by that advice. Pelham confirmed that is the Staff’s intent.
Commissioner Renne asked about language in proposed Regulation 699-12(a)-2(A) that addresses the notice provided to a requestor when a determination about the sufficiency of an Opinion request has been made and that specific deficiencies will also be provided. He asked to clarify what deadline applies for notifying the requestor of the specific deficiencies. Pelham responded that the two-day deadline in the preceding sentence applies, meaning that both the determination and deficiencies are to be provided within two days of the determination.
Regarding proposed Regulation 699-12(a)-2(B), Commissioner Renne asked about the purpose of the 45-day reference in the first sentence of that section, which reads “…the Commission shall consider the draft opinion …at its next regularly scheduled meeting so long as that meeting occurs no less than forty-five days after that determination.” He suggested omitting the word “next” so that it reads only “at a regularly scheduled meeting” and inquired f that was consistent with the Staff’s intent. Commissioner Ambrose suggested striking the “no less than 45 days” language given the next sentence already allows for the Director to extend the deadline for good cause if necessary. Pelham conveyed that the intent is to provide some sense of timeframes and to also allow ample time for the drafting of opinions once a request is determined to be sufficient, but not to require special meetings by the Commission to consider draft opinion. She agreed the language should be clarified.
Commissioner Ambrose asked to clarify where the regulations address how the Commission provides guidance in response to a general question of interpretation or policy. Pelham and Deputy City Attorney Shen each described examples of processes in use to provide that kind of guidance. Jeff Pierce added that the proposed regulations distinguish between opinions and advice as the charter sets out, and that a third category exists, often called “guidance,” which the Commission compliance assistance staff regularly provide and would continue to provide.
Shen suggested that the regulations do not make that distinction clear and that a third category of compliance guidance exists and should be addressed.
Vice-Chair Kopp asked whether e-mail constitutes something “in writing.” Pelham affirmed that is the case. Regarding Regulation 699-12(a)-3(A) on page five, he requested a grammatical change to say “his or her” instead of “their” conduct.
After further discussion, action on the item was continued to the Commission’s next regular meeting in October to enable issues discussed to be addressed through clarified language.
No public comment was received.
Resumption of Item 4, discussion and possible action on Proposed Stipulation, Decision, and Order In the Matter of Quintin Mecke (Ethics Commission Complaint No. 27-151015).
The Commission returned to Item 4 at 2:34 pm.
Senior Investigative Analyst Eric Willett stated the proposed settlement agreement addresses violations of the City’s campaign consultant ordinance (SF Campaign & Governmental Code Sec. 1.510). He advised the Commission about the options available to them under City law and briefly described how Staff arrived at the proposed penalty amount.
Vice Chair Kopp cited a case before the Commission eight years ago that he stated had almost the same fine as in the proposed Mecke stipulation. He stated that the respondent is experienced in San Francisco politics and that he would not vote to approve a settlement agreement in this matter with a penalty amount of less than $12,500. He asked to see the executed contract for the respondent’s services to the two committees referenced in the stipulation and stated he wished to see the respondent’s financial documents
Commissioner Lee joined the meeting at 2:41 pm.
Chair Chiu asked Staff whether the respondent had the ability to pay a $12,500 fine based on their analysis of his finances. Director of Enforcement and Legal Affairs Jeff Pierce stated he believed, based on the financial records the respondent had provided to Commission Staff during the settlement process, that the respondent would require a loan to make a payment of that size. Vice-Chair Kopp stated the respondent could pay by installment plan, and the Commission then briefly discussed whether the Commission allows installment plans. Deputy City Attorney Shen pointed to the Commission’s Enforcement Regulations that stated that, as a rule, the Executive Director will not accept requests for payment plans.
Commissioner Ambrose confirmed with Staff her understanding that from the committee’s filings the Staff had been able corroborate the extent of payments to the respondent.
Commissioner Renne moved to approve the settlement and Commissioner Ambrose seconded the motion.
Chair Chiu called for public comment.
Charley Marsteller stated that it was good to see the discussion about what constitutes a reasonable assessment of fines and penalties. He stated he believed the proposed fine was a little low compared to a 2010 settlement involving the same conduct and added that the City’s Bureau of Delinquent Revenue permits respondents to pay by installment. He asked whether the financial records used to assess the respondent’s ability to pay were from the time the activities occurred or from present day. Enforcement Director Pierce responded that the records were current records.
Quintin Mecke addressed the Commission and stated that he had acted in good faith and provided documents to the Staff. He questioned what purpose a $12,000 fine would serve for the two mistakes he has acknowledged. He stated that he will struggle to pay the $4,500 fine and make a living in San Francisco.
Vice-Chair Kopp stated that he would not vote for the pending motion. He pointed to language in Exhibit A regarding the respondent’s history of political conduct in the City and Staff’s report acknowledging significant violations. He stated that under the Charter the penalty could be $75,000, and that a penalty of $12,500 would better vindicate the Rule of Law. He advised that the Executive Director could exercise discretion to allow payment of a $12,500 penalty in installments.
Chair Chiu called the question. The Commission voted 4-1 to approve the proposed settlement, with Commissioner Kopp voting no.
Motion 180921-03 (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 Quintin Mecke (Ethics Commission Complaint No 27-151015) for violations of the City’s campaign consultant ordinance (SF Campaign & Governmental Code Sec. 1.510).
7. Discussion of monthly Staff Policy Report.
Pelham introduced the report on behalf of Senior Policy Analyst Pat Ford, who was not able to be present at the meeting. She noted the informational presentations to media outlets on campaign finance dashboards that Ford and Electronic Disclosure and Data Analysis (EDDA) staff member Tyler Field had been making over the past several weeks.
Pelham stated that Board President Cohen has now reintroduced the version of the Whistleblower Protection Ordinance that was pending under the sponsorship of former Supervisor and Board President Breed, and that Staff had communicated on behalf of the Chair and Commissioner Renne a request to meet to urge adoption of the ordinance.
Chair Chiu asked if other sessions have been scheduled, and Pelham responded that none were but acknowledged there had been considerable interest and the Staff remain open to doing more.
Commissioner Lee requested that new media/ethnic community media be included in further outreach by Staff.
Chair Chiu called for public comment.
Charley Marsteller stated he is very impressed with the new dashboard system and with EDDA staff. He stated Tyler Field’s work has been exceptional and thanked Director of Technology Steven Massey for bringing the Commission into the 21st Century. He stated that Friends of Ethics had provided a list of new media contacts to the Commission.
Vice-Chair Kopp asked Director Pelham whether she had spoken to the Department of Elections about the ability to hang signs in the Elections Department about where to go for information about the City’s public financing program. Director Pelham responded that she had not but that she would follow up before the next Commission meeting.
No action was taken as the item was presented for informational purposes only
8. 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.
Director of Enforcement and Legal Affairs Jeff Pierce introduced the item and highlighted current timeframes for resolving matters. He noted Staff has also received 10 public records requests since the July meeting and that preparing the Commission’s responses has taken 12 hours on average every week to fill these requests. He acknowledged Senior Investigative Analyst Thomas McClain for shouldering the bulk of work to review and produce those records.
Chiu asked about whether those duties could be assigned to another member of the Staff and Enforcement Director Pierce responded that if the volume of requests persists as in the current trend it may be necessary to reassess staffing resources to realistically fulfill both its transparency and its enforcement obligations.
Hearing no questions or comments by Commissioners, Chair Chiu then invited public comment. No public comment was received.
No action was taken as the item was presented for informational purposes only.
9. Discussion of Executive Director’s Report.
Director Pelham announced that Jeff Pierce has been appointed Director of Enforcement and Legal Affairs on a permanent basis. She noted he had been serving as Acting Director of Enforcement and Legal Affairs since March. As a part of the senior management team, Pierce will provide strategic, operational, and staff leadership on all matters related to enforcement of laws within the Commission’s jurisdiction and will be responsible for directing the allocation of enforcement resources and managing the daily operations of enforcement activities.
She also announced that Maron “Arnoldo” Calderon recently joined the staff as the Commission’s new Senior Information Systems (IS) Business Analyst, which has now rounded out a team of four in the Electronic Disclosure and Data Analysis Division under Steven Massey’s leadership. Arnoldo was previously with the City’s Department of Public Health, where he served as an IS Business Analyst for three years.
Pelham also highlighted the status of positions on the Commission’s staff that remain in recruitment and noted that five remaining positions had been posted for applications for several weeks and that the application period was closing for each of them later that afternoon.
Pelham added that in addition to progress on the hiring front since the Commission’s last meeting, Staff had completed FY18 performance reviews. With ongoing work to update the Commission’s offices nearing completion, the Staff was now able to target October 4 as the date to return to the Commission’s permanent offices. Pelham acknowledged the Controller’s Office and Department of Real Estate for their continuing support of temporary office space during the renovation.
Chair Chiu congratulated Pierce for his appointment and acknowledged Director Pelham’s leadership in getting through the performance review process.
Commissioner Lee suggested hosting an open house to welcome the public to the Commission’s updated offices, including those from the community that might not be as familiar with the Commission and its work.
Chair Chiu called for public comment.
Charley Marsteller extended his compliments to Vice-Chair Kopp for his 90th birthday.
10. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission. Possible Closed Session.
The Commission provided the opportunity for public comment and received none. Vice-Chair Kopp moved that the Commission enter closed session to consider this item. The motion was seconded by Commissioner Renne. The Commission voted to 5-0 to enter closed session.
Motion 180921-04 (Kopp/Renne): Moved, seconded and passed 5-0 to enter closed session for discussion and possible action on complaints received or initiated by the Ethics Commission.
After returning into open session, provided opportunity for public comment. Chair Chiu moved, and Commissioner Lee seconded that the Commission maintain the confidentiality of items discussed in closed session. The Commission voted 5-0 to adopt the motion.
Motion 180921-05 (Chiu/Lee): Moved, seconded and passed 5-0 to maintain the confidentiality of items discussed in closed session under Item 10.
11. Discussion and possible action on items for future meetings.
Commissioner Renne stated that he previously had referred a possible legislative matter to Staff regarding limitations on non-candidate expenditure committees, including materials on similar legislation in Florida and Massachusetts. He noted this did not appear as a top priority on the Policy Prioritization Plan and requested that Commissioners consider moving it up in priority given that his term as a Member of the Commission ends in six months. Renne requested that it be placed as a priority item at the October meeting, when the Commission will next consider its Policy Prioritization Plan. He urged that volunteer support could be used to assist with the project.
Director Pelham responded that Staff would include the materials Commissioner Renne had provided as part of the Policy Plan item next month so that Commissioners will have that information for its October meeting.
Vice-Chair Kopp stated that he wants to be sure Staff investigates the former Director of Public Health regarding allegations that she directed contracts to her wife, and he stated that he was hereby requesting such an investigation by Staff.
Vice-Chair Kopp stated that he is informed and believes that a former candidate for Mayor has filed a million-plus dollar claim with the City for intentional and negligent actions resulting in her ineligibility for public financing. He stated that he could not think of anything in the last months more frivolous and wished to state for the record that if, after 90 days, that claim has been rejected by the Controller and a San Francisco or other county Superior Court lawsuit has been filed, he would make a motion to direct the Commission’s legal counsel not merely to move to dismiss the lawsuit but to move for sanctions against the litigant under the Rules of Court and Rules of Civil Procedure for the filing of a frivolous lawsuit.
Chair Chiu called for public comment.
Louis Dillon stated he has been following the Commission’s operating procedures and that it seems there has been an effort not to expose campaign finance violations. He stated that the effect of a lack of refereeing the financing of placing people in positions of public trust makes the case that the City Attorney’s Office is aiding and abetting people to get off and that the City Attorney’s Office is suppressing evidence.
12. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
The Commission received public comment from Mr. Antonio asking if anyone with the Ethics Commission would be involved in the hiring for the Committee for SF Open Source Voting and liaisons to the Mayor’s Office of Technology and the Sunshine Ordinance Task Force. Deputy City Attorney Shen responded that the Department of Elections oversees the Open Source Voting System.
13. Adjournment.
Vice-Chair Kopp moved to adjourn the meeting and Commissioner Renne seconded the motion. Motion carried unanimously.
Motion 180921-06 (Kopp/Renne): Moved, seconded and passed 5-0 to adjourn.
The Commission adjourned at 4:07 pm.