Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, October 19, 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 2:00 pm. Commissioner Ambrose not yet present. Chair Chiu stated that she had to leave by 3:45 pm for an appointment.
COMMISSION MEMBERS PRESENT: With Chair Daina Chiu, Vice-Chair Quentin Kopp, Commissioner Paul Renne and Commissioner Yvonne Lee in attendance, a quorum of members was present. Commissioner Ambrose joined the meeting at approximately 2:04 pm.
STAFF PRESENT: LeeAnn Pelham, Executive Director; Jeffrey Pierce, Director of Enforcement & Legal Affairs; Pat Ford, Senior Policy Analyst; Eric Willett, Senior Investigative Analyst.
OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney.
OTHERS PRESENT: Elena Schmid, Anita Mayo, Lou Ann Bassan, Charley Marsteller, Ace Washington, Wendy Wong, and other unidentified members of the public.
MATERIALS DISTRIBUTED:
- Draft minutes for the September 21, 2018 regular meeting of the Ethics Commission.
- Staff report dated October 15, 2018 and attachments regarding Public Financing Review Project.
- Staff report dated October 15, 2018 and attachments regarding proposed Ethics Commission Opinion and Advice Regulations.
- Staff’s monthly Policy Report dated October 15, 2018 and attachments.
- Staff’s monthly Enforcement Report dated October 15, 2018 and attachments.
- Executive Director’s Report dated October 15, 2018.
2. Public comment on matters appearing or not appearing on the agenda.
Lou ann Bassan spoke as a candidate for Board of Supervisors District 4. She commended Ethics Commission front office staff, and in particular staffer Johnny Hosey. She expressed concern about methods for requesting informal advice in Agenda Item 5, specifically the amount of information that a requestor must provide to receive such advice. She stated that it appears to be drafted to make it harder for first-time candidates to receive advice.
CONSENT CALENDAR ITEMS
3. Draft minutes for the September 21, 2018 Ethics Commission regular
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.
Vice-Chair Kopp moved the adoption of the minutes, Commissioner Renne seconded. The motion was approved by a vote of 5-0.
Motion 181019-01 (Kopp/Renne): Moved, seconded and passed 5-0 that the Commission adopt the Draft Minutes for the Commission’s September 21, 2018 regular meeting.
NON-CONSENT ITEMS
4.Discussion and possible action on Public Financing Review Project – Findings and Recommendations.
Pat Ford, Senior Policy Analyst, presented the item, describing the background on Staff’s review of the public financing program, including stakeholder engagement, which included both interested persons meetings, surveys emailed to candidates and treasurers, and conversations with peer agencies in Los Angeles, Seattle, and New York.
Ford described the two-tiered approach of his recommendations to the Commission. Ford stated that Tier 1 entailed recommended changes to make it clearer and easier for participating candidates. Ford described a potential Tier 2 as entailing recommended changes to the substance of the program, including changing how people qualify for public financing, what they receive once qualified, and other substantive changes.
Ford pointed Commissioners to his analysis of the Individual Expenditure Ceiling by way of explaining how he conveyed his findings and recommendations. He urged Commissioners, with respect to the Policy Prioritization Plan in Agenda Item 7, to maintain the review of the public financing program as the Commission’s highest policy priority so he would have the ability to implement the recommendations here if Commissioners were to adopt them.
Chair Chiu stated that Ford’s recommendations encompassed both regulatory and legislative changes and asked what the difference would be for those two distinct processes. Ford responded that the Commission would draft and approve regulations and forward them to the Board of Supervisors for its opportunity to review, propose edits, or otherwise approve within 60 days. Regarding ordinance language, Ford noted that the Commission cannot alone change the Campaign Finance Reform Ordinance but that the Commission’s 4/5 vote is nevertheless necessary, reminding Commissioners that the Board would then need to approve proposed ordinance language by an 8/11 vote, followed ultimately by the Mayor’s approval. Ford stated he was not sure whether the recent legislative process surrounding the Anti-corruption and Accountability Ordinance was a good analogy for timing because that process may have been more wide-reaching than this more focused effort.
In answer to Chair Chiu’s question, he estimated that early 2020 was likely the earliest that changes might be implemented through the ballot initiative process.
Chair Chiu indicated her willingness to adopt the recommendations and invited other Commissioners to engage.
Commissioner Renne stated that the purpose of the public financing program was to limit candidate spending. Ford responded that limiting candidate spending was only one of the original purposes and noted that it was strange to limit spending by giving candidates more money. He stated that the program does not exist to “level the playing field” across candidates but to enable candidates to run a competitive campaign, noting that the qualification requirements exist to identify candidates who are viable. Commissioner Renne queried whether the Individual Expenditure Ceiling is meaningless in practice because the ceiling continually raises, such that there is no ultimate boundary under which a candidate must operate. Ford agreed with that characterization and pointed to the findings on page 10 of the attached report as evidence that the Individual Expenditure Ceiling does not impose meaningful limits on candidates who ultimately get to spend more than 98% of the funds they raised.
Chair Chiu asked whether in other jurisdictions candidates likewise were able to blow through spending ceilings. Ford stated that yes, by and large that was true, but observed that other jurisdictions use a different model, which he would recommend this Commission adopt, namely to eliminate a candidate’s Individual Expenditure Ceiling entirely after the conditions resulting in the first lifting of the ceiling arise (since staff can presume that once lifted, that candidate’s ceiling will be lifted repeatedly thereafter). He characterized as dubious the value of this system in light of the practical costs to candidates of monitoring the Individual Expenditure Ceiling and the costs to staff of continually evaluating the expenditures and changing the limit every day.
Commissioner Renne asked what the penalty is for exceeding the limit in other jurisdictions. Ford stated that he was not sure what the penalty in other jurisdictions might be but added that ordinarily it is not violations that cause the ceiling to be limited, but that it is generally lawful activity from independent expenditure committees or non-participating candidates who raise or permanently lift the Individual Expenditure Ceilings of participating candidates. Commissioner Renne sought clarification on whether Ford was stating that the excess spending comes not from candidates but chiefly from independent expenditure committees. Ford stated that that was correct and added that non-participating candidates who might also spend at high levels could permanently lift the ceilings of participating candidates as well.
Commissioner Lee inquired whether, in the other jurisdictions that have eliminated incremental raises to individual expenditure ceilings, those jurisdictions have seen an increase in spending generally, or whether spending has stabilized even absent a ceiling. Ford stated he did not predict that the presence or absence of ceilings would affect the spending of third-party groups, which are not beholden to the ceilings in any event.
Chair Chiu asked whether the Commission has data regarding when committees typically spend their money in relation to an election. Ford stated staff do have the raw data, because it exists on campaign disclosures, but had not yet analyzed that data. He stated however that he could perform that analysis. He believed that candidates would likely spread out most of the spending across the last four weeks before the election and would not spend more than 10 percent of their spending within a 24- or 48-hour period. Chair Chiu stated that she would like an analysis into the flow of money before an election date.
Vice-Chair Kopp stated that staff’s public financing review report reinforces his position that public financing is unfair to taxpayers and does not achieve its aim, which he stated is to limit spending in the face of a decision of the Supreme Court of the United States holding that expenditure limits are unconstitutional. He likewise cited a study that concludes that public financing does not reduce campaign spending.
Vice-Chair Kopp asked staff how much money is spent in an average election year on public financing and restated his question as inquiring into what the Commission has in its budget for public financing. Pelham described the statutory formula, enshrined by voters, that governs what the public financing amount must be, and stated that on January 2, 2018, the City’s public financing fund included $7.034m. Vice-Chair Kopp characterized the result of public financing as making campaign managers a little wealthier than they would otherwise be.
Vice-Chair Kopp stated that only charter cities in California can implement public financing because “we” stopped the unconstitutional actions of the governor from allowing non-charter cities to do so.
Vice-Chair Kopp nevertheless declared his intent to support staff’s recommendations because they would reduce red tape on a program that does exist. Vice-Chair Kopp identified exceptions to his support. He referred to page 13, regarding the expenditure method, and asked if there was information on whether in other jurisdictions with public financing candidates had delayed an expenditure in order to catch an opponent unaware in the last week or 10 days of a campaign. Ford stated he was not aware of such instances but indicated his willingness to confer with colleagues in other jurisdictions. Vice-Chair Kopp confirmed he would like Ford to do so.
Vice-Chair Kopp asked what interest Safai’s office had in these recommendations. Ford stated that Safai’s legislative aide has not yet had time to review and comment substantively. Vice-Chair Kopp indicated his support for a five-year period of ineligibility for public financing for candidates who had previously been found to have violated campaign finance laws.
Vice-Chair Kopp sought clarification about a recommendation described on page seven. Ford stated that he would recommend that staff discontinue the process of reviewing a qualifying request when a candidate has not yet submitted a statement of participation, such that the statement becomes a clearer requirement for becoming eligible for public financing.
Commissioner Ambrose asked what an “Address Verification System” is. Ford stated that an Address Verification System (or “AVS”) is data from a third-party payment processor that allows staff to verify a credit card contributor’s address, which is one way staff confirms the contributor’s residency within the City and County of San Francisco. Commissioner Ambrose asked where that information comes from, and Ford stated that it is contained within the credit card vendor report. Ford stated that the candidate must direct the third-party processor to send the vendor report—which includes the AVS—to staff, and that staff accept it in part because it bears indicia of authenticity coming from a third party.
Commissioner Ambrose then stated she was not convinced that an “arbitrary and capricious” standard might be the appropriate standard of review. She advised that staff follow up with the City Attorney’s Office, and stated moreover that our standard of review should be the same as that which a court might apply if someone were to seek judicial review of a Commission decision. She also indicated a desire that the Commission resolve more issues and hear more appeals within the Commission such that more people have an opportunity to participate at the local government level before going to court.
Chair Chiu called for public comment.
Lou Ann Bassan stated she wished she had been invited to participate in staff’s review process because she would have had a lot to contribute. Bassan stated she wished to remind Ethics Staff that we are all public servants of all members of the public. She pointed to the findings in CFRO at 1.100, including to reduce the power of incumbency. Bassan stated that it would be easy for her to prove that staff’s conduct was arbitrary and capricious.
Vice-Chair Kopp moved to grant Bassan an additional three minutes. Bassan continued that she wished to see the whole public financing system abolished because she believes it amounts to compelled speech in violation of her First Amendment rights.
Bassan stated that “AVS” is arcane and described what she viewed as shortcomings in the process, including staff’s alleged misgivings about a candidate’s use of PayPal.
Ace Washington described the Ethics Commission and Sunshine Ordinance Task Force as the two agencies that keep the City on point. He stated that he is facing discrimination in the City Hall press room as the only black journalist there. He stated that he feels like a “secondary citizen” there. He asked for investigations into the Office of Community Investment and Infrastructure, the Office of Economic and Workforce Development, the Department of Real Estate, the City Attorney’s Office, and the Sheriff’s Department.
Charley Marsteller stated that it is unconstitutional to use Public Financing to “level the playing field.” He characterized Public Financing as a platform for debate, calling it an important opportunity for certain candidates who might “blow the whistle” on city problems, like political corruption or “tilting towers,” who might not otherwise get to run for office. He stated that if we eliminated special use permits we might also reduce third party spending in San Francisco.
Wendy Wong of the San Francisco Coalition for Good Neighborhoods stated that Ellen Lee Zhou had brought five coworkers to the Commission to file a complaint and the Commission had lost their whole file. She stated that she volunteered for Zhou. She further stated that Bassan had no campaign manager or treasurer. She stated that keeping big money out of politics hurts first-time candidates like Zhou and Bassan the most. Wong stated that residents of the Sunset do not want the cannabis industry in their neighborhood and queried whether a candidate who receives cannabis money and meets with their lobbyists but refuses to meet with constituents might face a “conflict of interest.”
Elena Schmid asked whether commissioners had read Larry Bush’s submission. She stated she wished to highlight one of his recommendations which was to enable certain contributors to withhold their street address out of fear of assault.
Vice-Chair Kopp stated that he wished staff might consider those options, including allowing a contributor to submit a third-party sworn affidavit in place of their residential address. He asked that staff investigate that option.
Chair Chiu asked what staff’s current practice is regarding addresses. Ford stated that staff’s existing practice is to redact personal contact information from materials posted to the Commission’s website, including qualifying requests or Forms 460 campaign disclosure statements. Regarding how we agendize a public financing appeal, Ford stated that we could attach only the redacted, public-facing file to such an agenda item.
Chair Chiu summarized that Ford had provided seven regulatory and four legislative recommendations. Chair Chiu moved to approve all 11 and to direct staff to move ahead with drafting. Commissioner Lee seconded the motion.
Beyond his recommendation regarding third-party sworn affidavits to protect privacy, Vice-Chair Kopp made two additional requests before commissioners might vote: The first was to provide publicly a list of people prohibited from making contributions to candidates. The second was to identify, in press releases announcing that an individual expenditure ceiling had been raised, the sources of funding that had caused the increase to that ceiling, including third party spending.
Chair Chiu sought staff’s view on those recommendations. Regarding Vice-Chair Kopp’s first recommendation that staff consider how to protect a contributor’s privacy, Ford stated that staff could discontinue posting qualifying requests online, which he stated the Los Angeles City Ethics Commission does. Chair Chiu stated she prefers transparency and would not support ceasing to post them, including because contact information is already redacted, and state she would prefer to see that materials attached to an agenda item also be redacted. Ford stated we could implement that now without regulatory changes.
Regarding the second recommendation, Ford stated that he wanted to prevent overburdening the Public Financing system and that it might be sufficient to better educate candidates about prohibited contributors.
Vice-Chair Kopp asked whether Staff had reviewed Bush’s submission that describes a list, the contents of which he did not specify, that Friends of Ethics provides. Ford stated yes, he had reviewed the submission and had seen the list. Vice-Chair Kopp asked whether it was feasible for us to provide a list of that kind. Ford stated that we already have that information in our guide. Vice-Chair Kopp invited Bush (who he stated was watching remotely) to comment.
Regarding the third recommendation to provide additional information on the press releases concerning increases to the Individual Expenditure Ceiling, Ford stated that we already provide a lot of information about campaign fundraising and spending. Ford stated we might not include more information in a press release but better utilize our data dashboard, which he characterized as among the top fifth percentile in the country about how ethics commissions are presenting data, but invited recommendations for how to improve.
Chair Chiu recommended that we embed more detailed links in the press release that might send a reader to a candidate’s detailed campaign finance information. Ford stated he would implement the recommendation to include in the press release links to the data dashboard.
Commissioner Ambrose stated that a third-party affidavit might be useful and would probably fall into the seventh category of documentation that staff is proposing to eliminate. She stated it might be worth checking in with the District Attorney’s office about how they deal with protective orders as an analogy. She further stated that she would like increased analysis on how we proceed in the appeals process. She stated she would support the motion.
Hearing no other questions or comments from the Commission, Chair Chiu called for the vote on the pending motion, and the motion carried unanimously.
Motion: 181019-02 (Chiu/Lee): Moved, seconded and passed 5-0 that the Commission adopt the proposed recommendations.
5.Continued discussion and possible action on proposed Ethics Commission Opinion and Advice Regulations.
Senior Policy Analyst Ford introduced the item and stated this was the third time it came before the Commission. He stated that he has reviewed questions that arose from the prior meeting and is prepared to address those questions.
He explained that the Charter states that the Commission may provide opinions and staff may provide informal advice to people seeking to understand their duties under the law, characterizing this posture as necessary under the Charter. He stated that the only difference between an Opinion and Advice is between whom the person is asking: if they ask the Commission they are seeking an opinion, if they ask staff they are seeking advice. He stated it does not matter by what medium they ask the question. Finally, he stated that if a person is not asking about their own duties under the law, they are posing what Ford called a “general inquiry.”
Chair Chiu sought clarification about whether an individual would have to describe all the things listed in the regulations to learn, for example, when a Form 460 disclosure report is due. Ford stated no, that would be a general inquiry which staff endeavors to answer as many as staff practically can, and which these regulations do not govern. He stated that the goal of these regulations is not to exclude people from posing general inquiries, and that staff would continue to answer general inquiries because it promotes the Commission’s mission.
Ford noted that the Charter gives no guidance, and neither do the Code or regulations, on how Staff responds to requests for opinions and advice. He characterized the process as purely ad hoc and stated that standardizing the process would ensure that it does not change when staff changes. He stated that the vast majority of people who seek informal advice already provide their name, the question, the facts, their title or office (which affects the analysis), and their email and phone number so staff can get back to them. He noted that staff could change “email and number” to “email or number,” only to ensure that staff can get back in touch.
Chair Chiu invited questions from the Commission.
Commissioner Lee asked about the response timeframe, identifying a difference between that applying to opinions and that applying to advice. She asked why the difference exists. Ford stated that in the majority of instances we get back to requestors ahead of the deadline but noted that the Commission has to involve the City Attorney’s Office to ensure that we are giving consistent advice. He also noted that staff must sometimes contact other departments within the City, or the Fair Political Practices Commission at the state level, for which such coordination may take considerable time and effort. Commissioner Lee stated that for public confidence and given the caveat that staff can extend for good cause, staff might change the deadline in Regulation 699-12(b)-2(B) from 30 days to 15 days, on the theory that 30 days is a lifetime to a candidate. Ford stated that was a reasonable amendment.
Commissioner Renne asked what Ford thought of Bassan’s statement earlier about how these regulations would forestall a candidate from getting the advice she needs. Ford stated that Bassan had been incorrect, that people already routinely provide what the regulations require.
Commissioner Renne moved to approve and adopt the proposed regulations and Commissioner Lee seconded the motion.
Vice-Chair Kopp asked Ford what he thinks of Pillsbury Winthrop attorney Anita Mayo’s recommendations. Ford stated that the current version should already account for her first recommendation because they had come to an understanding on that issue.
Chair Chiu stated that she needed to leave as it was now 3:45 pm. She handed the gavel to Vice-Chair Kopp, who oversaw the remainder of the meeting in his capacity as Acting Chair.
Acting Chair Kopp then asked Ford’s opinion on why the concurrence of the City Attorney or District Attorney should affect an opinion that the Commission rescinds. Commissioner Ambrose stated she believed Staff had adopted Mayo’s request regarding the effect of an opinion in which the City Attorney and District Attorney do not concur, such that the Commission’s Executive Director would be precluded from making a finding of probable cause. She asked how that would arise in practice, such that a candidate might be vulnerable to legal action even if immune to administrative action. She asked whether the Ethics Commission would seek to protect that person from legal action. She proposed reducing the three-day deadline for notifying the requestor that the opinion had not been concurred in, and that the “City family” should work with alacrity to resolve the disagreement.
Ford stated that a timeline exists so that the Commission will have adequate time to confer with the City Attorney and District Attorney before providing the Opinion to the requestor, such that a disagreement hopefully will not arise because it will have been worked out in advance. He continued that if a disagreement did arise, it would be because the Commission affirmatively disagreed with what either the City Attorney or District Attorney had determined, the commission could pass a regulation clarifying the ambiguity that resulted in the disagreement, or that it could seek to amend the ordinance. Commissioner Ambrose stated that her preference was to make the regulations explicit that the Commission must share draft opinions (instead of only adopted opinions) with the City Attorney and District Attorney to try to prevent unexpected disagreements. Ford proposed amending Regulation 699-12(a)-2(C) providing for that process.
Acting Chair Kopp sought clarification on whether the City Attorney’s or District Attorney’s view would be binding on the Commission. Ford stated no and further stated that we should be able to accomplish that process within the proposed 45-day deadline.
Acting Chair Kopp asked Ford whether he agreed that the Commission’s decision to rescind an opinion should not depend on the City Attorney’s and District Attorney’s concurrence. Ford stated he was not sure what Mayo meant.
Acting Chair Kopp asked whether staff would respond to hypotheticals. Ford stated yes, but only in response to a general inquiry and not as informal advice.
Vice Chair Kopp asked about Mayo’s reference on page three to a timeline based on a specific number of days after receipt of the request instead of a specific time after a determination and asked if there were merit to that statement. Ford stated yes and further stated that it was a reasonable request that was easily changed in the draft.
Acting Chair Kopp then asked Ford’s opinion about whether conformity to informal advice should be a complete defense to an administrative action. Ford stated he disagreed with the request to make advice sufficient for immunity. He stated advice does not have the same effect, and should not have the same effect, because the processes are so distinct. He noted that informal advice could have nearly the effect of immunity, but it would require, for example, confirming how well the question had been conveyed.
Acting Chair Kopp asked whether Mayo’s request that informal written advice may be used as guidance for others to follow in similar circumstances should be made explicit. Ford stated that he thinks it is already obvious that this would be true but was willing to make it explicit if necessary.
Acting Chair Kopp asked whether the regulations should include a definition of who may request “informal assistance.” Ford stated he would advise against creating a whole set of rules for staff to answer what he calls “general inquiries” and what Mayo calls “informal assistance.” Acting Chair Kopp stated he would accept Ford’s advice.
Acting Chair Kopp called for public comment.
Lou Ann Bassan stated that she contests Ford’s representation that none of the five items would be required to receive informal advice. She characterized this requirement as red tape in comparison to the advice that she has already enjoyed from Commission staff.
Acting Chair Kopp asked how Bassan would propose to change the requirement for “material facts.” Bassan stated she thinks that if a request does not include enough facts then staff would likely indicate so.
Charley Marsteller stated that the regulations are not finished, stating that they seem cumbersome. He advised that we have simple informal advice. He requested an additional interested persons meeting, which in his view Commissioner Ambrose, Anita Mayo, and others might attend. He asked how much of this proposal is old versus new. Ford stated that all of it is new because no such regulations exist yet.
Anita Mayo read into the record her prepared remarks. She stated that she wished to retain the ability to request informal advice on behalf of an anonymous client, the receipt of which she stated encouraged compliance. She urged the Commission to adopt an approach identical to that of the Fair Political Practices Commission. Mayo also stated that conformity with informal advice should constitute evidence of good faith in legal proceedings outside the Commission’s administrative process.
Acting Chair Kopp asked Ford’s opinion on changing the deadline to provide an opinion within 14 days and Ford said yes, that Deputy City Attorney Shen had already drafted language to implement that. Ford further stated that Ms. Mayo had been engaged throughout this process and that he and Shen had sought to address her input and would propose additional amendments today.
Mayo stated that she does not have to identify her clients before the Fair Political Practices Commission or Oakland Ethics when she obtains advice from those agencies. Acting Chair Kopp asked the rationale for not disclosing the identity of the client. Mayo stated that attorneys do not want to identify their clients and stated that a client’s intended conduct is privileged. Acting Chair Kopp stated that he did not comprehend the reason for Mayo’s request on this item.
At Acting Chair Kopp’s request, Deputy City Attorney Shen then identified proposed amendments to the regulations page by page, arising from conversation with Mayo and during the meeting, and staff and the Commission recorded those amendments.
Acting Chair Kopp invited public comment on the proposed, amended regulations.
Commissioner Ambrose stated that the Commission might include two additional amendments, one to change the requirements for requesting informal advice such that staff can get back to the requestor by “email or address or telephone number” instead of “and.” She further sought to change that after the Commission adopts an opinion, the regulations would provide that the Executive Director would send it to the District Attorney or City Attorney within three days, without need of extension.
Deputy City Attorney Shen then added an additional proposed amendment, in light of Mayo’s observation that the concurrence of the City Attorney or District Attorney does not affect the Commission’s decision to rescind an opinion.
Acting Chair Kopp asked why the regulations require that a requestor put their question in writing to be entitled to an answer in writing. Ford stated that it enables the Commission to see what the original question was.
Lou Ann Bassan further characterized the requirements in Regulation 699-12(b)-1 as needless red tape and an opportunity for the Commission to nitpick candidates.
Anita Mayo sought clarification, in light of a decision not to include general inquiries in the regulations, on whether staff would continue to answer questions regarding interpretations of law or hypotheticals. Ford said yes and stated that it would not be considered “informal advice” but that it would be considered a “general inquiry” instead, and that staff would endeavor to answer all those questions.
Hearing no more public comment, Acting Chair Kopp asked if there were a motion.
Commissioner Renne withdrew his prior motion to adopt the un-amended regulations and made a new motion to adopt the amended regulations; Commissioner Lee seconded. The Motion passed unanimously.
Motion: 181019-03 (Renne/Lee): Moved, seconded and passed 4-0 (Chair Chiu absent) that the Commission adopt the Opinion and Advice Regulations attached to Agenda Item 5.
6. Discussion of monthly Staff Policy Report.
Acting Chair Kopp interrupted Ford’s presentation to inquire whether all commissioners had read the monthly policy report. They stated they had. No Commissioner had questions.
Acting Chair Kopp called for public comment, and none was received.
No action was taken as the item was presented for informational purposes only.
7. Discussion and possible action on Policy Prioritization Plan.
Ford introduced the policy prioritization plan and reminded Commissioners this was their quarterly opportunity to realign policy priorities if they wished to. He stated that because he is the only member of his division he advised Commissioners to assign him only two projects at this time so as not to spread thin his resources. Ford further stated that if those projects included regulations and ordinances, that would consume a lot of staff resources. He requested that the two proposed policy projects specifically include the Pubic Financing revision and the Campaign Finance Reform Ordinance regulations.
Commissioner Renne asked Ford’s opinion on contribution limits to independent expenditure committees. Ford stated his resources are limited and that he would have to diminish the amount of time he could spend on the public financing review and the Campaign Finance Reform Ordinance regulations. Commissioner Renne stated that he had already provided to staff draft legislation, and further stated that certain organizations were prepared to lend assistance. Ford and Commissioner Renne further discussed the process.
Acting Chair Kopp stated that he was prepared to move to prioritize Commissioner Renne’s proposal to limit contributions to independent expenditure committees. Pelham sought clarification, and Acting Chair Kopp clarified that it was to substitute Commissioner Renne’s proposal for the Campaign Finance Reform Ordinance regulations. Acting Chair Kopp so moved, and Commissioner Renne seconded.
The Commission received public comment.
Charley Marstellar stated that the concepts are simple, but the constitutionality is in question. He stated that it could be quickly accomplished through the ballot initiative process.
Anita Mayo stated she was confused why the Commission might wish to propose legislation that has been declared unconstitutional. Acting Chair Kopp responded that he hoped that if anything were adopted it would not be unconstitutional.
Deputy City Attorney Shen stated that he agreed with Ford that updating the Campaign Finance Reform Ordinance regulations is critically important because they have been out of date for many years. He further stated that he would commit to speaking with Commissioner Renne and any other groups that Commissioner Renne has brought into the effort about the legal issues entailed in this proposal, such that the policy prioritization plan need not be changed at this time.
Commissioner Ambrose stated that she was concerned that the Campaign Finance Reform Ordinance regulations are out of date because of the new law that went into effect in January. She further stated she understands the constitutional claim regarding limitations to independent expenditure committees and wished to discuss the strategy and position of the lawyers who may have drafted Commissioner Renne’s proposal. She further stated she wished to support the staff’s priorities.
Acting Chair Kopp then stated that the Commissioners must exercise their individual judgment to assign policy priorities. He further stated that because this has been Commissioner Renne’s interest, and because he shares Commissioner Renne’s interest, including because he hears from tens of San Franciscans about this issue, he would vote to prioritize Commissioner Renne’s proposal.
Commissioner Lee asked whether it was possible to hold an interested persons meeting before the November meeting regarding Commissioner Renne’s proposal. Pelham stated it would be difficult to hold an effective interested persons meeting before the November 16 meeting. She advised that staff are ready to implement the previously prioritized projects, and that it would be difficult to deliver valuable insights on this matter by November 16, particularly in light of the number of other projects to which staff must devote resources and the fact that a number of senior staff will be absent in early December at the annual Council on Governmental Ethics Laws conference.
Commissioner Lee then inquired whether outside groups or interested persons might participate in organizing those meetings without staff’s input. Pelham responded that the Commission could theoretically hold a meeting, but staff would still have to prepare the questions and legal issues to make the meeting purposeful and fruitful. Ford added that to hold an interested persons meeting requires that the Ethics Commission organize it, and that the main issue is whether staff has the resources to absorb the input of such a process. Commissioner Lee stated that it was necessary to hold a substantive interested persons meeting that results in critical information to move forward.
Acting Chair Kopp instructed Pelham to call the roll.
Motion 181019-04 (Kopp/Renne): Moved, seconded and failed (2-2) to amend the Policy Prioritization Plan (Commissioners Ambrose and Lee – No, Commissioners Renne and Kopp – Aye)
Because the motion required three votes to pass, no action was taken on the item.
Commissioner Ambrose stated that she needs a better understanding of the very complicated legal issues and strategy involved in this effort. Commissioner Renne stated he had previously provided a legal memorandum to staff on this issue, including jurisdictions where it had passed, previously and stated he would distribute to commissioners at his next opportunity. He further stated that two former city attorneys had been involved with this effort.
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.
Acting Chair Kopp asked whether Commissioners had read the Enforcement Report. All confirmed they had. Acting Chair Kopp stated that the Commission move to Item 9.
Hearing no questions or comments by Commissioners, Acting Chair Kopp 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.
Pelham stated that temporary staff member Connie Jozami, who came from the Elections Department, had started with staff. She stated that hiring is progressing, and all application windows have closed. She reported that Commission staff have moved back into the Commission office at 25 Van Ness, Suite 220 after the renovation was nearly complete.
Hearing no questions from the Commissioners, the Commission received public comment.
Charley Marsteller expressed thanks to Director Pelham for her hard work in filling staff vacancies. He likewise extended his gratitude to the Mayor and to the Board of Supervisors for funding those positions.
Commissioner Lee then asked when the open policy position would be filled. Pelham said that all of the open positions would be filled sometime in January.
No action was taken as the item was presented for informational purposes only.
10. Discussion and possible action regarding status of complaints received or initiated by the Ethics Commission.
Acting Chair Kopp asked whether any Commissioner wanted to enter closed session to discuss enforcement matters as permitted by law. No Commissioner wanted to enter closed session, and the Commission took no action on this item.
The Commission invited public comment, and none was received.
11. Discussion and possible action on items for future meetings.
Executive Director Pelham noted that Chair Chiu desired that the Commission consider changing the date of the Commission’s regularly scheduled December meeting, which is on Friday, December 21st at 2pm. She identified Monday, December 3rd as one option. Pelham said that she will communicate with the Commissioners individually to confirm availability.
Acting Chair Kopp asked about the writ of mandamus that Ms. Bassan had filed. Deputy City Attorney Shen stated that Ms. Bassan had filed a writ that would require staff to review Ms. Bassan’s qualifying request for participation in the public financing system. Deputy City attorney further stated that Judge Kahn had approved the writ. Acting Chair Kopp asked why the City Attorney’s office had not asked the Commission whether the Commission wants to appeal the ruling. Deputy City Attorney Shen stated that his colleague Deputy City Attorney Joshua White had been in near constant contact with the Commission throughout the process and stated that if the Commission wanted briefing on the matter his office could provide one. Acting Chair Kopp formally requested a written summary of the petition and what occurred after the petition was filed.
The Commission invited public comment, and none was received.
12. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section
No public comment was received.
13. Adjournment.
Acting Chair Kopp asked if the Commission might move to adjourn. Commissioner Renne moved to adjourn the meeting and Commissioner Ambrose seconded the motion. The motion carried unanimously.
Motion 181019-05 (Renne/Ambrose): Moved, seconded and passed 4-0 to adjourn.
The Commission adjourned at approximately 5:08 pm.