Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, November 15, 2019
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved: December 20, 2019)
Note: SFGovTV provides a continuous archive of selected Commission, council and board meetings that allows viewers to watch those meetings online in full at the viewer’s convenience. Video and audio archives of Ethics Commission meetings may be accessed here.
1. Call to order and roll call.
Chair Daina Chiu called the meeting to order at 2:01 pm.
COMMISSION MEMBERS PRESENT: With Chair Daina Chiu, Vice-Chair Noreen Ambrose, and Commission Members Yvonne Lee and Fern M. Smith in attendance, a quorum was present. Commissioner Lateef Gray was not in attendance and had an excused absence.
STAFF PRESENTING: Thomas McClain, Senior Investigative Analyst; Patrick Ford, Senior Policy and Legislative Affairs Counsel; Jeffrey Pierce, Director of Enforcement and Legal Affairs; and LeeAnn Pelham, Executive Director.
REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Andrew Shen, Deputy City Attorney.
- Draft Minutes for the October 18, 2019 regular meeting.
- Staff cover memo dated November 8, 2019 and documentsrelated to Show Cause Hearing In the Matter ofRay Hartz v. President Norman Yee, Sunshine Ordinance Task Force File No. 19042.
- Staff memo on Commission’s jurisdiction over whistleblower retaliation protectiondated November 8, 2019.
- Monthly Staff Policy Reportdated November 8, 2019.
- Monthly Staff Enforcement Report dated November 8, 2019 and attachments.
- Executive Director’s Reportdated November 8, 2019.
2. Public comment on matters appearing or not appearing on the agenda.
Chair Chiu provided the opportunity for public comment.
Ellen Lee Zhou stated she has appeared a number of times before the Commission to report possible corruption and election fraud. She stated her concern about various policy issues in the City and asked the Commission to do its job.
David Lee identified himself as a candidate for office in 2016 and stated that he was appearing before the Commission to reiterate his request for a waiver on late fees assessed against his 2016 committee.
No other public comment was provided.
3. Consent Calendar
Chair Chiu provided the opportunity for public comment on the Consent Calendar. No public comment was provided.
Vice Chair Ambrose made a motion and Chair Chiu seconded the motion to approve the Consent Calendar, Item 3. Motion passed unanimously 4-0 to approve the Consent Calendar as proposed of the following item:
- Item 3, Draft Minutes for the Commission’s October 18, 2019 regular meeting.
Motion 191115-01 (Ambrose/Chiu): Moved, seconded and passed unanimously (4-0) that the Commission adopt the Consent Calendar.
4. Show Cause Hearing In the Matter of Ray Hartz v. President Norman Yee, Sunshine Ordinance Task Force File No. 19042.
Chair Chiu explained that in response to a request by Mr. Hartz that the matter be continued due to a family emergency, the Show Cause hearing In the Matter of Ray Hartz v. President Norman Yee, Sunshine Ordinance Task Force File No. 19042 was continued to the Commission’s next regular meeting.
Chair Chiu moved and Vice-Chair Ambrose seconded a motion to continue Item 4 until the next regularly scheduled Commission meeting.
Motion 191115-02 (Chiu/Ambrose): Moved, seconded and passed unanimously (4-0) that Item 4 be continued until the next regularly scheduled Commission meeting.
5. Informational presentation on the Commission’s jurisdiction over whistleblower retaliation protection.
Senior Investigative Analyst Thomas McClain provided an overview of the City’s Whistleblower Protection Ordinance, the elements that constitute a complaint of retaliation, and the activities that are protected under the Ordinance.
Regarding the process, McClain stated that in any local, state, or federal jurisdiction, a claim of employment retaliation consists of three elements. One is that the complainant engaged in protected activity. The second is that the employer takes an adverse employment action against the complainant. The third is to establish a causal connection between the first and second elements.
McClain explained that in San Francisco, what qualifies someone as a whistleblower is filing a particular type of complaint with a particular City agency, alleging certain forms of misconduct relating to the general functioning of City government. Regarding adverse employment action, McClain described the legal test as one that might dissuade a reasonable employee from blowing the whistle or participating in an investigation, or one that might materially affect that employee’s employment conditions or advancement opportunities. Finally, McClain noted that the causation standard in San Francisco is that the protected activity was a “substantial motivating factor,” noting that the standard attempts to balance the need of officers and employees to report misconduct with the need of the city to render necessary and business-justified employment decisions.
Chair Chiu sought clarification regarding the second element and asked to confirm that the example of a complaint of sexual harassment would not grant jurisdiction to the Ethics Commission. McClain confirmed that was correct. McClain noted that if the Ethics Commission lacks jurisdiction, however, the complainant may not be without remedy if another agency has jurisdiction over the matter. He noted as an example that the Equal Employment Opportunity (EEO) division of the City’s Department of Human Resources (DHR) has jurisdiction over claims of retaliation based on underlying complaints that allege discrimination.
Chair Chiu asked what happens if a complainant were to bring their complaint to the wrong office and the statute of limitations had expired in the interim. McClain stated he could not speak to whether other agencies might toll the statute of limitations under certain circumstances. Enforcement Director Jeffrey Pierce added that it is typical for retaliation complaints to be received by the Commission over the phone, which allows for a relatively quick verification for the complainant of whether the Commission has jurisdiction.
Chair Chiu asked what happens when both the Ethics Commission and another agency have simultaneous jurisdiction over a retaliation claim. Pierce responded that he has not seen that during his tenure but noted that Ethics has an established relationship with DHR’s EEO division and that he would anticipate both offices to coordinate under those circumstances.
Turning to the third element, establishing a causal connection, McClain noted that what motivated the respondent’s action must be established. This process can include reviewing multiple employees’ performance reviews, reviewing correspondence, and primarily witness interviews. McClain added that evaluating the substantial motivating factor behind an adverse employment action is often the most resource intensive piece in investigating allegations of whistleblower retaliation. It requires identifying the sequence of events, such as when an investigation or employment action was initiated, as well as how long after one event may have occurred after the other.
Commissioner Lee asked how investigations involving employee reassignments are handled, and what kind of due diligence occurs when such allegations are made. McClain responded that investigators assess the totality of circumstances to assess whether a specific adverse employment action may have constituted a retaliatory act.
Commissioner Smith noted that there are several subjective considerations in the analysis that are required and asked about what appellate recourse exists. Pierce responded that while a complainant does have recourse to file a writ of mandamus against the Ethics Commission to overturn a Commission determination, he was not sure under what circumstances a court might second guess the Commission by overturning a Commission determination when Staff have fulfilled their duty to assess the allegations and make determinations based on the facts and the law in that instance. He noted that instead of suing to overturn the Ethics Commission, complainants retain the right to sue their employer directly, which would be a more efficient process for the complainant. He further stated that a complainant could also seek recourse through filing a grievance against their employer if they believe a protected right was impacted.
Vice-Chair Ambrose asked how the process would address preservation of a complainant’s anonymity were the Commission to forward with a finding of probable cause. Pierce noted that while the probable cause determination is a confidential determination by the Executive Director, the Commission would be required to make its determination regarding a finding of a violation in a public hearing as is the case with other administrative enforcement matters before the Commission. He added that the complainant is informed of this process. In response to a follow up question from Vice-Chair Ambrose, Pierce added that the monetary penalty that could be imposed for a finding of retaliation would be up to $5,000, and the Commission could recommend that the department restore the complainant to the status quo or to the position occupied prior to the adverse action subject to the city’s civil service rules. He noted the Commission itself does not have authority under the law to undue the action.
In response to a question by Commissioner Lee about how employees know about the protections afforded whistleblowers under City law, Pierce responded that the Controller’s Office and DHR are working in collaboration with Commission Staff to develop training and materials that alerts employees to the City’s whisteblower program and the protections the law affords those who are whistleblowers. He further noted that more recent amendments to the law require training of supervisors on assisting retaliation complainants and exposes supervisors to potential liability if they fail to follow those obligations.
Chair Chiu called for public comment.
Derek Kerr identified himself as a whistleblower. He stated that the Ethics Commission has not sustained a single claim of retaliation since it began reviewing them in 1995 yet over 100 claims of retaliation have been reviewed. Kerr stated that savvy whistleblowers bypass the Ethics Commission and find vindication in the courts. Kerr stated that Ethics investigations are ineffective because they don’t use subpoenas or depositions and that investigators empathize with employers. He added that staff consult with the City Attorney’s Office, which exists to limit liability. Finally, he stated that if Staff did find retaliation they would themselves face retaliation, and be treated as if they, too, were whistleblowers. He asked the Commission to look into why Ethics has never substantiated a claim of retaliation and that an audit might uncover such a determination.
Ellen Zhou stated that she had brought whistleblowers to the Ethics Commission in 2017 but that information had been lost. Zhou stated that the Ethics Commission colluded with other departments to discover and then cover up that information.
Vice-Chair Ambrose recommended that Staff review prior Staff determinations to evaluate whether something not upheld administratively at the Commission was later upheld in court, so that the Commission might learn from that.
No other public comment was received. No action was taken as the item was provided for informational purposes only.
6. Discussion of Staff Policy Report.
Senior Policy and Legislative Affairs Counsel Pat Ford introduced the item and highlighted developments on several ongoing projects, including the electronic filing of Form 700 for all designated citywide filers. Ford reported that ETH staff met with five bargaining units and had a very constructive dialogue about what would be helpful to filer, including outreach and training to support filers’ understanding of and compliance with the law. He relayed feedback received from bargaining units that eFiling would benefit both the Commission and the filers, and that it appears that meet and confer has now been successfully completed. Ford stated proposed regulations were planned for the Commission’s January meeting.
Ford noted that Staff also discussed the Biennial Code Review with the bargaining units. He explained that the Biennial Code Review process is a separate one in which the City’s Conflict of Interests Code is updated every two years under state law to reflect the current position that are designated to file financial disclosure statements. Ford noted that he will be communicating soon with the City Attorney and Clerk of the Board of Supervisors to facilitate the 2020 review process.
Ford stated that he is working to bring a narrow set of regulations for the Commission’s consideration in December that would implement the second set of statutory revisions to the public financing program that take effect January 1, 2020. He noted that the goal is to synchronize the language of the regulations with the language of the new code. Chair Chiu asked for clarification whether he hoped the Commission would adopt those at the December meeting. Ford stated he would publicly notice those proposed regulations so that the Commission could approve them but that the Commission could likewise take as much time as it needed, including to provide feedback for revisions. Ford added that there is a 60-day period for regulations to be considered at the Board once the Commission forwards them following their adoption by the Commission.
Ford stated that separately he would bring regulations to the Commission to implement Proposition F, which was approved on the November ballot. Vice-Chair Ambrose stated that it would be useful if Ford would brief the public on the provisions of Prop F, noting that the changes are fairly significant and the public should be apprised of them.
Ford noted that he expects the policy prioritization plan to be scheduled again in January for the commission’s consideration.
Chair Chiu thanked Ford for the update and called for public comment.
No public comment was received and no action was taken on the item as it was provided for informational purposes only.
7. Discussion of Staff Enforcement Report.
Director of Enforcement & Legal Affairs Jeff Pierce presented the Enforcement Report. He reported that the Director of the Bureau of Delinquent Revenue had planned to attend the meeting but was unable to attend and will be invited back. Chair Chiu noted that the Jackson BDR referral matter has remained unchanged since she joined the commission. She would like BDR to address that when the BDR Director is able to attend.
Pierce noted that Staff is implementing the enforcement enhancement processes as discussed at recent Commission meetings. He added that two Interested Persons meetings were scheduled for the coming week to solicit public comment on the scope of matters that should be included in a revised fixed fine policy. He added the staff will look to future meetings elsewhere than the Commission’s office building and is working to bring back feedback to share with the Commission at the December meeting.
Chair Chiu called for public comment.
No public comment was received and no action was taken on the item as it was provided for informational purposes only.
8.Discussion of Executive Director’s Report.
Executive Director LeeAnn Pelham presented the item. She noted that Staff all annual goal setting discussion with staff were concluded in the past month, with individual work objectives identified for each individual aligned with organization wide priorities.
Among the highlights noted by Pelham were that Commission Staff have started identifying what steps will be necessary to implement Prop F, which San Francisco voters passed in November. She further noted that Staff have met with Planning Department to discuss processes relevant to the implementation of Prop. F. She added that Engagement & Compliance Senior Program Administrator John Kim has been closely focused on the Lobbying Program and has been identifying gaps in our administration of that program so that improvements can continue to be made. Pelham referenced the groundwork being established for a streamlined administrative resolution program and noted the Enforcement Division also will be working to review the administration of the late fee programs.
Pelham noted that all audits from the 2016 election cycle have now been completed and noted that Staff are working to finalize all audits of the 2018 election cycle by the end of fiscal year 2019. She also referenced an attachment to the report that provides status updates on various technology projects underway under the leadership of the Commission’s EDDA division.
Chair Chiu note that she shared Commissioner Lee’s support for engaging more broadly with the community and requested that Staff plan to undertake a “roadshow” to get the message out with the community and help increase awareness of the Commission’s work and resources it makes available to them.
Director Pelham wished outgoing temporary staff member Niike Andino well in his promotion to a full-time position with the Department of Public Health. She introduced and welcomed Ronald Contreraz as the Commission’s new Senior Clerk.
She added that the job opening for an Investigative Analyst in the Enforcement Division was expected to be posted online to accept applications beginning November 18.
Pelham concluded by noting that Board President Yee introduced a motion that identified the Ethics Commission for audit by the Board’s Budget and Legislative Analyst (BLA) division in this fiscal year. She noted she would be reaching out to the BLA to learn how the Commission’s office can assist in that effort.
No public comment was received. No action was taken on the item as it was provided for informational purposes only.
9. Discussion and possible action on items for future meetings.
Chair Chiu provided the opportunity for public comment and no public comment was received. No items were discussed and no action was taken on the item.
10. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
Chair Chiu provided the opportunity for public comment and no public comment was received.
Vice-Chair Ambrose moved to adjourn the meeting and Commissioner Lee seconded the motion. The motion was adopted unanimously 4-0.
Motion 191115-03 (Ambrose/Lee): Moved, seconded and unanimously adopted that the Commission adjourn the meeting.
The Commission adjourned at 3:57 pm.