Approved Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, December 20, 2019
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved: January 17, 2020)
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 Fern M. Smith and Lateef Gray in attendance, a quorum was present. Commissioner Yvonne Lee was not in attendance and had an excused absence.
STAFF PRESENTING: Patrick Ford, Senior Policy and Legislative Affairs Counsel; Eric Willett, Senior Investigative Analyst; Jeffrey Zumwalt, Senior Investigative Analyst; and LeeAnn Pelham, Executive Director.
REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Jenica Maldonado, Deputy City Attorney.
- Draft Minutes for the November 15, 2019 regular meeting.
- Proposed Stipulation, Decision, and Order In the Matter of the Coalition for San Francisco Neighborhoods (SFEC Complaint No. 1617-056).
- Proposed Stipulation, Decision, and Order In the Matter of Affordable Housing for All, Yes on D (SFEC Complaint No. 1718-134A).
- Staff report dated December 13, 2019 and proposed regulations related to Article I, Chapter I of the Campaign and Governmental Conduct Code.
- Monthly Staff Policy report dated December 13, 2019.
- Informational report regarding possible elements in revising the Commission’s Fixed Penalty Policy dated December 13, 2019.
- Monthly Staff Enforcement report dated December 13, 2019.
- Staff memo regarding Ethics Commission Regular Meeting Schedule and possible action to provide direction to Staff regarding notice of potential Bylaws Amendment to revise Regular Meeting Schedule for 2020.
- December 2019 Executive Director’s Report.
2. Public comment on matters appearing or not appearing on the agenda.
Ellen Lee Zhou commented on various public policy issues and urged the Commission to exercise its duty to investigate many complaints she has previously commented on and to restore law and order in San Francisco.
No other public comment was provided.
Chair Chiu provided the opportunity for public comment on the Consent Calendar. No public comment was provided.
Vice Chair Ambrose made a motion and Commissioner Smith seconded the motion to approve the Consent Calendar as proposed of the following items:
- Item 3, Draft Minutes for the Commission’s November 15, 2019 regular meeting;
- Item 4, Proposed Stipulation, Decision, and Order In the Matter of the Coalition for San Francisco Neighborhoods (SFEC Complaint No. 1617-056); and
- Item 5, Proposed Stipulation, Decision, and Order In the Matter of Affordable Housing for All, Yes on D (SFEC Complaint No. 1718-134A).
Motion 191220-01 (Ambrose/Smith): Moved, seconded and passed unanimously (4-0) that the Commission adopt the Consent Calendar items as proposed
6. Discussion and Possible Action on Proposed Amendments to Regulations Related to Article I, Chapter I of the Campaign and Governmental Conduct Code.
Senior Policy and Legislative Affairs Counsel Pat Ford introduced the item. He explained the item contains a number of regulation amendments to provide guidance about new laws and support effective compliance relative to two projects: Phase II of the public financing review project to update regulations to match statutory changes that resulted from that project, and changes brought by voters’ approval of Proposition F on the November 2019 City ballot. Ford reviewed the items and noted five amendments that will also be offered and recommended by Staff based on feedback received in public comment following distribution of Commission meeting materials.
Chair Chiu confirmed with City Attorney Maldonado that amendments could be considered and acted upon at this meeting. Maldonado confirmed they could be considered and acted upon.
Ford first summarized the regulation amendments related to the public financing program. Ford then summarized the provisions of Proposition F by reviewing a set of bullet points that are contained in Staff’s report, before describing the regulation amendments, including additional amendments proposed by members of the public. The first two amendments requested by the public were that a cost estimate provision be added to Regulation 1.161-2, that the written attestation in Regulation 1.127-3 expressly include electronic format Commissioner Ambrose requested that an amendment be made to clarify what constitutes a land use matter under Section 1.127. Ford then summarized three additional amendments requested by the public: that regulation 1.114-1 include a reference to separate segregated funds, to align the term “discretionary review hearing” with how the term is used in section 1.127, and to add clarifying language regarding disclaimer formatting in Regulation 1.161-3.
While considering the regulation amendments, the Commission discussed various aspects of implementing Proposition F, including how regulated persons will determine whether contributions are prohibited by section 1.127, what efforts Staff had made to seek information from the Planning department regarding section 1.127, the fact that the Planning Code does not contain definitions of the terms used in section 1.127, existing City systems for tracking land use matters, how information regarding the separate costs of independent expenditures will be entered on the Form 496,
Chair Chiu called for public comment.
Anita Mayo recommended that Regulation 1.127-3 be amended to reference the exclusion of a person’s primary residence.
Following additional brief discussion about the process for voting on the regulations and amendments as proposed and read into the record, Commissioner Chiu moved the adoption of Attachment 1 as modified by the amendments 1 through 6 as discussed and read into the record, and the motion was seconded by Commissioner Ambrose.
Motion 191220-02 (Chiu/Ambrose): Moved, seconded and unanimously adopted (4-0) that the Commission adopt Attachment 1 as modified by amendments 1 through 6 as discussed and read into the record.
7. Discussion of Staff Policy Report.
Senior Policy and Legislative Affairs Counsel Pat Ford introduced the item and highlighted developments on several ongoing projects.
Ford noted that updates were being made to the online filing system to implement changes made to accommodate new public financing formulas. He explained that some interim filing processes will be put in place for the November 2020 election to adjust to the new $150 cap on contributions eligible for matching due to the fact that Committees can begin submitting public filing requests as early as February 2020. Ensuring the filing system is adapted fully to all the program changes will require additional time to implement.
He noted a draft regulation is planned for the Commission’s January 2020 agenda to institute an electronic filing requirement for all designated filers for the filing of their Form 700 Statements of Economic Interests effective January 2021.
Ford added that he was a panelist at the recent COGEL conference on a session focused on relationships that fall outside of the traditional scope of contribution and gift rules. He added that his focus was on the payment disclosure laws that took effect in San Francisco this year and the new laws prohibiting officials from using their official status to raise funds for organizations with which they are affiliated.
Chair Chiu asked that Staff report back on disclosures received to date from behested payments reporting requirements that were enacted in City law in 2019 to see if there are any identifiable trends.
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 informational report regarding possible elements in revising the Commission’s Fixed Penalty Policy.
Senior Investigative Analyst Eric Willett provided an update on the process underway to review the Commission’s fixed penalty policy and establish the Streamlined Administrative Resolution Program. He noted Staff provided an overview of the process at the Commission’s September 2019 meeting. Following Staff’s review of practices, including a review of those used in other jurisdictions, Staff hosted two interested persons meetings in November to receive public input on possible approaches.
Based on its review of other jurisdictions, internal consultation with staff and feedback from interested persons, enforcement staff developed an overview of preliminary considerations. These included general requirements that the Director of Enforcement would reserve the right to include or exclude any respondent from participating in the program; that the Respondent must agree to acknowledge responsibility for the violation and adhere to the payment; and must agree to abide by time frames established in the program for resolving the matter. General factors that would exclude a matter from the program would include evidence of intent to conceal, repeat offenders, and conduct that resulted in more than minimum public harm.
Willett described the types of violations the Staff memo identified as ones that could be resolved through the program, including from the campaign finance, lobbyist, and conflict of interest code provisions of City law.
Commissioner Gray asked how the interested persons who provided input are determined. Willett explained Staff reached out via the Commission’s mailing lists, which included members of the regulated community and members of watchdog groups. He noted that Staff anticipates further engagement following the holidays after more concrete, specific provisions are developed in the coming weeks.
Commissioner Ambrose encouraged Staff to memorialize action so that complaints handled through a fixed penalty policy could be identified and the public could see what action had been taken. She noted that some sunshine on actions taken under the program will promote consistency, transparency, and public confidence in the disposition of matters handled through the program.
Willett concluded by noting the Staff’s desire to hold additional Interested Persons meeting in early 2020 to solicit further public feedback, including on proposed penalty structures for the revised policy. A proposed policy will then be drafted and brought to the Commission for its consideration and action.
Chair Chiu called for public comment.
Anita Mayo stated her support for expanding the commission streamline enforcement program through the fixed penalty provisions. She urged Staff to look at violations that are readily apparent with little or no investigation, along with cooperation or self-reporting by a respondent, when considering factors and criteria for participation.
No other public comment was provided and no action was taken on the item as it was for informational purposes only.
9. Staff Enforcement Report.
Chair Chiu noted the Agenda inadvertently included reference to a briefing on Whistleblower protection that had occurred last month and clarified that there was no report on this item this month.
Senior Investigative Analyst Jeffrey Zumwalt presented the Enforcement Report on behalf of the Enforcement Division. He noted that the Director of the City’s Bureau of Delinquent Revenue (BDR) Jeff Smejkal was in attendance to provide an update on efforts by that office to collect late fees and penalties assessed by the Commission and to answer any questions about the collections process. Among the topics addressed by Director Smejkal included how BDR decides how many resources to invest in locating a debtor; whether it weighs the costs and benefits to the City of seeking payment; what role, if any, the Commission would play in advising BDR as a client; and how BDR decides when to reassign accounts to a collection agency.
Vice Chair Ambrose asked whether BDR meets periodically with Ethics Staff to review referred matters. Smejkal confirmed that BDR provides a monthly report to Commission Staff.
Director Smejkal noted that a client can always take a matter back after it has been referred to BDR to renegotiate or for other reasons, such as the need to fix an error in the amount shown due, or to address an element in due process.
Commissioner Smith asked about whether there are objective criteria used in their determinations of whether to pursue or not pursue a penalty. Smejkal responded that BDR typically uses a full collection effort for accounts of $1,000 or greater, including assignment to a collection agency after a specified period of time.
Vice Chair Ambrose said she would like the Staff to follow up about what cases the Commission should continue to pursue so that the Commission can give further feedback to BDR about whether or not that office should continue to carry some of the existing matters on their to-do list.
Chair Chiu stated her concern that a matter referred six and a half years ago is one in which BDR is still trying to locate people and track down assets, so she would appreciate a discussion about what can be done differently to get to the outcome everyone desires to achieve through this process.
Chair Chiu called for public comment and no comment was received. No action was taken on the item as it was provided for informational purposes only.
10. Discussion of existing Ethics Commission Regular Meeting Schedule and possible action to provide direction to Staff regarding notice of potential Bylaws Amendment to revise Regular Meeting Schedule for 2020.
Executive Director LeeAnn Pelham presented the item and highlighted options noted in the Staff memo to 1) retain the Commission’s current meeting schedule; 2) change meetings to the first Friday of each month beginning at 9:30am, or 3) change meetings to the second Friday of each month beginning at 9:30am.
In response to a question from Commissioner Smith about the history of setting meetings to begin on a Friday afternoon, Chair Chiu noted the change was prompted by the length of meetings when the Commission was regularly meeting on Monday evenings beginning at 5pm, and then constrained by limited room availability in which televised meetings could occur.
Commissioners expressed consensus that they would prefer the second Friday beginning at 9:30am. Chair Chiu asked that the item be placed on the Commission’s January meeting agenda. Director Pelham noted that Staff would issue a public notice of a proposed Bylaws change to that effect in time to allow the Commission to take action at its next meeting on January 17, 2020.
No public comment was received.
11. Discussion of Executive Director’s Report.
Executive Director LeeAnn Pelham noted that a motion by Supervisor Yee to direct the Budget and Legislative Analyst to conduct a performance audit of the Ethics Commission as a priority of part of its work this fiscal year was likely to be taken up in early January. She explained that she had reached out directly to Mr. Rose and his team to offer our assistance should the motion be adopted.
She noted the recent annual Council on Governmental Ethics Laws (COGEL) conference had over 500 attendees and that the Commission was pleased to have active presence in many of the sessions. Pelham added that in terms of hiring, the Investigative Analyst position was posted and applications were continuing to be accepted through December 31
Pelham conveyed the Staff’s appreciation for the Commission and for the input of the public over the past year and expressed the Staff’s desire to continue to work collaboratively in the coming year to ensure that in San Francisco our public service is worthy of the public trust.
Chair Chiu extended thanks to the Commission Staff and leadership for the work they do each day.
Following a brief update on the upcoming budget submission process, Pelham noted the Fiscal Year 2021 departmental budgets are due February 21. She noted the Mayor has asked for cuts of 3.5% in FY21 and another 3.5% in FY22, deeper than those requested in recent years, and stated an overview of the Commission’s budget request will be placed on the January 2020 Commission meeting agenda as the Staff continues to work toward the February 21 submission deadline.
No public comment was received. No action was taken on the item as it was provided for informational purposes only.
12. 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 for future meetings were discussed and no action was taken.
13. 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.
Chair Chiu moved to adjourn the meeting and Commissioner Ambrose seconded the motion. The motion was adopted unanimously 4-0.
Motion 191220-03 (Chiu/Ambrose): Moved, seconded and unanimously adopted that the Commission adjourn the meeting.
The Commission adjourned at 4:23 p.m.