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Minutes – February 21, 2020

Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, February 21, 2020
Room 416 – City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102
(Approved July 10, 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.

Item 1. Call to order and roll call.

Chair Daina Chiu called the meeting to order at 2:02 pm.

COMMISSION MEMBERS PRESENT: With Chair Daina Chiu and Commission Members Yvonne Lee and Fern Smith in attendance, a quorum was present.

STAFF PRESENTING: Patrick Ford, Senior Policy and Legislative Affairs Counsel; Jeffrey Pierce, Director of Enforcement and Legal Affairs; and LeeAnn Pelham, Executive Director.



Item 2. Public comment on matters appearing or not appearing on the agenda.

In public comment, Ellen Zhou identified herself as a public services worker, union delegate for public employees, and the director of public relations for the San Francisco Chapter of the California Civil Grand Jury. Zhou raised concerns about the 2019 election, including alleged election fraud, the treatment of her billboard, and homelessness.

Ray Hartz identified himself as director of San Francisco Open Government. He stated that the appointed commissioners protect the City officers who appointed them. He expressed concern about the Commission’s treatment of open government laws. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. Just so we have the record straight going forward: Chair, Daina Chiu, protects the Office of the Assessor Recorder. Vice-Chair, Noreen Ambrose, protects the Office of the City Attorney. Commissioner Yvonne Lee protects the Office of the Mayor. Commissioner Fern M Smith protects the Office of the Dist. Attorney. Commissioner Lateef Gray protects the Board of Supervisors. At the last commission meeting we experiences the reality that this commission has never, and will never act to enforce the Sunshine Ordinance! The protection of the rights of the citizens of San Francisco to attend public meetings and participate in those proceedings is the furthest thing from their minds. In fact, at the last meeting someone actually pushed the “panic button” and three armed Sheriff’s deputies appeared at my back! Thus begins the usual pattern of hostile behaviors exhibited when they don’t like what a member of the public has to say.

No other public comment was provided.

Item 3. Consent Calendar

Director Pelham explained that the minutes had not been completed in time for this meeting.

Item 4. Discussion and possible action on Ethics Commission annual budget submission to the Mayor’s Office for Fiscal Year 2021.

Director Pelham stated that the Commission had submitted its budget proposal to the Mayor’s Office just before this meeting, noting that the deadline for submission by all City departments was today. She stated that the budget is available here at the Meeting on the public table and available also online.

She stated that the Mayor had requested that all departments trim their budgets by 3.5% in FY21 and 7% in FY22.

Director Pelham highlighted the allegations against former Public Works Director Mohammed Nuru, and recalled the former Public Health Director Barbara Garcia’s resignation which may have resulted from allegations of a conflict of interest. Director Pelham stated that there are costs to public corruption, not only in terms of public trust but also fiscal costs as the City invests resources to investigate and resolve ethical breaches. She stated that the Ethics Commission’s budget requests additional resources to improve engagement and compliance efforts to better inculcate an ethical culture within the City, which she described as a good investment in comparison to backend costs. She described the request as encompassing four exempt positions who would work on a limited-term basis to improve outreach and training.

Director Pelham stated that the Commission wishes to reconsider the funding structure of the Commission, noting that the Commission’s funding comes from the General Fund and has been subject to reduction.

Director Pelham further stated that the budget request seeks to hire a full-time human resources staffer to advise Commission Staff on budgeting, personnel, hiring, and other HR-related issues.

Director Pelham described what changes the Commission would have to adopt if the budget cuts were implemented against the Commission, including by highlighting those positions that would remain vacant at great cost to the Commission’s ability to fulfill its mandate.

Chair Chiu asked what happens next in the budget process, noting that an aggregated cut of more than half a million dollars would work against the City’s need to restore the public trust. She asked Staff to report back in March on how City Hall reacts to the Commission’s budget submission. Director Pelham acknowledged that the Commission needs more and characterized this budget request as a cautious approach to where we might begin, especially by preventing public corruption before it can take root.

Commissioner Lee observed that each time a new initiative arises that the Commission must implement, it must do so without additional staffing or resources. She stated that while the majority of City officers and employees may wish to comply with ethics laws, it takes only a few bad actors to undermine the public’s confidence in City government. She stated that it is important that those whom the Commission regulates not only file the forms required of them but understand why they must file them and who will review them upon receipt. Commissioner Lee identified her goal that the Commission provide increased outreach to City contractors and grantees. She further stated that the Commission should explore whether the fees the City collects for services within the Commission’s jurisdiction should be assigned, at least in part, to the Commission’s work itself instead of being channeled only to the General Fund.

In public comment, Ray Hartz expressed concern that while the budget item noted the corruption charges against Mohammed Nuru it did not include allegations that Mayor Breed may have engaged in corrupt activities of her own. Hartz recalled Commissioner Kopp’s doubt that political actors in San Francisco are afraid of the Ethics Commission. He expressed his belief that the Commission should not obtain additional funding. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. This agenda item notes “the public announcement of the FBI’s arrest and Charging of San Francisco Public Works Director Mohammed Nuru on federal corruption charges.” Conspicuously absent is any mention of Mayor London Breed’s potential violations in filing her annual SEI’s. One involved her acceptance of a loan from Mr. Nuru, her subordinate, which is a really big no-no! I’m certain the Mayor’s “minions” have been scurrying to clean up any other such “mistakes” before the come to the public’s attention. I think former Commissioner Quentin Kopp said it best: “I don’t think anyone is afraid of the Ethics Commission who is in competitive political life in San Francisco. The lobbyists have acclimated themselves to it over a period of 25 years. And so have the candidates.” So what exactly do the citizens of San Francisco get from the Ethics “minions” at an average salary/benefits package of $164,000 per year?

Item 5. Discussion of monthly Staff Policy Report including presentation on new laws and resources in place for 2020 elections following Public Financing Review Project.

Senior Policy and Legislative Affairs Counsel Pat Ford introduced the monthly policy report. He invited questions from Commissioners on the report and received none.

He then invited principal auditor Robb Hodge to join him in a presentation regarding Staff’s implementation of the recent legislative and regulatory changes to the public financing program. Ford provided a recap of the public financing review project that the Commission had undertaken beginning in June 2018, providing an overview of its goals, methods, and the two phases of the project. Ford then noted that the Audit Division and the Electronic Disclosure and Data Analysis Division had been integral in implementing the changes to the program, noting further that the Engage & Compliance Division also contributed by updating the website, compliance materials, and advice.

Robb Hodge introduced himself as the lead auditor at the Ethics Commission. Hodge highlighted the updates to the Commission’s website and the Commission’s written materials including the supplemental guides for candidates for the Office of Mayor and the Board of Supervisors. He stated that Commission Staff had also developed a visual presentation to augment existing information, which he characterized as an introduction, the primary value of which was to provide information in a different format than what is otherwise available.

Chair Chiu asked if the presentation would be conducted in-person or online. Hodge responded that Staff intend to offer it in-person but that it will also be available online. Chair Chiu noted that a flow chart in the presentation appeared especially helpful in comparison to the density of text otherwise available.

Chair Chiu asked if Staff have received feedback, and Hodge noted that Staff finalized it only within the last week and that it has not yet been made available to candidates or the public.

Commissioner Smith stated her view that any presentation that can help not only candidates but also the public understand how the program operates will be of benefit.

In public comment, Ray Hartz stated his belief that individuals who didn’t follow the old rules will not follow the new rules either. He highlighted findings of the Fair Political Practices Commission against former City librarian Luis Herrera for having received unreported gifts from the Friends of the San Francisco Public Library. He stated his belief that the Ethics Commission has done nothing to improve ethics in San Francisco. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. This agenda item includes another case of “rearranging the deck chairs on the Titanic.” As has recently come to the public’s attention, the annual filing of SEI’s is a bit of a joke! As determined by the Fair Political Practices Commission (FPPC): “In the matter of Luis Herrera, while serving as City Librarian for the San Francisco Public Library, failed to report gifts received from The Friends of the San Francisco Public Library on annual statements of economic interest (form 700) for calendar years 2009, 2010, and 2011.” Mr. Herrera’s original filing included this: “I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.” Before proceeding to Sacramento we brought this matter to the Ethics Commission, which did exactly nothing! As “The best indicator of future behavior is past behavior,” realistically, what can the public expect from this Ethics Commission?

Item 6. Discussion of monthly Staff Enforcement Report.

Enforcement Director Jeff Pierce said this month’s report highlights that the Commission Staff is following the ongoing allegations of corruption regarding Mohammed Nuru, and Staff is also following allegations regarding the Mayor.

Pierce noted the availability of the public integrity hotline that should be used. Pierce said that he is working with Tyler Field of the EDDA team to develop an online complaint submission process to make it easier to submit complaints. Enforcement has reviewed online submission processes in other jurisdictions to implement the best practices. Enforcement is also working with Policy to identify any potential weaknesses in the law regarding gifts, behested payments, statements of incompatible activities and other ethics rules.

Pierce said that in his report he is now listing the original penalty assessed for delinquent revenue cases. He briefly discussed current outstanding penalties.

Pierce reviewed the current statistics regarding the age of preliminary reviews and investigations. He then invited questions from the Commission.

Chair Chiu asked whether the online complaint tool will be live soon. Pierce said that it is in development and that when it goes live there will be a pilot period.

Commissioner Lee asked whether online complaints will be anonymous. Pierce said that online complaints will be like other complaints, in that they can be anonymous, informal, with or without contact information, or formal and sworn. Commissioner Lee suggested that the online complaint page mention whistleblower protection rules so complainants know they are protected.

In public comment, Ray Hartz stated his belief that the Commission need not improve existing law because the Commission enforces existing law only against smaller respondents. He stated his belief that the Commission has not previously enforced incomplete or falsely filed statements of economic interest. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. I want to start out this item with a joke: “…the Enforcement Division is consulting internally with Policy Staff and others regarding any possible legislative or process changes that may be warranted to abate vulnerabilities in the City’s existing ethics laws.” At an annual salary/benefits package of $164,000 per person I would expect something a bit less disingenuous! Author Rebecca Roiphe wrote in her book the Ethics of Willful Ignorance: “Much as been written on the notion of “conscious avoidance,” or “willful ignorance” in criminal law. In brief, the criminal law doctrine dictates that someone who deliberately ignores obvious facts is as culpable as a person who knows those facts but continues despite them” So where, exactly, does that put this Ethics Commission and its staff in relation to those public officials who file false SEI’s? The greatest “vulnerabilities in the City’s ethics laws,” are the members of this commission!

Item 7. Discussion of Executive Director’s Report. 

Director Pelham introduced the item, highlighting the project to transition all statement of economic interest filings to electronic format that would make them searchable City-wide. She noted that Commission Staff, along with Deputy City Attorney Andrew Shen, have been providing training and outreach regarding disclosure requirements and the surrounding rules. Director Pelham further noted that the Commission has fellows working for forty hours on a project with outreach materials. She stated that the BLA Audit is underway and a priority for completion this summer.

Administratively, Director Pelham noted a change in the December meeting date, from Friday December 11 to Monday December 14.

Finally, the Director acknowledged that this was Chair Chiu’s last meeting as chair and thanked her for the leadership and continuity of operations she has provided throughout her tenure as chair. Chair Chiu stated that her service had been a pleasure and a privilege and she extended her thanks to Staff and to Deputy City Attorney Andrew Shen.

In public comment, Ray Hartz stated that electronic filings of statements of economic interest matter little if nothing is done when they are false. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. While the Executive Director makes much of “electronic filing” and “access to form 700 filings through a searchable database,” it is truly, I believe, “Much Ado About Nothing.” In the case of a former City Librarian Luis Herrera, the data was there, and this Ethics Commission chose to remain “willfully blind.” For many years Mr. Herrera was the “driving force” that enabled The Friends of the San Francisco Public Library to run their “scam” on the public! While raising millions of dollars each year to “support the library,” less than 10% of what passes through their hands actually goes for that purpose! After initially lying on his SEI’s, Mr. Herrera subsequently admitted to receiving $5000 a year from “The Friends.” The financial arrangement between the SFPL and “The Friends” is legally questionable at best! Not approved by the BOS, Library Commission, or the City Attorney, why is it allowed to continue?

Item 8. Discussion and possible action on items for future meetings.

Commissioners had no items for future meetings.

In public comment, Ray Hartz said that the Commission and Staff should discuss the reason the Commission exists. He reiterated his belief that the Commission does not enforce the law against those who violate it. He further reiterated his belief that the Commission has done nothing to change ethics in the City and County.

Item 9. Discussion and possible action regarding pending litigation: Yes on Prop. B, et al. v. City and County of San Francisco, U.S. Dist. Ct. N.D. Cal., Case No. 3:20-cv-00630, filed January 28, 2020.

In public comment, Ray Hartz questioned the validity of a closed session. Mr. Hartz produced the following written public comment:

Friday, February 21, 2020. Ray Hartz, Director, San Francisco Open Government. The members of this Ethics Commission, along with your staff, need to have an open, public discussion of the purposes for your existence! I believe former Commissioner Quentin Kopp was accurate in his assessment of this Ethics Commission to this point. SEI’s, and other such devices, are like locks: they only work with honest people! We know, however, that not all of our elected/appointed officials are honest! I believe the question before you is a simple one: will the members of this body waste the resources entrusted to you or will you use those resources to move City government toward more ethical behavior? Some may look at this list and presume my motives to be nefarious; I assure you they are not! I have and will continue to use the Sunshine Ordinance for its intended purpose: to bring transparency to the operation of City government. The question is, will you?

Chair Chiu moved to assert attorney-client privilege and enter closed session. Commissioner Lee seconded the motion, and the motion passed unanimously.

Motion 200221-01 (Chiu/Lee): Moved, seconded and passed unanimously (3-0) to assert attorney-client privilege and enter closed session.

The Commission held closed session deliberations regarding pending litigation.

Chair Chiu moved not to disclose what was discussed. Commissioner Smith seconded the motion, and the motion passed unanimously.

Motion 200221-02 (Chiu/Smith): Moved, seconded and passed unanimously (3-0) not to disclose the matters discussed during closed session.

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.

No public comment was received.

Item 11. Adjournment.

Chair Chiu moved to adjourn the meeting and Commissioner Lee seconded the motion. The motion was adopted unanimously.

Motion 200221-03 (Chiu/Lee): Moved, seconded and passed unanimously (3-0) to adjourn the meeting.

The Commission adjourned at 4:36 p.m.

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