Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, January 17, 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 2:01 pm.
COMMISSION MEMBERS PRESENT: With Chair Daina Chiu, Vice-Chair Noreen Ambrose, and Commission Members Lateef Gray, 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; Gayathri Thaikkendiyil, Deputy Director and Chief Programs Officer; and LeeAnn Pelham, Executive Director.
REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Andrew Shen, Deputy City Attorney.
MATERIALS DISTRIBUTED:
- Draft Minutes for the December 20, 2019 regular meeting.
- January 13, 2020 memo regarding Election of Ethics Commission Officers for 2020.
- Staff cover memo and attachments for Show Cause Hearing In the Matter of Ray Hartz v. President Norman Yee, Sunshine Ordinance Task Force File No. 19042.
- January 13, 2020 memo and attachment on proposed Bylaws Amendment (Art. VII Sec. 4) to revise Ethics Commission Regular Meeting Schedule effective April 2020.
- Staff report dated January 13, 2020 on Proposed Amendments to Regulations Related to Article III, Chapter 1 of the Campaign and Governmental Conduct Code.
- Monthly Staff Policy report dated January 13, 2020.
- Monthly Staff Enforcement Report and attachments dated January 13, 2020.
- Overview presentation of Ethics Commission budget proposal for FY2021 dated January 14, 2020.
- January 13, 2020 Executive Director’s Report.
Item 2. Public comment on matters appearing or not appearing on the agenda.
Ray Hartz introduced himself as being with San Francisco Open Government. He highlighted an excerpt from a Civil Grand Jury report regarding the Ethics Commission’s lack of enforcement of the Sunshine Ordinance. He further highlighted a list of complaints that he has brought before the Sunshine Ordinance Task Force and the number of Orders of Determination that the Task Force has issued in his favor. Mr. Hartz then directed attention to an excerpt from the Good Government Guide on the role of commissioners. Mr. Hartz produced the following written public comment:
Friday, January 20, 2020. Ray Hartz, San Francisco Open Government. A report of Civil Grand Jury of the C&C of San Francisco entitled “San Francisco’s Ethics Commission: The Sleeping Watchdog” reads, in part, as follows: “Because of the Ethics Commission’s lack of enforcement, no city employee has been disciplined for failing to adhere to the Sunshine Ordinance. The commission has allowed some city officials to ignore the rulings of the Sunshine Ordinance Task Force.” I know this from experience, at elast to this point in time, due to the three dozen Orders of Determination I hold finding years of violations without on being enforced! The Good Government Guide, laying out the Role of Commissioners, reads in part as follows: “When acting in a quasi-judicial capacity, members of boards and commissions function like judges. Thus, they must take care to ensure that the parties appearing before them received due process.” Would anyone on this commission like to handicap my chances today?
Ellen Lee Zhou introduced herself as a public employee and union bargaining member. She stated that she was a candidate for mayor in both 2018 and 2019, and that she was mistreated during those elections by Democratic leaders. Zhou stated her concerns about election fraud and about a lack of the rule of law in San Francisco.
No other public comment was provided.
Item 3. Consent Calendar
Chair Chiu provided the opportunity for public comment on the Consent Calendar. No public comment was provided.
Commissioner 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 December 20, 2019 regular meeting.
Motion 200117-01 (Ambrose/Smith): Moved, seconded and passed unanimously (5-0) that the Commission adopt the Consent Calendar items as proposed.
Item 4. Election of Ethics Commission Officers for 2020
Executive Director Pelham introduced the item and explained the process for nominating and electing officers. Commissioner Smith nominated Commissioner Ambrose to serve as Chair of the Commission. Commissioner Ambrose accepted the nomination.
During public comment, Ellen Lee Zhou reiterated her concerns about election fraud. She further stated that because San Francisco is run uniquely by Democrats, nothing can be improved in this town until individuals of other political parties are elected and appointed.
Director Pelham took the roll call vote. The motion to elect Commissioner Ambrose Chair passed unanimously for a term beginning March 1, 2020.
Motion 200117-02 (Smith/Ambrose): Moved, seconded and passed unanimously (5-0) that Commissioner Ambrose serve as Chair.
Commissioner Ambrose nominated Commissioner Lee to serve as Vice Chair of the Commission. Commissioner Lee accepted the nomination.
Director Pelham took the roll call vote. The motion to elect Commissioner Lee Vice Chair passed unanimously for a term beginning March 1, 2020.
Motion 200117-03 (Ambrose/Lee): Moved, seconded and passed unanimously (5-0) that Commissioner Lee serve as Vice Chair.
Commissioner Ambrose expressed her gratitude and admiration for the service that Chair Chiu has rendered in her capacity as Commission Chair, including regarding legislative efforts, enforcement oversight, the Commission’s public facing website, and the Commission’s relationship with other City departments.
Chair Chiu redirected the credit to the staff and to members of the public
Item 5. Show Cause Hearing In the Matter of Ray Hartz v. President Norman Yee, Sunshine Ordinance Task Force File No. 19042
Enforcement Director Pierce introduced the item and summarized the process for considering matters referred by the Sunshine Ordinance Task Force.
Mr. Hartz reserved seven minutes for rebuttal. He exhibited the list of complaints for which he has obtained favorable decisions. He indicated that his complaint was against President of the Board of Supervisors Norman Yee and not against the Board Clerk because section 31 provides that an elected official has ultimate responsibility.
Mr. Hartz presented a letter that the Task Force has distributed to policy bodies stating the Task Force’s position that the Sunshine Ordinance requires that the 150-word summaries submitted by individuals giving public comment appear in the body of the meeting minutes. Mr. Hartz exhibited several meeting minutes from the BOS in which he stated his name was difficult to find. He further pointed to a disclaimer that appears in the BOS minutes that he believes prejudices the reader against his 150-word summary.
Mr. Hartz stated that all other policy bodies place his 150-word summary in the body of the minutes, including the Ethics Commission, and that only the BOS declines to do so.
Mr. Hartz argued that his speech is protected by the First Amendment, the Brown Act, and the Sunshine Ordinance. He stated that he began this effort because he believed the Library Commission had not represented his public comment faithfully.
Angela Calvillo introduced herself as the Clerk of the Board. Ms. Calvillo stated that although the complaint is against President Yee, she is here because she believes herself to be the appropriate respondent, but otherwise has been deputized by President Yee to represent the Board today. She highlighted provisions of the Charter which assign responsibility to the Clerk of the Board to keep a record of the proceedings.
Ms. Calvillo highlighted two examples from Board of Supervisors meeting minutes, one explaining the order of the Minutes, and another containing an addendum that includes the 150-word summaries. She argued that it would be technically difficult for a member of the public to find what they were looking for in the Minutes if the Board were required to place all 150-word statements in the body of the Minutes itself.
Ms. Calvillo further stated that Mr. Hartz has brought many complaints against the Board and expressed a desire that the Board obtain relief going forward from having to respond to each of his complaints.
Ms. Calvillo reminded the Commission that it had held a show cause hearing in October 2017, during which time the Commission found unanimously against Mr. Hartz. She stated that she believes today’s complaint likewise lacks merit.
Commissioner Gray asked where other commissions place the 150-word summaries. Pelham responded only on behalf of the Ethics Commission, which is to place them in the body of the minutes.
Commissioner Ambrose asked Ms. Calvillo about the request for relief that she made at the end of her presentation. She acknowledged that it is challenging when different members of the City’s family disagree with one another, and stated she understood why some bodies have decided to place the statements in the body. She stated she wasn’t sure that Ms. Calvillo appeared to request determinations that were not before the Ethics Commission today.
Ms. Calvillo stated Mr. Hartz brings duplicative complaints where the facts have not substantially changed, and noted that responding to such complaints have strained the Clerk’s small staff. She requested some way to prevent such duplication. Commissioner Ambrose stated she now understands the request and noted that it may require additional legal research or legislative amendment.
Commissioner Smith proposed a compromise by which the Board might amend the disclaimer it places ahead of summaries in the addendum. Ms. Calvillo stated she would not oppose that solution and would work with Mr. Hartz on finding a mutually agreeable text.
Chair Chiu sought clarification as to whether the Clerk considers the Addendum part and parcel of the Minutes. Ms. Calvillo affirmed that understanding.
Mr. Hartz then offered his rebuttal. He stated that he now understands Ms. Calvillo opposes not only his 150-word summary but all such summaries, and characterized that position as opposing free speech. Mr. Hartz explained why he thought the worst case scenario that Ms. Calvillo had described would not come to pass.
Mr. Hartz stated that Ms. Calvillo has failed to articulate a compelling state interest to justify why the Board does not include summaries in the body of the minutes. He further stated that Ms. Calvillo believes that her policy body is different from every other policy body in San Francisco.
During public comment, Derek Kerr commended Mr. Hartz for his efforts at securing inclusiveness and equity. Dr. Kerr stated that the Board can either integrate public comment next to agenda items, or it can segregate them at the back of the minutes. He stated that the latter diminishes the stature of public comment and fails to encourage thoughtful public participation, and conveys disrespect toward public commenters. Dr. Kerr encouraged the Commission to convey that the spirit of the law matters as much as the letter.
Wilson Ng noted that Mr. Hartz has filed numerous other complaints yet to be heard. He stated that the Ethics Commission has previously found against Mr. Hartz on two prior referrals from the Task Force, one against the Library Commission and another against the Board. He read the text of Administrative Code section 67.16 and stated that the requirement is only that the summary appear “in the minutes,” not “in the body of the minutes.” He further stated that anything that appears in the header, footer, appendix, or wherever else, nevertheless constitutes the Minutes.
Commissioner Ambrose stated that the evidence that Mr. Hartz submitted showed that the Board’s minutes list and acknowledge all public speakers in the body, and stated that she does not believe the structure of the Board’s minutes to diminish the value of public comment. She stated that she agrees with the City Attorney’s view of the law, which leaves discretion to the policy body to determine where to place a speaker’s summary, notwithstanding the Task Force’s view. She further stated that she does not believe the Board is inhibiting free speech.
Commissioner Smith stated that from the standpoint of legal interpretation, she does not believe the code section requires the summary to appear in the main body of the minutes. She stated that there may be policy reasons to include the statement in the body of the minutes, but reiterated that she sees no legal reason to find a violation.
Commissioner Gray agreed that the statute does not identify a violation here, even though he agrees with Mr. Hartz about a preference to place them in the body.
Commissioner Lee stated that she values public participation generally and noted that while there is no legal requirement that the statement appear in the body, she hoped that a compromise might satisfy all parties, such as indicating in the body of the minutes on what page the full statement appears.
Commissioner Lee sought clarification on whether public comment is searchable online. Wilson Ng answered that if public comment is not submitted in reference to a particular file number, there would not be linkage to any file. But that public comments are submitted in reference to a particular file then it is searchable by that file number.
Chair Chiu moved to find that President Yee did not violate sections 67.16 and 67.31, and that the Ethics Commission finds no legal basis to require that public comment appear in the body of the minutes. Commissioner Lee seconded. The motion was passed unanimously.
Motion 200117-04 (Chiu/Lee): Moved, seconded and passed unanimously (5-0) that President Yee did not violate Administrative Code sections 67.16 and 67.31.
Item 6. Discussion and possible action on proposed Bylaws Amendment (Art. VII Sec. 4) to revise Ethics Commission Regular Meeting Schedule effective April 2020.
Executive Director Pelham introduced the item explaining what the bylaws change would entail with respect to future meeting times.
Commissioner Lee asked whether other meetings are scheduled for this room that might require the Commission to conclude its business by a certain time. Deputy Director Gayathri Thaikkendiyil stated she did not know but would check, and observed that the room is booked from 9:30am until 3:30pm.
Commissioner Smith asked whether staff had received any response to this proposal. Executive Director Pelham noted that staff had received one general comment expressing concern that a 9:30 start time might provide less opportunity for public participation than a 2pm start time.
Commissioner Ambrose noted that Friday April 10 is Good Friday and the beginning of Passover. She stated that she would recommend that the Commission adopt the change in schedule effective May 8, instead of April 10.
During public comment, Mr. Hartz stated he did not believe it mattered when the Commission meets. He stated that when the Commission met during the evenings he observed more public participation, and that after it was moved to 2pm only those with a matter before the public would attend. He stated that he believes the Commission does not desire public participation and does not value public input. He stated his belief that the Commission does not adhere to ethics, and stated that he believed that former members of the Ethics Commission agreed with him.
Commissioner Ambrose stated that the purpose to move the meeting to 9:30 was to acquire more public participation, stating her belief that it may be challenging for the public to attend a meeting on Friday afternoons.
Chair Chiu moved to adopt the proposed amendment, as modified to indicate “Effective in May 2020.” Commissioner Smith seconded the motion. The motion was approved unanimously.
Motion 200117-05 (Chiu/Smith): Moved, seconded and passed unanimously (5-0) to adopt a new meeting schedule, effective May 2020.
Item 7. Discussion and Possible Action on Proposed Amendments to Regulations Related to Article III, Chapter 1 of the Campaign and Governmental Conduct Code
Senior Policy and Legislative Affairs Counsel Pat Ford introduced the item. He highlighted the reasons for the proposed amendments to regulations, which would require electronic filing of the Form 700 Statement of Economic Interests by all City employees who are already required under law to file the form. The purposes are to make it easier for employees to file and easier for the public to access the filings. He noted that the meet and confer process has concluded and that these regulations were noticed such that the Commission may vote on them today.
In response to a question from Chair Chiu, Ford stated that e-filing would create a “one-stop shop” for all Form 700 filings, and that all those filings would be searchable, such that individuals could search not only for individual filings but for the interests listed there, enabling a member of the public to discover everyone in San Francisco who might have an interest in a parcel of land.
Commissioner Ambrose stated that Larry Bush in his submitted comments had raised some concerns she wanted to follow up on. She stated the Ethics Commission might not want to modify the Form 700 because it’s a state form, but wondered if a cover page might accomplish something. She further inquired about whether Mr. Bush was correct that a conflict of law currently exists. Deputy City Attorney Andrew Shen stated his belief that Mr. Bush was conflating two types of contributions, campaign and charitable. Commissioner Ambrose stated she would follow up on that question of law.
During public comment, Mr. Hartz stated that 80% of what an entity does has little effect, while 20% has high impact, and stated that an entity should focus on the 20%. He stated his belief that this Commission has not made San Francisco officials more ethical, more honest, or more transparent. Mr. Hartz stated that the Commission spends resources on the less impactful enforcement cases.
Chair Chiu moved to approve the proposed amendments. Commissioner Ambrose seconded the motion. The motion was approved unanimously.
Motion 200117-06 (Chiu/Ambrose): Moved, seconded and passed unanimously (5-0) to approve the proposed regulation amendments.
Item 8. Discussion of monthly Staff Policy Report.
Ford introduced the Staff Policy Report. He stated that the policy phase of the Form 700 e-filing project is now wrapping up because the commission approved the regulations, noting that he would forward them to the Board of Supervisors for its opportunity to review as required under law, noting that this project will transition toward implementation next.
Ford stated that the Policy Prioritization Plan should be considered at a future meeting and anticipated recommending that the mandated City-wide biennial review of the lists of Form 700 filers contained in the Campaign and Governmental Conduct code be a policy project over the course of the next year.
Chair Chiu asked whether the biennial code review would be done in 2020 to be in place by the time e-filing is required for the 2021 annual filing. Ford affirmed that understanding. He noted that the ordinance will have to be in effect by March of 2021 to meet state law requirements, but observed that the City Attorney’s Office has historically sought to implement the changes well ahead of that time.
During public comment, Mr. Hartz stated his belief that Form 700 filings matter only if the Commission undertakes enforcement action whenever a filer has omitted interests from that form or otherwise engaged in a conflict of interest. Mr. Hartz identified two prior cases in which he believed the Ethics Commission had not successfully enforced financial disclosure or conflict of interest laws against City officials, one involving the former City librarian Luis Herrera, another involving former supervisor Mark Farrell.
Item 9. 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.
Enforcement Director Jeff Pierce introduced Agenda Item 9, the Monthly Enforcement Report. He said that one of the Enforcement Division’s ongoing goals is to make the enforcement process more efficient. He discussed the practical differences between sworn and unsworn complaints and the process called “consultation and no further action” that allows investigators to handle discussions with complainants in an expedited manner. At least two dozen complaints have been handled in this manner, and that has resulted in many fewer reports having to be written. There are currently fewer than 50 complaints awaiting triage, most of which have been received in the last six weeks. It is enforcement’s goal to triage all complaints within six weeks of receipt. There are roughly ninety complaints under investigation, most of which are less than two years old. It is enforcement’s goal to resolve all complaints within two years, which is a rough average for other ethics agencies. Mr. Pierce anticipates bringing additional measures before the commission as to how to better achieve this goal.
Mr. Pierce noted that the Bureau of Delinquent Revenues has continued to pursue recovery of fees from Chris Jackson and Lynette Sweet. Six additional accounts have been referred by the fines collection officer to the Bureau, and they will be reflected in future updates.
During public comment, Mr. Hartz stated that elections happen more often than every two years, such that a failure to resolve investigations in less than two years does not serve the public. Mr. Hartz stated his belief that the Commission only pushes paperwork.
Commissioner Ambrose clarified that several items Mr. Hartz had listed as too old were in fact collection accounts with BDR and not investigations with the Commission, noting that collecting on the judgments that the Commission has secured can be a different matter than resolving the underlying matter.
Commissioner Lee clarified that one of the items in the table summarizing those accounts was against Jacqueline Norman, not against Board President Norman Yee, as Mr. Hartz had stated during public comment.
Item 10. Staff overview presentation and discussion of Ethics Commission budget proposal for Fiscal Year 2021.
Executive Director Pelham introduced the item and explained the reason for placing the budget before the Commission at this time, including that the Mayor has requested that the budget process include increased public participation. She explained that the Commission’s goal is to highlight its actual needs, and to pursue specific goals that were identified beginning in 2016. She noted among the goals the timely, thorough, and fair enforcement of the law, stating that the Commission has sought additional resources for and improved practices within the Enforcement Division.
Pelham pointed to Chart 1 in the item, noting the number of requirements that fall under the authority of the Deputy Director. She stated that the Staff lacks appropriate resources to provide certain kinds of services because executive staff must spend time on budgeting, performance reporting, HR administration, and other areas that might better fall to other staff if the Commission were properly resourced. She noted that one consequence of the lack of sufficient resources is that she has less time to devote to outreach, education, and engagement with the Enforcement Division to support timely resolution of complaints.
Pelham stated that the Commission staff further acknowledges that the nature of its work is changing and highlighted the staffing needs set forth in the budget, including a proposal delivered today to the Committee on Information Technology for a one-year limited term exempt position so that the Commission can successfully implement the Citywide e-filing of Form 700s.
Pelham noted that the Mayor has significant needs to address homelessness and clean streets, by way of example, but further noted that the Mayor has expressed her commitment to transparency and ethics among City officials. She stated she looks forward to talking with the Mayor’s Office about the Commission’s requests.
Chair Chiu noted that although the Ethics Commission is a part of the City family, it is likewise an independent agency and that it retains a mandate from the voters to implement and that it needs the resources to successfully uphold that mandate. Chair Chiu highlighted some of the needs the Commission faces and indicated she hopes the Mayor will consider the request in good faith.
In public comment, Mr. Hartz stated that he has been following Commission meetings for approximately ten years. He stated that former executive director Jack St. Croix never requested a budget increase. He stated that if the Commission has 24 staff then each is averaging some $164,000 in salary and benefits, and stated his belief that most San Franciscans make less. He stated his belief that the Commission has done nothing to increase ethics in San Francisco.
Item 11. Discussion of Executive Director’s Report.
Executive Director Pelham introduced the item. She noted that the Commission has been selected to participate in the SF Fellows program.
Pelham highlighted the data regarding behested payment disclosures over the course of the last year after the Commission adopted a behested payment disclosure requirement.
Item 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.
Item 13. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
Mr. Hartz identified himself as director of San Francisco Open Government. He stated that his purpose has been to ensure that members of the public have a full right to comment on the public’s business, and to ensure the public’s right of access to public records. Mr. Hartz stated his belief that the Commissioners serve the individuals who appointed and pay them.
Chair Chiu noted for the record that commissioners are not compensated.
Item 14. Adjournment.
Chair Chiu moved to adjourn the meeting and Commissioner Ambrose seconded the motion. The motion was adopted unanimously.
Motion 200117-07 (Chiu/Ambrose): Moved, seconded and passed unanimously (5-0) to adjourn the meeting.
The Commission adjourned at 4:32 p.m.