Minutes – December 14, 2020 – San Francisco Ethics Commission

English

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Monday, December 14, 2020
Remote Meeting Held Online via WebEx and aired live on SFGovTV
(Approved January 8, 2021)

Note: SFGovTV provides a continuous archive of audio, video, and Caption Notes recordings of Ethics Commission meetings that allows viewers to watch those meetings online in full at the viewer’s convenience. These archives of Ethics Commission meetings may be accessed at SFGovTV at http://sanfrancisco.granicus.com/ViewPublisher.php?view_id=142.

Item 1. Call to order and roll call.

(Note: This item appears beginning at the 00:04:34 mark in the video recording at SFGovTv.)

Chair Noreen Ambrose convened the meeting at 9:43 am and stated that the meeting is being held by Teleconference Pursuant to the Governor’s Executive Order N-29-20 and the Twelfth Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency Dated February 25, 2020. Online Meeting Moderator Ronald Contreraz summarized procedures for remote participation by members of the public.

COMMISSION MEMBERS PRESENT: With Chair Ambrose, Vice Chair Yvonne Lee, and Commissioners Daina Chiu, Fern Smith, and Larry Bush attending, a quorum was present.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Rachel Gage, Engagement & Compliance Manager; Jeffrey Pierce, Director of Enforcement and Legal Affairs and Acting Deputy Director; Eric Willet, Senior Investigator; Jeff Zumwalt, Senior Investigator; Tyler Field, Senior IS Analyst; Ronald Contreraz, Online Meeting Moderator.

REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Jenica Maldonado, Deputy City Attorney; Andrew Shen, Deputy City Attorney.

MATERIALS DISTRIBUTED:

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

(Note: This item appears beginning at the 00:06:10 mark in the video recording at SFGovTv.)

No public comment was received.

CONSENT CALENDAR ITEMS

Chair Ambrose called the consent calendar.

Item 3. Draft Minutes for November 13, 2020 Ethics Commission Regular Meeting.

(Note: This item appears beginning at the 00:08:56 mark in the video recording at SFGovTv.)

Public Comment

No public comment was received.

Commissioner Bush expressed concern that if the minutes don’t clarify that no action was taken only regarding those items where the Commission was precluded from acting, the public may wrongly conclude that the Commission took no action because it lacked interest in the item.

Motion 201214-01 (Smith/Chiu): Moved, seconded, and passed unanimously (5-0) a motion to approve the draft Minutes for the November 13, 2020 meetings.

NON-CONSENT CALENDAR ITEMS

Item 4. Action on Proposed Commission Regular Meeting Schedule for Calendar Year 2021.

(Note: This item appears beginning at the 00:16:27 mark in the video recording at SFGovTv.)

E.D. Pelham presented the item, a proposed calendar for Commission meetings during calendar year 2021.

No public comment was received.

Bush recommended that the February 2021 meeting be postponed until later in the month.

Pelham stated that Commissioners could amend the calendar if they wished. She clarified that if the meeting were postponed from February 12 until February 26 the budget would likely be submitted before the Commission met in February.

Chair Ambrose stated the Commission could hold a special meeting on the budget proposal if necessary.

Motion 201214-02 (Smith/Chiu): Moved, seconded, and passed unanimously (5-0) a motion to approve the 2021 meeting schedule.

Item 7. Discussion and possible action on update regarding Ethics Commission responses to date to ongoing corruption allegations.

(Note: This item appears beginning at the 00:25:16 mark in the video recording at SFGovTv.)

Chair Ambrose explained that the Commission would take Item 7 next to ensure that Commissioner Chiu would be able to participate, given her scheduled absence.

Pelham introduced the item, noting that all staff have participated in monitoring and responding to the City’s ongoing public corruption scandal and stating staff’s decision in conversation with the Chair to provide an update on this front at the end of this calendar year. Pelham explained the Charter’s confidentiality requirement regarding investigative matters and noted that treating investigative enforcement confidentially helps preserve the due process rights of respondents and maintain the impartiality of the director’s role in recommending probable cause determinations and the Commission’s role in ultimately deciding liability.

Chair Ambrose noted that where defendants in the federal action have already pled guilty Ethics Commission staff should not be prevented from moving forward with its own enforcement.

Pelham responded in the affirmative, and noted that Staff would bring any such items in a different setting, agendized for Commission action. She further noted that Senior Policy and Legislative Counsel Pat Ford frequently confers with media on related questions, and noted that the Commission had created a page on its website where relevant disclosure information is consolidated and available to the public.

Chiu stated her belief that absent strict enforcement the laws have no effect, and further noted that delayed enforcement yields a weaker benefit. She noted that one third of the Commission’s investigative staff has been deployed throughout the pandemic and wondered whether the Disaster Service Worker responsibilities might be allocated differently across the City. Chiu expressed a desire to hear more about what Commission staff are doing in the compliance area, for example by encouraging people to report non-compliance. She further noted that the Controller’s reports have identified a problem with the tone at the top, and stated that in the private sector there’s an adage that “culture eats strategy for breakfast every day.”

Bush thanked staff for the thoroughness of the report. He noted that the question of Staff response raises a question of resources, and that current staffing levels are not adequate to respond. He noted that many enforcement actions require two to three years to resolve, which is contrary to the Commission’s stated commitment to timely enforcement actions. He noted that absent staffing and budget the Commission would not be in a position to bring timely enforcement.

Bush noted that six of those subject to federal enforcement are Form 700 filings and queried whether Staff have ever audited those filings, and whether Staff have the resources to conduct such a review.

Vice-Chair Lee thanked Staff for the report and added her agreement to the staffing concerns. She requested that the Commission identify near- and long-term solutions to restoring public confidence. She expressed a concern about reporting of financial interests being based on the honor system. Lee expressed disappointment that the Commission has not experienced a spike in complaints since the corruption scandal was first revealed and noted that if whistleblowers lack confidence in a system that might protect them then they will not risk identifying misconduct.

Ambrose noted that regardless of the outcome for federal actions, there are now three department head vacancies and identified an opportunity for the Commission to play a role in the appointment or onboarding process to ensure a proper tone at the top at the outset of an appointment.

No public comment was received.

Chair Ambrose invited Commissioners to provide additional motions or feedback.

Lee asked whether in implementing an audit of Form 700 filings the Staff might focus their review, for example on departments with a greater number of public contracts. Pelham stated that the requirement under the law is that the Commission conduct a facial review of 20 percent of filings, noting a distinction between facial review and audit, which would likely involve some verification of interests reported.

Chiu requested that Rachel Gage address the question of how best to deploy limited compliance resources.

Bush moved that the staff prepare a list of outstanding issues, such as legal loopholes, and a timeline for addressing those, noting the importance of benchmarks and timetables. Pelham stated that in Item 9 Staff have identified an intent to present a report in January updating the Commission on steps to implement the BLA’s audit.

Rachel Gage stated that the Compliance team serves as advice-givers and as filing officers, and noted multiple opportunities to engage with the regulated community on compliance rules. She stated that among filing officer communications Staff provide guidance on requirements. She identified an intent that staff develop customized training based on departmental needs once staff is expanded, but that the immediate plan is to identify trends in advice requests and noncompliance to guide resource expenditure.

Bush clarified his motion to request that Staff identify outstanding issues based specifically on reports from the Controller’s and City Attorney’s offices and that it include benchmarks.

Chair Ambrose seconded the motion.

Motion 201214-03 (Bush/Ambrose): Moved, seconded, and passed unanimously (5-0) a motion to direct Staff to prepare a list of actions taken in response to Controller and City Attorney reports.

The Commission took a recess at 11:19am.

The meeting resumed at 11:35am.

Item 5. Staff informational presentation and discussion regarding Form 700 E-Filing for All Project.

(Note: This item appears beginning at the 01:57:43 mark in the video recording at SFGovTv.)

Pelham reminded the Commission that this item was carried forward from the November meeting.

Engagement & Compliance Manager Rachel Gage presented the item through a series of slides distributed with agenda materials. She noted on the first slide that shaded areas identified work Staff had already accomplished. She noted on the second slide that Staff will host a series of remote trainings, likely including the participation of Deputy City Attorney Andrew Shen.

Chair Ambrose clarified that the individuals who will begin e-filing have already been filing on paper. Gage noted that was correct and that the role of filing officers would shift when the filing process transitions.

Chair Ambrose requested that Gage highlight Staff’s timeline. Gage presented the timeline on Slide 4, noting the role that hiring would play in implementing Staff’s plan.

No public comment was received.

Bush asked whether the Commission could post to the website a list of City officials who file their Form 700 and where a member of the public might obtain that filing. Gage responded that we have the means to do so and would verify whether it will be possible to implement Bush’s request.

Bush asked whether the filing guide would address amendment rules and requirements, and Gage responded in the affirmative.

Bush asked whether it may be possible to require more detail in their Form 700 filings. As an example he noted that filers have to disclose gifts of travel but need not identify the purpose or accomplishments of that travel. He further inquired whether filers might be required to disclose uncompensated positions or other interests not currently envisioned by the form.

Ambrose responded that because the Form 700 is a state filing it may require a change in law to accomplish Bush’s aims.

Deputy City Attorney Jenica Maldonado agreed that the City could require a supplemental filing through legislative amendment.

Item 6. Discussion and possible action on Ethics Commission Draft Racial Equity Action Plan.

(Note: This item appears beginning at the 02:24:32 mark in the video recording at SFGovTv.)

Pelham presented the item. She identified this as part of a citywide effort to address structural and institutional racial inequity. She noted that the Commission may take action on this item if they wish, noting that the proposal reflects a draft only and that it must be submitted to the Mayor’s Office by December 31. Pelham stated that the plan has been shared with Staff, and noted that this plan is timely given the hiring efforts underway. Pelham noted that the plan is based on a template from which all departments are working and indicated that Ethics has received feedback on its draft from both DHR and the City Attorney’s Office.

Lee thanked staff and noted her appreciation that it will be a living instead of a fixed document. She stated that implementation should not be limited to counting the numbers but that the Commission really inspect closely the problems of structural and institutional racism.

Bush asked whether the City has retained a policy regarding employees who speak languages other than English. Pelham responded in the affirmative.

Bush noted that the plan is focused on City employees and not on the public and asked whether it might address that broader question. Pelham stated that the plan could address broader issues, adding this phase of the city’s framework focused on steps with regard to employees.

DCA Jenica Maldonado noted that the City provides premium pay to bilingual speakers. Regarding the scope of the process, she stated her belief that it is designed as an inward facing document and not an outward facing document, meaning by design it applies to staffing and internal operations and not public engagement per se.

Bush stated that some of the Enforcement actions have regarded liability for disclaimers in languages other than English and wondered whether we provide adequate guidance to non-English publications.

Pelham stated that the Commission would endeavor to promote the openings through a broad array of channels. She further noted that publishing guides in languages other than English is limited by resources.

Lee asked whether the Commission could affirmatively seek bi-lingual speakers to fill these openings. DCA Maldonado stated that the Commission can identify non-English speaking as a desirable qualification only if that language is directly related to job duties, noting that in the absence of that job duty it would constitute impermissible discrimination.

Chair Ambrose requested that the Director incorporate in future reports updates on the Commission’s progress in implementing the racial equity action plan.

No public comment was received.

Bush moved to adopt the plan, and Lee seconded.

Motion 201214-04 (Bush/Lee): Moved, seconded, and passed unanimously (4-0) a motion to approve the Draft Racial Equity Plan.

Item 8. Discussion of monthly Staff Enforcement Report.

(Note: This item appears beginning at the 03:02:00 mark in the video recording at SFGovTv.)

Enforcement Director Jeff Pierce presented the item. He said that the Fixed Penalty Policy, including the Streamlined Administrative Resolution Process (SARP), has been drafted and is now awaiting comments from the public and the Commission. Pierce introduced Senior Investigator Eric Willett to present Staff’s draft SARP Program implementation outline.

Willett explained Staff’s proposal for the SARP Program. Willet said that SARP is designed to resolve enforcement of less severe or complex violations through a simpler and faster enforcement process. The proposed program includes steps for assessing whether a violation is eligible for SARP, gathering facts in the matter, determining a penalty, and, where, necessary, removing the matter from SARP and reassigning it to the standard enforcement process. Penalties in the SARP program would include monetary penalties and, in some cases, warning letters. Respondents must agree to stipulate to a violation to be eligible for SARP. Many violations require remedial action to be taken by the respondent in order for the respondent to be eligible for SARP.

Chair Ambrose said she is glad that Staff plans to engage with the public through interested persons meeting prior to Commission consideration of the proposed program.

Chiu asked whether late filings require SARP, or whether it could be resolved in an even faster way. Pierce said that late fee assessment is already a separate and more streamlined process. Pierce said that Commissioners should join the interested persons meetings, subject to Brown Act limitations. Chiu said this is a good approach to make enforcement more efficient.

Bush asked for an estimate of how many complaints are from Staff, versus how many are from the public. Pierce said typically most are from the public, but Staff complaints are increasing and are often the more promising complaints. Bush asked whether Enforcement evaluates whether complaints fall outside of the Commission’s jurisdiction should trigger an amendment to the law to bring it under the Commission’s jurisdiction. Pierce said that Enforcement works closely with Policy, while still respecting the confidentiality of investigations, to identify weak points in the law that are discovered through Enforcement’s work.

Bush asked whether complaints that are referred to other City departments require those departments to report back to the Commission on the resolution. Pierce said he wasn’t sure whether the Commission had any ability to require that action from other departments, but that the Commission could explore asking departments to do so.

Ambrose asked about the delinquent revenues list and whether both the treasurer and the candidate are liable for fines levied against a committee. Pierce said that both are liable under the law. Ambrose asked whether there is some other way to pressure the respondents to pay, including publicizing the outstanding fine. Ambrose said it consumes Staff time to track the fines and they are of so little value in terms of dollar amount.

Bush asked what level of staffing would be required to resolve enforcement matters within six months. Pierce estimated that having six investigators, instead of only four, would help.

No public comment was received.

Pierce asked Ambrose whether she would like a discussion of whether Enforcement resources should be spent on potential violations that are already under investigation by the federal government, the District Attorney, or the City Attorney. Ambrose said that she would appreciate a general discussion of how Enforcement is responding to the current corruption allegations against City officials and contractors. Pierce said that he believes it is not in the public’s interest for the Commission to pursue violations against respondents that are already being prosecuted for that very conduct by criminal prosecutors. Pierce said that Enforcement resources would be better spent by identifying violations that are implicated, but not directly addressed, in federal or other criminal prosecutions. Pierce invited the Commission’s input on that question.

Ambrose said that federal prosecutions target federal crimes, and that additional local violations may not be addressed. She said she is not concerned with Enforcement assessing fines against someone who has been convicted separately of a related crime.

Senior Investigator Jeff Zumwalt said that Enforcement always reviews criminal complaints, press reports, and any other public reports that allege facts that may indicate a violation has occurred. He said that they are doing this with the current federal corruption investigations in San Francisco. He advised against investigating federal criminal defendants while they are under federal investigation or prosecution because of the difficulty in accessing evidence and the potential of interfering with federal investigations.

Chiu said that she is not concerned with piling on additional violations to a federal defendant. But, she is sensitive of the issues discussed regarding evidence and how best to allocate resources.

Ambrose suggested that Staff develop a written notice that the Commission is working on enforcement matters, even if such matters are not being made public. This would help the public understand what the Commission is doing. Chiu agreed that this is important so that the public knows that the Commission is taking action. Ambrose said that this can communicate some of the items that are discussed in the report under Agenda Item 7, regarding the Commission’s actions in response to the corruption allegations.

Item 9. Discussion of Executive Director’s Report.

(Note: This item appears beginning at the 03:46:30 mark in the video recording at SFGovTv.)

Executive Director Pelham highlighted updates in the Commission’s hiring effort.

Pelham provided an update regarding Disaster Service Worker deployments. She noted the importance of that crisis relief work and emphasized the challenges that the Commission’s deployments have presented to the Commission’s ability to fulfill its mandate. She stated that she had respectfully declined a recent request to extend two of the Commission’s long-term deployments and decline the re-deployment of a third in light of the ongoing corruption scandal and the City’s stated purpose of “proportional deployment.”

Chiu stated her approval of Pelham’s decision to decline the deployments, noting the importance of both proportionality and equity, namely that deploying 13 percent of the Commission’s staff may disproportionately impact the Commission’s ability to fulfill its mandate compared to a department with 2000 employees.

Bush noted that the Controller’s Office issued its first quarterly report on the Whistleblower Program. He reported that the Department of Elections is developing a plan to post online information related to slate mailer filings, which she stated would augment the Commission’s campaign finance reporting and augment overall disclosure of campaign spending.

Lee asked how many candidates who received public financing were first-time candidates. She noted also that year to date revenues do not appear to keep pace with Staff projections. Pelham promised to report back regarding both questions.

Senior IS Analyst Tyler Field presented on the Commission’s data disclosure tools, noting that new visualizations had been created by a third party and are available at data.sfgov.org/campaign_finance. Field offered a demonstration of how the new visualization tool can be navigated and utilized.

Field stated that the internal work the Commission’s EDDA team has been doing enabled the third party to create these new visualization tools.

No public comment was received.

In response to questioning from Chiu, Field stated that the data is updated every day at midnight. He further stated that the division does have some analytics on these tools, and stated that he would be interfacing with the media on how to use these tools.

Item 10. Discussion and possible action on items for future meetings.

(Note: This item appears beginning at the 04:20:00 minute mark in the video recording at SFGovTv.)

No Commissioner identified matters for future meetings.

No public comment was received.

Item 11. Additional opportunity for public comment on matters appearing or not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

(Note: This item appears beginning at the 04:23:00 minute mark in the video recording at SFGovTv.)

No public comment was received.

Item 12. Adjournment.

Motion 201214-05 (Chiu/Smith): Moved, seconded, and passed unanimously (5-0) to adjourn the meeting.

The Commission adjourned at 2:03 p.m.