Minutes – February 12, 2021 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, February 12, 2021
Remote Meeting Held Online via WebEx and aired live on SFGovTV
(Approved April 9, 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 00:04:09 mark in the video recording at SFGovTv.)

Chair Noreen Ambrose convened the meeting at 10:39 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 (joined the meeting at 10:50 am.), and Commissioners Daina Chiu, Larry Bush, and James Bell attending, a quorum was present.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Jeffrey Pierce, Director of Enforcement and Legal Affairs and Acting Deputy Director; Eric Willet, Senior Investigator; Ronald Contreraz, Online Meeting Moderator.

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

REPRESENTATIVES OF THE CONTROLLER’S OFFICE: Mark de la Rosa, Acting Director of City Services Auditor Division; Todd Rydstrom, Deputy Controller.

MATERIALS DISTRIBUTED:

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

(Note: This item appears beginning at the 00:04:59 mark in the video recording at SFGovTv.)

No public comment was received.

CONSENT CALENDAR ITEMS

Chair Ambrose called the consent calendar.

Item 3 and 4. Draft Minutes for January 8, 2021 Ethics Commission Regular Meeting and Draft Minutes for the January 21, 2021 Ethics Commission Special Meeting.

(Note: This item appears beginning at the 00:07:12 mark in the video recording at SFGovTv.)

Under Item 4, Director Pelham described a proposed amendment to the Meeting Minutes for the Special Meeting held on January 21, 2021. Commissioner Chiu moved, and Commissioner Bush seconded the motion, to adopt the January 21, 2021 Minutes as amended and the January 8, 2021 minutes.

An opportunity for public comment was provided and none was received.

Chair Ambrose noted that the amendment to the minutes was intended for the January 21, 2021 minutes.

Under Item 4, Commissioner Bush asked that the Minutes from January 21, 2021 be further amended to specify that Esther Marks had served on the Board of Appeals and not the Building Inspection Commission.

Motion 210212-01 (Chiu/Bush): Moved, seconded, and passed unanimously (4-0) to adopt the January 21, 2021 Minutes as amended and the January 8, 2021 minutes.

Vice Chair Lee joined the meeting at 10:50am.

Item 5. Proposed Stipulation, Decision and Order In the Matter of Dante King (SFEC Complaint No. 1819-078).

Chair Ambrose noted that a member of the public, Esther Marks, had written comment indicating that she believed the penalty was too lenient. Chair Ambrose stated her intention to support Staff’s recommendation and asked staff to describe the factors leading to the settlement amount.

Director Pelham stated that Staff looked to prior stipulations in assessing an appropriate amount of a settlement.

Enforcement Director Jeff Pierce described the factors that Staff considered when negotiating the settlement amount, including the respondent’s cooperation with investigators.

Bush expressed his view that the penalty was too lenient. Bush moved to reject the settlement and ask Staff to negotiate a higher penalty.

Chair Ambrose reiterated her intention to support the stipulation and her belief that the settlement amount is reasonable.

Chiu stated that she had reflected on the penalty as well and believed that the respondent’s willingness to comply with the law going forward and that Staff are closer to the facts. Chiu seconded Chair Ambrose’s motion to adopt the motion.

Motion 210212-02 (Ambrose/Chiu): Moved, seconded, and passed (4-1), with Commissioner Bush in the dissent, a motion to approve the Proposed Stipulation, Decision and Order.

NON-CONSENT CALENDAR ITEMS

Item 6. Election of Commission Officers for 2021 per Ethics Commission Bylaws, Article IV, Section 1.

(Note: This item appears beginning at the 00:31:51 mark in the video recording at SFGovTv.)

Vice Chair Lee nominated Chair Ambrose to a second term as Chair. Bush seconded the nomination.

An opportunity for public comment was provided and none was received.

Motion 210212-03 (Lee/Bush): Moved, seconded, and passed (5-0) a motion to elect Noreen Ambrose to a second term as Commission Chair.

Chair Ambrose nominated Vice Chair Lee to a second term as Vice Chair. Chiu seconded the nomination.

Bush stated that Lee had opposed a prior motion to adopt a rule regarding behested payments. He asked whether she might feel differently today about that vote in light of the federal corruption investigation and the revelations that behested payments may have contributed to corruption in San Francisco.

Lee stated that she stood by her vote on the basis that the proposal did not sufficiently account for the role of community-based or community-serving nonprofits. She stated she had come from the nonprofit sector and believed that they provide needed services, voice, and presence. She stated that she was nevertheless open to continuing to explore the right approach to regulating behested payments.

Bush stated his agreement that service-providing nonprofits should be supported and that they should not create a workaround for dark money.

An opportunity for public comment was provided and none was received.

Motion 210212-04 (Ambrose/Chiu): Moved, seconded, and passed (5-0) a motion to elect Yvonne Lee to a second term as Commission Vice Chair.

Item 7. Presentation by Controller’s Office on January 11, 2021 report, “Preliminary Assessment: Ethical Standards for Contract Award Processes of the Airport Commission and Other Commissions and Boards,” and discussion and possible action related to report findings and recommendations.

(Note: This item appears beginning at the 00:50:01 mark in the video recording at SFGovTv.)

Director Pelham introduced the item and welcomed Mark de la Rosa and Todd Rydstrom to the meeting.

Mark de la Rosa presented the item. He reminded the Commission that the Controller’s Office has been reviewing public integrity since the allegations against Mohammed Nuru were first announced, approximately one year ago.

The assessment reviewed the contracting process at the Airport Commission. De la Rosa emphasized the Controller’s preliminary findings and recommendations, as laid out in the report included as part of the Commission’s meeting materials.

Bush stated that two of the airport commissioners were directors of nonprofit organizations and that there are not disclosures revealing any payments to their own organizations. Deputy City Attorney Shen stated that a behested payment reporting regime exists and that it governs City commissioners. Bush asked whether we would find in those reports payments that potential bidders make to commissioners’ organizations that the commissioners have not affirmatively behested. Shen responded that we would not necessarily know about such payments.

Chair Ambrose asked whether she was correct that some of the Airport Commissioners had been there a long time and that term limits do not apply.

Rydstrom stated that the Controller’s Office is tracking implementation of any of its 29 recommendations across its four deliverables, including legislation that Supervisors have introduced or updates to debarment that the City Attorney’s Office has imposed.

Chair Ambrose and de la Rosa discussed the Controller’s findings regarding SFEC-Form 126f2.

Chiu asked about Commissioner Crayton’s failure to report her contact with a bidder, but that she could have done so under either of two ways. She noted that we rely on good-faith self-disclosure in many instances but that as the federal investigation has made clear we don’t always get such self-disclosure and that improper conduct cannot be detected often until wiretaps reveal them. She asked whether the Controller’s Office might consider it useful to require commissioners to affirm in writing that they have filed all relevant disclosures in a given year. De la Rosa stated that this was among their recommendations.

Bush asked about disclosures related to personal and professional relationships. Shen noted that Commissioners must disclose relationships in a public meeting, and that such disclosures will appear in the meeting minutes, and that as to City employees they have to disclose their relationship in a written memo that is often filed with the department’s human resources division. Bush stated his belief that such disclosures are inadequately available.

Chair Ambrose stated that such disclosures do not regard financial conflicts of interest, and that commissioners must recuse themselves in the face of conflicts of interest, and that recusal notifications are filed with the Ethics Commission and available on our website.

An opportunity for public comment was provided and none was received.

The Commission took a break at 12:10pm and resumed at 12:21pm.

Item 8. Public comment, discussion, and possible action regarding Ethics Commission budget proposal for Fiscal Year 2022 that begins July 1, 2021.

(Note: This item appears beginning at the 01:46:18 mark in the video recording at SFGovTv.)

Director Pelham presented item. She reminded the Commission and the public that this is the second of two hearings on the Commission’s budget. She noted that the corruption allegations further demonstrate that the Commission has been historically underfunded.

Pelham highlighted current funding levels and described the Commission’s request to expand its budget. This included a request that the Commissioner retain all existing position authorities and that additional funding be made available for additional positions to support the Commission’s Ethics@Work training program and to expand the Commission’s investigative resources. Pelham further identified one additional position that would enable the Commission better to track its own performance and to engage the public more successfully.

Separate from those requests, Pelham then identified how the Commission is proposing to meet the cuts the Mayor’s Office has imposed across departments if those cuts are in fact imposed on the Ethics Commission. These include reducing administrative support staff, discontinuing the efforts to implement citywide e-filing of Forms 700, and reducing funding for staff training.

Bush asked a series of questions about the budget:

Whether it included revenue enhancements
Whether it included a work-order proposal for the Form 700 project
Whether Ethics was willing to consider requesting that other departments digitize the paper-filed Forms 700 that those receive
Whether the Ethics Commission’s budget adequately addresses the Mayor’s priority identified for equity
Whether the Commission would provide a biannual update about progress on Enforcement efforts
Whether the proposal to add the Program Performance and Reporting Analyst is or is not like a Commission Secretary

Director Pelham stated that it is not feasible to develop workable revenue enhancement proposals in time for the budget submission due date. She noted the same was true of the work-order proposal.

Regarding whether departments might provide pdfs of their paper-filed Forms 700, she stated that she did not believe it was feasible absent a requirement that departments do so and that doing so might result in confusion since Staff has been communicating that they are setting up an e-filing system for departments to use.

Regarding equity Pelham noted that Staff would like to use technology to find new ways to reach out to broader audiences, and that having staff levels to do that work is important.

She noted that Staff looks forward to reporting further on Enforcement efforts.

Pelham stated that in her view the Program Performance and Reporting Analyst is not akin to a Commission Secretary and would support a broader range of programmatic work.

Chiu asked whether the Commission is moving forward with its hiring and whether Staff had further considered a hiring freeze to meet the 10 percent cut. Director Pelham responded that operationally Staff determined that a hiring freeze would not best enable the Commission to achieve its mandates.

Chiu expressed her belief that requiring the Ethics Commission to cut 10 percent of its budget would not be an equitable outcome, and expressed her support for the proposal to add resources to the Commission’s budget.

Chair Ambrose asked whether the impacts Staff described regard the 10 percent cut or the 7.5 percent cut. Director Pelham stated that it regarded the 10 percent cut but would defer to Deputy Director Thaikkendiyil.

Chair Ambrose stated that Staff may need to better describe the impact on the Commission’s surviving functions of eliminating administrative support staff.

Deputy Director Thaikkendiyil stated that to meet the 7.5 percent target, the Commission would still have to eliminate the five positions proposed because of the attrition savings target that the City imposes on departments. She further described how Staff are proposing to meet the additional 2.5 percent target.

Chair Ambrose highlighted the statement that she, Bush, and Chiu had drafted.

Chair Ambrose noted that Esther Marks had provided written public comment in support of the Commission’s baseline $6.5m budget, that the Enforcement division must be strengthened to increase public confidence, and other resource requests.

Chair Ambrose expressed her view that eliminating administrative support staff would inhibit Staff’s ability to accomplish its core functions.

Chiu emphasized the importance of publishing the Commission’s statement of resistance, whether as an op-ed or a press release. She further stated that the City would be gutting the Commission’s budget if it imposed the cuts, and that doing so did not make sense in the face of existing corruption. She stated that if the Commission must impose these cuts it would mean that the City has taken the view that corruption does not matter.

Chair Ambrose reminded the Commission that as the process unfolds it may turn out that the Mayor’s Office will not require the Commission to absorb the cuts.

Bush stated that the City needs to consider that heightened ethics would save the City money in the long run (highlighting the financial costs of corruption) and that the Ethics Commission should be first in line to obtain reimbursement for COVID-related costs.

Lee emphasized that support staff are always the first to be identified for cuts and asked that Staff emphasize the practical impact of cutting those three positions.

Public Comment

Francisco de Costa stated that nothing has changed with the Sunshine Ordinance Task Force, the Controller, the Ethics Commission, and the City Attorney since his last public comment. He stated his belief that the FBI is focused on the Mayor. He stated that from the City’s $13 billion budget the Ethics Commission should be fully funded and that the Commission should send its letter to the Mayor and have it published in the papers.

A caller stated her view that the functions of the Ethics Commission are critical. She stated that if the Commission can retain its staff it would better help users access and review filings.

Chiu requested that the op-ed note that if the cuts are imposed on Ethics it would mean that the status quo is acceptable. Chair Ambrose stated she incorporate that sentiment.

Chair Ambrose recalled that Vice Chair Lee had noted that Presidents adopt a signing statement and that the Commission might do so here.

Bush stated that the op-ed should underscore that investing in Ethics will save the City money.

Chiu expressed her agreement with Bush and further noted that making contracting fair would support one of the Mayor’s priorities, which is to support small businesses.

Bell sought clarification on what the budget proposal entails in light of the discussion today. Director Pelham stated that the Commission is effectively out of options and that Staff deeply regrets having to propose cutting any staff at all.

Bush moved to adopt Staff’s budget proposal and simultaneously communicate the Commission’s resistance to having cuts implemented.

Motion 210212-05 (Bush/Chiu): Moved, seconded, and passed (5-0) a motion to adopt Staff’s proposal while still pursuing more resources for the department.

A second motion was made by Chair Ambrose and seconded by Vice Chair Lee to finalize and release the Commission’s budget statement as modified based on today’s discussion.

Motion 210212-06 (Ambrose/Lee): Moved, seconded, and passed (5-0) a motion to finalize and release the Commission’s budget statement.

Chair Ambrose continued Item 10 until the next meeting.

Item 9. Discussion and possible action on revised Fixed Penalty Policy and Streamlined Administrative Resolution Program.

(Note: This item appears beginning at the 03:21:32 mark in the video recording at SFGovTv.)

Senior Investigator Eric Willet presented the item. He highlighted the background on how the Commission had arrived at this proposal and described the process Staff used in developing the proposal. Willett pointed the Commission to the general eligible guidelines on SARP pages 1 and 2, the expanded list of violation types included in the proposal in SARP Index 1, the specific eligibility guidelines in SARP Table 1, and the penalty provisions in SARP Table 2. Willett further highlighted the goals of the proposal and urged the Commission to adopt Staff’s proposal.

Chair Ambrose highlighted that Esther Marks had provided written public comment in support of the proposal.

Chair Ambrose further highlighted that Jesse Mainardi had requested that fine amounts be reduced. She stated her unwillingness to take up that recommendation at this time. She further noted that in light of the discussion around whether today’s stipulation penalty was too lenient, and suggested that Staff should periodically evaluate whether penalties are too low in comparison to rising cost of living amounts.

Chiu asked Staff to respond to Mainardi’s concerns. Willett stated that Staff’s proposal used the state program as a starting point and scaled up based on local data. He further emphasized that the proposal includes a generous warning letter program that may capture many of the actors that Mainardi is concerned about, that Staff concludes that there is insufficient difference between a warning letter and a $100 penalty, and that $500 accounts both for deterrence and for the resources that the Commission would have to expend in bringing a matter to resolution in the first place.

Chiu noted that Mainardi requests that Staff revisit the fine program periodically. Willett stated that Staff would intend to do so.

Chiu thanked Staff for their work and thanked Esther Marks, Jesse Mainardi, and Anita Mayo.

Bush asked whether SARP includes liability for contractors who make prohibited contributions to IE committees. Enforcement Director Pierce clarified that City law does not prohibit such conduct.

Bush asked whether SARP contemplates incomplete disclosure of lobbying contacts.

Public Comment

Anita Mayo from Pillsbury Winthrop Shaw Pittman stated that the proposal is an improvement on the current program. She identified Table 1, Item 18 as potentially punitive toward the committee where the exclusion regards the conduct of the contributor. She then identified a clerical error in Table 2. Finally, she stated her belief that the penalty for recordkeeping violations is too high.

Chiu moved, and Bell seconded, to adopt Staff’s proposal.

Motion 210212-07 (Chiu/Bell): Moved, seconded, and passed (5-0) a motion to approve the proposed Streamlined Administrative Resolution Program.

Item 11. Discussion of Executive Director’s Report. An update of various programmatic and operational highlights of Ethics Commission staff activities since the Commission’s previous meeting. The Executive Director’s written report, which is available on the Commission’s website, covers a range of topics such the Commission’s budget, outreach activities, campaign finance disclosure and public financing programs, audit program, lobbyist program, campaign consultant program, permit consultant program, major developer program, and future staff projects. Any of these subjects may potentially be part of the Director’s presentation or discussed by the Commission.

(Note: This item appears beginning at the 03:56:48 mark in the video recording at SFGovTv.)

Director Pelham welcomed Bell and stated Staff would look forward to onboarding him. She noted that Thomas McClain had resigned from Ethics to take a job with the city’s Human Services Agency and thanked him for his contributions to the Commission.

Chiu noted her regret that McClain had departed and thanked him for his service.

An opportunity for public comment was provided and none was received

Item 12. Discussion and possible action on items for future meetings.

(Note: This item appears beginning at the 04:00:56 minute mark in the video recording at SFGovTv.)

Bush requested that the Commission agendize an item to specially take up each of the recommendations in the Controller’s report and vote on whether or not to implement them.

Chiu requested that Staff explore requiring elected and appointed officials to certify annually that they’ve complied with all ethics provisions.

Public Comment

Francisco de Costa stated that the Ethics Commission plays an important role to ensuring that the City has standards. He stated that current circumstances are dangerous, and identified the elderly and children as the most vulnerable. He further stated that Title VI addresses racial equity. He stated his belief that the Mayor’s Office is corrupt and that the Ethics Commission must stand up and be a guiding light.

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.

(Note: This item appears beginning at the 04:07:47 minute mark in the video recording at SFGovTv.)

No public comment was received.

Item 14. Adjournment.

Motion 210212-07 (Chiu/Bush): Moved, seconded, and passed (5-0) to adjourn the meeting.

The Commission adjourned at 2:45 p.m.

Minutes of the Regular Meeting of The San Francisco Ethics Commission Friday, February 12, 2021 Remote Meeting Held Online via WebEx and aired live on SFGovTV (Approved April 9, 2021)

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, February 12, 2021
Remote Meeting Held Online via WebEx and aired live on SFGovTV
(Approved April 9, 2021)