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Report on Strengthening Essential Ethics Provisions

Staff Report By:
Patrick Ford, Senior Policy and Legislative Affairs Counsel
Michael Canning, Policy Analyst

Download Full Report (December 6, 2021)

I. Overview of Ethics Commission’s Ethics Review Project

A. Background

The City’s ethics laws were created to “assure that the governmental processes of the City and County promote fairness and equity for all residents and to maintain public trust in governmental institutions.”[1] In light of the recent corruption allegations brought by federal and local agencies against City officials and contractors, the Ethics Commission undertook a comprehensive project to review existing ethics laws as its top policy priority. The purpose of the project is to assess whether current law adequately identifies and prohibits conduct that could give rise to a conflict of interest or otherwise undermine fair and objective government decision making. Where current laws and programs are insufficient, the project seeks to recommend and implement improvements.

The project is principally focused on analyzing unethical conduct revealed through the multiple ongoing corruption investigations and identifying policy approaches to prevent similar conduct in the future. It is important to note that no shortcoming identified in the law in any way excuses prior acts of public corruption. Rather, this review seeks to strengthen existing laws to foreclose problematic conduct that might otherwise be lawful and to better deter and detect future corrupt acts.

B. Project Methodology

The project has proceeded in multiple phases. The first phase of the project addressed behested payments and resulted in the Commission recommending legislation that would prohibit most City officers and high-level employees from soliciting behested payments from individuals who have a matter before the officer or employee’s department. This legislation is addressed under Item 6 on the Ethics Commission’s December 10 meeting Agenda.

The second phase of the project focused on gift laws. At the Commission’s August 13, 2021 meeting, Staff presented Report on Gifts Part A: Gifts to Individuals, which analyzed gifts made directly to individual City officials.[2] At the Commission’s October 8, 2021 meeting, Staff presented Report on Gifts Part B: Gifts to City Departments, which analyzed gifts made through City departments that confer personal benefits on City officials.[3]

The current phase of the project reviews a number of basic provisions of the City laws that are fundamental to the overall effectiveness of those laws. These include provisions addressing bribery, disclosure of personal relationships that could influence City decision making, non-City activities that are incompatible with City duties, penalties, processes for amending ethics laws, and mandatory ethics training. The strength of these provisions affects the ability of the City to establish a culture of ethics and prevent future corrupt conduct by City officials, contractors, and those seeking favorable outcomes from City departments.

The methodology used during all phases of the project includes reviewing the findings of the ongoing corruption investigations, analyzing existing City laws and programs, performing empirical research using available data sources, and comparing approaches taken in other jurisdictions. Another core element is engagement with stakeholders, including advocates, good government groups, members of the regulated community, and peer agencies. Staff held interested persons meetings on October 13 and 15, 2020, on April 27 and 29, and November 16 and 18 of this year and will continue to engage stakeholders during the implementation of any legislation that emerges from the project.

C. Goals

Ethics laws are necessary to ensure the integrity of City government and to earn and maintain the public’s trust. It is critical that ethics laws be as effective as possible at limiting undue influence, pay-to-play, bribery, or the appearance of any of these. To achieve these purposes, ethics laws must be strong, enforceable, and workable in practice.

City law contains rules that guide the conduct of City officials and those who interact with them. These include foundational rules like the rule against bribery and activities that are incompatible with City duties. The law also contains general provisions that enable the rules to be effective, such as penalties, requirements for training and compliance, and processes for amending the code. These general provisions are equally as essential because they are critical to the effectiveness of ethics laws in practice.

This final report reviews several of these basic provisions in the Campaign and Governmental Conduct Code (the “Code”) with the goal of maximizing the overall effectiveness of the City’s ethics laws. The report identifies loopholes and oversights in the laws that cause them to be unnecessarily narrow, permissive, or complex. It also identifies approaches and shortcomings in general provisions of current law that impede the administration and enforcement of the City’s ethics laws.

II. Findings & Recommendations

The laws concerning bribery, disclosure of personal relationships, incompatible non-City activities, penalties, code amendment, electronic filing, and mandatory ethics awareness training are essential, foundational elements in the Code that have wide ranging effect throughout the administration and enforcement of San Francisco’s ethics laws. These basic provisions need to be strengthened to maximize the impact of the City’s ethics programs and rebuild public trust. This section presents findings and recommendations about how to improve these core provisions.

A. San Francisco’s Bribery Rule Should be Strengthened and Expanded

Section 3.216(a) of the Campaign and Governmental Conduct Code contains a “Prohibition on Bribery” that states that “[n]o person shall offer or make, and no officer or employee shall accept, any gift with the intent that the City officer or employee will be influenced thereby in the performance of any official act.”[4] What distinguishes this rule from other rules contained within section 2.216, such as the restricted source rule and the rule against gifts from subordinates, is that the bribery rule prohibits gifts that are given with the intent to influence an official acts by City officials. The other gift rules prohibit gifts regardless of any intent behind the gift. The intent to influence is what makes a payment a bribe and should be understood as the central element of any bribery rule.

Findings: Problematically, San Francisco’s bribery rule only prohibits bribes that also meet the definition of gift. As discussed in the Report on Gift Laws Part A: Gifts to Individuals, the term gift is currently defined by reference to state law.[5] The California Government Code defines a gift as “any payment that confers a personal benefit on the recipient, to the extent that consideration of equal or greater value is not received.”[6]

One problem with considering a payment to be a bribe only if it meets the definition of gift is that the definition of gift is subject to many exceptions. The Report on Gift Laws Part A: Gifts to Individuals recommended that a definition of gift be added to the Campaign & Governmental Conduct Code that mirrors the basic state law definition but omits many of the exceptions, which are inappropriate to apply to San Francisco’s gift laws. However, to prohibit only bribes that also constitute gifts under this broader definition would remain problematic. This is because a bribe would not be prohibited if it meets one of the gift exceptions that would still exist under San Francisco law. For example, if an immediate family member made a payment to a City official with the intent that the payment would cause the official to approve a permit application, that payment would not be prohibited as a bribe because payments from immediate family members are not considered to be gifts. Likewise, if an event organizer gave an official free tickets to an event at which the official will perform a ceremonial role or give a speech and the organizer intends to influence the official’s action by giving the free tickets, this would not be considered a bribe because free tickets in such instances do not constitute gifts. These outcomes are clearly poor because anytime a payment is made with the intent to influence an official act, the payment should be considered a bribe.

Another problem with limiting the bribery rule to apply only to gifts is that such a rule only prohibits payments to the official who the payor intends to influence. But, as demonstrated by the current corruption allegations against certain City officials, bribes can be made through a payment to someone other than the official whom one wishes to influence. The U.S. Department of Justice charged Paul Giusti and John Porter, both executives of San Francisco’s garbage collection company Recology, with bribery. Giusti and Porter were charged because of their involvement in a scheme to make payments to a subaccount administered by the nonprofit organization The Parks Alliance with the intent that the payments would influence the official acts of Mohammed Nuru, then the director of the Department of Public Works.[7] Because these payments were not made directly to Nuru, it is not clear that they would constitute gifts and therefore be prohibited under San Francisco’s bribery rule. Likewise, the Department of Justice alleges that permit consultant and engineer Rodrigo Santos made payments (and directed clients to make payments) to a nonprofit organization with the intent that the payments would influence the official acts of Bernard Curran, then a senior building inspector with the Department of Building Inspection.[8] These payments would likely not constitute bribes under San Francisco’s bribery rule because they were not made to Curran but rather to a third party, even though they were allegedly made with the intent to influence Curran’s official actions.[9]

The federal bribery law under which Giusti and Porter were charged is much broader and does not suffer from the same limitations as San Francisco’s rule. The federal bribery rule prohibits anyone from giving or offering “anything of value to any person, with intent to influence or reward [a government official] in connection with any business, transaction, or series of transactions of such organization, government, or agency….”[10] First, this rule is not limited to gifts; “anything of value” can be a bribe. Also, the rule is not limited to payments to the official in question; a payment to “any person” with the intent to influence a government official constitutes a bribe. Additionally, federal law prohibits government officials from soliciting bribes, while San Francisco’s law does not. Federal law prohibits officials from soliciting anything of value for themselves or for the benefit of any other person with the intent that the payments will influence the official’s actions.[11]

These shortcomings in San Francisco’s bribery rule make it unnecessarily narrow and cause it to potentially fail to prohibit conduct that is problematic and may constitute bribery under federal law.

Recommendations: San Francisco’s bribery rule should be strengthened and expanded. The rule should treat anything of value that is given with the intent to influence an official action to be a bribe; the rule should not be limited only to payments that constitute “gifts.” The rule should also prohibit payments to any person with the intent to influence a government official’s actions; it should not be limited only to payments to the official in question. The rule should also prohibit the solicitation of bribes by City officials.

B. San Francisco’s Rule Requiring Disclosure of Personal, Professional and Business Relationships Lacks a Consequence for Noncompliance and Needs Strengthening

Section 3.214 of the Campaign and Governmental Conduct Code requires the public disclosure of “personal, professional, and business relationships.” Under the rule, each City officer and employee must:

disclose on the public record any personal, professional or business relationship with any individual who is the subject of or has an ownership or financial interest in the subject of a governmental decision being made by the officer or employee where[,] as a result of the relationship, the ability of the officer or employee to act for the benefit of the public could reasonably be questioned.[12]

Ethics Commission regulations clarify what constitutes a personal, professional, or business relationship.[13] The regulations also clarify that the disclosure is required anytime an official knows or has reason to know that a person with whom they have such a relationship is the subject of (or has a financial interest in) a decision the official is making. If there is reason to know this, then under the regulations the ability of an officer or employee to act for the benefit of the public can reasonably be questioned and the disclosure must be made.[14]

A unique aspect of this disclosure requirement is that the code explicitly states that there is no penalty associated with failure to comply. Section 3.214 provides that a court can void a decision made by an official who fails to make the disclosure if the failure was willful and the official failed to act “primarily for the benefit of the City.”[15] But, the section then states that “[n]o other penalties shall apply to a violation of this Section, provided that nothing in this Section shall prohibit an appointing authority from imposing discipline for a violation of this Section.”[16]

Findings: To better understand how the disclosure of personal, professional, and business relationships has worked in practice, the Commission distributed a questionnaire to every City department head asking for information about any such disclosures the department has received in the last five years.  A sample of departments that reported having disclosures on file were asked to provide the disclosures. The primary findings from this research were that many departments are not familiar with the disclosure requirement. Some departments confused it with the Form 700 Statement of Economic Interests. Additionally, many departments that were aware (or were made aware) of the disclosure requirement were unable to locate the disclosures or reported they did not have any to produce.

These findings could be explained in one or more ways. First, officials in many departments might not be making decisions that involve someone with whom they have a disclosable relationship. This would be the best possible explanation from a policy perspective. Alternatively, officials might be making the disclosures and many departments are failing to properly receive and archive the disclosures in a way that allows them to be easily produced. It is also possible that officials are making decisions involving persons with whom they have a disclosable relationship and, problematically, are failing to make the disclosure.

Recommendations: To help ensure officials appropriately disclose reportable relationships, section 3.214 should be strengthened by deleting language that there is no penalty associated with failure to comply with this disclosure requirement. This would allow the Commission to impose penalties on an official who made a decision involving someone with whom they had a personal, professional, or business relationship and failed to disclose that relationship. It is vital that disclosure requirements under the law carry consequences for those who fail to meet their legal obligations. If individuals are aware that a disclosure requirement carries no personal consequence for noncompliance, they are more likely to not comply with the rule. Nearly all of the disclosure requirements administered by the Commission carry a penalty for noncompliance, and this should be the case for the disclosure of personal, professional, and business relationships as well.

Additionally, departments should be given guidance about how to store 3.214 disclosures and how to make them available to the public. Any disclosures that are made should be readily available to members of the public who want to access them, and the method of access should be uniform across departments as much as possible. This guidance should be issued through subsequent regulations.

C. Extend existing annual ethics awareness training to apply to all Form 700 filers.

Under current law, all City elected officials, members of boards and commissions, and department heads must complete an annual training on ethics laws and must certify completion of the training to the Ethics Commission.[17] There are roughly 500 of these officers. The training is currently provided through an interactive online module that is hosted within the NetFile system that officials use to e-file their Form 700 with the Ethics Commission.

Findings: Because only 500 City officers are required to complete annual ethics training, only roughly 1.4% of all City officials (officers and employees) currently receive training. This is not a sufficient number of officials to build a meaningful level of shared knowledge across the City. A more significant portion of City officials must also have exposure to core ethics awareness training to underpin a strong culture of ethics and ensure all those who make or participate in making governmental decisions understand their role in improving the tone at the top.

City officials cannot be expected to practice “see something, say something” when it comes to potential breaches of government ethics standards if they are not being trained in core ethics rules. Employees may observe conduct that they feel is problematic, but they may lack the knowledge that would allow them to confidently identify and report unethical conduct. Ensuring more City employees have this knowledge would help empower them to hold City officers accountable. For example, a department head may be more likely to adhere strictly to ethics rules if many employees within the department have received ethics training. A shared base of knowledge is more likely to influence behavior than knowledge that is only held at the very top of the organization chart.

Recommendations: The Code should require all Form 700 filers to complete annual ethics training. This would require ethics training for roughly 3,700 employees, who are not currently required under the law to receive such training.[18] This requirement would also target officials who make or participate in making government decisions that could foreseeably impact a financial interest, since all such officials are supposed to be identified as Form 700 filers.[19] Thus, these officials represent the set of City officials whose work most affects the outcomes of City processes and who should thus be familiar with all applicable ethics laws. Form 700 filers are also most likely to work closely with City officers and therefore best positioned to create a culture of ethics compliance and accountability.[20]

Importantly, the Ethics Commission recently received budget authorization to add four new positions to create an Ethics@Work program that would seek to engage a wider audience of City officials to deepen their knowledge of ethics laws and enhance their skill in applying them in practice. A statutory requirement for annual core ethics training for all Form 700 filers would support the roll out of this program by ensuring departmental participation. Ethics training will also be available to any officials who wish to voluntarily complete the training.

D. Codify Incompatible Activity Provisions to Establish Clear and Consistent Citywide Standards

Section 3.218(b) of the Campaign and Governmental Conduct Code was established to require each City department to adopt a Statement of Incompatible Activities (or “SIA”).[21] An SIA contains rules regarding activities that are incompatible with the duties of City officials and are therefore prohibited. A violation of a rule contained in an SIA is punishable as a violation of the Campaign and Governmental Conduct Code.[22] The requirement for departments to have SIAs was enacted in 2003, and departmental SIAs began to be adopted in earnest in 2006, following the approval of an SIA template.[23] Fifty-four City departments currently have an SIA.

Although SIAs vary slightly between departments, the contents and structure of every SIA is nearly identical. Sections I and II contain introductory content. Section III contains “restrictions on incompatible activities,” which include activities that are subject to the review of the official’s department, providing selective assistance to applicants, activities that impose excessive time demands, and activities that would require regular disqualification or recusal from City duties.[24] For some departments, Section III also contains rules that apply only to employees in specified positions, but this is less common and is often duplicative of the standard rules.

Section IV contains “restrictions on use of City resources, City work-product and prestige.” These rules prohibit officials from using City resources for non-City purposes or holding themselves out as representatives of the department when they are authorized to do so. Section V prohibits officials from accepting gifts for assistance with City services. This includes gifts “for the performance of a specific service or act the officer or employee would be expected to render or perform in the regular course of his or her City duties; or for advice about the processes of the City directly related to the officer’s or employee’s duties and responsibilities, or the processes of the entity they serve.”[25]

For Section III rules only (activities that conflict with official duties, activities subject to review by the official’s department, selective assistance, excessive time demands, and regular disqualifications), an official may seek and Advance Written Determination (or “AWD”) that a given activity does not violate Section III of the department’s SIA. The decision-maker for the AWD depends on who is requesting it. For employees, the decision-maker for an AWD request is the department head or that person’s designee. For a department head, the decision-maker is the person’s appointing authority. For a member of a member of a board or commission, the decision-maker can be the official’s appointing authority, the official’s board or commission, or the Ethics Commission.[26] For elected officials, the decision-maker is the Ethics Commission.[27] An AWD cannot be issued for rules contained in Section IV (use of City resources or prestige) or Section V (gifts for performing City duties or giving advice).

Findings: To understand how SIAs have performed in practice, staff reviewed the contents of all 54 departmental SIAs. In addition, a questionnaire was distributed to all City department heads requesting information about any AWDs the department has issued in the last five years. Departments that reported having issued AWDs were asked to provide them. Staff also asked a sample of departments for further information about how their SIA has worked in practice. Based on this research, staff concluded that SIAs are not serving to provide consistent, clear, and effective limits on non-City activities that raise ethical concerns. The use of department-specific SIAs to establish effective Citywide ethics standards creates numerous problems.

SIAs exclude most ethics rules and are therefore not useful as a compliance tool.

SIAs only represent a narrow subset of the ethics laws that apply to City officials. Many important rules are not discussed. For example, SIAs do not cover rules regarding gifts, bribery, Form 700 filing, financial conflicts of interest, limits on political activities, post-employment restrictions, or disclosures of personal, professional, and business relationships. Officials must become aware of many ethics rules outside of what is covered by their departments’ SIAs.

However, City law requires every department to annually distribute its SIA to all officials within the department. Insofar as any official relies on the SIA as a comprehensive summary of ethics law (as the title and annual distribution practice might suggest it is), that official will not be aware of the majority of applicable ethics rules and might unknowingly violate the law despite efforts to learn and comply. For this reason, SIAs are not useful as a general ethics compliance resource and may in fact inadvertently prevent officials from learning about other types of rules.

The divergence between the SIAs results in a lack of visibility of the rules contained in the SIAs and compliance difficulties.

As discussed, each of the 54 SIAs are largely identical in their contents and structures. However, they differ enough to create inconsistencies between the rules that apply to officials in different departments, which is a problematic outcome. For one, the inconsistencies impede a shared, City-wide understanding of what the rules are. Because of the variations, SIA rules cannot be fully incorporated into an ethics training or written guide that will be used by all City officials. Instead, a warning to check the applicable SIA for additional rules must be offered.[28] This prevents the full breadth of SIAs from being taught, discussed, and publicized alongside other ethics rules and results in the SIA rules being far less visible than most rules. Thus, SIAs have the unintended consequence of making the rules that they contain harder to comply with than rules that are contained within the Code itself.

The variations would also present a potential compliance hurdle for any official who moves departments or must for other reasons be familiar with the ethics rules that apply to officials in multiple departments. Additionally, staff found minor variations between how the same provisions are worded in different SIAs, which could raise questions of whether the provisions mean the same thing.

Although SIAs may have been intended to allow some tailoring among departments, these differences do not have a clear policy value that offsets problems created by having inconsistent rules. As will be discussed in greater detail below, the better approach is to have ethics rules that apply broadly across all departments but that are flexible enough to be applied in a wide variety of circumstances. The development of advice and written compliance materials is the better way to apply general rules to specific situations within departments, rather than trying to write a different rule to apply to each department.

SIAs are not synced to the law and can become out of date, incorrect, or fail to apply to certain departments.

SIAs exist independently of the Campaign & Governmental Conduct Code, the Political Reform Act, and applicable regulations and guidance. In order for an SIA to be amended, the Ethics Commission must vote to approve any changes, and employee bargaining units must be consulted. Perhaps for these reasons, SIAs have remained largely unchanged since the majority of them were adopted over a decade ago.

This static nature of SIAs creates the potential for them to become out of date as ethics laws change over time. A department’s SIA may even come to conflict with applicable statutes, which would override any inconsistent provisions of the SIA. This would cause obvious problems for compliance and education, and the unsustainable process of individually updating each SIA to align them all with current law is not a viable approach. SIAs would lose their value as a compliance tool once they fail to accurately state the law. This problem does not exist for rules that are contained in the Code.

Additionally, if a department lacks an SIA, its officials are largely exempt from the typical SIA rules, which apply to officials in all of the departments that have adopted an SIA. This can happen when a new department is created or when an existing department splits into multiple departments. This outcome is problematic: the applicability of ethics rules should not require an affirmative step on the part of a department, and noncompliance with the SIA adoption requirement should not result in fewer ethics rules applying. Again, codified rules that apply Citywide are not susceptible to this problem.

AWDs should not be issued for certain rules contained in SIAs.

An official may request an Advance Written Determination (AWD) from a department as to whether an activity would violate Section III of the department’s SIA. AWDs are typically not available for rules contained in other sections of an SIA. The availability of this process makes sense for the rule against activities that impose excessive time demands and the rule against activities that would require the official to regularly be disqualified from performing their City duties. In both instances, the department head (for requests by employees) or the appointing authority (for requests by department heads) are best situated to determine what types of activities would interfere with the official’s City duties. This analysis will be heavily fact dependent and largely hinge on the official’s job performance.

However, AWDs should not be available for the rule against activities that are subject to the jurisdiction of the official’s department or the rule against providing selective assistance to certain contract bidders over others. Both of these rules are more traditional ethics rules in that they seek to prevent conflicts of interest, self-dealing, undue influence, or the appearance of any of these. These rules should apply uniformly to all officials across the City. AWDs for such rules are more likely to be used as waivers that allow employees to engage in otherwise prohibited conduct. If officials have questions about how these rules apply to their own conduct, they should seek advice from the Ethics Commission or the City Attorney’s office, as is the practice for all ethics rules outside of Section III of the SIA.

Allowing for AWDs on basic ethics rules also raises the potential for inconsistent outcomes between departments and even between officials within the same department. As part of the research for this report, staff reviewed the AWDs that departments shared in response to the questionnaire discussed above. By and large, the AWDs reviewed contained little analysis and thus provided little insight into how departments are interpreting meaning of the rules. By instead seeking advice provided by the Commission or the City Attorney, officials are more likely to receive fair and consistent answers that support the purposes of the rules.

Recommendations: On balance, SIAs have proven to be an ineffective platform for applying important ethics rules about non-City activities. The adoption of departmental SIAs has not resulted in strong, consistent, enforceable, and workable ethics rules.

The rules that are contained in the SIAs should apply uniformly to all City officials. To accomplish this, the rules should be codified in the Campaign and Governmental Conduct Code and departmental SIAs should be discontinued. Doing so would alleviate the problems discussed above. All officials would be subject to the same set of rules, so the rules could be communicated consistently in all compliance materials and trainings, making a shared Citywide understanding of the rules possible. Departments would no longer escape the application of the rules by failing to adopt an SIA. Officials would seek advice from the Ethics Commission or the City Attorney’s office about how the rules apply to them, which would serve to provide department- and position-specific guidance while still maintaining consistency across the City.

The SIA rules should be codified as nine broadly applicable ethics rules, as summarized in Table 1. These rules are described in greater depth in Attachment 1, which summarizes all provisions of the measure.

Table 1: List of SIA Prohibitions to be Codified in Campaign and Governmental Conduct Code

1. Activities Subject to the Department’s Jurisdiction
2. Selective Assistance to Persons Seeking to Do Business with a City Department
3. Use of City Resources for non-City Purposes
4. Use of Prestige of Office
5. Use of City Work Product for non-City Purposes
6. Acting as an Unauthorized City Representative
7. Compensation for City Duties or Advice
8. Lobbying Other Officials within the Department
9. Excessive Time Demands and Regular Disqualifications

Under most SIAs, officials can request an AWD that can exempt them from rules 1, 2, and 9 in the list above, which in the SIAs appear together as Section III. Officials should still be able to request AWDs for the rule regarding excessive time demands and regular disqualifications from City duties (rule 9). Decision-makers within departments are best situated to evaluate questions about the application of these rules. However, AWDs should not be available for the rules regarding activities subject to review by the department (rule 1) or selective assistance (rule 2). These rules should be treated similarly to other ethics rules that address potential conflicts of interest and not be subject to exceptions by way of an AWD. This is already the case for most SIA rules, and it should be the case for these two basic rules as well.

It is important to note that any City employee that wishes to engage in compensated activity outside of City service must seek approval through the City’s Additional Employment Request process. This requirement is separate from the SIA or AWD process and is set forth in the City’s civil service rules.[29] An Additional Employment Request must be approved by both the employee’s department head and the Human Resources Director. Among other reasons, a request can be denied if the compensated activity will “interfere in any way with the full and proper performance of the employee’s regular civil service employment” or is “contrary to the interests of the City service generally.”[30] Additionally, departments can enact policies that apply to the conduct of employees within the department. Thus, ethics rules are a floor, not a ceiling, for guiding City employee’s conduct, and departments have processes for applying personnel policies as needed.

In addition to codifying the SIA rules, the Code should also be amended to require departments to distribute a summary of applicable ethics laws to their officers and employees each year. Currently, the Code requires departments to annually distribute their respective SIAs. But, as discussed, SIAs are only a narrow subset of ethics rules and are thus not a useful compliance tool. They also tend to be lengthy and difficult to read. Instead, departments should distribute a document that is both more comprehensive and more concise that can be used as a quick reference to help officials spot potential ethics issues. The Ethics Commission should be required to produce this summary for departments to distribute.

E. Other Core Provisions Must be Harmonized within the Code to Ensure Strong Laws and Effective Compliance and Enforcement.

The Campaign and Governmental Code consists of four articles separated into ten chapters. Each chapter contains rules specific to a particular subject matter area. The chapters are listed in Table 2 below.

Table 2: List of Chapters of the Campaign and Governmental Conduct Code

Chapter Number Subject Matter
Art. I, Chapter 1 Campaign Finance
Art. I, Chapter 5 Campaign Consultants
Art. II, Chapter 1 Lobbyists
Art. III, Chapter 1 Form 700 Filing
Art. III, Chapter 2 Conflicts-of-Interest and Ethics
Art. III, Chapter 3 Ethics Commission Provisions
Art. III, Chapter 4 Permit Consultants
Art. III, Chapter 5 Major Developers
Art. III, Chapter 6 Behested Payments
Art. IV, Chapter 1 Whistleblower Protection

Although the chapters cover different areas of the law and their contents are largely distinct, each chapter typically contains basic provisions that enable the rules within the chapter to be administered and enforced. These provisions address topics such as penalties for violations of the chapter’s rules, compliance methods such as electronic filing, and processes for amendments to provisions contained in the chapter. These process-oriented laws are vital to the overall efficacy of the Campaign and Governmental Conduct Code. Problematically, inconsistencies that exist between the various chapters create gaps that impede and weaken the impact of the City’s ethics laws.

E-1. Penalty provisions vary between chapters and do not clearly establish strict liability for violations, creating impediments to effective enforcement.

The San Francisco Charter directly confers authority for the Ethics Commission to enforce violations of the laws within its jurisdiction. Section C3.699-13(c) of the Charter states:

When the commission determines on the basis of substantial evidence presented at the hearing that a violation has occurred, it shall issue an order which may require the violator to: … (3)   Pay a monetary penalty to the general fund of the City of up to five thousand dollars ($5,000) for each violation or three times the amount which the person failed to report properly or unlawfully contributed, expended, gave or received, whichever is greater.

This language empowers the Commission to issue penalties for any violation of the Campaign and Governmental Conduct Code and certain provisions of the Charter.[31] In furtherance of this general penalty issuing power, most chapters of the Code contain a provision restating that the Commission may impose penalties for violations of the chapter.

Findings and Recommendations: The penalty provisions that exist within certain chapters of the Code are not uniform and contain inconsistencies that weaken the ability of the Commission to pursue administrative enforcement remedies for violations. Most chapters of the Code contain a standard penalty provision that is strong and consistent. The provisions typically provide for administrative, civil, and criminal penalties and, for purposes of administrative penalties, state that the Commission can issue any penalties provided for under the Charter.[32] For these chapters, the issuance of administrative penalties would not be impeded by the penalty provision.

However, even though penalties can be imposed under the Charter, one chapter of the Code lacks language that mentions penalties at all. Article III, Chapter 1 contains rules regarding the disclosure of personal financial interests, including the requirement that City officers and certain City employees file the Form 700. This chapter does not contain a code section regarding penalties for violations of the chapter. Because the Charter directly authorizes the Commission to issue penalties, violations of this chapter can result in administrative penalties.[33] But, the absence of a penalty provision has the potential to mislead Form 700 filers into thinking that there are no penalties for failure to timely report all relevant financial interests. Likewise, members of board and commissions might think that there are no penalties associated with participating in matters on their commission’s agenda despite having failed to file the Form 700 or complete required training; such officers are disqualified under law from participating in agenda items.[34] The absence of a statutory penalty provision could also unnecessarily complicate an enforcement proceeding.

Instead, the Article III, Chapter 1 should be made clearer by including a standard penalty provision explicitly stating that violations can result in penalties authorized under the Charter. The ability to carry out enforcement of Form 700 violations is of critical importance and should be clearly communicated through the Code. In a criminal case related to the ongoing federal corruption probe, the San Francisco District Attorney brought criminal charges against a former Department of Public Works employee for failing to disclose his financial interests in a company that did business with his department.[35] It must be made clear to filers that noncompliance with disclosure rules can carry serious consequences.

Additionally, there are three chapters of the code containing penalty provisions that attach a prerequisite mental state to violations in order for those violations to result in administrative penalties. The chapters regarding lobbyists, permit consultants, and major developers each state that administrative penalties can be imposed on “[a]ny person who knowingly or negligently violates” the law.[36] This standard is a departure from how administrative penalties are applied in all other chapters: administrative penalties are applied on a strict liability basis in other chapters, such that any violation can be punished without regard to whether or not the respondent had a particular mental state or level of culpability in violating the law. In those chapters, only civil or criminal liability requires a certain mental state or level of culpability to be present.

These penalty provisions should be amended so that administrative penalties may be imposed for any violations. Lobbyists and permit consultants are individuals who are paid by clients to influence the outcomes of City processes. Many of the recent federal corruption charges related to individuals who were paid to influence City officials, which underscores the continued importance of these disclosure requirements. Disclosures by major developers of payments they make to nonprofit organizations that speak about development projects are likewise important for understanding how money might be used to influence City decision making. Individuals who fail to comply with these disclosures should be subject to administrative enforcement penalties that may be imposed by the Ethics Commission under the same circumstances as those who violate disclosure requirements related to campaign finance or conflicts of interest.

It is important to note that since the time that the culpability standards were included in the three penalty provisions in question, the Commission has adopted the Streamlined Administrative Resolution Process (SARP) and the Fixed Penalty Policy.[37] SARP allows respondents who have committed no recent violations, have inflicted minimal public harm, cooperate with investigators, and meet other eligibility criteria to resolve their violations in a streamlined manner. Such respondents are subject to reduced penalties or no penalties at all (warning letters may be issued instead). The culpability standards, which were likely intended to help ensure that those who inadvertently commit minor, first-time violations will not be subject to large penalties, are therefore no longer necessary and serve only to impede effective enforcement. If evidence proving knowledge of the law or negligence are not readily available, the culpability standards may in fact shield bad actors who are known to have violated the law.

Additionally, the chapter of the code regulating behested payments contains a penalty provision that provides for administrative penalties but no civil or criminal penalties. This removes the possibility for important forms of enforcement and weakens the consequences for violations of behested payment rules. Item 6 on the December 10 Commission Agenda separately makes recommendations regarding the City’s behested payment laws. One of the recommendations is to relocate the behested payment rules to Article III, Chapter 2, rather than have the rules exist in a standalone chapter. This would solve the problem of there being no civil or criminal penalties, as the rules would then become subject to penalties under section 3.242, which provides for administrative, civil, and criminal penalties.

Table 3 summarizes the penalty provisions in each chapter of the code and highlights the provisions that should be amended to provide for more effective enforcement.

Table 3: Summary of Penalty Provisions in Chapters of the Campaign and Governmental Conduct Code

Chapter Number Subject Matter Penalty Provision
No Amendment Recommended for Existing Penalty Language
Art. I, Chapter 1 Campaign Finance 1.170: identifies criminal, civil, and administrative penalties.
Art. I, Chapter 5 Campaign Consultants 1.525: identifies criminal, civil, and administrative penalties.
Art. III, Chapter 2 Conflicts-of-Interest and Ethics 3.242: identifies criminal, civil, and administrative penalties.
Art. III, Chapter 3 Ethics Commission Provisions N/A (no rules contained in chapter)
Art. IV, Chapter 1 Whistleblower Protection 4.115(c): identifies administrative penalties, civil penalties, discipline, and cancellation of retaliatory action.
Amendment to Penalty Language Necessary to Strengthen Enforceability
Art. II, Chapter 1 Lobbyists 2.145: remove requirement that violation must be “knowing or negligent” for administrative penalties to be imposed.
Art. III, Chapter 1 Form 700 Filing Add a statutory penalty provision to clarify that penalties can be imposed for violations.
Art. III, Chapter 4 Permit Consultants 3.415: remove requirement that violation must be “knowing or negligent” for administrative penalties to be imposed.
Art. III, Chapter 5 Major Developers 3.530: remove requirement that violation must be “knowing or negligent” for administrative penalties to be imposed.
Art. III, Chapter 6 Behested Payments 3.650: strict liability for administrative penalties exists, but not criminal or civil penalties. Agenda Item 6 would relocate rules to Art. III, Ch. 2.
E-2. Legislative amendment requirements vary between chapters, inadequately protecting existing ethics laws from being amended legislatively.

Any provision of any chapter of the Campaign and Governmental Code can be amended by the voters through a ballot measure.[38] Such measures can be placed on the ballot through the voter initiative process, by the Board of Supervisors, or by the Ethics Commission.[39] This voter amendment power is guaranteed through the City’s Charter, and this report does not discuss voter-approved Code amendments.

Separate and apart from amendments by the voters, nearly all of the chapters of the Code can also be amended legislatively without voter approval. The process that is required for legislative amendments depends on (a) whether the chapter was originally created legislatively or by a ballot measure, and (b) whether the chapter contains an amendment provision and what process that provision requires. If a chapter was created through a ballot measure, its provisions cannot be amended legislatively unless a legislative amendment provision allows for such changes. For example, Article III, Chapter 2, which contains conflict-of-interest rules, was created by a ballot measure but provides for legislative amendments in section 3.204.[40]

In addition to Article III, Chapter 2, this is also true for Article I, Chapter 1 (campaign finance) and Article II, Chapter 1 (lobbyists). Under the legislative amendment provisions in each of these chapters, their provisions can only be amended legislatively if a supermajority of both the Ethics Commission (four out of five) and the Board of Supervisors (eight out of eleven) vote to approve the changes. This is an important safeguard to ensure that ethics laws that likely could affect elected officials serving in a legislative body require independent action and support by the five-member Ethics Commission if they are to be changed through the legislative process. By requiring Ethics Commission approval, and by setting a supermajority voting requirement for both bodies, these amendment provisions set a high bar for legislative amendments and help ensure that important ethics rules are only changed either by the voters or through a comprehensive legislative process that involves heightened checks and balances.

However, if a chapter was created legislatively, then it can be amended legislatively through the default legislative process: a simple majority vote of the Board of Supervisors plus mayoral approval.[41] For these chapters, no involvement of the Ethics Commission is required for legislative amendments and only six supervisors need to approve the changes. This makes these chapters far easier to amend than the chapters regarding campaign finance, lobbyists, and conflicts of interest.

Findings and Recommendations: It is problematic that many chapters of the Code lack the same protections regarding legislative amendments that apply to the campaign finance, lobbyist, and conflict-of-interest chapters. These chapters also contain important rules that safeguard the public interest and ensure transparency around government processes. They should therefore also be insulated from any changes that are not approved by a supermajority of both the Ethics Commission and the Board of Supervisors. Such a legislative amendment requirement helps ensure that the rules regulating the integrity of the political process cannot be easily changed by elected officials who are at the center of that process.

These protections should apply to all but one chapter of the Code to ensure that all of the City’s ethics laws are similarly safeguarded. The only chapter that should be amendable by a simple majority of the Board (with no Ethics Commission approval) is Article III, Chapter 1, which contains the City’s Form 700 filing requirements. The Board of Supervisors is charged under state law as the “code reviewing body” that must review and update the City’s statutory lists of Form 700 filers every two years.[42] In light of this unique designation under state law, the Board should be able to continue to amend Article III, Chapter 1 through its normal legislative process.[43]

A closely related issue is that Article I, Chapter 5, which regulates campaign consultants, was created through a ballot measure but provides no mechanism for legislative amendments. This means that only the voters can amend provisions of this chapter. This makes it difficult for needed updates or improvements to be made to the chapter to ensure that it continues to be effective. No substantive changes have been made to the City’s campaign consultant laws since they were created in 1997, even though many aspects of City political campaigns have changed since that time. To allow for policy review and improvement, the chapter should allow for legislative amendments that are approved by a supermajority of both the Ethics Commission and Board of Supervisors. As discussed above, this requirement sets a high bar for legislative amendments and ensures that any changes are thoroughly vetted and have broad support. It would allow for needed updates while still protecting the chapter from inappropriate amendments.

Lastly, although most provisions of Article II, Chapter 1 require supermajority approval of both the Commission and the Board of Supervisors, it is not clear that this is true for all provisions in the chapter. This disparity within the lobbyist chapter itself should also be remedied by requiring supermajority approval for all provisions.

As will be discussed more in Section IV below, these changes to how a chapter can be amended could only be accomplished through a ballot measure. This is one reason why Staff recommends pursuing a ballot measure to enact all of the recommendations contained in this report.

Table 4 summarizes the amendment requirements for each chapter of the Code and highlights which chapters should have their requirements changed.

Table 4: Summary of Penalty Provisions in Chapters of the Campaign and Governmental Conduct Code

Chapter Number Subject Matter Legislative Amendment Provision
Chapters for which No Change Is Needed
Art. I, Chapter 1 Campaign Finance 1.104: Supermajority of both SFEC and BOS is required – no change needed.
Art. III, Chapter 1 Form 700 Filing No provision: simple majority of BOS is sufficient – no change needed.
Art. III, Chapter 2 Conflicts-of-Interest and Ethics 3.204: Supermajority of both SFEC and BOS is required – no change needed.
Chapters for which Simple Majority of BOS is Sufficient for Legislative Amendment – Supermajority of both BOS and Ethics Commission Should Be Required for Legislative Amendments
Art. II, Chapter 1 Lobbyists 2.103: Supermajority of both SFEC and BOS is required for changes to most provisions in the chapter, but not all.  All provisions should require the same supermajority approval by both SFEC and BOS.
Art. III, Chapter 3 Ethics Commission Provisions No provision: simple majority of BOS is sufficient – legislative amendments should require a supermajority of both SFEC and BOS.
Art. III, Chapter 4 Permit Consultants No provision: simple majority of BOS is sufficient – legislative amendments should require a supermajority of both SFEC and BOS.
Art. III, Chapter 5 Major Developers No provision: simple majority of BOS is sufficient – legislative amendments should require a supermajority of both SFEC and BOS.
Art. III, Chapter 6 Behested Payments No provision: simple majority of BOS is sufficient – Agenda Item 6 would relocate rules to Art. III, Ch. 2.[44]
Art. IV, Chapter 1 Whistleblower Protection No provision: simple majority of BOS is sufficient – legislative amendments should require a supermajority of both SFEC and BOS.
Chapter for which No Legislative Amendments Are Possible – Amendments Approved by Supermajority of both BOS and Ethics Commission Should Be Allowed
Art. I, Chapter 5 Campaign Consultants No provision: chapter can only be amended through ballot measure – legislative amendments by a supermajority of both SFEC and BOS should be permitted.
E-3. Provisions that enable electronic filing are not consistent across chapters and may impede effective compliance and obscure public information.

Many chapters of the Code contain provisions requiring the filing of public disclosures. These include disclosures about spending on political campaigns, the personal financial interests of City officials, and paid activities by lobbyists. Almost all of these disclosures are required to be filed in an electronic filing format (“e-filing”).[45] E-filing makes the information that is disclosed more easily available to members of the public, who can access the information online without having to seek paper documents from a City department. An electronic filing format also allows filers to meet their obligations by submitting an online form, which most filers prefer to submitting a hardcopy form.

Findings and Recommendations: Electronic filing is typically specified as a requirement for a particular filing by way of an Ethics Commission regulation. Many provisions of the code that contain a disclosure requirement also contain language stating that the Commission may require the disclosure to be made electronically. However, this language does not appear consistently throughout the Code. This inconsistency can create unnecessary confusion about whether electronic filing is or can be required for a certain form. It also leads to the unnecessary practice of including electronic filing language in every disclosure requirement that appears in the Code, which is not an efficient method for establishing electronic filing.

To address this issue and to ensure that any disclosures that may be added to the Code in the future can be required in an electronic format, each chapter of the Code should have a general electronic filing provision. The provision should state that electronic filing can be required for any disclosure required in that chapter. Some chapters of the Code already have such a provision: Article I, Chapter 1 (campaign finance), Article I, Chapter 5 (campaign consultant), and Article III, Chapter 6 (behested payments) have general e-filing provisions.[46] The chapters to which a general e-filing provision should be added are listed in Table 5.

Table 5: List of Chapters Where an E-Filing Provision Should be Added

Chapter Number Subject Matter
Article II, Chapter 1 Lobbyists
Article III, Chapter 2 Conflicts-of-Interest and Ethics[47]
Article III, Chapter 4 Permit Consultants
Article III, Chapter 5 Major Developers

III. Summary of Recommendations – Phase III

This section summarizes the recommendations made in this report in a basic list format. A draft ballot measure that would implement these recommendations as discussed more fully in the next section is presented as Attachment 2 to this report. The draft measure also combines the ordinance language of the draft Phase II ordinance discussed at the Commission’s November 12th meeting. A table summarizing all of the provisions in the combined measure is provided as Attachment 1.

  1. Strengthen San Francisco’s bribery rule by incorporating elements of the federal bribery rule.
    1. Define “bribe” broadly as “anything of value,” rather than narrowly as a “gift.”
      1. Gifts, campaign contributions, or other payments would be considered bribes if made or received with the intent to influence an official action.
    2. Prohibit bribery in cases where the payment is made to a third party, not the official in question.
    3. Prohibit the solicitation of bribes by City officials.
  2. Strengthen the requirement that a City official disclose any personal, professional, or business relationship with persons involved in a government decision the official will make.
    1. Create a penalty for failure to disclose a relationship.
  3. Extend the annual ethics training requirement to all Form 700 filers.
  4. Elevate the rules contained in departmental Statements of Incompatible Activities into the Code. Discontinue departmental Statements of Incompatible Activities.
    1. The incompatible activities that should be prohibited in the Code are:
      1. Activities Subject to the Department’s Jurisdiction
      2. Selective Assistance to Persons Seeking to Do Business with a City Department (including contractors and applicants for a license, permit, or other entitlement for use)
      3. Use of City Resources
      4. Use of Prestige of Office
      5. Use of City Work Product
      6. Acting as an Unauthorized City Representative
      7. Compensation for City Duties or Advice
      8. Lobbying Other Officials within the Department
      9. Excessive Time Demands and Regular Disqualifications
    2. Existing Statements of Incompatible Activities should be discontinued.
    3. Advance Written Determinations should only be available for the rule against excessive time demands or regular disqualification.
    4. Departments should be required to annually distribute to all of its officials a summary of ethics laws created by the Ethics Commission.
  5. Strengthen chapters of the Code by harmonizing and improving basic provisions.
    1. Standardize penalty provisions to make it clear that all violations of the Code are punishable and that proving a particular mental state is not required.
      1. Remove required mental states of “knowingly or negligently” from penalty provisions in Article II, Chapter 1 (lobbyists), Article III, Chapter 4 (permit consultants), and Article III, Chapter 5 (major developers).
      2. Add a penalty provision to Article III, Chapter 1 (Form 700 filing).
    2. Protect ethics laws from amendment by requiring approvals by a supermajority of the Ethics Commission and Board of Supervisors for legislative amendments.
      1. Add Ethics Commission and Board of Supervisors supermajority approval requirement to Article III, Chapter 3 (Ethics Commission provisions), Article III, Chapter 4 (permit consultants), Article III, Chapter 5 (major developers), and Article IV, Chapter 1 (whistleblower protection).
      2. Allow for legislative amendments to Article I, Chapter 5 (campaign consultants). Supermajority approval of both the Ethics Commission and Board of Supervisors should be required.
    3. Add a general provision that allows the Commission to require electronic filing of public disclosures.
      1. The chapters that lack a general e-filing provision are Article II, Chapter 1 S(lobbyists), Article III, Chapter 2 (conflicts of interest), Article III, Chapter 4 (permit consultants), and Article III, Chapter 5 (major developers).

IV. Recommended Process and Next Step: A Ballot Measure Is the Best Approach to Expeditious Enactment of the Recommendations

This report is the final report in the Commission’s project to strengthen the City’s ethics laws in light of the serious corruption allegations brought by the U.S. Department of Justice. The series began with Phase I (behested payments), which is addressed separately under Item 6 on the Commission’s December 10 meeting Agenda.

The project continued with Phase II.A (gifts to individuals) and II.B (gifts made through City departments), which produced the draft ordinance and regulation amendments discussed at the Commission’s November 12th meeting. The project culminates in this report, Phase III, which addresses basic ethics provisions that are fundamental to the City’s ethics laws and programs. Staff recommends that the Commission use its power under the City Charter to place the legislative proposals from Phases II and III on the June 7, 2022 ballot as a ballot measure.[48] The draft measure is presented as Attachment 2.

The recommendations presented in Phases II and III are of critical importance and should be enacted without delay. January 2022 will mark two years since the federal corruption investigation was first announced publicly. Since that time, the Ethics Commission has studied City laws and processes to identify areas for improvement with the goal of preventing similar conduct in the future and restoring public trust in the integrity of City government. Several solutions to known problems have been identified through this process, and they should be expeditiously enacted and implemented.

The recommendations from Phases II and III represent solutions that are empirically supported. Report II.A included detailed analysis of Form 700 data to identify trends in gifts accepted by City officials and to identify potential problems. Report II.B similarly provided empirical research on gifts to City departments, including analysis of departmental reporting on gifts to the City. The current report is based on research that includes complete reviews of disclosures of personal, professional and business relationships, Advance Written Determinations, and all Statements of Incompatible Activities. This research informs the recommendations in the reports, which are designed to address known ethical problems.

The recommendations have also undergone broad stakeholder engagement. Staff has facilitated six interested persons meetings during the project and received additional written comment. Feedback, questions, and ideas received through this process have helped inform the recommendations and ensure that they are based on a broad perspective. Input from stakeholders including reform advocates, national good government organizations, City departments, nonprofit representatives, regulated community representatives, and members of the public has been received and factored into the recommendations. Contributions from the Campaign Legal Center and League of Women Voters were particularly helpful in ensuring that the project was informed by perspectives that extend beyond San Francisco and incorporate best practices in other jurisdictions. Staff’s engagement with City departments was also thorough and helped to surface much information about how the recommendations could be implemented in practice.

This process of stakeholder engagement would not end with the approval of a ballot measure. If the measure were to pass, Staff would continue to engage stakeholders to help inform the implementation of the new laws, including implementing regulations. Many details of the proposals can be continually refined through this inclusive process.

Additionally, Staff engaged employee bargaining units through a process facilitated through the Department of Human Resources. The feedback from that process would inform how the laws would be implemented, with particular attention on training and compliance materials. At this time, all meet and confer obligations have been met for both Phase II and Phase III recommendations.

As discussed in Agenda Item 6, the ordinance that would enact the Phase I behested payment rule approved by the Commission (File 201132) has been pending before the Board of Supervisors for over a year.[49] It is important that the Phase II and III recommendations are enacted more expeditiously. These proposals represent fundamental principles that should be put in place now so that the process of training, guidance, and enforcement of newly strengthened ethics laws can begin as soon as possible. Presenting the proposals to the voters at the June 2022 election is the clearest path to achieving this goal.

Another reason to use the Commission’s power to place measures on the ballot is that the recommendation to change how certain chapters of the Code can be amended can only be enacted through a voter approved measure. This proposal would institute an important safeguard: several chapters of the Code that can currently be amended through a simple majority vote of the Board of Supervisors would instead require a supermajority vote of both the Board and the Ethics Commission in order to be changed legislatively. The change would also allow for legislative amendments to the campaign consultant laws, under the same double supermajority requirement.[50]

1) Staff recommends that the Commission approve a motion to place the draft measure attached as Attachment 2 on the June 7, 2022 ballot.

Additionally, Staff has provided ten-day public notice of the draft regulations concerning gift exceptions that were discussed at the Commission’s August 8th and November 12th meetings. These regulations, which are attached as Attachment 3, would address known problems with existing gift laws and strengthen the restricted source rule. The regulations can be approved separate and apart from the draft ballot measure.

2) Staff recommends that the Commission approve a motion to amend the Ethics Commission regulations as shown in Attachment 3.


[1] Campaign & Gov. Conduct Code § 3.200(a).

[2] Report on Gift Laws Part A: Gifts to Individuals.

[3] Report on Gift Laws Part B: Gifts to City Departments.

[4] Campaign & Gov. Conduct Code § 3.216(a).

[5] Report on Gift Laws Part A: Gifts to Individuals.

[6] Cal. Gov. Code § 82028.

[7] See U.S. v. Paul Fredrick Giusti, Case No. 3-20-71664 MAG, Criminal Complaint and Affidavit of IRS Special Agent Mark Twitchell in Support of Criminal Complaint (N.D. Cal. 2020) at ¶ 13 (hereinafter “Giusti Complaint”); U.S. v. John Francis Porter, Case No. 3-21-mju-70609 MAG, Criminal Complaint and Affidavit of Special Agent with IRS Criminal Investigations Mark Twitchell (hereinafter “Porter Complaint”).

[8] Department of Justice, U.S. Attorney’s Office, Northern District of California, Former San Francisco Senior Building Inspector And Former San Francisco Building Inspection Commission President Charged With Building-Permit Fraud, August 20, 2020.

[9] Curran and Santos were each charged with honest services wire fraud. See id.

[10] 18 U.S.C. § 666(a)(2). The rule applies if the official business in question involves something valued at $5,000 or more.

[11] Id at § 666(a)(2)(B). A government official violated the federal bribery rule if he or she “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions….” Id.

[12] Campaign & Gov. Conduct Code § 3.214(a).

[13] See Ethics Commission Regulation 3.214-5(b):

(1) Personal relationship. A personal relationship is a relationship involving a family member or a personal friend, but does not include a mere acquaintance.
(2) Professional relationship. A professional relationship is a relationship with a person based on regular contact in a professional capacity, including regular contact in conducting volunteer and charitable activities.
(3) Business relationship. An officer has a business relationship with a person if, within the two years prior to the decision, the person was a client, business partner, colleague, or did business with the officer or employee’s business. A business relationship does not include a person with whom the officer or employee does business in a personal capacity, such as a grocery store owner.

[14] Id. at Regulation 3.214-5(a)(1).

[15] Campaign & Gov. Conduct Code § 3.214(b).

[16] Id.

[17] Cal. Gov. Code § 53235, Campaign & Gov. Conduct Code § 3.1-103(a)(1), (b)(1).

[18] The Department of Human Resources maintains a policy that ethics training is “[r]equired for Deputy Directors and employees who have responsibilities for contracting and/or purchasing ….” However, it is unclear who this set of employees consists of, how many of them there are, or how compliance is confirmed. The Commission is not able to issue penalties for failure of this set of officials to complete training because it is not required by law. See San Francisco Department of Human Resources, Workplace Online Training, “Training for Other Audiences.”

[19] Cal. Gov. Code § 82019(a)(3).

[20] Beginning January 1, 2022, all Form 700 filers who currently file in a paper format will be required to file electronically. This represents roughly 3,700 filers.

[21] Campaign & Gov. Conduct Code § 3.218(b). This requirement was created through Proposition E in 2003.

[22] Id at § 3.218(a).

[23] Minutes of the Regular Meeting of the San Francisco Ethics Commission, August 14, 2006.

[24] See, e.g., Ethics Commission Statement of Incompatible Activities section III.

[25] See, e.g., id. at sections IV—V.

[26] See, e.g., id. at section III.C.2.

[27] See, e.g., San Francisco Board of Supervisors, Clerk of The Board, Youth Commission and Sunshine Ordinance Task Force Statement of Incompatible Activities section III.C.2.

[28] See, e.g., Office of the City Attorney, Good Government Guide, An overview of the Laws Governing the Conduct of Public, February  2019 p. 57. (“Although all SIAs include several of the same rules, no SIA is exactly like another, and City employees and officials should consult their own department’s SIA. All SIAs are on the Ethics Commission’s website,”)

[29] See Civil Service Rule 118; City and County of San Francisco, Department of Human Resources, Additional Employment Request Form Instructions.

[30] Civil Service Rule 118. “Requests to engage in additional employment under the provisions of this Rule will not be approved by the Human Resources Director/Designee unless there is compliance with the following condition [sic]:
1) That the employment will not impair the efficiency or interfere in any way with the full and proper performance of the employee’s regular civil service employment;
2) That the performance of such employment is in no way inconsistent, incompatible or in conflict with assigned civil service duties or responsibilities of the employee’s department or appointing officer;
3) That the performance of such employment will not be contrary to the interests of the City service generally and will not lead to situations which would reflect discredit on the City service;
4) That such employment will not involve any duty whatsoever of the employee during the employee’s regular City work schedule; and
5) That the employment will not be in a hazardous occupation that would involve a substantial risk of injury to the employee. The Human Resources Director/Designee will determine whether such employment is unduly hazardous and will be guided in making a determination by the Manual of Rules, Classifications and Basic Rates for Workers’ Compensation Insurance as published by the California Inspection Rating Bureau.”

[31] The Commission also has the authority to issue penalties for violations of other laws, including certain provisions of the Administrative Code and the California Government Code. See San Francisco Ethics Commission Enforcement Regulations section 1.B.

[32] See, e.g., Campaign & Gov. Conduct Code § 1.170(c). “Any person who violates any of the provisions of this Chapter 1 shall be liable in an administrative proceeding before the Ethics Commission held pursuant to the Charter for any penalties authorized therein.”

[33] Additionally, the penalty provision contained in Article III, Chapter 2 appears to apply to violations of Article III, Chapter 1 as well. It states that violations of “any of the City’s conflict of interest or governmental ethics laws” are punishable by administrative penalties, civil penalties (if intentional or negligent), and criminal penalties (if knowing or willful). Id at § 3.242(a), (b), & (d) [emphasis added].

[34] Id. at § 3.1-102.5(c).

[35] San Francisco District Attorney, District Attorney Chesa Boudin Announces Charges Against Former Public Works Official Gerald Sanguinetti for Failing to Disclose over a Quarter Million Dollars in Income, Press Release, July 8, 2021

[36] Campaign & Gov. Conduct Code §§ 2.145(b), 3.415(b), 3.530(b).

[37] See San Francisco Ethics Commission, Streamlined Administrative Resolution Program.

[38] San Francisco Charter §§ 14.100, 14.101.

[39] Id. at §§ 14.101, 2.113, & 15.102.

[40] See Campaign & Gov. Conduct Code § 3.204. Article III, Chapter 2 was created by Proposition E in 2003. Section 18.115 of the measure created the current legislative amendment provision. See San Francisco Department of Elections, Voter Information Pamphlet Consolidated Municipal Election, November 4, 2003, Proposition E.

[41] San Francisco Charter § 2.105.

[42] Cal. Gov. Code §§ 82011(b), 87306.5.

[43] Commission staff are typically involved in the biennial code review process, providing subject matter expertise on the Form 700 and its underlying policy objectives. This involvement helps ensure that the Commission’s perspective is part of the process and that the policy purposes of personal financial disclosure are served, and it should continue.

[44] Item 6 on the Ethics Commission’s December 10, 2021 meeting Agenda.

[45] Only the campaign consultant disclosures are allowed to be filed in a paper format. Section 1.540 of the Code allows the Commission to adopt regulations to require electronic filing, but this process has not been undertaken. This e-filing conversation should take place as part of a separate project.

[46] Campaign & Gov. Conduct Code §§ 1.112, 1.540.

[47] Note: There is already a requirement for the Form 700 to be filed electronically, so no change to Article III, Chapter 1 is needed.

[48] San Francisco Charter § 15.102.

[49] Item 6 on the Ethics Commission’s December 10, 2021 meeting Agenda.

[50] Under the Charter, voter approved measures already can, and would continue to be able to, amend any chapter of the Code. See San Francisco Charter Article XIV. This proposal only concerns legislative amendments that are carried out by City government without voter approval.

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