Draft Minutes – December 10, 2021

Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, December 10, 2021
Remote Meeting Held Online via WebEx and aired live on SFGovTV
(Approved __, 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.

(Note: A complete video recording of this meeting is available at SFGovTv.)

Item 1. Call to order and roll call.

Acting Chair Yvonne Lee convened the meeting at 9:38 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 Lee and Commissioners Larry Bush and Daina Chiu attending, a quorum was present. Commissioner James Bell joined the meeting at 9:50 am.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Pat Ford, Senior Policy and Legislative Affairs Counsel; Ronald Contreraz, Online Meeting Moderator.

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

MATERIALS DISTRIBUTED:

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

Jason Seifer – CFO of Fine Arts Museum. Seifer noted that nonprofits supporting the Fine Arts Museum provide 75% of their funding and budget. He expressed concern over how changes in laws could affect the funding of their operations. He stated there had not been outreach and he is concerned in how the gift laws could upend their operations. He asked that items 6 and 7 be postponed until February.

Robert Mintz – Dep. Dir. Asian Art Museum. Mintz asked that items 6 and 7 be postponed.

Commissioner Bush asked of staff if speakers were individuals who received notice of items 6 and 7. Pat Ford said he would have to check the Interested Persons list to see if they had opted to receive updates from the Commission.

CONSENT CALENDAR ITEMS

Item 3. Draft Minutes of the Commission’s November 12, 2021 regular meeting.

No public comment was received.

Commissioner Bell’s presence at the meeting was noted at 9:50.

Motion 211210-01 (Bell/Chiu): Moved, seconded, and passed (4-0) to approve the minutes as drafted.

Item 4. Resolution on Continuation of Remote Commission Meetings..

No public comment was received.

Motion 211210-02 (Lee/Chiu): Moved, seconded, and passed (4-0) to approve the resolution to continue meeting remotely.

Item 5. Ethics Commission Regular Meeting Schedule for Calendar Year 2022.

Commissioner Bush wanted to discuss the meeting start time. He wanted to know if the Commission could start the meeting at 10:30am and wondered if there needed to be a room available at City Hall. Director Pelham said there would need to be a bylaws change to change the time. Deputy City Attorney Shen said it would require a 15 day notice to change. Chair Lee asked if the Commission could change the start time for the January meeting. Pelham said she thought that could be done, Shen confirmed and said it would only require a 10 day notice. Commissioner Chiu then asked if an afternoon time could be proposed.

No public comment was received.

Pelham said the commissioner would send their individual preferred start times and action would be taken on this item in January. Commissioner Bush then asked if they were going to change the start time of the January meeting. Shen said if staff wanted to change the time they should just note it on the agenda.

The Commission continued discussion of this item to the Commission’s January 14, 2022 meeting.

NON-CONSENT CALENDAR ITEMS

Item 6. Discussion and possible action on proposal regarding a possible June 2022 ballot measure to prohibit certain City officials from soliciting behested payments from interested parties.

Chair Lee noted the Commission’s efforts to address corruption since the City’s corruption scandal was first revealed. The chair asked Deputy City Attorney Shen of the timeline for putting an item on the ballot in June. Shen explained the procedures for putting an item on the ballot. Chair Lee wanted to know if the item should be tabled or heard today. Commissioner Bush said individuals may have set aside time to attend the meeting. Commissioner Bush also noted that a similar item has been heard before the Board.

Commissioner Bell asked to hear all of the substantive discussion today. Commissioner Bell noted the work staff has put in, and wants the public to be able to respond to it adequately. He asked that members of the public be able to be heard today and then for the Commission to vote on the matter in January or February.

Commissioner Bush asked if there will be a majority of commissioners available at future meetings to vote on the item. Commissioner Bell noted that he will be rotating off the commission and there is an appointment that will be taking over his role.

Policy and Legislative Affairs Counsel Pat Ford said he did not have a presentation to present on this item since it had been presented in November 2020. Ford recommended that the item be continued to January to see what happens at the Board and what has been put into law.

Commissioner Bell asked how these laws would be implemented and training conducted. Ford said in Item 7 that would be addressed.

Commissioner Chiu asked if there were changes to the ordinance since it was approved by the Commission. She asked Shen whether the Commission could still put a matter on the ballot to provide a stronger ordinance if needed.

Commissioner Bush asked clarifying questions which Ford responded to. First, regarding interested parties, does that mean matters only before the official’s department or commission? Would it include individuals who only vote on matters or otherwise have a role? Would apply to those that attempt to influence? Would these apply to individuals who fundraise but may not be paid for it? Commissioner Bush also asked about campaign contributions that come from interested parties. Ford addressed each question, and said that state law addressed the issue of contributions.

Commissioner Chiu asked what are the consequences of failure to make required disclosures? Commissioner Chiu noted there is no way to know what disclosures are required to be made and wondered if there was a way to certify under perjury that commissioners had made all disclosures. She said she was interested in that being a reminder more than a penalty or punitive measure. She also asked for input from the Engagement and Compliance division about how these new laws will be taught to City officials.

Public Comment

Lisa Pagan of OEWD requested a continuance of the item. She wanted more time to evaluate the ballot measure.

Debbie Lerman of Human Services Network worried about nonprofits being able to serve on commissions while also serving with nonprofits. She asked that the Commission support the Board’s legislation that had been worked on with Supervisor Peskin’s office. She supported adding people who have no financial interest in the nonprofits as an exemption. She has not had time to review Commission’s version but asked the Commission to support the Board’s version.

The Commission continued discussion of this item to a future meeting.

Item 7 Discussion and possible action on proposal regarding a possible June 2022 ballot measure and regulation amendments to enact recommendations contained in “Report on Gift Laws Part A: Gifts to Individuals,” dated August 2, 2021, “Report on Gift Laws Part B: Gifts to City Departments,” dated September 29, 2021, and “Report to Strengthen Essential Ethics Provisions,” dated December 6, 2021.

Chair Lee introduced item and said action would be deferred to a future meeting but that she would still appreciate a presentation from Senior Policy and Legislative Affairs Counsel Pat Ford.

Ford provided the presentation. This item represents the 2nd and 3rd phases of the project. These phases involved a 1 ½ year review of conflicts of interest laws. Ford provided background on the status of the project. Ford said that Phase 3 presents recommendations to strengthen several essential provisions of the law that are critical to the overall success of the City’s ethics laws. Ford then discussed the Phase 3 recommendations.

The first recommendation is to strengthen the City’s bribery law. A bribe should be anything of value given with the intent to influence a government decision, rather than being so narrow as to only prohibit something that mees the definition of “gift” and that is given with the intent to influence a government decision. Ford noted that the federal law is much stronger than SF law in this way.

City law should prohibit bribery where the payment in question is made to a third party and not the official directly. Current law does not address this, but again federal law does.

Additionally, City law should prohibit the solicitation of bribes by a City official. This is also not currently prohibited in City law but is under federal law.

Ford said the second recommendation is to create a penalty for failure to disclose personal or professional relationships as is currently required of all City officials under existing law. There is no penalty currently for failure to do this. Also, Ford said the Commission should seek through regulation or another way to provide guidance to departments in how to receive and archive disclosures that they receive from their officials.

The third recommendation is to extend the existing ethics training requirement to all Form 700 filers. Currently the law only requires elected officials, commissioners, and department heads to complete annual ethics training. It is important to extend this to all filers because these are individuals who make or participate in making government decisions and therefore should be familiar with ethics laws.

The fourth recommendation is to codify the rules contained in departmental Statements of Incompatible Activities. SIAs are ineffective for a number of reasons. First, they exclude most ethics rules. Departments desire to use SIAs as a short summary of all ethics rules, but insofar as they do this so they might be missing important laws. Also, SIAs vary between departments, creating inconsistent rules, lack of awareness, and a cumbersome process for officials who are subject to them.

Additionally, advance written determinations are currently available for a small number of rules under the SIAs, but AWDS should not be available for the rules against activities subject to department’s review and selective assistance provided to applicants.

To meet the need for a short summary of ethics laws, the proposal would require the Commission to develop and distribute such a summary to departments, which would be more comprehensive and user friendly than the SIAs.

Ford then listed the SIA rules that should be codified.

The fifth recommendation is to strengthen and harmonize basic provisions of code. The first way that this should happen is by standardizing the penalty provisions in the Code. This would involve removing the words “knowingly or negligently” from the penalty provisions in the lobbyist, permit consultant, and major developer chapters. It would also be useful to clarify the existing penalties by adding language to Art III, Chapter 1, the chapter on Form 700 filing.

Commissioner Bush asked who can impose these penalties. Commissioner Chiu asked about a $100 penalty cap, and Ford clarified that this is for late fees. Commissioner Bush asked about violations being referred to departments and no action being taken by the department, and he provided an example of a commissioner not allowing someone to speak. Ford noted that might be a Brown Act violation and not a conflict of interest violation.

Ford said that another important way to strengthen and harmonize the Code is to create a standard process requirement for legislation amendments. Most provisions of the Code already require a supermajority approval of both the Ethics Commission and the Board of Supervisors to be amended legislatively. These are campaign finance laws and conflict of interest laws. The other chapters should also require the same approvals in order to be amended legislatively, rather than only a simple majority of the Board of Supervisors. This would not affect voter approved ballot measures. Similarly, the law should allow legislative amendments to campaign consultant law. Currently this is not permitted, and only a ballot measure can amend this chapter.

The final way to strengthen and harmonize the Code is to standardize e-filing provisions so that any disclosure required under the Code can be required to be filed electronically. This is already the case for nearly every Commission form, but it is important to clearly establish this for all forms, including any future forms that may be created so that they are not inadvertently added as paper forms.

Form mentioned the Phase II recommendations, which would reform City gift laws, including exceptions and loopholes in the law and prohibit gifts through City departments and other intermediaries. It would also require better disclosure of outside payments made to City departments. Current practices undermine the restricted source rule, and the reforms are needed to reinforce that rule’s effectiveness.

Ford listed the rationales for using the ballot measure process to seek enactment of the recommendations. However, he explained that any action on the recommendations must first be the subject of a meet and confer process with employee unions. He said that yesterday the Municipal Executives Association had notified the Commission and the Department of Human Resources that they would like to extend the meet and confer process on this project and because of this the Commission likely cannot take action at this meeting.

Commissioner Bush asked for a chart or summary of the responses received from the 45 departments that responded to staff’s online questionnaire distributed to all department heads as part of the project’s research.

Commissioner Bell commended staff for their work on the report.

Commissioner Chiu associated herself with Commissioner Bell’s comments.

Public Comment

Lisa Pagan of OEWD thanked Commission for considering a continuance of the item.

Ralph Remington, Director of Cultural Affairs at the Arts Commission, appreciated the continuance so they have time to review what the proposed changes are.

The Commission continued discussion of this item to the Commission’s January 14, 2022 meeting.

Item 8. Discussion and possible action on request for waiver of SF Campaign & Governmental Conduct Code section 3.234(a)(2) post-employment restriction for Marisa Rodriguez.

Senior Policy and Legislative Affairs Counsel Pat Ford outlined the waiver request. He described the purpose of the one year restriction and why the law is in place. Ford described Rodriguez’s request, where she previously worked, and what the Office of Cannabis does. Rodriguez requested a waiver to contact the City Administrator’s office, Entertainment commission, and DPW. Ford explained that the potential for preferential treatment is present given that Rodriguez previously was a department head within the City Administrator’s General Services Agency, which includes those other offices. Ford distinguished this request from previous waiver requests that applied to individuals who could only be appointed to represent particular professions or industries and that those types of requests have a much lower bar for approval. But that is different from this request, which has a much higher bar for approval: no potential for undue influence or unfair advantage.

Ms. Rodriguez spoke about her request. She described her background, what the Office of Cannabis does, and what her new employer, the Union Square Alliance, does. She described the seat on the Cannabis Oversight Committee that is appointed by the Entertainment Commission and how other departments worked with Office of Cannabis. She said the departments she contacted in her role with the City were not the same as who she would contact in this new role. Said that in her new role she would not use undue influence on the departments and commissions. She stated that she would need to communicate with departments in order to get permits and other approvals. Said she would not be engaging in policy or legislative items. She stated that waiting a year might impact her new employer’s ability to support union square businesses.

No public comment was received.

Chair Lee expressed her concern over the appearance of undue influence because of Rodriguez’s previous role. Rodriguez stated that she understood why there may be a changed sentiment towards these types of issues. Chair Lee asked if the 1 year post employment was covered in training with the City but stated that she was not certain if it was covered. Rodriguez said she specifically did not request a waiver as to the Office of Cannabis because she knew that would not be appropriate to seek this waiver. Rodriguez clarified that she would not be interacting with City Administrator’s Office so it was not applicable anymore and retracted this aspect of the request.

Commissioner Bell asked Ford if there is a difference between policy and legislative decisions and those day-to-day functions. Ford said the law does not differentiate, but it just says former officials cannot attempt to influence the department, not necessarily what they are attempting to influence.

Shen said the Commission can shape the type of waiver, possibly to include the type of conduct that could be permitted so it does not have to be an all-encompassing waiver.

Commissioner Bell moved to consider the various parts of the waiver together as one.

Motion 211210-03 (Bell/Chiu): Moved, seconded, and passed (4-0) to consider the multiple parts of the waiver request together as a single item.

Motion 211210-04 (Lee/Bell): Moved, seconded, and passed (3-1, with Bell dissenting) to not approve a post-employment restriction waiver for Marisa Rodriguez.

Item 9. 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 written report is available on the Commission’s website and may cover a range of topics such as 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.

Director Pelham described how the Form 700 e-filing program is on track to be implemented by January 1st. Data dashboards are now available online. She described the recent Campaign Legal Center report that describes the Commission as a model in certain respects. She described the upcoming budget approval process and hearings. Regarding hiring, she said the Ethics@Work job posting process is underway.

Commissioner Chiu asked that Staff member Tyler Field do a presentation on the new dashboards.

Commissioner Bush asked for a status update on the lobbyist audit program. Pelham said the start date has been pushed back to December 31st and that an audit would be done by June 30th. Commissioner Bush asked if this could be accelerated, and Pelham said this would require postponing other items like publicly financed campaign audits. Commissioner Bush said this seemed like too long and asked if an external auditor could be utilized to do audits. He also asked about the process for getting a contract approved. Pelham said that Staff had explored this and described the process that would be involved. She said it would require a new contract and because of this she advised against it as a way to speed up the process. Commissioner Bush said the Board could step in and take action on the Board’s ability to move these things forward and there have been several measures at the Board to split off work from Ethics into other areas. He doesn’t want that to happen. He also asked if auditing resources is something that could be addressed through the budget requests. Pelham said that Staff continues to explore whether there is a way to use external auditors to do lobbyist audits and will report back at a future meeting if there are updates, which could include having a Contract Administration representative speak to the Commission. Pelham said that it takes longer than six months to put out a City contract and have it approved, and Bush expressed surprise about that.

Chair Lee asked that a mid-year update be on the next agenda and noted that staff is working hard and that staffing continues to be an issue that she hopes can be addressed.

No public comment was received.

No action was taken as the item was for discussion purposes only.

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

Commissioner Lee asked for the dashboard presentation to be included per Commissioner Chiu, an update on the lobbyist audit program, and an update on the Whistleblower Retaliation program.

Commissioner Chiu noted that, regarding the start time of a meeting, if it is a late afternoon before a 3-day weekend, that could impact public participation and asked other commissioners to take note of this.

Commissioner Bush asked about a presentation for how data is publicized, said that behested payment data is quite hard to access and there is a need for a presentation on how hard the data is to access and follow. Pat Ford stated that the FPPC did not follow Commission’s recommendations to allow local jurisdictions to mandate electronic filing of the Form 803, which is what is needed to address the root problem of paper forms being filed. Commissioner Bush asked if we could still mandate electronic recording.

Commissioner Bush asked that a list of pending items for future meetings to be included at the end of the agenda as well as the state and federal actions that may impact the Commission’s work.

No public comment was received.

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

No public comment was received.

Item 12. Adjournment.

The Commission adjourned at 1:23 p.m.

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