Draft Minutes – January 21, 2022

Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, January 21, 2022
Remote Meeting Held Online via WebEx and aired live on SFGovTV
(Approved __, 2022)

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 10:09 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 Yvonne Lee and Commissioners James Bell, Larry Bush, Daina Chiu, and Theis Finlev attending, a quorum was present.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Gayathri Thaikkendiyil, Deputy Director; Michael Canning, Policy Analyst; Ronald Contreraz, Online Meeting Moderator.

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

REPRESENTATIVES OF THE DEPARTMENT OF HUMAN RESOURCES PRESENT: Carol Isen, Director of Human Resources; Ardis Graham, Employee Relations Director.

MATERIALS DISTRIBUTED:

  • Staff report 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.
  • Staff presentation on a proposed budget.

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

No public comment received.

CONSENT CALENDAR ITEMS

Item 3. CONFERENCE WITH NEGOTIATOR – LABOR NEGOTIATIONS.

Chair Lee introduced the item and explained the need to go into private session to discuss labor negotiations. She stated the topic of discussion is the status of the meet and confer process with the San Francisco Municipal Executives Association (MEA) regarding the Commission’s proposed June 2022 ballot measure and regulation amendments. Chair Lee then explained the process that public comment will first be received and then a vote a will be taken on whether to meet in closed session under California Government Code Section 54957.6 and Sunshine Ordinance Section 67.10(e) to discuss labor negotiations. Then, if a closed session is held, the Commission will initiate a closed session meeting with Labor Negotiators and will then reconvene in an open session. Finally, pursuant to Brown Act section 54957.1 and Sunshine Ordinance section 67.12, the Commission will then discuss and vote on a motion whether or not to disclose any action taken or discussion held in the closed session regarding labor negotiations.

There were no questions from Commissioners.

DCA Shen explained that the discussion is confidential and asked the Commissioners to follow that and that public comment should be received ahead of the closed session.

No public comment was received.

Commissioner Finlev moved, and Commissioner Chiu seconded the motion, to go into closed session.

Motion 220121-01 (Finlev/Chiu): Moved, seconded, and passed (5-0) to meet in closed session to conduct a conference with Department of Human Resources labor negotiators regarding the draft ballot measure and regulation amendments being considered by the Commission.

[CLOSED SESSION]

The Commission returned to open session at 11:36 am.

Commissioner Bell moved to not disclose any action taken or discussion held in closed session, Chair Lee seconded.

Motion 220121-02 (Bell/Lee): Moved, seconded, and passed (5-0) not to disclose what was discussed in closed session.

Item 4. Continued 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 on Strengthening Basic Ethics Provisions,” dated December 6, 2021.

Chair Lee introduced the item.

Policy Analyst Michael Canning described that members of the Board introduced a ballot measure that would make amendments to the behested payment legislation. That legislation will go into effect on Sunday. The Board of Supervisors ballot measure will be placed on the ballot in June.

Since last week’s Commission meeting, Staff spoke with nonprofits and individuals who spoke at the last meeting, as well as planning additional meetings with other interested parties, and are considering amendments based on their comments. Policy also completed a FAQ to address certain factual issues contained in the concerns that were brought up at last week’s meeting. Meet and confer is still ongoing.

Commissioner Bush asked about the laws that were going into effect on Sunday. Canning noted that the behested payment law arose from the same project as the ballot measure being considered by the Commission.

Commissioner Finlev asked if staff can update the Commission on the meetings with nonprofits and any of the concerns brought up at those meetings. Canning said yes that would be possible.

Commissioner Bell commended staff on the quick turnaround on the questions asked of them and producing the FAQ is a quick manner.

Public comment

Debbie Lerman of Human Services Network thanked Commission and staff for their outreach. She submitted written comment with proposed amendments and noted that the deadline is still 6 weeks away for the measure to be put on the ballot so thanked Commission for deferring decision until it could review public comment. She believes that allowance for attendance at nonprofit fundraisers should be allowed, the definition of restricted source should exclude uncompensated board members of nonprofits, the measure includes vague language that would include lots of individuals who would be unknown that they are involved. She said the Commission should focus on items that lead to corruption and not nominal items such as plaques and t-shirts.

Jack Thomas of Friends of Alleghany Farm expressed concerns about the level at which the proposal is being applied. He said it is worrisome that the language is too broad, he doesn’t know who would be responsible for monitoring all transactions, it will stop the city from being able to monitor unethical conduct, it can make it easier to target certain individuals for violations. He noted the way the farm is able to build strong relationships with city departments through their interactions which may be impacted by the proposed changes.

Vinay Patel, Executive Director of the Asian Pacific Island Center, said he worked to develop positive changes through working with city departments and is concerned that the proposals may make their work more difficult and therefore inequitable. These changes could lead to inequitable situation for communities they serve. Their community and members would like to assist in proposing changes to the laws.

Chair Lee noted that if staff were to hold an IP meeting she would like for Patel and Lerman’s nonprofits to participate and Chair Lee would like to participate as well. She also noted that the public comment heard is of great concern to her and asked Canning to reach out to these groups to get their input ahead of the February meeting.

Commissioner Finlev asked to make comments on the proposed changes to the law. He noted that his experience enforcing these laws has framed how he looked at these issues. Restricted source, SIA and AWD process, intermediaries of money from outside sources are topics he has ideas on.

Regarding Intermediary issues, Commissioner Finlev proposed changes to 3.216-6, a proposal to prohibit a restricted gift from coming from an intermediary. He said that the prohibition only applies to the receipt of the money but not the spending of the money. He noted that only once the money is spent there would be a violation but proposed that it covers both receipt and expenditure of money. Commissioner Chiu noted that it would cover receipt and/or expenditure, not that it had to be received and spent in order to be a violation.

Commissioner Bush asked about the money given to sister city committees and how it could be spent on travel.

Regarding Statements of Incompatible Activities (SIAs), Commissioner Finlev noted that employees can ask for an Advance Written Determination (AWD) to ask their department whether their doing something that is under the department’s jurisdiction would violate the SIA. Under the proposal employees would not be able to seek an AWD for these types of issues, and he worried that this would prevent employees from being civically engaged in these types of activities. He wanted to leave the possibility for these open and allow employees to seek AWDs in these circumstances and thought there should be a way to allow for this is certain situations that would be approved either through a way to get a waiver or another approval process.

Regarding the restricted source rule being expanded to also prohibit the giving of a gift by a restricted source, Commissioner Finlev wondered whether this would open non-city persons to liability for giving a gift when they didn’t know about the applicable rules. He is concerned that this could impose liability on noncity persons who may not realize that this is prohibited even if it is not for nefarious purposes. He thought that since the receipt of the gift is already prohibited he did not know if penalizing the giving of the gift is necessary. He noted that there was not a training requirement in the law for non-City persons.

Commissioner Bush worried about major developers contributing to nonprofits in exchange for their support for the development. How would these proposed changes impact these? He also asked about a person that receives a personal benefit for this support. For example, major corporations provide friends and family stock options to city officials and that since the options were not exercised at the time they had zero value according to the City Attorney’s office.

Canning said he thinks the intermediary change suggested by Commissioner Finlev would be alright to include in the law. Regarding the SIA/AWD issues raised by Commissioner Finlev, Canning gave background on what an AWD can be requested for and noted that the AWD process would be still take place for the rules against excessive time demands and regular disqualifications, but not for selective assistance.

Commissioner Chiu noted that AWDs would not be prohibited but there would be changes to how they are approved.

Regarding Commissioner  Finlev’s comments on the restricted source rule, Canning said that it is something to look at and return to at a point in the future.

Commissioner Chiu asked that a training element be included in the proposed changes.

Commissioner Finlev, in regard to AWDs, gave an example of an employee who has expertise in an area could be prohibited from engaging in a certain activity that is subject to their department’s jurisdiction, even if there is not a chance for it to require interaction with the department.

Item 5. Presentation, public hearing, and possible action on Ethics Commission budget priorities for the Fiscal Year 2023-24.

Director Pelham introduced the item, and Deputy Director Gayathri Thaikkendiyil was also present. Pelham noted the change in City law that requires two public meetings to discuss budget items. The Mayor issues budget priorities for departments to follow. She noted the $100 million surplus and that the Mayor has asked departments to maintain their current spending levels.

Chair Lee asked that Pelham give a presentation on the budget.

Pelham provided the presentation and overview of the department’s budget. She noted that the staffing is important because that is how the Commission does its job is through staffing. She noted Charter duties as well as the departmental priorities. She described that a focus on heightened awareness of laws is important so that this is something known to regulated community.

Pelham then discussed proposed Budget requests. First, she proposes renewing the IS Engineer position. The position expires in 2023 and needs to be renewed. Next, she proposes seeking resources for Client Support Services, which also expires June 2023.

Next, she proposes more resources for the Policy Divisions. Position reclassification is needed because of the ongoing demands of the positions and the need to be reclassified is apparent based on the level of the work that is demanded.

Next, she proposes more resources for the Audit Division by adding a Senior Auditor position. The Commission lost an auditor position with the reclassification of one position to become the audit manager. The Division needs an 1823 Senior Auditor to work with the team. She proposes a 3-year limited term exempt position for this role.

Pelham also discussed core business needs to maintain work, including resources to enable Department of Technology assistance with software and device support.

She also intends to repurpose an existing position. The 1840 fines collection offices will be repurposed as a Finance and Operations Coordinator. The role will assist with roles related to the Commission’s meeting and other functions that are currently being held by other employees. Fines collection will be incorporated in the SARP program. his repurposing will be done with existing resources and does not require additional resources.

No public comment was received.

Commissioner Finlev noted that there are four positions for education and assumed that is not for the entire city. He asked will DHR be assisting with this training. Pelham noted these positions were approved in the previous year’s budget. She discussed plans for providing training to city employees going forward on the city’s ethics laws.

Commissioner Bush asked about contracting for additional work by technical offices and could those be contracted out or do they need to be done within the city? Pelham said that the Commission works with the Office of Contract Administration and that office would be to be able to advise about contracting out to obtain external services. Commissioner Bush asked would these include a review to see if there need to be further disclosures and possibly a fee for these required disclosures to oversee and monitor their compliance with laws. He gave the example of contractors who are prohibited from making contributions; there should be a fee attached to the contract to oversee the conduct and compliance

Commissioner Bush discussed Form 700 filings, include a requirement that city employees have read the City Attorney’s Good Government Guide and SIA which would require additional staff time. Pelham noted that this would be a policy issue that would be addressed through that process and it is not something that would be addressed through the budget process.

Bush noted the reclassification of the 1840 position and that there was no inclusion of a commission secretary, which he said is required by the charter. He also discussed a customer service plan that must be provided to the Board.

Commissioner Chiu stated that since the charter requires that a commission secretary exist that this be included in the budget.

Chair Lee stated that given the surplus, we should be expanding our staff and asked why the staffing levels were not increased. Pelham said that we are still in the hiring process for multiple positions, and typically the focus is on filling open positions prior to seeking to add additional positions. But she noted that the Commission can add positions to the proposed budget at the February meeting. Chair Lee asked to explore expanding the staff, public outreach and compliance, and needing to have staff to engage the public. She wants the budget to reflect what the Commission wants, not merely what it needs, and to present that for consideration.

Commissioner Bush noted that we need to work on outreach and provide data in a manner that is easy for the public to understand. He also mentioned lobbyist filings that are missing the outcome sought in the lobbyist disclosures. he noted the importance of giving the public the data and information they need.

Shen commented on the idea of a commission secretary. He noted that his experience with commission secretaries throughout the city is that they may not be of the type of position that would interface with the community on substantive policy issues based on the classification of the position that would not be of that level. He stated that because the commission only meets monthly a commission secretary may not be as needed as for other commissions that meet more regularly, like the Police Commission.

Commissioner Bush said that while the commission only meets monthly, there are other times during the month that the commission must respond to questions from the public. He stated that meeting minutes do not include proposed topics for discussion at future meetings. He stated that this portion is blank on the meeting minutes.

Shen said the commission should be mindful of what they would want the commission secretary to do as compared to the typical classification for that position.

Pelham noted that the meeting minutes do in fact include topics that Commissioners propose to be discussed at future meetings.

Item 6. 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 7. Adjournment.

Chair Lee asked for unanimous adjournment in honor of Commissioner Bell’s service to the Commission.

Commissioner Bell commended the Commission for its work and wished everyone his best.

Pelham thanked Commissioner Bell for his contribution and staff is sad to see him go.

Commissioner Chiu wished Commissioner Bell her best, wished she could have met him in person, and wished him well.

Commissioner Finlev commended Commissioner Bell on his contribution and service to the commission.

Commissioner Bush noted that Commissioner Bell has shown class and decency throughout his service which has been an asset for the work of the Commission.

Commissioner Bell stated that good government at the local level if of importance because the public can interact with those leaders. He appreciated the comments about him and wanted to leave the Commission with the thought that we never want to let anything leave us passive, but instead remain active in our participation in maintaining democracy.

The Commission adjourned at 1:16 p.m.

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