Minutes – May 13, 2022

Minutes as Adopted

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, May 13, 2022

Hybrid meeting conducted in-person in City Hall Room 400, 1 Dr. Carlton B.Goodlett Place, San Francisco, and also held online as a Remote Meeting via WebEx and aired live on SFGovTV

(Approved June 10, 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.)

COMMISSION MEMBERS PRESENT: With Chair Yvonne Lee, Vice-Chair Larry Bush, and Commissioners Theis Finlev, Michael Romano, and Argemira Florez Feng attending, a quorum was present.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Rachel Gage, Engagement and Compliance Manager; Pat Ford, Director of Enforcement; Bisi Matthews, Senior Investigative Analyst; Michael Canning, Acting Senior Policy Analyst; Ronald Contreraz, Online Meeting Moderator.

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

REPRESENTATIVE FROM THE CONTROLLER’S OFFICE: Mark de la Rosa, Director of Audits; Tiffany Wong, Audit Manager; Amanda Sobrepena, Audit Manager.

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

MATERIALS DISTRIBUTED:

Item 1. Call to order and roll call.

Chair Yvonne Lee convened the meeting at 10:09am and stated that the hybrid meeting is being held pursuant to the Forty-fifth Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency Dated February 25, 2020, which the Mayor issued February 10, 2022. Meeting Moderator Ronald Contreraz summarized procedures for participation by members of the public for the hybrid meeting.

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

No public comment was received.

Item 3. UPDATE WITH LABOR NEGOTIATOR – LABOR NEGOTIATIONS [Discussion and Possible Action.

Chair Lee introduced the item and explained the need to go into closed 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 November 2022 ballot measure and regulation amendments. Representatives from DHR were present to participate in closed session.

Chair Lee explained the process that public comment on Item 3 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.

Executive Director Pelham responded to process question from Commissioner Florez Feng.

Public Comment:

David Pilpel asked for an estimate of how long the closed session was likely to last, stating he had an interest in Item #6. Chair Lee responded that the closed session would take at least 45 minutes.

No further public comment was received and public comment on the item was closed.

Commissioner Finlev expressed a desire to have closed session items appear at the end of future meetings to have them be less disruptive to public comment.

Chair Lee explained that this closed session was scheduled for the beginning of the meeting to avoid conflicts with the schedules of the City negotiators.

Commissioner Finlev moved to meet in closed session under California Government Code Section 54957.6 and Sunshine Ordinance Section 67.10(e) to discuss labor negotiations. The Motion was seconded by Commissioner Romano and approved unanimously (5-0).

Motion 220513-01 (Finlev/Romano): Moved, seconded, and passed unanimously (5-0) to meet in closed session.

The Commission met in closed session from Closed session from 10:26am to 11:52pm.

Upon resuming its meeting in open session, Commissioner Finlev moved to not disclose what was discussed in closed session. The motion was seconded by Commissioner Romano and approved (5-0).

Motion 220513-02 (Finlev/Romano): Moved, seconded, and passed unanimously (5-0) to not disclose what was discussed in closed session.

CONSENT CALENDAR ITEMS

Item 4. Draft Minutes of the Commission’s April 8, 2022 regular meeting.

Commissioner Finlev made a motion to approve the April 8, 2022 meeting minutes, which was seconded by Commissioner Romano.

No discussion and no public comments were received.

The motion carried unanimously (5-0).

Motion 220513-03 (Finlev/Romano): Moved, seconded, and passed unanimously (5-0) to approve the February 25, 2022 special meeting minutes and the April 8, 2022 regular meeting minutes as drafted.

 

Item 5. Proposed Stipulation, Decision and Order In the Matter of Barbara Mumby (SFEC Case No. 1920-051).

Commissioner Finlev congratulated the staff on their work and highlighted that there are many laws on the books that are being violated and complimented staff’s ability to obtain the maximum penalty and to have Mumby agree.

Commissioner Romano expressed concern and outrage and asked a question about the maximum penalty.

Enforcement Director Pat Ford responded to Commissioner Romano’s question.

Commissioner Bush asked Ford about how this violation came to be known to the Commission.

Ford responded that the matter was surfaced through a complaint.

Commissioner Romano made a motion to approve proposed stipulation, which was seconded by Commissioner Finlev.

No public comment was received.

The motion carried unanimously (5-0).

Motion 220513-04 (Romano/Finlev): Moved, seconded, and passed unanimously (5-0) to approve the proposed stipulation as drafted.

 

REGULAR CALENDAR ITEMS

 

Item 6. Presentation by Controller’s Office on its preliminary assessment report, San Francisco Department of the Environment’s Relationship with Recology and Lack of Compliance with Ethics Rules, and discussion and possible action related to report findings and recommendations.

Director Pelham introduced this item and Mark de la Rosa from the Controller’s Office.

De la Rosa made a presentation related to the findings and recommendations contained in the Controller’s most recent public integrity report.

Chair Lee thanked the Controller’s Office for their presentation.

Commissioner Finlev asked for clarification regarding what was legal versus illegal at the time of the actions discussed in the presentation. De la Rosa noted that in the report the lack of disclosure was not illegal and directed additional question to Tiffaney Wong of the Controller’s Office.

Wong deferred to the City Attorney regarding legality but noted that the rules were not clear as to what was disclosable. Wong added that not understanding disclosure obligations indicates a lax tone at the top by former Department of Environment Director Raphael.

Pat Ford stated that staff cannot talk about any investigations currently ongoing. He added that anytime a violation of our laws comes to light staff investigate it. Ford clarified that the new behested payment rules went into effect in January of this year, which was after Raphael’s actions.

Commissioner Finlev asked to what extent does the Controller’s report help us see holes in the current statutory fabric and what loopholes the Ethics Commission can close.

De la Rosa stated that the Controller’s Office is bound to the scope of the assessment, but in the past eight assessments the reports have provided a suite of recommendations.

Commissioner Romano asked de la Rosa if there are any outstanding recommendations to the Ethics Commission.

De la Rosa replied that he was not sure how many recommendations are outstanding with the Ethics Commission, but they are tracking them and working closely with Director Pelham.

Director Pelham stated that staff have reported on the Controller’s recommendations.

Commission Romano asked for clarification that there are no outstanding recommendations to the Ethics Commission. Pelham responded that she did not believe there are any outstanding recommendations that are not already underway.

Wong noted that the Controller’s office will be issuing a 24-month report on the status of all recommendations and that there are open recommendations, but that she believes they are in progress. Wong stated that there is an item in progress for the Commission regarding closing loopholes in the Campaign and Governmental Conduct Code.

Chair Lee stated that the Commission has expressed a willingness to work with other departments on training, accountability, and reporting.

Director Pelham noted the outstanding items regarding the Campaign and Governmental Conduct Code are being addressed through ballot measure the Commission is currently considering.

Commissioner Florez Feng thanked the Controller’s Office and asked about people proactively seeking advice from the City Attorney’s Office and the Ethics Commission.

De la Rosa stated that that is slightly beyond the scope of this assessment but did note that the Commission on the Environment did recently meet to discuss the recommendations and one of the points raised was not having enough resources internally to seek help. Wong deferred to the City Attorney’s Office, but stated some departments note limited resources while others have stated the rules are unclear.

Commissioner Bush stated that the Controller’s public integrity reports have been uniformly excellent and asked about how many people have faced an enforcement action, resigned, or been removed as a result of these investigations.

De la Rosa stated he did not have an exact number on hand, but knows that Public Works, the Public Utilities Commission, Department of Building Inspection, and the Department of the Environment have all been involved. De la Rosa offered to loop back with a more exact number.

Commissioner Bush asked to what extent these investigations have been prompted by whistleblower reports.

De la Rosa stated that the focus of the public integrity reports started in response to the federal indictment of Nuru and other federal sources. De la Rosa deferred to Wong regarding whistleblowers.

Wong stated she cannot discuss whistleblower reports, but that there is a public integrity hotline that does generate investigations.

Commissioner Bush asked for confirmation that the City’s investigations are started in response to federal reports.

Wong confirmed that they are, as well as from internal risk assessments.

Public Comment:

Francisco de Costa stated several points of correction to the Controller’s report and stated that this investigation is just the tip of the iceberg and that there are many loopholes the Controller failed to address, also that the Ethics Commission did not have the tools to do a good job.

David Pilpel stated he made comments at the Environment Commission and disagreed with several points in the Controller’s report. He stated that he finds Raphael to be of high integrity and that the City should share responsibility there. Pilpel stated that the Mayor should post all executive directives on her website as they are currently hard to find. He stated he wants to know how departments are supposed to pay for these events if and if they can fundraise. He stated that celebration events are expected, but money is not allocated for them. He also asked why the Ethics Commission would investigate Raphael as she is no longer a City employee.

An unidentified caller thanked the Commission for holding this hearing and asked if the Commission has considered banning Recology from being eligible for City contracts. He also asked why people are allowed to resign and avoid fines.

No further public comment was received and public comment on the item was closed.

Chair Lee thanked Mark de la Rosa and Tiffany Wong for their presentation and stated appreciation for the Controller’s Office and that the Commission will continue to implement the recommendations directed at the Ethics Commission.

Commissioner Bush followed up on the issue of funding City celebrations and recommended that the Ethics Commission initiate a funding source with the Board of Supervisors for celebrations, potentially creating an office for appropriate fundraising and appropriate City functions.

Chair Lee stated Commissioner Bush’s recommendation would be an item for future discussion.

Item 7. Discussion of Staff Quarterly Enforcement Report, including informational presentation on the Commission’s administrative hearing process.

Pat Ford provided an overview of the Quarterly Enforcement Report and introduced Senior Investigative Analyst Bisi Matthews, who provided a presentation on the Commission’s administrative hearing process.

Public Comment:

Francisco de Costa spoke about the administrative hearing process, referenced the Sunshine Ordinance Task Force (SOTF) process and gave examples of what he would like the Ethics Commission to adjudicate. De Costa referenced a case the Ethics Commission heard and dismissed, where the respondent then continued to work in San Francisco and has been involved in corruption.

No further public comment was received and public comment on the item was closed.

Chair Lee thanked the Enforcement Division and asked Ford to include a chart in future reports that highlight repeat offenders.

Ford agreed to highlight such information and noted that information about earlier offenses would always be included when a matter comes before the Commission.

Commissioner Finlev said he knows Enforcement contacts the City Attorney and District Attorney when a matter is raised and asked if similar communications occur when a matter is concluded. Ford confirmed that those communications do occur.

Item 8. Presentation and discussion of Statement of Economic Interests (Form 700) E-Filing Expansion Project Implementation Report.

Engagement and Compliance Manager Rachel Gage gave a presentation on the Statement of Economic Interests E-Filing Expansion Project implimentation.

Commissioner Finlev asked if staff knows how often the public is engaging with the datasets discussed.

Gage responded that the Electronic Disclosure and Data Analysis (EDDA) Division does report on that information. Gage stated that she did not have that information in front of her but could keep the Commission apprised of changes in the analytics.

Commissioner Bush stated that the Commission has been waiting a long time the kind of work Gage is now doing and asked about what is know of the investments of City employees in certain companies that work with City departments. Gage deferred to Director Pelham.

Director Pelham provided information about the search tools available to the public and staff and noted the public can also work with the bulk data that is available. Pelham stated that she expects this to be a powerful disclosure tool that is available to assist with specific audits and investigations staff may perform in the future.

Chair Lee suggested having interns explore the data for the types of connections Commissioner Bush was asking about.

Commissioner Bush stated support for Chair Lee’s approach of using interns and proposed the Commission create a guide for the public on what the search tool can be used for with examples.

Director Pelham stated that this feedback is helpful in shaping the Form 700 compliance review process.

Public Comment:

David Pilpel called out staff for their good work and stated that he thinks more work is needing regarding consultants. Pilpel also mentioned that large departments frequently reorganize and there is a lag between the law and the reorganization and wanted to know how to correct that lag.

Jennifer Wagner stated she had participated in the public engagement process at the time and encouraged the Ethics Commission to go back and look at those comments. Wagner said that the Ethics Commission should encourage other commissions and boards to talk about these things in public session to help make the information more accessible.

No further public comment was received and public comment on the item was closed.

Item 9. Staff report and discussion of status of proposed amendments to strengthen City’s gift and ethics laws under consideration as 1) potential Ethics Commission ballot measure and as 2) amended Ethics Commission regulations.

Acting Senior Policy Analyst Michael Canning stated that there is no formal presentation for this item, but that he is happy to answer any questions related to the memo.

Chair Lee expressed appreciation for including information regarding racial equity and stated that the public interested in this aspect. Chair Lee asked Canning to talk about how we can address racial equity issues to make sure that certain City workers are not targeted, and that pay-to-play corruption is not the norm.

Canning reminded the Commissioners that during Item #10 of the agenda, information will be provided regarding the Commission’s Racial Equity Action Plan and that this item is focused on viewing the proposed ballot measure and regulation amendments through a racial equity lens. Canning described the process the Policy Division has been working to develop to fold racial equity concerns into the Commission’s policymaking process and described how having more robust ethics law can help address issues of pay-to-play corruption.

Commissioner Romano asked a clarifying question regarding Chair Lee’s comments.

Chair Lee elaborated that she wants to make sure we communicate to different groups that pay-to-play is not acceptable in San Francisco, particularly to groups who come from areas where that is acceptable. Chair Lee stated that she wants to understand that the public does not all come from the same place.

Commissioner Bush shared information about his time with the US Foreign Service Agency, when he traveled to multiple countries that had different cultural norms around pay-to-play and that there is nothing wrong with being aware of these different norms.

Commissioner Romano stated that he understands the focus of current discussions is to look at how the ballot measure may impact certain groups, not about whether some groups are more likely to break the law.

Chair Lee clarified that she was not saying any group should be singled out from the law, but that the Commission needs to recognize that not everyone starts in the same place, even though we should arrive at the same place.

Commissioner Finlev stated he wanted to share for the record that he had discussions related to the ballot measure with City department Directors Sheryl Davis, John Caldon, and Ralph Remmington. Commissioner Finlev encouraged other Commissioners to similarly disclose conversations they have in private about Ethics matters. He recapped his conversation, saying that concerns were expressed about the measure disproportionally impacting different communities and the acceptance of free tickets. Regarding the ticket exceptions, Commission Finlev stated that there should be an exception if attendance is necessary to the employee’s work.

Chair Lee stated that she believes there is a concern related to a single ticket versus multiple tickets.

Commissioner Finlev confirmed that this issue was raised and that he does not see why a plus-one is necessary.

Commissioner Romano asked Commissioner Finlev to elaborate on the racial equity piece of his discussions.

Commissioner Finlev stated that Director Davis did express concerns that the rules would disproportionally affect her ability to attend fundraisers.

Commissioner Romano suggested the fundraisers and entertainment tickets be treated differently and that for entertainment events there should not be an exception. He added that for nonprofit fundraisers, particularly smaller nonprofits, there should be an exception and potentially a plus-one.

Commissioner Florez Feng asked if there are any red flags associated with the descriptions of gifts being disclosed.

Chair Lee stated that it is her understanding there are already exceptions for attending events where the City official has a role to play in the event and that these exceptions are for situation where the official does not have a role to play, but there is a desire among certain communities to have officials be allowed to attend.

Canning clarified that there are existing state exceptions for when the official is giving a speech or performing a ceremonial role and that these would be carried over, what the Commission is now considering would be additional exceptions for nonprofit fundraisers and entertainment events.

Commissioner Finlev asked a question about the need for disclosure under state law when the ticket is disclosed pursuant to a ticket policy. Canning clarified that the Form 802 does require a public purpose to be disclosed, but that those public purposes are very broad.

Commissioner Finlev stated that these broad purposes could raise questions about how necessary the tickets actually are.

Chair Lee stated that some smaller CBOs rely on sponsorships to attend these events and asked what happens in this situation, when officials might not know who paid for their ticket.

Commissioner Finlev stated that this issue is largely addressed by removing liability for the gift givers and asked that it will be helpful to see the revised draft language regarding these exceptions.

Commissioner Bush recommended that a memo be sent to City departments in advance of major events that have often involved gifts and that things are held within a certain reasonableness standard. Commissioner Bush also indicated that there are more things to consider than events.

Public Comment:

Debbi Lerman from the San Francisco Human Services Network asked for an update on the process and timeline since most of the progress is happening in closed session. Lerman also urged the Commission to adopt the staff recommendation around smaller items from nonprofit organizations. Lerman also stated that Health and Human Services relies on getting city officials to come to event to help raise non-city funds.

Commissioner Romano asked if there is an exception for gifts under a certain amount of money.

Canning answered that there is not general exception for de minimis gifts being proposed.

Chair Lee asked, and Canning confirmed that there is an exception for branded promotional items from nonprofits before the Commission.

Commissioner Romano asked what can be shared with the public regarding the meet and confer progress.

Director Pelham stated that to place the measure on the November ballot, the Commission would need to act before August 5. Chair Lee noted that would be the July meeting.

David Pilpel reiterated Director Pelham and Chair Lee’s deadlines. Pilpel noted support for Commissioner Bush’s suggestion to send out a memo and said that the City Attorney’s office used to do something similar but have not in some time.

No further public comment was received and public comment on the item was closed.

Item 10. 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, racial equity work, and future staff projects. Any of these subjects may potentially be part of the Director’s presentation or discussed by the Commission.

Director Pelham provided her report, which included a discussion of departmental progress reports recently submitted to the Office of Racial Equity. She noted that the Commission is working to broaden the scope its racial equity work into the policymaking process and development analysis. Pelham also spoke about broadening staff engagement in this work with support from DHR considering the small size of the Commission as a City department. Pelham provided an update on the budget, stating that staff had this week met briefly with Mayor’s Budget staff but that there had been no other updates. She noted the Mayor’s staff noted some concern about departmental vacancy rates citywide.

Commissioner Finlev asked about what the citywide vacancy rate. Pelham responded she did not have that information immediately available.

No public comment was received.

No action was taken as the item was provided for informational purposes only.

 

Item 11.  Discussion and possible action on items for future meetings.

No discussion and no public comments were received.

Item 12. Additional opportunity for public comment on matters not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

No public comment was received.

Item 13. Adjournment.

Commissioner Bush stated he would like to adjourn in honor of the late Peter Keane and shared about Keane’s work for the City and the Ethics Commission.

The Commission adjourned at 2:41 pm in honor of former Ethics Commission Chair Peter Keane.

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