Policy Update on Behested Payments

August 18, 2022

For information: Ethics Commission (415) 252-3100

At its regular monthly meeting on August 12, 2022, the San Francisco Ethics Commission approved legislation proposed by Supervisor Aaron Peskin and Mayor London Breed to change the City’s behested payment rules. Following its discussion and the adoption of amendments, the Commission voted (3-2) to approve the legislation as amended.

Under Proposition E, which San Francisco voters approved in June, all legislative changes to the City’s behested payment rules must be approved in advance by both a majority of the Ethics Commission and a supermajority of the Board of Supervisors. The proposed legislation is available for public review for at least 30 days before the amendments are considered by the Board of Supervisors or any committee of the Board.

This legislation (File #220539) can be read and tracked on the Board of Supervisors website.

Background 

City law prohibits City officers and designated employees from soliciting behested payments from any person who is an ‘interested party’ to them. Under existing law, which took effect in January, 2022, an interested party is someone who is a party to a proceeding before an official’s department regarding administrative enforcement, a license, a permit, or other entitlement for use; is or is seeking to be a contractor with the official’s department; has recently sought to influence the official in an administrative or legislative action; is a lobbyist registered to lobby the official’s department; or is a permit consultant who reports contacts with the official’s department. The existing behested payments prohibition is summarized on the Commission’s website.

Based on feedback on the City’s new behested payment rules from City officials, departmental leadership, the non-profit community, and members of the public, legislative amendments were introduced by Supervisor Peskin and the Mayor in June. The proposed legislation sought to address concerns that the City’s existing behested payment prohibition is overly broad, challenging to comply with, and could harm the ability of the City to effectively partner with non-City entities. The Ethics Commission considered these proposals at its regular meeting on July 8 and its special meeting on July 27.

At its regular monthly meeting on August 12, the Ethics Commission considered draft legislation that had been further revised by the Supervisor and the Mayor based on feedback from the Commission. Following additional amendments offered by the Commission, the legislative changes were endorsed by a majority vote of the Commission. The revised legislation seeks to balance responding to concerns raised by stakeholders and clarifying the rules to promote compliance with the goal of ensuring the City’s behested payment rules are effective in practice to reduce the existence and appearance of impropriety.

Summary of Current Legislation

The current legislation would:

  1. Narrow the scope of ‘interested party’ by enacting changes that:
    • modify how involvement in a proceeding regarding administrative enforcement or a license, permit, or other entitlement for use makes someone an ‘interested party’: Existing law provides that a person involved in a proceeding regarding administrative enforcement or a license, permit, or other entitlement for use is an interested party for all of the officers and designed employees in the department. The legislative amendments would narrow this so that:
      1. only proceedings before an officer of that department make someone an interested party for the entire department;
      2. involvement in other government decisions makes someone an interested party only for the officers and designated employees that were personally and substantially involved in the decision; and
      3. matters awarded to a person on a purely ministerial basis are exempted and do not make the person an interested party for any officers or designated employees.
    • apply the ‘attempt to influence’ prong only to attempts to influence City contracts: Existing law provides that any person who tries to influence a City official on any legislative or administrative action becomes an interested party for the officer or designated employee. The legislative amendments would narrow this so that only attempts to influence a City contract’s approval, denial, extension, or amendment would make someone an interested party.
    • shorten the length of time a contractor is an interested party: Existing law provides that contractors are interested parties for 12 months following the end of their contract term. The legislative amendments would make City contractors no longer interested parties once five years have elapsed since the execution of the contract, without any amendment, extension, or renewal.
  2. Modify the ‘interested party’ definition to include lobbyist clients and affiliates of lobbyist clients: Existing law provides that lobbyists who are registered to lobby an officer’s or designated employee’s department are interested parties for those officers and designated employees. The legislative amendments would expand this to also define lobbyist clients and affiliates of lobbyist clients as interested parties if their lobbyist has contacted the department within the last 12 months.
  3. Create new exceptions to the behested payment rules that:
    • exempt payments less than $1,000: The City’s existing prohibition on soliciting behested payments from interested parties applies to payments of any amount. The legislative amendments would exempt payments with an aggregate value of less than $1,000 within a 12-month period.
    • exempt competitively secured program solicitations: The legislative amendments would allow solicitations to interested parties if they are made under an authorized City program for soliciting donations through a competitively procured contract to charitable donations to nonprofit organizations or public schools.
    • exempt solicitations made under a City contract: The legislative amendments would clarify that solicitations made in connection with the negotiation or administration of a City contract are prohibited so long as the payment solicited directly relates to the terms of, or performance under, the contract.
    • establishes a waiver process by which the Board of Supervisors can allow solicitations that would otherwise be prohibited: The legislative amendments would allow the Board of Supervisors to permit otherwise prohibited solicitations by resolution if the Board finds that the solicitations would not create the appearance of impropriety and would be in the public interest. The Board of Supervisors would not be able to use this process to waive the behested payment requirements for itself.
  4. Make other clarifying changes to the City’s behested payment rules and require the Ethics Commission to issue regulations further clarifying and interpreting the City’s behested payment rules by January 1, 2023.

Next Steps

The Rules Committee of the Board of Supervisors may consider potential action on the pending legislation in early September following the Board’s return from its summer recess. This legislation (File #220539) can be read and tracked on the Board of Supervisors website.

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