Draft Minutes – August 12, 2022

Draft Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, August 12, 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 ____)

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 SFGovTVat 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, and Commissioners Theis Finlev, Michael Romano, and Argemira Flórez Feng attending, a quorum was present. Vice-Chair Bush was delayed due to technical issues and joined the meeting at 10:14 a.m.

STAFF PRESENTING: LeeAnn Pelham, Executive Director; Geraldo Moya, Onsite Clerk; Cesar Delgado, Online Meeting Moderator; Michael Canning, Acting Senior Policy Analyst.

REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Ana Flores, Deputy City Attorney.

REPRESENTATIVES FROM THE BOARD OF SUPERVISORS PRESENT: Aaron Peskin, Supervisor

REPRESENTATIVES OF THE MAYOR’S OFFICE PRESENT: Hank Heckel, Legal Compliance Officer

REPRESENTATIVES FROM THE SFPUC PRESENT: Ron Flynn, Deputy General Manager and Chief Operating Officer

MATERIALS DISTRIBUTED:

Item 1. Call to order and roll call.

Chair Yvonne Lee convened the meeting at 10:06 a.m. 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 Cesar Delgado summarized procedures for participation by members of the public for the hybrid meeting.

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

Under Item 2, the Commission provided the opportunity for general public comment on matters not appearing on the Agenda but within the Ethics Commission’s subject matter jurisdiction.

No public comment was received, and general public comment was closed.

CONSENT CALENDAR

Consent Calendar, Items 3, 4, and 5.

The Commission took up its consent calendar Item 3, Resolution on Continuation of Remote/Hybrid Commission Meetings, Item 4, Proposed Ethics Commission Updates for 2022 Biennial Conflict of Interests Code Review, and Item 5, Executive Director’s Report highlighting various departmental programs and operations.

Chair Lee called for public comment.

No public comment was received. Chair Lee closed public comment and called the question on Consent Calendar Items 3, 4, and 5.

Commissioner Romano moved adoption of the Consent Calendar and the motion was seconded by Commissioner Flórez Feng. On a roll call vote the Commission unanimously (4-0) approved the motion to approve both Consent Calendar items (Commissioner Bush was delayed due to technical issues and was unable to a cast a vote).

Motion 220812-01  (Romano/Flórez Feng): Moved, seconded, and passed unanimously (4-0) to adopt Items 3, 4, and 5 as presented on the Consent Calendar.

REGULAR CALENDAR

Item 6. Continued discussion and possible action on legislative proposals from the Board of Supervisors and the Mayor regarding City behested payments rules.

Michael Canning provided a summary of attached meeting materials.

Commissioner Bush joined the meeting 10:14 a.m.

Supervisor Peskin addressed the Commission and explained the collaborative process between Ethics Staff, the Board of Supervisors, and the Mayor’s Office (via Hank Heckel) and the resulting legislation. He stated he agreed with Staff that the remaining outstanding issues could be left to the Commission to address through regulations and noted Chair Lee’s concern about the safe harbor provision limiting when the Commission could enforce the provisions has been addressed.

Ronald Flynn addressed the Commission and references Proposal #4, Flynn thanked the Mayor, the Ethics Commission, and Supervisor Peskin. Flynn addressed the grace period and made a statement to support the grace period to lasting until January 2023.

Chair Lee Chair Lee asked Hank Heckel if he had anything to add.

Heckel addressed the Commission, echoed Supervisor Peskin’s comments and thanked Supervisor Peskin and Ethics Staff. Heckel stated that the parties look like they are in substantial agreement other than the de minimis changes and explained the reason for the requested $1,000 threshold.

Chair Lee thanked the speakers.

Commissioner Bush asked how the $1,000 limit would work with real world examples as it seems smaller amounts happen more often. Heckel responded that he had just seen the proposed $250 and that $1,000 was the original amount proposed four years ago.

Commissioner Bush asked if there are any restrictions on types of entities, for example a non-profit that employees a family member. Heckel stated he believes that situation would be covered elsewhere in the code and is discussed in annual training materials. Commissioner Bush and Heckel commented on the importance of the public being aware of these rules.

Commissioner Finlev raised concerns regarding the exact language of over-the-counter permits. Supervisor Peskin explained the term is more of art, than science, but is open to changing the language. Commissioner Finlev stated he would like the language removed and Heckel stated he did not object to that.

Commissioner Finlev raised a concern regarding the definition of ‘proceeding’ that Supervisor Peskin and Heckel agreed to change. Commissioner Finlev also asked about the PUC grace period.

Commissioner Romano raised concerns over the changes to the ‘attempt to influence’ prong. Canning and Supervisor Peskin explained the rationale behind the proposed change, with Peskin stated he did not want to discourage people from participating in the political process. Commissioner Romano stated disagreement with changes to the ‘attempt to influence’ prong. Heckel stated that the current ‘attempt to influence’ prong was confusing and causing problems. Commissioner Romano restated his position that the ‘attempt to influence’ prong should apply to all government decisions and not be narrowed to applying to just contracts.

Commissioner Romano, Heckel, and Canning discussed interpretations of the rules and how the rules impact grants.

Commissioner Romano, Heckel, Supervisor Peskin, and Chair Lee discussed why emails are excluded from being an ‘attempt to influence.’

Commission Romano raised the question of the Ethics Commission also approving the waivers, along with the Board of Supervisors.

The Commission discussed the timing of when action would need to occur on the proposals and if there had been sufficient time for public engagement. Flores clarified the process for the Commission sending legislation to the Board for potential action. The Commission debated the need to act at this time and how the Commission’s actions would impact the Board’s timeline.

Flynn spoke about the timing needs of the SFPUC and their funding cycles and responded to questions from Chair Lee and Commissioner Finlev.

Pelham explained the issue the SFPUC is addressing arose from advice provided by the City Attorney’s Office. Commissioner Romano asked about the potential to pass a regulation to address this, and Canning stated it would take 60 days to go into effect. Pelham asked Flores about the City Attorney’s Office revising their advice to the SFPUC and Flores said that would be unlikely.

Commissioner Finlev stated he thinks the legislation as written gets the Commission a lot of the way there, but shares Commissioner Romano’s concerns and wonders about working on a subsequent piece of legislation in the future.

Flores stated that she would like to review all of the current changes so they can be on the record.

Commissioner Bush asked for clarification around entities that are the beneficiaries of funding requests and stated he does not want people thinking of nonprofits narrowly.

Commissioner Finlev asked for Supervisor Peskin’s nonbinding commitment to work with Ethics Staff and Peskin agreed to do so.

Canning stated that there a lot of things the Commission can do through regulations and provided examples.

The Commission reviewed the changes with the Deputy City Attorney and discussed issues related to the proposed changes.

Commissioner Finlev moved to approve the ordinance as amended and the motion was seconded by Chair Lee.

Public Comment

Charles Marsteller commented that he would encourage the Commission to re-read the voter statements and stated there is a risk to members of the public and to the press and that this process has been manipulated and the Commission has been caught in a web.

Debbi Lerman, San Francisco Human Services Network, stated they have deep concerns about behested payment legislation, but support the amendments put forward by Board of Supervisors and the Mayor. Lerman also commented on the definition of “interested party” and the exclusion of emails.

Francisco DeCosta asked why the Commissioners are trying to work with the Board of Supervisors and the Mayor. DeCosta stated the Commission is confusing the public and the Mayor does not want any type of monitoring or enforcement. No further public comment was received and public comment on the item was closed.

The Commission voted on the motion to approve the ordinance as amended made by Commissioner Finlev and seconded by Chair Lee. The Commission approved the motion (3-2, with Commissioner Bush and Commissioner Flórez Feng in the dissent).

Motion 220812-02  (Finlev/Lee): Moved, seconded, and passed (3-2) to approve the proposed behested payments ordinance as amended.

Item 7.  Discussion and possible action on items for future meetings.

Commissioner Bush stated he would like information provided on data points, including who are the top five campaign donors and to which campaigns did they give and how much did they give. Commissioner Bush also asked about 510(c)(4)s and stated he as a list of things that are important for the public to understand and would like them considered for the September meeting.

Commissioner Finlev stated that not for next meeting, but at some point would like to have an educational session on non-campaign political committees like 510(C)(4)s. Chair Lee stated it should be the September meeting.

Commissioner Bush stated it would be helpful for the Commissioners to know what form the recusals take, and also raised issues regarding filing officers checking the accuracy of the Form 700.

Commissioner Romano raised two items for the agenda, 1) a presentation from Staff regarding strategy on regulations and 2) an update as to where things stand on the ballot measure and next steps, if any.

Chair Lee stated that since we have mostly new commissioners usually agencies would have orientations or special gatherings to bring people up to speed on various aspects of what the Commission does, as well as the regulatory and ballot measure items. Commissioner Finlev stated that Staff should reach out to the Commissioners to determine what topics they are interested in learning more about.

Public Comment

Charles Marsteller commented that he has been working with Bob Stern for many years and has been attending Ethics Commission meetings intermittently ever since and Bob is one of the experts, should the Commission need an expert to consult with.

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

Item 8. Additional opportunity for public comment on matters not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

Chair Lee called for public comment. No public comment was received.

Item 9. Adjournment.

The Commission adjourned at 12:43 p.m.

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