Minutes – October 14, 2022 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, October 14, 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 December 9, 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 and Argemira Flórez Feng attending, a quorum was present. Commissioner Michael Romano had an excused absence.

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

REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Brad Russi, Deputy City Attorney.

REPRESENTATIVES OF THE DEPARTMENT OF HUMAN RESOURCES PRESENT: Kate Howard, Managing Director and Ardis Graham, Employee Relations Director.

MATERIALS DISTRIBUTED:

Item 1. Call to order and roll call.

Chair Yvonne Lee convened the meeting at 10:04 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 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.

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.

Public Comment

Charles Marsteller read from a prepared statement spoke about how the ability to amend voter passed measures should only be done by super majority votes and that amendments should further the purposes of the act. Marsteller suggested the Commission take matters directly to the voters.

Commissioner Bush asked a question about non-profit lobbyist disclosures and discussed with Deputy City Attorney Russi if this could be discussed at today’s meeting, Russi stated this item was not on the agenda and therefore could not be discussed.

Francisco Da Costa spoke about concerns over the switching of deputy city attorneys and stated the Ethics Commission has failed in its duties.

Louis Scott stated agreement with Marsteller’s earlier comments and asked the Commission to schedule a future agenda item to restore the super majority requirement to amend voter passed initiatives.

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

Consent Calendar, Items 3, 4, 5, and 6.

The Commission took up its consent calendar on Item 3, Resolution on Continuation of Remote/Hybrid Commission Meetings, Item 4, Draft Minutes of the Ethics Commission July 8, 2022 Regular Meeting, Item 5, Draft Minutes for Ethics Commission July 27, 2022 Special Meeting, and Item 6, Draft Minutes for Ethics Commission August 12, 2022 Regular Meeting.

Item 7 was removed from the Consent Calendar at the request of Commissioner Bush.

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, 5, and 6.

Commissioner Finlev moved adoption of the Consent Calendar and the motion was seconded by Commissioner Bush. On a roll call vote the Commission unanimously (4-0) approved the motion to approve Consent Calendar items.

Motion 221014-01 (Finlev/Bush): Moved, seconded, and passed unanimously (4-0) to adopt Items 3, 4, 5, and 6 as presented on the Consent Calendar.

Item 8. Discussion and possible action on beginning an Executive Director recruitment process. The Executive Director has notified the Commission of her decision to resign effective January 23, 2023.

Chair Lee commended Director Pelham for her work with the Commission, stated that the search process will be transparent, open, and inclusive, and introduced Kate Howard from DHR to present on the search process.

Kate Howard, Managing Director of DHR presented on the process by which a Commission can begin the search to fill the Executive Director position.

Chair Lee stated the Commission was dedicated to getting a new director by January and asked if it was possible to use a hybrid model such as providing the recruitment firms the candidate search criteria when the Commission initially asks for proposals from the firms. Howard confirmed the more information they can give the firms early, the better.

Commissioner Finlev confirmed with Howard that the Commission would not be obligated to choose a firm that has bid and suggested the Commission vote to have DHR request proposals.

Commissioner Finlev and Chair Lee discussed with Howard how to balance open meetings with candidate confidentiality.

Chair Lee said the Deputy City Attorney would walk the Commission through the search process and asked Commissioners if they had any further questions for Howard.

Commissioner Flórez Feng said that she did not have any questions for Howard and that she agreed with Commissioner Finlev that the Commission should vote to request proposals.

Commissioner Bush stated that he had general comments on this topic and Chair Lee asked for comments to be held until after the Commission heard from the Deputy City Attorney.

Howard stated that a DHR representative will be attendance at future Commission meetings to assist the Commission in this process.

Chair Lee asked the Deputy City Attorney Russi to walk the Commission through what it can do as a Commission to carry out the recruitment process.

Russi stated that the choice to convene as a full commission, sub-committee, or delegate responsibility to a single Commissioner are all options available to the Commission. Russi provided additional details on this process.

Commissioner Finlev asked about the need to meet in closed session to review resumes and Russi stated that such materials could be shared directly with Commissioners prior to meetings.

Chair Lee asked about the ability to have a sub-committee do some of this work and Russi stated that a sub committee of three or more members would constitute a meeting.

Commissioner Bush said that he was involved in the search that selected Pelham and described how that process worked and stressed the Commission should not restrict itself to finding a replacement before Pelham leaves and that an interim director can keep important work going while the Commission searches.

Commissioner Finlev agreed with Commissioner Bush’s comment and confirmed with Russi that the Deputy Director becomes Acting Executive Director if the Commission does nothing.

Chair Lee added that Pelham is the Director through January 23^rd.

Commissioner Flórez Feng asked whether a staff member interested in the Director position must announce their interest early on and before the Commission began the process and discussed with Russi the need for interested staff to not involve themselves in any aspect of the search process. Russi stated that Pelham had sent a City Attorney’s Office memo about this to Staff already.

Commissioner Flórez Feng, Chair Lee, and Commissioner Finlev discussed the scope of the search, how many candidates to expect, and the role of a subcommittee.

Commissioner Finlev confirmed with Russi that it was not necessary to vote to form a subcommittee and that the Chair could do that on her own.

Commissioner Finlev stated he supported a subcommittee comprised of the Chair and Vice Chair.

Commissioner Bush stated he thought it best to revisit the position description to reflect the contemporary issue’s facing the Commission and noted that Chinese language voters were very engaged and that none of the Commission’s posting were in that language. Commissioner Flórez Feng agreed.

Chair Lee confirmed with Russi that it would violate the Brown Act for individual Commissioners to communicate their desired qualifications with subcommittee.

Commissioner Finlev stated that it made sense to draft the position description in a full meeting and asked whether the Commission could request proposals based on the previous description.

Chair Lee stated she would like the description to include a general list of qualities the Commission would like to see in a candidate.

Commissioner Bush said that he would like the Commission to also pursue alternatives to the pre-approved pool such as asking other Ethics Agencies how they choose their Directors and solicit their views on what they find necessary. Commissioner Bush also said that the Commission could ask for input from previous Commissioners such as Daina Chiu. Chair Lee agreed that the Commission should cast a wide net while adhering to the legal requirements.

Commissioner Finlev stated he would like to make a motion to request for proposals from the pre-approved pool of search firms.

Commissioner Flórez Feng said that she supported a motion that has yet to be made to request proposals and asked for clarification on the sub committee’s role.

Chair Lee stated she envisioned the subcommittee would conduct the leg work of engagement such as reach out to previous commissioners and other stakeholders.

Com Finlev made a motion to request proposals from the pre-approved firm pool and supply them with the previous Director job description as amended by the Chair or others. He also stated that he would like the RFPs to be provided by the next Commission Meeting.

Commissioner Bush said that he would like to amend Commissioner Finlev’s motion to direct DHR to also request proposals from firms in addition to the pre-approved pool.

Chair Lee stated that it was her understanding that to go beyond the pre-approved pool would take up to a year, and that the Commission must do its due diligence to direct the firm and to refine the search.

Commissioner Finlev clarified that his motion was purely to request proposals.

Commissioner Bush cautioned that these firms would provide a limited group of candidates.

Chair Lee emphasized that the Commission was the driver in this process and must decide on the search parameters.

Commissioner Bush confirmed that he had made his points clear.

Chair Lee called for public comment. No public comment was received on the item.

Commissioner Finlev moved to direct DHR to submit Requests for Proposals from executive search firms, the motion was seconded by Commissioner Flórez Feng, and approved unanimously.

Motion 221014-02 (Finlev/ Flórez Feng): Moved, seconded, and passed unanimously (4-0) to direct DHR to submit Requests for Proposals from executive search firms.

Item 7. Executive Director’s Report highlighting various departmental programs and operations.

Director Pelham stated she was happy to answer questions about the Executive Director’s Report and highlighted several items contained within the report.

Commissioner Bush stated that he would like to see the Executive Director’s Report include any actions taken at the state or federal level that might impact the Commission’s stakeholders, such as new FPPC rules on behested payments.

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

Item 9. Presentation and discussion of process to develop Ethics Commission behested payments regulations.

Michael Canning gave a presentation on the legal foundation and purpose of Ethics Commission regulations, along with an update on the process for developing regulations on the City’s behested payment rules.

Commissioner Finlev thanked Canning for the update and stated that it was his understanding that stakeholders expressed concerns over the language “at the behest of” because it can be broadly interpreted and supported Staff’s work to clarify that language.

Commissioner Flórez Feng stated she was excited to see what Staff would provide and asked to see drafts on a rolling basis and Canning confirmed he could provide drafts early.

Commissioner Bush asked whether the Commission was fulfilling the public’s desires with behested payments and raised two issues, 1) when the Mayor is asking for money to support a project in the City’s interest, for example Super Bowl celebrations, and 2) where the behested payment is going a nonprofit with a paid or unpaid officer who is a relative of the official making the request. Commissioner Bush suggested the Commission think about how to approach behested paymnets to not be overly broad.

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

Item 10. Discussion and possible action on Ethics Commission Draft Annual Report for the Fiscal Year ending June 30, 2022.

Pelham provided an update on the draft annual report provided to the Commissioners.

Commissioner Finlev asked if there was a specific deadline by which the Commission must issue the report and Pelham confirmed there is not.

Commissioner Finlev stated that he did not have any specific suggestions at this stage on the report but did not want to vote to adopt the report today.

Commissioner Flórez Feng stated that she already asked her specific question on the report to Pat Ford before the meeting.

Commissioner Bush said that the draft report was a very good summary and that it was the Commission’s responsibility to draft the next steps section. To that effect, Commissioner Bush stated he has a document that details his ideas that he would like to circulate to Commissioners for their consideration.

Chair Lee thanked Pelham for the report and asked staff to draft a cover letter that would describe Staff’s good work here.

Pelham confirm that Staff had received Commissioner Bush’s seven remarks and forwarded them to the other Commissioners before the meeting. She also said that staff had incorporated four of those seven comments into the draft of the report on the agenda today and that staff saw the other three comments as statements rather than something actionable to include in the draft report.

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

Item 11. 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 the item 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.

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

Commissioner Flórez Feng 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 Finlev and approved unanimously (4-0).

Motion 221014-03 (Flórez Feng/Finlev): Moved, seconded, and passed unanimously (4-0) to meet in closed session.

Chair Lee explained that the Commission will be entering closed session but that the audio and visual airing of the Commission will resume once the Commission resumes its meeting back in open session.

The Commission went into closed session at 11:55 a.m. After reconvening in open session at 1:13 p.m., Commissioner Finlev made a motion to not disclose matters discussed in closed session, which was seconded by Commissioner Flórez Feng.

Motion 221014-04 (Finlev/Flórez Feng): Moved, seconded, and passed unanimously (3-0) to not disclose matters discussed in closed session. Commissioner Bush was unable to cast a vote due to technical difficulties.

Item 12. Discussion and possible action on items for future meetings.

Commissioner Finlev paraphrased the earlier issue raised by Commissioner Bush regarding the disclosure of lobbying communications by nonprofit and Chair Lee agreed that item should be on the Commission’s next meeting agenda.

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

Item 13. 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 14. Adjournment.

The Commission adjourned at 1:20 p.m.