Date: December 2, 2022
To: Members of the Ethics Commission
From: Michael Canning, Senior Policy Analyst
Re: AGENDA ITEM 9 – Discussion and possible action on draft behested payments regulations.
Summary and Action Requested
This memo provides an update on the development of regulations regarding the City’s behested payment rules and presents draft regulations for the Commission to review and discuss. The draft regulations are presented in Attachment 1. Additional context and background for each draft regulation appears in Attachment 2. Staff recommends the Commission vote to approve the regulations as drafted.
Update on the Status of Behested Payment Regulation
The Commission is required to adopt rules, regulations, and guidelines for the implementation of Article III, Chapter 6 of the Campaign and Governmental Conduct Code (as specified in Section 3.630). The Code specifies that these regulations include defining and illustrating “interested party” and when a payment is made “at the behest of.” Beyond fulfilling the requirements of the Code, these regulations are an opportunity for the Commission to clarify aspects of the City’s behested payment rules and elaborate on how these rules work in practice.
These behested payments regulations would be the first since the City’s prohibition on the solicitation of behested payments from interested parties took effect in January 2022. The regulations would remove existing outdated regulations and cover the changes to the City’s behested payment rules that were approved by the Commission in August and took effect on November 6.
Since the new behested payment rules went into effect in January, Staff have been receiving questions, offering informal advice, and meeting with various stakeholders regarding these rules. In recent months, Staff held two interested persons meetings regarding these regulations and have directly communicated with various stakeholders, including representatives of the Mayor’s office and different City departments. Based on feedback received during the Commission’s November meeting, the draft regulations have been revised slightly to clarify what “at the request or suggestion of” means in the context of soliciting a behested payment and that copies of emails or other written communications are potential means for demonstrating proof that certain exceptions are applicable.
The draft regulations found in Attachment 1, seek to fulfill the Code’s requirement that the Commission enact regulations clarifying the City’s behested payment rules and address numerous matters that have been raised by stakeholders throughout the year. Additional context and rationale for each draft regulation appears in Attachment 2. The draft regulations were publically noticed on November 28, 2022, as required by Section 4.104(a) of the City Charter.
Recommended Next Steps
Staff recommends the Commission vote to approve the regulations as drafted in Attachment 1. If approved by the Commission, the regulations would be sent to the Board of Supervisors within 24 hours of adoption. If the Board did not veto the regulations, they would then become effective after 60 days.