Minutes – December 9, 2022 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, December 9, 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 January 13, 2023)

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 Flórez Feng attending, a quorum was present.

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

REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Brad Russi, Deputy City Attorney, and Jonathan Rolnick, Chief Labor Attorney.

REPRESENTATIVES OF THE DEPARTMENT OF HUMAN RESOURCES PRESENT: Carol Isen, Human Resources Director, and Shawn Sherburne, Assistant Director of Employment Services.

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. 

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

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 October 14, 2022 Regular Meeting, Item 5, Draft Minutes for Ethics Commission November 18, 2022 Regular Meeting, and Item 6, Executive Director’s Report highlighting various departmental programs and operations, including overview of continuing departmental priorities to be addressed in FY24 budget request.

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. Item 6 was informational and required no action by the Commission.

Commissioner Flórez Feng moved adoption of the Consent Calendar and the motion was seconded by Commissioner Bush. On a roll call vote the Commission unanimously (5-0) approved the motion to approve Consent Calendar items.

Motion 221209-01 (Flórez Feng /Bush): Moved, seconded, and passed unanimously (5-0) to adopt Items 3, 4, and 5 as presented on the Consent Calendar.

Item 7. Discussion and possible action on Executive Director recruitment process, which may include consideration and action to ratify selection of executive search firm to assist Ethics Commission in recruiting and screening candidates.

Chair Lee asked for an update on the executive search firm selection process.

Shawn Sherburne, the Assistant Director of Employment Services provided background on the search process and potential next steps. Sherburne noted the Commission had been provided a copy of the one bid received, which was from an executive search firm, CPS.

Commissioner Bush stated that since only one bid was received, there should be greater outreach to receive more submissions. Commissioner Bush noted the firm’s bid highlights the firm’s work with African American and Hispanic Communities, but not Asian Communities, which are largely represented in San Francisco. Commission Bush also made comments about including former Commissioners and residents of public housing in the process.

Commissioner Finlev stated that even though one bid was received, the Commission should still move forward given the time needed, unless any red flags are identified. Commissioner Finlev also noted that Commissioners and Staff could be doing outreach to specific groups as well.

Commissioner Flórez Feng agreed with Commissioner Finlev and encouraged the Commission to move forward with CPS.

Chair Lee noted that all the potential firms were contacted and only one submitted. Chair Lee note that the firm won’t find the candidate and the Commission needs to be proactive in spreading the word. Chair Lee asked Sherburne when the search could be started and if they can each meet with the selection firm.

Sherburne explained that seeing one bid is not uncommon for DHR right now and that with the current timeline CPS believes they could have a new Executive Director in place within four months. Sherburne explained the process in greater detail and encouraged the Commission to clarify who will be the main point of contact for the firm.

Chair Lee stated that the two members of the Commission on the search committee will be the main points of contact for the search firm.

Commissioner Bush objected to moving forward with the firm at this time, stating that the process does not need to move this quickly and bids from other potential vendors should be sought. Commission Bush also questioned if groups the like FPPC, Common Cause, and FEC had been contacted. Commissioner Bush stated he had drafted these concerns and would like them included with public documents for review.

Chair Lee asked Sherburne about the process for selection and what it would take to find another vendor.

Sherburne stated there are 11 approve vendors, who have gone through an exhaustive RFP process to become approved and stated it would take some time to do another RFP process and that it may not be possible. He did confirm that DHR engaged with all 11 of the approved firms to see if they would be interested in in the search and only received the one bid.

Chair Lee asked if it would take additional months to seek another vendor and Sherburne confirmed it be additional months.

Commissioner Bush asked how many other commissions are currently recruiting and how long are those searches taking?

Sherburne stated there are six commissions currently recruiting, listed which commissions, and stated that some of them have been going on for a few months and some of which have also only received one bid.

Commissioner Bush stated that none of these other commissions have the complexity or level of public interaction that Ethics does, but that Ethics is on fast track for approval.

Commissioner Romano stated that he understands Commissioner Bush’s concerns, but still thinks the Commission needs to move forward.

Commissioner Romano made a motion for the Commission to approve the contract with CPS. Commissioner Flórez Feng seconded the motion.

Commissioner Bush noted his opposition to the approval of the contract.

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

Commissioner Bush noted that there is a need for discussion on where the Commission is going, and this should involve a review of the Executive Director’s duties before moving forward.

Motion 221209-02 (Romano / Flórez Feng): Moved, seconded, and passed (4-1) to approve the contract with CPS, with Commissioner Bush in the dissent.

Chair Lee stated that the search committee will be taking a very active role and will be contacting Sherburne on Monday morning to start scheduling meetings.

Commissioner Bush noted that there was no public comment on this mater and that this highlights something is seriously wrong and that the new Executive Director is the first step in that process.

Item 11. UPDATE WITH LABOR NEGOTIATOR – LABOR NEGOTIATIONS [Discussion and Possible Action.

Chair Lee introduced the item and explained the basis for the closed session discussion with labor negotiators. 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.

Public Comment

Charles Marsteller asked approximately how long the closed session would take and thanked the Commission for its due diligence on public comment. Chair Lee responded that closed session would last at least 45 minutes.

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

Commissioner Romano 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 Flórez Feng and approved unanimously (5-0).

Commissioner Finlev noted that he believes it is inappropriate to have closed session items ahead of other action items. Chair Lee state that Director Isen’s availability only recently became known and that her presence is necessary to meet in closed session, per the Deputy City Attorney’s guidance.

Motion 221209-03 (Romano / Flórez Feng): Moved, seconded, and passed unanimously (5-0) 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 10:50 a.m. After reconvening in open session at 11:50 p.m., Commissioner Finlev made a motion to not disclose matters discussed in closed session, which was seconded by Commissioner Flórez Feng.

Commissioner Bush asked why the Commission should not disclose what was discussed. Russi stated that the basis for the closed session was to enable the Commission to have a frank discussion with labor negotiators about the meet and confer process.

Commissioner Finlev stated that they should discuss whether to keep the information confidential before going into closed session, rather than after.

Commissioner Bush started to discuss what was discussed in closed session and Commissioner Romano reminded commissioners that they should not discuss closed session matters unless the Commission has voted to do so.

Motion 221209-04 (Finlev/Flórez Feng): Moved, seconded, and passed (4-1) to not disclose matters discussed in closed session, with Commissioner Bush in the dissent.

Item 8. Discussion and possible action regarding request for waiver of post-employment restrictions for Phillip Wong.

Canning introduced the item and summarized the findings of the Staff memo regarding Phillip Wong’s post-employment waiver request.

Commissioner Finlev asked if Wong might be able to respond to the Staff memo in writing.

Canning clarified that the Commission needed to hear this item at today’s meeting, since Wong had submitted the request more than two weeks before the meeting, but that there isn’t a requirement for the Commission to vote today.

Phillip Wong made a presentation describing the details of his waiver request.

Chair Lee asked if Wong was aware of these post-employment restrictions before he started his position with the City. Wong stated he was not aware of them at the time.

Chair Lee asked if he found out about them when he was offered the new job with BRIDGE Housing. Wong replied that his colleagues said he should ask the City Attorney’s Office about a potential waiver and noted that BRIDGE Housing is waiting to see if he receives the waiver before finalizing the job.

Commissioner Romano asked the City Attorney if the basis of the waiver is personal gain or the potential for undue influence. Russi stated it was to prohibit potential undue influence. Romano then invited Wong to explain how no potential for undue influence exists, and they discussed the definition of that term, which Russi confirmed did not exist in writing.

Commissioner Romano asked if Wong thought there would be a situation where the City would accept a proposal from Wong over a better offer from someone else. Wong stated that Potrero HOPE SF will be completed regardless of his involvement.

Commissioner Finlev stated these types of situations are the exact reasons why these laws are in place, and stated it is not clear exactly what types of interactions there would be going forward between Wong and the City. Commissioner Finlev asked Wong to provide more detail and respond to Staff’s memo. Wong confirmed he could respond in writing.

Commissioner Romano asked Wong to respond assuring the Commission that proposals would not be selected just because they were from Wong and to describe what he understands ‘undue influence’ to mean. Commissioner Romano also asked Russi to brief the Commission on the term ‘undue influence’ as well.

Commissioner Bush asked about Wong assuring the Commission about the ability for PG&E power hook ups to be completed on time. Wong stated he is familiar with this and has worked with PG&E in the past.

Chair Lee stated that this wavier is difficult to consider compared to others, summarized the rules, and spoke about concerns over the precedent granting this waiver could set.

Canning clarified that the Ethics Commission Regulations allow for a representative from the requestor’s department to also present and that Judson True had prepared a presentation.

Judson True, the Director of Housing Delivery made a presentation in support of Wong’s waiver request.

Chair Lee asked Wong to provide a job description for the new position.

Commissioner Romano asked if the undue influence is related to decisions True’s team would make and asked about situations where they may disagree with Wong in his new role. True stated he could not think of any potential substantiative disagreements.

Commissioner Flórez Feng asked about what would happen if the facts presented as part of the waiver changed. Canning confirmed a Wong would likely need to reapply for a new waiver if the facts provided were no longer applicable or accurate.

Public comment.

Maggie Madison spoke in favor of Wong’s waiver request, spoke highly of him as a person, and said she did not think he would have undue influence over City officials.

Catherine Edsal, the Director of Development at John Stewart Company spoke in favor of Wong’s waiver request, having worked with him for three years.

Jason Liu, Director of Policy Development of Potrero HOPE SF, described the project and stated that Wong would be great in the new role.

John Thomas of the Public Works Infrastructure Task Force stated that there is not a single point of interface between the City and BRIDGE Housing and spoke in favor Wong’s waiver request.

Ryan Vance Island, the Director of Potrero HOPE SF, spoke in support of the wavier request, saying that Wong’s experience would not give him undue influence, but would provide a resource to affordable housing developers.

Lydia Ellie of MOCED spoke in support of the waiver, stating that the project has already been approved and could not be amended without approval of several departments and the Board of Supervisors.

Hank Heckel of the Mayor’s Office referenced three previous waiver requests that were submitted as evidence in support of Wong’s waiver request.

Commissioner Flórez Feng noted that in the waiver Heckel mentioned there was an exception that allowed for communications on a specific project and wanted the other Commissioners to know that this may be an option.

Raine Dare of Mercy Housing spoke in support of Wong’s waiver request, stating that she understood the concern over undue influence, but did not believe Wong would have the opporutnity for that kind of influence because the project had long been decided.

Francisco DeCosta described the purpose of the law and said the Commissioners should deny the waiver request, because these rules are in place to prevent these types of situations and if taken to court the Commission would lose.

Shawa Gates of the Public Works Task Force described Wong’s role at OEWD and how it would be different from the potential new position.

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

No action was taken and the Commission continued the item to the next meeting.

Item 12. Commendation for the Executive Director.

Commissioner Romano stated he appreciated Pelham’s time and effort with the Commission and is sad to see her go.

Commissioner Flórez Feng echoed Commissioner Romano’s comments and stated she was grateful to have had time with Pelham.

Commissioner Bush describe how the Commission was prior to Pelham’s arrival and thanked Pelham for her efforts and the changes she has made to the Commission and wished her well.

Commissioner Finlev stated he had looked forward to working with Pelham on the Commission and wished her well.

Chair Lee thanked Pelham and presented a framed work from a local artist to Director Pelham.

Commissioner Romano noted he had a conflict and was excused from the meeting at 1:30pm.

Public comment.

Hank Heckel thanked Pelham for her service to the City.

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

Item 9. Discussion and possible action on legislation to amend campaign finance disclaimer requirements to comply with court order.

Canning introduced the item and summarized the Staff memo regarding proposed legislation that would amend the City’s disclaimer requirements to comply with a court order.

Commissioner Finlev made a motion to approve the proposed legislation, which was seconded by Chair Lee.

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

Motion 221209-05 (Finlev/Lee): Moved, seconded, and passed unanimously (4-0) to approve the proposed legislation regarding amendments to campaign finance disclaimer requirements to comply with a court order. Commissioner Romano was not present for the vote due to an excused absence.

Item 10. Discussion and possible action on draft behested payments regulations.

Chair Lee and Commissioner Romano asked about the potential for this item to be continued to January.

Canning stated that the Code requires the Commission to enact regulations by the end of the year.

Chair Lee moved that the Commission adopt the regulations as drafted and Commissioner Finlev seconded.

Commissioner Finlev asked a question about the definition of “at the request of” and Canning provided an explanation of the changes to the draft since last month.

Commissioner Flórez Feng asked a question about email communications and Canning answered.

Public comment.

Debbi Lerman commented that she still had concerns around the regulations and the impact on nonprofit directors who also serve on Commissions and discussed how she believes there would be negative impacts.

Hank Heckel made comments about the regulations and noted some areas that might need to be interpreted more in the future but did not object to the regulations moving forward.

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

Commissioner Bush asked questions about family members who are uncompensated members of a nonprofit board of directors. Canning responded and Commissioner Finlev attempted to clarify the question.

Commissioner Bush asked behested payments being made to nonprofits where the City official has control over how the money is used. Commissioner Bush stated the regulations needed to be held over and that he was not comfortable moving forward.

Chair Lee asked Canning what would happen if the regulations were not approved today. Canning deferred to Deputy City Attorney Russi, who said it would be possible someone could take the Commission to court to force them to comply with the law.

Commissioner Bush stated he would name names regarding his concern if necessary and stated that with Commissioner Romano gone, the Commission would not have the votes to approve the regulations. Pelham clarified that three votes are required to approve regulations.

Motion 221209-06 (Lee/Finlev): Moved, seconded, and passed (3-1) to adopt the behested payment regulations as drafted, with Commissioner Bush in the dissent. Commissioner Romano was not present for the vote due to an excused absence.

Item 13. Discussion and possible action on items for future meetings.

Chair Lee asked about the scheduling of the special meeting planned for January to discuss the budget and stated she would be traveling on January 20^th. Pelham stated that the meeting rescheduling would also be contingent on the availability of meeting rooms.

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

Item 14. 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 15. Adjournment.

The Commission adjourned at 2:10 p.m.

Minutes of the Regular Meeting ofThe San Francisco Ethics CommissionFriday, December 9, 2022

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, December 9, 2022