Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, January 13, 2023
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 February 10, 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: Gayathri Thaikkendiyil, Deputy Director; Geraldo Moya, Onsite Clerk; Ronald Contreraz, Online Meeting Moderator; Michael Canning, Senior Policy Analyst; Olabisi Matthews, Senior Investigative Analyst; Pat Ford, Director of Enforcement.
REPRESENTATIVES OF THE OFFICE OF THE CITY ATTORNEY PRESENT: Brad Russi, Deputy City Attorney.
REPRESENTATIVES OF THE DEPARTMENT OF HUMAN RESOURCES PRESENT: Paul Greene, Principal Human Resources Analyst.
MATERIALS DISTRIBUTED:
- Proposed Resolution on Continuation of Remote/Hybrid Commission Meetings.
- Draft Minutes for December 9, 2022, Regular Meeting.
- Executive Director’s report dated January 9, 2023.
- Staff memo regarding request for waiver of post-employment restrictions for Phillip Wong dated December 2, 2022 and attachments.
- Supplemental Response to Commissioner Questions and Staff Report from Phillip Wong dated January 5, 2023.
Item 1. Call to order and roll call.
Chair Yvonne Lee convened the meeting at 10:05 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, and 5.
The Commission took up its consent calendar on Item 3, Resolution on Continuation of Remote/Hybrid Commission Meetings, Item 4, Draft Minutes for Ethics Commission December 9, 2022 Regular Meeting, and Item 5, Executive Director’s Report highlighting various departmental programs and operations, including acting Staff assignments during the period of the Commission’s recruitment process for the next Executive Director.
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 and 4. Item 5 was informational and required no action by the Commission.
Commissioner Finlev moved adoption of the Consent Calendar and the motion was seconded by Commissioner Romano. On a roll call vote the Commission unanimously (5-0) approved the motion to approve Consent Calendar items.
Motion 230113-01 (Finlev / Romano): Moved, seconded, and passed unanimously (5-0) to adopt Items 3 and 4 as presented on the Consent Calendar.
Item 6. Discussion and possible action on Executive Director recruitment process, which may include participation by a representative from the executive search firm.
The Commission heard a presentation from Pamela Derby, a representative from the executive search firm, CPS HR Consulting. The presentation updated the Commission on the Executive Director recruitment process and outlined next steps.
Commissioner Finlev stated he supports conducting an online survey and thanked Derby for her presentation.
Commissioner Bush stated that descriptions should include budget information and other related documents so that applicants can have a full picture of Commission and how its resources are allocated.
Chair Lee suggested adding an opening statement to the brochure to further explain what a great opportunity this the position is for applicants and stated that she would like the online survey and community engagement sessions started soon. Chair Lee also suggested proceeding without waiting for comments from all Commissioners to avoid slowing the process down.
Derby confirmed the brochure will include a “unique opportunity” statement at the beginning, which will include a description of the ideal candidate.
Chair Lee called for public comment. No public comment was received.
Item 7. Continued discussion and possible action regarding request for waiver of post-employment restrictions for Phillip Wong.
Michael Canning provided a summary of the matter the had been continued from last month’s meeting and informed the Commission that Phillip Wong had submitted additional materials per the Commission’s request.
Wong made an introductory statement to the Commission.
Commissioner Finlev talked about the term ‘undue influence’ and stated he did not see the possibility for undue influence in this situation. Commissioner Finlev asked what specific communications Wong would be doing with his current department in the new role.
Wong stated his communications would concern the public appraisal and disposition of market rate parcels, collaborating with the City to make sure they are approaching the right appraisers in the process and getting the right development partner.
Commissioner Finlev stated he thinks the waiver is appropriate given the provided materials, thanked Canning for his work, and stated this is how the process should work.
Commissioner Romano stated that he agrees this is a close call and on paper a waiver is not appropriate, but they are moved by Wong’s presentation. Commissioner Romano asked Deputy City Attorney Russi to speak on the definition of ‘undue influence.’
Russi stated that there is no specific case law or definition in City code, but that a court would likely look at the plain language of the regulation and ordinance, and that it comes down to a judgement call on behalf of the Commission.
Commission Romano pushed for further clarification and Russi stated that the definitions that exist are related to contract law and would not be appropriate for the post-employment rule.
Public Comment:
Ken Rich spoke in favor of Wong’s waiver request, stating that he had hired Wong and that Wong can be relied on to stay within ethical rules. Rich also stated that negotiations are over on this project and is in the implementation phase, which further reduces the risk of undue influence.
No further public comment was received and public comment on the item was closed.
Chair Lee states that she feels Wong is an ideal candidate for this type of waiver, given the commitment he has shown to the City and the housing community and that if they approve the waiver, she would like to hear from him again in the future.
Canning and Commissioner’s Flórez Feng and Finlev discussed the scope of the waiver.
Chair Lee moved to approve a limited waiver to the City’s post-employment rules for Mr. Wong, which was seconded by Commissioner Finlev and passed unanimously (5-0).
Motion 230113-02 (Lee / Finlev): Moved, seconded, and passed unanimously (5-0) to approve a limited waiver to the City’s post-employment rules for Mr. Wong.
Item 8. POTENTIAL CLOSED SESSION ITEMS – Confidential closed session discussion and possible action regarding probable cause determination for complaint alleging violations of the Campaign Finance Reform Ordinance, Article III, Chapter 2 of the San Francisco Campaign and Governmental Conduct Code.
Chair Lee introduced the item and explained the basis for the closed session discussion regarding probable cause determination for complaint alleging violations of the Campaign Finance Reform Ordinance, Article III, Chapter 2 of the San Francisco Campaign and Governmental Conduct Code. Chair Lee explained that the purpose of the item is to determine if there is probable cause that a violation has occurred, not to determine if a violation has occurred.
Chair Lee explained that the City Charter requires Commission investigations to be handled confidentially, so that no information can be shared publically about this case, unless and until, probable cause has been established. Chair Lee also provided an overview of the Commission’s enforcement processes.
Chair Lee, Commissioner Finlev, and Commissioner Romano discussed logistics and appropriateness of public comment on a confidential matter.
Pat Ford confirmed that the Charter prohibits the Commission and Staff from disclosing information before probable cause is established, but that it does not prohibit respondents from disclosing those things and that that has happened in the past.
Ford and Commissioner Romano confirmed that the Ethics Commission has not disclosed information about this case and that if the public is aware of any details, it would be because the respondent shared them.
Ford also confirmed that public comment will be reflected in the minutes.
Chair Lee stated that public comment should continue on the entire agenda item and that some information may be discussed that the Commission is prohibited from responding to, Russi confirmed this process is correct.
Public Comment:
Gary Winuk, attorney for the respondent, Debbie Raphael stated their client has no concerns over confidentiality or privacy and arranged the public commenters.
Chair Lee noted there are roughly 10 people waiting to speak.
A speaker stated they also submitted a letter, but are going to read it, they spoke to their history with Raphael and the high degree of integrity she has and her commitment to public service.
Elena Engel stated they are a longtime resident and environmental advocate, praised Raphael for her past performance and asked if the allegations against her really show corrupt intent.
Jen Jackson stated their history with Raphael, spoke about how she never worked for personal gain and how harmful this process is.
Lonnie Kent spoke about working for the City and their past working with Raphael during the COVID-19 pandemic and Raphael’s outstanding performance during that time.
Sarah Jones stated that they worked with Raphael for about 8 years and praised her work and how the City doesn’t value public servants and says they are at fault for just doing their jobs.
Mark McCormick stated they also submitted comments in writing and spoke about Raphael’s commitment to the environment and how it is wrong-headed to punish someone for going to a fundraiser.
Jeannie Rizzo commended Raphael for being a true public servant, spoke highly of her work, and asked the Commission to give her back her reputation.
Meredith Williams, spoke positively about Raphael’s public service, integrity, and dedication.
Brain Race, spoke about working with Raphael for six years, the quality of her work, and how it is a shame the community has lost someone so valuable.
David Pilpel stated that there is no public probable cause report and stated they think the allegations should be public, regardless of if probable cause is determined, and that he believes the obligations on public officials in this case are disproportionate to her behavior.
Chris Geiger spoke about knowing Raphael since 1990, working with her, her high levels of integrity, and that she is not the problem and nothing she did was in her self interest.
Eileen Sheehan stated that Raphael has integrity in abundance and had an unassailable focus on ethics.
David Hochschild stated that Raphael is the very top of talent and that this situation has harmed Raphael, her family, her career, and the larger goals of the City and State.
Gina Solomon, spoke about Raphael set a high bar for herself and how if San Francisco becomes known as a City that eats its own, it will never attract top talent.
Dr. Kelly Moran stated that she worked with Raphael since 1990, she has integrity, is dedicated to public service, and that she come back to work for the City instead of pursuing more money elsewhere.
Jerry Blumenfeld, stated they were Raphael’s boss and that they want to make sure what happened to Raphael doesn’t happen to any other civil servants every again, they think that any reasonable person would be shocked by this case and that she attended a community dinner where the value of the dinner had not been estimated correctly.
No further public comment was received and public comment on the item was closed.
Commissioner Romano moved to assert attorney-client privilege and meet in closed session under Charter section C3.699-13, Brown Act section 54956.9, and Sunshine Ordinance section 67.10(d) to discuss anticipated litigation as plaintiff. The Motion was seconded by Commissioner Flórez Feng and approved unanimously (5-0).
Motion 230113-03 (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 12:10 p.m. After reconvening in open session at 2:30 p.m., Commissioner Romano made motion a pursuant to Brown Act section 54957.1 and Sunshine Ordinance section 67.12 to maintain confidentiality of discussions held in closed session regarding anticipated litigation as plaintiff and not disclose matters discussed in closed session, which was seconded by Commissioner Finlev and approved by a vote of 4-0, with Commissioner Bush unable to vote due to technical difficulties.
Motion 230113-04 (Romano / Finlev): Moved, seconded, and passed (4-0) to not disclose matters discussed in closed session, with Commissioner Bush unable to vote.
Item 8 was continued to the Commission’s next regular meeting.
Item 10. Additional opportunity for public comment on matters not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.
Item 10 was taken out of order, so that Commission Bush could have time to rejoin to participate in Item 9.
Public Comment:
David Pilpel noted that on the website, next week’s special meeting is listed as starting at 10 a.m., but it should be listed as 1:30 p.m.
Chair Lee thanked Pilpel and noted the 1:30 p.m. is the time that should be listed.
No further public comment was received and public comment on the item was closed.
Item 9. Discussion and possible action on items for future meetings.
Commissioner Bush stated that he would like to hear from Staff about what it would take to get the required lobbyist audits completed and why they aren’t being done.
Chair Lee called for public comment. No public comment was received.
Item 11. Adjournment.
The Commission adjourned at 2:40 p.m.