Minutes – February 10, 2023 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, February 10, 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 March 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, Acting Director; Geraldo Moya, Onsite Clerk; Ronald Contreraz, Online Meeting Moderator; Michael Canning, Acting Policy and Legislative Affairs Manager.

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

REPRESENTATIVES OF THE DEPARTMENT OF HUMAN RESOURCES PRESENT: Ardis Graham, Employee Relations Director.

MATERIALS DISTRIBUTED:

Item 1. Call to order and roll call.

Chair Yvonne Lee convened the meeting at 10:03 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:

Winship Hillier spoke complaints from the public regarding the Sunshine Ordinance, asked about a compliant he submitted, and noted speaking with Investigator Eric Willett about it in the past. Chair Lee asked Mr. Willett to follow up with Mr. Hillier.

David Pilpel asked if Item 12(e) on the agenda would be heard today. Chair Lee confirmed the item would be being continued to the March meeting.

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 January 13, 2023, Regular Meeting, Item 5, Draft Minutes of the Ethics Commission January 20, 2023, Special Meeting, and Item 6 Acting Executive Director’s Report highlighting various departmental programs, operations, and staff news.

Public Comment:

David Pilpel noted a spelling error on the January 13 minutes and that it is unusual in minutes for subsequent references to a person to be limited to their last name. Pilpel also noted that Gary Winuk’s name was misspelled in the January 13 minutes.

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

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 Finlev moved adoption of the Consent Calendar, with an update to Gary Winuk’s name in the January 13 minutes 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 230210-01 (Finlev / Romano): Moved, seconded, and passed unanimously (5-0) to adopt Items 3, 4, and 5 as presented on the Consent Calendar with amendment to Item 4.

Item 7. Election of Commission Officers for 2023 per Ethics Commission Bylaws, Article IV, Section 1.

Acting Director Thaikkendiyil provided an overview of the nominating process.

Chair Lee self-nominated herself to continue serving as Chair.

No other nominations were made.

Commission Finlev asked Commission Bush if he would like to remain as Vice Chair. Commission Bush confirmed he would.

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

Commissioner Finlev stated he appreciates the lack of drama on the Ethics Commission selection process and asked the Chair if other commissioners can have more input into the agenda.

Chair Lee stated her understanding that the agenda is set by the Chair, but that every meeting ends with an opportunity for other commissioners to suggest future items and that she works with the Director to ensure that each suggested item is included.

Commissioner Bush noted this is a critical period for the Commission and spoke in favor of Chair Lee staying on as Chair.

Motion 230210-02 (Lee): The Commission voted unanimously (5-0) to elect Yvonne Lee Chair of the Commission.

Chair Lee thanked her fellow commissioners for their trust and spoke about the importance of their diverse perspectives.

Chair Lee nominated Commissioner Bush to continue to serve as Vice Chair and spoke in support of Commissioner Bush.

Commissioner Bush accepted the nomination for Vice Chair.

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

Commissioner Bush spoke about being appointed by the Board of Supervisors and the importance of encouraging greater participation in City government.

Motion 230210-03 (Lee): The Commission voted unanimously (5-0) to elect Larry Bush Vice Chair of the Commission.

Item 8. Discussion and possible action on Executive Director recruitment process, which may include participation by a representative from the executive search firm.

Chair Lee provides an update and thanks the Director and the DHR liaison for their hard work and spoke about upcoming stakeholder meetings regarding the search.

Chair Lee and Acting Director Thaikkendiyil spoke about the logistics of the upcoming meetings.

Pam Derby from the executive search firm (CPS), gave a presentation on the status of the process and next steps.

Commissioner Bush asked if candidates will be identified by which Commissioner or former official proposed them. Derby responded that no, CPS would not provide that info, but could if requested by the Commission. Commissioner Bush stated that it could be helpful to know.

Chair Lee added that the selection process must be fair and transparent and that she would prefer CPS not provide the information Commission Bush is asking about due to privacy concerns.

Commissioner Romano clarified with Derby that CPS will be bringing just two or three candidates to the full Commission for review.

Commissioner Flórez Feng asked about how Commissioners can contribute to there being diverse candidates and Chair Lee suggested there is a list of organizations for targeting that they can contribute to.

Commissioner Bush asked that candidates disclose if they have ever attended an Ethics Commission meeting before or been involved in any campaigning or lobbying.

Commissioner Finlev stated he agreed with Commissioner Romano that only the finalists need to be brought to the entire Commission but would like a repository created of all applications that the commissioners can review. Regarding Commissioner Bush’s comment about knowing who referred a candidate, Commissioner Finlev stated the candidate is being picked on merit so it should not matter who referred them, but does hope applicants will provide a list of references.

Public Comment:

David Pilpel asked that Ms. Derby’s presentation be posted online and encourage the Commission to hold the listening session as remote or hybrid. Pilpel also asked that a link to the brochure be posted.

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

Chair Lee asked the director to add a separate page regarding the executive search to the Commission’s website and noted that the search subcommittee has a standing weekly meeting with CPS and the DHR liaison. Chair Lee noted the subcommittee will review every applicant that comes through.

Commissioner Finlev restated that he would like a repository of resumes available to all commissioners.

Commissioner Romano asked that there not be updates at each Commission meeting until there are finalists to be brough to the Commission and that other updates can be posted on the Commission’s website. Commissioner Finlev agreed that updates only need to be made if there are issues the Commission needs to weigh in on.

Derby noted that most Commissions have a dedicated website for their executive search.

Item 9. Discussion and possible action regarding the impact of the upcoming termination of the Governor’s COVID-19 emergency proclamation and the Mayor’s emergency order on current Ethics Commission hybrid meeting operations and whether to continue to resource and provide online and telephone conferencing services to facilitate remote public comment.

Commissioner Finlev stated that he suspects everyone would prefer the Commission continue taking remote public coming.

Canning noted that there are recommendations from the City Administrator forthcoming.

Public Comment:

David Pilpel spoke regarding Item 8, stating that the Commission should look at outreach to internal City candidates as well. And that the Commission should absolutely continue remote public comment.

Debbi Lerman stated support for Staff recommendation to continue remote public comment and that doing so would send a signal that the Commission values public participation.

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

Commissioner Flórez Feng moved to continue remote public comment, the motion was seconded by Commission Finlev and approved unanimously (5-0).

Motion 230210-04 (Flórez Feng / Finlev): Moved, seconded, and passed unanimously (5-0) to continue offering remote public comment at Commission meetings.

Item 10. Discussion of the BOS Resolution (File No. 221211) urging the Ethics Commission to timely complete backlog of outstanding audits, and updates from the Audit program.

Acting-Director Thaikkendiyil noted this item was added to the agenda based on a request for an update by the Commission at last meeting, regarding a motion passed by the Board of Supervisors in December 2022.

Linda Fong gave a presentation and noted that Board’s resolution urged the Commission’s Audit Division to timely work through the audit backlog, create the core components of a long-term sustainable audit function, and to seek assistance if possible. The presentation provided updates and an overview of the Commission’s audit function.

Commissioner Finlev asked Fong about the plan to use existing resources to cover audits and Fong stated that even if a contract is not acquired, Staff can address the backlog and complete audits in a more timely manner.

Thaikkendiyil explained the reason why contracting has taken so long in the past and why the situation is different now.

Commissioner Romano asked questions about the audit function generally and discussed with Fong how goals are established for the quantity of audits to be completed.

Commissioners Romano and Finlev discussed the likely number of political committees operating within the City and Finlev estimated it is closer to 100 than to 10.

Commissioner Flórez Feng asked about the process for working with contractors and the sort of training they would receive. Fong responded that that is something that is currently being evaluated to decided if the firm would follow its own process or use a process established by the Commission.

Commissioner Flórez Feng and Fong discussed more of the logistics regarding the hiring of a contractor.

Thaikkendiyil added that in the past when the Commission has worked with an external auditor, the Commission had provided them with Commission procedures to follow and that following the Commission’s processes would be built into the contract.

Commissioner Bush stated that he believes the law requires an audit of at least one lobbyist was passed in 2015, and that the Commission pushed it to the side for several years. Commissioner Bush noted that the FPPC began to undertake audits on behalf of local governments, so the FPPC helping with audits is an option.

Public Comment:

David Pilpel stated that this is not a new issue and requested short audit updates in the monthly director reports and in the semiannual report. Also stated that campaign audits should be prioritized over lobbyist audits and Form 700 reviews.

Francisco Da Costa stated that SOTF is not working and that the Commission knows how it is performing. Da Costa stated that the Commission needs standard operating procedures, timelines, and goals, and that the Commission needs resources, as outsourcing audits doesn’t work.

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

Item 11. Public comment, discussion, and possible action regarding Ethics Commission budget proposal for Fiscal Year 2024 that begins July 1, 2023.

Acting-Director Thaikkendiyil gave a presentation on the budget, which was a follow-up to January 20 meeting and noted the next steps are to finalize the budget submission by next week.

Commissioner Bush stated that a better picture is needed of the top 10 lobbyists and their economic impact on the City.

Public Comment:

Francisco Da Costa stated that the presentation was very general, with no timelines or goals. Stated that the Commission clearly has insufficient resources to address its backlog and have quality control. Da Costa stated there is a need for accountability and transparency.

David Pilpel noted that the budget covers FY 2024 and FY 2025. Pilpel stated that he hopes the Mayor and Board will engage with the Commission on the budget and that there are significant shortfalls, which will be a constraint on the Commission’s ability to fulfill its mandate.

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

Commissioner Romano moved to submit the budget proposal to the Mayor, the motion was seconded by Chair Lee and approved unanimously (5-0).

Motion 230210-05 (Romano / Lee): Moved, seconded, and passed unanimously (5-0) to submit the proposed budget to the Mayor.

Item 12. POTENTIAL CLOSED SESSION ITEMS – Confidential closed session discussion and possible action the status of the ongoing meet and confer concerning the Ethics Commission’s gift and ethics recommendations for City law with labor negotiators and a probable cause determination for a complaint alleging violations of the Campaign Finance Reform Ordinance, Article III, Chapter 2 of the San Francisco Campaign and Governmental Conduct Code.

Chair Lee declared that Item 12(e) regarding the determination of a probable cause was being continued to the Commission’s next meeting, making Items 12(b) and 12(g) no longer relevant.

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 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 Bush 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 (5-0).

Motion 230210-06 (Bush / Finlev): 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 12:07 p.m. After reconvening in open session at 1:08 p.m., Commissioner Finlev made a motion 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 Romano and approved by a vote of 4-0, with Commissioner Bush unable to vote due to technical difficulties.

Motion 230210-07 (Finlev / Romano): Moved, seconded, and passed (4-0) to not disclose matters discussed in closed session, with Commissioner Bush unable to vote.

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

Commissioner Finlev requested an overview of the political committees operating within the City and who they represent, to better understand the universe of committees in the City.

Commissioner Romano expressed a desire to shorten meeting days and trim fat from meetings wherever possible, stating that meetings could be more efficient. Commissioner Finlev agreed with this sentiment.

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 1:13 p.m.