Summary and Action Requested
This memo provides background and analysis to assist the Commission in determining whether to grant a post-employment waiver to Tracey Packer. The Commission should evaluate Ms. Packer’s waiver request and as required by City law, consider if not granting Ms. Packer’s waiver would cause extreme hardship for Ms. Packer.
This memo is an updated version of the Staff memo presented when Ms. Packer’s waiver request was first considered during the Commission’s July 2023 meeting.
On June 29, Tracey Packer sent a formal request to the Commission asking that part of the City’s post-employment restrictions in the Campaign and Governmental Conduct Code (C&GCC) be waived. Ms. Packer is a former City employee, who served as the director of the Community Health Equity and Promotion (CHEP) branch of the Department of Public Health (DPH) until July 31, 2022. Ms. Packer is seeking a waiver for the City’s prohibition on receiving compensation from City contractors imposed by Subsection 3.234(a)(3), so that she may accept a temporary, short-term consultant role with the San Francisco AIDS Foundation (SFAF). Ms. Packer’s waiver request is included as Attachment 1. The facts included in this memorandum are drawn from Ms. Packer’s written request, documents acquired through Ms. Packer, and communications between Ms. Packer and Staff.
Ms. Packer first contacted Staff about this matter on June 20. Staff and Ms. Packer exchanged multiple communications between her first contact and the submission of her waiver request on June 29. Ms. Packer’s waiver request needed to be submitted by June 30, in order for it to be considered at the Commission’s July 14 meeting. Given the limited time between Ms. Packer contacting Staff and the June 30 deadline, Staff did provide informal advice to Ms. Packer on this matter, as is standard practice, prior to the submission of her waiver request. Given the time sensitive nature of this request, Staff instead recommended Ms. Packer go ahead and submit her waiver request prior to the June 30 deadline.
The Commission considered Packer’s request at its last meeting on July 14. At that meeting, two of the three commissioners in attendance voted to grant Packer the waiver, but this fell short of the three votes required and the request was denied. However, the item was continued to the August meeting, so that all four current commissioners could have the opportunity to vote on the waiver request.
On August 9, Ms. Packer sent a letter to the Commission, supplementing her initial waiver request. This supplemental letter has been included as Attachment 2.
The City has rules for all officers and employees that restrict what former City officials can do after they leave City service. These rules include a permanent restriction on representing any other person (except the City) before any court or government agency in connection with particular matters, a one-year restriction on communicating with the former City official’s former department, and a prohibition on being employed by parties that contract with the City.
These rules further the purposes of the Campaign and Governmental Conduct Code, which per Section 3.200 is chiefly to “promote fairness and equity for all residents and to maintain public trust in governmental institutions.” The law seeks to ensure “that public officers and employees [are] independent, impartial, and responsible to the people and that public office and employment [is] not…used for personal gain.” The Code also asserts that government decisions by City officers and employees “should be, and should appear to be, made on a fair and impartial basis.”
Permanent Restriction on Representation in Particular Matters
Subsection 3.234(a)(1) of the C&GCC prohibits former employees from representing any other person (except the City) before any court or government agency in connection with particular matter in which the former employee was personally and substantially involved in as a City employee, with intent to influence. Ethics Commission Regulation 3.234-1 outlines the scope of this restriction and provides guidance on determining whether this permanent ban applies to certain activities.
One-Year Restriction on Communicating with Former Department
Subsection 3.234(a)(2) of the C&GCC prohibits former employees from, with the intent to influence a government decision, communicating on behalf of any other person (except the City) with any officer or employee of the department for which the former employee served, for one year following the termination of their employment with the City. Ethics Commission Regulation 3.234-2 outlines the scope of this restriction and provides guidance on determining whether this one-year ban applies.
Employment With Parties That Contract With the City
Subsection 3.234(a)(3) of the C&GCC prohibits current and former employees from being “employed by or otherwise receiv[ing] compensation from a person or entity that entered into a contract with the City within the preceding 12 months where the officer or employee personally and substantially participated in the award of the contract.” Ethics Commission Regulation 3.234-3 outlines the scope of this restriction and provides guidance on determining whether this prohibition applies.
This prohibition on employment with City contractors furthers the goals of the Campaign and Governmental Conduct Code by ensuring that City officials cannot help award a City contract and then become employed by the contractor who has recently benefitted from the actions of the City official.
This rule is intended to create a buffer between the time a contract is awarded and when a City official involved in the award of that contract may become employed by the contractor. This buffer is an important tool for ensuring that government decisions are, and appear to be, made fairly and impartially. Without this rule, City officials could be tempted to make government decisions with their short-term career goals in mind, rather than the best interests of the City. Even if a City official makes their decisions fairly and impartially, going to work for a City contractor within 12 months of them entering into their contract could create the appearance of corruption among the public. Just the appearance of corruption can erode the public’s faith in government and is something this rule is intended to prevent.
Waiver Authority of the Ethics Commission
Subsection 3.234(c)(3) of the C&GCC grants the Commission the ability to waive the prohibition on employment with parties that contract with the City, “if the Commission determines that imposing the restriction would cause extreme hardship for the…employee.”
Ethics Commission Regulation 3.234-4 further outlines the process for submitting and potentially approving post-employment waivers. The regulation specifies that the Commission “shall not approve any request for a waiver from the ban on receiving compensation from certain City contractors made under subsection 3.234(c)(3) unless the Commission makes a finding that imposing the restriction in subsection 3.234(a)(3) would cause extreme hardship for the individual.” When determining if not granting such a waiver would cause extreme hardship, the regulation specifies that the Commission may consider:
- the vocation of the individual;
- the range of employers for whom the individual could work;
- the steps the individual has taken to find new employment; and
- any other factors the Commission deems relevant.
When considering waiver requests, the Commission should also consider whether granting a waiver would further the purposes of the Campaign and Governmental Conduct Code. The Commission may grant a waiver only if it finds that not granting the waiver “would cause extreme hardship for the…employee.”
Waiver requests are evaluated based on the facts that are provided in the request, shared in related communications with Staff and the Commission, and found in additional documents provided to Staff and the Commission. These facts allow the Commission to evaluate whether a waiver is appropriate and must therefore be complete and accurate. Any waiver that the Commission grants is limited to the facts provided, and, should the facts change, the requestor should seek an updated waiver from the Commission.
Tracey Packer was a City employee from June of 1992, until she retired on March 4, 2023. During her City service, she held multiple positions within DPH, including the role of director of the Community Health Equity and Promotion (CHEP) branch, which she held from July 1, 2013 to July 31, 2022.
Ms. Packer has been offered a temporary, short-term consultant role with the San Francisco AIDS Foundation (SFAF). Her role would be to support the staff and programs of SFAF while the position of vice president of programs is in transition due to staff turnover in that role. Ms. Packer has stated that she estimates her time in the role would be approximately six months, during which time SFAF will be recruiting a new vice president of programs. Ms. Packer has stated that she has no interest in pursuing the position for herself.
The San Francisco AIDS Foundation has a contract with DPH (CID# 1-14737). The City and SFAF entered into this contract on January 1, 2023. This contract was competitively secured through RFP 4-2019, which was issued on September 12, 2019. The gap between the RFP being issued and the contract being entered into is due to delays caused by the COVID-19 pandemic. The contract is for health access point services, through an equity-focused, community-centered, whole person care approach to integrated HIV, HCV, and STD prevention programs for affected communities.
As a City employee, Ms. Packer was involved in the development of RFP 4-2019, which is the RFP through which SFAF was awarded the contract with City for health access point services in 2023. Ms. Packer oversaw a team that participated in developing the program priorities and funding levels for the different categories of the RFP.
Additionally, in May of 2022, the Mayor’s office increased the overall total amount of funding available for this RFP by $3,000,000. At the time of this increase, Ms. Packer’s role was to provide information to organizations about the purpose of the additional funding. In this role, Ms. Packer met with SFAF, and two other organizations that had been invovled in discussions with the Mayor’s office, to discuss the Mayor’s funding priorities. Ms. Packer communicated to SFAF and the other organizations what the Mayor’s priorities were and informed them that there would be additional meetings about this funding with other CHEP staff in the future.
Ms. Packer was not involved in the final budget decisions regarding any of the vendors, including SFAF, and left CHEP before these decisions were finalized.
Ms. Packer has specified that the consultant position she has been offered would not be funded through SFAF’s contract with the City.
The Need for a Waiver for Ms. Packer to Accept Employment with SFAF and Perform the Duties of that Position
For both the permanent restriction on representation in particular matters rule and the one-year post-employment communication rule, it does not appear that a waiver is necessary, as the position with SFAF would not require Ms. Packer to engage in the activites prohibited by these rules. If Ms. Packer wanted to represent SFAF, or any other non-City entity regarding any particular matters in which she personally and substantially participated as a City employee (such as the awarding of SFAF’s city contract), she would need to seek a waiver from the Commission to allow that representation. Similarly, if Ms. Packer wanted to communicate with her former colleagues at DPH with the intent to influence a government decision within 12 months of leaving City service, she would also need a waiver from the Commission. Ms. Packer is not currently seeking a waiver for either of these rules. Based on the facts provided, Staff does not believe a waiver for either of these rules is necessary for Ms. Packer to be employed by SFAF and perform her duties as described.
Based on the facts presented in Ms. Packer’s waiver request, Staff believes that a waiver for the restriction on employment with parties that contract with City is necessary for Ms. Packer to accept employment with SFAF.
Based on Ethics Commission Regulation 3.234-3, the restriction on employment with parties that contract with the City would apply to Ms. Packer’s proposed employment with SFAF, since:
- Ms. Packer would be accepting employment and be entitled to compensation from SFAF, which is an entity other than the City.
- The entity offering the employment, SFAF, has entered into a contract with the City during the 12 months prior to Ms. Packer receiving or being entitled to compensation.
- Ms. Packer participated personally and substantially in the award of the contract between SFAF and the City, per the definition of “participate personally and substantially” found in Ethics Commission Regulation 3.234-5(e).
Regarding bullet point #2 above, the Code and regulations are clear that the 12-month period starts when the new employer enters into the contract, not when the City official participates in the award of the contract, so the fact that Ms. Packer participated in the award of this contact more than 12 months ago does not prevent the rule from applying.
Regarding bullet point #3 above, Regulation 3.234-5(e) specifies that to “participate personally means to participate directly, and includes the participation of a subordinate when the subordinate is under the direction and supervision” of the employee. Through her work and the work of her team on the development of RFP 4-2019, Ms. Packer participated personally in the award of the contract between the City and SFAF. That same regulation specifies that “participate substantially means that the…employee’s involvement is, or reasonable appears to be, significant to the matter.” Ms. Packer’s work on developing the RFP and later work communicating with SFAF regarding the expanded budget both indicate that she participated substantially in the award of the contract.
Additionally, the fact that the position offered to Ms. Packer will not be funded by City funds, does not prevent the rules from applying, nor does the fact that Ms. Packer is only seeking a temporary position with SFAF.
In order for Ms. Packer to receive or be entitled to compensation from SFAF, within the 12 months following SFAF’s entrance into the contract (which occurred on January 1, 2023), Ms. Packer would need a waiver from the Ethics Commission for the restriction on employment with parties that contract with City.
Considering if Imposing the Prohibition on Employment with Parties that Contract with the City would Cause Extreme Hardship for Ms. Packer
When determining if not granting Ms. Packer a waiver would cause extreme hardship, the regulations specify that the Commission may consider: Ms. Packer’s vocation, the range of employers for whom she could work, the steps she has taken to find new employment, and any other factors the Commission deems relevant.
In her waiver request, Ms. Packer does not talk about being engaged in a job search and states that SFAF approached her about filling this role. Ms. Packer also does not describe accepting this position as a financial necessity; the only reference to her personal finances is to communicate that accepting the position would allow her to supplement her pension. However, during the July 14 meeting, Ms. Packer did speak to the benefits this position would bring to her household income. In her supplemental letter, Packer also stated that not receiving the waiver would cause her a financial hardship, as she would be missing the income from this project and potentially from other consultant opportunities, as she has put aside pursing other opportunities until this matter is resolved.
Regarding extreme hardship, Ms. Packer’s waiver request focuses on her enthusiasm for the work and why it is important to her. In her supplemental letter, Packer also communicated more about how uniquely qualified she is for the role, given her years of experience in the field. Packer also stated that as a retiree, she is uniquely qualified to serve in this short-term, temporary capacity, explaining that it would be difficult for SFAF to find someone else with her breadth of experience, who would be willing and able to act in such a temporary position.
Both in the July Commission meeting and in her supplemental letter, Ms. Packer clarified her previous statements regarding a willingness to provide her services voluntarily. Specifying that this pervious inquiry was not made to suggest she was willing to serve for the entire six months as a volunteer, but rather that she was enthusiastic and knew time was an important factor and was thus willing to potentially volunteer for the initial weeks, while waiting for the Commission to make its determination.
As the term “extreme hardship” is not defined in the Code or regulations, it is the responsibility of the Commission to determine, if on balance, not granting a waiver would cause an extreme hardship. While not granting the waiver may not cause Ms. Packer an extreme financial hardship, the Commission is able to look at the term “extreme hardship” as broadly as it determines is appropriate. For example, the Commission could, and in the past has, considered factors like the importance of the work being done, the level of personal and substantial involvement the employee had in awarding the contract, the timing of their involvement, the unique nature of the position, the impact on the prospective employer, the impact on the City or other stakeholders, and any other factors the Commission deems relevant, to determine if denying the waiver would cause the requestor an extreme hardship. These factors were all considered by the Commission during last month’s meeting, when discussing the waivers for Joanne Lee (which was approved by the Commission) and Ms. Packer (which was not approved by the Commission).
Much of Ms. Packer’s initial waiver request focused on whether or not a waiver would create the potential for undue influence or unfair advantage. However, the question of “undue influence or unfair advantage” is not the standard the Commission is required to use in this situation. The permanent restriction on representation in particular matters rule (Subsection 3.234(a)(1)) and the one-year restriction on communicating with former department (Subsection 3.234(a)(2)) require the Commission to consider if granting a waiver would create the potential for undue influence or unfair advantage. To this point, Staff largely agrees that the risks of undue influence or unfair advantage are minimal in this situation. While the rule prohibiting employment with parties that contract with the City (Subsection 3.234(a)(3)) does not require this standard, the Commission may wish to consider this as a factor when determining extreme hardship.
As discussed, City law only allows the Commission to issue a waiver for the prohibition on employment with City contractors found in Subsection 3.234(a)(3), if the Commission “determines that imposing the restriction would cause extreme hardship” for the City employee. The Commission has great discretion in determining what factors are relevant to determining when “extreme hardship” may occur and has the authority to evaluate any factors it deems relevant. In her supplemental letter, Ms. Packer describes more directly why she believes not receiving a waiver would cause her an extreme hardship, addressing several factors the Commission may wish to consider.
Staff had previously recommended against granting a waiver to Ms. Packer, based on a narrow view of “extreme hardship,” focused primarily on the factors listed in Commission regulations. However, based on the Commission’s precedent of looking more broadly at other relevant factors, as demonstrated during the previous Commission meeting, and a review of the supplemental letter from Ms. Packer, Staff is no longer recommending Ms. Packer’s waiver be denied. Staff recommends the Commission evaluate Ms. Packer’s waiver request and supplemental letter, review the contents of this memo, and engage with Ms. Packer and other stakeholders during the August 18 meeting, to determine if, based on any factors the Commission deems relevant, denying this waiver would cause Ms. Packer an extreme hardship. If the Commission determines that not granting the waiver would cause an extreme hardship to Ms. Packer, the Commission should approve Ms. Packer’s waiver.
Staff would like to thank Ms. Packer for her detailed waiver request, thoughtful communications throughout this process, and service to the City.
Attachment 1: Waiver Request from Tracey Packer Dated June 29, 2023