Minutes – July 14, 2023 – San Francisco Ethics Commission

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
Friday, July 14, 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 August 18, 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 recording of this meeting can be found on SFGovTv.)

COMMISSION MEMBERS PRESENT: With Chair Yvonne Lee, Commissioner Argemira Flórez Feng, and Commissioner Yaman Salahi participating, a quorum was present. Commissioner Theis Finlev had an excused absence.

STAFF PRESENTING: Ronald Contreraz, Online Meeting Moderator; Gayathri Thaikkendiyil, Acting Executive Director, Steven Massey, Acting Deputy Director, Michael Canning, Acting Policy & Legislative Affairs Manager.

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

MATERIALS DISTRIBUTED:

Item 1. Call to order and roll call.

Chair Lee convened the meeting at 10:05am and stated that members of the public may participate in-person or remotely. Meeting Moderator Ronald Contreraz summarized the procedures for participation by members of the public for the 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:

A speaker mentioned that it was Bastille Day and they are French. The reason of existence is happiness, and we need to focus on beauty, or we lose our reason for being. Ethics fits in the context of our reason for being and we must focus on happiness. The speaker is fulfilling their mission and they have no choice.

A caller stated that they had difficulty hearing Chair Lee and missed the call for public comment originally. They have submitted three complaints against Mr. Colfax, Director of Health. The caller hasn’t been receiving responses to his voicemails requesting the number of the complaint.

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, Draft Minutes of the Ethics Commission June 9, 2023, Regular Meeting, Item 4, Acting Director’s Report, Item 5, Proposed amendments to the Statement of Incompatible Activities (SIA) for the Public Works Department, Public Works Commission, and Sanitation and Streets Commission, and Item 6, Proposed Stipulation, Decision and Order In the Matter of Gwyneth Borden.

Chair Lee said that it is a nice report about the budget being restored. Chair Lee thanks Acting Director and team for their work to get the budget restored. Flórez Feng seconded the thank you on restoring the budget.

Commissioner Salahi moved to adopt Items, 3, 5, and 6 of the Consent Calendar, the motion was seconded by Commissioner Flórez Feng and approved unanimously (3-0). Item 4 was informational and required no action by the Commission.

Public Comment:

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

Motion 230714-01 (Salahi / Flórez Feng): Moved, seconded, and approved unanimously (3-0) to adopt Items 3, 5, and 6 as presented on the consent calendar.

REGULAR CALENDAR

Item 7. Discussion and possible action regarding request for waiver of post-employment restrictions for Joanne Lee.

Chair Lee disclosed that she is friends with the Executive Director and has worked with the Vice Chair of the organization in this case.

Michael Canning overviewed the case. J. Lee has received a job offer for Executive Director of CMAC and is seeking a waiver to accept. Lee was involved in a related contract within the last 12 months. J. Lee argues that not receiving a waiver would be extreme hardship. The staff recommendation is to not grant the waiver to J. Lee as there are opportunities for her to take employment elsewhere and there are no signs of significant financial hardship.

J. Lee introduced herself and her current position as Deputy Director of Programs at the Arts Commission. The position at CMAC is a once in a lifetime opportunity for her as she has personal ties to Chinatown.

Director of Communications for the Arts Commission spoke in support of J. Lee, reading a letter from Ralph Remington at the Arts Commission, who could not be present.

Chair Lee asked Deputy City Attorney Brad Russi if the Commission could call for public comment before making remarks. Russi confirmed yes.

Commissioner Flórez Feng had questions for Mr. Sutton on the legal points that they made. She asked if J. Lee was interviewing before the grant was awarded. Sutton responded no. Canning explained the time buffer portion of the law. Commissioner Flórez Feng asked if J. Lee was aware that she’d be held accountable to this law when she entered into City employment. Sutton responded that yes, J. Lee knew of the law, but had no control over when the contract would be signed or how long it would take to execute.

Chair Lee stated that she grew up in Chinatown and understands its hardships and need to revitalize the community. She stated that J. Lee must have high respect given the array of people that spoke on her behalf. Chair Lee stated that this type of waiver is not commonly granted so that the public has trust in the government. Chair Lee also spoke the lack of representation of API folks in the arts.

Commissioner Salahi disclosed that he sits on the board of the Asian Law Caucus, which submitted a letter of support for J. Lee. He does not believe there is any favoritism or impropriety involved in this case. Commissioner Salahi stated that J. Lee did not disclose that she had the job offer from CMAC while working on the second contract for the Arts Commission, but that is a separate issue from the waiver request being discussed currently.

Commissioner Flórez Feng stated that she doesn’t take these waivers lightly but that this seems like an opportunity to invest in public trust.

Chair Lee moved to grant a limited waiver to J. Lee, the motion was seconded by Commissioner Salahi and approve unanimously (3-0).

Public Comment:

Aaron Peskin stated his support for J. Lee’s request for a waiver. He believes that the waiver should be limited to the position at CMAC and not apply to any future positions. He stated that the hardship would go beyond J. Lee, but also to the community of Chinatown, if she is not granted the waiver.

A speaker, Mabelle Tang, stated their support of J. Lee’s request for a waiver. Tang expressed the challenging times facing the country and the organization, and that having J. Lee as Executive Director would only aid the organization.

A caller, Vincent Pan, stated their support for the waiver for J. Lee. They state that Chinatown is facing significant challenges right now and having J. Lee on board would help the community and organization navigate these challenges. Chinatown and CMAC would be harmed if J. Lee’s waiver request is denied.

A speaker who worked with J. Lee in Chinatown previously, stated his support for J. Lee’s request for a waiver. CMAC and the City would love her professionalism.

A speaker, Jenny Lao, who has known J. Lee in her current position at the Arts Commission stated their support for J. Lee’s request for a waiver. They believe J. Lee is a community leader and a unique presence in the field of art, which doesn’t always have much POC representation in leadership.

A speaker, an Arts Commissioner, expressed their support for J. Lee’s request for a waiver. They believe J. Lee has been a superb role model for junior staff. They also believe J. Lee has the skills and ability to be Executive Director of CMAC, and that she would experience extreme hardship if her waiver request is denied.

A speaker, Malcom Young, spoke to J. Lee’s character as someone who holds herself to the highest level of integrity. They also spoke to the hardship that J. Lee would experience, beyond financial, should her waiver be denied.

A speaker, Rachelle, spoke to their time working with J. Lee at the Arts Commission. They expressed that granting J. Lee’s waiver is very applicable. They talked about the public funding and grants that support the arts in San Francisco.

A caller stated their support of the waiver for J. Lee. They stated that J. Lee has acted with integrity in her work for the City.

A speaker stated that J. Lee should receive the waiver. A waiver denial would greatly impact the City and Chinatown specifically.

A speaker, who works at CMAC, stated their support for J. Lee’s waiver request. They have worked with several Executive Director’s in Chinatown.

A speaker expressed that J. Lee is the best person to lead this organization due to her identity and experience in Chinatown.

A speaker expressed CMAC’s need for a strong leader like J. Lee and support for her waiver request.

A speaker from the Sutton Law Firm spoke to legal points related to the case. They stated that J. Lee worked on the contract in question about 16 months ago, concluding that the purpose of the law has been met. They also stated that the law should not be interpreted as broadly as staff have done. This restriction impedes J. Lee’s constitutional right to accept the employment that she wants.

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

Motion 230714-02 (Chair Lee / Salahi): Moved, seconded, and approved unanimously (3-0) to grant the waiver only for CMAC.

J. Lee thanked the Commission for granting her waiver.

Chair Lee asked J. Lee to keep the Commission informed on how the position is going so that they can learn from each other and see how the waiver is shows up in action.

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

Michael Canning overviewed the case. Packer was previously employed by CHEP and has been offered a short-term (about 6 months), temporary position with the AIDS Foundation as a consultant while they seek to fill the position permanently. Packer was involved in a contract related to the organization within the past 12 months. Packer does not plan to apply to work for the AIDS Foundation permanently as they are currently retired and receiving a pension. Staff does not believe that denying their waiver would impose severe hardship.

Packer stated that they don’t believe working for the AIDS Foundation would involve any favoritism. They would be supporting the work that’s already in the contract and not anything outside of it or anything new. Packer stated that their work on the RFP was strictly scientific in nature and that they passed the contract on for finalization. They retired before the finalization of the contract. Packer does not claim financial hardship if their waiver isn’t granted, but personal hardship. They want to support the AIDS Foundation and the community who uses the services that the Foundation provides.

Patricia Erwin, who works for CHEP, supports Packer’s waiver request. Erwin confirmed that Packer had no authority over the contract with the AIDS Foundation and this occurred about 4 years ago.

Chair Lee reopened public comment.

Chair Lee stated that Packer stated they are willing to volunteer with the AIDS Foundation as they are retired and receiving a pension. Canning confirmed that Packer offered to volunteer while the Commission made a decision, but not for the full 6 months that the waiver is requesting.

Commissioner Salahi stated his reluctance to grant the waiver. Packer was involved in created the RFP, but not allocating or determining the amount of funding in the contract. Commissioner Salahi would move to approve the waiver due to the personal hardship in light of the appearance of favoritism, which he does not see in this case.

Commissioner Flórez Feng pointed out that the contract would have been signed much earlier if it weren’t for COVID.

Commissioner Salahi moved to grant the waiver for Packer, the motion was seconded by Commissioner Flórez Feng and denied (2-1, with Chair Lee opposed).

Public Comment:

A caller from the AIDS Foundation expressed their support for Packer’s waiver request. The Foundation supports sexual health for the San Francisco community using harm reduction techniques. The caller will be leaving their position and Packer is a part of the plan to cover the gap that their resignation will leave until a permanent employee can be hired.

A caller from the AIDS Foundation expressed the critical moment we’re in as a City following the pandemic. Packer would be instrumental in moving the Foundation forward in their work.

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

Motion 230714-03 (Salahi / Flórez Feng): Moved, seconded, and denied with two votes in the affirmative and Chair Lee opposed.

Deputy City Attorney Brad Russi stated that the motion failed and the issue could be continued to the next meeting.

Chair Lee stated that the case will be continued to the next meeting for further consideration.

Packer thanked the Commission for their consideration, and that City employees gain experience during their tenure that can be applied to other organizations.

Item 9. POTENTIAL CLOSED SESSION ITEM: Executive Director Recruitment.

Public comment on all matters pertaining to Item 9(c), including whether to meet in closed session.

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

Vote on whether to meet in closed session to consider Item 9(c) under California Government Code Section 54957(b)(1) and Administrative Code Section 67.10(b). (Action.)

Motion 230714-04 (Salahi / Flórez Feng): Moved, seconded, and approved unanimously (3-0) to move into closed session.

Executive Director Recruitment. (Discussion and possible action.)

Chair Lee asked Russi if he had anything to add. He stated no.

Closed session began at 11:52am. (Chair Lee requested a 5-minute break first)

If closed session is held, reconvene in open session.

Open session resumed at 12:22pm.

Disclosure of action taken, if any, that must be disclosed pursuant to Government Code Section 54957.1 and Administrative Code Section 67.12(b).
If appropriate: Discussion and vote pursuant to Administrative Code Section 67.12(a) whether to disclose closed session discussion of Item 9(c). (Discussion and possible action.)

Motion 230714-05 (Flórez Feng / Salahi ): Motioned, seconded, and approved unanimously to not disclose closed session discussion.

Public Comment:

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

Chair Lee stated that the search will continue and that the Commission will work with DHR.

Item 10. Discussion and possible action on items for future meetings.

Commissioner Salahi requested that changes to the definitions of “extreme hardship” and “entered into a contract” for the waiver process be considered.

Chair Lee suggested this be added to the August meeting as well as general review of the waiver process.

Public Comment:

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

Item 11. Additional opportunity for public comment on matters not appearing on the agenda pursuant to Ethics Commission Bylaws Article VII Section 2.

Public Comment:

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

Item 12. Adjournment.

The Commission adjourned at 12:26pm.