Print copy of memo and attachment
June 9, 2025
To: Members of the Ethics Commission
From: Olabisi Matthews, Director of Enforcement
Subject: Agenda Item 11: Presentation and Discussion regarding Proposed Amendments to Enforcement Regulations
Summary
This memorandum provides an overview of proposed amendments to the Ethics Commission’s Enforcement Regulations.
Action Requested
No action is requested currently. The Commission may review and discuss the proposed amendments as drafted and may provide guidance to Staff regarding the proposed amendments. Staff will return at the July meeting to seek Commission’s action and vote on the proposed amendments.
Proposed Amendments to Enforcement Regulations
The Enforcement Regulations were originally implemented on July 5, 1997 and last updated on March 19, 2018. The Enforcement Division has grown in size and capacity over the past few years and has been able to efficiently handle a lot more complex matters while refining its protocols and processes. Probable Cause proceedings have been initiated in more matters, one of which moved through the administrative hearing process that resulted in the Commission’s first full hearing on the merits in February 2024. Well ahead of the hearing that took place in 2024, Enforcement Staff identified many areas within the Enforcement Regulations that lacked clarity and needed to be addressed in order to better ensure a smooth, fair, and efficient process for all parties. As a result, Enforcement Staff worked to develop the Enforcement Hearing Guidebook which was published on May 1, 2023. The Enforcement Hearing Guidebook clarifies areas of ambiguity within the Enforcement Regulations, highlights the many gaps therein, and provides several recommendations to assist the Commission in holding a fair administrative hearing on the merits.
However, the Enforcement Hearing Guidebook does not fully address the issues that persist within the Enforcement Regulations. In light of Enforcement Staff’s continuing efforts to use all tools within its capacity to resolve matters, including through the administrative hearing process, the Commission’s recent experiences with probable cause proceedings and administrative hearing processes, and the existing issues with the Enforcement Regulations, the Commission must update the Enforcement Regulations to help clarify the relevant rules and processes to allow Staff to streamline the various Enforcement functions and to ensure a fairer and more efficient process for all parties.
Enforcement Staff held two interested persons meetings on March 4, 2025 and March 6, 2025 regarding potential amendments to the Enforcement Regulations. Four participants in total, including attorneys, attended the interested persons meetings and expressed support for the proposed amendments. In particular, participants commented that the overall investigative process by the Enforcement Division can take a considerable amount of time and that any amendments to the Regulations that would streamline the process would be helpful. Participants also mentioned that any proposed amendments should provide sufficient legal certainty insofar as due process is concerned. In preparing this Memorandum, the Enforcement Division has considered each of the comments and has incorporated the comments into the proposed amendments of the Regulations as appropriate.
The draft Regulations from Attachment 1 are being presented for discussion only. Staff will return with a request for action at a future meeting following today’s discussion.
Referrals Under the Sunshine Ordinance
This section discusses Staff’s recommendations in Attachment 1 below. Staff recommends that the Commission delete certain areas of Section 10(B) of the Enforcement Regulations and amend Section 10(A) to more accurately reflect the legal limitations of the Commission’s authority under the Charter and Administrative Code. Adopting the recommendations would help clarify the Commission’s jurisdictional boundaries and obligations with respect to enforcement of the Sunshine Ordinance.
The Sunshine Ordinance, codified in Chapter 67 of the Administrative Code, created the Sunshine Ordinance Task Force (“SOTF”) as the primary administrative body for hearing and determining complaints of alleged violations of the Sunshine Ordinance. Section 67.30(c) of the Administrative Code provides that SOTF “shall make referrals to a municipal office with enforcement power . . . whenever it concludes that any person has violated the provisions of the Ordinance.” S. F. Admin Code § 67.30(c) (see also S.F. Admin Code § 67.30(d) which states, “. . . the Task Force shall possess such powers as the Board of Supervisors may confer upon it by ordinance or as the People of San Francisco shall confer upon it by initiative.”).
While the Commission plays an important role in promoting transparency and enforcing ethical standards, it is essential to recognize the legal limits placed on its enforcement powers regarding the Sunshine Ordinance.
The Administrative Code defines the Commission’s enforcement authority as it pertains to willful violations of the Sunshine Ordinance. Specifically, Section 67.34 provides that the willful failure of “an elected official, department head, or other managerial city employee to discharge the duties imposed by the Sunshine Ordinance . . . shall be deemed official misconduct.” This provision further states that “complaints involving allegations of willful violations of this ordinance . . . by elected officials or department heads . . . shall be handled by the Ethics Commission.” See S.F. Admin Code § 67.34 (emphasis added).
The Sunshine Ordinance clearly excludes conduct by lower-level City employees or other parties, as well as unintentional violations, from the enforcement purview of the Ethics Commission. This means that the Commission may not initiate enforcement proceedings under the Ordinance against City employees or other individuals outside this group, nor in cases where the alleged violation was merely negligent or unintentional and not willful. Instead, the Commission may only enforce the Sunshine Ordinance as to violations committed by elected officials and department heads, and the violation must be willful.
Thus, areas of the Enforcement Regulations contained within Section 10[1] that appear to expand the reach of the Commission beyond these clearly defined limits are inconsistent with the provisions of the Administrative Code and Charter and should be deleted from the Regulations.
Below, Staff have provided a recommended revision of Section 10 of the Regulations to more accurately reflect the legal limitations of the Commission’s authority under the Charter and Administrative Code.
Additionally, even in cases involving a willful violation by an elected official or department head, the Commission cannot impose administrative penalties and may only impose penalties for violation of the “charter or of a City ordinance relating to campaign finance, lobbying, conflicts of interest or governmental ethics . . .” See S.F. Charter § C3.669-13(d). The only remedies available are for the Commission to recommend that the elected official or department head be removed from office for misconduct and to direct the official to comply with the Sunshine Ordinance without any practical means of enforcing such directive. See S.F. Admin Code § 67.34.
The Commission’s core enforcement responsibilities include campaign finance, governmental ethics, conflicts of interests, and lobbying laws, all of which are complex areas that require deep investigative and legal capacity. Investigating minor or unintentional open government infractions dilutes the limited staff and legal resources and diverts attention from matters with systemic impact or greater public harm.
SOTF is designed as the primary forum for resolution of Sunshine Ordinance complaints, including those involving technical or non-willful violations. The Commission’s secondary involvement in minor, unintentional violations introduces administrative redundancy without adding clear value.
Adopting these recommendations will not change the practice of the Ethics Commission with regards to willful violations. The Enforcement Division will continue to accept and process complaints and referrals that allege willful violation of the Sunshine Ordinance, conduct investigations, and bring the matter before the Commission to recommend removal from office where a willful violation is found to have occurred. Additionally, any required administrative hearings regarding an alleged willful violation would proceed through the regular administrative enforcement hearing process, which has been very well fleshed out and through which we handle all other matters that come before the Commission.
For these reasons, the Commission should vote to adopt Staff’s proposed amendments at the future meeting when this matter is presented before the Commission for action.
The following table provides an overview of the proposed regulation amendments and explains the rationale for the amendments presented in Attachment 1. For ease of review, the proposed amendments to the Enforcement Regulations are marked up in this Attachment.
Table 1: Overview of Proposed Regulation Amendments
| Section No. | Proposed Regulation Amendment | Description & Rationale |
| Section 1. Preamble | ||
| No amendment required. | Not applicable. | |
| Section 2. Definitions | ||
| Section 2(F) Definitions (Amended) | The proposed amendment would allow for an extension of any delivery deadline that falls on a weekend or holiday to the next business day. | Currently, the Regulations do not provide for an extension of the deadline for submissions that fall on a weekend or holiday. This amendment would permit extension of any such deadlines to the next business day. |
| Section 2(H) Good Cause (New) | The proposed amendment would provide a clear definition for “Good Cause” within the Regulations. | Portions of the Regulations refer to “good cause” but do not provide a clear definition for this term. This proposed amendment provides a clear definition for “good cause.” |
| Section 3. Filing a Complaint | ||
| Current Section 3(F). Withdrawal of Complaints / Proposed Section 4(D) (Moved from current Section 3(F) to the new Section 4(D)) | The proposed amendment would move the current provision from Section 3 to Section 4, which provides that the Commission may continue to investigate a complaint even if the complainant withdraws the complaint. | Sections 3A to 3E provide a list of complaints filed by a person or an entity. However, the current provision does not fall within any specific category of complaints filed by a complainant. Instead, it provides that the Commission may continue with the investigation of a complaint even if it has been withdrawn by the complainant. Such a provision should be more appropriately set forth in Section 4 below which deals with how a complaint is being handled by Enforcement Staff. |
| Section 4. Preliminary Review of Complaints | ||
| Proposed Section 4(D). Complaint Withdrawal / Current Section 3(F) (Relocated and amended) | See proposed amendment under Section 3(F) above. | See description and rationale under Section 3(F) above. |
| Proposed Section 4E. Report to the Commission / Current Section 4(D) / (Amended) | The proposed amendment would change the provision of the complaint dismissal summary by the Director of Enforcement from a monthly basis to a quarterly basis. In addition, the proposed amendment would eliminate the requirement for the provision of the whistleblower retaliation quarterly report by the Director of Enforcement. | The current provision of the Regulations provides that the Director of Enforcement will issue on a monthly basis a summary to the Commission of each complaint dismissed including the reasons for dismissal provided. The amended provision would streamline the timeline for preparing and submitting enforcement reports, allowing the Director of Enforcement to provide the complaint dismissal and closure summary during the same period the enforcement quarterly reports are due. In addition, the amended provision would eliminate the whistleblower retaliation quarterly report requirement. As it stands, the current provision is redundant as all data regarding all enforcement matters, including whistleblower retaliation matters, are consolidated within the Enforcement Director’s quarterly report and information regarding closed or dismissed whistleblower retaliation matters are contained within the dismissal and closure summary report. Therefore, there is no strong reason why only whistleblower retaliation complaints require a standalone summary report and continuing to do so is unnecessary. |
| Proposed Section 4(F) Final Decision and Reopening of a Case / Current Section 4(E) Final Decision (Amended) | The proposed amendment would confer on the Commission the ability to re-open cases upon discovery of new material facts or evidence even though the cases were dismissed or closed. The ability to re-open cases by the Commission, however, would be limited by certain parameters and would also be subject to the four-year statute of limitations period prescribed under the new Section 14(A) of the Regulations. | Currently, the Regulations states that a dismissal or closure of a matter is a final decision on such matter and represents the end of the administrative process. The Regulations prohibit the Commission from taking any further action on a matter that has been dismissed or closed. This undermines the investigative ability of the Enforcement Division to reopen a matter where new material facts or evidence pertinent to a case have been discovered. To address this, the proposed amendment would allow the Enforcement Division to re-open cases which were already dismissed or closed if there are new material facts or evidence that come to light concerning those cases. To achieve this, the proposed change would set forth a list of parameters that would allow the Enforcement Division to determine when the dismissed/closed case may be reopened. This would also provide legal certainty for respondents who are informed of the circumstances when their cases may be reopened. Moreover, to ensure there is legal certainty over the period of which a case may be re-opened, the proposed change would be subject to the statute of limitations set forth in Section 14(A) of the Regulations such that Staff may not re-open cases after the expiration of the four-year limitations period even if new facts or evidence arise. |
| Section 5. Investigation | ||
| Proposed Section 5(C)(4) (iii). Withholding (New) | The proposed amendments would allow the Commission to bring a charge for withholding under sections 1.170(f), 2.136(a), and 3.240(a) of the Campaign and Governmental Conduct Code in any case brought before the Commission if a Respondent does not comply with a subpoena or subpoena duces tecum. | Under the current provision, the only option for a respondent’s refusal to comply with a subpoena or subpoena duces tecum is for the Executive Director to request the City Attorney to petition the San Francisco Superior Court for an order compelling compliance. However, because the Code has a withholding provision, the proposed amendment will clearly include this option within the Regulations, addressing any ambiguity regarding the options available to the Enforcement Division regarding compliance with subpoenas. |
| Proposed and Current Section 5(D). Confidentiality (Amended) | The proposed amendment would clarify that evidence obtained throughout the course of the investigation, including those obtained prior to a probable cause determination, may be introduced as evidence or as an exhibit for a hearing on the merits and thus may not be subject to the confidentiality provision. | The current provision appears to deem evidence obtained prior to a probable cause determination as confidential and prohibit the disclosure of such evidence even during the course of a hearing on the merits. The proposed amendment would clarify that evidence obtained throughout the course of the investigation can be introduced as exhibits or evidence for a hearing on the merits. |
| Proposed Section 5(E) Place of Delivery / Current Section 8 (H) / (Relocated) | This proposed amendment would relocate the provision regarding place of delivery. | This proposed amendment would help clarify any ambiguity and better organize the Regulations regarding delivery. |
| Section 6. Case Closure | ||
| Proposed Section 6. Case Closure / Current Section 7(A) Complaint Closure (Relocated and amended) | Aside from the substantive changes set forth below, the proposed amendment for this Section would single out case closure as a standalone section. In light of the proposed amendment made under the new Section 4(F) above which seeks to change the provision of the dismissal summary by the Director of Enforcement from a monthly basis to a quarterly basis, the reference to “monthly” under this Section would be updated to “quarterly” and the section reference would be revised from “Section 4(D)” to “Section 4(F)” accordingly. In addition, given this Section relates to closure of a case, the proposed amendment should also incorporate the relevant amendment made under the new Section 4(G), which confers on the Director of Enforcement the ability to re-open a case within the statute of limitations upon discovery of new material facts or evidence even if the case was closed. | The current Regulations incorporate the closure of cases as part of the probable cause proceedings section. Closures come at the conclusion of an investigation when the Enforcement Division does not intend to initiate probable cause proceedings. In the past, the Enforcement Division would memorialize a case closure in the form of a “no probable cause report” as part of the probable cause process. However, since this practice is no longer adopted, the section on case closure should not be included as part of the probable cause proceedings section and should be reorganized as a standalone section. Also see description and rationale under Sections 4(F) and 4(G) above. |
| Section 7. Probable Cause Proceedings | ||
| Current Section 7(A) Complaint Closure (Relocated to Proposed Section 6 and Amended) | See above. | See above. |
| Proposed Sections 7(A) Initiation of Probable Cause Proceedings; (7)(A)(1) Delegation of Probable Cause Hearing Officer Duties / Current Section 7(B)(1) (Amended) | The proposed amendment will confer upon the Executive Director authority to make findings regarding probable cause rather than recommendations. The Executive Director’s determination will be the final determination regarding probable cause. | The current provision delegates Commission authority regarding conducting Probable Cause Conferences to the Executive Director and allows the Executive Director to make recommendations regarding probable cause. The proposed amendment will confer authority to make a finding of probable cause. This will allow for a more streamlined and efficient process that will ensure that cases move through the enforcement process without unnecessary delay. The Commission would still retain authority to determine whether a violation of law has occurred at a full hearing on the merits. |
| Proposed Section 7(A)(7) / Current Section 7(B)(7) Request for Extension of Time (Amended) | Capitalization of the word “Good Cause” in light of proposed amendment under Section 2(H) | Capitalization of the word “Good Cause” in light of proposed amendment under Section 2(H) |
| Proposed Section 7 (B)(2) Probable Cause Conference / Current Section 7 (C)(2) (Amended) | Same as above | Same as above |
| Proposed Section 7 (B)(3)(iii) Probable Cause Conference / Current Section 7 (C)(3)(iii) (Amended) | Gender neutral language | Gender neutral language |
| Proposed 7(C) Executive Director’s Probable Cause Determination / Current 7(D) Executive Director’s Recommended Probable Cause (Amended) | The proposed amendment reflects the proposed amendments described below. It would confer on the Executive Director the discretion to delegate the drafting of the probable cause determinations to the Director of Enforcement. | The current Regulations provide that the Executive Director will draft the probable cause determination upon making any finding. However, based on the Commission’s recent experiences with probable cause proceedings and administrative hearing processes, the Enforcement Division finds that in certain cases, a probable cause determination may mirror the probable cause report to a considerable extent in terms of findings of facts and conclusions of the law. With the proposed amendment, the Executive Director would have a wider degree of discretion to delegate the drafting of the probable cause determination to the Director of Enforcement. This would streamline the overall probable cause process for the Enforcement Division and would allow a more efficient resolution of the violations. |
| Proposed Section 7(C)(3). Findings of No Probable Cause / Current Section 7(D)(3) (Amended) | The proposed amendment would consolidate the current Sections 7(D)(3) and 7(D)(7) as they both concern the Commission’s findings of no probable cause. In addition, the consolidated provisions would more clearly delineate the steps required following a finding of no probable cause. | The current provision of the Regulations splits up Sections 7(D)(3) and 7(D)(7) in relation to the meaning of a finding of no probable cause by the Commission and the finality of the finding of no probable cause. The proposed amendment would address the misalignment of the two sections by combining them into one subsection. In addition, the current provision does not clearly describe the steps following the Commission’s issuance of the findings of no probable cause. The proposed amendment would clarify that upon issuance of a finding of no probable cause, the case will be closed internally without proceeding to the Commission, and no further action will be taken by the Commission to review or investigate the allegations contained in the complaint. |
| Proposed Section 7(C)(4). Delegation of Executive Director’s Probable Cause Determination (New) | The proposed amendment would confer on the Executive Director the discretion to delegate the drafting of the probable cause determinations to the Director of Enforcement. | The current Regulations provide that the Executive Director will draft the probable cause determination upon making any finding. However, based on the Commission’s recent experiences with probable cause proceedings and administrative hearing processes, the Enforcement Division finds that in certain cases, a probable cause determination may mirror the probable cause report to a considerable extent in terms of findings of facts and conclusions of the law. With the proposed amendment, the Executive Director would have a wider degree of discretion to delegate the drafting of the probable cause determination to the Director of Enforcement. This would streamline the overall probable cause process for the Enforcement Division and would allow a more efficient resolution of the violations. |
| Proposed Section 7(C)(5) / Current Section 7(D)(4) Default Orders (Amended) | Deletion to reflect recommended amendment above regarding authority of Executive Director to make probable cause determinations. | Deletion to reflect recommended amendment above regarding authority of Executive Director to make probable cause determinations. |
| Current Section 7(D)(6) Commission Ratification of Executive Director’s Probable Cause Determination (Deleted) | The proposed amendment would eliminate the need for Commission ratification of the Executive Director’s Probable Cause Determination as described under section 7(B) above. | The proposed amendment would allow for a more streamlined and efficient process of handling enforcement matters that have proceeded to the Probable Cause stage. The need for ratification of the Executive Director’s Probable Cause Determination will no longer exist where the Executive Director has the final authority to make such Determination. However, the Commission retains authority to determine whether a violation has occurred once a matter proceeds to a full hearing on the merits after a finding of probable cause. |
| Proposed Section 7(C)(7) Effect of Commission Advice or Opinion / Current Section 7(D)(8). Effect of Formal Written Advice (Amended) | The proposed amendment would bring the Regulations in alignment with the Commission’s current practice regarding advice. | The Commission only gives written advice and does not distinguish between formal or informal advice. The proposed amendment will reflect the actual practice of the Commission. Also, the proposed amendment will eliminate the requirement for the District Attorney and City Attorney concurrence on the advice. |
| Proposed Section 7(C)(8) Voluntary Dismissal / Current Section 8(I) (Relocated) | This proposed amendment relocates the provision regarding voluntary dismissal to more appropriately fit under the probable cause section. | The proposal will provide better clarity regarding the workflow of the enforcement process with regards to dismissals. |
| Proposed Section 8. Page Limitations and Format Requirements (Relocated and amended) | ||
| Proposed Section 8. Page Limitations and Format Requirements/ Current Section 6 / (Relocated and Amended) | The proposed amendment for this Section would be reorganized after the probable cause proceedings section. The proposed amendment would increase the page limitation of a probable cause report and a hearing brief, as well as the response to the probable cause report and the hearing brief, from 25 pages to 40 pages, exclusive of any attachments. In addition, the page limitation of any rebuttal or reply, and any other filings, would be increased from 10 pages to 20 pages, exclusive of any attachments. Where parties need to go beyond the page limitation as prescribed under the amended provision of this Section, parties may stipulate to a new page limitation proportional to the level of complexity and the circumstances peculiar to the case. | The current provision covers page limitations and formality requirements for various documents including a probable cause report, a hearing brief, a rebuttal, a reply to the rebuttal, and any other filings. Reorganizing this section after the probable cause proceedings section would provide a clearer structure to the Regulations. The current provision of the Regulations provides that the page limitations of a probable cause report and a hearing brief, as well as the response to the probable cause report and the hearing brief, to be 25 pages, exclusive of any attachments. On the other hand, a rebuttal or a reply, and any other filings, are limited to 10 pages, exclusive of any attachments. However, given the Commission’s recent experiences with probable cause proceedings and administrative hearing processes where certain cases are fact intensive, involve multiple violations, and require an extensive analysis of the facts and the law, there is a need to increase the page limitations. The amended provision would better address the page limitations and formality requirements for parties. In addition, the Enforcement Division received comments from the public in the interested persons meetings proposing that parties may choose to stipulate to a new page limitation if the 40/20-page increase does not meet the page limitations. The Enforcement Division endorsed this comment considering that parties may require a page number that exceeds the 40/20-page limitation because of the complexity or the circumstances peculiar to each case. |
| Proposed Section 9 Pre-Hearing Matters | ||
| Proposed Section 9 Pre-Hearing Matters / Current Section 8 | A series of changes would re-organize this section to more closely track the pre-hearing process. They would also move sub-sections that deal more directly with the hearing phase into Section 10, including sub-sections pertaining to notice of hearing, recordings of hearing, and hearing briefs. | The current regulations include sub-sections pertaining to the hearing in the pre-hearing section. The proposed recommendations will rectify the discrepancy. |
| Proposed Section 9(A). Initiation of Pre-Hearing Matters (New) | The proposed amendment would establish the process for initiating preliminary matters. The amendment would direct the Executive Director to place an item on the Commission’s meeting agenda for the determination of who will preside over preliminary matters. | The current Regulation is silent on how the parties and the Commission transition from a probable cause determination to a hearing and the process for initiating pre-hearing matters. This amendment would provide clarity on this process and formalize the process used in past cases. |
| Proposed Section 9(B). Delegation to a Pre-Hearing Officer / Current Section 8(A) Delegation to Hearing Officer (Amended) | The proposed amendment clearly states the Commission’s authority to decide preliminary matters, delegate to a pre-hearing officer, and removes references to the hearing on the merits from this section to provide more clarity. This amendment would also clarify a contradictory statement that confuses a pre-hearing officer with a hearing officer. | The current Regulations refer to the pre-hearing and hearing officers interchangeable, when in fact there should be two different processes. This amendment, and the next, would clarify this issue. |
| Proposed Section 9(C) Preliminary Matters / Current Section 8(F) (Relocated) | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 9(C). | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 9(C). |
| Proposed Section 9(D). Request for Resolution on Preliminary Matters. (Itemized) | This provision is properly itemized within the Regulations. | The proposed amendment would provide clarity. |
| Proposed Section 9(F) Preliminary Determinations / Current and Section 8(A) Delegation to a Hearing Officer and Section 8(A)(1) (Relocated and Amended) | Same as above; this proposal also breaks apart the provisions within the current section and provides better clarity regarding the pre-hearing process and the role of the assigned Commissioner and the entire Commission. | See above; also, the references to the hearing officer’s post-hearing obligations have been moved to Section 10. |
| Proposed Section 9(G) Request for Review of Preliminary Determinations / Current Section 8(A)(1) Delegation to Hearing Officer (Amended) | The proposed amendment would also establish that if any party requests Commission review of a determination by a pre-hearing officer, the Commission shall review the determination at its next monthly meeting. The amendment would further clarify that the parties can present arguments, and a majority must vote to change the officer’s determination. | The current Regulations refer to Commission review of an officer’s determination without clarifying how that review shall be conducted. This amendment would establish a process for such review and provide clarity on the process. |
| Proposed Section 9(D). Request for Resolution on Preliminary Matters. (Itemized) | This provision is properly itemized within the Regulations. | The proposed amendment would provide clarity. |
| Proposed Section 9 (E); 9(E)(1). / Current Section 8(D). Discovery; Subpoenas. (Relocated) | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 9(E). | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 9(E). |
| Proposed Section 9(E)(2) Subpoenas Compliance (New) | The proposed amendment would clarify that failure to comply with a subpoena authorized during the discovery process can be used as evidence of a violation of the relevant areas of law governing withholding of evidence. | The current regulations give the Commission specific subpoena authority for the discovery process but does not include remedies for non-compliance with such a subpoena. This amendment would clarify that non-compliance may be used as evidence of withholding. |
| Proposed Section 9 (F). Preliminary Determinations / Current Section 8(A)(1) Delegation to Hearing Officer (Amended) | This proposed amendment simplifies the next step following a determination on preliminary matters by the pre-hearing officer. | The proposed amendment would provide clarity. |
| Proposed Section 9(G) Request for Review of Preliminary Determinations / Current Section 8(A)(1) Delegation to Hearing Officer (Amended) | The proposed amendment would also establish that if any party requests Commission review of a determination by a pre-hearing officer, the Commission shall review the determination at its next monthly meeting. The amendment would further clarify that the parties can present arguments, and a majority must vote to change the officer’s determination. | The current Regulations refer to Commission review of an officer’s determination without clarifying how that review shall be conducted. This amendment would establish a process for such review and provide clarity on the process. |
| Proposed Section 10. Hearing on the Merits | ||
| Proposed Section 10 | A series of changes would re-organize this section to include sub-sections originally in the pre-hearing section. This includes sub-sections pertaining to scheduling and notice of a hearing, hearing briefs, and recordings. | The current regulations include sub-sections pertaining to the hearing in the pre-hearing section. |
| Proposed Section 10(A) Delegation to a Hearing Officer / Current Section 8(A)(1) Delegation to Hearing Officer (Relocated and amended) | The proposed amendment would also establish that if any party requests Commission review of a determination by a pre-hearing officer, the Commission shall review the determination at its next monthly meeting. The amendment would further clarify that the parties can present arguments, and a majority must vote to change the officer’s determination. | The current Regulations refer to Commission review of an officer’s determination without clarifying how that review shall be conducted. This amendment would establish a process for such review and provide clarity on the process. |
| Proposed Section 10(B) Notice of Hearing / Current Section 8(B) Scheduling of Notice of Hearing on the Merits (Relocated) | The proposed amendments would change the notice requirements from 30 to 60 calendar days. They would also remove duplicative language referring to a hearing officer. Finally, they would move this sub-section to Section 10. | Current regulations require hearing briefs from the enforcement division to be sent 30 days before a hearing, rendering a 30-day notice requirement for a hearing untenable. This change creates a more realistic process. |
| Proposed Section 10(C) / Current Section 8(E). Hearing Briefs (Relocated and amended) | Based on formatting and reorganization, this proposed amendment relocates this provision to proposed Section 10(C) and also amends the provision to clarify process for delivery of hearing brief. | The current Regulations do not clearly specify everyone who should receive delivery of the hearing briefs. In addition to relocating this provision, this amendment also amendment clarifies the delivery process. |
| Proposed Section 10(D)(2) / Current section 9(A)(2) (Amended) | This proposed amendment would change “complaint” to “case” to align with Division’s classification of matters. | This proposed amendment would change “complaint” to “case” to align with Division’s classification of matters. |
| Proposed Section 10(D)(4) / Current Section 9(A)(4). Rules of Evidence (Amended) | This proposed amendment would enshrine rules of evidence for administrative hearings that exist in the California APA and the Enforcement Hearing Guidebook surrounding relevance, reliability, and hearsay. The amendment would also establish a process for objections. | The current regulations are silent on specific rules of evidence, requiring all parties to parse through the California APA and the Commission to determine on an ad hoc basis if it wants to adopt more stringent requirements. The proposed amendments would enshrine certain important rules of evidence regarding relevance, reliability, and hearsay. The current regulations are also silent on the process for objections. The amendment would establish a basic right to object and process for consideration of objections. |
| Proposed Section 10((D)(6) / Current Section 9(A)(6). Exhibits (Amended) | The proposed amendment would clarify that authentication of evidence is not required. It would also set a timeline and process for submission and consideration of stipulated exhibits. Finally, it would permit parties to move for admission of multiple exhibits at one time. | The current regulations are silent on authentication. This proposal would remedy that by enshrining the standard in the California APA. Current regulations also refer to stipulated exhibits but fail to include a timeline or process for their submission and consideration. This amendment would provide clarity on those matters. Finally, during the Commission’s prior hearing, it expressed an interest in allowing for expedited consideration of evidence through the submission of batched exhibits, subject to objections. This proposed amendment includes that option. |
| Proposed Section 10(D)(7) Current Section 9(A)(7). Witnesses (Amended) | This proposed amendment would clarify how Commissioner questioning shall proceed. | The current regulations allow Commissioners to question witnesses, but they are silent on how that should proceed if a hearing officer is presiding, and what order it should happen if the entire Commission is presiding. The proposed amendments would provide a clear process for all parties to follow. |
| Proposed Section 10(D)(8). Opening and Closing Arguments / Current Section 9(A)(8). Oral Argument (Amended) | The proposed amendment would clarify the timing and order for opening and closing arguments. | The current regulations refer to oral argument but are ambiguous or silent on issues of order and time limitations. The proposed amendment would provide clarity and would follow the traditional process used in criminal, civil, and administrative hearings. |
| Proposed Section 10(D)(10) / Current Section 8(G). Recordings (Relocated) | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 10(D)(1). | Based on formatting and reorganization, this proposed amendment relocates this provision to Section 10(D)(1). |
| Proposed Section 10(D)(11)(i) / Current Section 9(A)(10)(i). Extensions of Time and Continuances (Amended) | Capitalization: “good cause” to ‘Good Cause” | Capitalization: “good cause” to ‘Good Cause” to align with proposed Section 2(H) above |
| Proposed Section 10(E) Finding of Violation, Section (10(E)(1) / Current Section 8(A)(2) (Relocated and Amended) | The proposed amendment would remove references to the pre-hearing officer from the sub-section dedicated to the hearing officer. It would also remove references to the pre-hearing officer’s obligations after a hearing. Finally, it would move this sub-section later in this section. | The references to the hearing officer’s post-hearing obligations have been moved to Section 10. |
| Proposed Section 10(E)(1)(a) Proposed Order (New) | This proposed amendment would provide clarity to the process for issuing drafting and issuing an Order at the conclusion of the hearing. | The proposed amendment would add clarity to the process following the conclusion of a hearing. |
| Proposed Section 10(E)(1)(b) (Relocated) / Current Section 9(B)(3) (Amended) | The proposed amendment would clarify how findings of fact and conclusions of law may be used in the event that the entire Commission presides. It would create a process for the Chair to vote immediately or to request proposed findings and conclusions from the parties. It would also clarify that written findings and conclusions are only required in the event that a hearing officer presides. Finally, it would direct the ED to submit a proposed order accompanying the hearing brief in instances where the entire Commission is presiding over a hearing, and would grant the same opportunity to the Respondent(s). | The current regulations refer to findings and conclusions in the event a hearing officer presides, but they are silent on who should draft findings and conclusions – or even if they are required – in the event that the entire Commission presides. The proposed amendment would provide clarity. |
| Proposed Section 10(E)(2) (Amended) / Current Section 9(B)(1) (Amended) | This proposed amendment clarifies the language within the provision regarding the hearing officer and removes any reference to an assigned officer. | The proposed amendment would add clarity to the hearing process. |
| Proposed Section 10(E)(4) (Amended) / Current Section 9(B)(3) (Amended) | This proposed amendment clarifies the language within the provision regarding attendance at the hearing of the merits and the obligations of any Commissioner who did not attend. | The proposed amendment would add clarity to the hearing process. |
| Proposed Section 10(E)(5) (Amended) / Current Section 9(B)(4) (Amended) | This proposed amendment clarifies the language within the provision by including the paragraph title, “Retaliation.” | This proposed amendment clarifies the language within the provision by including the paragraph title, “Retaliation.” |
| Proposed Section 10(G) Penalty Factors / Current Section 9(D) (Amended) | This proposed amendment expands the Director of Enforcement’s discretion regarding consideration of a respondent’s inability to pay what would otherwise be an appropriate recommended penalty amount. | The current Regulations limits the type of proof a respondent may provide to demonstrate inability to pay. This proposed amendment would loosen the restriction and allow for a broader consideration. |
| Proposed Section 10(I) / Default Orders / Current Section 9(7) (Amended) | This amendment would further clarify and streamline the hearing process and allow for an entry of default order where the Executive Director demonstrates that the hearing was duly noticed and a respondent failed to appear at such a duly noticed hearing. | The current regulations are silent on this issue and such amendment would bring clarity to and help streamline the process. |
| Section 11. Enforcement of Referrals under the Sunshine Ordinance | ||
| Proposed Section 11(A) / Current 10(A) Willful Violations (Amended) | The proposed amendment would clarify the Commission’s authority over allegations of violation of the Sunshine Ordinance. The Commission will handle such violations according to its established enforcement process for handling other alleged violations by the Charter provisions dealing with official misconduct. | See summary above. |
| Proposed Section 11(B) / Current Section 10(B). Referrals (Amended) | This proposed amendment would clarify the remedies available for willful violations of the Sunshine Ordinance pursuant to the Ordinance and the Charter. | See summary above. |
| Current Section 10(B) (1) (i) – (iv). (Deleted) | This proposed amendment would eliminate the Show Cause Hearing process procedure. | See summary above. |
| Proposed Section 11(C) Remedies / Current Section10(B)(1)(v) (Amended) | This proposed amendment would clarify the remedies available to the Commission for willful violations of the Sunshine Ordinance. It would reference the SF Charter’s limitations on the Commission’s available remedies for official misconduct. | See summary above. |
| Current Section 10(C). (Deleted) | This section has been removed because the San Francisco Charter only gives the Ethics Commission jurisdiction over willful violations. Provisions regarding show cause hearings are unnecessary given the Commission’s existing regulations governing hearings. | See summary above. |
| Proposed Section 12(B)(2) Late Filing Fees / Current Section 11(B)(2) (Amended) | The proposed revision would clarify the application of the definition of “good cause” to other sections of the Enforcement Regulations that also require good cause. | The current regulations require the showing of good cause in different aspects throughout the enforcement process but only defines good cause under the Late Filing Fees section. This proposed amendment will make clear that the definition applies to other aspects of the regulations. |
| Proposed Sections 13 – 15 Below | Except for renumbering, no changes proposed. | Except for renumbering, no changes proposed. |