Summary and Action Requested
This memo provides an overview of the required timelines associated with post-employment and compensated advocacy waiver requests and proposes regulation amendments that would extend the period between when a waiver request is received and when it must be considered by the Commission.
Staff recommend the Commission review, discuss, and approved the proposed regulation amendments as drafted in Attachment 1.
Background
In 2003, Proposition E established rules for what current and former City employees and officers can do after they leave City service and consolidated related provisions into the San Francisco Campaign and Governmental Conduct Code (C&GCC). These rules further the purposes of the C&GCC, which per Section 3.200 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.” Under Section 3.234 and its supporting regulations, these post-employment and post-service restrictions include:
- A prohibition on being employed by parties that contract with the City,
- A one-year restriction on communicating with the former City official’s former department with the intent to influence a government decision, and
- A permanent restriction on representing any other person before any court or government agency in connection with particular matters in which the former City official was personally and substantially involved.
Waiver Authority of the Ethics Commission
Per Section 3.234(c), the Ethics Commission may grant waivers for the restrictions on communication and representation if the Commission determines the waiver would not create the potential for undue influence or unfair advantage. The Commission may also waive the employment restriction if the Commission determines that imposing the restriction would cause extreme hardship for the City officer or employee. The Commission has the authority to consider any factors it deems relevant when determining if a waiver is appropriate, including how the Commission’s decision would impact the waiver requestor, the City, or other stakeholders. To date, the Commission has approved 24 post-employment restriction waivers since 2004.
The Waiver Process
Regulation 3.234-4 sets forth the procedures for submitting and evaluating waiver requests. The following timeline illustrates the standard process and associated Staff responsibilities for handling a waiver request:
- Initial advice inquiry. The current or former City employee or officer contacts the Ethics Commission’s Engagement & Compliance Division to seek advice regarding the City’s post-employment rules. The Policy Division is consulted upon receipt to help determine if the question could potentially lead to a waiver request, as the Policy Division is responsible for managing the waiver request process.
- Provision of advice. Staff evaluate how the post-employment restrictions apply to the situation. There are two potential outcomes:
- A waiver is not needed. If the advice given concludes that a waiver is not necessary, written advice is provided confirming a waiver is not necessary, and the process is concluded.
- A waiver is needed. Staff provide written advice explaining the applicable rules, that a waiver would be required, and the step-by-step process the individual should follow if they choose to submit a waiver request.
- Waiver request received. Staff determine if the request is complete, if it is not additional information may be requested to make it a complete request. Once a complete request is received, Staff confirm receipt of the request and explain to the requestor the next steps. This includes confirmation of when the waiver request will be heard by the Commission. If a completed request is received at least two calendar weeks in advance of a Commission meeting, the Commission must then consider the waiver request at its next meeting.
- Staff review of waiver request and analysis. As a part of the initial review, Staff often request to meet with the requestor to clarify facts. This phase involves a multi-step internal process that requires significant time to gather supplemental information about the requestor’s current role, potential future position, their prospective employer, potential new role, and the timeline of the proposed employment transition. Coordinating these meetings and follow-ups can delay the review timeline, particularly when key facts are unclear or when meeting availability is limited. Policy staff may also need to consult with other divisions of the Ethics Commission or with the City Attorney’s Office as part of this process.
- Commission materials preparation. The waiver request is agendized for the next regular Ethics Commission meeting if it is received at least two calendar weeks in advance, per Regulation 3.234-4(a)(3). However, to comply with the Brown Act[1], all agenda materials must be finalized and publicly posted at least 72 hours before the meeting. In practice, this means Staff must complete and finalize materials by the Friday before the meeting, so that materials can be posted on the following Monday.
- Commission meeting. During the meeting, Staff summarize their recommendations on why the waiver would not create undue influence or unfair advantage, or would prevent extreme hardship, based on the factors outlined in Regulations 3.234-4(a)(4) and (5). This is then followed by the requestor’s presentation and potential comments from a representative of the relevant public agency. The Commission may ask clarifying questions, deliberate, receive public comment, and then vote to approve or deny the waiver.
- Post-meeting action. Staff subsequently issue a written determination reflecting the Commission’s decision.
The current requirement that the Commission must consider waiver requests at its next meeting, if the request is submitted within two calendar weeks of the meeting, means that in practice Staff may have as little as a week to complete much of the process outlined above. For example, if a request was received exactly two weeks before the Commission’s next scheduled meeting, Staff would have just a single week to review the request, engage with the requestor, gather facts, analyze the request, consult with other divisions and potentially with the City Attorney’s Office, determine a recommendation, and prepare the necessary meeting materials.
Proposed Regulation Amendments Extending the Waiver Consideration Timeline
The current timeline requirements do not guarantee Staff has sufficient time to fully consider waiver requests and prepare thorough recommendations to the Commission. Staff therefore recommend extending the waiver consideration timeline to support a more complete and consistent review process.
Under these proposed amendments in Attachment 1, instead of being required to consider waiver requests at its next meeting, the Commission would have the flexibility to consider waiver requests at either of its next two regularly scheduled meetings. This change would ensure Staff always have at least three weeks to prepare meeting materials, while waivers would always be considered within two months of being requested.
For example, if a request were received the day before a Commission meeting, the request would need to be considered at following month’s meeting, giving Staff approximately three weeks to prepare the materials before the posting deadline, which is the minimum of time that would be guaranteed. If a request was received the day after a Commission meeting, Staff would have flexibility in determining if the waiver be considered at the next meeting or the following meeting, providing a maximum of seven weeks to prepare materials for latter option. However, using this maximum amount of time would rarely, if ever, be necessary.
In practice, under the proposed regulation changes, Staff would always seek to have waiver requests considered at the Commission’s next meeting. The proposed changes would just allow for much needed flexibility. The changes would improve the waiver process by ensuring Staff have sufficient time to consistently prepare thoroughly considered recommendations for the Commission, while also balancing the need for requests to be considered in a timely manner.
Similar Amendment Regarding Compensated Advocacy Waivers
The same two-week timeline requirement for considering post-employment waivers also applies to waivers for the City’s compensated advocacy ban under C&GCC Section 3.224. This provision, established by the same ballot measure as the post-employment restrictions, prohibits City officers from receiving compensation to communicate with the City on behalf of any other person with the intent to influence a government decision. The C&GCC allows the Commission to waive this prohibition for officers who, by law, must be appointed to represent any profession, trade, business, union or association. Regulation 3.224-2 outlines the process for submitting and evaluating compensated advocacy waiver requests, which generally follows the same procedures as those for post-employment waivers. The Commission has approved 12 compensated advocacy waivers since 2004.
Staff recommend amending the waiver consideration timeline for compensated advocacy requests so that it is consistent with the proposed timeline for post-employment waivers. The proposed amendments regarding compensated advocacy waivers are also provided in Attachment 1.
Recommended Next Steps
The draft regulations from Attachment 1 have been noticed to the public more than 10 days prior to the Commission’s regular meeting, as required by Charter Section 4.104. The Department of Human Resources has also been consulted and confirmed that this change is not subject to meet and confer with City bargaining units.
Staff recommend the Commission vote to approve the proposed regulations as drafted.
Attachments:
[1] Cal. Gov. Code § 54954.2