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Minutes - July 23, 2012

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
July 23, 2012
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Hur called the meeting to order at 5:35 PM. 

COMMISSION MEMBERS PRESENT:  Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; Beverly Hayon, Commissioner; and Paul A. Renne, Commissioner.  Commissioner Liu was excused.

STAFF PRESENT:  John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Steven Massey, Information Technology Officer.

OFFICE OF THE CITY ATTORNEY:  Jon Givner, Deputy City Attorney (DCA).

OTHERS PRESENT:  Ray Hartz; Larry Bush; Michael Petrelis; Oliver Luby; Charles Marsteller; Richard Hansen; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 
- Staff Memorandum re: Proposed Amendments to the Campaign Finance Reform Ordinance Section 1.112, dated July 18, 2012.
- Draft Ordinance amending the San Francisco Campaign and Governmental Conduct Code by amending section 1.112 to require the electronic filing of campaign statements submitted to the Ethics Commission.
- Assembly Bill No. 2452, approved by Governor July 13, 2012.
- Staff memorandum re: Amendments to regulations regarding CFRO section 1.126.
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on March 26, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission with the Compliance & Amendments Committee of the Sunshine Ordinance Task Force on April 13, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on April 23, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on May 29, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on June 19, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on June 28, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on June 29, 2012.
- Executive Director’s Report to the Ethics Commission for the Meeting of July 23, 2012.

II. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.

A member of the public spoke regarding Jewelle Gomez and played an audio recording of Ms. Gomez.  He also displayed slides of SFPL Friends and Foundation and quoted Executive Director St. Croix.

Ray Hartz made comments regarding placing the 150-word written statements provided by speakers in the minutes.  He stated that he has four Orders of Determination from the Sunshine Ordinance Task Force regarding this issue.  He mentioned case #1088 where the Task Force found the Ethics Commission in violation and stated that the Task Force found the City Attorney’s Office in violation as well.  He stated that the Commission has not enforced the Task Force’s findings of official misconduct.  [Mr. Hartz supplied a written summary of his comments, which is included at the end of these minutes.]

Allen Grossman commented that five Task Force cases which were dismissed between August 2011 and April 2012.  He stated that six cases were dismissed improperly and the Commission had jurisdiction to hear the cases.

Larry Bush spoke about Supervisor Weiner’s amendments before the Rules Committee of the Board.  He mentioned a report from Harvey Rose, Budget and Legislative Analyst of the Board, which had a comparison between the Commission and its counterpart in Los Angeles.  He provided copies of the report for the Commissioners.

Michael Petrelis commented on public record requests about AIDS medications.  He stated that open government and enforcement of those laws is a life and death matter in certain cases.  He stated that the Task Force has been undermined by Supervisor Weiner, as he removed qualified people from the Task Force.  He stated that people appointed to the Task Force are not qualified.  He asked the Commission to serve as a watchdog.  [Mr. Petrelis supplied a written summary of his comments, which is included at the end of these minutes.]

Oliver Luby stated that an amendment package was rejected at the Rules Committee and it was not mentioned in the Executive Director’s Report.  He stated that the amendment package conflicted with state law and had drafting errors.  He also mentioned the Budget and Legislative Analyst’s report on the comparison of the Ethics Commission and Los Angeles Ethics Commission.

Charley Marsteller stated that he attended the June 2012 Rules Committee meeting.  He suggested that the Commission get an opinion from the City Attorney regarding what CFRO requires the Commission to do when amending voter-passed initiatives.  He also stated that the amendments must further the purposes of the Act.

III. Consideration of amendments to the Campaign Finance Reform Ordinance (CFRO), San Francisco Campaign and Governmental Conduct Code section 1.100 et seq., to require that all campaign statements submitted to the Ethics Commission be filed electronically.

Information Technology Officer Steven Massey presented staff’s memorandum regarding the proposed amendments.  Mr. Massey stated that staff currently handles two paper copies and one electronic copy of each filing.  He stated that staff’s proposal would consolidate the requirements as the new state law (AB 2452) would allow local agencies to eliminate paper filings as of January 1, 2013.  Executive Director St. Croix stated that the elimination of paper filings would save money and make things easier for the regulated community.  He thanked Mr. Massey for his work on this issue.

Chairperson Hur thanked Mr. Massey and staff.  Vice-Chairperson Studley stated that the proposal would have advantages for the public, as it would permit integrated information.  She believed that the proposed amendments would further the purposes of the law.  She asked about proposed 1.112(c), voluntary electronic filing.  Chairperson Hur asked about Decision Point 1, which sets forth proposed findings.  DCA Givner stated that the findings language was not going to be codified and would not appear in CFRO.  Chairperson Hur suggested an amendment to number 5, starting on line 17 of page 2 of the proposed amendments, to add “and the Ethics Commission.”  Vice-Chairperson Studley suggested an amendment to findings 4 to flip the sentences.

Public Comment:
A member of the public stated that she had a question about the amendments.  She stated that she was a member of a small club that generates a slate card every year.  She stated that the computer program has too many bugs.  She commented on her entries on Schedule D during the last election.  She requested completing Schedule D on a paper filing.

Oliver Luby stated that the system is not designed for Schedule D and it is not user friendly.  He stated that it is difficult for small PACs.  He stated that the move away from paper filings for these filings is in direct contrast with the executive staff’s position to maintain paper-only filings for contract disclosures.  He stated that these forms must be filed in paper and then scanned in order to be posted online by staff.  He suggested that the Commission add a provision to section 1.126 to implement e-filing for these forms.  He also stated that the new law (AB 2452) would also apply to Form 700s (Statement of Economic Interests).

Ray Hartz asked when the public would have access to these documents.  He stated that the law does not mention how quickly staff must post the information.  He stated that the Ordinance should require that the documents be available immediately upon receipt.  He stated that staff is always complaining about their workload.  [Mr. Hartz supplied a written summary of his comments, which is included at the end of these minutes.]

Larry Bush stated that there should be a timeline for when these documents are available on the Commission’s website.  He stated that the Form 700s are not posted quickly enough.  He stated that the forms should be posted within ten days.

Charles Marsteller stated that there were many interesting things in the Harvey Rose (Budget and Legislative Analyst) report.  He suggested that the Commission send a small group to Los Angeles to look at their processes and procedures.

Chairperson Hur asked whether electronic filings are available to the public immediately.  Mr. Massey stated that the filings are available to the public within a few seconds.  He stated that staff does not intervene, as it is an automated process.  Commissioner Hayon asked about e-filing for Form 700s.  Mr. St. Croix stated that electronic filing for Form 700s is available, but not mandatory.

Chairperson Hur also asked about Schedule D.  Mr. Massey stated that staff is working on formatting issues and is anticipating a change for early 2013.

Motion 12-07-23-1 (Hayon/Studley):  Moved, seconded, and passed (4-0; Liu excused) that the Ethics Commission adopt decision points 1-5, with the two amendments proposed to decision point 1. 

IV. Consideration of amendments to regulations for section 1.126 of the CFRO.

Deputy Executive Director Ng presented the amendments to section 1.126.  She stated that many changes were technical and linguistic in nature.  She stated that amendments would clarify that section 1.126 applies to an individual who holds City elective office and any committee controlled by that City elected officer.  Chairperson Hur stated that the amendments appear to be consistent with CFRO and would clarify the purpose of section 1.126.  He stated that it is consistent with the intention of the voters.
                        
Public Comment:
Ray Hartz stated that the Commission always amending CFRO.  He stated that members of the public have followed campaign issues.  He stated that the Commission and the public only get one side of the story.  He stated that staff did not mention changes suggested by the Budget and Legislative Analyst’s report.  He stated that the public should get a complete and balanced picture.  [Mr. Hartz submitted a written summary of his comments, which is included at the end of these minutes.

Motion 12-07-23-2 (Renne/Hayon):  Moved, seconded, and passed (4-1; Liu excused) that the Ethics Commission adopt the changes to CFRO identified in Agenda Item 4. 

Deputy Director Ng asked to return to item number 3 and asked the Commission to consider Decision Point 6 that was not mentioned in the earlier motion. 

Motion 12-07-23-3 (Studley/Renne):  Moved, seconded, and passed (4-0; Liu excused) that the Ethics Commission adopt decision point 6, from Agenda Item 3. 

Public Comment:
None.

V. Closed session.

Public Comment:
Ray Hartz stated that the item should be continued to another meeting, as it was not properly agendized.  He stated that public business should be conducted in full view of the public.  He stated that the Commission should give the public enough information in order to allow the public to determine whether it is proper for the Commission to conduct this business in closed session.  He stated that the Police Commission provides case numbers or names to the public when it goes into closed session.  He states that many commissions and boards provide little to no information about items discussed in closed sessions.  He stated that he does not believe that, in closed session, commissions or board members never talk about anything that is disclosable.  [Mr. Hartz submitted a written summary of his comments, which is included at the end of these minutes.]

Richard Hansen stated that he agreed with Mr. Hartz’s statements.

Motion 12-07-23-4 (Hayon/Studley):  Moved, seconded, and passed (4-0; Liu excused) that the Ethics Commission move into closed session. 

Vice-Chairperson Studley asked whether any information could be added.  DCA Givner stated that the agenda references Charter section C-3.699-13, which requires Ethics Commission proceedings regarding enforcement matters to be confidential up to a certain point.  He stated that the Charter requires these discussions to be confidential.

The Ethics Commission entered into closed session at 6:34 PM. 

Chairperson Hur, Vice-Chairperson Studley, Commissioners Hayon and Renne, Executive Director St. Croix, and Deputy Executive Director Ng were in attendance during the closed session.

The Ethics Commission returned to open session at 6:51 PM.

VI. Discussion and vote regarding closed session action and deliberations.

Motion 12-07-23-5 (Studley/Renne):  Moved, seconded, and passed (4-0; Liu excused) that it is in the best interests of the public not to disclose its closed session deliberations re: anticipated litigation. 

Public Comment:
Ray Hartz stated that the Commission never disclosed what is discussed during closed session.  He asked whether the Commission discussed something it should not have during closed session.  He stated that other boards and commissions also do not disclose discussions which occur during closed session.  [Mr. Hartz submitted a written summary of his comments, which is included at the end of these minutes.]

Chairperson Hur stated that the Commission was in closed session for ten minutes and the Charter requires the Commission not to disclose their deliberations.

VII. Minutes of the Commission’s regular meeting of March 26, 2012 and special meetings of April 13, 2012, April 23, 2012, May 29, 2012, June 19, 2012, June 28, 2012, and June 29, 2012.

  Chairperson Hur questioned whether the Commission should adopt the draft minutes relating to meetings that are still in process.  Commissioner Renne stated that the Commission should only approve the March 26 and April 13 minutes and wait to approve any minutes related to the Mirkarimi matter.  He stated that it would be premature to approve those minutes, as there have been some interim rulings.  Vice-Chairperson Studley stated that the information from those meetings should be shared with the public and is already available to the public.  Chairperson Hur stated that the attorneys for the parties should review the minutes regarding the Mirkarimi matter.  Mr. St. Croix added that the draft minutes are available to the public.

Motion 12-07-23-6 (Hayon/Studley):  Moved, seconded, and passed (4-0; Liu excused) that the Ethics Commission approve the minutes of the Ethics Commission’s regular meeting of March 26, 2012 and special meeting of April 13, 2012. 

Public Comment:
Ray Hartz stated that the 150-word written summaries submitted by members of the public are important.  He stated that the minutes are not always accurate when summarizing public comment and used the summary of his comments in the March 26, 2012 draft minutes as an example.  He claimed it is censorship.  He said the main purpose of the Brown Act was to protect dissenting opinion.  He stated that the summary of his comments in the March 2012 draft minutes was meaningless.  [Mr. Hartz submitted a written statement of his comments, which is included at the end of these minutes.]

VIII. Executive Director’s Report.

Mr. St. Croix stated that staff expected the usual number of applicants for the public financing program.

Public Comment:
Ray Hartz commented on Item 2 of the report, the investigation and enforcement program, particularly the Sunshine Ordinance cases.  He stated that Mr. St. Croix was “off his game” because by now each of the nine pending Sunshine Ordinance complaints should have been dismissed without a hearing before the Commission.  He stated that the Commission has only had one hearing regarding a Task Force referral.  He stated that the Ethics Commission has sided with the City and against the public every time in open government matters.  He stated that this has been dragging on for years.  He stated that it looks bad for the Commission.  [Mr. Hartz submitted a written summary of his comments, which is included at the end of these minutes.]

IX. Items for future meetings.

Commissioner Renne asked the Commission to address the Gomez matter again.  Commissioner Studley stated that she would like the Commission to ask the Mayor how he has handled the letter from the Commission.  DCA Givner stated that the Commission could not authorize the Chair to send a letter during this meeting, as it was not on the agenda.  Chairperson Hur stated that he had no objection to placing this item on the agenda for a future meeting to request follow-up from the Mayor.

Commissioner Studley also stated her interest in the report, dated June 5, 2012, generated by the Budget and Legislative Analyst.  She stated that she would like to discuss the report.  She stated that she would like to hear from the Executive Director on how he and staff coordinate with other agencies about rules and procedures.  Commissioner Hayon expressed interest in hearing from Harvey Rose directly about his report.

Commissioner Studley also stated that the draft minutes misspelled “sheriff” repeatedly.

Public Comment:
Ray Hartz thanked both of the Commissioners for requesting future discussion of the Jewelle Gomez matter.  He stated that it is better for the Mayor to respond to the Commission about his position on the matter.  He stated that he comes to meetings to ensure that members of the public are free to make meaningful public comment and that they are given access to public documents.

X. Public comment on matters appearing or not appearing on the agenda that are within the jurisdiction of the Ethics Commission.

Ray Hartz stated that when he joined the Navy, he took an oath to support and defend the Constitution.  He stated that when he sees members of the public are not given the opportunity to speak or are disparaged during public comment, he finds it unacceptable.  He stated that many commission or board members are violating the oath to support and defend the Constitution of the United States and that of the State of California.  He stated that it is critical that people participate in government.  He stated that people are free to express themselves.

XI. Adjournment.

Motion 12-07-23-7 (Renne/Hayon):  Moved, seconded, and passed (4-0; Liu excused) that the Ethics Commission adjourn. 

The meeting was adjourned at 7:31 PM.

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
“Know Your Rights Under the Sunshine Ordinance” is printed on every agenda for City boards and Commissions.  One of those rights is to submit a 150-word summary which is supposed to be included “in the minutes.”  I have 4 Orders of Determination:     #10054, #11054, #11088  (finding this Ethics Commission in violation), and #11071 (finding the City Attorney in violation).  So, with all of these cases, with all of these referrals, with all of the time passed, what do I have?   The Ethics Commission continues it’s almost uninterrupted failure to enforce, IN ANY WAY, findings of “official misconduct.”  This Commission heard one case:   against Jewelle Gomez and sent a recommendation to Mayor Ed Lee that she be removed.  The Mayor has taken no action on this referral!   I guess the Mayor will only follow whatever your recommendation in the case against Sheriff Mirakarimi if it suits his “political purposes.”

This written summary was provided by the speaker, Michael Petrelis, during public comment for agenda item II. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
As a taxpayer subsidizing the Ethics Commission, I want it to enforce all Sunshine Ordinance Task Force findings of “official misconduct” whenever they occur.  Your track record as enforcers of such findings is abysmal and must be addressed.  Why are you unwilling to be the enforcers so desperately needed?  Failure to enforce SOTF “official misconduct” findings greatly diminish good government practices.  Who pulls your strings and keeps you from providing enforcement?
With SOTF effectively shut down because of Supervisor Wiener’s shameful backroom machinations to remove extremely qualified members who fail his litmus tests, and install the self-admitted unqualified Todd David as a member, your commission providing oversight is more crucial than ever.  Wiener’s evisceration of SOTF is unacceptable.
Sunshine is the best disinfectant against corruption and guarantees open books and access to public records.  I’m requesting that the Ethics Commission stop serving as a lapdog and develop watchdog principles.

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item III. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
The real question I have for the Ethics Commission members on this agenda item is:  If these documents are submitted “electronically,” when and where will the public have access to these public records?  Changing the requirement without showing any benefit to the “public” for complete and timely access is self-serving.    The memorandum mentions “timely access,” but places no requirement on EC staff to post those documents immediately upon receipt.  With these “Proposed Amendments to the Campaign Finance Reform Ordinance Section 1.112,”  at each point where a requirement is placed for filing electronically there should also be a requirement that all such documents be made available to the public immediately upon receipt.  The Ethics Commission staff is always complaining about their work load!  Having these documents immediately available online to the public would ensure that nothing is missed by the staff hard pressed to carry out its duties and responsibilities.

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item IV. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
Is there ever a meeting where you’re not revising CFRO?  Isn’t this somewhat akin to rearranging deck chairs on the Titanic?  You write a rule concerning “contributions” and participants in the political process find another “reading” of what you wrote to get around it.  You write a rule saying City employees and/or officials can’t award a contract and then leave City government and work for the same group and you give them an “exemption.”  As certain members of the public tend to follow particular campaign “issues,” they are very likely to look at your agenda and notice all of the “missing” related documents.  At most times it seems the EC staff provides you with the documents that will lead you to the determination they want, rather than documents that cover all sides of the issue under discussion.  To paraphrase an old expression:  the staff leads you by the nose!

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item V. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
This closed session should be continued to a meeting where the item is properly agendized.   This item is totally meaningless to any member of the public reading it.  You’re going to discuss “anticipated litigation as plaintiff.”  How can anyone comment on whether it’s appropriate to go into closed session when they know absolutely nothing?  Litigation about what, against who, for what purpose?  Is there not a single, salient point that could give some understanding?  Public business should be conducted in full view of the public!  Members of the public should have enough information in the agenda item to enable them to address whether they believe that conducting this particular business beyond the view of the public is appropriate!  EC staff, and by that I mean Mr. St. Croix, will argue that you’ve met the “letter of the law.”  I would argue that you have completely missed the spirit of the law!

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item VI. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
Let me guess:  You’re now going to vote that nothing you discussed is subject to disclosure.  I’m amazed that this EC seems to be composed of no one but superhumans!  Whatever length of time, whatever the issues, you never, ever discuss anything that you should disclose?       Most human beings find it difficult to stay “on track” that closely.  Most human conversation tends to wander “off track” from time to time.  You, however, maintain such close control that you never, ever move onto another topic!   You never discuss ANYTHING that should be disclosed!  WOW, I am impressed!  Or, could it be that you discuss things and, having exhausted the topic, someone says:  we probably shouldn’t be discussing this, as we would have to disclose the discussion.   Oh, comes the response, you’re right!  We should return to the discussion we TOLD the public we were going to have.  What a scam! 

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item VII. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
In the minutes of the March 26, 2012 meeting there is an example of why I feel the 150-word summaries discussed during general public comment are important.  On that day I made public comment which was summarized, on page 3, as follows:  “Ray Hartz reviewed an accounting report issued on March 1, 2012, by the Friends of the Library.”  Right!  I came here, waited for a chance on item #5 of the agenda to comment that I “reviewed an accounting report.”  I didn’t say why I reviewed the report.  I didn’t say anything about what I found during that review.  I didn’t relate why I felt my review was relevant to the agenda item.  What an idiot I am!  I think most members of the public, if they reviewed the summaries done by the EC staff, would find that NOTHING they said of meaning was summarized.  It’s nothing but CENSORSHIP!

This written summary was provided by the speaker, Ray Hartz, during public comment for agenda item VIII. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.
Mr. St. Croix’s reports are always “target rich” documents.  That is:  it seems that every item deserves a full three-minute public comment.  I’ll focus on #2 today, the “Investigation and enforcement program,”  particularly the “Sunshine Ordinance” category.  Mr. St. Croix is really “off his game.”  By now each of those 9 complaints should have already been dismissed without a hearing before the Ethics Commission.  The one and only hearing this body has given to a SOTF referral was at the time the Civil Grand Jury issued a report saying you had never conducted a hearing.  I would have a really, really hard time justifying the fact that in all the hundreds of SOTF cases, and the few dozen that were referred to Ethics, just one was even considered by the commissioners.  In open government matters you have sided with the City and against the citizens each and every time, but one!