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Minutes - October 22, 2012

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
October 22, 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 5:30 PM. 

COMMISSION MEMBERS PRESENT:  Benedict Y. Hur, Chairperson; Jamienne Studley, Vice-Chairperson; and Dorothy S. Liu, Commissioner.  Commissioners Hayon and Renne were excused.

STAFF PRESENT:  John St. Croix, Executive Director; Mabel Ng, Deputy Executive Director; Catherine Argumedo, Investigator/Legal Analyst.

OFFICE OF THE CITY ATTORNEY:  Jon Givner, Deputy City Attorney (DCA) [arrived at 5:32 PM].

OFFICE OF THE CITY ATTORNEY OF THE CITY OF SAN JOSE: Lisa Herrick, Senior Deputy City Attorney [participated via telephone during agenda item III.]

OTHERS PRESENT:  Allen Grossman; Ray Hartz; Dr. Derek Kerr; Patrick Monette-Shaw; Hope Johnson; Dr. Maria Rivero; David Pilpel; Paul Currier; Lynn Gavin; and other unidentified members of the public.

MATERIALS DISTRIBUTED: 
- September 6, 2012 memoranda from San Jose Sr. Deputy City Attorney Lisa Herrick re Ethics Complaints No. 08-110816 and 09-110816.
- Responses from Complainant re Ethics Complaints No. 08-110816 and 09-110816.
- Draft Annual Report for FY 11-12.
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on July 23, 2012.
- Draft Minutes of the Special Meeting of the San Francisco Ethics Commission on September 11, 2012.
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission on September 24, 2012.
- Executive Director’s Report.

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

Allen Grossman commented on the Commission’s decision to hear Mr. Monette-Shaw’s complaints.  He stated that he did a records search of the Commission’s files and found no internal emails between staff and Commissioners.  He found an e-mail from the Chair to Mr. St. Croix regarding the “excellent analysis” in Ms. Herrick’s memoranda.

Ray Hartz stated that Sunshine Ordinance section 67.16 requires that a written statement be included in the minutes.  He stated that the Sunshine Ordinance Task Force has made multiple rulings and Mr. St. Croix insists on keeping the statements out because the City Attorney has stated that he can.  He stated it is censorship and that it is a shame that a citizen has to fight with boards and commissions.  He stated public comment is protected political free speech.

The following written summary was provided by the speaker, Ray Hartz.  The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

The Sunshine Ordinance, section 67.16 Minutes, reads:   “Any person speaking during the public comment period may supply a brief written summary of their comments, which shall, if no more than 150 words, be included in the minutes.”   In SOTF case #11088, this Ethics Commission was found in violation of the ordinance.  To date this Ethics Commission has both refused to comply and refused to even hear the referral by SOTF to Ethics.  Why are you so afraid of having comments from the public be presented accurately in the official records of your meetings?  Why do you insist on placing the 150 word summaries in an alternate location, substituting in their proper place your censored version of those comments?  And, why have the members of this Ethics Commission abdicated their responsibility to Executive Director, John St Croix, in matter which go to the very heart of their open an honest operations?

Dr. Derek Kerr commented on the Executive Director’s report and the Annual Report.  He stated that there is no information in either report about whistleblower retaliation or in the minutes.   He stated that the Controller had reported 17 complaints, but none were substantiated.  He asked the Commission to consider adding retaliation to the categories of complaints listed in the Director’s report and Annual Report in order to raise awareness and give visibility to the Commission’s work.

The following written summary was provided by the speaker, Dr. Derek Kerr. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

As you know, the protection of whistleblowers is one of your mandates.  It’s in Article IV of the Campaign & Governmental Conduct Code.  But your work in this area is invisible.  Nothing about whistleblower retaliation complaints is mentioned in your director’s reports – or annual reports.  Recently, the Controller’s Whistleblower Program has been logging retaliation complaints.  17 this year – none substantiated     Since 1995, none have been substantiated by this body.  Each year, you are required to present a report to the Board of Supervisors.   One requirement is to note the number of complaints received.  Another is to report; “the type of conduct complained about”  Please consider adding “whistleblower retaliation” to the categories of complaints in the director’s – and the annual report.  It would raise awareness about the issue.  And give visibility to your work – and to the work of whistleblowers. 

Patrick Monette-Shaw noted that there had been no response from the Mayor regarding last month’s inquiry.  He stated that the Commission should not hear his complaints.  He stated that, in 2007, Deputy Director Ng violated the Sunshine Ordinance and that complaint was referred to Oakland.  He stated that San Jose City Attorney had submitted a flawed analysis.

Hope Johnson commented on Agenda Item 3.  She stated that the conflict needs to be addressed so that the majority of people feel comfortable. 

Dr. Maria Rivero underscored Dr. Kerr’s comments.  She questioned whether the Commission is doing what it is supposed to be doing.

III. Discussion and possible action on Ethics Complaint Nos. 08110816 and 09110816, alleging that Executive Director John St. Croix and Tonia Lediju of the Controller’s Office willfully violated the Sunshine Ordinance.

The Commissioners discussed whether the Commission should handle the matter.

Patrick Monette-Shaw objected to the Commission pushing through these complaints before new regulations are adopted.  He referenced a complaint against Deputy Director Ng that was sent to Oakland.  He stated that Oakland developed a final recommendation and sent it back, so there is a precedent.  He stated that DCA Givner has offered a personal opinion and not one issued by the City Attorney.  He stated that the Commission should not be hearing these cases.

Mr. Monette-Shaw stated that this case involves public record access issues and that the Commission has wrongly applied ethics laws to a public records case.  Chairperson Hur asked why the investigation was not about governmental ethics.  Mr. Monette-Shaw stated that it should be framed more as elder financial abuse or misappropriation of funds.  He stated that this matter was strictly about access to public records.  He stated that, once an investigation is complete, the records must be released.  He pointed out the differences between San Francisco Campaign and Governmental Conduct Code sections 4.105(a) and (b).  He addressed flaws with Ms. Herrick’s memoranda, including the inapplicability of California Evidence Code section 1040(b), California Government Code section 6254(f), and the use of any balancing test.  Ms. Herrick clarified that she had not relied on California Government section 6254(f) and noted that neither the Ethics Commission nor Controller’s Office had also relied on that section.  Mr. Monette-Shaw asked the Commission again to send the matter to Oakland.  Chairperson Hur stated that it was unclear whether the Oakland Ethics Commission is operational.

Ms. Herrick stated that the questioning of the use of a gift fund is within Charter section C3-699.13.  She stated that a whistleblower complaint would be protected under that Charter section.  Chairperson Hur asked about the application of Evidence Code section 1040(b)(2).  Ms. Herrick stated that the necessity for preserving confidentiality exists to protect the integrity of the complaint that is made.  She stated that any complainant or witness could be pressured if the complaint were open and there would be a threat of retaliation to those who may have been involved in the matter.  Commissioner Liu asked whether there would be a distinction to a complainant waiving confidentiality on his or her own complaint, rather than the entire investigatory file.  Ms. Herrick stated that she would not make a distinction as the confidentiality protects the integrity of the process.  She stated that if the Controller were to produce a summary report or conclusion of the audit, then that would be public record not protected by that privilege. 

Mr. Monette-Shaw stated that any correspondence related to this complaint is not confidential and that is part of what he had requested.

Public Comment:
Allen Grossman stated that the Commission cannot adjudicate these matters.  He stated that Chairperson Hur cannot vote as he had a tainted view of this matter in the e-mail to Mr. St. Croix.  He stated that, because he could not vote, the Commission should continue the matter as there are not enough people to hear the matter.  He stated that it was a mistake for the Commission to hear the matter without an opinion stating that they are permitted to do so. 

David Pilpel stated that he believed the Commission could hear the matter and it does not need to go to an outside body.  He agreed with Mr. Monette-Shaw on the question of applicability of a balancing test.  He stated that the investigatory file, either at the Commission or the Controller’s Office, would not be subject to disclosure, but that the scope of the initial request was for correspondence related to the complaint.  He stated that any such records may be subject to disclosure, although redacted. 

Ray Hartz stated that the Commission meetings are now televised and the Commission is an enabler.  He stated that the Commission enables other agencies to hide from public scrutiny and avoid accountability.  He stated that the public records laws are being misinterpreted to protect agencies and Ethics Commission staff.  He stated that the Commission needs to ensure that this process is open and fair and that Ms. Herrick received direction from Mr. St. Croix or staff.  He stated that it was an unfair advantage to argue with Mr. Monette-Shaw as he is not a lawyer and the Commission expects him to provide legal answers.

The following written summary was provided by the speaker, Ray Hartz. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

Now that this Ethics Commission is holding meetings on SFGTV, in full view of the public, it becomes more apparent how much of an “enabler” this body has been.  It enables City bodies and personnel to evade their duties under law and to hide that evasion from public scrutiny.  In these cases, the “whistleblower” protections are being used not to protect the whistleblowers, but to protect their targets.  They are being used to hide from the public the true facts of the investigation to allow City agencies and their employees to evade accountability for their actions.  They hide from the public the extent and validity of the investigative process used by Ethics staff.  Public records laws are always intended to disclose rather than conceal public matters.  Instead, these laws are being purposefully misinterpreted to protect not only agencies in question, but, also the Ethics Commission staff!

Dr. Derek Kerr stated that one of the things that prompted Mr. Monette-Shaw’s request was that retaliation had already occurred.  He stated that he understood the theoretical idea, but it does not work in reality.  He stated that investigations are non-existent with the Ethics Commission and Controller.  He stated that the Commission could at least disclose redacted documents like the FBI.

Paul Currier stated that the Giants are winning.  He stated that if the Commission has no conflict in hearing a case against its Executive Director, then the Commissioners need to seek professional help.  He stated that the case should be sent to Berkeley because they are hearing cases.  He stated that it is unfair for sitting members of the Task Force to have ongoing conversations with Mr. St. Croix.

Dr. Maria Rivero stated that they wanted to know whether there was an administrative memorandum during the time that the Commission sat on the case.  She stated that they would like to see that memo.  She stated that they served the City for 43 years and were summarily removed.

Hope Johnson stated that Dr. Kerr wanted to know if anything had been done and that they wanted dates.  She stated that money was found to be missing and it was unclear what happened to those people.  She stated that the law may have been incorrectly applied.

Lynn Gavin stated that she was disturbed by what happened to the doctors.  She stated that they were dismissed for doing the right thing.  She stated that there was a conflict of interest.

Commissioner Liu asked Ms. Herrick about whether there is a category of correspondence not swept up in the exemption to disclosure.  Ms. Herrick stated that there could be some information that would not fall within the exemption discussed.  She described her conversation with Mr. St. Croix in May 2012.  She stated that, after informing Mr. St. Croix that should would review the matter, she contacted Mr. Chatfield for the file and did not speak with Mr. St. Croix again.  Commissioner Liu stated that if there is correspondence that may not fall under the exemption, then that should be examined.  Commissioner Studley agreed.

Ms. Lediju of the Controller’s Office stated that everything maintained by the Controller’s Office is confidential.  She stated that she was not at liberty to talk about complaints with the Commission or anyone else.  She stated that there is nothing to disclose.

DCA Givner stated that correspondence in the investigatory file should remain confidential as well.  Ms. Herrick stated that she did not review the file that exists at the Controller’s Office or at the Ethics Commission.  She suggested reviewing the files and then disclosing anything that is not protected by law.

Ms. Lediju stated that staff is methodical about documenting conversations. Chairperson Hur stated that it was unclear what the benefit would be from asking to re-review the Controller’s files.  DCA Givner stated that Ms. Herrick could review the documents in the Ethics Commission’s files.  Ms. Herrick stated that she would not want to compromise the confidentiality of the investigation, as the files are protected by the Charter.  Chairperson Hur recommended finding that both the Commission and Controller’s Office did not commit official misconduct or a violation of the Sunshine Ordinance.  He suggested that Ms. Herrick review only correspondence that EC had with Controller’s Office, to the extent that there is such correspondence.  Commissioner Liu agreed.

Mr. Monette-Shaw requested that an Ethics Commissioner review the documents.

Ms. Herrick stated that she was willing to review the documents.  Chairperson Hur asked for a report to the Commission explaining the results of her review.

Motion 12-10-22-1 (Liu/Studley):  Moved, seconded, and passed (3-0; Hayon and Renne excused) that the Ethics Commission find that Mr. St. Croix and Ms. Lediju have not committed a willful failure to comply with the Sunshine Ordinance with respect to the investigative files of the Ethics Commission and Controller’s Office; the Commission is particularly carving out correspondence with the Controller’s Office that may be in the Ethics Commission’s files relating to the complaints that are not privileged and the Commission directs Ms. Herrick to review those files.

IV. Discussion and possible action on draft amendments to the Campaign Finance Reform Ordinance (CFRO) to impose disclosure requirements on “draft committees” that support the candidacy of an identifiable person for City elective office who has not declared as a candidate.

Chairperson Hur stated that the Commission would not be able to make a decision on this agenda item without four members and suggested continuing the matter.  There were no objections.

V. Discussion and possible action on Annual Report for Fiscal Year 2011-2012.

Public Comment:
Dr. Derek Kerr stated that the Annual Report does not say how many whistleblower complaints were reviewed in the whole year.

Ray Hartz stated that the budget figures in the report are impossible to understand.  He stated that referrals from the Task Force are still not being heard and that the Civil Grand Jury report is dismissed with only a link to the report.  He stated that the average annual amount for the agency to run is $6 million per year.  He stated that it costs the Commission approximately $500,000/month to run and he does not see the Commission doing anything. 

The following written summary was provided by the speaker, Ray Hartz. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

Despite all of the complaints in this report regarding the low staffing levels, it is hard to see what benefits the public gains for expenditures of millions of dollars each year.  Even the budget figures listed in this report are impossible to understand.  The latest six years range from $3.6 million to $8.4 million, with an average of $6 million per year.  What do the citizens of San Francisco get for this amount?  Honestly, reading this report, it would seem to be not much “bang for the buck!”  I’ve heard estimates of anywhere from $1.2 million to $1.8 million just for the recent “investigation” of the Sheriff!  The referrals from the SOTF are still not being heard.  The Civil Grand Jury report is dismissed with only a link to the report and another to the EC response.  What exactly does the public get for all those millions?

Chairperson Hur stated that there is an important need to keep investigatory files confidential. He stated that the Commission must protect future whistleblowers.  He stated that the notion that the Commission does not care what is in the files is unfounded and the Commission has spent a lot of time on the matter.

Paul Currier stated that the argument should apply to Eliana Lopez, as her attorney-client privilege was breached.  He stated that they disclosed everything against her will.

Chairperson Hur suggested placing the highlights in order of importance or in chronological order.  Executive Director St. Croix agreed to make that change.  Commissioner Studley appreciated the inclusion of the future initiatives section.  She wanted to bring the items on the list back to the Commission during the course of the year.  Commissioner Liu agreed.

Chairperson Hur stated that he was pleased with the Commission’s staff’s thankless handling of procedural mechanisms of the Mirkarimi hearings.  He stated that the documents were easily available and the summaries were put together efficiently.  He stated that the items allowed the public to understand what the Commission had done and what the Commission planned to do.

Executive Director St. Croix clarified that the Commission’s operating budget is $2.3 million; all other funds are dedicated to public financing.

Motion 12-10-22-2 (Studley/Liu):  Moved, seconded, and passed (3-0; Hayon and Renne excused) that the Ethics Commission adopt the Annual Report, as amended. 

VI. Discussion and possible action on minutes of the Commission’s regular meetings of July 23, 2012 and September 24, 2012, and special meeting of September 11, 2012.

Mr. St. Croix stated that, in the past, it was the Commission’s policy not to publish draft minutes on the website, although they have been available at the Commission office.  He stated that the policy will change and that staff will post draft minutes in advance of a meeting in a format that permanently reflects the draft status.

Public Comment:
Paul Currier stated that he was upset about the bomb threat and that he was not warned to leave City Hall.  He stated that the minutes reflected that the meeting was adjourned, but the actual record is not accurate.  He stated that this was done in collusion with the Mayor, Chief Suhr, Steve Kawa, and Dennis Herrera.  He stated that the Mayor had perjured himself and he would like federal agents to come in.  He stated that he would like to see Supervisors arrested.  He mentioned 300 people being evicted from Park Merced.

Ray Hartz stated that he would like someone on the Commission to show some integrity and ask Mr. St. Croix why he is so determined to keep public comments out of the official records.  He specifically referenced the minutes of July 23, 2012.  He stated that public comments are constitutionally protected free speech and Mr. St. Croix is taking the comments out of the record and substituting censored versions of the comments.  He stated that free speech is protected in its publication in a government document.  He stated that Mr. St. Croix wants to marginalize his free speech and substitute his interpretation.  He stated that the Commission does not like what the members of the public have to say and that the Commission wants to make sure it does not get into the record. 

The following written summary was provided by the speaker, Ray Hartz. The content is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission.

I believe it time for someone on this Ethics Commission to show some integrity, by asking the Executive Director, John St. Croix in public, why he is so determined to keep the actual thoughts of the public out of the official record? We are talking about Constitutionally protected political free speech.  Mr. St. Croix takes that free speech out of the official record, the place is lawfully should appear, and substitutes his approved, censored version.  Anyone can read these minutes and see that what I said and what Mr. St. Croix says I said are not the same.  I am censored, as are other members of the public.  To continue this, the Ethics Commission must show “a compelling state interest.”  Mr. St. Croix does not like what members of the public have to say and wants to retain the ability to marginalize that free speech and substitute his own words.

Commissioner Studley suggested a correction on the third paragraph on page 3 of the draft minutes from the September 24, 2012 meeting.  She suggested changing the language from “if the Task Force meetings and has suggestions” to “if the Task Force meets and has suggestions.”

Motion 12-10-22-3 (Studley/Liu):  Moved, seconded, and passed (3-0; Hayon and Renne excused) that the Ethics Commission adopt the minutes of July 23, 2012 and September 11, 2012 as drafted and adopt the minutes of September 24, 2012, as amended. 

VII. Discussion of Executive Director’s Report.

Mr. St. Croix stated that the November meeting will be a long meeting.  He stated that Agenda Item IV from this agenda will be discussed, as will the regulations regarding Sunshine referrals.  He stated that the meeting is scheduled for November 26 and that staff will endeavor to have the agenda packets prepared by November 19.  He also stated that he was having difficulty rescheduling the December meeting, as it is currently scheduled for December 24.  He also mentioned that staff was scheduling two Interested Persons’ meetings in December regarding the Budget Analyst report’s comparison with the Los Angeles Ethics Commission.

Public Comment:
Dr. Derek Kerr commented on the chart of the first page of the report.  He stated that the Director introduced this chart in 2006.  He stated that the first month had a section for “whistleblower/sunshine ordinance,” but that it no longer appears that way.  He suggested adding a “whistleblower retaliation” section to this chart.

Ray Hartz stated that he reads these reports and wants to make meaningful comment.  He stated that the report provides meaningless statistics.  He asked how many complaints are referred from the Task Force.  He stated that the Commission has only taken one referral from the Task Force and that was only because of the Civil Grand Jury report.    He stated that it was awful to sit in meetings and watch people being denied the opportunity to speak.  He stated that the Task Force made four determinations that the summaries should be included in the minutes.

VIII. Discussion on items for future meetings.

Chairperson Hur asked whether the list in the Director’s report could include whistleblower complaints.  Mr. St. Croix stated that he would look into what additional information could be included in the report. 

Public Comment:
Dr. Kerr asked Mr. St. Croix to repeat his statement.

Ray Hartz stated that the Commission could attribute negative motives to him and he did not care.  He stated that he wanted to ensure that members of the public are allowed to speak and that they are allowed to access public records to speak.  He stated that there are members of the public who are afraid to comment or be on television and are afraid to say that they do not like what the Commission is doing. He stated that he has tried to be polite and he stated that section 67.16 is clear.

IX. Adjournment.

Motion 12-10-22-4 (Studley/Liu):  Moved, seconded, and passed (3-0; Hayon and Renne excused) that the Ethics Commission adjourn. 

Public Comment:
None.

The meeting was adjourned at 8:42 PM.