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Minutes - November 26, 2012

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
November 26, 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; Beverly Hayon, Commissioner; Dorothy S. Liu, Commissioner; Paul A. Renne, Commissioner.

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

OFFICE OF THE CITY ATTORNEY: Andrew Shen, Deputy City Attorney (DCA).

OTHERS PRESENT: David Pilpel; Richard Knee; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
- Memorandum from Executive Director, dated November 16, 2012, re: Regulations for Violations of the Sunshine Ordinance
- Draft Ethics Commission Regulations for Violations of the Sunshine Ordinance
- Ethics Commission Regulations for Investigations and Enforcement Proceedings
- San Francisco Administrative Code, Chapter 67, The San Francisco Sunshine Ordinance
- Memorandum from Executive Director, dated August 27, 2012, re: Proposed legislation to impose disclosure requirements on draft committees
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission of October 22, 2012
- Executive Director's Report for The San Francisco Ethics Commission Meeting of November 26, 2012

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

David Pilpel stated that he would like Commission staff to prepare a report on the effectiveness on the public financing program.

III. Discussion and possible action on draft regulations governing the Ethics Commission's handling of complaints related to alleged violations of the Sunshine Ordinance and referrals from the Sunshine Ordinance Task Force (SOTF).

Executive Director St. Croix introduced the item.

Decision Point 1

Chairperson Hur inquired why the term "Order of Determination" was defined if the term is not referenced in the regulations.

Investigator Chatfield stated that the term is defined to identify how a referral is made to the Commission by the Task Force and to identify which track a referral will be handled under.

Public Comment:
Richard Knee stated that the Commission should postpone making any decision regarding the proposed regulations until the five new members of the Task Force had an opportunity to review the regulations.

David Pilpel stated that the regulations should strike references to the "Supervisor of Records" because that individual cannot refer matters to the Commission.

Motion 12-11-26-1 (Renne/Hayon) Moved, seconded, and passed (5-0) that the Ethics Commission adopt decision point 1.

Decision Point 2

Commissioner Renne stated that sections II.D.2 and II.D.3 in Chapter Two should be re-ordered so that II.D.3 is renumbered as II.D.2 and vice versa. He stated that the re-ordering of the sections provides better clarity.

Investigator Argumedo responded to Commissioner Liu stating that the Commission may present its findings of fact orally at a hearing rather than in written form.

Chairperson Hur stated that language should be added to Chapter Two, section II.C.2 that would allow for the parties to exchange documents via email.

Public Comment:
Mr. Knee stated that the regulations propose two different burdens of proof in the two different hearing procedures and they should be standardized.

Mr. Pilpel stated that Chapters Two and Three should have parallel language. He stated that he was concerned about what would occur if the Commission came to a deadlocked decision in the event a hearing was conducted by only four Commissioners.

Motion 12-11-26-2 (Renne/Studley) Moved, seconded and passed (5-0) that the Ethics Commission adopt decision point 2 as amended by the Commission.

Decision Point 3

Vice-Chairperson Studley stated that the change made to Chapter Two, sections II.D.2 and II.D.3 should also be made to Chapter Three, sections III.B.2 and III.B.3.

Chairperson Hur and Commissioner Studley discussed and stated that the phrase "unless impracticable" be added to Chapter Three, section I.B.1 just prior to the clause regarding the scheduling of a hearing.

Public Comment:

Mr. Knee stated that the regulations should define what the regulations mean by the term "page."

Mr. Pilpel stated that any document that is public and related to a hearing should be included with the report and recommendation. He stated that staff should develop a flow chart to aid a respondent with the hearing process.
After discussion between the Commissioners and DCA Shen, the Commissioners determined that there was no need to address potential deadlock situations as a respondent or complainant carry the burden to convince three Commissioners for any finding of a violation or non-violation.

Motion 12-11-26-3 (Liu/Hayon) Moved, seconded, and passed (5-0) to adopt decision point 3 as amended by the Commission.

Decision Point 4

After discussion between the Commissioners and the Executive Director, the Commission proposed adding a section in Chapter Four to require each Commissioner who participates in making a decision on a continued hearing, but who did not attend the hearing in its entirety, to certify on the record that he or she personally heard the testimony, either in person or by listening to a tape or recording of the proceeding, and reviewed the evidence, or otherwise reviewed the entire record of the proceedings.

After discussion, the Commissioners stated that language should be added to Chapter Four, section E, stating that a hearing will be continued unless four or more Commissioners are present.

Public Comment:

Mr. Knee stated that there should be a provision that requires audio and video recording of the hearings.

Mr. Pilpel stated that Sunshine Ordinance related complaints and corresponding documents should be public.

Motion 12-11-26-4 (Renne/Hayon) Moved, seconded, and passed (5-0) to adopt decision point four as amended by the Commission.

Decision Points Five through Seven where continued to a future meeting.

Decision Point 8

Chairperson Hur stated that the Commission should make every effort to review these regulations one year after implementation to determine if anything should be changed or improved.

Public Comment:

Mr. Knee stated that he needed clarification as to what the Commission was taking action on with this decision point.

Motion 12-11-26-5 (Renne/Studley) Moved, seconded, and passed (5-0) to adopt decision point 8 and the Regulations as a whole as amended by the Commission.

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.

Executive Director St. Croix introduced the item.

Decision Point 1

Chairperson Hur stated that he wanted to ensure that there was no ambiguity in the language defining "support."

Deputy Executive Director Ng stated that the language that is currently in the draft would cover situations in which a committee attempts to encourage an undeclared individual to run for a specific elective office.

After discussion between the Commission and the Executive Director, the Commission proposed to amend the language in section 1.160(a)(1) to read "in order to support the qualification or election of an identifiable person to City elective office who has not qualified as a candidate."

Public Comment:

Mr. Pilpel stated that the term "qualification" should be included in the definition of "draft committee."

Motion 12-11-26-6 (Hayon/Renne) Moved, seconded, and passed (5-0) to adopt decision point 1 as amended by the Commission.

Decision Point 2

Commissioner Liu stated that the language for section 1.160(b)(1) should read "Draft committees shall file the same statement required to be filed by a primarily formed committee" and stated that it would help clarify the filing requirements.

After discussion, the suggested language for section 1.160(b)(1) was proposed as "Draft committees shall file campaign finance-related filings, reports, or statements required by either state or local law for a primarily formed committee supporting a candidate seeking the same City elective office."

Public Comment:

Mr. Pilpel stated that there are an insufficient number of commas in the proposed language making the provision difficult to interpret.

Motion 12-11-26-7 (Renne/Liu) Moved, seconded, and passed (5-0) to adopt decision point 2 as amended by the Commission.

V. Closed Session - Public Employee Performance Evaluation: Executive Director John St. Croix.

Public Comment:

Mr. Pilpel stated his support for the Executive Director.

Motion 12-11-26-8 (Studley/Hayon) Moved, seconded, and passed (5-0) that the Commission to go into closed session.

The Commission went into closed session at 7:55 p.m. All persons left the room except the five Commissioners and the Executive Director.

The Commission returned to open session at 9:10 p.m.

Motion 12-11-26-9 (Hayon/Studley) Moved, seconded, and passed (5-0) that pursuant to San Francisco City Charter, section C3.699-13; California Brown Act, section 54957.1; and San Francisco Sunshine Ordinance, section 67.12; the Commission not disclose the closed session proceedings.

VI. Discussion and possible action on minutes of the Commission's regular meeting of October 22, 2012.

Public Comment:

Mr. Pilpel noted several typographical errors. Staff indicated that those errors would be corrected.

Motion 12-11-26-10 (Liu/Studley) Moved, seconded, and passed (5-0) that the Commission approve the minutes as amended.

VII. Discussion of Executive Director's Report.

The Executive Director introduced the report and noted several highlights.

Public Comment:

Mr. Pilpel stated that report should contain a list of bad actors who still owe fines and non-filers.

VIII. Discussion on items for future meetings.

None.

Public Comment:

None.

IX. Adjournment.

Motion 12-11-26-11 (Studley/Renne) Moved, seconded, and passed (5-0) that the Commission adjourn.

The meeting adjourned at 9:15 p.m.