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Minutes - January 28, 2013

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
January 28, 2013
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 5:34 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; Garrett Chatfield, Investigator/Legal Analyst.

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

OTHERS PRESENT: Jason Cunningham, Budget Analyst; David Pilpel; Patrick Monette-Shaw; Derek Kerr; Ray Hartz; Paula Datesch; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
- Memorandum from the Executive Director re: Regulations for Investigations and Enforcement Proceedings, dated January 18, 2013
- Draft amendments to the Commission’s Enforcement Regulations
- Regulations for Violations of the Sunshine Ordinance
- Memorandum from the Deputy Executive Director re: San Jose City Attorney Report – Complaint Nos. 08-110816 and 09-110816, dated January 23, 2013
- Memorandum from San Jose Deputy City Attorney Lisa Herrick re: Referral from Sunshine Ordinance Task Force re Ethics Complaint 09-110816, dated October 24, 2012
- Memorandum from the Executive Director re: Fiscal Year 2013/2014 Budget Request, dated January 23, 2013
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission of November 26, 2012
- Executive Director’s Report for The San Francisco Ethics Commission Meeting of January 28, 2013

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

An unidentified member of the public stated that Library Commission President Jewelle Gomez violated his constitutional rights. He stated that the Ethics Commission determined that Ms. Gomez violated the Sunshine Ordinance. He stated that he requested a document from Supervisor Kim’s office and received a version with personal information redacted. He stated that redacting personal information is a violation of the Sunshine Ordinance.

Ray Hartz stated that Ms. Gomez has been elected to be the Library Commission President twice since the Ethics Commission’s determination that she violated the Sunshine Ordinance. He stated that Mayor Lee has refused to follow-up on the violation. He stated that the Library Commission is in dereliction of its duty.

Patrick Monette-Shaw stated that Commissioner Renne should recuse himself from considering Mr. Monette-Shaw’s matter. He stated that the Ethics Commission should not decide the matter because the Executive Director is the respondent.

Paula Datesh stated that the Arts Commission has violated the Sunshine Ordinance. She stated that she has brought the matter to the Ethics Commission and wants the matter investigated.

III. Discussion and possible action on action on draft amendments to the Commission’s Regulations for Investigations and Enforcement Proceedings.

Executive Director St. Croix introduced the item.

Chairperson Hur stated that the item is a housekeeping measure to remove references to the Sunshine Ordinance from the Enforcement Regulations now that there are separate regulations in place for Sunshine Ordinance matters.

Public Comment:

Derek Kerr stated that the requirement to calendar an item was recommended to be one commissioner by the Civil Grand Jury.

Ray Hartz stated that the Ethics Commission has ignored 14 orders of determination by the Sunshine Ordinance Task Force.

David Pilpel stated that the word “handling” should be included in the title of the Enforcement Regulations, and that the word “alleged” should be in the title of the Sunshine Ordinance Regulations.

Patrick Monette-Shaw stated that the word “alleged” should not be included in the title for the Sunshine Ordinance Regulations.

Chairperson Hur stated that the titles of both sets of regulations are not being addressed at this meeting.

Motion 13-1-28-1 (Hayon/Studley) Moved, seconded, and passed (5-0) that the Commission adopt the deletion of references to violations of the Sunshine Ordinance from the Commission’s Enforcement Regulations, which are now handled under separate regulations, and to adopt staff’s other proposed changes.

IV. Discussion and possible action on a report submitted by Lisa Herrick, formerly of the San Jose City Attorney’s Office.

Executive Director St. Croix left the dais during the item.

Commissioner Renne requested to be recused from the item.

Motion 13-1-28-2 (Studley/Hayon) Moved, seconded, and passed (4-0, Renne abstaining) to allow Commissioner Renne to be recused from the matter.

Chairperson Hur introduced the item. He stated that Ms. Herrick determined that three pages of communications could be released as they have been redacted by her.

Public Comment:

Patrick Monette-Shaw stated that California Evidence Code does not apply and that the pages Ms. Herrick identified were presumptively public records.

The following written summary was provided by the speaker, Patrick Montette-Shaw, the content of which is neither generated by, nor subject to approval or verification of accuracy by, the Ethics Commission:

San Francisco’s Ethics Commission has denied me access to public records for almost two years.

Sunshine Ordinance Section 67.24(b)(1)(iii), regarding access to Litigation Materials, states: “Advice on compliance with, analysis of, an opinion concerning liability under, or any communication otherwise concerning the California Public Records Act, the Ralph M. Brown Act, the Political Reform Act, any San Francisco governmental ethics code, or this Ordinance,” are public records subject to disclosure under San Francisco’s Sunshine Ordinance.” [sic]

Notably, Section 6253(c) of California’s Public Records Act gives agencies 10 days to notify requestors whether requested records are exempt or disclosable, and that if an agency fails to notify the requestor in timely fashion, it waives any applicable exemption. [sic]

Now two years after I filed this records request, this Commission is pathetically still debating whether records identified by San Jose Deputy City Attorney Lisa Herrick as probably disclosable involved wrongful, willful withholding by Ethics. [sic]

Derek Kerr stated that he was a whistleblower. He stated that there is too long of a delay in handling complaints. He stated that he is concerned that the Ethics Commission is burying retaliation complaints to enable retaliation.

An unidentified member of the public stated that he supported Mr. Monette-Shaw. He stated that unless a document is specifically exempt, it is a public record.

David Pilpel stated that the three pages identified by Ms. Herrick are public records and should be provided.

DCA Givner stated that the Commission may review in camera documents that are privileged.

Chairperson Hur stated that the emails should be released to Mr. Monette-Shaw as they are redacted and as recommended by Ms. Herrick. He stated that the redacted information relates to communications between the Ethics Commission and the Controller’s Office. He stated that the documents Ms. Herrick recommended be released are heavily redacted and staff reasonably withheld the documents given their content.

Motion 13-1-28-3 (Liu/Studley) Moved, seconded, and passed (4-0, Renne recused) to release the records as recommended and redacted by Ms. Herrick.

Chairperson Hur stated that the withholding of the records was not a willful violation.

Commissioner Liu stated that she agreed that the withholding of the records was not willful given the amount of debate the Commission had in determining whether to accept Ms. Herrick’s recommendation.

Patrick Monette-Shaw Stated that the withholding was willful.

Derek Kerr stated that the Ethics Commission should consider releasing redacted documents even if all of the information contained in the document is confidential. He stated that the information is confidential, but the document is public.

Ray Hartz stated that the finding that a violation is not willful merely because the issue is complicated is circular reasoning.

David Pilpel stated that the public should hear from the Executive Director.

Commissioner Studley stated that she agreed that the violation is not willful.

Executive Director St. Croix stated that the documents as redacted contained no usable information.

DCA Givner stated that the Sunshine Ordiance allows a department to withhold a document if redacting confidential information is so extensive as to render the document unusable.

Motion 13-1-28-4 (Studley/Hayon) Moved, seconded, and passed (4-0, Renne recused) that the withholding of records by the Executive Director was not willful.

Chairperson Hur addressed the public stating that he understands the frustration of the public given the confidential nature of Ethics Commission investigations, but that the Commission is bound by the City Charter prohibiting disclosure of investigations.

V. Discussion and possible action on Ethics Commission budget.

Executive Director St. Croix introduced the item.

Jason Cunningham, the Budget Analyst assigned to the Commission, introduced himself to the Commission members.

Responding to Commissioner Hayon, Executive Director St. Croix stated that the Commission should consider proposing the same budget as the Commission was granted for the last fiscal year. He stated that there is a need to engage in more investigations, conduct audits on all committees, and increase campaign consultant reporting. He stated that any cuts to the current budget would come from staffing.

Public Comment:

David Pilpel stated that the memo regarding the budget did not have enough information. He stated that the Commission meetings should not be televised to save money.

Motion 13-1-28-5 (Renne/Hayon) Moved, seconded, and passed (5-0) to approve the submission of the proposed budget without the cuts sought by the Mayor’s Office.

VI. Closed Session – Discussion and possible action regarding a complaint received or initiated by the Ethics Commission.

Public Comment:

An unidentified member of the public asked how long the closed session would last.

Motion 13-1-28-6 (Liu/Studley) Moved, seconded, and passed (5-0) to move into closed session.

[The Commission went into closed session at 7:05 p.m. In attendance in closed session were all five members of the Ethics Commission, Executive Director St. Croix, Deputy Executive Director Ng, DCA Givner, DCA White, Investigator Chatfield, and Respondent.]

Motion 13-1-28-7 (Studley/Hayon) Moved, seconded, and passed (5-0) that pursuant to section C3.699-13, the Ethics Commission will not disclose its closed session deliberations.

[The Commission went into open session at 7:57 p.m.]

Executive Director St. Croix read a Finding of Probable Cause for Ethics Commission Complaint 13-111013:

At its regular meeting of January 28, 2013, in the matter of Ethics Complaint Number 13-111013, the Ethics Commission made a determination that there is probable cause to believe the following violations of the San Francisco Campaign and Governmental Conduct Code occurred; and that the Respondent(s), Cesar Ascarrunz and Bessie Natareno, committed them:

  1. One violation of San Francisco Campaign and Governmental Conduct Code section 1.116, subsection (a)(2), for reporting and receiving a loan to his candidate committee in excess of $120,000;
  2. One violation of San Francisco Campaign and Governmental Conduct Code section 1.116, subsection (c), for repaying a loan amount in excess of $120,000;
  3. One violation of California Government Code, section 81004, subdivision (a), as incorporated into local law by San Francisco Campaign and Governmental Conduct Code, section 1.106, for not accurately reporting either the correct amount of a loan that the committee incurred, or the date that the loan was actually deposited into the committee’s bank account;
  4. One violation of San Francisco Campaign and Governmental Conduct Code, section 1.109, subsection (b), for not providing documents that they were required to keep within 10 business days after a request by Ethics Commission staff;
  5. Fifteen violations of California Government Code, section 84104, as incorporated into local law by San Francisco Campaign and Governmental Conduct Code, section 1.106, for failing to maintain detailed records that document the dates on which his committee made 15 expenditures, the amounts of the expenditures, the names and addresses of the payees, or descriptions of the goods or services;
  6. Fifteen violations of San Francisco Campaign and Governmental Conduct Code, section 1.108, subdivision (a)(1), for failing to make 15 campaign expenditures from the candidate committee’s bank account.

Each Commissioner who participated in a decision to find probable cause must certify on the record that he or she personally heard or read the testimony, reviewed the evidence, or otherwise reviewed the entire record of the proceedings.

[Each Commissioner publicly certified on the record that they participated in a decision to find probable and that he or she personally heard or read the testimony, reviewed the evidence, or otherwise reviewed the entire record of the proceedings.]

The Respondents are presumed to be innocent unless and until such time that the allegations are proved in a subsequent hearing on the merits.

The Executive Director shall issue an accusation in accordance with the San Francisco Ethics Commission Regulations for Investigations and Enforcement Proceedings.

VII. Discussion and possible action on minutes of the Commission’s regular meeting of November 26, 2012.

Public Comment:

David Pilpel advised Commission staff of several typographical errors.

Motion 13-1-28-8 (Studley/Renne) Moved, seconded, and passed (5-0) that the Commission adopt the minutes of the regular meeting of November 26, 2012, as amended.

VIII. Discussion of Executive Director’s Report.

The Executive Director introduced the report and noted several highlights.

Public Comment:

David Pilpel stated that the report should include information on the status of pending audits.

IX. Discussion on items for future meetings.

Vice-Chairperson Studley stated that she appreciated staff’s scheduling of the Interested Persons meeting regarding the Budget Analyst’s report.

Public Comment:

David Pilpel stated that the Executive Director report should include topics to be considered at future meetings.

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

An unidentified member of the public stated that the Mayor’s Office is a gang as is the Library Commission and the Ethics Commission. He stated that the Executive Director sees himself as a corporate executive.

XI. Adjournment.

Motion 13-1-28-9 (Liu/Renne) Moved, seconded, and passed (5-0) that the Commission adjourn.

The meeting adjourned at 8:12 p.m.