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Minutes - June 24, 2013

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
June 24, 2013
Room 400, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

I. Call to order and roll call.

Chairperson Hayon called the meeting to order at 5:30 PM.

COMMISSION MEMBERS PRESENT: Beverly Hayon, Chairperson; Paul A. Renne, Vice-Chairperson; Brett Andrews, Commissioner; Benedict Y. Hur, Commissioner; Jamienne S. Studley, Commissioner.

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

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

OTHERS PRESENT: Sue Blackman; Ray Hartz; Kate Patterson; Glenn Rogers; Peter Warfield; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
- Staff Memorandum re: Hearing – Ethics Complaint 02-120402, dated June 17, 2013;
- Report and Recommendation Ethics Commission Complaint No. 02-120402 and supporting documents;
- Staff Memorandum re: Hearing – Ethics Compliant 01-130307, dated June 17, 2013;
- Report and Recommendation Ethics Commission Complaint No. 01-130307 and supporting documents;
- Staff Memorandum re: Show Cause Hearing – Ethics Complaint, dated June 17, 2013, and supporting documents;
- Ethics Commission Regulations for Violations of the Sunshine Ordinance;
- Sunshine Ordinance;
- Draft Contributor Guide;
- Draft minutes of the Commission’s Special Meeting of May 20, 2013;
- 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.

Newly appointed Commissioner, Brett Andrews, introduced himself to his fellow Commissioners and to the members of the public.

Ray Hartz stated that he would rather be at home reading a good book than at Commission meetings, but that it is important to exercise his rights. He stated that the Ethics Commission had recommended that Library Board President, Jewelle Gomez, be removed from her position, and Mayor Lee has not done anything about that recommendation. Mr. Hartz stated that Ms. Gomez threatened him and that the threats were recorded.

Peter Warfield stated that Sunshine Ordinance Task Force referrals to the Ethics Commission should be represented by the Task Force as the complainant. He stated that the Task Force is in the best position to explain the reasoning behind its findings. He stated that the Ethics Commission was called a “sleeping watchdog,” but the Executive Director is not sleeping when he wants to protect the guilty. He stated that the Executive Director incorrectly defined the Task Force referral regarding the Arts Commission, as a case naming Mr. Warfield as the complainant. He stated he did not have a complaint against an Arts Commission staffer, but against the department, and the Department Head should be held responsible.

III. Discussion and possible action on matters submitted under Chapter Three of the Ethics Commission Regulations for Violations of the Sunshine Ordinance.

a) Ethics Complaint No. 02-120402 regarding alleged willful violation of Sunshine Ordinance by elected officials (referred from the Sunshine Ordinance Task Force on April 2, 2012)

Executive Director St. Croix introduced the item and informed the Commission that the complainant had requested a continuance. He stated that this was the complainant’s third request for continuance. He also stated that none of the four respondents were in attendance.

Commissioners Hur and Studley suggested that the matter should be continued as none of the parties appeared.

Commissioner Renne stated that if another continuance is granted, it should be the last one granted for any party.

Executive Director St. Croix stated that if a continuance is granted, the Commission should state so on the record by motion.

After discussion amongst the Commission members, they agreed to grant a continuance.

Public Comment:
Ray Hartz stated that the complainant has been homeless and cannot receive health care so it is unreasonable for the Commission to request a doctor’s note to grant a continuance. He stated that the Commission dragged its feet for a decade on Sunshine Ordinance matters and that it is now saying that it is terrible to delay the resolution of this matter. He stated that the Commission sided with the City 98 percent of the time regarding Sunshine Ordinance complaints.

Peter Warfield stated that the complainant in this matter is a serious person who has devoted herself to many important issues. He stated that he does not know the specifics regarding the request for a continuance, but that the Commission should ask her how she would like to proceed.

Glen Rogers stated that it will be difficult to contact the complainant by mail if she is homeless.

Motion 13-06-24-01 (Hur/Studley): Moved, seconded, and passed (5-0) that the Commission continue possible action on the matter to the Commission’s September 23, 2013 meeting, with no further continuances granted on this matter absent a good cause showing by either side.

b) Ethics Complaint No. 01-130307 regarding alleged willful violation of Sunshine Ordinance by department head (referred from the Sunshine Ordinance Task Force on March 7, 2013)
Complainant: Ray Hartz
Respondent: Luis Herrera, City Librarian, San Francisco Public Library

Executive Director St. Croix introduced the item and reviewed the hearing procedure.

Ray Hartz presented his case. He stated that the Task Force has found that 150-word written summaries must be placed within the body of the minutes. He stated the Report and Recommendation is inaccurate by referencing that the Task Force has not issued a statement to City departments regarding its determination. He stated that reliance on the Good Government Guide is misplaced, because it is not the law. He stated that the Sunshine Ordinance is the law, and the Task Force has made its determination regarding where the written summaries should be placed in the minutes.

Sue Blackman, representing Luis Herrera, presented her case. She stated that the Commission already made a determination on a similar case regarding another set of minutes, and that it determined that placing the written summaries at the end of the minutes was acceptable and consistent with advice from the City Attorney. She stated that the Library Commission has followed the Ethics Commission’s lead and started placing the summaries in the minutes at the place where the member of the public made public comment.

Mr. Hartz presented his rebuttal. He stated that it is not true the Library Commission adopted the new policy as to where the summaries will be placed. He stated that the policy could be changed arbitrarily.

The Commission discussed the factual and legal issues and asked both Mr. Hartz and Ms. Blackman several questions regarding the matter.

After discussion, Commissioner Studley stated that she concluded that there was no violation of Sunshine Ordinance, section 67.16, because the written summaries appeared in the minutes and that placing the summaries in an addendum that is part of the same document satisfies the requirements of section 67.16.

Public Comment:
Peter Warfield stated that the Library Commission has a long history of omitting discussions in the minutes that occurred during a meeting, and have discussed changing the minutes format to “action minutes.” He stated that the minutes often don’t reflect what a speaker said, and sometimes reflects the opposite of what the speaker said.

Motion 13-06-24-02 (Studley/Hur): Moved, seconded, and passed (5-0) that City Librarian Luis Herrera did not violate the Sunshine Ordinance because the 150-word summaries submitted by Complainant and others were included in the minutes of the Library Commission’s meetings, as required under Administrative Code section 67.16.

IV. Discussion and possible action on matters submitted under Chapter Two of the Ethics Commission’s Regulations for Violations of the Sunshine Ordinance.

a) Ethics Complaint No. 02-130307 (referred from the Sunshine Ordinance Task Force on March 7, 2013)
Complainant: The Library Users Association
Respondent: San Francisco Arts Commission

Executive Director introduced the item and reviewed the hearing procedure.

Kate Patterson presented her case. She stated that she did fail to respond in time. She stated that personal addresses and phone numbers were redacted from speaker cards to protect the privacy of members of the public.

Peter Warfield presented his case. He stated that the hearing procedure for this matter is an outrage. He stated that it is being conducted as if he personally complained against Kate Patterson, which he did not. He stated that the Department Head should be held responsible, and that the matter should be re-heard.

Vice-Chairperson Renne stated that under this procedure, the Task Force findings are presumed correct, so there is no burden on Mr. Warfield to prove a violation.

Ms. Patterson, responding to Commissioner Hur, stated that she was not aware of the reason that the Arts Commission asked for an address on speaker cards, but that the address line no longer appears on the cards. She also stated that she is not the custodian of all records in the department, but that she was responsible for this records request.

Mr. Warfield, responding to Commissioner Hur, stated this violation is part of multiple violations by the Arts Commission. He stated that the department did not provide a justification for each redaction, and it is incumbent on the public official to explain why information is being withheld. He stated that he does not believe personal addresses are private and subject to being withheld, and that neither the Public Records Act, nor Sunshine Ordinance allow for the redaction of personal addresses.

Commissioner Studley stated that she was concerned about whether Ms. Patterson was the right person to be named as the respondent. The Commission members discussed how staff identified who were the complainant and respondent.

Vice-Chairperson Renne stated that he is troubled that the Task Force appears to disregard advice by the City Attorney, and is not clear where the Task Force gets its authority to overrule advice by the City Attorney. Mr. Warfield responded that the Sunshine Ordinance provides that authority.

The Commission members discussed the legal and factual issues regarding the issue of responding in a timely manner.

Public Comment:
Ray Hartz stated that the Task Force is authorized to advise and provide information regarding compliance to the Sunshine Ordinance. He stated that the City Attorney must provide a legal justification for advice issued by that office. He stated that the Department Head is ultimately responsible to ensure that staffers comply with the Ordinance. He stated that it common for departments to send low-level employees to avoid culpability by the Department Head.

Motion 13-06-24-03 (Studley/Andrews): Moved, seconded, and passed (5-0) that Respondent Kate Patterson/San Francisco Arts Commission failed to respond in a timely manner to an immediate disclosure request from Complainant

Commissioner Renne questioned Ms. Patterson regarding the redactions. She responded stating that only personal addresses and email addresses were redacted. She stated that she consulted with the City Attorney’s Office to determine what to redact.

Responding to Commissioner Andrews, Mr. Warfield stated that there was no justification provided regarding the reason for the redactions.

The Commission members discussed the legal and factual issues regarding the section 67.26 violation.

Public Comment:
Ray Hartz stated that redactions must be done based on a legal justification and that justification needs to be cited. He stated that the City Attorney provides this advice without writing anything down, and that these determinations by the City Attorney should be in legal memos.

Motion 13-06-24-04 (Hur/Studley): Moved, seconded, and passed (5-0) that Respondent Kate Patterson/San Francisco Arts Commission, by not providing appropriate notice and justification, failed to comply with Sunshine Ordinance section 67.26 in making their redactions on the speaker cards requested by Complainant.

The Commission members engaged in a discussion regarding what authority the Ethics Commission has to determine if the privacy interests were accurately determined by the Arts Commission.

DCA White stated that the Ethics Commission could make that determination.

Responding to Commissioner Andrews, Ms. Patterson stated that the City Attorney’s Office provided the legal research cited in the Arts Commission’s response to the allegations.

The Commission discussed the legal and factual issues regarding the redactions.

Public Comment:
Ray Hartz stated that if the Ethics Commission determines that addresses are private, then would a public official who releases that information be liable of disclosing such addresses. He stated that this subjects his privacy interests to the whim of whoever received a records request.

Glenn Rogers stated that he does not believe personal addresses are private.

Commissioner Hur clarified that there is a difference between saying an address is inherently private and what is being determined on these facts. He stated that there is no broad determination being made on the privacy of addresses.

Motion 13-06-24-05 (Hur/Studley): Moved, seconded, and passed (5-0) that Respondent Kate Patterson/San Francisco Arts Commission met the burden of establishing that the redacted records need not be publicly disclosed in an unredacted fashion.

Motion 13-06-24-06 (Hur/Renne): Moved, seconded, and passed (5-0) that Respondent Kate Patterson/San Francisco Arts Commission met their burden of establishing that there was no willful failure to comply with the Sunshine Ordinance.

V. Discussion possible action on a draft “Contributor Guide,” which provides information about local laws governing campaign contributions.

Executive Director St. Croix introduced the item.

Deputy Executive Director Ng made corrections to typographical errors.

Commissioner Andrews stated that the guide should identify that a corporation can be for-profit or a non-profit.

Commissioner Hur stated that legal citations should be included.

Public Comment:
None.

Motion 13-06-24-07 (Renne/ Hur): Moved, seconded, and passed (5-0) that the Ethics Commission approve the Contributor Guide to Local Laws Governing Campaign Contributions, as amended.

VI. Discussion and possible action on the minutes of the Commission’s special meeting of May 30, 2013.

Deputy Executive Director Ng made corrections to typographical errors.

Public Comment:
None.

Motion 13-06-24-07 (Studley/ Hur): Moved, seconded, and passed (5-0) that the Ethics Commission approve minutes for the Special Meeting of May 30, 201, as amended.

VII. Discussion of the Executive Director’s Report.

Executive Director St. Croix presented the monthly report.

Public Comment:
None.

VIII. Items for future meetings.

Chairperson Hayon stated that this meeting would be Commissioner Studley’s last, and she thanked Commissioner Studley for her service and dedication to the Commission.

Commissioner Studley thanked her fellow Commissioners, both past and present, and staff. She stated that she was very happy to have served on the Commission.

Public Comment:
None.

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

Public Comment:
None.

X. Adjournment.

Public Comment:
None.

The meeting adjourned at 9:35 PM.