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Minutes - July 22, 2013

Minutes of the Regular Meeting of
The San Francisco Ethics Commission
July 22, 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. Commissioners Hur and Studley were excused.

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

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

OTHERS PRESENT: Dr. Derek Kerr; Ray Hartz; Erika Boyd; and other unidentified members of the public.

MATERIALS DISTRIBUTED:
- Memorandum from the Executive Director re: Request for Waiver from Contracting Ban, dated June 25, 2013
- Request for waiver from Cass Smith, dated June 13, 2013
- Memorandum from the Executive Director re: Policy Proposals for Enforcement Settlements and Penalties, dated July 17, 2013
- Memorandum from the Executive Director re: Expenditure Lobbyists, dated July 16, 2013
- Draft Minutes of the Regular Meeting of the San Francisco Ethics Commission of June 24, 2013
- Executive Director’s Report for The San Francisco Ethics Commission Meeting of July 22, 2013

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

Dr. Derek Kerr stated that the Ethics Commission was in violation of the City Charter. He stated that the Commission is violating Article IV of the Campaign and Governmental Conduct Code by failing to report certain information since 2005. He also stated that the Director’s reports have deleted this information since 2011. He stated that retaliation should be listed as a type of conduct complained about in the Director’s Report.

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

YOU ARE VIOLATING THE CITY CHARTER.
SPECIFICALLY; ARTICLE IV OF THE CAMPAIGN & GOVERNMENTAL CONDUCT CODE.
IT’S ALSO KNOWN AS THE “WHISTLEBLOWER PROTECTION ORDINANCE”.
YOU ARE MANDATED TO ANNUALLY REPORT;
1) THE NUMBER OF COMPLAINTS RECEIVED
2) THE TYPES OF CONDUCT COMPLAINED ABOUT
3) THE NUMBER OF COMPLAINTS YOU REFER OUT
4) THE NUMBER OF INVESTIGATIONS CONDUCTED
THIS ASSURES THE PUBLIC THAT COMPLAINT INPUTS MATCH OUTPUTS.
YOU HAVEN’T DONE THIS SINCE 2005.
YOUR ANNUAL REPORTS ONLY NOTE THE NUMBER OF CASES “RESOLVED”.
THE DIRECTOR’S MONTHLY REPORTS DELETED THIS DATA SINCE 2011.
THE PUBLIC HAS NO IDEA HOW MANY COMPLAINTS COME IN, HOW MANY GO OUT, AND HOW MANY ARE BURIED IN BETWEEN.
SINCE YOU ARE SOLELY RESPONSIBLE FOR REVIEWING CLAIMS OF WHISTLEBLOWER RETALIATION,
RETALIATION SHOULD BE LISTED AS A “TYPE OF CONDUCT COMPLAINED ABOUT”.
BUT IT ISN’T.
YOU ARE VIOLATING ARTICLE IV.

Ray Hartz quoted the Good Government Guide. He stated that the Sunshine Ordinance Task Force had no conflict of interest in hearing the two previous cases against Luis Herrera, City Librarian. He stated that the Commission had a conflict when handling the same issue with Executive Director St. Croix. He stated that the Commission has violated his rights for more than two years and that the Commission is abrogating and censoring public comments and preventing them from coming into the minutes.

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

“A conflict of interest is a set of circumstances that creates a risk that professional judgment or actions regarding a primary interest will be unduly influenced by a secondary interest,” including the duties of public office. “It exists if the circumstances are reasonably believed (on the basis of past experience and objective evidence) to create a risk that decisions may be uinduly influenced by secondary interests.” So, when the SOTF found City Librarian Luis Herrera in violation of the Sunshine Ordinance, twice, they had no conflict. Now, when they referred those findings to Ethics for enforcement, I guess they didn’t think about the third case which was against your Executive Director, Mr. St. Croix. Finding Luis Herrera in violation would have been detrimental to the self-interests of this body. With three of the five members being attorneys, I have continued to wonder if you considered whether you could be impartial?

III. Discussion and possible action on request for waiver from Campaign and Governmental Conduct Code section 3.222.

Cass Smith stated that he is one of two architects on the Arts Commission. He stated that he is also the Chair of the Civic Design Review committee. He stated that he has a 15-person firm and has been practicing as an architect for about 25 years. He stated that he is the 75% owner of the firm and, should the waiver be granted, would recuse himself from voting on any matters before the Commission if it involved his firm. He stated that he thought that his firm would be able to do a great job on certain projects, so he requested the waiver so that his firm would be on a list of people who could be solicited for projects.

Commissioner Smith stated that he would continue serving on the Arts Commission if the Ethics Commission denied the waiver. Commissioner Andrews asked why Commissioner Smith was requesting the waiver now, after having served on the Commission for several years. Commissioner Smith stated that he was unaware of the CDR committee when he was first appointed. He stated that, over a few years, he reviewed projects and thought that his firm could do something. He also stated that he had a lot of work and that he would not trade his position as Commissioner for a few more projects. Chairperson Hayon stated that he may already have a competitive advantage as an architect sitting on the CDR committee. Commissioners Hayon and Andrews thanked Commissioner Smith for his service.

Public Comment:
Ray Hartz stated that Commissioner Smith took an oath of office to uphold the Constitution and has taken the Sunshine Ordinance training at least three times. He stated that Commissioner Smith, during an Arts Commission meeting, made comments to a member of the public that were abusive. Mr. Hartz repeated some of the comments. Mr. Hartz stated that the comments were a clear threat and that Commissioner Smith was not going to let the member of the public from participating in public comment in the future. He stated that the Commission should not trust Commissioner Smith to be a good-willed person and asked the Commission to review the testimony. He also stated that Commissioner Smith never apologized and should not be on the Arts Commission.

The Commissioners discussed the matter and agreed to deny the waiver. Vice-Chairperson Renne and Chairperson Hayon stated that the comments Mr. Hartz mentioned are not germane to the question before the Commission.

Motion 13-7-22-1 (Renne/Andrews) Moved, seconded, and passed (3-0; Hur and Studley excused) that the Commission deny the request for waiver from Campaign and Governmental Conduct Code section 3.222.

Public Comment:
None.

Commissioner Smith thanked the Commission for its time.

IV. Discussion and possible action on policies related to the handling of violations of certain provisions of the Campaign Finance Reform Ordinance, San Francisco Campaign and Governmental Conduct Code section 1.100 et seq.

Executive Director St. Croix introduced the item. He stated that staff has been assessing forfeitures, but that staff would also impose a penalty as well for certain provisions of CFRO.

Public Comment:
Erika Boyd, from the Sutton Law Firm, stated that the Commission had discussed this in 2008. She stated that the Commission has not held any interested persons meetings or sought feedback from certain groups. She suggested that the Commission hold a few IP meetings and seek feedback on this issue. She also stated that the 5-day deadline is very short and stated that the FPPC allows 14 days to respond. She stated that there could be a due process issue with the automatic forfeiture to the City and suggested that the money should go back to the contributor. She stated that the Commission should look at the totality of the circumstances regarding any mitigating/aggravating factors.

Mr. St. Croix stated that he agreed to change the deadline to respond to 14 days, but that he was not convinced the Commission should delay this matter. Commissioner Renne stated that the forfeiture provision is statutory. Chairperson Hayon stated that the proposed policies were a bureaucratic process. The Commissioners preferred staff’s second proposal regarding mitigating and aggravating factors.

Deputy Director Mabel Ng stated that there are two amendments to the documents: 1) Line 2 of Part 1 on page 3 – change “any part of section 1.114” to “section 1.114(a), 1.114(b), or 1.114(e)…” and 2) Line 2 of Part 1 on page 4 – change “any part of section 1.114” to “section 1.114(a)(1) or section 1.114(a)(2)…”

Motion 13-7-22-2 (Andrews/Renne) Moved, seconded, and passed (3-0, Hur and Studley excused) to accept the changes in the enforcement and settlement penalties with the change of five business days to 14 days and that the Commission accept the second scenario by which the staff would present factors.

Public Comment:
None.

Commissioner Renne asked if an individual who makes a contribution in excess of the limit will also have to pay a penalty. Mr. St. Croix stated that that individual would also pay a penalty.

V. Discussion and possible action whether to recommend amendments or regulations to the Lobbyist Ordinance so that additional information regarding expenses made to influence local or administrative action is required to be disclosed.

Executive Director St. Croix introduced the item. He stated that there was interest in discussing expenditure lobbyists and that staff reviewed activity. He stated that there were a total of eight instances of expenditure lobbying occurring in the past three years.

Commissioner Renne expressed disappointment that Larry Bush was not present, as he expected his participation. He stated that his inquiry began from Mr. Bush’s article, as Mr. Bush made it sound like there were vast amounts of money going into the political process and by taking out expenditure lobbyists, the public would not have the full picture. Commissioner Renne questioned whether it is something that needs to be addressed at this time.

Public Comment:
None.

The Commissioners discussed the proposal from staff.

Commissioner Renne requested that the minutes reflect that the Commission discussed the subject and that there was no public comment and therefore, absent that, there does not appear to be a need under the present reporting requirements. He suggested that if someone would like to raise the issue in the future, the Commission would look at it then. He stated that he did not see a need for staff to deal with a problem that the public apparently is not concerned with.

Chairperson Hayon directed staff to draft legislation.

VI. Discussion and possible action on the minutes of the Commission’s regular meeting of June 24, 2013.

Motion 13-7-22-3 (Andrews/Renne) Moved, seconded, and passed (3-0; Hur and Studley excused) to approve the minutes of the Commission’s regular meeting of June 24, 2013.

Public Comment:
None.

VII. Discussion of Executive Director’s Report.

The Executive Director introduced the report and noted several highlights.

Public Comment:
None.

VIII. Discussion on items for future meetings.

Public Comment:
None.

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

None.

X. Adjournment.

Motion 13-7-22-4 (Renne/Andrews) Moved, seconded, and passed (3-0; Hur and Studley excused) that the Commission adjourn.

The meeting adjourned at 6:42 p.m.