Ladies and gentlemen to the delayed regular meeting for november 28th, 2016 of the San FranciscoEthics Commission. I will first call the roll. Vicechair keane. Here. Commissioner chiu. Here. Commissioner hayon has been excused due to illness. And we are expecting commissioner kopp to arrive shortly. And before calling for Public Comment, i want for the record to acknowledge that all commissioners received a cookie, which i understand is from the friends of ethics celebrating the passage of proposition t and ill have to check with the City Attorney as to whether or not that gift of a cookie has to be reported on our form 700 . It doesnt . All right, good. Thank you. Calling item no. 2 on the agenda. Public comment on matters appearing or not appearing on the agenda. Let me just say, thank you to the friends of ethics for their support of proposition t, and thank you for the cookie. Its very nice. I dont know about the 100 bill that is inside mine though [laughter ]. I didnt get 100. Good evening. [ inaudible ] okay. Good evening, david pelpal, interesting to hear about the cookie, was it a sugar cookie . A couple of quick things, i. 4 which was withdrawn from the agenda im just wondering if the item was just continued for a future meeting . Director pelham, can you explain. Yes, to clarify the request for the waiver was withdrawn along with the item. Got it. And the staff report used an old templet and it was a sarif font the other general item i wanted to call to your attention, some of the charts on item 5 and the executive directors report have different it appears to be they in different colors or different some things. If there is a way to convey that information better, if not in color, that would be helpful. Because i was trying to figure it out. The particulars werent that important to me, but may be important to others, but otherwise the information was great. Thank you, any other Public Comment . Hello larry bush on behalf of friends of ethics. General comment that you may touch in later reports in looking over the Campaign Finance reports for the last november election, there are a flush of independent expenditure committees that appear to be cycling money back and forth between earth and found San Franciscos for friends that work and friends of the protect San Francisco, san franciscans against wasteful spending progress San Francisco and several other better known longlasting groups like spur and sf forward, where they would have some of the same consultants. In some cases they also had the same principal officer, and they often had the same donor and sometimes money would go from one committee to another committee to a third committee. So the whole issue of tracking the money gets very convoluted. I was tempted to get butcher paper and a magic marker to follow it, but i thought i would ask if you all would please do that as a public service. Thank you. Thank you. I won a case at the state court of appeal. I didnt have a lawyer. It was just me and i had no one to even look over the paperwork. And this had to do with a woman i didnt know. There was no basis for the filing. There was no evidence. I was not properly served and my dueprocess rights were violated and they charged after the wrong statute and this womans name is Barbara Sklar, a commissioner with the Arts Commission. There is very little paperwork on her. She claims to have served under five mayors, but there is no record of that anywhere. For me it was very distressing to have these malicious charges put on me. I would say it took a year of mine time. I spent a lot of time in the law library myself and did everything on my own, but im sure it cost the city a lot of money. And there was no investigation at all. And i think that it was a waste of time. It was a malicious filing and it was meant to keep me out of 401 van ness avenue and for an artist prevented from a building that is primarily for the arts, that was a very i still cant make sense out of it. And i was hoping that by coming here, talking about it, it would make it less surreal for me. It was awful. I wouldnt wish it on anyone. Thank you. Any other Public Comment . Ill turn to agenda item 3. Discussion and possible action on draft minutes for the commissions october 17th, 2016 special meeting. Any commissioners have any additions, corrections . Move approval. Second. Any Public Comment . On the draft minutes of the october 17th special meeting . Ill call the question, all those in favor . Aye. Opposed . Hearing none, the motion minutes are adopted 30. And the record will reflect that commissioner kopp has just arrived fortunately as we move into the more substantive part of our agenda. As the record reflects item no. 4 was withdrawn. No. 5, discussion of Enforcement Program good evening. Good evening, mr. Chairman, excuse me for my lateness. Discussion of enforcement report and highlighted various programmatic issues and activities of the commissions enforcement division, and i would ask ms. Blome, if you would give us a little introduction, and discussion concerning all right no. 5. Thank you, chair, i will turn it over to Deputy Director, director of enforcement and Legal Affairs jessica blome. Good evening, commissioners. In the enforcement report this month i included a small synopsis of the fairly complicated sunshine ordinance regulations for handling matter s under the sunshine ordinance this commission passed several years ago. There are several items on the agenda tonight that deal with the sunshine ordinance and i wanted to give you some context before launching into those matters. Just briefly to summarize what i have written, the first tract is chapter 2 referral. Those matters are matters that the Sunshine Ordinance Task force has already considered and they are already looked at the factual matter, considered the matter at a hearing, usually before committee and again before the full task force and issued some sort of order and determination for what they think mazhappened. Has happened and an example of that was the task force considered the evidence and considered that matter over for referral. None of the matters on the agenda are task force referrals, but i thought i would include it so you can see the difference between the two. The chapter 3 referrals are matters that the commission ostensibly has authority to hear as an original matter. So you have the original jurisdiction to hear the matters and the first type of chapter 3 matters are where the complaint is alleging willful violation by the [saourb ] ordinance by Department Head and the second is where the task force has issues an order and sometime has gone by and neither the City Attorney or District Attorney has enforced that order despite being asked to do so. At that point you could take up the matter as a matter of original jurisdiction. And then the third is when staff initiates a complaint for violation of the sunshine ordinance on its own motion basically. On its own initiation. The first two subjects under that tract are clearly articulated in the sunshine ordinance itself and the third staffinitiated is one of the things that well look at when we look at sunshine ordinance regulations. In the it involves a matter where there is an allegation that an elected official or Department Head has committed a woeful violation of sunshine ordinance we dont find that staff has the authority to launch an investigation into any kind of violation of the sunshine ordinance. Those matters should really go before the Sunshine Ordinance Task force first. Nevertheless those are the types of matters that we have tonight. And staff over the last several months has initiated its own investigations into various complaints. And were presenting recommendations and reports to you on those as separate agenda items later. As you know, the available relief for anybody who has a sunshine ordinance complaint before the task force is the same whether under chapter 2 or 3. Im sorry, did somebody Say Something . [ inaudible ]. I cant hear, you can order the respondent to cease and desist violation or produce the records and you ask the executive director to post a finding of violation of sunshine ordinance or ask the executive director to show warning letter to the respondent and authority of the violation. That is really the extent of our authority with violation of the sunshine ordinance. Any questions on that portion of the report . Do commissioners have any questions . Im reading your memorandum. I had a number of questions in the second paragraph under chapter 2 referrals. You say upon receipt of these referrals, staff reviews the sotfs findings, evidence and order. Staff may then prepare a memorandum for the commissions consideration. If we believe further analysis would prove beneficial what does the staff do if it doesnt think it needs further analysis . Its just a passthrough referral. Think most of the referrals you have received from the task force have been passthrough referrals where you only receive the task forces order and the partys responses to the order and staff stays out of it. Okay. I think that was the original contemplatation of chapter 2, but in the steve matter the facts were so confusing that staff thought it should weighin to sort of help the public and the commission along thanks. The remainder of the report is our general update we give every month. Youll note that our official complaint total is up to 30 now. We initiated a number of complaints during the election season. There will likely be more to come as a result of complaints filed with us over the election season. They are under preliminary review now, so youll also note that the numbers of matters in preliminary review has gone up. I dont have the chart 87 matters are now in preliminary review. Thank you. At the end the matters with sorry the matters under preliminary review and the bureau of delinquent review matters which they are diligently complecting collecting for us and we commend them for their great job. Commissioner chiu . Jessica, in terms of preliminary review, is it only the executive director who has the authority to make a determination whether or not a potential violation has occurred . Yes. The executive director has to determine whether we have reason to believe a violation has occurred. Okay. So after we go through the complaint, we just make an assessment of whether or not its within our jurisdiction or whether it merits further investigation . If it merits further investigation we send to the City Attorney and District Attorney and once it is its locked as a formal complaint. So there would be no possibility of delegating that review or sharing some of the workload . . As a practical matter, the staff, all of the investigations in Enforcement Programs assist in that review and we present the executive director with a memorandum and recommendation. Mr. Chairman. Commissioner kopp. Im looking at page 4. The report active bureau of delinquentent revenue referrals, which five were identified and two against the same well, the same case, i guess. Jackson, chris jackson, same case. Different cases. He ran for election twice. Different cases, all right. One of them, and one only a yearago was reduced to judgment. Do you get a report from the Tax Collector on what he is doing about collecting the judgment . We dont get regular updates, but when we inquire, they send us updates. Our most recent update on this particular judgment was just within the last four weeks, and they have attempted to collect, but mr. Jackson doesnt have any assets in the city. How have they tried to collect . They did not go into details about how. Ask if they conducted an order of examination . Okay. And ask them also, through the chair, with such request, what have they done on which committee to elect norman for supervisor . That is a referral going on a yearandahalf. Same thing with bob squeri for district 7 and same thing with isabelle and the second case of course is september 26th of this year. Id like to know what they are actually doing. Sure. And then the second part of the question, same subjectmatter as my first meeting, we acted to penalize Lynette Sweet and that is not on here. Is that because it hasnt been referred for collection . No. She has its not the order isnt final for 30 days and she has some period of time after that to pay. I couldnt tell you how much. All right. But to at if i recall the total is 90 days postorder. Give me that information, informally or otherwise. Sure. The other type of question i have is on page 3, you summarize the type of complaints. But then on page i guess its attachment 1, so its got 1 under it. There are different words used to describe age of matters in preliminary review as of november 15. For example, i dont get it well,. I see what you mean. Well, most of them do, i guess. I dont know. Youve got maybe i guess they ared same or different word. For the purposes of table 1 of the report, governmental ethics being things like having political activity on City Property or Something Like that. A conflict of interest would be a direct and financial interest in some activity that was happening. But for the purposes of the table, they have never been broken out that way and we didnt want to make the data we wanted to make the data look like what you normally seen and ethics include conflict of interest and governmental ethics activity. I have never seen it. Thanks. Any other commissioner comments . Ill call for Public Comment on agenda item no. 5. Unfortunately the closed captioning isnt working. I have a hearing issue, but when discussing what i thought were the findings of the Sunshine Ordinance Task force reviewing them and making sure they are supported by what was presented to them, and the committees there, by the task force. In any case, i understood that if you get a case that is referred from the task force, you have to hear it in a showcause hearing. And a showcause hearing, as i understand it, the respondent has the burden of establishing that whatever the complaint was it doesnt there is no merit to it. What i heard was that the staff here is going to evaluate the task force findings, which include at least two or three meetings of the full task force, and at least two meetings of a committee of the task force. And since the showcause hearing is based on what the task force produces, i dont think its appropriate for your staff to secondguess the task force, if that is what is happening. Thank you. Any other Public Comment . On agenda item 5 . David pilpel. I was very interested in this item and i appreciate the summary that jessica provided. I do recall there was a difference between the chapter 2 referral and chapter 3 referral or matter, and it did have to do with whether the burden was shifted. So im sure staff can talk about that and the last version of the regs were adopted in 2013 as indicated. I believe there wass a followup hearing in the fall of 2013 and there was discussion about the handling of referrals from the task force and if i recall correctly there was a memo from then Deputy Director remind me of the former Deputy Director menardi to i think to the task force that memorialized the discussion that the commission had had in that meeting. As i say i think it was in the fall of 2013 and this memo was late 2013, 2014 and im sure you can find that and i think it would have clarified some of the understandings, but it did not go back and change the regs. There was a determination at that time and i dont know if you found that in going through stuff. Yes. So i did remember it correctly . Yes. So one of the things that i was concerned about, the regs sort of contemplate and the memo contemplates and tonights agenda includes a number of sunshine ordinance complaints filed directly with the commission. There have been a couple of instances of that happening over time. I have never been a fan of that. I am of the belief that the sunshine ordinance really provides for complaints about violations of the ordinance to be routed to the task force, and that is the place to hear complaints. Whether they handle them properly or not . If there is a referral from the task force, it comes before the commission, but this idea of having two venues that complainants can go to either the task force or commissioner or both potentially under the same underlying facts is troubling. I dont think that was the intent. I dont know if you ever asked the City Attorney for an opinion on the ordinance . Its a little vague, admittedly on this 40 days, if no enforcement if no enforcement action is taken. But i do think that relates to enforcement of an order by the task force. And that is something that is kind of glossed over here. So this whole question of original jurisdiction, i think, is important. The amount of detail that is here about complaints, preliminary and formal, is very helpful. As i have said before, we can talk about bdr another time and i think the questions from commissioner kopp were righton commissioner kopp has a question you may want to ask. Well, im ask the City Attorney what is that the Sunshine Ordinance Task force has the legal power to do that the Ethics Commission doesnt . The task force the task force basically issues orders of determination, which are then referred to ethics, but in terms of what the task force can itself impose . The answer is simply referring to the Ethics Commission. No, that is not my question. What subjectmatter . Oh, the subjectmatter .