San Francisco County Grand Jury • 2013-2014

Ethics in the City: Promise, Practice or Pretense

Published: June 23, 2014 85 pages
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Note: Missing finding numbers detected: F6, F17, F21, F24, F25, F28

Findings and Recommendations 22 findings

F2
In some instances, improper campaign contributions were returned to the contributor rather than forfeited to the City as required by City law. The Jury found no record of the Commission acting to waive or reduce the forfeiture. 24 http://www.sfethics.org/ethics/2013/07/ethics-commission-policies-re-fixed-penalties-for-violations-of-certain- cfro-sections.html 12
Related Recommendations (1)
R2
The Board of Supervisors should request an independent audit by the City Attorney to determine whether prohibited contributions were forfeited to the City as required by law. Citizen’s Right Of Action San Francisco law recognizes a Citizen’s Right of Action to require that the law be enforced in over a dozen different circumstances, ranging from environmental protections to housing code violations. Proposition J in 2000 could be enforced by citizen suit but was repealed three years later as part of voter approved "ethics reform."25 At the state level, the Political Reform Act provides a Private Right of Action both for injunctions and for civil penalties. Injunctions can be sought directly and actions for civil penalties can be brought after government lawyers have declined the case.26 The Public Records Act allows any person to bring action for release of records.27 The Sunshine Ordinance allows any person to bring a civil action to enforce it, especially for release of records.28 Residents can bring a civil action on behalf of the people of San Francisco to enjoin violations of or compel compliance with a conflict of interest or governmental ethics law, provided the City Attorney has declined to bring an action.
F3
A broader Citizen’s Right of Action to enforce ethics laws will provide assurance to the public that the laws will be enforced.
Related Recommendations (1)
R3
The Jury recommends that the Ethics Commission and the Board of Supervisors act to enhance the Citizen’s Right of Action to enforce all of the City’s ethics laws, with an award of attorney fees and a share of any penalties going to the City for a successful filer, as was provided by Proposition J. Whistleblower Program The Jury finds that an important aspect of accountability and anti-corruption standards is a strong whistleblower program with protections against retaliation. The Jury finds that San Francisco currently lacks such a strong program, including protection against retaliation and public disclosure of actions taken based on whistleblower information. The current protections fail to cover contractors working on City-funded projects. The Jury recommends that the whistleblower program, its current provisions and its implementation be an issue for a future Civil Grand Jury.29 25 See discussion as part of the Proposition J review on p. 30 supra. See §91003 regarding injunctions. §§91004-91007 on civil actions, which cannot be brought for as much as 120 days while government lawyers consider whether or not to take the case. 90% of any monies recovered would go to the state; 10% to the citizen, plus attorney fees. Government Code §6258 28 §§67.21(f), 67.35(a) and 67.35(d) of the Sunshine Ordinance 29 We note this has been previously examined by Civil Grand Juries, most recently in 2010-2011 with their report: "Whistling In The Dark: The San Francisco Whistleblower Program" 13 Recommended Systemic and Structural Changes Transparency This Jury looks to the Ethics Commission as the entity who carries the primary responsibility for ensuring the public has thorough access to information. As noted previously, the Ethics Commission has primary responsibility to receive and publish the mandated public disclosures by campaigns, public entities, and public officials under the C&GCC. It also has enforcement responsibility under the Sunshine Ordinance. Ethics Commission Staff deserves credit for moving the vast majority of the campaign forms from paper to paperless which allows the information to be published quickly on the Commission website. This applies to candidate filings as well as to many ballot measure and independent committee filings. The Jury recommends improving public access to open records on the Ethics Commission’s Web site.
F4
Some information currently reported and posted is not put into the standard searchable electronic format. The Jury specifically finds that contract approval forms, Form 700 forms, behested payments forms, and Lobbyists On Behalf Of The City forms can be converted to a searchable format before they are posted.
Related Recommendations (1)
R4
That contract approval forms be converted to a format which allows searches by the name of the official, by the name of the contractor, the value of contracts and the date the contract was signed. Behested payments information should be filed electronically in a format that allows for searches and data aggregation. Form 700s should be formatted to allow data to be searched on income sources, outside employment, gift sources and travel.
F5
Required filings are treated independently and cannot easily be cross searched electronically using common data reference fields like name and organization to access and aggregate information types, such as dollar amounts, that cross between filings.30
Related Recommendations (1)
R5
The Ethics Commission work to develop a common format database for data posted to DataSF, initially aiming to combine campaign, lobbying and Form 700 data. Voters seeking to follow these money trails will have little help from the current system of electronic filing. Under the current system, each report is filed under the name of one committee and each committee report is then filed separately by the date of the filing. There is no system that ties all the reports into a single database that can be easily searched or that can easily provide a total of all contributions to a single individual. It is possible to enter the name of a donor or vendor, but the system then lists each document involving that individual or entity separately. Campaign Related Disclosures With respect to elected officials, there is a broad range of disclosures required for campaign contributions (state and local law), campaign spending (state and local law) and, a variety of campaign related actions, as well as limitations and bans on certain contributions; no contributions over $500 (local law); no contributions from City contractors (local law). These disclosures, rules and restrictions primarily apply to committees formed by a candidate for their own election for local office (not state party offices, etc.). In 2011 and 2012, committees emerged that upend existing practices.
F7
The Ethics Commission provides written information only in English although San Francisco has strong political participation from communities and officials whose first language is not English and who require guides and educational materials relevant to their needs.
Related Recommendations (1)
R7
The Ethics Commission should make guides and educational materials available in the major languages as is done in other City Departments. Lobbyist registrations and disclosures In 2013, registered lobbyists reported to the Ethics Commission that their clients paid them over $5.8 million.34 City law does not prohibit contributions from lobbyists to the officials they lobby, unlike state law. In 2013, about $135,000 was contributed to candidates from registered lobbyists.35 The lobbyist law itself excludes from “contacts” 17 categories that do not have to be publicly disclosed.36 This limits the number of people required to register as lobbyists, rightfully excluding many people with limited contacts, but also excluding some people actively involved in influencing decision-making and reducing both the number of contacts reported and the amounts of money spent influencing decision-making. In 2010, the Board accepted amendments drafted by the Ethics Commission that had the effect of eliminating some lobbyists from disclosing their spending and contacts—so-called “expenditure lobbyists.” Among those who are no longer required to make disclosures is the San Francisco Chamber of Commerce.
F8
The current definition of “lobbyist” and “contacts” does not provide the public with sufficient information to understand how City Hall decisions are influenced despite the intent of the law. See https://netfile.com/Sunlight/sf/Lobbyist/PaymentsPromisedSearch 35 see: https://netfile.com/Sunlight/sf/Lobbyist/PoliticalContributionsSearch 36 The exclusions are listed at § 2.105(d)(1) of the Campaign and Governmental Conduct Code and include providing information at the request of an elected official, communicating regarding an existing contract including questions on performance, or negotiating the terms of the contract after being selected to enter into the contract. 16
Related Recommendations (1)
R8
The lobbyist ordinance should be reviewed and amended to provide clearer public disclosure of contacts with City officials regarding the interests of clients, and who should be required to register and make disclosures.
F9
The effort to influence City Hall decisions is not limited to contacts with City officials but also includes outreach to community, political and nonprofit organizations as well as to the general public through television ads, mailers, robocalls, polling, and other strategies. In 2010 the Ethics Commission proposal was approved by the Board to eliminate reporting on these expenditures
Related Recommendations (1)
R9
The requirement for disclosure of all expenditures aimed at influencing City Hall decisions should be reinstated in the law with full public disclosure.
F10
People holding themselves out as "strategic advisors" provide advice on ways to influence City decision-making.
Related Recommendations (1)
R10
Work of "strategic advisors" that provide guidance on winning approvals from City officials and/or the public should be reviewed by the Ethics Commission for possible inclusion in the lobbyist registration and/or campaign consultant law. Public Entity Disclosures Open public meetings When considering the number of public meetings held by San Francisco Boards, Commissions and other public bodies each year, the numbers of complaints are few. This Jury finds that meeting public meeting requirements have become routine and have become part of the San Francisco government culture. Release of public records When considering the number of public records requests received and fulfilled each year, the number of complaints are few. This Jury finds that releasing public records has become routine and has become part of the San Francisco government culture. The recent move to providing electronic copies of documents to requestors is positive, yielding efficiencies to both the requestor and to the disclosing agency. Technological change has reshaped the world of public meetings and public records. Public meetings are frequently televised and are available for streaming on-line. The members of public bodies are often communicating during the meetings on their computers and telephones. The papers, discussions and public meetings that once documented a decision's "paper trail" now include e-mail, text messages, phone calls and electronic file transfers. Drafts of legislation will often zip around the Internet to be edited by lobbyists and other interests without transparency. Although the Sunshine Ordinance calls for it, the Jury learned that the City has no policy on retaining or disclosing text messages or emails and has no plan to address the increasing intermixture of business and personal communications through multiple e-mail accounts and multiple telephones. 17
F11
The role of e-mail and text messages in governmental decision-making has not been fully discussed and explored. Rules on preservation of e-mails in public records are very hazy and some departmental officials told the Jury they routinely delete e-mail. Guidance from the City Attorney on preservation of e-mail is non-specific.37 There is no guidance regarding text messages. There is no policy that applies to private e-mails and text messages that further public decision-making.
Related Recommendations (1)
R11
The Ethics Commission in conjunction with the City Attorney should develop a policy to ensure preservation of e-mails and text messages consistent with preservation of other public records. The policy, along with policies on preservation of public records, should be made available for public comment. Once it is completed and published it should be made available on City Attorney and Ethics Commission web pages that lists each Department, its policy, and how to obtain documents. Sources of Outside Funding (Sunshine Ordinance) Many San Francisco’s departmental operations benefit from special grants or gifts. It might be a behest contribution requested by a City officeholder, or it might come from an organization formed to support the department's work. Departments are required to post on their websites the names of anyone who donates $100 or more to assist their operations, along with a statement of any financial interest involving the City the donor might have. If the donation comes from an organization, its members must be disclosed. 38
F12
Many departments have failed to post their sources of outside funding, as required by the Sunshine Ordinance.
Related Recommendations (1)
R12
The Jury recommends that the Ethics Commission and the Sunshine Ordinance Task Force review departmental web sites for compliance and notify non-compliant departments to immediately post their sources of outside funding, or face a show-cause before the Ethics Commission on why the information has not been posted. Statements of Incompatible Activities Only Department heads can discipline a Department level official for violating ethical standards, and under current practice, the public is not informed of any sanctions for unethical conduct. Other penalties, such as fines, can be imposed by other enforcement agencies and are made public. Good Government Guide: An Overview of the Laws Governing the Conduct of Public Officials 2010-2011 Edition (downloaded from: http://www.sfcityattorney.org/Modules/ShowDocument.aspx?documentid=686) On one hand, it says e-mails are public records, under the public records act (see pp.80); on the other hand, it narrowly defines records that must be retained —- "For example, as a general rule, employees may immediately dispose of phone message slips, notes of meetings, research notes prepared for the personal use of the employee creating them, and the large majority of e mail communications." p. But the Sunshine Ordinance specifically requires the Mayor and Department Heads to maintain and preserve e-mails in a professional and businesslike manner. §67.29- ‐ 7(a) Also note: The City Attorney has not updated the Good Government Guide, a primer used by city departments and officials, since 2011. The Guide therefore does not contain guidance on current requirements. See § 67.29-6. Sources Of Outside Funding. (Sunshine Ordinance) 18
F13
When violations of the standards in a departmental Statements of Incompatible Activities are enforced departmentally as a disciplinary matter, the Ethics Commission is not notified and the discipline is not disclosed to the public.
Related Recommendations (1)
R13
All violations of departmental Statements of Incompatible Activities should be disclosed to the Ethics Commission and posted on the Commission’s web site.39 Public Official Disclosures Form 700 - Statements of Economic Interests Annual filing of Form 700 is required by state and local law. This year marks the first year of electronic filing. Filings also are required after entering office, either appointed or elected, and upon leaving office. This year, staff started reminding late filers of missed deadlines by mail and by phone, increasing compliance markedly. The state Fair Political Practices Commission ultimately imposes much more substantial penalties on non-filers than are available for the Ethics Commission direct enforcement, so much of the enforcement is handled at the state level.
F14
The Ethics Commission has increased compliance by notifying any employee who fails to file Form 700 within 30 days after the deadline that he or she must file or face potential penalties.
Related Recommendations (4)
R14a
The Ethics Commission should continue to routinely notify all non-filers of their obligation of the state filing deadline.
R14b
The Ethics Commission should recommend dismissal for any officer or employee who fails to file 90 days after the deadline.
R14c
The Ethics Commission should recommend dismissal for any officer or employee who files a Statement of Economic Interest (Form 700) that is inaccurate and relevant to the position they hold.
R14d
Now that all Form 700 filers file electronically, the Ethics Commission should require that all Form 700s be filed with them as well as with the Department filing officer.
F15
The disclosures in Form 700 filings also may reveal violations of San Francisco laws that are enforced locally. This includes compensated advocacy before other commissions and arrangements that violate the locally adopted and enacted Statements of Incompatible Activities for each department.
Related Recommendations (1)
R15
The Ethics Commission should audit and act on violations disclosed through Form 700 filings of local prohibitions such as compensated advocacy 39 The Sunshine Ordinance specifically authorizes making public disclosure of employee misconduct – see Sec. 67.24(c)(7). 19 and incompatible activities, and enforce these violations with strong action. Gift of Travel disclosures
F16
City officials travel expenses can be covered by gifts made by individuals, lobbyists, business associations, corporations or any other source, including those with financial interests in matters to be decided by the official. The public disclosure is limited to a list of donors or donor organizations contributing $500 or more, but without specifying the total amount of the gift. Additionally, a significant amount of travel expenses are paid through organizations that do not disclose the names of the original donors.
Related Recommendations (1)
R16
The Ethics Commission should require full disclosure of contributions or payments for official travel of City officials, including the actual amount contributed and the names of the original donors. The official should also disclose what official business was conducted, including meetings, who participated in the meetings, topics, speeches given, ceremonies attended and other information. Public calendars of public officials (Sunshine Ordinance) The Jury surveyed calendars from the Mayor, the District Attorney, the City Attorney, key department heads and other elected officials for a month during our service. While the Sunshine Ordinance does not require Supervisors to keep a calendar, nearly all of them provided copies.
F18
The Board of Supervisors is not subject to this calendar requirement. Many members did provide their calendars upon request, and the information in their calendars will be helpful for public understanding of their work.
Related Recommendations (1)
R18
The Board of Supervisors should adopt a rule subjecting themselves to the public calendar requirement of the Sunshine Ordinance. Waivers of post-public employment restrictions by the Ethics Commission In reviewing meeting minutes where post-public employment restriction waivers have been approved, the Jury did not find specific determinations of how the applicant's waiver would meet the conditions of the ordinance.
F19
The public record will be better served if post-public employment restriction waivers are granted by Commission resolutions that indicate the specific grounds for granting the waiver. In at least one instance, the Ethics Commission inappropriately interpreted the "extreme hardship" standard to grant a post-public employment restriction waiver.
Related Recommendations (1)
R19
The Commission should grant or deny post-public employment restriction waiver applications by resolutions that indicate specifically how the decision meets the conditions of the ordinance. Sunshine Ordinance Task Force and the Ethics Commission The Ethics Commission and the Sunshine Ordinance Task Force have had a complicated relationship over the years rooted in the enforcement (and enforceability) of the Sunshine Ordinance. Decisions of the task force are not enforced by the Ethics Commission without further investigation. The ultimate finding the Sunshine Ordinance Task Force can make is to find someone has committed "official misconduct.”40 This is an end point in their process since they lack authority to enforce their findings. "Official misconduct" is defined in Charter provisions dealing with the Ethics Commission and its role in the removal of certain elected officials from office.41 Because of these consequences for the accused, due process protections should be observed.
F20
Both the Ethics Commission and the Sunshine Ordinance Task Force act in good faith. They are authorized to come to similar ends—transparency in government. However, there are legal and procedural differences between their process and their legal requirements. Therefore, the results of their work are not in harmony with each other. 40 67.34. WILLFUL FAILURE SHALL BE OFFICIAL MISCONDUCT. The willful failure of any elected official, department head, or other managerial city employee to discharge any duties imposed by the Sunshine Ordinance, the Brown Act or the Public Records Act shall be deemed official misconduct . Complaints involving allegations of willful violations of this ordinance, the Brown Act or the Public Records Act by elected officials or department heads of the City and County of San Francisco shall be handled by the Ethics Commission. 41 §(e) OFFICIAL MISCONDUCT. Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith and right action impliedly required of all public officers and including any violation of a specific conflict of interest or governmental ethics law. When any City law provides that a violation of the law constitutes or is deemed official misconduct, the conduct is covered by this definition and may subject the person to discipline and/or removal from office. 21
Related Recommendations (2)
R20a
The Mayor's Office should establish a blue-ribbon committee of experts and stakeholders in open government, sunshine, and transparency, including former Sunshine Task Force members. The Committee of Experts should review and update the Sunshine Ordinance as necessary and should report to both entities and the Board of Supervisors recommendations that would result in coordination and respect for the functions of each entity.
R20b
For now, arrangements should be made jointly by the Ethics Commission and the Sunshine Ordinance Task Force to have complaints heard by an independent hearing officer who would develop a consistent legally sufficient record of the case for the decision of each body. This would allow the meetings of the Task Force and the Commission to focus on broader policy issues. Ethics Commission Structure and Relation to Staff An appointed Commission has general policy-making powers.42 A department head has responsibility for administering the department.43 The Ethics Commission itself is established by §15.100 of the Charter which details the appointment process and establishes their ability to call witnesses. Charter §15.101 authorizes them to hire an Executive Director who “shall be the chief executive of the department and shall have all the powers provided for department heads.” Article XV of the Charter goes on to delineate the rulemaking power of the Commission and to define its role in the process removing public officers from their positions. Other duties of the "Ethics Commission" are enumerated in
F22
While the Commission's Bylaws authorize committees, no committees have been established or meet. One result is that all matters requiring deliberation by the Commission are heard only once a month, in a process that can extend for many months and sometimes for years. If the Commission acts through its committee structure, issues can be explored and brought to the full Commission in a more developed state, thus providing a better basis for the Commission’s actions.
Related Recommendations (1)
R22
The Commissioners should use their committee structure to focus 45 Specifically authorized by § 4.102(9) of the Charter. 23 on Ethics Commission issues. In the weeks between monthly meetings, each commissioner could take the lead on issues of concern to the Ethics Commission, such as developing policies on emerging campaign finance issues, transparency matters, complaint processing and training. This structure would allow for more interaction with the public and the regulated community. The Charter specifies the City Attorney shall be the legal advisor of the Ethics Commission.46 At times, the City Attorney has stepped aside from certain matters due to potential conflicts of interest. Routinely, the City Attorney advises the Commission on matters where other departments, also represented by the City Attorney, hold differing positions. This creates an appearance of impropriety. Given the twenty year history of the City Attorney working with the Ethics Commission, it is appropriate for both parties to take a long dispassionate look at how these arrangement works and consider the possibility of having the Ethics Commission engage outside counsel. The Charter provides a case-by-case process for a department to seek outside counsel.47 Perhaps this process can be adapted to fit this situation if the City Attorney and the Ethics Commission reach an agreement on representation.
F23
While the Charter mandates the City Attorney represent the Ethics Commission, conflicts have arisen repeatedly and the Ethics Commission has had to obtain outside counsel. We find these instances of conflict are likely to continue and that the Commission is best represented by a consistent set of lawyers who are not City employees.
Related Recommendations (1)
R23
That the Ethics Commission apply to the City Attorney for permission to engage outside counsel for advice and recommendations. Commission Performance And Staffing The Jury is making recommendations that fundamentally reshape what the Ethics Commission does and how it goes about its tasks. Therefore, depending on which of our recommendations are accepted for implementation, the Ethics Commission budget, staffing, and performance needs to be reviewed to determine appropriate levels of staffing and budget resources. That review is beyond the scope of this report. Interactions with ethics professionals from other jurisdictions can inform the Ethics Commission and its staff about emerging best practices for ethics professionals in government but no one has attended the Council on Governmental Ethics Laws meetings in recent years. The Jury hopes that representatives of the Commission can attend Council on Governmental Ethics Laws meetings again and report back to the Commission on what they learn. A New Focus For Commission Activities City Charter Appendix C3.699-11(6) states: "The commission shall report to the board of supervisors and Mayor annually concerning the effectiveness of such laws," referring to 46 Charter §15.102 47 See Charter §6.102 24 campaign finance, conflicts of interest and governmental ethics laws. A City Attorney advice letter concluded that the Charter language did not specify whether meeting this requirement should be done in writing, orally or in another format, but it did not conclude that the requirement did not exist. This is a separate requirement from the Charter requirement that all City departments file an annual report.
F26
The Ethics Commission, though its staff, can catalog information reported elsewhere that is relevant for supplemental understanding of information currently reported locally. Links to this information would be a logical addition to the Ethics Commission web site.
Related Recommendations (1)
R26
The Ethics Commission should determine information reported elsewhere that is relevant for supplemental understanding of information currently reported locally, and provide links to it on the Ethics Commission web site, if it cannot be imported and posted. The Jury found instances of Ethics Commission proposals to reduce protections against pay-to- play politics, reduce requirements for full disclosure of spending to influence City decisions, and relaxed standards regarding post-employment which did not explain how the proposal would further the purposes of the underlying law.48
F27
The Charter requires that proposals to amend campaign finance and ethics laws explain how the change will assist in furthering the purpose of the law. The Ethics Commission proposals have not included any statements showing that its proposals will 48 For example, see the proposal from 2010 on contractor contributions discussed at the Oct 18, 2010 Ethics Commission meeting, and the memo with draft legislation at http://www.sfethics.org/files/memo_to_EC_re_proposed_changes_10.6.10_packet.pdf 26 further the purposes of the law.
Related Recommendations (1)
R27
When a bill is proposed or passed to amend campaign finance and ethics laws, it should specify how it "furthers the purposes of this Chapter".49 And finally, the Jury believes the appearance of impropriety may be even more corrosive to public trust in government than actual criminal wrongdoing. Why? Because actual wrongdoing can get prosecuted, while it seems that nothing is ever done about things that "just look bad." The conflict of interest law stresses the importance of appearances. “Government decisions should be, and should appear to be, made on a fair and impartial basis.”50 This theme shows up repeatedly in the law, as well as in related case law.
F29
The Findings and Declarations of Proposition J clearly articulate many public concerns with role of money in politics and should be re-adopted, perhaps adapted to be part of the general conflict of interest law - Chapter 2 of Article III of the C&GCC.
Related Recommendations (1)
R29
That the Ethics Commission hold a hearing on "Proposition J Revisited" to consider how some of its concepts apply today and whether the "public 53 From the Ethics Commission meeting minutes 4/14/2003: (Staff) explained that Proposition J, which places limits on gifts, future employment and campaign contributions, and which is currently part of the C&GCC, is now redundant because the goals of Proposition J are either (a) already addressed in the proposed conflict of interest amendments, or (b) scheduled to be addressed by proposed amendments to be considered in Item VIII at tonight’s meeting. Motion 03-04-14-7 (Melbostad/Garcia): Moved, seconded, and unanimously passed (4-0): that the Commission adopt the proposed staff recommendation to delete Proposition J from the Campaign and Governmental Conduct Code. 29 benefit" definition includes elements that should be incorporated into sections of the C&GCC54, and specifically consider offering amendments to C&GCC which re- incorporate its Findings and Declarations into current San Francisco law, and to consider placing these amendments on the ballot. The Jury’s examination of lobbying contacts for 2013 found that only a small fraction of lobbying involves city contracts while nine out of ten lobbyist contacts involve development projects which would be within the “public benefit” definition, and which fall outside the ban on contractor contributions 30 RESPONSE MATRIX

Additional Recommendations 9

These recommendations are not explicitly linked to specific findings.