Sunshine ordinance not in the bt or state law. It keeps coming up and so attorney can file an action for declaratory relief. Mr. Harts can file a motion to file on this break. Well, the Sunshine Task force can file something. And the Sunshine Task force could. Seems to me that we shouldnt have to deal with the issue. I think theres, as i hear it, theres matter to what mr. Heart is saying. Theres a practical matter so long as you identify it as the subject where that was. It makes some sense. But it seemed like were wasting a lot of time on it and let the Sunshine Task force or the City Attorney get a legal opinion on it. Commissioner im looking at agenda item number 5, page 18 the letter of september 28, 2016 to the Sunshine Ordinance Task force from mrs. Cavillo the clerk of the board, giving a reason why the 150word summary is not included. The clerk can validate whether Public Comment was made like a brief statement in the public section statement the clerk cannot attest to the 150word statement therefore the statement must be placed in the indices because the statement is not validated. Because theres Public Comment given at a meeting. But the clerk in preparing the minutes is of what transpired doesnt have the statement or attest to the validity. I think we could be asking the clerk of the board to be doing something that they are not actually capable of doing is to attest to the validity and content of these 150word summaries. That would be a concern for me. Chairperson keane mr. Hart, do you want to respond . Yes, the argument has come up before the task force multiple times and theres nothing to require them to verify the statement. In fact, verification of the statement theyre allowed to do one of two things. Theyre allowed to refuse the statement if it is not actually a reflection of what was said. Or two, if its more than 150 words. Thats what the law actually says. And not one time in all of these years starting in 2008 excuse me, 2010 has anybody rejected my 150word summary stating it was more than 150 words or that it was not what i said. Commissioner renne stated the summary of 150 words that is fine and a generic and unbiassed statement. The statement there is prejudicial to anybody reading my 150word summaries. I would have to say if you have a statement in front of your constitutionally protected political free speech that says we dont verify this is true, it will raise question and ring some bells in some peoples minds. Chairperson keane any further questions or comments by members of commission . The matter is do you have anything further to add, mr. Hart . You can rebuttal back . Chairperson keane are you going to rebut yourself . No, im going to rebut the boards argument. Chairperson keane go ahead. Read the documents. If you havent read the documents than its not in any way, shape, manner or form a fair hearing. They have danced around this for years. If it was actually a question of the clerk of the board not being able to do her job under the law, then all he had to do was point out what law that was and he has adamantly reused to do that because it is constitutionally protected free speech is not one he can officially legal opinion saying mrs. Calvillo cant do her job because the law says she has to do this or cannot do that and including the 150 word summary in the minutes would keep her from doing that or would be somehow endemic to her performing her duties. Now, i have a hard time believing that after eight years if the City Attorney can find one legal justification for denying the placement of the 150word summaries in the body of the minutes, his office would have come up with it and with 200 lawyers i have a hard time believing they dont have either the time or the legal knowledge to do so. Im a retired veteran living on a fixed income. 90 of my income goes to pay my rent and i live on the other 10 . The fact that i am not able to afford to go to the superior court is one issue. And the second issue is i have to exhaust all local remedies. Basically this is exhausting all local remedies. I fail to see and understand why you seem to be refusing to look at the simple fact that over the years every single board or commission with the exception of ms. Valvillo representing and acting as the representative of the board of supervisors has placed the 150word summaries in the body of the minutes and theres been not one problem. Zero. And to hypothesize it might be this or that when the bottom line is if mrs. Calivillo made the argument that was believable she would have shown up at the sunshine meetings or here tonight. Chairperson keane are you ready for a motion . Yes, i think we should take Public Comment first and well have a motion and vote as to whether or not were going to sustain the Sunshine Ordinance Task force findings. Dr. Kerr. Dr. Derek kerr, a whistleblower. I agree with mr. Hartz. Public input is not a mere addendum to government proceedings. Mrs. Calvillos sponse did divisive and marginalizing the very few who take the time to share their views in writing. The message is that we are unworth, inferior. She worries about troubling researchers who have to quote, cul through various 150word statements, unquote. First, 150word statements are too rare to need any kind of culling. Second, she wrongly assumes that researchers are not interested in the Public Sentiments expressed in the written comments. She insists she cannot vouch for the accuracy of written comments. She doesnt have to. Theyre called Public Comments. Though unofficial theyre officially considered a core part of open government meetings. She threats that she cannot attest to the content and relevance of these comments. More important, is that the written comments typically protest or challenge the content and relevance of government actions. Thats why they deserve placement within the agenda item that they address. Thats in the body of the minutes not in the addendum. Otherwise, what we have is a subtle form of censorship of protest cleansing sort of the back of the bus. Thank you. Chairperson keane thank you. For the report, im representing friends of ethics. Prop g was passed in 1999. Thats the sunshine ordinance. If were looking to the law, this is perhaps embodied by a voterpassed initiative. And i think your hands are pretty well tied. It doesnt have provisions for easy amendment. If you want to go to the voters, you could go to the court and get declaratory relief but its not clear to me that the court wouldnt look to the fact that this say voter pass initiative. Its been enforced now for almost, what, twenty years. I just wanted to point that out. David palpo. I sat on the sunshine ordnance task force on and off many years. Im not currently a member but ive dealt with this issue many times and spent a lot of time reviewing it. Im going to avoid the possibility of responding to mr. Hartz concern this is i forget how he characterized as political free speech. Im not sure its relevant and ignore that issue tonight. The only issue is interpreting the last sentence of the section 57. 16 of the ordinance. Any person may supply a brief written summary of their comments to be included in the minutes of 150 words. Thats the only operative sentence. Theres no requirement in the charter that minutes be captured in a certain way. Theres no requirement in the brown act. It is exclusive to the sunshine ordinance and it was only introduced in prop g in 1999 which amended the ordinance which was originally passed by the board and signed by the mayor in 1993. Again, think the issue before you is interpreting that sentence and really whether the statement now included in the board of supervisors in the addendum on the page in the minutes constitutes included in the minutes for the purpose of that sentence. If you find it is included in the minutes, however its gotten to and prepared and above the line theres no violation. If you believe its not in the minutes with the addendum and therefore outside the minutes then arguably there is a motion and proceed in that way. I think the only question before a court is that you address the ambiguous language in a voterpassed ordinance. Thats it. Theres a lot more we can say about it but thats what it boils down to. Is the practice of the board to include the statements such as mr. Hartz as an addendum in the minutes for the purpose of that sentence. Im happy to take any questions. Commissioner whats yours . I think it is in the minutes. Its not in the place that others may like but its not that far away. Theres a reference in the Public Comment to that. Its not like saying you have to go to another document. I believe its in the minutes. I believe theres some discretion left to department and boards and commissions as to how they prepare their minutes but so long as it meets the content requirements of 67. 16 and includes the up to 150word statement somewhere in the minutes i believe that it complies with 67. 16 as it currently reads. Thank you. Commissioner im ready to make a motion. Id like to ask a question first, if i might. If this Ethics Commission were to adopt the interpretation of the sunshine ordinance as presently interpreted by the task force. If we were to say, yeah, we think thats correct, would that change what the City Attorney would put in the Good Government manual . I cant speak for the entire office but i think in communicating with the clients whether its in the Good Government guide or elsewhere on the issue i think we would note the Ethics Commission has its own interpretation and in line with what the task force also proposes. Chairperson keane thank you. Thank you, mr. Chairman. I referred to the measured and rational response and page 2, the clerk states and i quote, secondly the task force has previously referred similar alleged violations of section 67. 16 for administrative remedy to the commission. And then she refers to two such complaints. Mr. Hartz complaint stated the Task Force Found a 150word written summaries of Public Comments must be placed within the body of the minutes. Complaint the Ethics Commissioner found for the city librarian stating, quote, the statement were together and the task force cannot imply or add the words in the body the minutes in the sunshine ordinance, close quote. The motion was passed during the february 25 that there was no violation found of the ordinance. June 24, 2013 the Ethics Commission again discussed the legal issues of this matter concluded there was no violation of sunshine Ordinance Section 67. 16 because the written summaries appeared in the minutes and placing the summary in the addendum satisfies the requirements of section 67. 16. 2. Theres a further paragraph which is consistent with that first paragraph and then the next paragraph refers to the task force. They have had contradictory rulings. In 2002 they held a hearing on sunshine ordinance Task Force File numbers 13058 and hay hartz versus office of the City Attorney and placement of 150word summaries. The Task Force Found no violations and concluded the matter. The task force also heard file numbers 13054, 13055 and 13059. Ray hartz versus office of the clerk of the board regarding placement of 150word summaries. The task force again found no violations and concluded the matter. Task force members at the time were she lists all those members. She attaches a copy of the Task Force Meeting member. Theres theres and it included to be supplied with the court of appeals and the Supreme Court of the state of california. Do we have a second to the motion . Second. Any discussion on the motion . I intend to make a second motion. I will make a second motion after we rule on this further discussion by the commission . We need to take Public Comment before we vote. All in favor of commissioner kopps motion say aye. Aye chairperson keane share votes aye. The motion is passed unanimously there is no violation. Because there is merit to the argument being made about the failure to put the written summary for the written statement in the body of the minutes itself at the paragraph where the agenda item is being discussed, it is a form of sort of downgrading the significance of what that speaker or the proponent. I think it would be good policy that the various agencies when written statements are provided that meet the 150 requirement of the sunshine [microphone noise] and its where the subject is being discussed rather than making reference to some other section of the minutes one is to go to. Chairperson keane we move to item number 6. Continued discussion and possible action on revised proposed mr. Hartz. Youve had your time. Lets go forward with the rest of it. [off mic] chairperson keane i ask the person be removed from the hearing room. [yelling] chairperson keane have mr. Hartz ejected. You havent given a fair hearing to anyone regarding the ordinance in over 14 years. Not once. Chairperson keane have a nice evening mr. Hartz. Okay. Well go to the next agenda item which is agenda item 6. Continued discussion and possible action on revised proposed 2017 San Francisco anticorruption and accountability ordinance builds on the initial proposition j. At the last meetings we voted and it was a 32 vote in favor of the anticorruption act. Commissioners chiu and others ask we take it up further and there be meetings with staff in regard to what their thoughts were and thats been had so at this point now well give it to pat to tell us about what has transpired since then. Good evening, commissioners. Im patrick ford a policy analyst with the commission. Chair keane gave a quick overview of the history of the ordinance. As he mentioned, staff has been working on trying to the discussion as to what the remaining provisions of the ordinance are. The Commission Must have a discussion in order for the commission to reach the fourfifths super majority to send to the supervisors. Staff has produced a memo at agenda item 6. The memo tries to, as i mentioned, hone in on the remaining policy questions are. Its organized by code section. Each section of the memo corresponds to a code section in either the campaign and governmental conduct code or conflict of interest code. Within each section there are policy questions that weve identified we believe the competition has not reached agreement upon in which we would recommend the commission engage in discussion in order to move the ordinance forward. So youll find each policy question phrase the external question. These could be individual motions or bring motion with multiple policy answerers within it. We leave it up to you to determine how to use the memo to drive the discussion this evening. We believe its comprehensive in terms of what the discussion was at the september meeting in our meetings or meeting with the commissioners chiu and lee regarding the ordinance. So well be available for questions on this but by and large, wed like to leave it to you to determine what the process will be. To exercise the prerogative of the chair and suggest at this point we put it in the hands of commissioners chiu and lee to drive the discussion since they were the moving forces behind this at this point. So commissioners, were at your pleasure. Thank you, chair keane. Commissioner, its okay . First i want to express my thanks to staff and the public for your time and input that you have provided to us during the intervening time from the last meeting to this past week. And i think there are very important policy questions that are very ably captured in the memo that has been prepared by staff and i hope that we can have a good discussion and move the ball forward this evening. I think that not only deciding policy but create regulatory and framework that will impact those subject to these laws, those who are going to enforce them and those who are going to break these rules that well be putting down. So i think this is a big responsibility that we have. And so when i think about the work to be done and up my role as a commissioner, from a policy standpoint what are the outcomes were trying to drive with the registration were drafting. Like in the federal health care issue, republicans as a policy matter believe the market should solve all problems and want to look and create marketdriven solutions to health care. For us i think the question then is what do you believe about what constitutes corruption specifically intersection 3. 207 and in that context what is the right solution . For the solutions we are considering in conversations with director executive director pellen i think its important for me to think about three things. Is this law clear . Is it obvious and apparent to those who are going to be subject to it what they can and cannot do . Clarity is important because the lack of clarity can lead to inadvertent non compliance and lead to outcomes we dont want. Is it workable. Can we operationalize it in a way thats going to be effective. Will it be efficient so we can enact a law that will actually do and accomplish the things we want it to accomplish and lastly is it enforceable . Is there a way to reach the people for whom we want a different level and kind of behavior and theyre clear about what is okay and what is not okay and that it is there are steps that can be taken and its clearly laid out what they need to do and what they cant do around when they need to do it. If they dont comply, is there a way the Ethics Commission or a private party to come forward and hold them accountable for their compliance . So with that backdrop, i think id like to turn it over to commissioner lee if you have additional thoughts then we can get into the actual policy questions and provisions that we had discussed and received input from any stakeholders on. Thank you, commissioner chiu. I echo everything you said. I also want to thank the staff for putting in the efforts to address the concerns raised at the last meeting. The only thing id like to add to the detailed framework commissioner chiu has outlined for us is for me its really important because this is such an important piece of legislation that we are going to have to vote on its really important, really critical for us to make sure that there is no unintended casualties in this. I understand the importance of making sure this is applicable. This is enforceable. This is transparent. But at the statement time we need to look at who we are talking about if we are looking at a broad base of bodies. Im still troubled by the generalization of the nonprofit sector. I still believe theres a big difference between the board and immigrant right organization. So it is really important for us if we look at this piece of proposal who would bear the extra burden that they shouldnt be. I know folks are talking about whether the nonprofits were part of this. Is the activities between the Public Officials and the givers. Yet, the folks who would be bearing the burden would be the Community Service organizations. So i remain very concerned about that and look forward to the conversation and discussions we will have. So turning to the memo on page 2, i think the first question, and i invite commissioners to weigh in, the first question to policy questions a is whether extending the term of the city contractor contribution ban from six months to twelve months. I actually have a question for staff ob this. Do we know what the staff on this. Do we know what the average term of a contract is for a city contract . Where im going with this is, is if have you a oneyear term and youre in the renewal phase and it takes six months to renew and theres a oneyear ban after its been renewed theres a perpetual cycle of never being able to make a contribution. Perhaps you can speak more generally to it. I dont have numbers on that exact question in front of me. I think there certainly are contracts, probably grants, that are valid or effective for simply a year. But im also sure theres contracts in the city that extend longer. Im sure property agreements the city enters into are probably for a longer period of time. My apologies. I dont have data detailing the breadth or the frequency is. You dont have that on the top of your head . Commissioner lee, if you have any questions on this topic . No. Commissioner i think at six months, twelve months i would only be concerned if there would be a negative impact on an organization that would never be able to make a contribution. That would be their right but we dont have the data on that. On the threshold amount, i think we had a good conversation about that in meetings in terms of moving the threshold. I dont know theres an issue that i have there in terms of the threshold amount. Commissioner lee, if you have anything, please weigh in on item b. I only have something further down the line. Section c. Ill wait. Why dont you go ahead on section c. I think the staff mentioned theres an existing law that prohibits officers and directors from making contributions. Thats the staff report on the bottom of page 2. Does that include nonprofits because its not clear . You mentioned they are not exempt. It would be a change from existing law. Right. There are supported directors from serving on boards. One is operationally, how will Ethics Commission inform all those. I served on the board of a nonprofit that had a contract with the city ages ago and i never knew in my experiences with nonprofits we focussed on programs and on the budget and staff issues and we focus on hows that grant coming and focussing on the capital campaign. I wouldnt want the executive director of a nonprofit im serving on to have to worry about making sure that i dot my is and cross my ts from a political contribution standpoint. That would be my concern. Also, how do we enforce this . How do we know who is an uncompensated director making an unlawful contribution . Or political contribution not necessarily unlawful. Commissioners, if i can weigh in on that, it wouldnt make a difference in regard to the nonprofit or the profit in terms of the one getting the contribution or the one whos making the contribution. That the under the ordinance. We voted 32 on last week. Its important to emphasize we emphasized it the last time. The only prohibition is on a Government Official who in effect puts the arm on someone to make a contribution and that person the Government Official is leaning on and extorting to make the contribution on is someone who has a matter before that Government Official. Thats all thats prohibited. Thats the conduct that is in terms of an Government Official using his position to ask someone for something and the person being asked has a matter before that Government Official and needs that Government Official to vote in favor of whatever it is theyre asking for. The entity, profit or not nonprofit that gets the contribution if the Government Official does say to that person, contribute. If the person does contribute, theres nothing that our ordinance does about that. The nonprofit or whoever else it is still gets the money. The person who made the contribution, nothing happens to that person. Thats what the act was all about. The idea of the nonprofit or organizers, they dont have to know anything. They dont have to be concerned about anything. The person who makes the person whos leaned on thats extorted, if they person wants to make the contribution were saying the Government Official should not use their own position of power to have a contribution made by someone who is wanting something from them to anybody. They simply shouldnt do that. Get that typed up and added as an addendum to the minutes of the meeting. I believe i was referring to the prohibitions on contributions by city contractors. So any organization with a contract with the city or the directors or the executives of that organization including the uncompensated board of directors cannot make a contribution to anyone holding an effective office. The ask is intersection 3. 207 and what section 126 has been in place a long time. Prohibiting anyone with the city contra contract from making a political contribution and if you have a city official with 100,000. You cant make the tail was six months and now were looking at twelve months. Were not changing anything in relation to the contribution itself. Were not governing that. Were governing the action of the official who uses their position of power to extort something from someone. Thats it. And the section is one section were only making changes to in effect anyone with a contract with the city cannot make a contribution to an official which must approve the contract and has been existing since 2003. Its already there. We are proposing a change to existing law that would eliminate that prohibition as it applies to in compensated board of directors. Youre going well beyond if youre advocating that, thats fine. If you want to advocate that in some different measure. But that has nothing to do with the measure we had before us last week. Commissioners, with all due respect. Can i get a clarification then . The way i interpret this is for the onset we need to have the language that is clearly understood, clearly understood by all parties that everyone can comply and follow the rules. I am confused. The reason why if you look at the section contributions by city contractors the way i interpret is theres way for a profit or nonprofit and prohibiting from making any contributions anyone with city contracts. So my interpretation is if youre a nonprofit get city grant to provide meals on wheels or what have you, this applies to you. So youre Board Members who are uncompensated are subject to this rule that you are prohibited from making any contribution correct. And its existing law, not a change so the existing law from making contributions, thats correct. So its a bidding process designed to prevent the bidding people to make contributions to the officials on the contract. So if i sat on a nonprofit board the organization just got a grant that was bid and i made a contribution to somebody who reviewed this within 12 months than i am in violation under the current law . Six months currently but otherwise, yes under the law we had last time before us, it wouldnt make a difference one way or another. You can contribute all you wanted. The only thing thats prohibited is some Government Official whom you wanted something for. Say you wanted a permit from, saying to you, i think you should contribute to this. The Government Official cant do that. Thats the only thing thats a different section. Were talking about existing law. The existing law already has the ban it strikes me theres no reason why a nonprofit whos seeking a 100,000 contract from the city why its directors shouldnt be subject to the same ban as a Public Company would be. Why is a nonprofit different . The whole idea is you dont want payments to political officials when their organization is benefiting to the tune of 100,000. You dont want them to. All you have to do is read the ordinance as it now exists and say he or she cant do it. If we were what youre suggesting is that we change the raw to make it easier have we change the law to make it easier for corruption to exist. If i can ask the chair the deputy City Attorney, has there been any private individuals who happen to serve on Community Boards who felt that their rights to political participation have been violated because of this prohibition . Vary in their level of knowledge subject to. From a commission standpoint, wd dedo differently in order to mae that the stake holders that aret to this would be aware of their obligations. Existing law has required pee on notice of this rule and were strengthening the notice. Its an education item for uf they have legal representation,y have advocacy organizations thad be educating them on this provi. This has been in place since 20o were dealing with 14 years of s being in place. So, i think we certainly would o increase our and we would ifs this legislation and perhaps weo be more judicial particularly wn elections are right around the n informing boards of commission s as these people file other docus with us, we have mechanisms to t to those individuals to remind. Again, i think the individuals themselves need to take some d organizations need to take somen being aware of rules in place ah there may be many. If i could ask one more quesn regarding notification and selfn whicselfawareness. I agree that ignorance is not a, but at the same time im talg about nonprofit boards, they go, i know we went through lots of g to make sure that they have, thy know the responsibilities and ae Due Diligence that they are reqo as their responsibilities. If this is a San Francisco requt and there are Many Community organizations who are serving se or nation bodies, who have boars not from San Francisco, you talt this requirement being in placer over, what a decade . I dont know how new members wow about this. Are you saying that the responsy of knowing this requirement, nu, rests with the nonprofit itself . They should know . Because theyve they are a c . And secondly, going back to the enforcement question, there muse hundreds of nonprofit board memn this city. If not thousands. How can the commission keep traf whether their contribution is me legally or not . Because when Public Officials fr campaign reports, they put downe persons name and their profess. Thats it. They dont put their board affis or anything. How is the Commission Staff goio track this particular requiremer nonprofit Board Members to makee they are not making the type of political contributions that isn violation of the law . Commissioner, im sorry, buts of the ordinance that we have cd and that we had before us last. The commission doesnt care wher not someone makes a contributio. If they make that contribution,s fine. Were not going to track them. Were not prohibiting them fromg anything. What were saying is were prohg people who are in an official pn from requesting of someone, be a board member or whoever it may t they contribute something, if tt person requested to make the contribution is someone who wans something from that official, la permit or Something Like that. Thats what were saying shouldt occur. So whatever happens down the li, happens. And if the person makes a contrn or if a nonprofit or profit gete contribution, or its done by ad member or not by a board membery irrelevant. Were saying you government offn a position of power should not r power to extort contributions fm anybody to anything if that peru are extorting that contributions someone who wants something fro period. Very simple. If i could offer something tp clarify the discussion, i think everybody is saying what youe saying is true. But i think it might provide grr clarity if we can walk through e decision points and issues in to as outlines. Because yes, we want to prevent officials from asking for moneym people at times when there is te greatest potential for corrupti. But it ask also the case that te current law would be scaled bach the proposal that were talkingt under this item. I think there are two things the getting complained a bit. If we can take a step back whets kyle or pat would walk us throue issues and we can come back ande clarity about how the issues fit together and it might point oute some issues can be dispensed wie easily. Again, a process suggestion. If it might help. Ill keep my mouth shut. Maybe we can start with the contributions by city contracto. Specifically section c to the cn exempt all and paid directors we rules against contributions. Id also like it answer the n you asked a moment ago commissie about how will we know and how t committees receiving contributiw whether or not a contributor is prohibited under section 1. 126 m giving if that person is a memba board of a nonprofit or forprot company. If its a city contractor. And Government Law has a notice retirement w quiermt that the cy agency that is putting out a requirement that the city who i city agency will notify the potl contractor of the rule thats ir proposal in the ordinance, sectf 1. 126. That will ideally put them on n. But there is a rule that will ao them. As far as the committee receivia contribution from that person ho with the attestation card. That the person is on notice tht applies to them and theyll havl out the card that says i am noty who is subject to this rule andt they wont do that if they knowy are. That they wont make that attesn because it would be perjury. Thats how the process would be integrated and helped with enfo. Chair keane, if i may, is the mechanimechanism in place . Its