Testimony on Ethics Annual Report Deficiencies

by Larry Bush on 01/30/2011

in Paper Trails

Public Comment by Larry Bush Regarding the June 2008 Civil Grand Jury Report
“Accountability in San Francisco Government”
September 15, 2008
Government Audit and Oversight Committee
San Francisco Board of Supervisors

 

Chair, Members of the Committee:

I respectfully add my public testimony in support of the findings and recommendations of the Civil Grand Jury’s June 26, 2008 report “Accountability in San Francisco Government.”

The Civil Grand Jury found that “City commissions and departments they oversee are required to prepare annual reports and other reports for the Mayor and Board” (page 2-3).

The Civil Grand Jury noted serious deficiencies in the implementation of this Charter requirement, and that the result has been costly to the City and the citizens.

“This lack of oversight is not simply a mechanical error in the tracking of bureaucratic paperwork. Without scrutiny of their annual reports, the Mayor, the Board, and the public have lost what could be an effective means to measure the successes and challenges of the City’s various commissions and departments.” (page 3).

For the purposes of the Committee’s review of the Civil Grand Jury report, I respectfully submit in support of the Civil Grand Jury’s overall findings and recommendations a review of an additional Department’s annual reporting responsibilities.

The San Francisco Ethics Commission is required by the charter to submit an Annual Report under the same provision as all other city departments.

However, in addition to that requirement, the Ethics Commission also is mandated in the Charter establishing the Commission to meet a deadline and to provide specific information in its Annual Report that is not required of other city departments.

Most important, the Charter states that in the case of the Ethics Commission, there must be an annual report on the “effectiveness” of the city’s ethics laws on lobbying, campaign finance, conflict of interest, and other ordinances.

It is also required by ordinance to submit independent annual reports each July on the city’s lobbyist ordinance and a separate report each July on the city’s whistleblower ordinance.

For ten years, it has failed to meet any of these three requirements in the Charter and in law.

The consequences to the public can be clearly discerned.

The failure of the Ethics Commission, year after year, to submit the report required by the Charter, meant that it is not being disclosed that:

 

* City lobbyists are not being required to report that they lobby, although that was certainly the intent of the Board when it passed the lobby reporting requirements.

* City lobbyists are not being required to report what decisions they seek to influence, although that also was certainly the intent of the Board when it passed the lobby reporting requirements.

* Significant lobbying efforts, such as the ones undertaken this year by the Zoo, are totally hidden from public disclosure, despite the law’s clear purpose that such lobbying activity be reported and disclosed

* The city’s own Sacramento lobbyist costs and activities are not being reported to the public and the Board by Ethics, despite the fact that the Ethics Commission’s own web page provides a special section for those reports – and then leaves out all information on who is hired, how much they are paid, and what they seek to influence on the city’s behalf. In the current legislative year, Sacramento records report that the San Francisco Office of the Mayor has paid a lobbyist more than $426,000 to lobby State officials, but this information is nowhere to be found in the reports required in the city’s Ethics Commission.

* The city’s whistleblower program has been seriously handicapped for over ten years to the detriment of addressing waste and fraud, because until the recent introduction of a confidentiality provision, any employee who blew the whistle on workplace waste and fraud immediately had their name turned over to their Department by the Ethics Commission

* The city’s electronic filing of campaign reports creates barriers, rather than reducing barriers, to public understanding of political contributions as well as fails to provide adequate information on the political campaign industry, making it difficult and in some cases impossible to review the true source of funds

* In many cases, the Ethics Commission’s officials claim that their hands are tied so that these defects can only be remedied by the Board’s action, and then they fail to inform the Board. As recently as September 10, the Ethics Commission’s Executive Director explained in a San Francisco Weekly article on the city lobbyist law that his hands are tied in requiring lobbyists to report what the law requires of their activities, and that this will continue unless the law is amended. (“Law Requires Lobbyists to Disclose Little,” by Joe Eskenazi) http://www.sfweekly.com/2008-09-10/news/the-fuzzy-lobby/

 

Yet the Board, the mayor, and the public have not been informed, as the charter and the city’s ordinances require, of any of these defects so that they could be corrected.

How can this be so?

At the most recent discussion of this year’s overdue Annual Report, the Ethics Commission Chair asked the Deputy City Attorney whether the Annual Report itself meets the charter’s requirement.

The Deputy City Attorney and the Ethics Commission’s own Executive Director could not answer the question, but said they would have to research the charter requirements before responding.

I believe there is important significance to the public and to the effective operation of the government in the finding that city departments are not meeting the requirement to provide annual reports of their operation, and in particular, reports required in the law to provide specific information for the benefit of the city’s elected officials and the public.

Those reports are now months late, and it may be a month or more before any report is delivered. The one report that will be provided, an Annual Report, will be incomplete, inadequate, and misleading to the public and the city’s official family.

If it were reports required to be presented to the Ethics Commission itself, there would be fines and likely enforcement action against the filer.

Lobbyist reports arguably are among the most important for citizens. While significant public attention is focused on campaign contributions and political spending, the impact of contributions is more indirect in influencing City Hall decisions. The city voters have determined, in requiring campaign contribution reports, that the influence of money can influence the decisions of those who benefit from the contributions.

The influence of lobbying on city decisions has even more significance because it is the most direct. It exists specifically to influence the outcome of city administrative and legislative decisions. Millions of dollars are spent each year to pay to influence City Hall decisions.

Yet the Ethics Commission’s view is that the public is not entitled to know who was contacted, what issues and decisions were the subject of influence-peddling, and what outcome was sought by the expenditure of those millions of dollars.

In some cases, the Commission’s interpretation has left open the question of whether influencing city permits is even required to be reported, although the largest area of interest in city decisions comes in the permitting process.

In other cases, the Commission has failed to implement the City Attorney’s formal opinion on requirements for disclosure by city unions and nonprofit agencies seeking to influence city budgets, permits and other decisions not part of collective bargaining.

Yet in the draft Annual Report, the Ethics Commission proposes to report to the Mayor, Board and the public that it reviews all lobbyist reports for “completeness.” This misleads the public and city officials.

Similarly, the importance of bringing action to halt waste and fraud cannot be overestimated. The city whistleblower law recognizes that city employees may be in the best position to recognize waste and fraud in city operations, and encourages them to come forward with reports so that claims of waste and fraud can be investigated.

At the same time, the city has determined it will only investigate allegations if specific information, including if possible documentation, is provided in a sworn statement signed by the whistleblower.

This sworn statement containing all the evidence of waste and fraud, and the name of the person swearing to its truthfulness, is then turned over to the Department where the waste and fraud allegedly is taking place.

The result is that an employee who knows that his or her Department is failing to take action on waste and fraud, and so files a formal whistleblower complaint, then has to answer to the Department head who did nothing in the first place, and also now must be alert and prepared to deal with retaliation for filing the complaint.

This is in addition to the reality that all the relevant facts have been turned over to the Department, without any independent investigation, thus allowing the Department to rebut the charges without any independent verification of the accuracy of the charge. While Department heads, one believes, are honorable in discharging their duties, this system is fraught with complications for resolving claims of waste and fraud.

Money laundering and its corrupt influence are at the heart of full disclosure of campaign contributions. To determine the true source of funds, it is necessary to be able to verify the contributor’s name and actual address.

This means that redacting the contributor’s address makes it impossible for a citizen or any city agency not privy to the actual filing at ethics to determine the necessary information.

Further, using a post office address rather than a street address completely voids the information needed to review contributions.

The city’s system for electronic filing of campaign contributions does not include addresses. The result is that there is no way for the public disclosure to result in a true picture of contribution sources.

A full review of the operation and “effectiveness” of city ethics laws likely would be even more revealing than the partial review provided here.

The Civil Grand Jury makes the formal finding that “The handling of required annual reports by the Mayor and the Board does not provide effective oversight of the City Commissions and Departments” (page 18).

It recommends “The Mayor’s Office and the Board should establish a process to track, read, and analyze reports required to be filed by City Commissions and Departments” (page 20).

I respectfully submit my view that the Civil Grand Jury’s finding in this regard be adopted, and its recommendation implemented.

Thank you.

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