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Will This Be a Reform Board?

by Larry Bush on 01/15/2013

in Busted

“While we have a hard-working Ethics Commission and San Franciscans have repeatedly voted for ethics reform, we need to do more to be sure laws are enforced, and to close loopholes that cause the public to question our transparency. Together, we can do better.”

– Board President David Chiu’s Inaugural Remarks

When the new Board took their seats this past week, the prospects for significant Ethics reform reached its highest point with pledges from five supervisors to tackle the public perception of cronyism and special interest influence in City Hall.

The prospects for meaningful reform have never been more important as City Hall begins consideration of contracts worth well over one billion dollars along with fee increases like Recology’s increased household garbage fees that could reach $50 million directly out of the pockets of San Franciscans.

When it comes to thwarting pay-to-play City Hall politicking and transparency, as San Francisco goes…no one goes.

Once in the forefront of ethics advances, San Francisco now lags far behind new policies and plans to corral unethical conduct in Washington, Sacramento, Los Angeles and cities across the nation. In nearly every respect over the past three years, San Francisco has taken big steps backward.

Virtually anything goes in San Francisco City Hall. Influence peddlers can legally hand a check over to the mayor or city officials right in City Hall offices. Contractors normally not allowed to write a check to those who vote on their requests have an easy work-around because San Francisco allows contractors to serve on a candidate’s finance committee or to solicit contributions from others.

Mayor Ed Lee single-handedly crafted a new loophole in May that allows city contractors to make unlimited contributions when he created the Mayor Ed Lee Committee for San Francisco. Since it is not a committee formed for his own election but is a “general purpose’ committee, there are no restrictions on who can contribute or how much they can give to Ed Lee’s committee. Those seeking City Hall favors, including some whose large contributions came while jawboning the mayor for their personal financial gain, lead the donor list.

Former City officials can leave their desk one day and start “consulting” for clients the next day on who to talk to and what to say to win advantages over others – and they do. Favors can be won by footing the bill for city officials for official travel, as will certainly happen when Mayor Lee goes to China in April. The money is simply laundered through a Sister City committee that has no restrictions on the amount of a contribution or the source – and then allows all of it to be tax deductible.

Even where the city passed laws intended to curb influence peddling, the city’s laws are ignored by the city’s Ethics Commission and enforcement agencies or else enforced so weakly as to provide no deterrent. A June 2012 analysis by the Board’s Budget Analyst comparing San Francisco enforcement with Los Angeles found that Los Angeles heard 158% more cases than San Francisco and dismissed only 19%. In San Francisco, 76% of cases were dismissed.

San Francisco simply stopped enforcement in many cases, including the requirement that the mayor and city officials notify Ethics when contracts are signed, filing required public disclosures of officials’ economic interests, or the law banning city contractors from making political contributions to officials who decide their contracts and the law that capped contributions during an election cycle. Except for a fine for late filing, Ethics has acted on fewer than five complaints regarding lobbyists or consultants.

When two reputable sources signed affidavits that Mayor Lee lied under oath at the Ethics Commission hearing on Official Misconduct Charges against Sheriff Mirkarimi, Ethics determined that perjury during official testimony was not an issue that belonged to them. District Attorney George Gascon chimed in that he would not act on it either. Neither official – former Board President Aaron Peskin on Building Commissioner Debra Walker – were even interviewed by either Ethics or the District Attorney. Meanwhile in a feat of political jujitsu that was breathtaking in its audacity, Ethics entered into the official record its belief that Sheriff Mirkarimi’s wife was not truthful in her testimony despite having no credible witness to make that claim.

When former state judge and past elected official Quentin Kopp filed a 2011 formal complaint that Recology was illegally involved in campaigning despite its status as the city’s sole provider of garbage collection, District Attorney Gascon opened an investigation and then announced that the investigation was over the following day. The allegation involved Rose Pak, a close ally of the mayor whose advice was sought by Gascon as he contemplated accepting appointment to be the city’s District Attorney.

When video evidence was presented that a political committee was operating ersatz polling operations in Chinatown, including collecting the ballots they helped stuff, the District Attorney announced that the video wasn’t enough evidence to bring a case. When employees of a property management company filed statements that they had been directed to contribute to Mayor Lee’s 2011 campaign and would be reimbursed – classic money laundering –the District Attorney announced there was not enough evidence in the affidavits to bring a case.

The only enforcement that took place – for an airport transport service – came months after the state Fair Political Practices Commission completed a state investigation and won a settlement of nearly $50,000. Even after San Francisco acted, the District Attorney did not include a provision that suspended the company’s ability to win city contracts, something routinely done at the federal level.

San Francisco’s Ethics Commission sought Board approval two years ago to open the door to political contributions from contractors at Treasure Island, Redevelopment and other agencies – just as then-mayor Gavin Newsom was looking for donors for his gubernatorial campaign. That issue now is mooted as those agencies. Ethics also sought to reduce the frequency of public disclosure of campaign spending and to allow itself the right to amend the city’s ethics laws without voter approval. The voters soundly defeated those changes in November 2011 ballot measures.

There are no shortage of specific steps that would better serve the public if the Board were to enact them, from providing information in languages other than English for a growing population that is monolingual, to adopting a local version of the federal Disclose Act that alerts the public to political spending. In Washington that measure is stalled by Republicans. In San Francisco it is stalled at Ethics and at City Hall where no one has introduced a local version, despite a state version wending its way through Sacramento. The Board’s Budget and Legislative Analysis provided a half dozen steps already in effect in Los Angeles that San Francisco might adopt.

The Analyst’s findings and the 2011 Civil Grand Jury report that deemed the city’s Ethics Commission to be a “Sleeping Watchdog” prompted CitiReport’s questionnaire to candidates in November’s election, highlighting specific reforms and asking whether candidates were pledged to not only support but act on those reforms in the first half of 2013.

Board President David Chiu and Supervisors John Avalos, David Campos, Eric Mar and Norman Yee all gave affirmative responses. Incumbent Supervisor Jane Kim earlier had pressed Ethics to adopt changes more in line with San Francisco’s diversity including materials in languages in addition to English. So far Ethics has not acted on Kim’s request. Supervisor Campos initiated the Budget Analyst review that turned up LA’s performance compared to San Francisco and led a hearing that asked Ethics to conduct outreach among San Franciscans for further ideas.

There is little room for argument that the many proposals would aid San Franciscans by curbing some of the pay-to-play politics and improving transparency.

By itself, it will still fail to forestall influence peddling and cronyism at City Hall.

Even when the Ethics Commissioners have asked staff to draft proposals that would sharpen the agency’s effectiveness, staff has moved at a glacial pace – if at all.

In June 2011, after the Civil Grand Jury urged strong action to correct Ethics’ policy of dismissing virtually all Sunshine Ordinance requests, commissioners asked for a reworking of the policy. No draft was delivered until almost 18 months later and then staff failed to provide copies of the city’s Sunshine Ordinance at the Commission meeting. Now in January 2013 there still has been no action.

In June 2011 a state judge also recommended an ethics policy that would prevent city commissioners from recommending specific consultants or lobbyists on projects that come before them. Ethics never introduced any proposal in response.

In June 2012, the Board’s Rules Committee asked Ethics to conduct a strong outreach to the community regarding the proposals in the Rose Report on LA versus SF ethics policy. An “Interested Person’s meeting was held but the lackluster outreach by Ethics resulted in a total of five people who were not on Ethics own staff. When asked if such groups as the city’s chartered Democratic Clubs or other groups had been contacted, Ethics responded by asking if someone could provide a list of the city’s political clubs. The record shows, however, that Ethics has met repeatedly over the past two years with delegations from China and other nations to brief them on San Francisco policies while holding no such briefings for San Franciscans.

Ethics Executive Director John St. Croix explained his attitude toward the mission of the Ethics Commission when it comes to building the public trust.

“The Ethics Commission’s biggest critics are believers in ‘gotcha government,’ ” St. Croix said. “We’re focusing on education. The more we educate and teach people, the less likely is it that they are going to make mistakes. It also lets them know that we’re watching.”

There is no better evidence of how that is working than the supreme indifference of Mayor Ed Lee to the Ethics Commission plea that it act on Ethics’ Official Misconduct charges against Jewelle Gomez, Library Commission president.

The Commission made its finding in June 2011 and requested the Mayor to act, including removing her from office. Mayor Lee ignored their letter.

In September 2012, a year later, Ethics sent a follow-up letter to Mayor Lee, this time asking him to explain his reasons for not acting, or else to act. He ignored that as well.

Yet this is the same mayor who staked two million dollars of city money in having the Ethics Commission take up charges of Official Misconduct against Sheriff Mirkarimi.

While the Ethics Commissioners, individually, are professionals who bring diverse experiences, as a group they have yet to implement the kind of rigorous oversight over their staff that they would expect in their professional careers.

There is no standard for performances expected of the Executive Director, and no discussion of benchmarks that the Ethics Commission be expected to meet. While individual performance evaluations normally are not public, there is nothing to prevent the standards themselves from being made public. There are also no consequences for inadequate performance, since performance standards are lacking, and clearly no consequences for failure.

So far, the only consequence has been a constant eroding of public trust, first in the Ethics Commission itself, and then in City Hall decisions as being in the interest of the public.

Consider the case of Recology that already has announced its intent to seek an increase in fees it charges residents and businesses for garbage pickup. Approval of the increase is up to three-member board acting on the recommendation of a fourth person.

This year the recommendation will come from the head of the Department of Public Works, Mohammed Nuru. A few years back, Nuru was identified in an extensive City Attorney investigation for requiring city contractors to work on the campaigns of his bosses. He was even identified as monitoring the actual votes of contractor employees as they cast their ballots. The investigation was turned over to his boss, at that time Ed Lee, who took no action. When Lee named Nuru to head DPW this past summer, City Attorney Dennis Herrera denounced the appointment as “cronyism, politics and poor judgment.”

Nuru’s recommendation goes to a three-member board consisting on Ben Rosenfeld, the city controller and former Willie Brown aide, Naomi Kelley, the new City Administrator and former Willie Brown aide, and Harlan Kelly, newly named head of the Public Utilities Commission, married to Naomi Kelly and also a former Willie Brown hire.

Last year, Harlan Kelly was feted at a 50th birthday party that was paid by attendees including city contractors.

“It’s kind of messy,” said Ethic’s St. Croix about the involvement of contractors. “You have to be very careful of stuff like that.”

Unless your boss is Ed Lee.

When Lee was elected in his own right as mayor, he also was feted with a major bash, which was at the Palace Hotel and included steak and other high end treats. It was hosted by Ron Conway, the venture capitalist who then won Lee’s support for a rewrite of the city tax code that reduced taxes for companies where Conway has investments, and by former mayor Willie Brown.

For decades, Brown was a legal advisor to Recology, then operating as NorCal. Brown currently is not required to report any financial arrangements he has with the company and apparently the Chronicle also does not require him to disclose any arrangements to them or to readers.

In Los Angeles, the city’s Ethics Commission proudly proclaims its purpose on its web page and elsewhere.

“To Preserve The Public Trust” is how they describe themselves.

San Francisco’s Ethics Commission makes no such declaration.



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