Friends of Ethics is pleased to support your proposed reforms to the City’s good government laws. We see this legislation as an initial and exciting step in moving forward ethics reform. Toward that end, we urge the following amendments, along with the inclusion of several additional features, which we list separately.
On the sections on lobbyist reforms dealing with contacts with City Officers, we recommend that the Superintendent of Schools be included as a City Officer. Its omission may have been inadvertent in the drafting. In addition, we are concerned that your replacement of “economic consideration” with “pays” in the definition of “lobbyist” may result in creating a loophole in the definition and recommend that you re-write your current proposed definition to incorporate the best of the existing definition.
Furthermore, we believe that you should revisit your proposal for current Campaign & Governmental Conduct Code Section 2.105(d)(1)(C) (which you propose splitting into (C) and a new sub-section (D)), the exemption to the definition of “contact” for attorneys, architects, and engineers. First, an exemption for architects and engineers does not exist in the lobbying disclosure laws of California or Los Angeles and we question the necessity of it for San Francisco. We recommend rewriting (C) as follows:
“(C) Any communication by an attorney in connection with litigation involving the City and County or other agency referenced in the definition of “Officer of the City and County,” a claim filed pursuant to Administrative Code Section 10.20-1 et seq., or his or her representation of a party or potential party to a pending or actual administrative enforcement proceeding brought by or against the City and County or other agency referenced in the definition of “Officer of the City and County;”
On the sections dealing with Conflict of Interest (see your addition to Campaign & Governmental Conduct Code Section 3.1-104), we recommend the addition of a provision requiring Ethics to post online the reports from the Filing Officers for each Department. The larger number of those required to file disclosure statements are Department-level officials whose reports are filed with individual Department Filing Officers. While we would prefer that the actual filed statements be made available online for all filers, not just those who file directly with Ethics, we believe a minimal requirement is for Ethics to post from each Filing Officer the names of those who have met the filing requirement and those who have not complied. We are prepared to offer examples of why this is in the public interest of transparency, and also to confirm to you that Ethics to date has rejected requests to make this easily obtained information available online.
On the sections dealing with Permit Expeditor registration, we recommend that all required reports also be required to be posted online. This is consistent with the City’s move toward greater electronic access to information. Ultimately, all disclosure requirements should move towards electronic submission and searchable databases and away from paper forms and the posting of .PDFs. We also believe that this section should include consultants paid to assist in the process of approving permits as well as those who make direct contacts with City officials. This will assist in transparency, particularly when former City or Department officials serve as consultants but who are not involved in direct contacts. While former officials are not prohibited from serving as consultants but only from making contacts, we believe the public interest includes transparency in this regard.
On the section regarding reporting on donations to nonprofits active in San Francisco, we suggest clarifying the “start dates” for measuring the two-year proposed period. Is this a calendar two-year period, or two years from the initiation of a City approval process, or two years based on an intention to seek City approvals? Additionally, we note that the disclosure requirement depends upon developers who donate to nonprofits being aware of whether or not a nonprofit has “attempted to influence City legislative or administrative action” in the past two years, which creates numerous problematic issues for compliance and enforcement of this new requirement. We recommend that the disclosure be simplified to apply to all donations of $5,000 or more by the developer during the reporting period, regardless of the type of recipient. Furthermore, we again strongly urge that this disclosure requirement mandate online disclosure and the eventual establishment of an electronic filing system and online database. Additional disclosure requirements should not result in mere stacks of paper at the Ethics Commission that are difficult to research. Similarly, while the posting of .PDF files of individually submitted forms is superior to paper stacks, such a low-tech system for public disclosure undermines transparency by not affording searches and spreadsheet downloads of the disclosed content across all the submitted filings.
There are sections that we believe should be added in order to further the purposes of the Act. These include:
- Restoring the category of “expenditure lobbyist” that discloses payments to influence the public on behalf of a client: This information was formerly included in the City’s Lobbyist Ordinance but was eliminated in the 2010 reform in the interest of streamlining the law. However, the result in some cases has been to hide from view the much larger expenditures aimed at persuading the public on behalf of a client. We would be glad to provide examples from the last quarter of the 2009 lobbyist report that underscores this discrepancy. We have a number of other proposals and suggest that you consider working with Friends of Ethics to more thoroughly revise the Lobbyist Ordinance.
- 2.Requiring City Officers to disclose if they are involved in fundraising for candidates other than themselves: This includes serving on a Finance Committee, hosting a fundraiser or inviting attendees, or acting in any role that solicits and accepts contributions on behalf of a candidate other than themselves. This disclosure should include the names of those solicited regardless of whether a contribution resulted. Adding this provision would assist in determining whether City officials are complying with the law’s provision that prohibits soliciting contributions from those who have matters that come before an official. We note that in the last election, a number of contributions had to be returned based on this law although this potential violation was not known at the time.
- 3. A prohibition on those seeking City approval with regard to matters where they have a financial interest from soliciting contributions from others: Currently City law prohibits City contractors from making direct contributions but does not prohibit them from soliciting and obtaining contributions from others. This is possibly an oversight in the law but it is a significant issue that requires closing the loophole.
- 4. A new provision establishing a “Private Right of Action” similar to the provisions in a number of other City laws so that a City resident can act to enforce the law when necessary: While a citizen Private Right of Action exists in some places in the Campaign & Governmental Conduct Code, it is inconsistent and limited to injunctions, not enforcement of penalties. State law provides for penalty enforcement by citizens. To avoid de minimus actions, we propose a dollar threshold before a Private Right of Action can be initiated. One possible threshold would be allowing a Private Right of Action when the violation involves $50,000 or more, or where there is a failure to disclose a conflict of interest that directly relates to the duties of office. We are available to discuss this further. In all cases, the local enforcement agency would be given a set time to act on a complaint before a Private Right of Action would be initiated.
- We note that other San Francisco laws include the Private Right of Action, including:
- Hotel Conversion Ordinance (Administrative Code Chapter 41.20(e) allows an “interested party” as defined in section 41.4 to institute a civil action)
- Residential Unit Conversion Ordinance (Administrative Code Chapter 41A.5(d) allows an “interested party” as defined in section 41A.3 to institute a civil action)
- Rent Ordinance (Administrative Code Chapter 37.11A)
Minimum Wage Law (Administrative Code Chapter 12R.7(c) which gives “any person aggrieved by a violation of this Chapter” to bring a civil action against her employer)
- Sick Leave Ordinance (Administrative Code Chapter 12W.8(c) which allows “any person aggrieved by a violation of this Chapter” to bring a civil action against her employer)
- Residential and Industrial Compatibility and Protection (Administrative Code Chapter 35.6(d) which gives “the current or former transferee of the Adjacent Property” the right to institute a civil proceeding)
- Also, the following provisions authorize “any aggrieved person” to bring a civil action:
Police Code Articles 1.2, 33, 33A, 38, and 47
Police Code secs 3307(c), 3300A.8, 3300B.5
Administrative Code section 37.10B
Housing Code section 503(d) [through section 204(d)]
Finally, Friends of Ethics expresses its concern that the Ethics Commission’s Executive Director provided a statement to the press regarding your proposal prior to it being considered by the Commission. The Executive Director surmised that the costs associated with implementing this proposal could amount to hundreds of thousands of dollars. In the interest of assuring that reform proposals are judged on facts and actual costs rather than speculation that can only create confusion and opposition, we recommend a discussion with the Commission itself. Sadly, a number of cost-saving measures have historically been rejected by the Executive Director. These include cost-savings through electronic reporting, cost-savings through internships from local universities that were cancelled after one year due to alleged poor management of the interns, and diligent collection of fines and penalties owed to the City. While it is important to implement cost-savings wherever possible, it is also critical to implement needed ethics reform. We believe your proposal to be cost-effective and worthy of implementation.
We would like you to know that we strongly support the initiative you have shown in introducing these reforms. They encourage public confidence and trust in our government and expand the ability of individuals to be informed of many important factors as each of us participates in the decisions that affect our community.
Friends of Ethics