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A Civil Grand Jury Report on the San Francisco Ethics Commission
Monday, June 27th, 2011
Update: September 27, 2011
According to Melissa Griffin's column in the Examiner yesterday, the board of supervisors' Government Audit and Oversight Committee met last week to discuss the civil grand jury report discussed below. The results of the committee consideration of the report are included after each relevant section below.
The San Francisco Ethics Commission has been criticized a lot recently. As I wrote in a blog post last year, three whistleblower complaints were filed against it by an employee, the last in 2009; and in 2010, people marched on the EC after the death of an ethics activist who had served successively as a staff member and a commission member.
In addition, through articles and blog posts, Larry Bush has been leading a campaign against the commission, accusing it of rewriting the city's lobbyist law in 2009 so that many major players were exempted from the definition of lobbyist; of stating that it had never found a violation of a particular "pay to play" rule; of destroying evidence of potential official wrongdoing; and more. The EC has chosen not to respond to Bush's accusations.
Now the city's civil grand jury, citizens selected annually to investigate whatever matters they choose relating to the city's governance, has published a report on the EC (attached; see below). It is not a complete audit of EC practices, but rather a selected look. Note that this is civil grand jury, not a criminal grand jury. There have been no criminal allegations against the EC.
Up front, I should acknowledge that the report quotes from one of my blog posts (on p. 5). However, I had nothing to do with the investigation or the grand jury.
Sunshine Enforcement
Unusually, the EC is the enforcement agency for the city's sunshine ordinance. Few cities even have a sunshine ordinance, and it is unusual for the agency that finds violations (the Sunshine Agency Task Force) to be dependent on another non-judicial, non-legislative agency to enforce its decisions when they are ignored by city officials. But this is the way it works in San Francisco.
The grand jury report says that the EC has not actually enforced the task force's decisions. 18 times the task force has asked the EC to enforce, and 18 times it has decided to dismiss the matter either “because facts did not support finding of willful failure to discharge duties imposed by Sunshine Ordinance" or "because facts did not support finding of violation.” In each of the latter cases, the executive director recommended dismissal.
There could be a reasonable argument for each of these dismissals, but there is no reasonable argument for the EC's failure to even include enforcement of sunshine decisions in the list of its duties on its website. It lists 8 duties, but not this one.
And yet, according to the grand jury report, for the period February 2010 through April 2011, 38% of the pending investigations were sunshine referrals (according to the June 13, 2011 executive director's report, the most recent percentage was 35%). If the EC has no duty to deal with this, why does it even bother to give a reason for dismissing the matters?
The EC hasn't taken the grand jury report seriously enough to add its sunshine duties to its list of duties yet.
Update: The ethics commission promised to come back in November for a full hearing on this issue.
Investigation Delays
According to the grand jury report, the city's charter does not prevent EC investigators from pursuing an investigation after a 14-day notification period, even if the district attorney or city attorney is also investigating aspects of the matter. However, in practice, the EC will not begin an investigation until the district attorney and city attorney both have decided not to pursue the matter.
It is common for ECs to turn complaints over to criminal authorities if they believe there are criminal allegations, or to turn complaints over to administrative authorities if allegations are personnel-related or otherwise do not involve violations of the ethics code. But it is not common for ECs, as a matter of policy, to wait for others to clear their cases for an investigation, especially if there are ethics allegations that are not closely related to criminal allegations.
According to the grand jury report, the EC regularly delays its investigations, in one case for nine months, which "provides more than enough time for documents to become lost, employees to change departments, and accounts from interviewees to fade."
It is reasonable to be careful of wasting limited resources or stepping on others' toes. But judgment should be used with respect to which cases might need to be delayed, and which should be pursued.
Complaint Dismissals
Another EC practice that the grand jury criticizes is its complaint dismissal policy. According to the grand jury report, ten days prior to each monthly meeting, the executive director sends EC members a list of complaints he recommends for dismissal. EC members can prevent dismissal only by having a complaint removed from the director's list and placed on the agenda. But it's not enough for one member to do this; two have to request movement of a complaint to the agenda. And they have five days to do it.
The problem is that a member of a five-member commission can only speak to one other member or she has violated the open meeting law. If the member who wants a complaint put on the agenda contacts a member who either wants it dismissed or doesn't care enough or is too busy to read the complaint, the member's attempt has come to an end.
This is not a good way to handle complaint dismissals. As the grand jury says, this essentially gives the executive director control over the agenda. It might seem efficient to trust the staff's judgment, but efficiency is not a highly prized value in government ethics. And making dismissal the default is not a good way to gain the public's trust.
As for setting the agenda in general, it is best to have at least the commission chair be involved in the original setting of the agenda, with any member (after all, there are only four others) able to make additions or changes to the agenda without seeking another member's support.
EC Member Selection
This is the section where I was quoted, so it is no surprise that I agree with the grand jury's view that the selection of EC members by individuals they have jurisdiction over sets up possible conflicts of interest and a negative public perception. The grand jury's solution is to add four EC members who are selected by community organizations. This is a reasonable compromise that doesn't step on the elected officials' toes and, thereby, might have a decent chance of passing.
Update: The committee is open to changing the way ethics commission members are selected.
Fines
I did not, however, agree with the grand jury's recommendation to establish a fixed fine structure or apply the maximum fine, nor do I believe that settlement negotiations should begin only after a public hearing. But I do believe that the EC should be more involved both in determining fines and in the settlement process, at least to the extent of providing oversight and approval.
Whatever the truth of the accusations made against the EC staff, they and the ethics program, including complainants and respondents, are better protected when the staff has less power and when the EC members are more involved in the process. It may not be as efficient, but especially when enforcement consists primarily of dismissals and low fines, it will appear more worthy of the public's trust.
If the public sees efficiency in the service of limited enforcement, it has a good reason to be critical of the ethics process. If efficiency is in the service of strong enforcement, then officials will be the ones complaining about a lack of due process. The fact that officials don't appear to be complaining implies that the EC's efficiency is not a due process problem, but a problem of public perception. And there is nothing worse for an ethics program than for it to lose the public's trust.
Conclusion
There are also complaints about the city's whistleblower protection program, according to an article on the local ABC affiliate's website from May.
The civil grand jury did a report on the EC back in 2005, which indicated that the EC needed more resources to handle its workload. The 2011 report does not suggest resources as a principal problem. You can find the responses to the 2005 report here (pp. 19-21)
An article in Friday's San Francisco Bay Guardian says that the EC's executive director will be responding to the grand jury report. I will share it on this blog when it is made public.
Update: In addition, the ethics commission said it will try to find the place and money to allow it to have its meetings televised.
Robert Wechsler
Director of Research-Retired, City Ethics
---
According to Melissa Griffin's column in the Examiner yesterday, the board of supervisors' Government Audit and Oversight Committee met last week to discuss the civil grand jury report discussed below. The results of the committee consideration of the report are included after each relevant section below.
The San Francisco Ethics Commission has been criticized a lot recently. As I wrote in a blog post last year, three whistleblower complaints were filed against it by an employee, the last in 2009; and in 2010, people marched on the EC after the death of an ethics activist who had served successively as a staff member and a commission member.
In addition, through articles and blog posts, Larry Bush has been leading a campaign against the commission, accusing it of rewriting the city's lobbyist law in 2009 so that many major players were exempted from the definition of lobbyist; of stating that it had never found a violation of a particular "pay to play" rule; of destroying evidence of potential official wrongdoing; and more. The EC has chosen not to respond to Bush's accusations.
Now the city's civil grand jury, citizens selected annually to investigate whatever matters they choose relating to the city's governance, has published a report on the EC (attached; see below). It is not a complete audit of EC practices, but rather a selected look. Note that this is civil grand jury, not a criminal grand jury. There have been no criminal allegations against the EC.
Up front, I should acknowledge that the report quotes from one of my blog posts (on p. 5). However, I had nothing to do with the investigation or the grand jury.
Sunshine Enforcement
Unusually, the EC is the enforcement agency for the city's sunshine ordinance. Few cities even have a sunshine ordinance, and it is unusual for the agency that finds violations (the Sunshine Agency Task Force) to be dependent on another non-judicial, non-legislative agency to enforce its decisions when they are ignored by city officials. But this is the way it works in San Francisco.
The grand jury report says that the EC has not actually enforced the task force's decisions. 18 times the task force has asked the EC to enforce, and 18 times it has decided to dismiss the matter either “because facts did not support finding of willful failure to discharge duties imposed by Sunshine Ordinance" or "because facts did not support finding of violation.” In each of the latter cases, the executive director recommended dismissal.
There could be a reasonable argument for each of these dismissals, but there is no reasonable argument for the EC's failure to even include enforcement of sunshine decisions in the list of its duties on its website. It lists 8 duties, but not this one.
And yet, according to the grand jury report, for the period February 2010 through April 2011, 38% of the pending investigations were sunshine referrals (according to the June 13, 2011 executive director's report, the most recent percentage was 35%). If the EC has no duty to deal with this, why does it even bother to give a reason for dismissing the matters?
The EC hasn't taken the grand jury report seriously enough to add its sunshine duties to its list of duties yet.
Update: The ethics commission promised to come back in November for a full hearing on this issue.
Investigation Delays
According to the grand jury report, the city's charter does not prevent EC investigators from pursuing an investigation after a 14-day notification period, even if the district attorney or city attorney is also investigating aspects of the matter. However, in practice, the EC will not begin an investigation until the district attorney and city attorney both have decided not to pursue the matter.
It is common for ECs to turn complaints over to criminal authorities if they believe there are criminal allegations, or to turn complaints over to administrative authorities if allegations are personnel-related or otherwise do not involve violations of the ethics code. But it is not common for ECs, as a matter of policy, to wait for others to clear their cases for an investigation, especially if there are ethics allegations that are not closely related to criminal allegations.
According to the grand jury report, the EC regularly delays its investigations, in one case for nine months, which "provides more than enough time for documents to become lost, employees to change departments, and accounts from interviewees to fade."
It is reasonable to be careful of wasting limited resources or stepping on others' toes. But judgment should be used with respect to which cases might need to be delayed, and which should be pursued.
Complaint Dismissals
Another EC practice that the grand jury criticizes is its complaint dismissal policy. According to the grand jury report, ten days prior to each monthly meeting, the executive director sends EC members a list of complaints he recommends for dismissal. EC members can prevent dismissal only by having a complaint removed from the director's list and placed on the agenda. But it's not enough for one member to do this; two have to request movement of a complaint to the agenda. And they have five days to do it.
The problem is that a member of a five-member commission can only speak to one other member or she has violated the open meeting law. If the member who wants a complaint put on the agenda contacts a member who either wants it dismissed or doesn't care enough or is too busy to read the complaint, the member's attempt has come to an end.
This is not a good way to handle complaint dismissals. As the grand jury says, this essentially gives the executive director control over the agenda. It might seem efficient to trust the staff's judgment, but efficiency is not a highly prized value in government ethics. And making dismissal the default is not a good way to gain the public's trust.
As for setting the agenda in general, it is best to have at least the commission chair be involved in the original setting of the agenda, with any member (after all, there are only four others) able to make additions or changes to the agenda without seeking another member's support.
EC Member Selection
This is the section where I was quoted, so it is no surprise that I agree with the grand jury's view that the selection of EC members by individuals they have jurisdiction over sets up possible conflicts of interest and a negative public perception. The grand jury's solution is to add four EC members who are selected by community organizations. This is a reasonable compromise that doesn't step on the elected officials' toes and, thereby, might have a decent chance of passing.
Update: The committee is open to changing the way ethics commission members are selected.
Fines
I did not, however, agree with the grand jury's recommendation to establish a fixed fine structure or apply the maximum fine, nor do I believe that settlement negotiations should begin only after a public hearing. But I do believe that the EC should be more involved both in determining fines and in the settlement process, at least to the extent of providing oversight and approval.
Whatever the truth of the accusations made against the EC staff, they and the ethics program, including complainants and respondents, are better protected when the staff has less power and when the EC members are more involved in the process. It may not be as efficient, but especially when enforcement consists primarily of dismissals and low fines, it will appear more worthy of the public's trust.
If the public sees efficiency in the service of limited enforcement, it has a good reason to be critical of the ethics process. If efficiency is in the service of strong enforcement, then officials will be the ones complaining about a lack of due process. The fact that officials don't appear to be complaining implies that the EC's efficiency is not a due process problem, but a problem of public perception. And there is nothing worse for an ethics program than for it to lose the public's trust.
Conclusion
There are also complaints about the city's whistleblower protection program, according to an article on the local ABC affiliate's website from May.
The civil grand jury did a report on the EC back in 2005, which indicated that the EC needed more resources to handle its workload. The 2011 report does not suggest resources as a principal problem. You can find the responses to the 2005 report here (pp. 19-21)
An article in Friday's San Francisco Bay Guardian says that the EC's executive director will be responding to the grand jury report. I will share it on this blog when it is made public.
Update: In addition, the ethics commission said it will try to find the place and money to allow it to have its meetings televised.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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