Inadequate Sunshine investigation may lead AG Brown to appoint a special prosecutor to investigate Mayor Gavin Newsom
By Joe Lynn
May 7, 2009
By the end of an April 24th joint meeting of the Sunshine Ordinance Task Force and the Ethics Commission, much had been done to clear the air between the two bodies and to expose major deficiencies in the way referrals of Sunshine violations are treated by the Ethics Commission.
Why did the air need clearing? What were the deficiencies?
Take the case involving the District Attorney where Ethics Commission Executive Director St. Croix lambasted the Task Force when he dismissed a case brought by Allen Grossman. In a letter circulated around City Hall for over a month, he charged that the Task Force knew or should have known that they subjected the District Attorney’s office to possible security breaches and acted “irresponsibly.”
It turns out that St. Croix never read the Task Force Order which, contrary to Mr. St. Croix’s accusation, specifically honored security privileges that the District Attorney might assert. When he dismissed the case and made these accusations of irresponsibility, he had not reviewed the Task Force deliberations; he had not talked to anyone from the Task Force; he had not talked to the complainant who brought the original charges. He just dismissed the complaint because he believed there was nothing to back up the findings of an eleven-person official body of the City and County of San Francisco.
Bad blood between the Ethics Commission and the Task Force
The problems between the two bodies have festered for years.
- Two years ago, we learned that Mr. St. Croix’s deputy director had initiated a proceeding against the wife of Task Force member Richard Knee so ridiculous that the matter ended with apologies from the Commissioners. Member Knee had voted to hold the deputy director guilty of official misconduct, yet the deputy director (who oversees the enforcement division) did not recuse herself from investigating Mr. Knee’s wife. The Ethics Commission has never held a hearing on this apparent conflict of interest.
- Mr. St. Croix needlessly inserted himself into the hearings on the renomination of Doug Comstock, then Chair of the Task Force. He accused Mr. Comstock of having misled the Rules Committee when Mr. Comstock had got some numbers wrong in a prior hearing. In the course of making the accusation, St. Croix got his numbers wrong. It was St. Croix’s latest play in an ongoing tit-for-tat game with Comstock.
- A public relations campaign during the WiFi debate successfully labeled serious activists as wild men whose Sunshine requests were shutting the City down. While no evidence could be produced to back up those charges, the damage was done primarily to Kimo Crossman. He was one of many computer techies who thought – it turned out correctly – that the Mayor’s WiFi deal with Earthlink was a bad deal for the City. In the climate created by the PR campaign, it became easy to disrespect our Sunshine Advocates and the Task Force. Since then, Crossman has shaken the faulty PR image and emerged as one of the most important Sunshine experts in San Francisco.
- Prior attempts to convene a joint session had been rebuffed. Advocates had for a long time appeared before the Ethics Commission requesting a discussion of Ethics Charter mandates in enforcing Sunshine laws. The meeting was the first time that Ethics had met with the Task Force, and the first time in memory that Ethics had agendized any discussion of substantive Sunshine or process issues in its 15-year history.
With this as background St. Croix’s recent charge of irresponsibility meant that the air finally needed to be cleared.
The dismissal of the District Attorney’s official misconduct charges
The greatest progress in clearing the air occurred during a discussion of the case involving the District Attorney that had so exercised St. Croix.  Grossman, a Harvard Law School graduate and ally of Crossman, had successfully persuaded the Task Force to order the District Attorney to produce a computer-generated log that would provide transparency on the office’s document deletion practices. The order specifically allowed for redactions due to security concerns. The Task Force was not trying to cause a security breach.
In the YouTube clip below, we join Member Craven’s description of Mr. Grossman’s efforts to learn how the DA backs up files. She then reads from St. Croix’s letter accusing the Task Force of having acted irresponsibly and explains that the predicate for his accusation, an order not honoring the DA’s security privileges, had never happened.
It looks like Mr. St. Croix and the Ethics Commission owe the Task Force an apology.
How Ethics investigates a case
Where then did St. Croix get the idea that the order did not take into account the security breach? He must not have reviewed the order. As he explained how staff investigates cases, we learned that not reviewing the record is par for the course at Ethics.
- Ethics staff do not talk to the Task Force as to what supports their findings.
- They do not talk to the Complainant about the case.
- They do not ordinarily review tapes of the hearings although St. Croix believes they did review tapes in two of the fourteen cases.
- The only person whom they’d consult, if needed, would be the bureaucrat whose skin is at stake, or the City Attorney representing the interests of the department. This is like the police only interviewing the suspected criminal rather than the victim.
- They believe they must defer to the City Attorney’s opinions of what Sunshine laws mean even when the City Attorney’s opinion represents a mistake or bad policy. (Discussion of this important issue is beyond the scope of this article and deserves more attention.) Ethics also learned that deputy city attorneys can give different advice. Accepting uncritically the advice of a department’s deputy CA as opposed to the opinion of another, perhaps more knowledgeable deputy CA may not be setting best policy for the City.
- The investigation seems to be limited to a review of the letter informing the Commission of the referral and SOTF minutes which even Mr. St. Croix admits are not “substantial.” Staff “may” request additional documentation but apparently not in the District Attorney’s case.
In this next clip, Mr St. Croix explains how Ethics sleuths a case. In deference to St. Croix, I include all 2 ½ minutes here.
After an interruption from the audience, Task Force Chair Kristin Chu asked about the Commission practice not to interview complainants. Task Force Member Susan Cauthen follows up with questions about the practice of not interviewing Task Force Members.
This goes far to explain why St. Croix had misunderstood the District Attorney case when he dismissed it and charged the Task Force with acting irresponsibly. Only consulting respondents in such an unprepared manner will not yield good interviews. Such a professional practice works to uncover willful violations only if the respondent decides to confess. We now understand why the Ethics Commission has dismissed each of the Task Force’s 14 referrals.
Ethics Commissioner Charles Ward asked the question on everyone’s mind. Why not interview the complainant?
(As a parenthetical comment, the information communicated by this video cannot be communicated in a transcript. St. Croix has resisted electronic video or audio recording of Ethics Commission meeting despite pressure from the Board of Supervisors. The value of watching St. Croix’s body language proves the wisdom of the Board’s direction.)
The excuses that St. Croix does point to don’t parse:
- He says the cases are simple. Cases are simple when you’ve done nothing to investigate them. This has to be chalked up to his lack of familiarity with the record of the case and his lack of regard for the Task Force.
- He says there is not a lot of “exculpatory” information to be gotten from talking to the Complainant. Shouldn’t he be focusing on the inculpatory information first? If he needs exculpatory information, he can always go to the respondent.
- He posits it is the respondent’s responsibility to prove whether there is an infraction or not. This shift of the burden of proof has the perverse consequence of letting the respondent determine the issue since no one else gets to present a case.
The most remarkable part of St. Croix’s response is that he does not raise the old canard of funding problems as a justification for his procedures. Nor should he. Years ago, the Ethics Commission barely had 1.0 FTE (full-time equivalent) investigators for a caseload of about 30 investigations. Now 5.0 FTE enforcement staff handle a case load of only 20 cases, up from the previous month’s 17. While Ethics Commissioner Eileen Hansen later warned about the effect of any future budget cuts, funding was not the problem with these dismissals.
Finally, Sunshine Task Force member Erica Craven-Green engaged him on the importance of interviewing both sides on a complaint.
So what harm has been done?
Mr. Jeff Ente gave us the answer in discussing the Ethics Commission’s dismissal of a case against former Supervisor Aaron Peskin. Ente had watched Peskin claim that he had received many positive emails supporting his position on banning the feeding of the wild parakeets of Telegraph Hill. So Ente, who opposed Peskin and saw his claim, didn’t believe it and filed Sunshine requests for the emails. Peskin couldn’t produce the emails, claiming that he had deleted them and did not meet with the Task Force to explain what efforts if any he had made to retrieve the deletions. The Task Force claimed he was obliged under the law to cooperate with them. They, therefore, found him guilty of official misconduct for not retrieving any deleted emails, and for failing to cooperate with the Task Force.
St. Croix noted that there were two cases in which staff had reviewed the underlying tapes, and Ente’s was one of them. Ente had appeared at an Ethics Commission meeting and complained that he had not been contacted. In effect, he managed to embarrass an investigation out of the Commission. Nevertheless, Ethics staff was not able to comprehend the issues involved. As has been the practice in every case involving a sitting elected official, Ethics would not find a violation without the consent of the official.
While Peskin may have a good defense, neither he nor the Ethics Commission have shed any light on the issue to Ente. Whether or not there is a defense to the charges of official misconduct, the focus of the meeting was on how Ethics had dropped the ball.
Ethics dismissed the charge without addressing the level of cooperation required by the law. Mr. Ente tells the story best:
We can all smile at the personalities and foibles involved here, but this escapade erodes public confidence in our institutions, and we have the Ethics Commission not to erode public confidence – but to restore it.
The Unethical Ethics Commission
Mr. Ente is not alone in suspecting the Ethics Commission of being unethical. His fears that Ethics handles campaign finance cases the same way is grounded in reality.  It has even led to that rare convergence between both the Bay Guardian and the SFWeekly (in their unlinked front page of the March 24, 2009, issue) in calling the Commission the “Unethical Ethics Commission.
In 15 years, there has not been a single fine imposed to which the respondent objected. There have been only three accusations, and in two of them, all charges were dismissed because they were not pled properly. In the third, major charges were dismissed for the same reason. When evidence of possible crimes have been uncovered, St. Croix has failed to forward the information to the appropriate authorities. In fact, here are a few articles to review noting Ethics’ past failure at enforcement. St. Croix even goes so far as to hold that he does not have to enforce some laws if they prove difficult to administer.
Where are the Ethics Commissioners and the Board of Supervisors?
It is high time for the Board of Supervisors to hold hearings. On April 20, San Francisco for Democracy, a local political club which involves itself in good government policy, called for such a hearing. In their letter to Supervisors David Chiu, Ross Mirkarimi and Chris Daly, they wrote:
On April 20, 2009 former San Francisco Commissioner Joe Lynn presented a proposal for reform of the San Francisco’s Ethics Commission. His presentation was backed up with numerous news accounts of recent high profile cases that have come before the Commission and its staff.
On April 20, 2009, San Francisco for Democracy passed the following motion:
“The San Francisco Ethics Commission may be inadequately fulfilling its mission of enforcing ethics laws, especially for higher profile cases, and therefore we call upon the San Francisco Board of Supervisors to hold a hearing regarding this matter.”
After a similar presentation to the Harvey Milk club, they postponed action on a similar motion until a future meeting.
I have called for the Board of Supervisors to suspend funding the enforcement division of the Ethics Commission until the Commissioners can address this problem and square it away. Right now, we are throwing $550,000 a year into Ethics enforcement, and it’s not worth it.
Some hope finally surfaced at the joint meeting that the Ethics Commissioners had finally heard what the community has complained of for so long. Commissioner Eileen Hansen best summarized the lessons from the meeting.
Ethics staff can start its reform by attending future Task Force meetings in person. It may be their most convenient way of interviewing witnesses. It will also be their best education on the law and facts in cases that might be referred to them. In addition, they might spot the Task Force dismissing a case that merits further investigation.
Ethics needs to hold hearings on the skill sets needed to enforce good government laws. They also need to address any lapses in their oversight of Commission investigations. They need to consider apologizing to the Task Force for the accusation of irresponsibility. Above all, they must recognized that these continued scandals have damaged their interests gravely.
Next steps
- Spoon feeding Ethics Staff. What lessons are there for Sunshine advocates? Spoon feeding Ethics staff emerges as the best strategy.  Do not assume Ethics staff is competent. Make waves to get heard. Mr. Ente never heard from Ethics staff on his complaint until he attended an Ethics Commission meeting and made waves. Two current complainants, Eric Brooks and Josh Arce, attended the meeting and presented a serious case of possible official misconduct by SFPUC employees. Fortunately for them, Mr. Arce (an excellent attorney judging by his presentation at the meeting) has already done the professional investigation and summary for the Ethics investigators. By filing their complaint directly with Ethics in addition to filing with the Task Force, they also got interviewed by Ethics staff. Retaining an attorney of Mr. Arce’s talent is an expensive proposition for members of the public, however. In theory, the Ethics Commission should be playing that role for the public, but advocates should understand that an attorney’s assistance may be needed to supplement the skill set of Ethics staff.
- The Attorney General needs to appoint a special prosecutor to investigate the Mayor and all the other respondents in the cases dismissed by Ethics. One of the dismissals involved the Mayor Gavin Newsom. The Attorney General had declined to investigate the case with the comment that the local procedure should be used. What happens when the local procedures are broken? The Attorney General needs to reconsider whether his office should investigate the referrals from the Task Force which Ethics botched. The City Attorney and District Attorney are conflicted out of some of the referrals. Since some of the cases concern Newsom, there would be a conflict involved in Attorney General Jerry Brown’s handling of the investigation against a potential gubernatorial opponent. Therefore, Brown should appoint a special prosecutor. Otherwise, laws striking at the heart of public integrity will go unenforced.
- The Board of Supervisors needs to hold hearings immediately. Corrections for Ethics might be handled in the budget process. The Board should start by transferring some of Ethics’ $550,000 enforcement budget to fund a special investigator/prosecutor for the Task Force who can present their referrals directly to the Ethics Commissioners without the intervention of Ethics staff. The Board should give the Ethics Commission a specific time limit to address its enforcement problems and suspend funding the $550,000 enforcement department should the Commission not be able to meet the deadline.
The Task Force’s participation in the meeting was through its Compliance and Amendments Committee, chaired by Richard Knee whose deft chairmanship of the historic meeting greatly enhanced the stature of the Task Force to those whose only knowledge of the Task Force has been through previous media distortions. Any image of crazy folks evaporated as a very professional Craven led the discussion. Task Force Chair Chu and Member Cauthen joined in with sensible, nonthreatening questions.
The meeting ended with Ethics Chair Jamienne Studley — who deserves credit for agreeing to this meeting — noting that there was work to do. With good will on all sides, the meeting ended, and the air had been cleared.
The Ethics Commission meets next Monday, May 11, at Room 408 in City Hall. The Commission has always welcomed public comment on issues within its jurisdiction.
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