Proposition E - Ethics Reform

What it does

This Charter amendment would create new and amended ethics laws governing the conduct of City officials and employees. In general, it attempts to tighten up regulations in the areas of financial interest, campaign contributions, conflicts of interest, contracting with the City, and lobbying.

Why it is on the ballot

The Ethics Commission was established by a 1993 vote of the people to amend the Charter. SPUR opposed 1993’s Prop. K because we believed the powers it granted were overly broad and somewhat unusual. The commission was further modified in 2001 by Prop. E, the broad-ranging “Ethics, Elections, and Outside Counsel” measure which replaced the then-existing Ethics Commission with a new one consisting of five term members, appointed one-each by the District Attorney, the Assessor, the City Attorney, the Board of Supervisors, and the Mayor. SPUR also opposed 2001’s Prop. E as a proposal which encompassed too many issues and was motivated by the all-too-common desire to “get back” at the Brown administration.

The Ethics Commission has five principal duties:

• filing and auditing of campaign finance disclosure statements
• registering and regulating lobbyists
• receiving statements of economic interest by City appointees and elected officials
• administering the whistleblower program
• providing advice on ethical matters

In recent years, there have been a number of claimed conflicts of interest by City elected and appointed officials and employees. Furthermore, the current ethics laws can be difficult to understand, confusing, and do not cover every eventuality. In crafting Prop. E, the Commission studied a number of changes, held 11 public meetings, and consulted City employee representatives and members of the Board of Supervisors.

Prop. E is a lengthy recitation of legal provisions that attempt to address a number of problems that have occurred or been perceived to have occurred in recent years. It was placed on the ballot by the Board of Supervisors at the request of the Ethics Commission.

Pros

Proponents state:

• The City’s ethics laws are presently found in a number of sections of the Charter and will become more accessible and understandable if they are consolidated, as this measure would do
• Various provisions of the ethics laws are unclear, too restrictive, or too lenient. Some conflicts of interest by City officials and employees have not been dealt with. Equity and effectiveness require that these matters be cleared up—which can only be done by Charter amendment by the voters
• Prop. E is a consensus of members of the public, affected City officials, and employees.
• It is an excellent idea to make Prop. E amendable without going back to the ballot, if mistakes or unworkable provisions emerge. (If every ballot measure included this provision, the city would be a lot better off!)
  Opponents state:

Cons

Opponents state:

• This measure covers so much specific conduct that its consequences cannot be understood by the voting public
• The yet-to-be-created lists of “incompatible activities” for City officers and employees has the potential to raise serious free speech and association issues
• The City’s existing ethics laws already contain too many provisions that discourage knowledgeable and expert citizens from participating in City government. The addition of more such restrictions under this measure will further discourage such citizen participation. For instance, the measure prohibits anyone from soliciting or giving any money or other consideration for that person’s or another person’s nomination to a commission or a job. Such vague provision could be interpreted to preclude appointment to commissions or employment by the City of anyone who has ever donated to the appointing official’s campaign
• The measure would extend the existing two-year post-employment ban on appearing before City entities and employees concerning matters in which the former employee substantially participated to a lifetime ban. This could both discourage qualified citizen participation in employment and commission work, and prevent later beneficial governmental participation by those with the most knowledge on pertinent topics
• The lifetime ban provisions will make it hard to recruit qualified department heads. Before accepting a job as department head, the candidate would have to consider the likelihood that, once returned to a private firm in the same field, he or she would never again be able to do business with the City

SPUR's analysis

As things stand today, the Charter already prohibits City employees from making decisions in which they have a financial interest, contracting with the City in addition to their jobs, disclosing confidential City information, and lobbying other City officers. In addition, the Charter already regulates gifts and campaign contributions and prohibits City employees from engaging in outside activities that are “incompatible” with their work. In short, all the usual ethics subjects are already covered.

Prop. E reorganizes and consolidates the City’s ethics laws, while adding many more pages of new law. Among the new provisions, Prop. E:

• Amends the definition of City Officer to include unpaid appointed citizen commissioners
• Changes, from two years to lifetime, the ban on former employees, officials, and commissioners appearing before one’s department or commission on a matter in which one had “substantial” participation. The Ethics Commission can waive this for professional, trade, business, union, or association representatives
• Prohibits a former employee or officer from receiving compensation from any person or entity that entered into a contract with the City within the prior 12 months where the employee or officer had a substantial participation in the award of the contract. The same waiver above applies
• Specifically defines a number of obvious activities as conflicts of interest (accepting or soliciting money for appointments, discussing future employment with an entity you are making a contracting decision about, and so on)
• Requires City officers and employees to disclose the existence of personal, professional, and business relationships with people who would be affected by decisions they intend to make
• Restricts gifts to $100 per year from subordinates and from persons who deal with the department of the officer or employee receiving the gift
• Prohibits City officers and employees from making employment decisions regarding family members
• Requires each City department to develop a list of outside activities that are “incompatible” with service or employment by that department. Since the lists have not been made, it’s unknown which activities would be deemed incompatible. Conceivably, they would include such things as forbidding a building inspector from inspecting a building in which he or she has a financial interest
• Prohibits dual office-holding for paying jobs
• Prohibits City commissioners from contracting for more than $10,000 with any City agency (not limited to the agency one is a commissioner on) during his or her term of office
• Requires removal of any City employee convicted of a felony involving violence or fraud; and bars any person removed from federal, state, county, or city office for this reason from employment by the City for 10 years

All of the City’s current ethics laws are contained in the Charter, so the only way to change them is by a public vote to amend the Charter. To address this slow and expensive process, Prop. E innovatively (and responsibly) allows the new ethics laws to be amended by a two-thirds vote of the Board of Supervisors with the concurrence of four-fifths of the Ethics Commission.

It is well known that there are serious ethical problems in San Francisco city government and that the Ethics Commission works hard on being an effective watchdog. It is also true that existing laws and regulations are often incomplete, confusing, and difficult to interpret.

On the other hand, it is impossible to legislate against every ethical lapse. Individuals and the Ethics Commission will always have to make judgment calls. Many of the fine points of ethics simply cannot be legislated and instead rely on the appointment of ethical people. San Francisco’s interpretation of conflict of interest already disallows or discourages participation by knowledgeable individuals and runs the risk of having only the unknowledgeable participate.

The intent is fine, but this measure takes a clumsy, unsophisticated approach to conflicts of interest that will actually make it harder to get knowledgeable, qualified people into government.

SPUR recommends a "No" vote on Proposition E.