Opinion on the San Francisco Ethics Commission Proposed Amendments to Enforcement Regulations (current through at least October 12, 2025)
The Ethics Commission is in the process of changing its enforcement regulations. Some have merit. Others are questionable or violate the San Francisco administrative code. Many regulations take a narrow reading of existing regulations and administrative code to reduce requirements and actions by the Ethics Commission and its staff. San Francisco is hardly without scandal and transparency problems. The public should know what is happening and make their opinions known. Details below, but just emailing ethics.commission@sfgov.org, saying you are interested and want the Ethics Commission to enforce all its obligations under the San Francisco administrative code including the San Francisco Sunshine Ordinance, may go a long way in what happens.
The Ethics Commission is ignoring its full powers and duties under the San Francisco Sunshine Ordinance. The San Francisco Sunshine Ordinance was passed by the Board of Supervisors in 1993 and amended by the voters by initiative as a declaration of policy in 1999. It is up to the public to defend the strength of the San Francisco Sunshine Ordinance. A main point to understand:
San Francisco City Administrative Code, Section 14.101, INITIATIVES (*part of the city charter*)
The Sunshine Ordinance is a declaration of policy approved by the voters. There is nothing in the Sunshine Ordinance allowing the Ethics Commission “to otherwise provide” to veto, amend, or repeal any part of the Sunshine Ordinance. The Ethics Commission does not have the power to de facto ignore or repeal any policy in the Sunshine Ordinance. The fact that Section 14.101, INITIATIVES, is part of the city charter and strongly and clearly gives power to initiatives or declaration of policies approved by the voters meaning it does not matter where those initiatives or declarations of policies are located in the city’s administrative code; it is as if they are part of the city charter.
In addition to the power of voter initiatives, the city’s Administrative Code, Section 4.102, Boards and Commissions, Power and Duties (8), says commissions are to “Exercise such other powers and duties as shall be prescribed by the Board of Supervisors.” The BOS passed the Sunshine Ordinance. Voters amended it by initiative. Therefore, the Ethics Commission is required to exercise all other powers and duties prescribed in the Sunshine Ordinance, not some.
In the Sunshine Ordinance, there are two enforcement provisions that specifically refer to the Ethics Commission and one enforcement provision that refers to it indirectly. Sunshine Ordinance Section 67.34, Willful Failure Shall Be Official Misconduct, is the only provision of the three that the Ethics Commission plans on enforcing. In reality, behind the scenes, this is the only provision the Ethics Commission pretends to follow. It is hard to say how many complaints get dismissed, since much of the Ethics Commission staff’s work is not done openly. The fact that now they are making changes to their regulations openly at hearings means we can access their arguments and what they leave out.
If city officials, city departments, commissions and boards can just pick which laws or administrative codes they will follow, then the framework of government becomes pointless. The two provisions of the San Francisco Sunshine Ordinance that the Ethics Commission plans on not fulfilling their required duty are Sunshine Ordinance, Section 67.30 (c) and 67.35 (d). In current practice, the Ethics Commission has rejected complaints under these Sunshine Ordinance sections whenever complaints have been sent to them for enforcement.
Sunshine Ordinance, Section 67.35 (d) states “Any person may institute proceedings for enforcement and penalties under this act in any court of competent jurisdiction or before the Ethics Commission if enforcement action is not taken by a City or State official 40 days after a complaint is filed.” 67.35 (d) clearly names the Ethics Commission. “Action not taken” on a complaint and a 40-day deadline establishes “willful”. Establishing “willful” is part of the purpose of Sunshine Ordinance Section 67.35 (d). Furthermore, Sunshine Ordinance Section 67.35 (d) starts with “Any person” which can mean the Sunshine Ordinance Task Force can institute proceedings for enforcement and penalties under this act before the Ethics Commission. “Any Person” is not just reserved for the public.
The Sunshine Ordinance Sec. 67.35 (d) quantitatively defines “willful”. The Ethics Commission's current and proposed Enforcement Regulations do not offer a concrete definition and contain only a subjective, vague definition of what is not “willful”. In the August 4, 2025, Presentation and Discussion Regarding Proposed Amendments to the Ethics Commission’s Enforcement Regulations “This means that the Commission may not initiate enforcement proceedings under the Ordinance against City employees or other individuals outside this group, nor in cases where the alleged violation was merely negligent or unintentional and not willful.” This is a very weak way of writing a regulation by trying to define it by what it is not. Unintentional once may not be willful, but a pattern of unintentional becomes “willful”. Even an unintentional incident can be willful if, once the situation is pointed out, it is not corrected. Negligent can be “willful” or unreasonable if it is part of their duty requirements and they don’t do their job.The Ethics Commission seems to fail to understand or use the definitions of “official misconduct” and “willful” in its administration code. Administrative Code, Article XV, Ethics, Section 15.105 (e) “OFFICIAL MISCONDUCT. Official misconduct means any wrongful behavior by a public officer in relation to the duties of his or her office, willful in its character, including any failure, refusal or neglect of an officer to perform any duty enjoined on him or her by law…” Failure, refusal and neglect to perform any duty by law are there. If a city official neglects or refuses to do a part of their job that they are required by law to do, and it reaches the Sunshine Ordinance Task Force or the Ethics Commission and they continue not to take corrective action if determined they must, it becomes “willful in its character”. This applies to the application of public access laws like the Sunshine Ordinance, which are important laws. There is part of the rub. Does the Ethics Commission think that transparency and the right of the public to know what their government is doing on their behalf, important?
Sunshine Ordinance Section 67.33
If we have all these government employees signing “an annual affidavit or declaration stating under penalty of perjury that they have read the Sunshine Ordinance” and have attended Sunshine Ordinance training at least once a year, is the Sunshine Ordinance unimportant that neglecting it as part of their job reasonable? Are these city employees and the Ethics Commission just going through the motions? Which is unreasonable, that we are holding them responsible for doing a job requirements that they declare under penalty of perjury, or that we are making them do all these actions that we are not serious about? Sunshine Ordinance Section 67.33 draws a direct line from the Sunshine Ordinance and transparency and accountability to ethics and the Ethics Commission. It points to job requirements not only of elected officials and department heads but also of all City management employees and all employees or officials who are required to sign an affidavit of financial interest. All components of transparency and ethics are equally important for us to work towards a scandal-free city.
The section of the Sunshine Ordinance that only refers to the Ethics Commission but clearly allows referrals to them is the Sunshine Ordinance Sec. 67.30 (c) “The Task Force shall make referrals to a municipal office with enforcement power under this ordinance or under the California Public Records Act and the Brown Act whenever it concludes that any person has violated any provisions of this ordinance or the Acts.” This provision requires a Sunshine Ordinance Task Force referral. The provision “to a municipal office with enforcement power” leaves open possible other municipal offices with enforcement power that come into existence in the future and added to the Sunshine Ordinance, like an Inspector General. It also says “under this ordinance”. The only municipal offices named with enforcement power under this ordinance are the Ethics Commission and the Mayor’s office (Sunshine Ordinance, Sec. 67.17). The Ethics Commission wants to ignore the fact that it is named with enforcement power in the ordinance?
The Sunshine Ordinance Task Force is the primary administrative body for public access laws, as stated in the Sunshine Ordinance Sec. 67.30 (c). Since the Task Force has other actions and means to compel compliance with violations, violations would have to get extreme for referral to the Ethics Commission. The Ethics Commission fears it would be overrun with Sunshine Ordinance complaints. This is far from the truth. One provision requires referral by the Sunshine Ordinance Task Force. Another requires 40 days and no action by an official. The only provision that allows for a questionable direct complaint to the Ethics Commission is the one they still plan on enforcing, Sunshine Ordinance Sec. 67.34 “The willful failure of any elected official, department head, or other managerial city employee to discharge any duties imposed by the Sunshine Ordinance, the Brown Act or the Public Records Act shall be deemed official misconduct……shall be handled by the Ethics Commission.”
Both Sec. 67.34 and Sec. 67.35 (d) are extreme willful noncompliance. Government officials actively not being transparent means they are hiding something, which often violates ethics. Transparency, ethics, and accountability run tangentially to each other and often overlap. It is not surprising that the voters of San Francisco voted to require the Ethics Commission to be part of the enforcement to make sure our city government is transparent and follows all public access laws.
The San Francisco Task Force recently submitted a complaint to the Ethics Commission under the Sunshine Ordinance Sec. 67.35 (d) because they sent a complaint with their order of determination against the San Francisco Police Chief. There was no action taken for 40 days. There was an Ethics Commission show cause hearing on June 13, 2025, agenda item 10, File No. 25-998 Matthew Lotocki v. San Francisco Police Department. In a letter, the police chief specifically stated why he was taking no action to comply. This complaint to the Ethics Commission under Sunshine Ordinance 67.35 (d) from the Sunshine Ordinance Task Force is a rare event. Usually, the task force sends the Ethics Commission complaints under Sunshine Ordinance 67.30 (c) “to a municipal office with enforcement power”, but rarely under this provision. Motion 250613.03 (Flórez-Feng/Tsai): Moved, seconded, and approved unanimously (4-0) to table the item with intent to receive more information from the City Attorney’s office, providing a memo to brief the commission staff regarding scope of authority on the matter.
The June 13, 2025, Ethics Commission show cause hearing reveals a few things. From the draft minutes of the hearing: “Director of Enforcement Bisi Matthews presented the Item.” “The Enforcement Division recommends that the Commission take no action regarding this referral. Ms. Matthews stated there is no evidence of a willful violation by an elected official or department head. SOTF has provided no evidence that Chief Scott willfully violated the Sunshine Ordinance. Thus, there is no violation over which the Commission has jurisdiction. Even if such a violation occurred, the Commission is not empowered to impose administrative penalties or compel the Respondent to comply with SOTF’s Order of Determination.” “Director Patrick Ford spoke stating the Commission can hold a hearing to determine if the Sunshine Ordinance was violated, but even if a violation is found, the Commission has no authority to impose remedies or penalties, making the outcome purely advisory. Ms. Matthews suggests discontinuing this process due to its limited utility.” “Vice Chair Salahi questioned whether the commission was interpreting the provision regarding department head responsibility too narrowly, noting that while public records requests are usually delegated, ultimate responsibility still lies with the department head. There was concern that the commission may be construing its authority too restrictively.”
Vice Chair Salahi is very insightful in questioning the narrow reading of provisions and the commission’s authority being construed too restrictively, in the face of the Ethics Commission Enforcement Division position of no willful violation and has no authority to impose remedies or penalties. The Ethics Commission Enforcement Division has little to stand on in administrative code.
The Ethics Commission Enforcement Division suggests that even if a violation is found, no remedies or penalties, making it advisory, and “discontinuing this process due to its limited utility”. In most quasi judiciary or judicial processes, the violation is considered first without regard to the remedy. Remedies or penalties are only considered after a judgement is found.
The Ethics Commission Enforcement Division goes beyond a narrow reading to misreading or intentionally ignoring the wording of the San Francisco Administrative Code, Appendix C: Ethics Provisions, C3.699-13 Investigations and Enforcement Proceedings, (c), Administrative Orders an Penalties., (i) “When the commission determines there is probable cause for believing a provision of this charter or City ordinance has been violated, it may hold a public hearing to determine if such a violation has occurred. When the commission determines on the basis of substantial evidence presented at the hearing that a violation has occurred, it shall issue an order which may require the violator to:” Then it gives a list of remedies from cease and desist to paying a monetary violation.
There are several important things to note. One is that the orders and penalties listed apply to all provisions “of this charter or City ordinance”, which would include the San Francisco Sunshine Ordinance. The Ethics Commission Enforcement Division claims it has limited enforcement penalties under public access laws. This is not true. Another important thing to note under provision C3.699-13 is that once the commission determines a violation occurs, it shall issue an order. The violator can be ordered to (1) “cease and desist the violation” or (2) “File any reports, statements or other documents or information required by law; and/or” penalties. This allows the Ethics Commission to order remedies of correction and not penalties. If a violator fails to comply with the Ethics Commission’s order, that would be willful. Then, monetary penalties or removal from office should be applied.
The San Francisco Administrative Code, Appendix C: Ethics Provisions, C3.699-13 investigative code requires investigations to be confidential. It does not allow the Ethics Commission Enforcement Division to make the final determination of dismissal, which is the practice now, with many complaint dismissals not reaching the commissioners. This especially goes for the Sunshine Ordinance. San Francisco Administrative Code, Section C3.699-13 (a) states “If the commission, upon the sworn complaint or on its own initiative, determines that there is sufficient cause to conduct an investigation” requires the commission to determine sufficient cause and to order an investigation. The Ethics Commission is defined in Administrative Code Section 15.100 as, “The Ethics Commission shall consist of five members who shall serve six-year terms” There is nothing in Administrative Code Section 15.100 definition of the Ethics Commission that includes the executive director or staff. That is described in a separate Section 15.101. Executive Director and Commission Staff. San Francisco Administrative Code, Section C3.699-13 (b) Findings of Probable Cause starts “No finding of probable cause to believe that a provision of this charter or City ordinances relating to campaign finance, lobbying, conflicts of interest or governmental ethics has been violated shall be made by the commission unless” the commission follows a process and “at any proceeding the commission held for the purpose of considering whether probable cause exists for believing the person committed the violation.” Again, it is the commission that determines probable cause or a violation.
Currently, with our Ethics Commission, we have a tail-wagging-the-dog situation, where the Ethics Commission’s executive director and commission staff are going beyond their investigative and administrative duties and making determinations of sufficient cause, whether they will investigate, and determining not “willful” or no probable cause. Nothing in the administrative code allows for this. This also circumvents violations that can be cured with Ethics Commission orders of cease and desist or requiring following the law that are not penalties.
An Ethics Commission's findings of probable cause or a violation does not mean its conclusion is irrelevant. They do not understand Sunshine or public-access law enforcement. The Ethic Commission can find a violation of the Sunshine Ordinance and under the Sunshine Ordinance Section 67.21 (e) “the Sunshine Task Force shall notify the district attorney or the attorney general who may take whatever measures she or he deems necessary to insure compliance with the provisions of this ordinance”. Any person with standing can institute proceedings in court under the Sunshine Ordinance, The Brown Act, and the CPRA. An Ethics Commission findings would further enforcement. California courts require “the exhaustion of administrative remedies doctrine” or “judicial exhaustion” (Cal. Civ. Proc. Code § 1094.5(a)) “Thus, exhaustion requires a full presentation to the administrative agency of all issues later to be litigated and the essential facts on which the issues rest.” (City of San Jose v. Operating Engineers Local Union No. 3 (2010)).
The Ethics Commission Enforcement Division and maybe the Ethics Commission may not like the duties prescribed by the Sunshine Ordinance, but they have no power on their own not to comply with what the voters intended in the Sunshine Ordinance. The Ethics Commission can certainly propose changes they would like the voters to consider, but until changes are made by the voters, they must comply with the San Francisco Sunshine Ordinance.
Public comments can be submitted in writing and will be shared with the Commissioners as part of the official meeting file. ethics.commission@sfgov.org The Ethics Commission seems to have regular meetings scheduled for the second Friday of each month at 10:00 AM. The schedule can be found here: https://sfethics.org/ethics/category/agendas You can participate in their meeting in person, video via Webex application, or by telephone conference.
Ethics Commission Staffs Proposed Amendments to the Enforcement Regulations, Page 45 Enforcement under the Sunshine Ordinance
https://sfethics.org/wp-content/uploads/2025/08/2025.08.08-Agenda-Item-6-Staffs-Proposed-Amendments-to-the-Enforcement-Regulations.pdf
https://sfethics.org/ethics/2025/07/july-11-2025-agenda-item-4-update-to-memo-show-cause-hearing-in-the-matter-of-matthew-lotocki-v-san-francisco-police-department-file-24021.html
https://sfethics.org/wp-content/uploads/2025/07/2025.07.11-Agenda-Item-4-Show-Cause-Hearing-Documents-Case-No.-25-998-File-24021.pdf
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