The Ethics Commission voted 2-2 on commissioner Quentin Kopp’s motion to use outside legal counsel. A majority of the five member commission was required for its approval. (Sarahbeth Maney/Special to S.F. Examiner)

SF’s political oversight body sticks with City Attorney’s Office for legal counsel despite conflict concerns

For San Francisco’s political watchdog agency to have a tougher bite, it may require no longer taking legal advice from the City Attorney’s Office.

Ethics Commissioner Quentin Kopp thinks so.

Kopp, also a retired judge and former state senator, suggested hiring independent legal counsel after he disagreed with the legal advice he received in April about voting on a non-agendized item.

The commission had voted to send a letter to Planning Commissioner Christine Johnson asking her to recuse herself from an significant vote on how much affordable housing developers must build as part of their market-rate projects.

At the time, Deputy City Attorney Andrew Shen advised against the action as a violation of the Brown Act’s open meeting laws. Three days later another deputy city attorney advised Johnson she didn’t have to recuse herself — even though she was recently hired as a director of SPUR, a pro-development think-tank.

A pending ethics complaint against the Ethics Commission for an alleged Brown Act violation remains under investigation by the District Attorney’s Office.

SEE RELATED: Planning commissioner’s dual roles spur questions of conflict

It may boil down to a procedural mixup, and a civil cease and desist warning to not do it again, in contrast to a more serious criminal offense of a willful intent to conceal business from the public.

But the disagreement raised an important question of whether the Ethics Commission’s use of the City Attorney’s Office for legal advice posed a conflict of interest or the appearance of one.

And that question was debated Monday by the Ethics Commission.

SEE RELATED: Ethics Commission defends ethics gaffe — but they blew it

Kopp asked the commission to support retaining its own legal counsel independent of the City Attorney’s Office based on a practice in San Diego, which would require a change to The City’s charter.

“The people of San Francisco in my estimation expect [the Ethics Commission] to be distinctly independent in all of its pursuits,” Kopp said. He added, “You can put me down as a sceptic about the efficacy of so-called walls with respect to a law office composed of attorneys.”

The City Attorney’s Office provides legal advice to all city departments and officials. The office could be in a position of providing legal advice to the Ethics Commission’s enforcement investigators and at the same time to the department or official being investigated.

SEE RELATED: SF Ethics Commission calls out planning commissioner ahead of inclusionary housing vote

The debate was the subject of two lengthy memos, one from Ethics Commission staff, and another from Shen, who has served as the commission’s legal advisor for the past nine years.

Shen said on the “rare” occasion that he has provided legal advice to a city official who later becomes subject of a complaint, he no longer advises the commission or its investigators in that matter.

Ethics Commission Chair Peter Keane said he has thought about the appearance of conflict of the City Attorney’s Office having to serve “two masters,” and said outside counsel would “remove the cloud of this question.”

Shen countered, “It’s a cloud of your own creation.” He said that “the City Attorney’s Office does not believe it has any ‘structural conflict of interest.’”

Ethics Commissioner Paul Renne said the effort was misplaced and cautioned about the added costs. “It just seems to me we may be wasting political capital on this issue, which can come back to haunt us,” Renne said. He also said that it’s never posed a problem for the commission since its creation in 1993 and only became one when Kopp disagreed with the legal advice.

In his memo, Shen argues that a commission’s own outside counsel may only give advice to support the commission’s own leanings to keep their job. He also emphasized in the memo that consistent legal advice from one voice at City Hall “avoids the uncertainty and gridlock, as well as tremendous taxpayer expense” if there were divergent legal opinions on The City’s own legal rights.

The commission voted 2-2 on Kopp’s motion to use outside counsel; commissioners Daina Chiu and Renne opposed it and Kopp and Keane supported it. It would take a majority of the five member commission to approve it. The five members of the commission are each appointed by the Board of Supervisors, assessor-recorder, district attorney, city attorney and the mayor.

Keane emphasized after the vote how significant it was for the mayor to appoint the fifth commissioner to help decide such critical issues.

The mayor’s appointed seat has been vacant since Beverly Hayon stepped down on March 22 citing “superseding family commitments” that would take her “out of the country for several months.” Mayor Ed Lee has yet to appoint her replacement.

Keane said he would write a letter to the mayor asking him to appoint someone expeditiously. “There is no reason for him to be sitting on his hands and not appointing that person,” Keane said.

The Mayor’s Office is not committing to a date for filling the empty seat, which has remained vacant for about three months. “The search to fill the Ethics Commission seat is ongoing,” Lee’s spokesperson Ellen Canale said in an email. “The mayor wants to ensure that the candidate with the right qualifications is appointed to serve The City and public on this critical oversight body.”

Since January 2016, there were two other vacancies on the commission. One was filled by the assessor in about two and a half months and the other by the board in about three and a half months. Politics

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