MESSING ADAM JASMINE Gregg McLean Adam gregg@majlabor.com direct: 415.266.1801 SACRAMENTO SAN FRANCISCO January 30, 2020 VIA E-MAIL AND REGULAR MAIL Matt Haney Supervisor, District 6 City Hall 1 Dr. Carlton B. Goodlett Place. Room 244 San Francisco, CA 94102-4689 Re: Your Intention to Publicly Call for the ?Immediate Firing? of the Director of Public Works Would Violate Charter Section 2.114 Dear Supervisor Haney: We write on behalf of the San Francisco Municipal Executives? Association about the media advisory your office issued on Wednesday, January 29, 2020 about your plan to hold a press conference this morning. (A copy of the media advisory is enclosed.) The media advisory says that, among other planned remarks, you intend to ?call[] for the immediate firing of [San Francisco Department of Public Works] Director [Mohammed] Nuru.? For the reasons explained below, if you do publicly call for Mr. Nuru to be fired, you risk committing official misconduct. The Charter expressly prohibits you from interfering with any appointment, administrative or disciplinary matter involving city employees. As an elected official in our City, you possess wide latitude to comment on issues of the day. And the allegations concerning Mr. Nuru are extremely serious and go to the heart of the City?s role serving the public. You have every right to call for investigations, seek changes in policy and the like. But your right to speak publicly is not unlimited. In fact, it is explicitly constrained by section 2.114 of the City and County of San Francisco Charter, which provides: MESSING ADAM 235 MONTGOMERY ST. 415.266.1800 MAIN MAJLABOR.COM JASMINE LLP SUITE 828 415.266.1128 FAX SAN FRANCISCO, CA 94104 January 30, 2020 Re: Your Intention to Publicly Call for the ?Immediate Firing" of the Director of Public Works Would Violate Charter Section 2.114 Page 2 SEC. 2.114. NON-INTERFERENCE IN ADMINISTRATION. Neither the Board of Supervisors, its committees, nor any of its members, shall have any power or authority, nor shall they dictate, suggest or interfere with respect to any appointment, promotion, compensation, disciplinary action, contract or requisition for purchase or other administrative actions or recommendations of the City Administrator or of department heads under the City Administrator or under the respective boards and commissions. The Board of Supervisors shall deal with administrative matters only in the manner provided by this Charter, and any dictation, suggestion or interference herein prohibited on the part of any Supervisor shall constitute official misconduct; provided, however, that nothing herein contained shall restrict the power of hearing and inquiry as provided in this Charter. Notwithstanding any other provisions of this section, it shall not constitute prohibited interference for a member of the Board of Supervisors to testify regarding administrative matters other than specific contract and personnel decisions at a public meeting of a City board, commission, task force or other appointive body, or for the Board of Supervisors to adopt legislation regarding administrative matters other than specific contract and personnel decisions. Violation of this section shall constitute official misconduct. [Emphasis added] Three relevant rules emerge from Section 2.114: 1. Neither the Board of Supervisors nor any individual supervisor may ?dictate, suggest or interfere with respect to any appointment [or] disciplinary action 2. Whereas a supervisor may ?testify regarding administrative matters,? that safe harbor expressly does not extend to ?personnel decisions.? 3. Any ?suggestion? or ?interference? in personnel decisions by a member of the Board of Supervisors is official misconduct. The Oxford English Dictionary defines ?interfere? as ?take part or intervene in an activity without invitation or necessity" and ?suggest? as ?put fon/vard for consideration.? If you publicly call for Mr. Nuru to be fired, you would plainly ?interfere? in or ?suggest? a course of conduct to Mr. Nuru?s Appointing Authority concerning a personnel decision a clear violation of Charter section 2.114. January 30, 2020 Re: Your Intention to Publicly Call for the ?Immediate Firing? of the Director of Public Works Would Violate Charter Section 2.114 Page 3 This issue should not be taken as emphasized above, Charter section 2.114 proscribes improper ?interference? or ?suggestion? as ?official misconduct." By all means speak broadly to policy issues and call for investigations. But be very aware of the line drawn by the Charter surrounding personnel actions. By calling for Mr. Nuru?s termination, you would interfere with his constitutional liberty interests, potentially make yourself a witness in litigation or other administrative matters, and, as explained above, violate the Charter. And bear in mind that MEA writes not solely on Mr. Nuru?s behalf. Our union represents the majority of department heads in the City, and hundreds of other hard-working managers public servants who implement the policy decisions of you and your colleagues on the Board of Supervisors. Any direct interference by politicians in Mr. Nuru?s personnel matter, or any other employee?s, affronts all City employees because it directly undermines due process rights. Surely, in this day and age, we can all agree that is something that must be protected. Very truly yours, AM JASMINE, LLP McLean Adam GMA:jag Enclosure cc: London N. Breed, Mayor Sean Elsbernd, Chief of Staff Dennis J. Herrera, City Attorney Naomi Kelly, City Administrator Micki Callahan, Human Resources Director San Francisco Board of Supervisors Raquel Silva, Executive Director MEA MEA Board of Directors '7 Board of Supervisors City and many of San Francisco MEDIA Press Cory?erence: Szmervisor Haney Calls for Independent Investigation, Accountability in Department Works Corruption Scaiidal January 29, 2020 Contact: Honey Mahogany, 650-219-7073 WHAT: Press Conference WHERE: City Hall Stops WHEN Thursday, January 30th 10am WHO: District 6 Supervisor Matt Haney The US. Attorney?s office announced Tuesday that San Francisco Public: Works Director Mohammad Nun: has been charged with fraud following a federal investigation regarding suspicions ot?malt?oasance involving corruption, embezzlement of public funds, and lying to the FBI. while under investigation. Supervisor Haney will be calling for the immediate firing of Director Nun]: and an independent investigation of the Department of Public Works} as; woll as other implicated City departments, to determine and. root out potential. corruption within the executive branch.