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Record of Proceedings

Oakland Public Ethics Commission Special Meeting - September 17, 2021: Penalty Determination for Thomas Espinosa

Public Ethics Commission — Friday, September 17, 2021

BodyOakland, California

SessionPublic Ethics Commission

DateFriday, September 17, 2021

StatusFILED

Video Record

0:00 / 4:48:52

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1:59

Good evening.

2:01

Welcome to the special meeting of the Oakland Public Ethics Meeting tonight, Friday, September 17th.

2:08

My name is Michael McDonald.

2:10

I am the chair.

2:11

Welcome to all those in attendance.

2:14

We're gonna go ahead and get started here as we've got a pretty busy meeting tonight.

2:21

We've got uh five commissioners here, so we do have a quorum of the body.

2:26

And I will go ahead and start with the roll call.

2:29

I am um present commissioner Tooman.

2:35

Here commissioner Purte.

2:40

Commissioner Mitchick.

2:42

Here.

2:44

Commissioner Levin Levitt, excuse me, is going to be absent tonight, and I'll touch on that in just a minute.

2:51

Commissioner Klein is also going to be absent this evening.

2:56

Vice Chair Ian.

2:58

Here.

2:59

And I too am present.

3:01

So we do have five commissioners present.

3:04

Staff with us tonight.

3:05

We have Deputy City Attorney Shafi.

3:11

President, good evening, everyone.

3:13

Good evening.

3:14

We have Simon Russell.

3:18

Thank you, Simon.

3:19

Anna Laura Franco.

3:24

Chief Johnson.

3:28

Suzanne Doran.

3:31

Present.

3:32

And Director Barrizzoto.

3:37

All right.

3:37

Good evening, everyone.

3:39

So we will go on then to number two.

3:43

Staff and commission announcements.

3:45

I would like to announce the appointment of Commissioner Jessica Levitt, who unfortunately is not able to be with us this evening.

3:53

But Commissioner Levitt was appointed by the city attorney's office to fill the seat that was vacated by our former Vice Chair, Commissioner Butler.

4:02

Jessica's term runs from uh she'll be filling the remainder of a three-year term, which began on January 22nd, and her term will be going through January 21st of 2024.

4:16

So we look forward to having Jessica at our next meeting and having her join the commission and just in general, being at seven commissioners.

4:31

So it'll be nice to be fully back up to speed here with a full commission.

4:36

So welcome, Commissioner Levitt, and we look forward to uh having her in attendance at our next meeting.

4:42

Are there any other staff or commission announcements at this time?

4:47

No staff announcements.

4:51

All right, so we'll go ahead and proceed then to open forum.

5:00

And open forum is a time for a member of the public to comment on any matter that's within the jurisdiction of the PEC that is not included on our agenda this evening.

5:06

Under the Sunshine Ordinance, the commission cannot discuss the substance of any public comment made that does not pertain to our one action item that's listed on the agenda tonight.

5:18

Is there any public comment on non-agenda matters at this time?

5:23

If you're on Zoom, you can use the raise hand function or calling in press star nine.

5:31

All right, seeing none, then we will go ahead and proceed tonight to our action item.

5:39

What I'd like to do first, uh action item number four in the matter of Thomas Espinosa, case number 16-24.

5:48

Uh, just procedurally, how we'll handle this item tonight is we're gonna hear from staff, and staff will provide us an update in regards to the updated materials, and then we'll uh have an opportunity to see if the respondent is in attendance this evening, and we'll bring it back to the KISH commission for further questions uh and deliberations.

6:13

So at this time, I'd like to go ahead and turn it over to staff.

6:17

Director Barrizzoto.

6:20

Thank you, Chair McDonald.

6:22

Uh so this is a continuance of our commission's discussion from its June 30th PEC meeting, and you'll see in the agenda packet we included documents from that meeting as well as from the June 7th meeting.

6:37

So I I thought I would just take a minute to walk through my memorandum in tonight's agenda packet so that we're all on the same page about kind of what was discussed and what staff has presented this evening in response.

6:52

Um, so again, uh this item occurred at the June 30th meeting, and at that time the commission was discussing uh was prepared to discuss penalty options.

7:04

The respondent called into the meeting to make statements about his health and to contest the commission's case against him in that manner.

7:12

Uh so at that point, commissioners had a discussion and had a number of questions.

7:17

Staff came back with some more information to provide some context.

7:23

And that includes a supplemental report from hearing officer Smith, as well as a memorandum by the city attorney providing a legal analysis uh for some of those questions that arose.

7:34

So first, I just wanted to walk through briefly our commission's complaint procedures.

Discussion Breakdown — Share of Meeting

Pending Litigation█████████████████████████25%

Public Ethics████████████████16%

Procedural███████████████15%

Enforcement Program Report███████████████15%

Ethics and Campaign Finance██████████████14%

Administrative Hearing Training████████8%

Contracting And Procurement████4%

Mental Health Awareness█1%

Public Comment█1%

Summary of Proceedings

Oakland Public Ethics Commission Special Meeting - September 17, 2021

The Oakland Public Ethics Commission (PEC) held a special meeting on Friday, September 17, 2021, to determine penalties for Thomas Espinosa, a former city building inspector, following administrative hearings on 47 counts of violating the Oakland Government Ethics Act. The commission heard staff updates, discussed due process, and deliberated penalty amounts for each count. After extensive debate, the commission voted on each count individually, imposing fines totaling $311,100.

Discussion Items

Staff Presentation: Director Barrizzoto reviewed the procedural history of the case, noting that staff had provided extensive notice and opportunities for the respondent to participate. A supplemental report from the hearing officer and a legal memo from the Deputy City Attorney were provided to address commission questions about mental capacity and due process.
Respondent’s Claims: The respondent, Thomas Espinosa, did not attend the meeting. At the previous meeting (June 30, 2021), he had claimed health issues, including memory impairment and dementia. The commission discussed whether these claims were substantiated and considered them as a potential mitigating factor for penalties. The commission ultimately concluded that the respondent had not met his burden of proof regarding diminished capacity.
Penalty Deliberations: The commission grouped violations by type (bribery, conflict of interest, economic interest disclosure, misuse of city authority, and misuse of public resources) and debated penalty amounts for each count. Key points of contention included:
- The treatment of a $100,000 payment from Elizabeth Williams to Espinosa, which was classified as income by the hearing officer. The commission debated whether to tie this amount to specific official acts or treat it as a loan. After discussion, the commission agreed to attribute the most recent payment of $6,000 to the violation and imposed a fine of $18,000 (three times the amount) for that count (Count 3) and another $18,000 for a related count (Count 7).
- For bribery and misuse of authority counts involving coercion and extortion, the commission supported maximum penalties, including treble damages where applicable.
- The commission voted to adopt the hearing officer’s findings of fact but changed conclusions for counts 30-33 (conflict of interest involving Vivian Tang) to find violations, with penalties of $7,500 each.
Voting Procedure: The commission voted on each of the 47 counts individually, with motions made by Commissioner Pertit and seconded by Commissioner Tooman. All votes were unanimous (5-0) with two commissioners absent.

Key Outcomes

Adoption of Findings of Fact: The commission unanimously adopted the hearing officer’s findings of fact.
Modified Conclusions: The commission found that the respondent violated the conflict of interest provisions for counts 30, 31, 32, and 33, reversing the hearing officer’s conclusion.
Penalties Imposed:
- Counts 1-2, 4-6, 8-27, 29, 38-47: $5,000 each (total $225,000).
- Counts 3, 7: $18,000 each (total $36,000).
- Count 28: $29,100 (three times the $9,700 unlawful amount).
- Counts 30-33: $7,500 each (total $30,000).
- Counts 34-37: $8,625 each (total $34,500).
- Total Penalty: $311,100.
Next Steps: Staff will prepare a final penalty order and pursue collection, including potential litigation if necessary.

Meeting Transcript

Good evening. Welcome to the special meeting of the Oakland Public Ethics Meeting tonight, Friday, September 17th. My name is Michael McDonald. I am the chair. Welcome to all those in attendance. We're gonna go ahead and get started here as we've got a pretty busy meeting tonight. We've got uh five commissioners here, so we do have a quorum of the body. And I will go ahead and start with the roll call. I am um present commissioner Tooman. Here commissioner Purte. Commissioner Mitchick. Here. Commissioner Levin Levitt, excuse me, is going to be absent tonight, and I'll touch on that in just a minute. Commissioner Klein is also going to be absent this evening. Vice Chair Ian. Here. And I too am present. So we do have five commissioners present. Staff with us tonight. We have Deputy City Attorney Shafi. President, good evening, everyone. Good evening. We have Simon Russell. Thank you, Simon. Anna Laura Franco. Chief Johnson. Suzanne Doran. Present. And Director Barrizzoto. All right. Good evening, everyone. So we will go on then to number two. Staff and commission announcements. I would like to announce the appointment of Commissioner Jessica Levitt, who unfortunately is not able to be with us this evening. But Commissioner Levitt was appointed by the city attorney's office to fill the seat that was vacated by our former Vice Chair, Commissioner Butler. Jessica's term runs from uh she'll be filling the remainder of a three-year term, which began on January 22nd, and her term will be going through January 21st of 2024. So we look forward to having Jessica at our next meeting and having her join the commission and just in general, being at seven commissioners. So it'll be nice to be fully back up to speed here with a full commission. So welcome, Commissioner Levitt, and we look forward to uh having her in attendance at our next meeting. Are there any other staff or commission announcements at this time? No staff announcements. All right, so we'll go ahead and proceed then to open forum. And open forum is a time for a member of the public to comment on any matter that's within the jurisdiction of the PEC that is not included on our agenda this evening. Under the Sunshine Ordinance, the commission cannot discuss the substance of any public comment made that does not pertain to our one action item that's listed on the agenda tonight. Is there any public comment on non-agenda matters at this time? If you're on Zoom, you can use the raise hand function or calling in press star nine. All right, seeing none, then we will go ahead and proceed tonight to our action item. What I'd like to do first, uh action item number four in the matter of Thomas Espinosa, case number 16-24. Uh, just procedurally, how we'll handle this item tonight is we're gonna hear from staff, and staff will provide us an update in regards to the updated materials, and then we'll uh have an opportunity to see if the respondent is in attendance this evening, and we'll bring it back to the KISH commission for further questions uh and deliberations. So at this time, I'd like to go ahead and turn it over to staff.

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