San Francisco’s Ethics Commission has opened a formal probe of former Supervisor Jane Kim in connection with her efforts to garner opposition to a proposed SoMa apartment building, according to a commission letter obtained by The San Francisco Standard.
The inquiry follows a complaint that Kim had not registered as a lobbyist, despite having been paid as a political organizer by the same person leading the campaign to block the proposed 495-unit complex: John Elberling, president of Tenants and Owners Development Corp. (TODCO), the owner of several low-income apartment buildings in the neighborhood.
Kim told The Standard that her work in opposition to the project was done on her own time rather than as part of her work for TODCO, and therefore the law did not require her to register as a lobbyist.
The investigation is the latest volley in a war over the proposed apartment building on the site of a Nordstrom’s parking lot at 469 Stevenson St., just south of Market Street. The Planning Commission approved the project last year.
But the Board of Supervisors in October put the development on hold after a fierce lobbying campaign by Elberling and other opponents. The vote enraged pro-housing advocates, who said the city was violating state law and blocking needed construction.
Kim, who represented the district that includes Stevenson Street on the Board of Supervisors from 2011 to 2019, acknowledged to The Standard that she called Elberling approximately 10 to 15 times to discuss efforts to halt the apartment project.
Records show she also sent materials to members of the Board of Supervisors that were prepared by a TODCO affiliate and which argued that the project needed to be stopped. Records also show conference call invites and calendar items following the vote in which Kim and Elberling were scheduled to discuss housing issues with members of the Board of Supervisors.
Kim has been paid as an organizer by TODCO, and served in roles such as spokesperson, consultant and senior advisor for Build Affordable Faster CA, a political campaign fund supported by TODCO contributions.
Kim told The Standard that her work opposing the Stevenson project was on her own time and separate from her paid political work for TODCO. Had she been paid for the work, city and state laws require that she submit descriptions of her clients and activities to a public register.
City ethics regulations also bar ex-officials from lobbying on issues they handled while in office. Kim said she had been “concerned” about the Stevenson Street project when she was serving on the Board of Supervisors.
Elberling said in an email that the TODCO affiliate paying Kim is managed separately from the one working to stop the apartment building. He also said that promotional materials, in which Kim is described as an official in TODCO’s political operation, are outdated.
Kim added that she took care in preparing invoices so that they showed her work to defeat the proposal was separate from her other political organizing work for Elberling.
“For my own future interests, it doesn’t help me to get paid for taking positions. That’s very important for my future,” she said.
Kim has characterized herself as a progressive, backing measures such as one that would have increased hurdles for housing construction whenever the proportion of subsidized units became less than 30% of the total. She’s a member of San Francisco's Democratic County Central Committee and executive director of the California Working Families Party.
The initial ethics complaint against Kim was filed by Steven Buss, a board member of Yimby Law, a pro-housing nonprofit that has sued to resurrect the Stevenson Street housing proposal.
“I think it’s a clear pipeline from public power to improper use of knowledge and influence that violates the law to lobby against the project,” he said.
Kim said that she was acting as a private citizen exercising her First Amendment rights to free speech. She suggested it is racist to claim she was lobbying under the direction of Elberling.
“I’m offended that, as an Asian American woman, an older white man can tell her how to think,” Kim said.
The Ethics Commission declined to comment on any of its investigations.
TODCO, originally a developer of city-financed nonprofit housing, now sits at the center of a web of limited liability companies, limited partnerships, public benefit charities and political nonprofits. Elberling has established himself as a power broker in the SoMa neighborhood, in part, by financing political campaigns.
City planners have long viewed this former industrial area as one of the most feasible sites for new construction, given its proximity to downtown high-rises. But those plans have been slowed by neighborhood opposition.
Economists such as Paul Krugman attribute San Francisco’s high housing prices, which reached a median of $1.3 million per unit in February, to successful anti-development activism by neighborhood groups. “TODCO Impact Group,” which shares an office address with Elberling, is among hundreds of neighborhood group contacts registered with San Francisco’s Planning Department.
Experts in lobbying disclosure laws say the structure of TODCO’s operations can make it hard to differentiate between Kim’s paid political work and the work she said she did for free.
“If you’re working for a company, and getting paid by a company, and lobbying on an issue that the company wants, and there’s an issue where you’re being paid, there is a nexus,” said Bob Stern, who helped author the 1974 campaign reform law that requires California lobbyists to disclose their work. He also spent decades running the Center for Governmental Studies, a Los Angeles research organization focusing on political transparency.
“This is something the Ethics Commission should be looking at very carefully,” Stern said.
Sean McMorris, a transparency, ethics and accountability program manager at California Common Cause, said that Kim’s case is an example of the balance lobbying disclosure laws must strike between allowing free expression while still providing the public with information about who is paying to influence public officials.
“Good lobbying laws, they’re always trying to take into account that we don't want to ensnare everyday people exercising First Amendment rights,” McMorris said. “These tend to be fluid laws, and they are often amended a lot. It is a constant game of cat and mouse, or learning as you go. Sometimes you don’t know if certain loopholes exist until they are actually exploited.”
McMorris said a typical investigation in Kim’s case would involve subpoenaing her employer and poring over her records to corroborate Kim’s assertion that Elberling did not pay her to lobby against the Stevenson Street building.
When asked if she would share internal communications records with The Standard, Kim said she would not because she isn’t required to.
Kim compared her and Elberling’s situation to that of The Standard and Michael Moritz, a venture capitalist who provided the financial backing to launch this publication. In 2020, Moritz donated $40,000 to Yimby Action, a political nonprofit that favored construction of the proposed SoMa building. Yimby Action shares board members and employees with Yimby Law, which in January sued to reverse the Board of Supervisors’ October decision to halt plans for the apartment building.
Moritz is not involved in The Standard’s editorial decisions.
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