City Ethics Commission Challenged
Friday, February 12, 2010
What's the point of having an Ethics Commission if it doesn't have the power to hold public officials accountable? We discuss the role of the ethics panel in San Diego.
ALISON ST JOHN (Host): For this last few minutes, we’re going to be talking about the city’s Ethics Commission. San Diego City Council member Marti Emerald has reportedly accused the Ethics Commission of abusing its power, and she’s currently under investigation by the commission and I guess there’s a showdown imminent later this month. So, JW, put us in the picture. What’s led up to this point?
JW AUGUST (Managing Editor, KGTV 10News): Well, for truth in lending purposes, Marti worked for me for 20 years. Her attorney, a Republican, Bob Ottilie was my attorney. But…
ST JOHN: Well, thanks for revealing that. Yes, that’s true. Marti was a Troubleshooter, a consumer advocate, on…
ST JOHN: …10News, right.
AUGUST: And – But I also have talked and spoken to the Ethics Commission many, many, many times and respect a lot of the work they do. So I – Since you told me I was going to speak about this, I’ve been on the phone to a lot of people trying to figure out, okay, where does the truth lie?
ST JOHN: Hmm.
AUGUST: The – And there’s a truth on both sides in this thing. There is some truth on both sides. I think in a thumbnail, I could say that the Ethics Commission is needed in this city but as currently constituted it’s not working. If I was with a grassroots organization, I’d be scared as hell to get started running a campaign because there’s a maze of laws that you’ve got to work your way through.
ST JOHN: When you say it’s not working, is there some specific things about the way it’s working that you think need to change?
AUGUST: Well, I think it’s like a train that stops and starts in a lot of the work they do. And they’re well-intentioned people over there. They want to do the right thing, and we do need an Ethics Commission. I – The FPPC, the Fair Political Practices…
ST JOHN: Umm-hmm.
AUGUST: …Committee cannot watch everything going on on the ground in every town, community and city. They do a good job at what they do but they’re not – we need somebody on the ground here taking care of business. But the problem is in their name alone: ethics. If you are in violation of the Ethics Committee, you are, therefore, unethical. But the point of matter is that some of these are technical violations…
ST JOHN: Umm-hmm.
AUGUST: …that I don’t think Marti Emerald set out to deceive. I don’t think she had any intention to conceal information. But what’s going on here is you’ve got a city councilwoman who no other city council, unless they were going out of office like Madaffer, criticized them because they didn’t have the courage to do it. She has the courage of her convictions. She says a lot of this is b.s., it’s time it stopped. It’s…
ST JOHN: Okay, now let’s just get clear about what is she being accused of doing here?
AUGUST: It involved reporting of monies that she was going to pay as a bonus to her employees. When you say…
ST JOHN: And that allowed her to – Go ahead.
AUGUST: Let me just try to explain this. Instead of paying at the end of the election period time where – when the coffers are empty, they were going to pay it out into the future and they didn’t report this.
ST JOHN: Which allowed it to…
AUGUST: Didn’t report it properly.
ST JOHN: …raise money after the election without…
AUGUST: Right, exactly. And I think in the background beating the drum are some people at the U-T who have never liked Marti or the fact that she’s supported by the unions, so they’re back in the background beating the drums so this has just heated this thing up to the point now they’re going to have this meeting.
ST JOHN: Sounds like a showdown at the end of this month.
AUGUST: It’s going to be a showdown.
ST JOHN: Yeah, Scott, what is your take on this? You don’t have so much of a intimate connection with the players.
SCOTT LEWIS (CEO, voiceofsandiego.org): Well, I think – Just to be clear of what the problem is, is that if you say if I win this election, I’ll give you $40,000 as my consultant for having – it’s called a win bonus. And the problem with that is that if – and it works, but if you say – Once you incur a debt as a candidate, you have to disclose that. Why? Because we don’t want our candidates or our politicians to owe people money. It’s almost worse to have them owe people money than to get money from some untoward sources because if they owe people money, then they’d be required to, I don’t know, it can get ugly. It can get uncomfortable. And so that’s why you disclose it. And she didn’t disclose it right away. After you get elected, you can start raising money again from people that might want to get on your good side through that process that there’s nothing wrong with that. And you need to be just clear and up front about what you owe money to. She doesn’t deny that she should’ve and she does – nobody says that the law is a problem, but that’s the law in particular and it – I think it’s important to have it enforced all the time. If you incur a debt, you have to let the public know because people may want to make sure…
LEWIS: …that that’s all okay.
AUGUST: But it’s – but not – it’s not always evenly enforced all across the board and there is not a bright line – there is not – This thing was put together kind of jury-rigged…
ST JOHN: Explain to us how the Ethics Commission came into being, JW.
AUGUST: Well, after Valerie Stallings and Moores, there was a little…
ST JOHN: John Moores.
AUGUST: …gifts back and forth. He flew her on her jet (sic). Dick Murphy, the mayor, then said, hey, we need something like the Ethics Commission. As I said, we do need the Ethics Commission.
ST JOHN: It actually held up the ballpark…
ST JOHN: …for quite awhile on ethical matters.
AUGUST: So what they’ve done is, over time they’ve created this patchwork of laws. If – I like what DeMaio and Frye, our two city councilmen are saying, let’s set up the presiding judge and two other judges, have them create – have them oversee, elect, who’s going to be on the commission and let’s build a set of rules that apply to everybody with the same standards.
ST JOHN: Okay, well, that brings up, I think, what’s the key question in many people’s minds, is how can you have an Ethics Commission function when it’s investigating the very people who control its budget?
AUGUST: Not realistic.
ST JOHN: So why do you think the suggestion by Carl DeMaio and Donna Frye fell, you know, through the cracks at city council?
AUGUST: Well, I read the City Attorney’s letter and the way it was created, they have – a charter amendment would be necessary to permit someone other than the mayor to make appointments to the Ethics Commission. So somebody has to say, hey, we need a charter amendment.
ST JOHN: Uh-huh.
AUGUST: And who’s going to push that?
ST JOHN: Scott.
LEWIS: Once they’re – once they are appointed to the commission, they are protected in a certain way to allow for this check. Now, I think when you do – don’t – when you don’t fund them to the extent that they need to—and they’re not funded proportionately compared to other cities like San Francisco—when you don’t do that then they’re forced to do random audits…
LEWIS: …and this is what got Marti. And, you know, Marti can complain about the stigma of being attacked as an Ethics Commission violation but the fact is, is that when she was running for office and – against April Boling, that there was – that there were people who were tarnishing April Boling’s record as having violated some of these similar type of technicalities. And so, you know, what goes around, it all comes around. And I think that in this city, if you try to use the Ethics Commission violation as a political weapon, you’re going to find that everyone on all stripes have dealt with these technicalities. Now, I think there’s a broken windows theory that you have to enforce even the smallest of laws and you have to make sure that people know that these laws are going to be adhered to. If you don’t want the laws, change the laws. If you do, this is the kind of thing that you’re going to have to deal with.
ST JOHN: Tom.
TOM YORK (Contributing Editor, San Diego Business Journal): Well, first of all, I think the term Ethics Commission is totally misnamed. It should be something like, you know, Campaign Law…
YORK: …Commission or something. The word ethics is really a loaded issue and I think that, as Scott was saying, it comes into play as – because then it, well, if I’m violating this law I’m unethical, and it’s a way of, you know, painting your opponent in a…
ST JOHN: Umm-hmm.
YORK: …corner kind of thing. The other thing is, I think this is an argument for public financing of campaigns. I think it’s time to get the money out of politics at all levels. Of course, that’s never going to happen…
YORK: …but I think this is a great argument for that.
LEWIS: Well, you can – you could do two things. One of the things you could do is just say, all right, everybody can give as much money as they want to any campaign and let’s just disclose it. The other thing you could say is that nobody can give any money to any campaign and we’d public finance. The fact is, is that that would probably get challenged and would be thrown out…
LEWIS: …by the courts. I think that the – I think that what we have is a situation now where every time you try to close a loophole that is created by a new law, a new loophole is created. And this city is – the way you fund a campaign in this city is the most complex and just baffling system that I can…
AUGUST: Well but…
LEWIS: …imagine and…
ST JOHN: So JW.
AUGUST: …that’s what I was saying. That’s what I was saying.
LEWIS: But those are laws, that’s not the commission. If you want to change the…
AUGUST: I understand that and they need to set up a structure that you can understand.
AUGUST: A grassroots…
ST JOHN: JW, do you have any insight into what perhaps Marti Emerald will be able to do at the showdown later on without looking like she’s trying to avoid her own, you know, investigation. What could she suggest that would change at the Ethics Commission?
AUGUST: Well, I saw – Mr. Ottilie allowed me to look at some of his notes. And I think they – if you look at the notes, he builds a pretty good case that different individuals who have been attract (sic) by the Ethics Commission have been treated differently and their fines and how the fines – and what they did was described would be mitigated sometimes and not mitigating circumstances the other times, so he will be able to show there’s some inconsistency in how they do it. And, again, I don’t blame the Ethics Commission. Each one of these cases is very difficult. It’s very emotional for the people being called unethical. I mean, if you want to set me off, call me unethical and I’ll go off for ten minutes because, above all – and I don’t think…
ST JOHN: That’s…
AUGUST: …Marti Emerald is unethical.
YORK: That gets highly emotional, yeah.
AUGUST: Yeah, that’s a bad word.
ST JOHN: That it may be so hard to know whether something is a technical…
ST JOHN: …thing that was, you know, negligence. We’ve seen that allegation.
AUGUST: Yeah, how about Fair Political Practices San Diego?
ST JOHN: Okay. So, Tom, what – you wanted to say something else.
YORK: I was going to respond to the comment that Scott made. I thought the whole idea was to have transparency in campaign donations.
YORK: Isn’t that what we’re going after here since we can’t have public financing of campaigns?
LEWIS: Well, part of the problem is the limitation. What the situation is with Marti is that she was going to pay a win bonus but she only had a limited time after that, after she’s elected, to raise the money to pay that.
LEWIS: And so this is what that all wraps into is that when you have that limited time and when you have the disclosure requirements in order for people to be able to track what you’re doing, it’s just a very onerous process. Now, if we don’t want that process, let’s have the laws changed. But the fact is, is that these are the decisions, the laws that we’ve decided that we want, and this is the consequence of trying to enforce them.
ST JOHN: So we have an Ethics Commission which is underfunded, you know, they – their board is constantly lacking in the number of people.
ST JOHN: They don’t have enough people to investigate everything so inevitably, in a way, what they’re enforcing is perhaps a bit lopsided because they’re not covering the board…
LEWIS: Well, they’re in a no-win situation, too…
AUGUST: I agree.
LEWIS: …where every time they pass a law or they advocate for some kind of restriction, it’s going to anger the very people who are in charge with the city. I mean, when they passed the disclosure requirements for lobbyists’ fundraising, who was upset about it? Well, the lobbyists were upset about it. And the people who the lobbyists depend on are the politicians and the lobbyists that get the politicians elected. So there’s all kinds of things that they have to fight against and if – and it’s – and this is kind of the consequence of having a body of people in your government that you want to do this kind of thing. If you don’t want that, get rid of them, go ahead.
ST JOHN: Well, has the Ethics Commission made a difference? From what I can see, it’s actually made quite a difference since it was formed in 2000.
AUGUST: I think they have. I think they have done a good job.
LEWIS: Well, I…
AUGUST: We have to find a way to fund them permanently so they don’t have to go hat in hand. One way around that is have the judges appoint the commissioners and be an independent power.
LEWIS: Well, and I think that there could be a comprehensive look now and say, okay, what are – Are we imposing too many requirements, though, on these candidates that we’re discouraging people, like you said earlier, who might just want to run but don’t have access to Bob Ottilie, the lawyer.
AUGUST: Umm-hmm. Right.
LEWIS: I mean, this is a very important problem. If you’re deciding to run, you not only have to face low contribution requirements but then you have to face these onerous accounting standards that are very difficult to adhere to. If we want to change that, fine. But if you’re going to attack the people that are trying to enforce that…
ST JOHN: Umm-hmm.
LEWIS: …I think you’re going after the wrong goat.
ST JOHN: And yet this is politically a pretty important time to have people checking up on lobbyists and where contributions are coming from.
LEWIS: Right, I – Well, I…
ST JOHN: You know, possibly with managed competition, there’ll be…
YORK: You know, the thing is is that whatever the Ethics Commission decides to look at, that’s a political decision so, you know, let’s not make them out to be sultans of, you know, ancient Greece. I mean, it’s all political. It’s a cat and mouse game.
ST JOHN: Okay, thank you. I think we’re going to have to end on that comment, Tom. Thank you very much. We’ve been sitting here at the Editors Roundtable with Tom York, the contributing editor for the Business Journal (sic). Thank you very much, Tom. And Scott Lewis from Voice of San Diego. Really appreciate your comments, too.
LEWIS: Thank you.
ST JOHN: And JW of 10News.
ST JOHN: A great discussion today, gentlemen…
AUGUST: Thank you.
ST JOHN: …so thank you very much. I’m Alison St John sitting in for Gloria Penner. Thank you so much for listening and if you would like to post a comment on our website, please do. You can go to KPBS.org/editors.
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