Political Analysis: Ethics Rules For Ballot Measures
Wednesday, July 28, 2010
Measures placed on the ballot sometimes have the avid support of elected officials. But there are ethics rules that spell out how politicians can legally support those measures.
MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. San Diego officials have been through some very serious debates lately about putting measures on the November ballot. Members of the San Diego City Council just voted down a proposal to put a half-cent sales tax before voters, and Councilman Carl DeMaio was very involved in a failed effort to get a managed competition measure on the ballot. As it stands, we know that the San Diego City Council has approved a ballot measure for November asking voters to decide if a new city hall should be built in downtown San Diego. Now, all these proposals have elected officials as supporters and opponents but, ethically, just how much can San Diego's elected officials campaign for ballot measures? Joining us to talk about the ethics involved is KPBS political correspondent Gloria Penner. Good morning, Gloria.
GLORIA PENNER (KPBS Political Correspondent): Good morning, Maureen. And actually we’ll talk about the legalities as well as the ethics, yeah.
CAVANAUGH: Exactly, because it’s both.
PENNER: It is, and we may actually see a city sales tax increase on the ballot. Things are moving very, very quickly now at the city council and there’s some kind of grand compromise that council member Donna Frye has put forth. So I wouldn’t absolutely count out that city sales tax increase going on the ballot. They have until August sixth.
PENNER: And that’s, what, a week from Friday, so we’ll see. A lot going on.
CAVANAUGH: Well, so, Gloria, first of all, when it comes to these ballot measures, the first question must be is a city council member allowed to take a position on a ballot measure?
PENNER: Yeah, I was curious about that so I called Roman Porter. He’s the executive director of the state’s Fair Political Practices Commission, and he said the general rule is it’s okay for elected officials to advocate for or against a ballot measure but if they’re spending campaign funds for it, they need to show how they’re using their personal or their campaign funds to affect the outcome. The League of California Cities guidelines say, yes, a public official has a First Amendment right to speak out on governmental matters upon being elected to office. However, a public official should not use public resources, and that’s the tricky phrase here, to campaign for or against a ballot measure. So city officials should not take part in ballot measure campaigns while they’re on city time and they should be careful to separate their official work from their political and campaign work.
CAVANAUGH: I see. So is that where elected officials have to draw the line in their support?
PENNER: Yes, well, let’s look at fundraising activities, for example, for ballot measure campaign contributions, let’s say, from city vendors. It’s not a conflict of interest for an elected city official to solicit or receive a campaign contribution from a vendor. However, public resources—there’s the phrase again—must not be used in making these solicitations. Elected officials should not engage in these fundraising activities while they’re on city time. So any solicitation should tell the advisors that they may not charge back the amount contributed to the city either directly or indirectly. So they can’t go ahead and contribute and then charge it back to the city when they sell the city some service or material thing. An elected official, however, may contribute his or her own campaign Political Action Committee funds to qualify or support or oppose a measure for as long as the contribution is reasonably related to the purpose of that PAC Committee. The FPPC, that’s the Fair Political Practices Committee, says the recipient of the funds should report those funds as contributions received. And then the local official’s campaign committee have to report the contribution as an expenditure made.
CAVANAUGH: This is all very technical and very complicated and elected officials have to read all this very carefully but, for instance, we know that Mayor Jerry Sanders supports the construction of a new city hall. Let’s say, can he distribute infor – ethically speaking, can he distribute information about why he thinks this ballot measure should be approved?
PENNER: Well, purely informational materials are okay. They have to present a fair and balanced presentation of the facts. But he may not use public resources for campaign materials that expressly advocate a position on a ballot measure. That means he can’t use advocacy terms such as ‘vote for’ or ‘elect’ or ‘cast your ballot for’ or ‘defeat’ or ‘vote against.’ But materials of advocacy for those that use those terms explicitly, their own terms, that urge the election or defeat of an identified measure, he cannot do, especially on city time.
CAVANAUGH: I see. So, now, okay, can city officials then, if somebody calls their office and asks, you know, why should we have a new city hall or writes a letter or an e-mail about a ballot measure, can they respond while they’re on city time?
PENNER: All right, I think it’s easier to tell you what they can do…
PENNER: …than what they cannot do. They can work on the campaign during their personal time, and that includes lunch hours or coffee breaks. Now, I’ve actually had city workers leave their office to respond to a phone call that I made that had to do something with the campaign and they would be out on their coffee break using their own personal cell phones and that would be okay. So they can do it during vacations. They can make a campaign contribution to a ballot measure campaign but they have to use their personal funds. They can attend, for example, a campaign fundraiser. It has to be during personal time. So let’s say that they work nine to five, after five o’clock if they’re not on city time, sure, they can go to a fundraiser. They can actually even make public appearances during their personal time if they want to advocate a ballot measure. So when you put it all together, basically is, on city time, no; on your own time, sure.
CAVANAUGH: I’m speaking with KPBS political correspondent Gloria Penner. We are talking about just how much San Diego elected officials can campaign for ballot measures both ethically and legally. And, you know, if you think about people who want to get out this informational – information about why they support a certain thing, can they perhaps link – add a link from the city’s website to a ballot campaign website. Is that allowed?
PENNER: Oh, the answer is no, no, no. In fact, here’s what city officials and employees may not do. They cannot distribute campaign materials through the city’s internal mail system. They can’t place campaign literature on employee bulletin boards. They can’t make public appearances, speak in favor of the ballot measure during compensated work hours. Now, you know, elected officials, they’re on 7/24 so they’re out there talking and who can say which are compensated work hours and which aren’t? But those people who work fairly normal hours, they can walk precincts, they can draft campaign ads, they can perform other campaign tasks but not during compensated work hours. They can’t use city copy machines. They can’t use city telephones or fax machines or computers or stationery for campaign purposes. And so – Oh, here’s another thing. They can’t go around to other city workers and say, hey, I think you should vote for this ballot measure, when they’re on the job.
CAVANAUGH: You know, I know that you know enough about this so that I can ask you this question, Gloria.
PENNER: I may not answer it.
CAVANAUGH: Let’s take a step back. Why are these rules and regulations in place?
PENNER: Well, for several reasons when you start thinking about, as you said, the ethics and legalities of it. If a city employee were to use city property or city time, it means we, the public, are paying for it. We’re the ones who are spending the dollars to advocate for or against a ballot measure that we then are going to vote on. It doesn’t even make sense. So what you want to do is you want to separate out the public monies—and that’s really the key here—you want to separate out the public monies from private monies and private time because the advocacy aspect of it is really a private decision and not a public decision. We’ll have our chance. In November, we go to the polls. We will make a public decision. But we shouldn’t be spending our public money to take that position before the election.
CAVANAUGH: Now, you know, sometimes we see city officials hold a campaign rally in support of or in opposition to a ballot measure and they may be on the steps of city hall or elsewhere on city property. And what should we keep in mind when we see that happening according to the ethics rules that elected officials must abide by?
PENNER: Well, we’re back to the old saw which I’ve been repeating that you can’t do it on city time. So, yes, as long as city officials don’t take part in the rally while on city time, that – and that that public facility, whether it be city hall or the city steps, is open and available for the expression of all viewpoints on the measure or for any other political activities. So it has to be an open environment, anybody can come, anybody can express their viewpoint. You know, it is a good practice for a city official to inform the audience that he or she is appearing as a private party and not an official of the city when that happens.
CAVANAUGH: That’s interesting. And you gave us a rundown about fundraising when it involves city vendors and so forth, what about when it involves the public? Can an elected official get involved in fundraising for or against a ballot measure? How much can that official get involved in such an activity?
PENNER: Sure. Yes. And the answer is yes. But the city official may not use city funds to attend a fundraiser in support of a ballot measure. So, for example, so say that there is a dinner or a cocktail party or something and they charge $25.00 or $50.00, you can’t tag that to your expense account or to your city budget. You have to use your own money. In fact, it is a crime, it’s actually a crime, to use city funds to attend a political fundraiser.
CAVANAUGH: Well, that brings me to my next question, Gloria, and so if an elected official does violate some of these prohibitions, what can happen?
PENNER: Well, there are potential criminal and civil consequences. Local officials, Maureen, have to be careful to separate their official city work from their political and campaign work. One potential consequence is a criminal conviction for misappropriation of public resources. And what could happen is that this could disqualify that individual from holding any political office in the state. So that’s a big one. And the individual may be required to reimburse the agency for the value of the resources used and if that happens, that person may also be responsible for the attorney’s fees of the person who is challenging the use of the resources. So this is not any – this is not anything to be taken lightly. These are big consequences and the rules are pretty clear.
CAVANAUGH: Now, is – How would anybody find out, however, if an elected official perhaps crossed the line? Is there anybody watching out? Is there anybody looking at what’s going on in support of these ballot measures?
PENNER: Not enough people and not enough organizations. There are a few investigative bodies that operate within a city government and the political watchdog groups that we have in San Diego, they’re few and some of them really have points of view, certainly not enough to observe and report on all the violations. We know we have some individual watchdogs here in San Diego. I could tell you their names and enumerate them on one hand and I have five fingers. But they are all banned, of course, from the closed door meetings. It’s the journalists who traditionally – that focus – who focus on city hall that were the watchdogs but they are a shrinking group, although we notice that Voice of San Diego is ratcheting up their San Diego reporting and the Union-Tribune now has a new watchdog department, a new watchdog editor, so we have hopes for them. And KPBS, pat ourselves on the back, we have two metro reporters, one specifically covers city hall. So the point is that it would be wonderful to have more watchdogs but that’s really where the answer is. You pointed that one out well.
CAVANAUGH: We have a caller on the line, Gloria. Pam is calling us from San Diego. Good morning, Pam, and welcome to These Days.
PAM (Caller, San Diego): Good morning, how are you?
CAVANAUGH: Just fine.
PAM: Thanks for taking my call. I enjoy your show so much and, of course, I greatly respect Gloria, too. I just wanted to chime in with maybe – I really only heard a couple of moments of the discussion when I hopped in my car but I just wanted to kind of put out my thoughts or at least maybe what I believe would be a little bit of a clarification. When you talk about public officials shouldn’t be campaigning on – on work time, I just want to make sure, and I think Gloria’s aware of this, high public officials such as the mayor and people like that are basically considered to be on duty 24 hours a day, so they can be engaged in campaigning and during the normal work hour, what would be a normal work hour for an 8-hour employee, and there wouldn’t be anything improper about that. Now they’re not going to be doing it at their desk but as Gloria pointed out, they – if they’re doing it at a public forum that anybody else could be at like the courthouse steps, that would be appropriate. And then for some of us who work in this area, there was an interesting court decision in the last year that expanded the ability of public entities to spend money in the informational arena or educational arena on ballot measures, and it actually opened it up a lot more than people thought they would. So that’s just a couple of interesting developments recently.
PENNER: Right, Pam, you’re absolutely right and I did say that elected officials are on duty 7/24. I think you were probably getting in or out of your car at that time. And we had gone over the aspect of maybe not advocacy but educational and informational material is kosher. That’s perfectly fine. That’s good to use. By the way, Pam and everybody else, I did speak to the San Diego Ethics Commission as well as the federal – I mean, the Fair Political Practices Commission, and it’s interesting. Their mission is to look at the, how can I put it, the fundraising disclosures, the lobbyist fundraising disclosures and the campaign finance restrictions so they really are not specifically involved with what public officials can and can’t do in terms of electioneering for ballot measures. They’re rather limited and that’s at least the information I got from their executive director, Stacey Fulhorst.
CAVANAUGH: I – We have time for another quick call. Frances is calling from La Jolla. Good morning, Frances, and welcome to These Days.
FRANCES (Caller, La Jolla): Hi.
FRANCES: My question was about the watchdog function. I’m curious to know how limited watchdogs, that you acknowledged we have, are able to get information when city hall routinely refuses to return calls from reporters.
CAVANAUGH: Is that what you’ve experienced, Frances?
FRANCES: I’m not a reporter but I have read that that routinely happens.
CAVANAUGH: Okay. All right then. I don’t know. I don’t cover city hall so I don’t have any direct information about that.
PENNER: Well, Frances, that is a major problem when you don’t get your calls returned and, happily, I find that we are—we as a media group—are pursuing our city officials more as we get more personnel. And I think that’s really part of it. If media has the resources, it can really keep at the watchdog function but, you know, it takes a lot of money and it takes a lot of time to do that kind of thing. And when you find that your journalistic entities are stretched thin, that they can’t really afford reporters to just sit and wait and call and pursue, that’s when you lose a lot of the watchdog function. But you’re right, I mean, when the calls aren’t returned, of course, what you do is you make the public aware of the fact that your calls aren’t being returned.
CAVANAUGH: Which we just did.
CAVANAUGH: Now, as I was saying before, you know, a lot of this advice is very technical. It’s really rather complicated. What is the best advice then for elected officials who really want to make sure they’re not violating any of these ethics rules when it comes to campaigning for ballot measures?
PENNER: It’s really pretty simple if you keep this in mind: The key is that public officials can exercise their right to promote or oppose ballot measures but they must not use the public’s time, money or other resources to do so. However, those public resources may be used to provide, as Pam said, objective analysis and information about a ballot measure.
CAVANAUGH: And, as you said, when it comes to ballot measures, we still have until August sixth to see exactly what the city council might be putting on the ballot.
PENNER: And let’s not forget the school board. It looks like the parcel tax idea has been revived as well, and we’re probably going to deal with that on Editors Roundtable on Friday.
CAVANAUGH: Well, terrific. Thank you so much.
PENNER: You’re welcome, Maureen.
CAVANAUGH: I’ve been speaking with KPBS political correspondent Gloria Penner, and Gloria is also the host of Editors Roundtable and San Diego Week. If you’d like to comment, please go online, KPBS.org/thesedays. Coming up, the science and the scientists studying the coral reefs. That’s as These Days continues here on KPBS.
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