The San Diego City Council created the Ethics Commission more than two decades ago to assure the public that our city leaders, administrators and candidates for elected office are behaving ethically and following the law.
Outgoing City Atty. Mara Elliott says it’s past time to increase the commission staff’s independence to conduct investigations and issue larger fines when warranted. She plans to ask the City Council to consider a series of upgrades to the commission. Some would be a ballot measure, others would require council action that would change how the ethics commission is constituted and funded.
Recent history has shown the commission is hampered by funding issues as well as the sometimes slow-to-act mayor and City Council when it comes to supporting the commission.
One weakness, critics say, is while the commission does not report to the council or the mayor, these elected leaders control the budget for their watchdog body.
Carl Luna, the Director of the Institute for Civil Civic Engagement, says the question that should be asked is: “Who benefits from the status quo?”
He added, “What’s the good reason for not changing to the City Attorney plan if not to simply insulate the council from effective oversight?”
One of the key changes Elliott is proposing relates to how the seven volunteer members of the commission are chosen. Currently, the mayor picks his favorites from a pool of nominees submitted by council offices. The council then approves his choices.
With such an appointment process, Elliott says the “Commission is not truly independent from the entities it is charged with overseeing.”
The Ethics Commission has the authority to fine elected officials, lobbyists,and others if they violate ethics, campaign or lobbying laws. It also recommends revisions to the laws if it discovers unethical tactics being used or if the state and federal government have revised their own election laws. It also refers cases to law enforcement or the appropriate agency as needed.
Midway Rising, a planned 48-acre redevelopment project in the Midway area, is a recent case that points to the importance of the commission. The development team picked to redo the site failed to report all of its lobbying as required by law. It did eventually, the day after the city had chosen the development team for the job. That omission meant San Diegans didn’t know who was engaging in lobbying to influence public opinion and the council before the vote.
It turned out it was a lobbyist, a “paid political consultant to advise respondents and to prepare external public communications regarding the development.” The lobbyist received in excess of $200,000. For this, the commission fined Midway Rising $5,000, the maximum fine that could be charged.
Sharon Spivak, executive director of the commission, has said that citizens need the information to understand who is trying to influence the decision makers at the city.
“Even if they are caught,” says Elliott, “it’s a small price to pay.”
Other city’s have the ability impose larger fines. The Ethics Commission of Los Angeles civil enforcement fines have the potential to make violators pay a heavier price — as much as the amount not properly reported.
Elliott’s proposed change would remove the politics in the choice of the ethics board, instead having the decision guided by a screening committee of three retired judges from the Superior Court, the Appellate Court, or the U.S. District Court. The commission’s board, in turn, would appoint the executive director. The director’s job would be the same as the current director, including initiating formal investigations and complaints.
Open-government advocate Donna Frye, who formerly served on the City Council, notes that this selection process “is how the Redistricting Commission does it.” She added, “It makes sense that the people doing the appointing are not the ones who may be the subject of an ethics complaint or investigation.”
Luna says just this element of the proposal “creates greater accountability, builds public trust, and increases transparency in city governance. The proposal to change the City Ethics Commissioners from a mayor/council (appointment) to being appointed by a nonpartisan, apolitical screening committee is an effective way to increase the autonomy, legitimacy and effectiveness of the Commission.”
Elliott also suggests that the revised commission retain a special prosecutor to handle complex ethics cases. And the ballot measure would ask to increase the penalties for violations, particularly if they were deliberate or there was an effort to conceal the violation.
Under the proposal, the executive director could initiate an investigation without first obtaining an approval from the board. Also suggested are funds to hire a special prosecutor if needed.
As to the Ethics Commission’s funding, it should be “guaranteed” adequate resources. Currently, the executive director must ask for financial resources from those whose conduct she monitors and at times punishes.
The budget is currently just under $1.6 million for California’s second largest city, which is about the same amount allocated for Oakland’s ethics board. That’s less than the current funding for both the San Francisco and Los Angeles boards.
A review of the San Diego commission’s annual report revealed that one of the body’s six staffers handled more than 441 requests for technical legal advice.
“I am more concerned that the repercussions associated with the law are diminishing,” Elliott said..”There’s a very good chance that those violating the laws will not be caught”
Luna adds, “Their every action, indeed, is tainted by the perception of undue council influence of their oversight conduct, reducing transparency and calling into question the legitimacy of council and Ethics Commission actions and undermining public trust in governance. To be effective, trusted and transparent, therefore, the City Ethics Commissioners must be like the proverbial Caesar’s wife – above all reproach.”
Elliott was scheduled to present her proposal to the San Diego Ethics Commission on Thursday evening. She hopes she can get it before the City Rules Committee in April.
Says Luna, “There may be a good argument for keeping the current plan but the council needs to explain it. “
Full disclosure: August was nominated but rejected for a position as a commissioner on the Ethics Board.