SUBJECT: Biennial Ethics Review
Background
The
City Charter requires the Mayor to conduct a biennial review of the City’s Code
of Ethics and any ordinances relating to ethics. The Charter provides that the Mayor shall make any recommendation
for amendments or changes to the Code or ethics ordinances to the City
Council.
During
our last review of the Ethics ordinance in 1999, the City Council approved my
recommendation that the City’s Ethics Board and the City Attorney review the
ordinance to make it simpler for candidates and the public to understand. In addition, we requested that changes be
made where appropriate to eliminate conflicts with State law. The City’s Ethics Board and the City
Attorney have reviewed the City’s ordinances relating to the Board and the
Campaign Ordinance. This report
provides my recommendations for changes to the existing ordinances relating to
the Board, Campaign Ordinance and ethics ordinances.
Recommendations
A.
Reorganization of the Ethics Ordinances
I
recommend that the provisions in the Municipal Code relating to the Ethics
Board, elections and campaign finance requirements be reorganized so that the
provisions are easier for candidates to understand and apply. For example, provisions relating to the
Board duties and its enforcement authority are currently contained in two
separate and different Chapters of the Municipal Code. I recommend that these provisions be
consolidated and other technical changes be made so that the duties and
responsibilities and other requirements relating to the Board are clear and
easier to find in the Code.
B.
Reorganization of the Campaign Ordinance
The
Ethics Board has studied the organization of the Campaign Ordinance and
recommended that it be revised to make it easier to understand and apply. Currently, for example, the chapter in the
Code relating to campaign provisions has various parts such as reporting
requirements and voluntary expenditure provisions which are out of sequence and
out of order in the Code Chapter. I
recommend that the Municipal Code chapter relating to campaign provisions be
amended in accordance with the order proposed by the City Attorney to improve
the organization of the Ordinance so that it is easier to use and apply.
C.
Amendments to the Campaign Ordinance
1. Delete Informational Only Provisions in
the Campaign Ordinance (SJMC §§
12.06.270 and 12.06.280)
Most of the provisions of Proposition 208
have now been repealed by Proposition 34, which was approved by the voters in
November of 2000. The City’s Ordinance
refers to certain Proposition 208 requirements such as prohibitions on
contributions from members of boards and commissions, as informational only
provisions. Since most Proposition 208
provisions have been repealed by Proposition 34, I recommend that these
informational only provisions be now deleted from the City’s Campaign Ordinance
so that the Ordinance is more streamlined and easier to apply.
2. Clarify References to the Acceptance of
Contributions and Reporting Requirements (SJMC §§ 12.06.330, 12.06.340 &
12.06.610)
The City’s Ordinance currently uses the
term “accept” in provisions relating to the acceptance of campaign
contributions and the term “received” for purposes of contribution reporting
and disclosure. The Ethics Board
concluded that the Ordinance should also contain the term “accepted” in the
disclosure provisions. I recommend that
this change be made to make the provisions in the Ordinance consistent and
thus, easier to understand and apply.
3. Clarify Requirements on the Deposit of
Personal Funds (SJMC § 12.06.350)
A key component of our ordinance centers
on full disclosure to the voters of all funding well in advance of Election
Day. The Ordinance currently prohibits
candidates from depositing personal funds in a campaign account during the
period beginning 7 days prior to the Election Day until the day after the
election. The reference to the “day
after the election” should be deleted so that candidates can only deposit
personal funds no later than 7 days before the election. This would strengthen this provision by
requiring candidates to deposit, account for and disclose all personal funds
before the election.
4. Clarify Provisions Relating to
Forgiveness of Campaign Debts (SJMC § 12.06.410)
The Campaign Ordinance requires that all
campaign related debts, including loans, be retired within 6 months after the
date of an election. The Code should be
amended to clarify that forgiveness of a debt by a lender or creditor after
good faith attempts to collect should not subject the lender or creditor to
liability. However, it should also be
made clear that forgiveness does not exonerate a candidate from violations if
an outstanding loan or debt exceeds the contribution limitations.
5. Delete Exploratory Campaign Provisions
(SJMC § 12.06.360)
The exploratory campaign provisions of
the Municipal Code allow candidates to explore possible candidacies for both
mayoral and council offices and to treat campaign funds as contributions for
Council if the candidate determines not to seek the office of Mayor. These provisions have not been applied or
used in the last fifteen years and are inconsistent with and not applicable to
the current limitations in the Ordinance and therefore, should be deleted.
D.
Require an Attorney to be on the Ethics Board
City
boards and commissions which have certain regulatory authority such as the
Appeals Hearing Board and the Civil Service Commission have requirements that
one member be an attorney-at-law. The
Ethics Board should also have such a requirement since it is authorized to
conduct investigations and issue decisions with regards to complaints within
its jurisdiction. I recommend that the
Council approve an amendment to the Municipal Code that would implement this
requirement. The Ethics Board and its Chair
support this change.
E.
Changes to the Ethics Board’s Procedures
The
City Council is required to adopt, by resolution, regulations and procedures
for investigations and hearings by the Ethics Board. I recommend that these procedures be amended in accordance with
the Board’s request to improve its own procedures. Current procedures provide for investigations to be conducted by
the Board’s outside investigator or evaluator.
The procedures should be amended to clarify that the Board may also
appoint the attorney member of the Board to conduct an investigation if the
Board is not able to retain an outside investigator/evaluator due to
availability.
The voluntary
expenditure limits are currently set in the Municipal Code at seventy-five
cents ($.75) per resident of the City for candidates for Mayor and one dollar
($1) per resident of the District for candidates for Council Office. The Code provides that the City Council
review the amount of these limits in advance of each election to determine if
any change is warranted. I believe that
these limits are reasonable and recommend that no change be made to the current
voluntary expenditure limits for the next election cycle.
Having clear and
understandable guidelines for our ethics code is essential for candidates for
public office to comply and for the public and the Ethics Board to hold
candidates accountable. These
recommendations streamline our current ordinance, establish guidelines that are
easier to understand and eliminate conflicts between our ordinance and State
law.
Mayor
Ron Gonzales