Proposition E - Ethics, Elections, Outside Counsel

What it does

This Charter amendment wraps three unrelated items into one. It seeks to reform the Department of Elections by creating an Elections Commission, reconstitute the Ethics Commission, and change procedures for determining if the City Attorney has a conflict of interest.

Why it is on the ballot

Rather than place separate measures on the ballot, the Board consolidated three issues into one lengthy and confusing measure, ostensibly to avoid voter "fatigue" over the number of ballot measures. Election reform was motivated by the well-publicized problems at the Department of Elections. Outside Counsel reform was motivated by accusations of potential conflict-such allegations have been raised recently regarding the City Attorney's own re-election (made moot since her withdrawal from the race), the MUD issue, the Human Rights Commission, and others. It is not clear what motivated the Ethics proposal, unless it is simply the Board's desire to put its stamp on the Commission rather than the Mayor's.

Pros

Those who support this measure state:

1. Elections Reform. The current Department of Elections has been in decline for two decades. Nearly every recent election has been marred by charges of incompetence, at best, and malfeasance, at worst. The Commission structure will create focus on resolving the ongoing problems. The set term for the Director and strict ethical restrictions will further strengthen the independence of this department.
2. Ethics Reform. The electorate deserves direct accountability for Commission members, which is gained by having the elected Assessor make an appointment instead of the Controller. Currently, the Commission is hamstrung in its efforts to investigate abuse, at least in part because it must wait for the District Attorney and City Attorney to decline to investigate alleged improprieties. It has taken up to a year for the District Attorney and City Attorney to decline to make investigations in the past, leaving a cold trail for the Commission. New ethics restrictions on Commissioners and staff will increase confidence in the Commission.
3. City Attorney. As it is now, the City Attorney is responsible for determining whether or not he or she is conflicted in fulfilling his or her duties to city departments. The individual department has no practicable avenue to contest the City Attorney's determination. This creates a method for contesting the City Attorney's determination, bringing the situation before a neutral retired judge for resolution.

Cons

Those who oppose this measure state:

1. Elections Reform: The Elections Department is an administrative function that should be free of political influence. The current structure provides for independence; the City Administrator is insulated from day-to-day politics due to his or her tenured position, and he or she oversees this department. The record of deliberations on this issue establishes that the department's well known problems stem from a lack of resources, not from political machinations. The proposed restrictions on Commissioners and staff are overly broad and deny these individuals basic constitutional rights to participate in the political process. The elections function is cyclical-the number of staff needed during election periods are many times greater than those needed for routine functions. In many instances, the very best people to work for the Elections Department on elections are other city employees, who can bring continuity and the impartiality that civil service can confer to the process. Staff from the Controller's and City Attorney's staff were essential to the completion of the November 2000 election; had this proposal been in effect, a complete meltdown of the election would have been probable.
2. Ethics Reform: Members of the Ethics Commission are specifically appointed for fixed terms in order to insulate them from political considerations in carrying out their duties. This proposal removes this protection for the current commission by firing them wholesale. The message this proposal sends is loud and clear: Commissioners will be scrutinized for their political beliefs and punished when they do not represent the current power brokers. Many civil liberatarians are alarmed by what they perceive as an attack on the independence of the Ethics Commission. In short, this is a power grab by the new leaders in ascendancy-and such a power grab undermines the vital independence of this commission. Allowing three concurrent investigations of ethical allegations to be underway at one time-by the District Attorney, the City Attorney, and the Ethics Commission-will be chaotic. The remedy to this problem is simply to require the DA and CA to determine whether or not they will pursue an issue more quickly.
3. City Attorney: Although the intent of this change may be laudable, the mechanism provided will be slow, bulky, and expensive. While a proceeding is underway before an outside judge to determine the City Attorney's possible conflict, the department or commission will lose legal advice and their work will grind to a halt. Proceedings could reasonably take many months to resolve, leaving the department's status in limbo for much too long.

SPUR's analysis

Each of the three ideas in Prop. E should be considered separately:

1. Elections Reform. The proposal would create a new seven-member Elections Commission to oversee the Department of Elections. The Mayor, Board of Supervisors, City Attorney, Public Defender, District Attorney, Treasurer, and Board of Education would each appoint one member to the Commission. The Elections Commission would appoint a Director of Elections who could be removed only for cause. Members and employees of the Elections Commission would be prohibited from holding office, participating in political campaigns, endorsing or contributing to a candidate or ballot measure, receiving gifts from lobbyists, consultants or endorsing organizations, or holding policymaking positions in organizations that make political endorsements. City employees from other departments could not assist in elections, although the Board could authorize election-day waivers. The Sheriff would become responsible for election security and transportation of ballots.
2. Ethics Reform. The proposal would replace the current Ethics Commission with a new one. The Mayor, Board of Supervisors, City Attorney, District Attorney and Assessor would each have one appointment; currently the Controller has an appointment and the Assessor does not. The Commission could investigate complaints independent of any investigation by the District Attorney or City Attorney; currently the District Attorney or City Attorney must decline to investigate before the Commission is allowed to proceed. New ethics rules would apply to the Commissioners and be extended to employees, including "revolving door" restrictions and limits on political activities that are similar to those described above for the Elections Commission.
3. Outside Counsel. The City Attorney would continue to serve as legal counsel to city departments and commissions. However, any elected officer, department head, board or commission could retain outside legal counsel if the City Attorney has a conflict of interest. A retired judge would resolve any dispute between the city agency and City Attorney over whether the City Attorney has a conflict of interest. The Elections Commission would be allowed to hire outside legal counsel for advice on matters that directly involve the election of a City Attorney. The City Attorney could not endorse, oppose, or contribute to candidates or measures on the ballot and could not be an officer or hold a policymaking position in an organization that makes endorsements.

The primary considerations include:

• Most of the goals of this measure could be accomplished through narrowly tailored legislation, rather than broadly written Charter changes. The ordinance is overly long, and takes us down a path that begins to undermine the 1996 Charter reform effort.
• Many parts of the proposal appear to address short-term personal and political conflicts by reassigning power rather than solving problems.
• The proposal encompasses too many issues, each of which should be considered separately.
• The overall proposal contains major structural changes to fix narrowly defined problems-it is over-reaching.
• Prohibiting members of the Elections Commission from political participation as broadly defined in the measure is wrong, and most likely illegal.
• Prohibiting city employees from assisting the Elections Department is shortsighted and could eliminate an ideal strategy for improving the department.
• Dissolution of the current Ethics Commission is a dangerous attack on that body's independence.
• Removing the Controller as an appointing body to the Ethics Commission appears to be exclusively politically and personally motivated, and could undermine the key role the Controller plays in supporting the day-to-day work of the Commission.
• Multiple investigations of allegations of ethical improprieties will be confusing, contradictory, and will likely undermine the effectiveness of all investigations.

SPUR recommends a "No" vote on Proposition E.