Following my attendance of the May 4th meeting (PDF) of the Oakland Public Ethics Commission, I felt an unfortunate dissonance. The public speakers and the commissioners maintained a high standard of discourse, and clearly thought and felt deeply about the issues at hand. Unfortunately, the matter at hand was a law that was not only impractical to enforce, but also born of a faulty premise. There is also a flaw in operation of the commission that must be repaired.
The key item on the agenda was John Klein’s complaint (PDF) against Carlos Plazola for violating an ordinance which requires lobbyists to register with the city. This impractical law describes a lobbyist as “a salaried employee, officer, or director of any corporation, organization, or association.”
If “salaried” applied to “employee, officer or director” then Mr. Plazola was in the clear, because Mr. Klein’s complaint was regarding lobbying that Mr. Plazola did for free. If “salaried” applied only to “employee”, then Mr. Plazola was in violation and subject to sanction.
The phrase was confusing enough that Ethics Commission Chairman Weiner said he had asked two different English teachers and both said it could mean either of the above. Because Mr. Weiner and many of his fellow commissioners were in agreement about this ambiguity, they opted to dismiss the complaint against Mr. Plazola and referred the law itself to staff and to the City Council for review and clarification.
This is problematic. If the Council chooses to simply clarify the existing ordinance to specify who is a lobbyist and who isn’t, there will be another failure and another brouhaha like we saw on May 4th.
It is not appropriate for the law to create value judgments about which members of the public may speak freely to a politician in private, and which of us must register. Creating two or more separate classes like this will always lead to some people falling into a grey area and being exposed to unfair sanctions.
Worse still, the poorly crafted language that we puzzled over on May 5th is merely a blemish on a law that is, at it’s core, absurd.
When a lobbyist and a politician sit down in a room, society has different expectations of each man. The politician is elected by the public to uphold the public trust and serve the public interest. The lobbyist has been paid by private interests to advance an agenda.
Yet our lobbying law puts the burden on who? Not on the person sworn to serve the public! On the other guy. This is, again, absurd.
It is interesting that in matters of lobbying, we often opt to blame the lobbyist. In matters of bribery, we generally blame the politician.
The man who bribed Rep. Randy Cunningham was indicted alongside Cunningham. But answer me this: I don’t remember the briber’s name, do you? This is because the public expects politicians to be responsible for refusing undue influence from bribes. I believe that the same standard does not exist for lobbying for only one reason: Politicians across the world have gone to great lengths to frame the problem as being about anyone but themselves.
But what to do? It would be difficult to quickly flip the burden of upholding transparency to the politicians. They write the ethics laws. Would they be bold enough to impose restrictions or disclosure requirements upon themselves? If we should be so lucky, how would the mechanics of such measures play out?
On May 4th, I suggested to the commission that they require all elected officials in Oakland to maintain a calendar listing their meetings, whom they meet with, whether the guest was paid to be there, and the subject of each meeting. My suggestion was meant to leap over the issue of what type of citizen might have dangerous influence, and focus instead on transparency.
Creating transparency is far easier than creating any rules about influence itself. Transparency as a concept is simpler. It is about access to information. Influence is far more subtle as a concept, and therefore much more difficult to control by means of law, or to define by law, semantics, or other means. So, let the law create the transparency, and let public the public form its own opinions about influence.
The devil is in the details, unfortunately. How would a law delineate consequences for politicians who fail to provide adequate transparency? And how and when would we require politicians to document meetings? Would meetings outside City Hall count? Phone calls? Emails? How would we determine the difference between wantonly failing to log a meeting, and an innocuous error?
So here we are with another slippery slope. Even shifting the burden of trust to the politicians who deserve to shoulder it, we find another situation where the law is too blunt an instrument to create what we need.
Perhaps I’m just not crafting a clear enough proposal for a law. Or perhaps a law is not the right solution at all. Lobbying is speech. If we have a problem with speech, perhaps the best counterbalance can created with more speech.
A solution to the lobbying issue might be created outside of the halls of government by enlisting groups such as the League of Women Voters, The Pew Foundation, the Center for Digital Democracy, as well as news media of all kinds. Such groups could band together to create a list of best practices for transparency in the digital age – a new standard by which to rate individual politicians efforts to maintain a transparent office.
This new standard could include, but would certainly not be limited to:
- Keeping a public calendar online.
- Issuing statements before legislative sessions, listing who the office holder has met with regarding each agenda item.
- Adopting a policy of only discussing major legislation during office
hours, logged or even recorded.
- Keeping all emails forever on a secure server.
Standards such as these, in the hands of advocacy groups, could be more potent than law. People more sensible and flexible than lawyers and judges would be able to interpret the standard’s intent, rather than get bogged down in minute semantics. By publishing different politicians’ scores in voter guides and press releases, standards could be given teeth.
The ballot box is the ultimate regulator of a politician’s power. As such, the most powerful long term solution may be to work towards a culture that demands transparency as a matter of ethical principle, and a culture which votes accordingly.
The following is something of a non-sequitor, but I believe it is important both to the story of the May 4th meeting and to the future viability of the Ethics Commission.
Currently, the City Administrator is responsible for hiring the City’s lead staffer for matters relating to the Public Ethics Commission. The position is called ‘Executive Director of the Public Ethics Commission’. Because the City Administrator is a political appointee, it is inappropriate and risky to allow him to have any direct authority over the Executive Director.
Leading up to the meeting on May 4th, speculation flew about that City Administrator Dan Lindheim was in some way pushing Executive Director Dan Purnell to aggressively pursue John Klein’s ethics complaints against Carlos Plazola. Mr. Plazola had vocally opposed Mr. Lindheim’s appointment, and had even requested an opinion from City Attorney John Russo regarding the legality of the appointment. It was an easy leap for anyone familiar with the matter to presume that there was a grudge behind the investigation of Mr. Plazola.
It is important to note that there is absolutely no evidence that this particular ethics investigation was in anyway fueled by a grudge. It is equally important to note that in matters of political ethics, the mere appearance of impropriety should be avoided. Any possibility for a conflict of interest must be regarded as flaw in the system.
A simple solution would be to appoint the ‘Executive Director of the Public Ethics Commission’ by a supermajority vote of the Commission, and for him to serve at the pleasure of the Commission. The members of the commission accumulate over a period of time which includes more than one mayoralty. Because of this, the Commission’s voice as a whole is more likely to transcend politics than the voice of any sitting City Administrator.
As I said in my introduction, I believe what I saw last Monday night was a room full of intelligent, concerned citizens and commissioners puzzling over failed laws. The suggestions offered above are not at all meant as gospel, but rather as a jumping off point for discussion. I believe the readers of this forum have the wit and wisdom to begin a fruitful discussion of the situation.
In the coming months we may well see more tests of poorly written ethics legislation. The City Council’s recent cronyism and nepotism ordinances are waiting to be tested, and I expect they will prove overly broad, and will create problems similar those in the lobbying law. Fortunately, the Oakland Public Ethics Commission appears to the have intelligence, clout and legitimacy to act to correct this mess. My thanks to the Commission for its hard work and its concern for our city.
Max Allstadt is a carpenter, musician and activist. He has lived in West Oakland since 2003.