Max Allstadt: An Open Letter to the Oakland Public Ethics Commission

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 Contest of the Evening

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.

A Law Built on a Faulty Premise

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.

Influence, Transparency, Speech and the Law

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.

Best Practices

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.

A Structural Problem, and a Simple Solution

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.

Failure as Opportunity

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.

Sincerely,
Max Allstadt

Max Allstadt is a carpenter, musician and activist. He has lived in West Oakland since 2003.

54 thoughts on “Max Allstadt: An Open Letter to the Oakland Public Ethics Commission

  1. Helen

    Max:
    Thanks for bringing this very important issue to light. The League of Women Voters has felt like a lonely voice in the wilderness following this issue for the last several years, and it is nice to have some friends joining us. You are right that that it is going to be a critical debate over the next several months. Let’s see if we can work together to find a better way to make things work.

    I agree that there are some very creative and intelligent people who want to correct things. Let’s see if we can rally the public forces to support and reinforce them.

    Helen

  2. Carlos Plazola

    Max, when someone runs for office, there are very clear rules and regulations about campaign finances, transparency, and disclosure, and penalties for failing to comply. I don’t know why requiring elected officials to disclose who they meet with should be any more complicated than this.

    Holding a meeting for an elected could be like receiving a check for a candidate–it must be disclosed if it has to do with city business for the elected, or the campaign for the candidate. Being caught in violation of this could lead to fines. Simple as that. With all laws there is an element of trust that people will comply willingly. Most do. Sometimes they don’t, and sometimes they’re caught. Then they’re fined.

    But I wholeheartedly agree with you that the electeds should be held accountable to a higher standard than everyone else. While I appreciate John Klein’s right to bring a complaint against me, it’s kind of silly that we, the constituents, would be going after each other while the electeds get to sit back and watch. (Again, for the record, I willingly register as a lobbyist when I represent a client for fees…that much, at least, IS clear about the lobbying ordinance).

    Carlos

  3. 94611

    Don’t we want people to meet with elected officials? Do you really want them making decisions based on just what they already know, without new perspectives or information? Should all new policy be just the creation of elected officials and their staff? That would not be very good democracy. As is, policy making is often overly influenced or limited by politicians and bureaucrats and their interests and what they realistically have time for. To discourage meetings of interested and informed citizens with elected officials due to fear of being investigated or otherwise criticized seems like a bad scenario for Oakland.

  4. Max Allstadt

    Carlos,

    I don’t think it would b wrong to require some sort of disclosure, I’m more concerned about how much disclosure is feasible. I rarely meet directly with Oakland politicians, but I have email exchanges often, and they sometimes form conversations that go back and forth for a while. Similarly, some friends and I had an unplanned chat with Rebecca Kaplan after last weeks council meeting. Would that count as something that should be documented, or not?

    I believe that the formal face to face meeting will become less and less common of a way to do business in the future, and if we regulate only in office meetings, we could well discourage them in favor of other forms of communication.

    The principle we can agree on, but where to draw the line between requiring documentation and not… Tricky.

  5. V Smoothe

    I agree with 94611. Lobbying gets this really bad rap, but it’s actually essential to a well-run government. That’s how policymakers get educated about the issues they’re making decisions on. Anyone who has ever endured any kind of public hearing on a subject they’re knowledgeable about should understand why this is necessary.

    I also think it’s important to think about how much such disclosure as Max is suggesting would cost. I mean, the complying with level of documentation suggested here would basically be a full-time job. Is the public benefit achieved by knowing about every conversation every elected official has with anyone so great that it’s worth adding a whole extra staff member to each Council office?

  6. Max Allstadt

    To clarify again,

    I am not suggesting documenting every meeting. I believe transparency is important, but obsessively regulating speech is unfeasible. Hense the suggestion to pass the responsibility to a coalition of non-partisan advocates. If society pays closer attention to political speech an interaction, we’ll be better equiped to sanction politicians who serve special interests instead of the public. We already have a sanction regime set up: it’s called an election.

  7. Patrick

    How difficult could it be for politicians to just enter brief meeting details into a Blackberry or iPhone shortly after the meeting occurs? Connect to computer, download and upload to the City website. Easy. Heck, they could even use Twitter – assuming anyone is still bothering with that a year from now.

  8. Carlos Plazola

    94611: The suppression of democracy is what I was fighting against, and why I didn’t register my volunteer activities as lobbying when I was encouraged to by the City Attorney’s office. Think about what would happen if every volunteer director or officer in town who talked to an elected official had to register as a lobbyist. It would cripple our civic engagement.

    And Max, the requirements that you and others here think are to difficult for electeds to log are EXACTLY what Purnell and Klein wanted me to log–every discussion i have, as a volunteer board member of OBA, with an elected official, even if it happens at chance encounter at a coffee shop. Now, where I realize this is unreasonable for volunteers (it’s already hard enough to volunteer without pay, let alone keep a log of every chance encounter), this is not the case for a paid elected official.

    Consider this: consultants and lawyers, at the end of their day, or during, have to log who they met with and about what. They do this in order to get paid for their billable hours. Why would it be so difficult for an elected official, in the name of the public trust, to take 15 minutes out of their day, and reflect who they met with and about what. V, your statement that they would need a full time staff member is waaaay hyperbolic.

    Again, right now the thing you all are letting the electeds off the hook for because it would be “too difficult or time consuming for them” is actually what Klein and Purnell are trying to get volunteer directors and officers to do. I think Max is right…focus on the electeds. That said, I think you’re all being to easy on them.

  9. dto510

    There are several elements to this discussion that are being lost. First, the idea that board members of neighborhood groups should have to register as lobbyists is repugnant and in violation of the First Amendment right to “petition the government for redress of grievances.” We have a right to do that, and the city would be hard-pressed to justify the need to register to exercise this right.

    Second, it is quite clear that there was a political vendetta involved in the persecution of the Builders’ Alliance. A few years ago I filed an ethics complaint against a paid lobbyist who met secretly with city staff, who wrote an ordinance using the exact language pushed by this lobbyists’ employer, and refused to meet with businesses negatively impacted by this ordinance. At the hearing, Dan Purnell questioned the harm to the public of this activity, basically throwing doubt on the entire point of the lobbying ordinance. But when a prominent individual who actively opposed the appointment of his boss is the subject of a complaint, suddenly Purnell thinks that it’s incredibly important? That is clearly inconsistent, and the only explanation is that political meddling has colored Mr. Purnell’s view of the lobbying ordinance.

    Third, there are TONS of unregistered, paid lobbyists in Oakland who are generally aligned with the mayoral administration. Nobody has asked them to register, and everybody knows who they are. So the lobbying registration ordinance has become one-sided, and rarely used.

    It is clear that the lobbyist registration ordinance is being used a political tool in an inconsistent way. This inconsistency is coming directly from the Executive Director of the Ethics Commission, who reports to a political appointee (actually, the City Administrator is not supposed to be a political appointee, which is one reason folks like Carlos Plazola objected to his nomination). John Klein may have looked foolish at the Ethics Commission, but Carlos Plazola and the Builders’ Alliance were forced to spend thousands in legal fees and be dragged through the mud by biased journalists. The lobbying law is not reformable, but needs to be scrapped completely.

  10. John Klein

    dto510.

    It adds nothing to the discussion to call these complaints vendettas. It is an adversarial system and operates that way. Friends don’t file ethics complaints on each other. So, that is just a red herring. Did you know Carlos filed a PEC complaint against me which is still pending? As certain as I am that his complaint will fail, something positive will come of it. But, surely you don’t think Naomi S. would file that complaint against me, do you?

  11. John Klein

    Max, I agree whole-heartedly with publicly-accessible calendars – I’d add that the reporting should be in ‘real time’ and not quarterly. This brings a little more immediacy to the accountability issues. For example, if someone is lobbying a council member, the public must wait 3-6 months to find out who/when/why. And, if that person fails to register or report the contact, the actual contact and records concerning the meeting are quickly receding into the past.

    Other jurisdictions make distinctions between the types individuals meeting with government officials. For instance, some jurisdictions exclude 501(c)3 nonprofit organizations from reporting because, well, they aren’t allowed to lobby. Some of the different types of lobbyist I’ve found are:

    • Association lobbyists
    • Corporate lobbyists
    • Foreign Agents
    • Nonprofit and public interest lobbyists
    • Professional lobbyists

    Also, as simple as it may seem, I think that fact that Oakland’s lobbying law lacks a statement of interest and intent is a big flaw. If you recall, the PEC ruled the law is so ambiguous that it failed to provide adequate notice to OBA volunteer nonprofit board members regarding the requirement to register as a lobbyist.

    This being the case, the PEC simply had nothing else to fall back on. However, if there were language such as the following, it provides the notice that is now missing and could allow the PEC to pursue investigations where the facts might warrant it. I suggest we need to include something like this (which is stolen from Milwaukee County, WI):

    ”The purpose of this Act is to let the citizens of Oakland know who seek to influence the actions of their local government and for what reasons. The intent of this Act is not to discourage or prohibit the exercise of the constitutional rights of citizens, but, instead to provide local officials, department heads, local government employees, and the public with information regarding those who seek to influence the development of local laws.”

    Recall that PEC staff found unresolved “issues of law and fact” regarding 2-3 of the specific incidents of lobbying in my complaint – they just couldn’t pursue them because of the ambiguity. If there is a statement of intent, the statement provides the notice which is now missing. Then the PEC could interpret the law broadly, if it chose.

  12. dto510

    John, I showed how Dan Purnell had a very different take on the lobbying ordinance regarding the complaint against Carlos versus the complaint I filed against a lobbyist for a more politically correct organization. That is inconsistent and allows one to draw the conclusion that the Ethics process is nothing but a tool for the administration to punish its enemies.
    The example of all the paid but unregistered lobbyists shows the one-sided culture of lobbying complaints created by the press and active members of the public.
    Finally, you don’t address the fact that your interpretation of the lobbyist ordinance would require the board members of every neighborhood group in the city to register as lobbyists to exercise their first amendment rights. Do you think that’s necessary or desirable?

  13. V Smoothe

    Carlos –

    To get an idea of how time consuming it actually is, I suggest this – try doing it for one week. After talking to Max about this last week, I decided to see just how burdensome it would be to keep a record of every conversation I had about any matters coming before the City Council, with who, what issues we talked about, what they thought, and what organization(s) they’re affiliated with, if any.

    I gave up after half a day. It’s an enormous amount of work. And nobody wants anything from me.

  14. Max Allstadt

    I want to make another clarification:

    My intent with this piece was specifically to avoid the some of the cliches associated with the lobbying debate. I didn’t cite the “petition the government” clause of the first amendment, for instance. I didn’t dwell on the gossipy aspects of Mr. Klein’s complaint. Nor did I say any more than I needed to about that particular case.

    I took this approach because I wanted to hear new ideas, and I wanted to push the dialogue above and beyond this one particular case. The big picture is far more interesting.

  15. Carlos Plazola

    V, I do it every day. In fact, I’m going to do it right now–look back at my day and chronicle my billables for my paying clients. It’s how I get paid–figuring out how much of my day I spend on which projects. It’ll take me about 15 minutes. Same as it did yesterday, the day before, the day before…How hard would it be for an elected official to look back at their day and chronicle who they met with and about what? Not hard. It would take them no longer than it takes me because they’re all smarter than me ;-)

    C

  16. V Smoothe

    Carlos, unless your logs are completely different from anything I’ve ever seen from anyone who bills clients by the hour, they certainly wouldn’t constitute the kind of meaningful transparency Max is asking for. So, sure, I guess we could ask Councilmembers to put together a short list of their daily meetings, and it wouldn’t be burdensome. But it wouldn’t do anything to aid real transparency, either.

  17. John Klein

    I sort of have to agree with Carlos on this one. For example, all lawyers have to account for their time, in 6 minute increments, so the firm can bill clients. Paralegals have to do it, too. As a matter of fact, I am sure that Mr. and Mrs. Obama completed time sheets when in private practice. This has nothing to do with transparency, in their case, but many professions require this type of time keeping.

    For elected officials, less detail would be required. They simply need to provide 5-6 bullet points of information, not a “Dear Diary” type of entry. The official can also have a staff person complete the final version from the official’s notes or directions, like many attorneys do.

    The biggest hurdle in the reporting by public officials will be the resistance from the elected officials, of course. In law firms, even the “big dogs” have to record/report their time or they don’t get paid.

  18. Max Allstadt

    John and Carlos,

    It’s one thing for a lawyer to log their hours and minutes meticulously. A politician doing the same would run into a couple of walls:

    1. Lawyers log billable time, while they’re on the job. A politician would have to log any conversation about anything pertaining to government. This might even include a conversation which changes midstream from pleasantries into a govvernment topic. Keeping pace with this would be truly cumbersome.

    2. For a lawyer, what is billable and what is not are clearly defined. For a politician, what is pertinent to government matters may be debatable. In which case you’ll surely get another silly debate about language like the one we saw on May 4th.

    This is why I find a log unfeasible.

  19. Becks

    Has anybody ever looked at the web pages of our councilmembers? Most of them are, well, pretty bad and not frequently updated.

    So even if jotting down notes on paper wouldn’t take so long (and I tend to agree with V that it would take longer than you imagine), I really don’t see them having the staff time to get this up on a website (daily or weekly). I think this points to a larger problem of the Council being grossly understaffed. I’d be all for hiring more staff for the Council to keep track of this kind of information, but if one of the councilmembers proposed this, it would be political suicide.

  20. OP

    I am not sure I really see a compelling reason to force politicians to have to disclose who they meet/talk with. If politicians are swayed by the powers of ideas, that’s fine, it’s when they are swayed by money that issues start to come up. I see 2 problems with this ordinance:

    1. It would be incredibly burdensome, as other have already brought up. Simply put, people won’t comply with it if they really have to list every fleeting conversation they had about gov, when, where, and about what issue. Then we could have petty claims being constantly filed or threatened… uhg, waste of time.

    2. I think it would chill the ability of politicians to seek opinions from unpopular groups or maybe groups that aren’t aligned with their typical constituency. [Insert prominent organization that helped elect official] would catch the meeting twitter feed and see a meeting with the opposing organization and immediately sweep in demanding explanations and assurances.

    Idea formation is a private process and I don’t think extreme scrutiny is necessarily in the public’s best interest here. We should police legislative outcomes and undue influence, but not the exchange of ideas.

  21. Patrick

    Regardless of how cumbersome it may be, the only way to have any transparency (or easily be able to find out who our elected officials speak to) is if the elected officials are the ones required to document this information. Truthfully, it doesn’t matter to me whom Carlos speaks to most of the time, but it really matters to me who IDLF (my councilmember) and Ron Dellums speak to all of the time. And really, how many “lobbyists” do they speak to in a day? Jotting down the salient points after each contact cannot possibly take more than a couple of minutes each. Truthfully, if we really want transparency, they should have a schedule posted for each day – and then they can fill in the blanks as it happens.

    I agree with Becks – the City’s website is deplorable. Difficult to navigate. They still have Edgerley and Chang in the City Official’s picture, though the names of the current office holders have at least been updated. Pathetic.

  22. Patrick

    OP, if we don’t know who was involved in forming what leads to “legislative outcomes ” and who may have exerted “undue influence”, how do we police them? Either we want to know or we don’t. And the only way to know is if it provided by the electeds themselves.

  23. OP

    Thinking a bit more about it, I don’t think our problem is that politicians are meeting with people that represent certain interests. Our fear is that these people will wield influence beyond the power of their ideas.

    It makes sense to have a lobbyist register, as opposed to the head of an NCPC, for instance, because in addition to providing information lobbyists tend to be political players: they donate money, organize fundraisers, and otherwise assist in campaigns. We’re worried that a lobbyist will have an ordinance or request a vote that is against the interests of the constituents but will be submitted anyway because, heck, Councilmember X needs to get re-elected. Showing that type of relationship can counter corruption.

    Maybe instead of all meetings the litmus test should be drawn here: employees of organizations or individuals who donate a certain amount (or give in kind donations, like office space, or help bundle) should be required to register. I’m still doubtful that recording those meetings will shed much more light on influence than what the FPPC forms will show though…

    Indulge a small digression: I think a more pressing reform would be to force electronic (and more frequent) filing of FPPC forms that can be accessed online, which would make the public a bit more aware of what influence already exists.

  24. OP

    Patrick,

    Is talking with someone automatically undue influence? So now you can look up that IDLF meets with OBA a lot, and NN meets with OCO a lot. I don’t see that as impacting ethics. I guess it gives you a better sense how they think, but that’s a different realm. If there truly is undue influence they won’t be reporting it on those forms or they’ll just get more creative in how they report things.

    (What will happen though, is now people will start shooting out mailers saying IDLF is in the pocket of OBA, he met with them X times!! Or, NN is in the… etc.)

  25. Patrick

    No, I don’t think that talking with someone automatically suggests undue influence. And, I happen to agree that if there is something shady going on, neither elected or lobbyist is going to report it. However, the post was about a current law, ethics and transparency. If IDLF constantly meets with OBA, and we know that, that’s a good thing. Because we know that IDLF is pro-business, and we know what OBA stands for, and their current agenda. It doesn’t necessarily impact ethics, but it doesn’t preclude the possibility, either.

  26. John Klein

    dto510,
    Your rhetoric here isn’t helping solve this. That is, the “more politically correct organizations” line is sort of irrelevant because that type of organization is not mentioned in the law.

    From what I can see, the complaint procedure worked exactly as intended in both your complaint and mine. In yours, you made a complaint which utlimately led to that person registering under the law. That person also admitted being a salaried employee as defined by the law.

    In my complaint, it was shown that the law is too ambiguous to be applied to volunteer nonprofit board members so the PEC dismissed the complaint.

    I don’t get how you arrive at the “law being a tool of the administration to punish its enemies.” I mean, you won…I lost.

    What’s your beef?

  27. Max Allstadt

    Hey, here’s a hypothetical:

    What if somebody asks me to lobby on their behalf? I don’t get paid to talk, and I’ve never been paid to talk. But there are politicians who seem willing to talk to me.

    What if a lobbyist asks me to talk to a politician on their behalf?
    What if a developer asks me to talk to a politician on their behalf?

    I ask these questions because both scenarios have actually happened, and in both cases I followed through. In both cases, I was not paid, and in both cases, the conversations were relatively short, and took place as part of much more casual, friendly chat.

    What are the ethics of this situation? Did I have undue influence? Even if I told you exactly what I was talking about in both cases, would you be able to tell if I was somehow doing the public wrong? Could you determine if the politicians involved in these conversations were doing the public wrong? How?

    I keep going through scenarios and trying to come up with simple rules for finding right and wrong, and I keep fumbling around in the dark and finding nothing.

    What say all of you?

  28. Patrick

    Were the people you spoke to aware that you were speaking to them on behalf of another party? If so, you were simply a messenger who (I assume) agreed with the original party; if not, well, that’s questionable. It’s tough when you present someone else’s ideas as your own without citing the source. Even if you firmly held the belief beforehand, it would probably be best to at least state that you decided to speak up because of someone else’s suggestion.

    The point of this bill is not to stifle communication, it’s to make that communication privy to those who were not present. If Nancy Nadel wrote “1:30 PM. Max Allstadt spoke to me about his misgivings regarding the parking lot proposal next to the Fox. He stated that he was doing so at the behest of Mr. X” – that’s all we really need to know – for now. It gives us a reference point. Importantly, it also allows you to check the veracity of what city officials claim was said to them.

  29. Robert

    I share Max’s concern about where we draw the line. Is it OK for Max to lobby on behalf of somebody else if he doesn’t get paid for it. But if I did it and got paid I would be a ‘lobbyist’ even if I believed exactly the same as Max? Because to me, why does it matter if you are paid or not for supporting a position, it is the ideas you carry forward that should matter, not your personnal financial situation.

    I can see a greater danger from the disclosure of affiliation. If I say I was asked by the SEIU, my discussion with a politician will likely carry more weight than if that is not known, regardless of whether I am a union member or on the staff of the union, or simply am friends with the head of the union.

  30. Carlos Plazola

    If every law we passed had to be perfect under every potential scenario, then we’d never make laws. “You can’t force people to drive 65 miles per hour. What if it’s a pregnant woman ready to give birth and she has to drive herself to the hospital?” “True, that doesn’t make sense. OK, forget about requiring people to drive 65″.

    The question is: “what is the simplest thing to do with the greatest impact toward the intended purpose?” The intended purpose, as I understand it, is to have transparency about who is attempting to influence key decision-makers in the city. The simplest way is to have calendar disclosure. There will be imperfections. But until someone presents something simpler that gets toward the intent of what is trying to be achieved, I think that’s about as good as it gets.

    In terms of basing lobbying registration and disclosure on who makes donations or is paid to lobby, if anyone thinks that this is who is influencing things the most in Oakland, especially under this administration, you may be a little naive. Some of the most “influential” people don’t donate much money at all. They just turn people out to council, or they have long-standing relationships with electeds.

    In fact, when I received a set of emails from Councilmember Nadel based on my open records request, almost half of the 157 pages of emails that were disclosed to me were from one particular activist that posts on this blog regularly. She does not donate much money, to my knowledge, but she is very good at “working the system”.

    I give her credit for this. She is very good. She is exercising her first amendment right. I don’t think she should be sanctioned or forced to register as a lobbyist. But I think that we need to be real about this discussion if we’re going to find real solutions. If anyone thinks that just following the money will lead you to who is influencing Oakland decision-makers, then you haven’t looked behind the curtain very hard.

    V and others, I’ll agree to disagree with you on the records issue. It can be as simple as “met with Bob Smith, from Good Electronics from 1-2 PM to discuss the new Solar Panel Installation Ordinance”. And it can be limited to requiring only formal scheduled meetings, not unintended chance encounters, or limited to meeting that happen between 8 AM and 6 PM and are formally scheduled, or something like this. (Max, we don’t need to log email conversations. Those are discoverable through open records requests). I know this is a very gray area, but no grayer than trying to decide whether person x should have to register as a lobbyist, but not person y, for some vague, value-laden, reason based on our own political and social biases as a community.

  31. Robert

    Carlos, I would go one step further. Just have the calendar log say who they are meeting with. You can usually figure out what they are interested in any way. And just as emails are saved automatically, phone systems can be programed to log the numbers of both incomeing and outgoing calls, so these can be logged also. Disclosure does not need to be a burden.

  32. Steve Carney

    What does registering as a lobbyist entail? A fee? A requirement to disclose meetings?

  33. Max Allstadt

    Carlos,

    Actually, even though you were able to request multiple email records in your case, our city only requires they be kept for 30 days, no?

    And as I keep saying, the issue isn’t that people can’t log their conversation with “Bob Smith from Goods Electronics”, in the way you described. The problem is what happens if they slip up once and a political opponent notices. I fear the same hairsplitting we saw last week. Someone will inevitably try to parse words about what constitutes a log violation and what does not. Given the sheer number of log entries that would be generated by such a rule, it will be easy to dig up a single entry to object to.

    Oh, and Patrick, by your standard I was essentially a “messenger” as you put it. In both cases the politicians I spoke with knew who I was speaking for or about.

  34. John Klein

    On the other hand, most lobbying laws put the duty to register and report lobbying activities on the lobbyists themselves – there must be a reason for this. My guess is that the legislative bodies simply don’t enact legislation that affects them so directly. I think enforcement is a huge hurdle. A law which imposes a fine or criminal/civil charges on an elected official for meeting with members of the public simply is not enforceable.

    I believe Oakland will continue with the more traditional approach of requiring the lobbyist to register. It is clear our lobbying law must be amended because it does not serve the purposes for which it is intended: to eliminate corruption or the appearance of corruption from the legislative process and fulfill the public’s ‘right to know’ who is communicating with local officials in order to influence legislation.

    Our law needs to expand the list of individuals who are lobbyists to include members of LLCs and also members of directors and officers of nonprofit organizations which are not 501(c)3 organizations. 501(c)3 nonprofits may not lobby, so requiring them to register would be overly broad. People can complain all they want that 501(c)3 organizations are lobbying…take your complaint to the IRS, not to City Hall. Ad hoc and volunteer organizations without formal structures under California law must be excluded, also. Trying to include them would be overly broad because such organizations don’t corruptly influence legislation to any serious level.

    It is also clear that our ordinance needs a “Statement of Interest and Intent” to set out the policy for enacting the lobbyist law. Without it, the PEC can’t make any interpretations beyond what is explicitly written in the law – this is why my complaint failed. A clear Statement will prove the PEC with the authority to interpret the law rather than throwing their collective hands in the air saying, “the law is too vague to enforce.”

    Finally, the PEC needs to act quickly. If nothing else, my complaint shows that there are definitely lobbyists hard at work at City Hall in Oakland and that our lobbying law can’t do anything about them. The PEC has been aware of the deficiencies in the law for several months – they need to “step up” and push the changes through. To be sure, the lobbyists in Oakland are fully aware of the deficiencies in our law and will continue to exploit them. That’s not fair to Oakland and that’s not why we have a lobbying law and Public Ethics Commission.

  35. Robert

    John, if the purpose of the lobbying legislation is, as you state, to “fulfill the public’s ‘right to know’ who is communicating with local officials in order to influence legislation” then everybody who talks to an elected official should have to register. It doesn’t mater whether what the IRS thinks if you goal is truely as you state.

  36. V Smoothe

    John -

    That makes absolutely no sense. Either everyone should have to register and log or no one should have to. I’m sure we would all love to restrict burdensome legislation to people we don’t agree with, but that’s hardly in the public interest.

    Many of the comments here seem to be premised on the idea that there’s something untoward about an elected official talking with anyone. I refer people to 94611′s comment towards the begin of this thread – we should want Coucilmembers to talk to as many people as possible, anything discouraging that communication in any way should be avoided. Perhaps a more revealing ordinance would require disclosure of organizations who requested meetings, but weren’t granted them.

  37. Max Allstadt

    John,

    The reason that most lobbying laws target the lobbyist and not the politicians?

    Simple. The politicians make the laws.

  38. John Klein

    Oh, I forgot: Oakland also needs to charge a registration fee, like a lot of other cities. $50 – $100. It’s revenue for the city.

    Requiring everyone to register is overly broad and is an unwarranted intrusion on free speech and the right to petition the government. Lobbying laws must be narrowly tailored for a specific purpose, i.e., to eliminate corruption or the appearance of corruption from the legislative process. It’s not me saying this, it is both federal and state laws that say this.

  39. V Smoothe

    Okay, now that’s just sick. The suggestion that people should have to pay to be able to talk to elected officials is repulsive.

  40. John Klein

    Lobbyists in San Francisco pay $125 – $500 to register so the fee I am suggsting is rather minimal. Lobbyist expect to pay a registration fee and are surprised that a fee is not required in Oakland.

  41. Carlos Plazola

    Max,

    Easy enough to pass legislation requiring retention of emails for 2 years minimum.

    Regarding an elected slipping up once and an opponent noticing and reporting: this is what happens all the time with all the laws, which is why I was NOT upset with John Klein for bringing the complaint forward (though I was upset with Purnell and city attorney’s office for applying double-standards when politically convenient). Neighbors call on each other about blight, for example. For laws to work, it requires policing by the community and by the police. John Klein is right about this. If an elected, by accident or intentionally, fails to disclose, then why not issue a penalty or sanction of some kind? I’m sure they won’t make the same mistake twice.

    It’s the same thing currently occurring with every other law on the books, including Lobbying Registration Act, except the LRA gives the electeds a free pass, while closely scrutinizing non-electeds, which became clear to me during the process is fundamentally flawed (and thank you for bringing this to all of our attention).

  42. V Smoothe

    San Francisco only requires people who are hired specifically as lobbyists to register. That’s completely different from your claim that people who are volunteering their time, and whose agenda you disagree with should be forced to register. You position on this is so amazingly hypocritical, John, and frankly, reflects very poorly on you.

  43. TN

    John Klein appears to misunderstand the limitations placed on 501c3 organizations. They are not allowed to engage in PARTISAN political activities. In other words they aren’t allowed to endorse, campaign for or give money to political candidates.

    But they certainly can and do talk to elected officials to inform and discuss the issues that affect them. This is perfectly legal and is an integral part of the function of non-profit organizations. Lobbying is part of what they do.

    For instance animal welfare organization which run private shelters can and do “lobby” for changes in humane laws. Alternative transportation advocacy groups can and do lobby for changes in transporation policy. Social welfare organizations lobby to get a bigger part of the public budget.

    Generally the more interests that are allowed to speak, the better government will be.

  44. John Klein

    TN,
    Thank you for pointing out one of the primary differences between 501(c)3 and other 501(c)s, such as a (c)6. I am sure there are other differences which ought to be considered.

    One of the inquiries in this regard would be to look at the purpose of the organization. I’d say there is a difference between a nonprofit organization that provides free books to children or free meals to seniors and a nonprofit that promotes the private, for profit interests of its members.

  45. Robert

    I agree that requiring everyone to register is burdensome, but I am really struggling to differentiate between a paid lobbyist and somebody who volunteers their time. Why should one register and not the other? Neither is necessarily going to attempt to engage in a corrupt practice. If the point is influence, you have to treat everybody the same. And if the point is corruption, you still need to treat everybody the same, but deal with the corruption, not who is talking to the city. Having city officials log their meetings is probably the least burdensome and least inhibiting of free speech and access to government.

  46. Robert

    I fail to see why a nonprofit that does something you like (books for kids) should be treated differently than some other organization. They are still trying to influence to get what they think is best for the city. And while everybody likes books for kids, not everybody may think we can afford it.

  47. Max Allstadt

    Robert, I totally agree. I could start a 501c3 to provide narration of porn movies for blind people, or a 501c6 that advocates for day care centers. It’s terribly arbitrary.

    The government should not be in the business of deciding who gets to speak to whom and under what conditions. The four major exceptions to the first amendment’s control over oral communication are threats, slander, incitement, and harassment. Going any further is thorny and slippery all at once.

  48. John Klein

    Max,
    I hope you can provide the PEC with some examples of jurisdictions that require officials to maintain public logs as the means by which jurisdictions handle lobbying issues, instead of requiring lobbyists to register.

    My guess is that you won’t find many, but maybe you will. More likely you’ll find out why this approach isn’t used.

  49. Patrick

    I imagine the reason this approach isn’t used is because lobbyists wouldn’t like it.

  50. Max Allstadt

    It’s a pretty confounded mess. That’s why I keep saying that the most viable long term solution is to create standards, not laws, and leave it to watchdog groups to nip at politicians’ heels during elections if they don’t behave.