Potential changes on the way for Oakland’s lobbyist registration act

I know you guys are all just dying to read all about last night’s disaster of a discussion about the parking meter hours, but unfortunately, you’re going to have to wait until tomorrow for that. By now, everyone’s aware of what happened (they delayed a decision until next meeting), and honestly, the whole thing deserves a more thoughtful post than I could possibly hope to pull together during my lunch hour.

For now, I just want to give everyone a heads up about a special meeting of Oakland’s Public Ethics Commission tomorrow night, about possible revisions to Oakland’s lobbying rules. I’ve been meaning to write about this for a while now, and just haven’t been able to find the time. But it is important, so I’m going to have to take the lame way out and just reprint the meeting announcement for you:

The Oakland Public Ethics Commission announces a special meeting on Thursday, September 24th, 2009 at 6:30 PM.

To receive public comment and discuss recommendations for amending portions of Oakland’s lobbyist registration act. Topics will include:

  • Whether the Act’s registration and reporting requirements should be limited to paid, professional representatives of an organization or include volunteer representatives as well,
  • Whether persons who lobby City officials should have to communicate a minimum number of times or devote a certain amount of their time to lobbying before triggering a registration requirement,
  • Whether the Act should exempt persons from registering if the communications they make are 1) made in writing or at a public meeting or, 2) made on behalf of certain non-profit groups that operate on City property and provide a public service.

I have a lot to say about this, and tragically, no time to say it. I will of course be giving you the dish about the meeting after the fact, but if you feel strongly about this issue (and I know that a lot of people do), all I can offer at the moment is a suggestion that you read the staff reports (first one (PDF), second one (PDF), and third one (PDF)) to get a sense of what’s under consideration and try to make it down to City Hall tomorrow evening.

75 thoughts on “Potential changes on the way for Oakland’s lobbyist registration act

  1. Max Allstadt

    For you lawyers out there:

    About exempting non-profits, aren’t their constitutional issues with that? Aren’t their lots of them? Is there any other situation in which it is legal to restrict the speech of a for-profit entity but not a non-profit entity?

    The only one I can come up with is the other way around. 501c3s are restricted from certain political speech, such as candidate endorsements.

    This particular suggestion bugs the hell out of me because it creates two separate classes of citizen, entitled to two different sets of free speech rights.

  2. Naomi Schiff

    Is lobbying identical to free speech?

    Is it possible or reasonable to distinguish between 501c3 groups and other 501 groups which are not c3?

    Is there anything worrisome when moneyed interests have more access to staff and policymakers than less-moneyed interests?

    It’s not about speech alone. It is also about access and influence and how these are to be handled.

    To whom are policymakers accountable? How much clout does a campaign contributor have?

    At what point does conflict of interest rear its head?

    When a citizen is an individual, and also an employee or owner of a local business, and too, perhaps a boardmember of a nonprofit, and also may have business relationships with the city, what are we to do? What kinds of disclosure should be required, and what kind of responsibility does that person have to clarify for whom she or he is speaking on any particular occasion? Is there any occasion on which she/he should just keep quiet, or is it fine to speak as long as there is disclosure?

    These things can be rather knotty, as shown in the recent Supreme Court hearing on that recent case about the film on H. Clinton. I don’t purport to have an answer. I do hope we can discuss them with some civility and thoughtfulness.

  3. John Klein

    Max, I’m not a lawyer but my sense of the reasons behind why 501c(3)’s have the limitation is because they get tax writeoffs and donors get tax deductions for donations. Most important, though (probably) is because the c(3)’s rely on government funding a lot. So, the restriction is narrowly drawn this way for the c(3)’s so that they aren’t donating to a candidate who is later expected to send funding to the c(3). Maybe someone else can say more.

    But the bottom line is that lobbyists can regulated and required to register and, yes, there are different types of free of speech. It’s long been settled that lobbyist can be regulated and made to register and disclose their activities. This is both in state and federal law. The fights anymore are about how broadly a restriction can apply.

    What the court rulings say is that regulating lobbyist is for the purpose of preventing corruption, or the appearance of corruption, in the legislative process. Lobbyist legislation also facilitates the public’s “right to know” who is communicating with legislators or public officials for the purpose of influencing legislation. Most, if not all, courts have said it’s legal, based on a couple of Supreme Court cases.

  4. Max Allstadt

    Wait, if non-profits take so much government money, shouldn’t it be MORE important to register their mouthpieces as lobbyists? One would think that transparency would be more important if more is at stake.

  5. Born in Oakland

    Women’s Economic Agenda, Your Black Muslim Bakery, PUEBLO and the City wants to tax shoppers who park and contribute to the municipal largesse non-profits enjoy. Another disconnect between ideology and reality. What planet is the Council on?

  6. Ralph

    Please correct me if i misinterpreted something from the Initial Staff Report (too cheap to print out 21 pgs and can’t read 21 pgs on the screen), but i thought the exemption only applied to those 501c3(s) that perform city functions.

    Other 501c3s would still need to register. I am curious because quite frankly I think Girls, Inc went well beyond the line of legally permissible lobbying activities. As I read it, legally permissible – educating; crossing the line rallying the public in support of one position.

  7. dto510

    The reason 501c3s are restricted in their political activities is because they receive tax subsidies (ie, contributions to them are tax-deductible). There is a long tradition in this country of not subsidizing politics, so tax-deductible contributions cannot be used for politics. Otherwise, it’s very difficult to draw a distinction between different entities and different speech rights.

    Naomi, I see no evidence that “moneyed interests have more access to staff” than anyone else. For example, I know that NIMBYs have had regular, private meetings with city planners to craft the current anti-growth approach to the zoning update, yet developers, merchants, and transit advocates do not enjoy the same access. I have yet to see a lobbyist registration form for those folks who have attended closed-door policy meetings with city staff. I don’t actually think you should have to fill one out, but it’s simply unfair to ask some people register and not others, based on arbitrary criteria like perceived wealth. That’s what’s going on now with the lobbyist registration ordinance, and now that it’s been challenged, the Ethics Commission is trying to rework it to be similarly unfair but still pass constitutional muster. It’s a high bar.

    I think Max is right about another huge problem with lobbyist registration and the Ethics Commission’s approach – there is a huge network of non-profits in Oakland that receive government funds, “perform city functions,” and are incredibly successful at leveraging their political and election-time influence to receive additional subsidies. For example, non-profit real estate developers were recently exempted from city business tax, a loss of hundreds of thousands of dollars to the city. Non-profit developers employ at least two full-time lobbyists in Oakland, yet those lobbyists are not registered with the city. Should these multi-million-dollar corporations be exempted from lobbyist registration because housing is (sometimes) a city function?

    It’s clear that those pushing for lobbyist registration are actually pushing for people they disagree with to be registered and nobody else, and that not only calls the process into question but raises serious constitutional issues. The Ethics Commission got themselves into this mess, and I don’t see them getting out of it.

  8. Naomi Schiff

    It doesn’t help civil discourse to label those not working for denser development as NIMBYs.

    I asked questions. I am not well-enough informed yet to be advocating a particular solution. I would say, though, that it might be worth looking at what some other cities are doing, several of which are far ahead of us in coming up with workable methods of dealing with this stuff.

  9. Ralph

    Naomi, as I was skimming thru the documents, i, too, wondered hasn’t some other city gone through this. There must be an example of a workable policy we can leverage.

    Doesn’t PWC have a Municipal Government Best Practices book which covers this?

  10. Max Allstadt

    Naomi,

    I’m not going to label anyone, but as far as who has access, I believe Carlos Plazola, when attacked with an ethics complaint from John Klein, filed a public records request that revealed that you and Sharon Cornu had way more access to certain councilmembers that he does.

    I don’t think there’s anything wrong with councilmembers making friends and alliances in the community, but it is not OK to create any double standard which grants non-profits and community groups undocumented access.

    Non-profits represent monied interests all the time. There are non-profits who advocate ostensibly for “more jobs” when in fact, in the case of the Oakland Airport Connector, they’re really advocating for concrete companies. The distinction between 501c status and other status makes absolutely no difference in how altruistic or beneficial an organization is.

  11. dto510

    Naomi, I would rather use labels than names! I didn’t mean to offend. But I had to point out that sometimes some groups without perceived wealth can enjoy superior access to important people than those perceived as more “moneyed,” so it’s not all about money, it’s also about speech and politics. I don’t begrudge anyone their opportunity to make their case. And how are you supposed to know that other groups aren’t getting the same meetings that you may have attended?

    If the goal is to answer questions about how government works or who supports what, maybe asking policymakers and the bureaucracy report their contacts is the way to avoid unfairness over who has to register. But that seems like an unreasonable burden on unpaid Planning, Landmarks Board, or Ethics Commissioners, and could discourage city employees from talking to the people their work impacts. And then there’s the high level of scrutiny that would be brought to a Councilmember’s contacts, and sometimes, in order to reduce bad behavior, you have to talk to the baddies.

  12. Naomi Schiff

    Just for clarity: I’ve not attended any meetings with Sharon Cornu, except in the back row at City Council!

    Ms. Cornu is a paid employee of the labor council, I think.

    I am not a paid employee of any group except my own struggling small business. Which has no contracts with the City of O.

  13. Carlos Plazola

    All, I had to miss last night’s hearing on this issue so I wonder if anyone has an update.

    Regarding some of the stuff on this thread, I have lots of opinions, of course, so I’ll try to stick to the more important ones.

    The first one is that I still hold-out that it is unfortunate that we are debating amongst ourselves which of us should have to be held to a higher level of accountability than the others for our communications, higher even than the councilmembers, when none of us here have chosen to run for office and hold the public trust in our hands. I still maintain that it would be exceedingly easy to have the elected officials document meetings they have (all of them have schedulers) and what they meet about. So, I think it is fancy footwork to have us peasantry debating each other while the overseers aren’t held accountable. But, whatever.

    Regarding issues of access: when I did a records request of Nancy Nadel, by far the most communications to her were from Naomi Schiff. But I consider this to be a GOOD thing for democracy, not a BAD thing. In fact, we should all be as sophisticated and informed as Naomi about accessing our government and knowing how to make an impact and affect change.

    Democracy is strengthened when people, and organizations, have these skills. I understand that at the federal level and state level there are “special interests” on both side of the political spectrum who fight it out by hiring lobbyists and influencing elected officials–be they unions or business groups; drug makers or senior citizen’s groups.

    But at the local level, a well informed constituent can still wield much more influence at city hall than any paid lobbyist.

  14. Max Allstadt

    “But at the local level, a well informed constituent can still wield much more influence at city hall than any paid lobbyist.”

    You are so right about that, Carlos. It’s the reason I stay engaged in this city’s affairs. It’s incredibly encouraging, actually.

    By the way, the clearest message I got from that meeting was this: Non-Profits should not be treated as a separate class. When the League of Women Voters says this as staunchly as they did, we should listen.

  15. Max Allstadt

    I believe so. My information, however, is based on v’s twitter, so take it with a grain of salt.

    I’m pretty sure the league was against making any distinctions between classes of speech based on 501c status. And it’s kind of a no-brainer. Focus on the Family is a 501c3. I think Your Black Muslim Bakery might have been one too. Clearly there’s no protection from sinister motives provided by that status.

  16. John Klein

    The LWV provided a one-page statement to the PEC. Regarding registration of non-profit organizations, the League said, “The League believes the Act’s registration and reporting requirements should include compensated, professional representatives of an organization, including all non-profits.”

    The LWV doesn’t support a registration exemption for non-profit groups on City property saying, “they lobby for their services, and the public has a right to know about their lobbying activities.”

  17. Jennifer

    Federal nonprofit law allows 501(c)(3)’s to use part of their funds for advocacy, so yes, they can lobby. Their professional lobbyists should fall under the same regulations as other lobbyists. Just check out the resources on the Alliance for Justice website (a great organization). A lot of states and cities have a trigger based on number of hours spent contacting elected officials or city officials or the number of contacts. Public testimony is usually exempt from these triggers.

  18. Max Allstadt

    I still want somebody to tell me why the burden of transparency is being put on the lobbyists, and not the politicians. Politicians are sworn to uphold the public trust. Transparency, accountability and fair access should be their job to uphold.

  19. Patrick

    I suppose the thinking is that lobbyists are the ones who may be the potential abusers, while politicians are paragons of virtue. The fatal flaw, however, is that lobbyists, by definition, are pushing an agenda of corporate or self-interest, whereas we can only rely on what politicians admit.

    The last time we talked about this subject, it seems that people felt that keeping a simple log of who politicians spoke with, and about what, was too cumbersome. Do we include chance meetings in bathrooms? What about if Nancy Nadel runs into Carlos Plazola at Flora?

    Cumbersome or no, the only way to even pretend we’re working towards transparency is to put the onus on the politician. I don’t care, necessarily, who lobbyists speak with. I care a great deal who our elected officials speak with.
    But since our elected officials can’t even figure out how to archive e-mail, I wouldn’t hold my breath.

  20. Carlos Plazola

    Patrick, the same issue exists for the Lobbyist if he or she runs into an elected official at Flora–is a chance encounter and a brief chat with a councilmember a lobbying event? If so, the burden is still on the lobbyist to report it. So, is the lobbyist so much more competent at recording their time than an elected official? If so, what does this say about our elected officials?

    Everything being asked of the lobbyist to record, can also be done by the elected official. The only difference is that elected officials have schedulers, and therefore it would be easier for them to keep records of meetings.

    Chance encounters, keeping records, deciding which meetings qualify, using one’s judgment to decide all of this: these are all responsibilities currently put on the lobbyist to figure out, so why can’t they be put on electeds? Doesn’t make much sense to me.

    In fact, when Max came up with this idea and mentioned it to me several months ago, it made so much sense that it seemed too simple. Under this scenario, my meetings with elected officials as a lobbyist would still get recorded and be made available to the public, so it’s not like I’m trying to get away with anything. It just makes for a better, more transparent, and more democratic system.

    And we wouldn’t have to debate amongst ourselves if 501c3′s or c6′s or c4′s or NCPC chairs should register as lobbyists. Everyone’s meetings with elected oficials would get recorded. Way too simple. And puts the responsibility where it should be.

    I think the more interesting question is: why hasn’t this been the rule from the beginning? I think the answer lies in who makes the rules.

  21. John Klein

    I think the Public Ethics Commission (PEC) really “dropped the ball” in the way it handled recent lobbying complaints, doing a great disservice to Oakland in the process. They decided our lobbying ordinance is too ambiguous to enforce. But, our lobbying law states, in exact and explicit language, that the PEC is supposed to decide ambiguous complaints and to do so “broadly.” The law is written like this so that the public’s interests are protected.

    But the PEC didn’t do this. They ignored this part of the law and their own guidelines, dismissing complaints because, they said, the definition of a lobbyist is “too ambiguous.” The PEC did this without ever looking at or asking questions about who is lobbying City Council members and city officials in private. In reality, they gutted our law. Now we have less transparency and less openness in Oakland’s government. That’s the exact opposite of what the law is for and of what citizens of Oakland expect.

    Maybe the PEC thinks it doesn’t have the authority to make hard decisions that protect the public’s right-to-know (it clearly does). Or, perhaps the PEC is afraid to those make hard, politically-difficult decisions. Worse, maybe the PEC is just plain corrupt. I don’t know and I won’t speculate. But, through all the recent PEC hearings, I never heard a single commissioner speak out or defend open government in Oakland or the public’s right-to-know.

    The PEC’s ineffectiveness was in full bloom last week. First, three PEC members did not even bother attending the special meeting. Then, during the meeting, one member was falling asleep during public comments. Another PEC commissioner, Ms. Aori, the newest commissioner, despite a high-powered legal resume, has barely said a word since joining the commission months ago (except voting to dismiss complaints). I thought lawyers – there are four of them on the PEC – are supposed clarify issues and make the hard choices. It’s not working that way with this group. I have my doubts whether the PEC is up to dealing with the lobbying issue in the way Oakland deserves.

  22. Max Allstadt

    Actually, I think they looked at the potential politicization that would result from allowing themselves to interpret the ordinance (or anything else) “broadly”.

    If we have an ethics commission made up of mayoral appointees, and we find ourselves in the second term of a mayoralty, we could easily have appointees nominated by only one mayor. Empowering such appointees to interpret anything “broadly” is tantamount to empowering them to persecute political adversaries and dismiss complaints against allies.

    This is a dangerous paradigm to set up. That’s why I’m glad the commission threw out your complaints, John. (Your complaints which you describe above in language which does not say that they were your complaints).

    It is precisely why any ethics legislation we create MUST be incredibly specific and well written. Is there anybody in this town that has a legal mind capable of crafting language so surgical?

  23. Steve Lowe

    Max:

    This is kinda what I was trying to get at last time by saying that you and a few others who agree with you can approach a Committee of the PEC and interactively work through the issue to the point where a satisfactory amendment, revision, initiative, etc., can be moved onto the agenda of the full Commission for approval.

    I don’t know which Committee that might be (is there something parallel to the Planning Commission’s ZUC? Ethics Update Committee?)

    The full Commission, drowsy members included, is likely to approve because everyone usually honors the work that his or her their colleagues have concentrated a lot of time on. So even if your language as first submitted is not as precise or “surgical” as you hope that it might be, by the time the EUC has finished with it, it will be – or as close to it as befits the moment (even if it needs further renining down the road).

    Lets do it!,

    – S

  24. John Klein

    Max, I think the way the PEC got to where it is today with the lobbying law is largely because the PEC is unwilling to make hard political decisions. As a group, they aren’t very interested or engaged in the issue, either.

    In taking the easy way out on the complaints, they dodged the law itself, their own complaint handling guidelines, and used inconsistent and biased hearing and investigation methods. Now we have less transparency…they’re a mess. I have no idea what they stand for.

  25. Max Allstadt

    John,

    When the chair of the Ethics Commission says that he’s taken an important sentence in the law to two English professors, and both professors say that the sentence in question could mean two different things, it’s pretty clear that the law is written poorly.

    Faced with insufficient specificity in the language, coming down on either side of your complaint would have been more political than deciding to re-examine and rebuild the law itself.

  26. John Klein

    Our lobbying law says that when there is any ambiguity about who a lobbyist is, the definition is to be interpreted “broadly.” The analysis is not supposed to stop or dead-end at the ambiguity – the PEC is charged with going on and clarifying it.

    The PEC asked for and got both narrow and broad interpretations of the definition of a lobbyist in a previous staff report. That report said, “the narrow interpretation is XXX and the broad interpretation is YYY.” Having the interpretation they asked for, the PEC choked…and didn’t use the “broad” interpretation even though, again, a) they asked for it b) they got it, and, c) our law requires them to use the broad interpretation. It’s not rocket science and they all know what it means.

    However, it would have been politically difficult for the PEC to use the broad interpretation. Why? It would have resulted in requiring many more individuals and organizations to register than we have now.

    To me, that is exactly how the law is supposed to work and this where the PEC failed. Now we have less transparency, not more. That is the exact opposite of how the law is supposed to work. That is the real test, transparency-open government, which the PEC failed miserably.

    As I said earlier, I don’t know if the PEC thinks they don’t have the authority to make hard choices (they do), or if they are afraid to make the hard choices, or if they are simply corrupt. I don’t know what these people stand for.

  27. John Klein

    Btw, Max, the chair of the PEC said, on the record, that he believed the grammatical analysis I submitted was the more correct one. It would have resulted in a broader interpretation. Again, though, the PEC dodged the hard choice.

  28. Max Allstadt

    The PEC is “Corrupt”? That’s a rather heavy thing to say without substantiation, don’t you think?

    As for the politically convenient thing to do, I think what you’re talking about is less a matter of political convenience than a matter of what is too cumbersome and too onerous to realistically implement.

    Had the PEC ruled in your favor, my plan was to begin the process of filling out scores if not thousands of complaints against anyone else in the city who could be accused of the laws you felt that members of OBA had violated. It would have created a logjam of epic proportions. It would have taken more paper than could have been milled from all the trees in Snow Park.

    What the PEC realized, I believe, was that Oakland had sloppily over-legislated the normal human interactions of talking to the government. This is especially problematic and cumbersome when we try to apply something like a lobbying law to all levels of government.

    In the Bay Area, where we have far more elected officials than most other places. If anybody who is paid to shill for anybody else is forced to track every interaction with the EBMUD Board, the AC Transit Board, the BART Board, the Peralta Community College Trustees, the East Bay Regional Parks Board, the OUSD Board… Can you see just how onerous this could get?

    I haven’t even brought un-elected officials into this yet. Where to they fit in? Is it only the City Administrator with whom a lobbyist would have to document contact? Or does the head of CEDA count too? What about the head Planning and the head of Economic Development? What about their subordinates?

    Clearly, some line needs to be drawn, or the next thing you know, if Carlos and I walk out of a coffee shop and I get a parking ticket, and Carlos argues with the metermaid on my behalf… We’ll have an inquiry into whether or not I paid for Carlos’ coffee and whether or not his free coffee is equivalent to a retainer.

    The law has to be simple. It has to be clear enough that “interpret broadly” doesn’t even need to appear in it. And it has to put the burden on the politicians.

  29. Steve Lowe

    Again, the way to get clearheaded policy from Planning, Public Ethics or even the Port is to interact with the individual Commissioners at the Committee level where there’s no speaker’s cards required and intelligent dialogue can ensue.

    You can mull all day about which member of this or that Commissiion is doing his or her job, but in the end, they all have to pay attention to specific actions (and do so without being unduly influenced by staff) when the item before them requires thoughtful interchange from all parties, not just deference to whatever political philosophy one may ascribe to.

    There’s currently no Community Advisory Committee at the Port of Oakland, but we’re fighting for one now, and everyone who’s been dealing with the impenetrability of Oakland’s various institutions in the past ought to be thinking about how to engage these policymakers more seriously than has been the case for the last forty years or so that I’ve been witness to the process.

    If putting the onus on the electeds (as to who or what lobbying efforts may have been made) is a good first step or answer to better governance, as I think Carlos and Max are suggestiing, then let’s find a way to make it work, starting with PEC. I haven’t agreed much with either of those gentlemen for some time, but this sounds kinda promising…

    Meanwhile, don’t buy anyone coffee until after 6:00, so that the meterperson won’t force you into a situation that requires filling out forms in triplicate; it’s bad enough that the cappuccino otself costs almost five bucks in the first place.

    – S

  30. John Klein

    Max, I merely stated that corruption is one among many possibly reasons for the nonsensical decisions the PEC has made, as well as for the PEC not following our law, their guidelines, and for using inconsistent and unfair procedures.

  31. Max Allstadt

    John,

    Wrapping an inflammatory accusation in the veil of a hypothetical does not excuse you from taking flack for the accusation.

  32. Max Allstadt

    Swift-boating? are you serious?

    John, I refer you to Jon Stewart’s website, where you can watch multiple clips of him mercilessly mocking left and right wing folks who attempt to use hypothetical statements as a way of shielding themselves from criticism for making unsubstantiated accusations.

    Here is an example: Why would you accuse me of “swift-boating”? Perhaps you’re frustrated, perhaps you’re indignant, or perhaps you’re the reanimated corpse of an 18th century conquistador, enslaved by a voodoo priestess and set in motion to taunt me.

    See how easy that is? That’s why it’s not cool to do it.

  33. Steve Lowe

    Patrick: by its very nature, bureaucracy expands to its point of least functionality – or Kafkaesque surreality, hence Guantanamo, yes? Every generation therefore is left to improvise new ways of deflating the balloon and getting things done, knowing full well that the bureaucratic fungus will creep back to slow the process down as much as possible.

    So, rather than rail against the cracked cheeks of an ill wind, let’s figure out a way to access and bring to bear the best thinking of the various Commissioners we’ve been dealt. Like anywhere else that human activity exists, there’s bound to be a spectrum of great and not-so-great and even some yucky minds out there trying to make everything fit into their own square peghole. And all that’s really necessary to make it work better than it is right now is to apply a dollop of interactive commonsense here and there, something that is actually incumbent upon you and anyone else who can see the flaws and wants to sit down to fix it.

    All the invective in the world won’t work in terms of achieving a solution for the problem of Bureaucrats Gone Wild: only by inserting a small measure of rationality directly into the brains of the policymakers themselves will you or anyone else be able to affect real change. And that can’t happen at the blog level, it has to happen face to face in an officially sanctioned format, the only one I know of – and have seen work – being the (Name Here) Commission’s own committees and/or subcommittees.

    If it’s not so, tell me what other remedy exists?

    ????

    – S

  34. Robert

    John, I am hoping that your swift-boating reference is due to nothing more than your being too young to know what swift-boating is. The closest anyone here has come to swift-boating is your own accusation of corruption by the PEC. And you have also taken on one of the very nasty habits of the extreme right wing by accusing while simultaneously denying that your yourself believe, i.e. “I’m not saying they are corrupt, but…”

    To the substance, I stayed out of this for a long time because I don’t think that ‘open government’ and ‘transparency’ changes over the last couple of decades have done much, if anything, to foster better governance. Government at all levels is far less effective now than it was back in the 50s and 60s. Now the libertarian in me does sort of think that ineffective government is better most of the time than an efficient one. but I am of the opinion that government is much less effective now than it was.

    I really don’t care who our politicians talk to, I determine how I vote based on their actions. I see nothing wrong with them talking to all sides, and as many sides, as possible before coming to a decision. I think every voter should do the same. Corruption, is an entirely different matter, but there are already strong laws to prosecute politicians or staff taking money from anybody. And the you scratch my back and I will scratch yours is an inherent part of the political process.

    Going back to a much earlier comment, the last thing that I want is an appointed board (the PEC) making hard political decisions. That is what we elect politicians to do. The only thing I want any appointed board, or staff, to be doing is implementing the policy as decided on by council and mayor. If the policy is unclear, it has to be up our elected representatives to clarify it.

    If we have to do this, make the burden be on the folks we elected to justify who they have talked to, don’t burden the ordinary citizen with figuring out he law. One reason for that is simplicity. If our elected reps need to keep records, only a dozen or so people will need to be trained on the law, instead of the hundreds that will need to understand and be trained if the ‘lobbyists’ need to keep records. Or, maybe the city is planning to use this as one more way to balance the budget by fining unsuspecting citizens for breaking a law.

  35. Robert

    Naomi, you raise a good point, and I admit to being torn about this.

    1. How do you differentiate the secret agreement to contribute to a campaign in exchange for a vote (clearly corruption) from contributing to a campaign because you agree with how a politician has voted (or think that they will vote).

    2. How do you ensure that contributions in kind (e.g. a union getting its members to walk the streets for a candidate) are treated the same as a money contribution. Both can be equally ‘corrupting’ because they can both help a candidate get elected.

    If there were mechanisms available to deal with these, I might agree the campaign contributions should be dealt with also.

  36. Max Allstadt

    Campaign contributions are especially tricky. If a candidate is not an incumbent, is there any precedent fo regulating who they talk to? How could we set up a system to do this that wasn’t downright Orwellian?

    There could be horrible unintended consequences if such regulation was created. The small-time fringe candidates might try to take eachother out with ethics charges. A candidate that was chipping into a major candidate’s chance to win might also become a target of frivolous complaints.

    I think we already have an excellent way if preventing campaign contributions from buying votes: we limit the size of contributions. It would be downright crazy to risk federal corruption charges for a lousy $600 donation.

  37. Naomi Schiff

    Aggregated individual (simply identified as members of the group, not necessarily combined) contributions from the members of a group that is lobbying for something, as well as contributions from groups such as the Chamber of OakPAC, can have a large effect on votes by policymakers, who have a hard time ignoring that kind of thing.

    As usual in the US, the entities and people with money have disproportionate influence. Transparency rules should at least reveal who policymakers are listening to, because then you can compare it with where their campaign funds are coming from, and assess their degree of independence and their ability to analyze issues more or less rationally.

    Max, once a candidate has officially launched a candidacy, I believe the campaign rules kick in–not once they are elected.

  38. Max Allstadt

    Yes, when a group of people decide something, the power of the whole is greater than the sum of it’s parts. I don’t really see how we could possibly change that. Groups with agendas that I disagree with have this power. Groups that have agendas that other people disagree with have this power. This is the way the world works.

    As for transparency and quid-pro-quos and full-on bribery, there’s no way to fix all of it, short of strapping a 24/7 streaming webcam to every politician’s head.

    I believe that back room deals happen. I believe bribes happen. But neither are truly rampant, and the only people who will ever get caught are people who have levels of hubris that are off the charts. You have to be arrogant, stupid, or very unlucky to get caught.

    While the law is somewhat powerless to change the way two people behave when no one’s watching, there are other ways. Diligent members of the media help. Building a culture of honesty and integrity helps. And most importantly, democracy already operates as a hedge against corruption. If a politician accepts a quid-pro-quo in exchange for doing something wildly unpopular, they answer to the voters.

  39. John Klein

    I’m just trying to understand what the PEC could possibly be thinking. They ignore basic provisions of the ordinance. Their minutes and record are atrocious and sloppy and they don’t give explicit reasons for some of the decisions they make. They have written guidelines that they don’t follow and they don’t have consistent methods for investigating or dealing with complaints. In any case, these all need to be updated, too. This means they come up with inconsistent decisions and rulings. I don’t know if they are corrupt. Jeez, maybe they are just disorganized. Whatever it is, simply tinkering around the edges of the law isn’t going to change much if the PEC doesn’t itself doesn’t use transparent and fair methods.

    Our lobbyist law is only eight pages long. In cities like LA and San Diego, theirs run 25-30 pages. It’s not “legislation by the word” or “more is better” but it’s indicative of how backward Oakland is. Maybe you don’t like my ethics complaints, but before I made them, we were all walking around thinking Oakland had effective lobbyist registration – that turned out to be a pipe dream. As of right now, between the public apathy, on the one hand, and the open hostility toward registration and the ordinance on the other, I doubt whether Oakland really wants lobbyist registration.

  40. V Smoothe Post author

    Okay, enough John. This is getting ridiculous. The Public Ethics Commission does not, and has never that I’ve witnessed, ignored basic provisions of the lobbying ordinance. Nor do they fail to give explicit reasons for their decisions, have inconsistent methods for dealing with complaints, or ignore written guidelines. There is no evidence that they are corrupt, nor that they don’t care.

    Just because they make decisions that you personally do not like does not mean those decisions are wrong. Similarly, no decision made all year has left us in a position, as you keep claiming, where we “do not have a lobbying ordinance.” The fact is, we do have one, a fairly clear one, and you just don’t like what is says. That’s a big difference. Your baseless and inappropriate accusations are becoming tiresome.

  41. John Klein

    I won’t go into the specifics here, V. – too many ‘weeds.’ If you want to know the specifics of what I am referring to, you should make a public records request to the PEC for my Sept. 21 letter and my Sept 30 email to the PEC and to Dan Purnell.

  42. Max Allstadt

    V,

    I can definitely agree with John that his complaint allowed us to realize that our lobbying ordinance is poorly written. Our nepotism and cronyism ordinances are similarly sloppy.

    The Commission, along with many others including the LWV…there seems to be a consensus that the lobbying ordinance needs an overhaul.

    John,

    As for your statements that the Commission has ignored the ordinance, given no explicit reasons for their decisions, or have been inconsistent, I disagree. I also see no evidence of apathy or corruption.

    And most importantly, I strongly believe that when you throw those last two accusations around, hypothetically or not, you weaken your own credibility and make it less likely that any future complaints you make will be taken seriously. Because I disagree with many of your concerns, for me to come out and tell you that your shooting yourself in the foot is, frankly, magnanimous. Tactically, I would have done better to let you keep firing away.

    But I’m also just tired of it. There are bigger ethics problems in this city than a couple of meetings between some builders and some councilmembers. Much bigger ones.

  43. V Smoothe Post author

    John, if you want me to read the letters and e-mails you send the PEC, just BCC me on them or forward them to me. I am not going to go file a CPRA request for your correspondence.

    I have watched all the PEC discussions of your complaints and read all the reports. And of course, we have talked about it in person and over e-mail, and I have had similar conversations with people you are filing complaints against. It appears that you are very frustrated that the lobbyist registration act does not apply to people who are not being paid for their work. Or, more specifically, you are frustrated that the lobbyist registration act does not apply to people you don’t agree with who are not being paid for their work. It has been explained repeatedly that their are constitutional problems with such a requirement.

    If you want to see the lobbyist registration act changed to address your specific concerns, that’s fine. You are welcome to talk about the changes you think need to be made. But please limit your criticisms to the law in question, and leave the attacks on the PEC out of it. Repeated veiled accusations of corruption are baseless and inappropriate.

  44. Max Allstadt

    Naomi,

    Yes. Please. Exactly. We have 11 elected officials in City Hall. That’s a mere 11 calendars and sets of appointments to keep track of, instead of tracking 500-1000 people who could be construed as lobbyists under the current law. This is a no-brainer. Let’s get it done.

  45. Carlos Plazola

    V, John, and Max, my opinion is that the Lobbying Ordinance, like the cronyism ordinance, leaves much to be desired. I want to remind people that I actually did register as a lobbyist for my for-profit work representing clients. I didn’t hide anything. This part of the ordinance is clear.

    My wife, who has been the operations director for non-profits for years (including some very well-known progressive ones in Oakland) and deals with issues of compliance was actually the one who interfaced with Purnell and his staff on this topic for the OBA of whether non-profit activity should be counted as lobbying.

    After reading the ordinance two years ago, and talking to PEC staff, she was convinced that non-profit activities did not have to b registered. Purnell’s tendency to “forgive” what he perceives to be “righteous” non-profit activities, while being less forgiving of non-profit activity he may not agree with, is also part of the problem.

    The OBA, and I, got caught in this web of confusion and lack of clarity based on John’s complaint. Oh well. That’s life. But maybe something positive can come out of this for Oakland, after all, based on the last two posts before this one.

  46. Carlos Plazola

    Max and Noami, please be careful what you do here. If you make things work too sensibly, Dan may not have a job…whoops, my cynical side just poked through, again. Sorry about that…down, boy. down! :-) JK

  47. Max Allstadt

    Carlos, while I think John’s complaint against you may have been something of a head-scratcher for the PEC, It became very clear to me that his motives were entirely retaliatory and frivolous when he filed a complaint against Matt Novak.

    Mr. Novak had not done any lobbying whatsoever, merely sent emails about his personal opinions to some councilmembers.

    Granted, the emails advocated for a policy position that Mr. Klein didn’t like. But if that’s an ethics violation (it isn’t) I invite Mr. Klein to file public records requests for emails from me, and file a complaint against me, because I’ve acted as a private citizen and advocated for things Mr. Klein doesn’t like on multiple occasions.

  48. Steve Lowe

    To Carlos’ point about something positive coming out of all this sturm und drang (well, mostly drang), what kind of specific action, one that involves John and anone else who cares enough to see the most sensible policy result, does everyone think ought to occur?

    If whatever everyone comes up with is honed to the point that its logic is infallible, then when can it be taken to PEC, preferably in Committee where its merits can be discussed interactively and public comment not closed – the right of rebuttal being as critical to the process as is the current privilege of seemingly endless opining that for some reason has been handed to our public officials so that they can justify really bad decisionmakiing with impunity.

    Can we pick a time, a place with a functional cappuccino machine and come at it in the spirit of repairing something that is hardly working no matter how you look at it?

    Ever been to the Revolution Cafe?

    Peace out!

    – S

  49. Naomi Schiff

    I am attempting to research a little further into what San Jose does. They have a pretty functional website, by the way. I think it might be good to discuss all this with the League of Women Voters first, before trudging over to City Hall.

  50. John Klein

    Why’s everybody always pickin’ on me?

    You may think I am full of sh!t for the complaint regarding Novak because it only had four private e-mails that he sent to De la Fuente. Even the PEC saw this and that became the basis of their dismissal.

    No one, including the PEC, looked at the documents Carlos submitted in his complaint against me. If you look at what was submitted in Carlos’ complaint, you will see there is not a single private e-mail or contact from me to a council member, not ONE – even Novak sent four e-mails, with DLF office writing back to him. So, please spare me the self-righteous indignation. Or, rather, direct it at the PEC where it belongs.

    But wait, it doesn’t end there. The PEC dismissed Carlos’ complaint using the ambiguity song-and-dance they’ve been relying on to get them out of making hard choices. That is, the ambiguity whether the lobbying law covers uncompensated employees, directors or officers of corporations or associations.

    Where the PEC completely botched this is that I am not a board member or employee, neither compensated or uncompensated. Recall that the OBA issue concerned uncompensated volunteer board members and whether the lobbying law includes them. The OBA folks freely admitted being board members, but as uncompensated volunteer board members.

    I, on the other hand, am not a board member of any kind. The record is crystal clear I am not an employee, officer, or director in any way, shape, or form. It was a complete mistake for the PEC to dismiss the Plazola complaint because of a so-called ambiguity. Carlos’ complaint should have been dismissed because I did not meet the definition of a local government lobbyist. I have no idea what those people stand for.

    Hugs for everyone.

  51. Max Allstadt

    John,

    So what you’re saying is, you’ve structured your organization, CALM, so that you can act as a spokesperson and a leader without formally being called a director or a board member. That’s pretty smart!

    I suppose that means that every other special interest group in the city should follow your example and restructure, thereby render our already useless lobbying ordinance even more moot. Perfect. That’ll be the last nail in the coffin and we can move on to a better ordinance.

    Naomi,

    If you set up a pow-wow with the league on this, please let me know! I’m very interested in finding a way to solve this problem. As much as I enjoy a good online flame war, the idea of making real progress and never having to debate this again is very, very appealing.

  52. Ralph

    “That is, the ambiguity whether the lobbying law covers uncompensated employees, directors or officers of corporations or associations.”

    This is a point which really should not be up for debate. The lobby laws should cover at a minimum directors and officers. I thought SJ was a step in the right direction. And there are some other cities, I think Madison, that require such individuals to register.

    Having an open calendar is nice, but having compensated and uncompensated lobbyist register is better.

  53. John Klein

    While we are fixing the lobbying law, the PEC should do the same with its complaint handling procedures. It’s not only about having a good law. It’s also about the PEC using complaint handling procedures that are fair and consistent for everyone. Right now, it doesn’t do that.

    In my Novak complaint, the PEC couldn’t figure out his employment status even though it is a central question, “salaried employee, officer, or director” as our law defines a lobbyist. But the PEC didn’t answer with this. I made this point to the PEC and how it would be impossible to rule that someone is not a salaried employee without identifying the true employment status.

    I asked this more than once but the PEC refused to ask basic questions such as: does he have a desk or office? Does he get company benefits? Does he go to work every day? They simply refused to ask these questions. They relied only on his denial that he is a salaried employee. That is not proof of anything.

    The PEC didn’t have this information and didn’t want to ask staff to get it. Instead, the PEC looked at the e-mails submitted and said that four e-mails weren’t enough of maintain a complaint. They dismissed the complaint. This is the first and only time the PEC had ever done this.

    Fair enough. But they need to be consistent and do this for other complaints, too.

    In Carlos’ complaint toward me, when the PEC could not figure out my status: compensated, uncompensated, volunteer, etc., they did not look at any of the e-mails or documents. They dismissed Carlos’ complaint using the ambiguity claim without really knowing what evidence was included. The PEC did not look at the underlying e-mails as they did in the Novak complaint. If the had, they would have seen there was not one single e-mail or any thing else showing I communicated with any council member in private.

    It’s an issue of fairness and using fair and consistent procedures. The PEC used inconsistent procedures in handling these two complaints and came up with inconsistent results. They need to update their complaint handling procedures, too.

  54. Max Allstadt

    John,

    Regarding the ordinance; yes, it needs to be fixed. I believe very competent people on the PEC and at the LWV are working on that, and I hope to be able to volunteer some of my time on it soon.

    Regarding the details of the complaints you filed which have now been dismissed, I refer you to Matthew: http://bit.ly/nOHh1

  55. John Klein

    The PEC needs to treat every complaint and complainant the same. They haven’t been doing that, that’s all I’m saying. The only way to find out how the PEC is going to deal with complaints is by going through the process. In the same way we thought we had a lobbying law, we also thought we had an even-handed PEC. It turns out both are untrue. I believe the examples I’ve pointed out demonstrate this, there are other instances, too. Maybe some people are okay with that, I’m not.

  56. Max Allstadt

    John,

    If you want a law to be applied consistently, is should direct those charges with enforcing it to interpret it “broadly”. That wording created the opportunity for the multiple interpretations that are giving you a basis to keep crying foul indefinitely. We need to fix the law so that I can stop having to come back and rebutt you every morning!

  57. Max Allstadt

    Arg. Dang iPhone. I meant to say the law shouldn’t include a directive for it to be interpreted “broadly”. The law needs to be specific or the appropriateness of sour grapes will also be interpreted broadly.

  58. John Klein

    Max, your channeling John Stewart, or Ferris Bueller, or a voodoo priestess are hardly what I consider to be credible rebuttals.

  59. Max Allstadt

    John,

    I resort to humor sometimes but not all the time. It adds color to a debate that would otherwise be insufferably boring. And aside from
    Ferris, all my humor has been illustrative of portant points.

    Besides, your win-loss record speaks for itself. Rebuttals are somewhat gratuitous.

  60. Steve Lowe

    Carlos, sorry to have been distracted from this bloggone part of the ongoing ABO dialogue by the OAC imbroglio: If Naomi and Max solved the issue, that’s great; they both have thought through the points enough. The question is, what’s the procedure now to ensure PEC takes it on and sees it through to where we’ve got a useful ordinance in the works.

    My position is that PEC, PC or any other C (including that of the Port) has to be approached in a way that allows the members of its (Your Issue Here) Committee to engage in productive dialogue. This town is way too prewired when it comes to citizen input (QED OAC), so using logic only works when in direct, interactive, give and take discussion – exactly the opposite of what happened Tuesday when MTC spokespeople and other high-ups from the hierarchy arrived to float their goofy rationale (“seamless connection?”) in front of our Oh-Boy-Look-At-All-That-Money officials.

    Whatever committee or subcommittee exists of PEC to deal with registration of lobbyists needs to be identified and this issue put to it there. If it goes to the full Commission, perplexity will inevitably reign, and you’ll think you’re right back in Dejavuville watching Twilight Zone reruns.

    Next steps, please!

  61. Max Allstadt

    Steve,

    While I appreciate the nod you’re giving me for “solving” this issue, I can’t really take credit for the real work that’s going on right now to really make a change. Both the PEC and the LWV are spending serious time seeking a solution. They’re the ones who deserve credit here.

  62. Steve Lowe

    Okay. Just responding to Carlos. Good to hear that the League is on board, but we need to know when and where they are meeting with PEC and what specific Committee of the PEC they are working through…

    Thanks!

    – S

    [You, Naomi and ther rest should take at least a modicum of credit for keeping everyone's eyes to the grindstone and helping the League press home its various points.]

  63. John Klein

    On Wednesday, 10/21, the Sunshine Committee of the PEC will consider amendments to the Sunshine Ordinance. Electronic calendaring and paper sign-in sheets for the Mayor, City Council, and City Administrator will be discussed.

    The purpose of the meeting is to take public comments and discuss these proposals along with others already under consideration. You can see the agenda here http://tinyurl.com/ylg8fde Make sure to check the Staff Report and Attachment 1 at the very bottom of the Agenda.

    This a great start. It needs some refinements and more detail so I encourage everyone to read, write, and show up on Wednesday.

  64. John Klein

    The PEC is proposing that the Mayor, all Council members, and the City Administrator, maintain sign-in sheets for all visitors. The details are still being worked out about who will be responsible to be sure visitors sign in accurately and completely. Part of the solution is that the change includes the provision that Council staff will be required to complete the sign-in sheet if they think visitors aren’t doing it themselves.

    The PEC hasn’t figured out how to assign complete responsibility for this, though. They might assign the “duty of care,” which is a little heavy. But, someone in each office needs to be responsible for collecting accurate and complete visitor information. Some staff training will be needed for handling the sign-in sheets. The sign-in sheets will be posted online weekly. This should help. If they are posted weekly, everyone will know very quickly how well they work and if the sheets are being filled out properly.

    The PEC is definitely interested in online, viewable, calendars for the Mayor and City Council, too. SF Mayor Newsom’s calendar is online, ours should be also, so says the PEC. I agree. The PEC is researching technologies that will allow the Mayor and Council members to link to the same online calendaring system. This will include future meetings as well as past meetings. One of the issues about this is how often the Mayor and Council members must download their individual calendar to the publicly-viewable system.

    In any case, it’s great the PEC seems to be going ahead with this without a lot of pushing from the public. I’m not sure who/what is driving it – I was the only member of the public at the special PEC meeting for this. Those of you who are really interested in these improvements in local government accountability should show some support (and love) to the PEC.

  65. Robert

    John, is this the Max approach? In some industries companies require all visitors to sign in, and have the receptionist compare the name to their ID (eg drivers license). This should be pretty easy for a staff member to do. Affiliation is more difficult, but the names would seem to be the critical aspect, and easy to verify.

  66. Naomi Schiff

    There is a receptionist (sometimes two) in the City Council office. In order to see a councilperson generally one gives one’s name to this receptionist and says the name of the councilperson with whom one plans to meet. Seems like it wouldn’t be that hard to keep a record. Mostly you don’t just cruise into the councilperson’s office because there are those two closed doors off the reception area.

    The harder part is meetings that do not occur in the offices. What should be the rules for meetings in coffee shops, etc., but still in a generally official capacity? Are council people going to be able to distinguish between doing city business and, say, campaign business or other personal business? Well, they already have to make that distinction in order not to violate election laws and conflict of interest, don’t they? (Or they should anyway.)

  67. John Klein

    Robert,
    Yeah. Max, Carlos, and Naomi, too. Not sure if posts by those three here were the impetus for the PEC taking up the legislation. But, it really looks like these changes are coming.

    There are receptionists in each office, for sure. It will take everyone getting used to the idea of signing in upon arriving. It will also take everyone in each office to make sure visitors are signing in as expected.

    I can foresee a time not to far into the future, a year or so, when it will be nearly automatic and an established habit that visitors will simply sign in.