John Klein: The Public Ethics Commission Plods On

7 Dec

This guest post was written by John Klein, a resident of Oakland for over 23 years. His sense of ethics was formed as full-time volunteer for 12 years during the 70’s and 80’s with Nyingma Centers, a Tibetan Buddhist community in Berkeley and Sonoma County, and more recently as a legal assistant in large Bay Area firms.

On December 7th, tonight, the Public Ethics Commission (PEC) continues its discussions on amendments to the Lobbyist Registration Act (LRA) and to its own enabling ordinance (OMC).  These have been in the works since July of this year.  The PEC will also decide several outstanding ethics complaints filed by David Mix.  Here’s the agenda for PEC’s December meeting.

The need for changes to the lobbying law arose during a series of ethics complaints in the first half of 2009.  In the midst of those complaints, it became apparent that our law was not well thought-out making it hard to enforce.  Even so, I’ve been of the opinion that the PEC could have done more than simply dismiss the complaints.  It could have issued Advice Letters clarifying the ambiguous situations which would have had the further effect of upholding the public’s right-to-know who is lobbying local officials.  However, the PEC decided, wrongly in my view, that the LRA is too ambiguous to enforce.  The real effect of the course taken by the PEC was to gut our law and, at the same time, signal lobbyist that they won’t be held accountable

To its credit, the PEC recognized the law needs to be changed, especially regarding volunteer or unpaid lobbyist associated with large, non-profit business groups, and undertook the current process to amend the law. As it stands today, however, a group of businesses can form a non-profit business group and lobby City Hall without the need to disclose it.  Some groups are already doing this.

With regard to the amendments, first of all, we’ll see clearer distinctions of the different types of lobbyists and how they are regulated.  Three categories of lobbyists are proposed, two of which are already part of the LRA and will only be “tweaked” in these amendments.  The first is a “contract” lobbyist who is someone hired by another for the purpose of lobbying.  When the contract lobbyist makes more than $5,000 a year, they must register as a local lobbyist.  The change for contract lobbyists is to increase the compensation threshold from $1,000 to $5,000.

The second type is an “in-house” lobbyist and is someone that lobbies as a part of their employment or on behalf of their employer; they don’t receive extra compensation for the lobbying.  The change for in-house lobbyist is that any compensated employee, not just board members or salaried employees, must register if they lobbying local officials.

A third, new category would be the “volunteer” lobbyist.  This is someone that is a non-compensated officer, director, managing member and/or managing partner of an entity who communicates six or more times with local officials (the number of contacts is still being worked out).  For this type of lobbyist, a threshold number of contacts with an official or officials will trigger the requirement to register as a lobbyist.  The number of contacts could be as few as one contact per month to trigger the requirement, or as many as 25 or more during a given period.

I like the addition of the volunteer lobbyist category and think it will solve the problems created when businesses form non-profit groups and lobby without disclosing it. Clearly, a business group seeks only to improve the business prospects of its members.  It is disingenuous and untrue to think a powerful business association is the same as, or on par with, groups like the Friends of the Oakland Public Library or the Sierra Club – they clearly are not.  If adopted, volunteer lobbyists will have to report their lobbying activities after they make a specific number of “communications” or “contacts” with local officials.  This idea is still being refined and is not a done deal.

Another non-controversial proposal is that the PEC wants to expand the list of private industry position titles subject to lobbyist registration so that “managing member” and “managing partner” are included.  This may not seem like a big deal, but it is.  A Limited Liability Company (LLC) is run by managing members but currently our LRA doesn’t include managing members.  Right now, there are a number of managing members of LLCs regularly lobbying City Hall but they don’t have to report it.  This addition will change that.

The PEC is also adding a new section called “Findings and Declarations” which sets out the purposes of the lobbying law.  The lobbying laws of other cities and jurisdictions usually have a section at the beginning that states the reasons for lobbyist registration.  These declarations reaffirm the need for transparency in government; restate the public’s right-to-know who is meeting with government officials attempting to influence legislation; and re-enforce that openness in government is necessary to eliminate corruption or the appearance of corruption from the legislative process.

Oakland’s LRA doesn’t have a declaration like this and the absence of on puts the PEC, and the public, at a disadvantage.  If the PEC hears complaints with situations and facts that lead to ambiguous outcomes, there is nothing in the current law for the PEC to fall back on.  And we’ve already seen this.  The PEC has already dismissed complaints citing “ambiguities” and no statement of purpose to fall back on.  With a statement of purpose, the PEC can cite those purposes in order to decide complaints in a way that preserves the public’s interests.  Follow this link to read more about these proposed changes in the LRA.

On a different front, changes to OMC 2.20, the PEC enabling ordinance, center on qualifications and restrictions for PEC commissioners.  The limitations currently proposed for future commissioners are that they, 1) can’t be employed by the City or one of its Agencies, 2) can’t act as a local governmental lobbyist, 3) can’t seek election to any Oakland public office, 4) can’t seek election, to any other public office, or participate in or contribute to an Oakland municipal campaign, 5) can’t publicly endorse, support, oppose, or work on behalf of any candidate or measure in an Oakland election, 6) can’t accept a gift of any value from an Oakland elected or appointed official.  The last item about gifts has a long explanation about the definition of a gift.

The Metropolitan Greater Oakland Democratic Club has been asking for these rule changes and I hope they are successful.  MGO’s push arose from the situation wherein a new PEC commissioner was appointed who is also the registered domestic partner of a local government lobbyist.  A number of people in the community felt blindsided by this appointment and its obvious conflict of interest.  Even the PEC chair, Andrew Weiner, was not aware of the conflict before the appointment of the new commissioner early this year.  Oakland residents deserve and should expect ethics commissioners to be free of perceived or actual conflicts or personal ties with the very lobbyists they regulate.  This is the only way to ensure that commissioners will act impartially while on the commission. You can read the proposed changes here.

There are a number of other interesting changes under consideration by the PEC which aren’t on the December agenda.  They include a PEC recommendation that the Mayor, the City Council, and the City Administrator be required to maintain sign-in sheets for visitors.  The PEC also wants the Mayor and City Council to maintain electronic daily calendars and meeting schedules and to make them available to the public online.  PEC staff is researching technology platforms to make this possible and we should see something about this early next year.

The PEC also recommends a ban on “Late Night Decision-Making” which would prohibit the City from making certain decision between the hours of 11pm – 9am.   Finally, the PEC wants to expand of the group of City officials and employees who must take two hours of Mandatory Sunshine Training every two years.   Here’s more information about it the items not on the December agenda.

I hope everyone gets the opportunity to watch or attend this month’s meeting.  If not, you can always send your comments to the PEC by email to ethicscommission@oaklandnet.com.

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