Did Quan violate City or campaign laws? It depends on the significance of hyperlinks.

2 Mar

Last night’s Public Ethics Commission (PEC) meeting was packed with controversial items and lengthy debate. I didn’t make it through the whole meeting, but I’m guessing it went on well past 11pm. Don’t worry, I’m not going to subject you to a recap of the meeting, which was very interesting but also often maddening. If you want a recap, check #oakmtg on Twitter.

Instead, I’m going to focus on the complaint against mayoral candidate Jean Quan. I know, I know, there was also a complaint about Perata, but that complaint was a bit more clear cut and less interesting. The PEC did ultimately decide to admonish the Oakland Police Officers Association and “request” that they reimburse the City for the city-sponsored event where the Perata endorsement was made. (They don’t have authority to demand a reimbursement.)

The Quan complaint is particularly interesting to me, and to the Commission, because it involves issues regarding online communications that the City has yet deal with. The complaint, filed by Anthony Moglia, alleges that Quan violated Penal Code Section 424(a) by using public funds for campaign purposes. Specifically, Moglia points to Quan’s use of her city-funded website and newsletter to promote her campaign. Moglia’s complaint also points out that Quan encouraged her constituents to lobby for IRV, and Moglia alleges that this was clearly in Quan’s campaign interests and she should have disclosed that in the newsletter.

Back in November, I wrote about this issue:

Jean Quan made a huge mistake by using her City email list to announce her candidacy and ask for support and funding. Why is this problematic? The accumulation of email addresses and the maintenance of that list is done by her council staffers, who are paid by the City. Though I doubt that City staff time was used to write her mayoral announcement, hours of staff time were spent on the email list, and the law makes it clear that this is illegal.

What’s worse is that in her attempt to explain that her Council office and campaign are separate, she violated the law again. In her weekly newsletter following the campaign announcement, she wrote this:

Reminder: In our office we need to keep our City Council work separate from campaign activities for Mayor.  Please do not contact our City Hall office or city email for those communications, please use our temporary website or Facebook for those communications.

By linking to her websites, she again used a list cultivated through staff time to promote her campaign.

As you can see by what I wrote in November, I think it’s pretty clear that Quan violated the law. Even if she didn’t, what she did was unethical.

What I didn’t mention in November is that all of these communications were sent by jquan@oaklandnet.com, a City email address. But the PEC didn’t discuss the emails much, since that wasn’t central to the complaint, and instead focused on the hyperlink issue. The City website, in the City Council section, links to jeanquan.org. That site is not funded by the City, but by funds from Quan’s officeholder account, which are similar to campaign funds and are privately raised. Then, this site links to jeanquanforoakland.org, and OMG, Quan finally has a real website up that’s not that hideous blog, and it actually looks really good!

But back to the issue at hand. The PEC and its executive director, Dan Purnell, discussed whether that hyperlink, which connects the City website to Quan’s campaign website via another site, violates the law. Purnell thought it was far enough removed that it didn’t violate the law. From the staff report:

The preliminary staff report stated that Ms. Quan uses the City’s computer system to link the viewer to her outside website [JeanQuan.org] for the purpose of maintaining an electronic newsletter and communicating with constituents. The staff report also revealed that from this outside website viewers can be linked, upon request, to a second outside website paid for by Ms. Quan’s 2010 mayoral campaign committee. It is at this second website that viewers can sign-up to receive information about her mayoral campaign. It was this degree of attenuation between the City’s computer system and her two outside websites that caused Commission staff to recommend the Commission take no action to refer Mr. Moglia’s allegations that Ms. Quan misused City resources to another law enforcement agency…

As cited in the preliminary staff report, Government Code Section 8314(b)(2) creates an exception from the rule prohibiting the use of public resources for campaign or other personal uses not authorized by law. The exception applies to the so-called “incidental and minimal use” of public resources within which the exception allows “the
referral of unsolicited political mail, telephone calls, and visitors to private political entities.”

Thus it appears that public officials may occasionally refer visitors to “private political entities” so long as such referrals are “incidental and minimal.” What is unclear is whether the ongoing access to a campaign website, directly or indirectly through the City’s computer system, constitutes something more than an “incidental and minimal” use of public resources. Commission staff recommends that the Commission direct staff to work with the Office of the City Attorney to develop more specific guidelines for the use of the City’s internet service by elected officials.

Got that?

In the end, the PEC voted to have Purnell seek an informal opinion from the Fair Political Practices Commission (FPPC) on the hyperlink issue. Once the FPPC weighs in, the complaint will again be brought back to the PEC (it was initially brought to the February meeting).

When the Commission revisits this complaint, I hope they’ll focus on what I think is the much more clear cut issue of using a City email address to send out campaign communications. While the indirect linking is also problematic, the email issue is cut and dry and can be proven.

The PEC also would be wise to consider that Quan continues to use her email list for campaign purposes, even though her practices are currently being investigated by the Commission. This past Saturday, she sent out her weekly newsletter and it included an item urging readers to contact the PEC about Thursday’s special meeting. Here’s the entire item:

An attempt to rush doubled campaign donation limits through the City Council by City Attorney John Russo and Council Member Delafuente was delayed when the Council Rules Committee referred the item to the Public Ethics Commission which has jurisdiction over Campaign Finance Reforms in the City, including contribution and campaign finance limits.  This Thursday, the Public Ethics Commission will hold a special meeting on the issue.

Why Is This So Important?

  • Limits for the Mayor’s Race could go up from $380,000 to $760,000.  Council races would go up from an average of $100,000 to over $200,000. After the new census numbers and with cost of living increases, they will be more.
  • Donation limits would go up from $700 (just raised from $600) per individual donor per election to $1400–the highest per voter in the state.The limit in San Francisco, San Jose, San Diego, and Fremont is $500.  Berkeley, San Mateo, and Santa Monica is $250. Long Beach is $350. The average is around $500.  Some larger cities have higher limits such as Fresno which is more than twice the size of Oakland, but the per voter limit is less.
  • The limits for the District 1 and 4 Council seats would go up to about a quarter of a million dollars!
  • It would defeat the purpose of Instant Run-off voting which was suppose to level the playing field because running one election rather than a possible two elections requires less money.  Since there is only one election, it doesn’t make sense to double the limits. San Francisco has more than twice our population and also has Ranked Choice Voting, their limit is less than ours at $500.
  • Special interests have much more control when campaign limits are higher as pointed out by President Obama in his State of the Union speech.

The Public Ethics Commission meetings are generally broadcast live on KTOP Channel 10. You can send your opinion to Public Ethics Commissioners by email.

Clearly an increase will affect this year’s Mayor’s race.  The Express article by Bob Gammon puts the background in perspective.

An argument could be made that Quan would be passionate about this issue even if she wasn’t running for Mayor, except that Quan has a very similar alert on her mayoral campaign website. Quan is again using her newsletter, sent from her City email address, to lobby her constituents. The PEC complaint centered around her lobbying constituents on IRV, but now she’s lobbying them on campaign contribution limits. The most flagrant part of this is that she’s lobbying her constituents to get them to lobby the PEC, the same Commission that’s investigating her!

The Commission needs to set clear rules on online communication for city elected officials to stop this kind of behavior, which is entirely unacceptable. Commissioner Paul asked in February and last night if it would be acceptable for Quan to have a stack of campaign literature in her Council office. Purnell somehow argued that maybe it would be ok, if Quan didn’t push it on people and only gave it out when it was solicited. Even that seems unethical to me, if not illegal, but even by Purnell’s standards, if websites are to be considered the same as campaign brochures, Quan violated that standard. I and many others signed up for Quan’s newsletter to find out about community and city events. I never solicited her campaign announcement or the continued lobbying via the newsletter.

So the PEC and FPPC decision comes down to this – is a website the same as a campaign brochure? And is a hyperlink from a City website the same as passing out a brochure from a City office?

21 Responses to “Did Quan violate City or campaign laws? It depends on the significance of hyperlinks.”

  1. Andy K March 2, 2010 at 10:15 am #

    Some of this seems somewhat gray. I think using city generated e-mail lists is cut and dry wrong. Telling constituents to support a campaign finance position – fairly gray. Possibly unethical, but it would be difficult to develop a standard of what is acceptable.

    Whatever a politician supports is going to have impacts on their future campaigns. Just because Quan is running for mayor does not mean she should not be able to take positions on issues before the city that would impact her campaign.

  2. V Smoothe March 2, 2010 at 10:37 am #

    What Quan did with her campaign announcement and website was clearly illegal. The law explicitly prohibits the use of officeholder funds for anything related to a campaign.

    Oakland Municipal Code 2.12.150:

    C.Officeholder expense funds shall not be used for the following:
    1.Expenditures in connection with a future election for any city, county, regional, state or federal elective office;

    • Becks March 2, 2010 at 10:43 am #

      Thanks for sharing that V. The PEC and their staff never brought that up last night – I’m not sure they’re aware of it. Purnell made it sound like campaign funds and officeholder funds were nearly equivalent.

  3. Richard Cowan March 2, 2010 at 11:48 am #

    This article somewhat overstates the case. Jean Quan’s newsletter is not funded at public expense, but rather entirely by her own accounts. Addtionally, it is largely a community resource with extensive coverage of civic events and an occasional comment on issues of the day, including Ranked Choice Voting. The issue for the Public Ethics Commission is whether hyperlinks to websites and ultimately newsletters – the sort of things all Councilpersons and public officials from throughout the state use, as noted by the City Attorney present at last night’s meeting – should be continued or eliminated by the City of Oakland. Ms. Quan is merely the exemplar of a widespread practice to be discussed by the Commission.

    • Becks March 2, 2010 at 11:51 am #

      Widespread practice? Can you name the other councilmembers who have done this?

      • Richard Cowan March 2, 2010 at 12:46 pm #

        I just went to the city website, Oaklandnet.com. Each Councilmember has a hyperlink to additional materials from their offices including newsletters. Last night at the Public Ethics Commission, City Attorney, Alex Rosenthal added that this was a common practice statewide. The question remainsas to whether this is a good practice.

        • Becks March 2, 2010 at 12:48 pm #

          Of course they link to their newsletters. But what other councilmember has included a link to their campaign website in their newsletter?

    • Daniel Schulman March 2, 2010 at 12:20 pm #

      Richard,

      While I’m sure it was a simple oversight, it might be helpful to identify yourself as Quan’s Chief of Staff when defending her actions.

      I’m sure a lot of people know who you are, but others might confuse you for a disinterested party.

      • Richard Cowan March 2, 2010 at 12:48 pm #

        I am, indeed, Jean Quan’s Chief of Staff. Not only am I not disinterested, but we all are quite proud of the newsletter as a community resource.

        • Becks March 2, 2010 at 12:52 pm #

          Nobody’s questioning the value of the newsletter. While I think it is WAY too long, it offers lots of valuable information. I greatly appreciate it. Still, it’s not appropriate to link to the campaign in the newsletter, no matter how important of a community resource it is.

        • Richard Cowan March 2, 2010 at 1:03 pm #

          I am not sure the newsletter does link to the campaign at all times. For example, I quickly checked the February 13 edition and I do not think it did. Additionally, even if it did on an occasion, I am not sure that this is clearly inappropriate, since the newsletter is neither produced nor diseminated at public expense. Think of it, to get to the newsletter from Oaklandnet, you would have to hyperlink to Ms. Quan’s website, then hyperlink to the newsletter, and only then to the campaign site. This is the gray area to be addressed by the PEC and it only pertains to the initial hyperlink.

        • Becks March 2, 2010 at 1:31 pm #

          Nobody ever claimed it linked to the campaign at all times. I copied direct text above from one newsletter in this post where the campaign was linked to. This was done at least twice. I have the emails.

    • V Smoothe March 2, 2010 at 1:46 pm #

      Richard, I am having a difficult time understanding why you refer to this as a “gray area.” Can you explain how you reconcile the use of a newsletter produced with officeholder account funds to promote Quan’s Mayoral campaign with the clear legal prohibition against using officeholder accounts for anything campaign related?

  4. Richard Cowan March 2, 2010 at 3:02 pm #

    The answer is simple, since Ms. Quan decided to run for mayor, she no longer pays for the newsletter with her office holder account – this as a further precaution from a violation of ethics. As I keep saying, however, this whole area of hyperlinks remains complex.

    • Becks March 2, 2010 at 3:51 pm #

      So does she pay for the newsletter from her campaign account?

      • Richard Cowan March 2, 2010 at 4:23 pm #

        I think she paid the last one of her own pocket. Frankly, as you can probably tell from the passion I have toward the newsletter, my main interests are in constituent service and communication.

    • V Smoothe March 2, 2010 at 4:28 pm #

      Thank you so much for clarifying that, Richard. That certainly wasn’t clear from the reports for the Ethics Commission, which definitely made it sound like the newsletter was funded from her officeholder account. Good for Jean for taking the extra precaution.

      One more question, though. So on the newsletter where it says “This Newsletter is Published by Neighbors for Jean Quan,” is that not true? Or is the “Neighbors for Jean Quan” that publishes the newsletter a different “Neighbors for Jean Quan” than Quan’s officeholder account (ID# 1282383)? If so, one of the names should probably be changed. I’m sure you can see how the public would think they were one and the same, what with them having the same name and all.

      • Richard Cowan March 2, 2010 at 5:03 pm #

        Good point. One thing discussions like this bring out is the need for clarity and lack of sloppyness.

  5. John Klein March 2, 2010 at 3:42 pm #

    Becks, thanks so much for your astoundingly great coverage on this. You and VSmoothe are the only ones consistently covering Oakland’s Public Ethics Commission.

    I spent some time checking Quan’s websites and didn’t find a link to the campaign. The option to subscribe to the campaign email list in Moglia’s complaint is not longer available. That was definitely the right thing for Quan to do in order to put it to rest going forward.

    Since it’s the PEC mission to deal with this issue and to ensure ‘fairness, openness, honest, and integrity’ in city government, I think it should send a clear message right now without awaiting for more information. The PEC should publish a very public reminder directed at all incumbents who are also candidates reminding them that City resources can’t be use for campaign purposes. I’d even include all the applicable laws such as the one V. mentioned and the state laws, too.

    The public needs to know that the PEC is paying attention to this stuff and that it is doing all it can to support and drive good government.

  6. John Klein March 2, 2010 at 6:48 pm #

    The common practice is that some council members’ sites are not on Oaklandnet. Kernighan, Quan, De La Fuente, and Kaplan’s aren’t on it. What’s uncommon is the campaign link, I think. I see a fair amount of playing ‘gotcha’ here with Mrs. Quan.

  7. 94611 March 3, 2010 at 11:13 am #

    Just checked out JQ’s mayoral site… is that tree logo borrowed or common property? Does anyone know?

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