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

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?