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The Ethics Club

justice blinded
Illustration by Terri Groat-Ellner

One year later, the county ethics commission came to life, it seems to have raised more ethical dilemmas than it has solved

By Will Harper

FOR CENTURIES, philosophers have argued over the nature and meaning of ethics. From Kant to Beauvoir, the world's best minds find it hard to agree on what exactly motivates or constitutes ethical behavior. So when a group of politicians passes legislation under the lofty title of "ethics," the phrase "cheap public relations ploy" immediately springs to mind.

Indeed, when the Santa Clara County Board of Supervisors passed its "Ethics Ordinance" nearly three years ago, supervisors were scurrying to repair their image of being beholden to development interests. The board had approved an 18-hole golf course on a prime Almaden hillside known as Boulder Ridge. It later turned out that the developer, Rocke Garcia, was a friend of then-supervisor Rod Diridon, and had also helped direct $5,500 to former supervisor Mike Honda's campaign.

Despite being a PR tool, the ethics ordinance did make some real changes. Before its passage, there were no contribution limits in the county. The new law capped donations at $350 per donor. It also limited the campaign season, prohibiting candidates from raising or spending money within 17 days of the primary or general election, the idea being to prevent unreported last-minute contributions.

A later amendment imposed caps on office-holder accounts--so-called "Friends" accounts--a cash cow for incumbents and a source of potential political influence used by monied interests. Another addition required paid lobbyists to identify themselves during public hearings.

Armed with its lofty buzzword, the ethics law seemed like a good idea on paper. Yet, a gap always exists between how legislation works in theory versus how it functions in the real world. The new campaign law and its appointed guardian, the Ethics Commission, got their first real-world test this year. To say they failed would probably be an overstatement, but the commission's showing was debatable as the word ethics itself.

THE MARCH PRIMARY went pretty smoothly. The Ethics Commission handled a couple of complaints, none of which attracted screaming headlines. This was good news for the five-member volunteer committee, which was still busy tinkering with a few kinks in the law. Then a predictable thing happened. In the months leading up to the election, the politicians got political. Candidates discovered that the new ethics ordinance could be used as a political hammer to club their opponents.

Barbara Koppel and Joe Simitian's campaigns for the District 5 supervisorial seat led the charge, each with dueling lawyers combing through the laws and their opponents' campaign records. Simitian, who came up short in the primary, filed a handful of complaints against Koppel's campaign, some of which seemed like nit-picking. Among other things, Simitian alleged that Koppel violated the law by accepting "in-kind" contributions of food and drinks for her primary election-night party.

Other charges were more substantial: Koppel accepted two $350 contributions from Kaiser Cement and its parent company, while Kaiser Cement had a tire-burning proposal before the Bay Area Air Quality Management District, of which Koppel was a board member at the time. (The air district's lawyer defended Koppel, saying staff and not the board would be considering the proposal.) And according to the commission's records, the Koppel campaign misreported a $350 contribution from Assemblyman Jim Cunneen's campaign--the check said "Jim Cunneen State Assembly" and was signed by Cunneen's campaign treasurer--but was listed as a donation from Cunneen's wife, Jennifer. Jim Cunneen had already personally donated $150 to Koppel.

After holding public hearings, the Ethics Commission slapped Koppel with $2,000 in fines and forfeitures, covering both the minor and more serious violations. A furious Koppel fired back with several complaints against Simitian.

"We didn't go out looking for dirt. But when he came after us, I said, 'I'm not going to let this guy destroy me,' " Koppel recalls. "So we had to respond and that's what we did." Koppels' attorney, Richard Abdalah, uncovered the fact that Simitian, too, had accepted illegal in-kind contributions for his election-night party and hadn't bothered to report them. He also discovered that the Bumb family, the well-known owners of the Bay 101 card club and the San Jose Flea Market, had hidden contributions by cutting checks from their various businesses, including Air One Helicopters and Premium Pet Stores.

After this round of hearings, the commission didn't issue any fines, but rescinded its previous $500 levy against Koppel for her election-night party and ruled that the in-kind contributions donated to both campaigns' parties amounted to minor technical violations. Although Simitian did forfeit $600 taken from Bumb family companies, Koppel, smarting from her fines and ultimate election defeat, still feels slighted. "There was an orchestrated campaign to destroy Koppel," she says. "This thing [the ethics law and complaint process] was used as a campaign weapon. There's just no doubt about it."

IN TURN, COMMISSIONERS felt caught in the middle of a political tug-of-war. They complained about being used for political ends. "We were a lot more busy than we thought we'd be," admits Jan Hutchins, a former newscaster who ran successfully for town council in Los Gatos this year while he sat on the county's Ethics Commission. "We turned out to be a factor in the election. I think we'd like to find a way not to allow us to be manipulated in the future for political purposes."

But calling a political reform law an "ethics" ordinance is an open invitation for abuse, says Gene Poschman, a retired political science professor who served as a legislative staffer in the days when political boss Jess Unruh ruled the state Assembly. The trouble, Poschman says, is that complaints about alleged campaign violations are often more form than substance, done for political effect. Poschman asks rhetorically, "Is accepting food for an election-night party really unethical?" In Santa Clara County it may be illegal, but hardly unethical, he says. "Political reform laws try to take the politics out of politics and convert it into a bureaucratic exercise with a lot of prescribed procedures. But let's face it, the filing of the complaint becomes part of the campaign. The commission becomes a form of negative advertising, part of the political process." Poschman jokingly suggests the commission change its name to something more accurate and less pious: "The Proper Political Procedure Committee."

The commission's own policies and procedures may have actually contributed to the circus atmosphere. For one thing, the commission as created was given no power to initiate investigations, only to respond to complaints, regardless of whether the charges come from an opposing political camp.

Simitian, who came out ahead both in front of the commission and at the polls, says: "It's reasonable to expect that campaigns have the greatest vested interest in ensuring the compliance of their opponents." But because the campaigns were making the complaints, the complaints always had a political edge to them. And by holding its hearings of those complaints in public, the commission inadvertently fueled the acrimony as the campaigns competed for headlines.

In contrast, the state Fair Political Practices Commission and the Los Angeles Ethics Commission refuse to publicly confirm or deny the existence of a complaint prior to a judgment. "We do that in order to prevent the commission from being used as a political tool," explains Rebecca Avila, director of L.A.'s Ethics Commission. "A candidate can tell the media, 'I filed a complaint,' and it's still a news story, but it's not a story that the Ethics Commission investigates candidate so-and-so. That's really damaging."

It's also potentially misleading if an investigation ultimately uncovers no wrongdoing, she says. Most FPPC and Ethics Commission investigations aren't done until well after the election.

What also differentiates Santa Clara County and L.A.'s ethics commissions are their budgets. While Santa Clara's Board of Supervisors gave its fledgling commission the power to hold hearings and levy fines, the board didn't give it a budget or any staff to investigate complaints. By contrast, L.A.'s Ethics Commission has a 17-person staff with a $1.2 million annual operating budget.

THE COMPLAINT and hearing process wasn't the only thing criticized; throughout the year ethics commissioners were dogged by conflict-of-interest charges of their own. Commissioner Barbara Campbell gave $100 to Koppel's campaign and, as a result, couldn't vote on any complaints involving Koppel. Koppel then complained that chair Edie Kirkwood once gave money to Simitian's city council reelection campaign in Palo Alto and therefore should recuse herself, too, but Deputy County Counsel Ann Ravel said Kirkwood didn't have a conflict because she hadn't given money to Simitian's campaign for county supervisor.

When commissioner Hutchins ran for town council in Los Gatos, he possibly compromised any perception that he was apolitical. (The city of San Jose's 3-year-old ethics law bars commissioners from holding any other public office.) Ironically, the commission didn't adopt rules for its own ethical conduct until this year. Now, commissioners are explicitly forbidden from holding any other elected county office, endorsing candidates or doing anything that may appear to be a conflict of interest--"a vow of political celibacy" is how commissioner Kirk Hanson describes the conduct rules.

The rules may have been installed too late to rescue the commission's hoped-for reputation as a neutral adjudicator. "It goes back to the standard of an appearance of impropriety," argues attorney Chuck Reed, a former member of San Jose's ethics task force, which monitored city campaigns. "Clearly, if an ethics commissioner is contributing to a campaign or running for office, people are going to wonder."

To suggest that commission members are politically biased (which Koppel has) is nonsense, chairwoman Kirkwood insists. "I think that was a ploy to discredit the commission in order to have our findings discounted," she says. Unlike other appointees, ethics commissioners are not solely selected by politicians. True, each supervisor nominates three potential candidates for the commission. But the final decision is made by the presiding judge of the superior court.

Jude Barry, an aide to Supervisor Ron Gonzalez, says none of the commissioners could be considered political activists: Barbara Campbell is a retired librarian; Kirkwood used to be the director of the Palo Alto Chamber of Commerce; Kirk Hanson teaches business ethics at Stanford; Marion Whittaker is a lawyer. "Of course, they have some political connection because the supervisor must know about them," Barry concedes. "It's either that or you go and find people like those selected for the O.J. jury, who don't know anything or anybody."

Koppel says the commission should be disbanded because it always faces a potential conflict of interest. Interestingly, Hutchins also has his doubts about the need for an ethics commission in the future. The goals of the law might be accomplished by strengthening disclosure requirements so the public can find out who's giving how much, he says. "The job is really the voters' job. For us to try and usurp that responsibility, to decide what is ethical and what is not, is elitist. I trust the voter to make that decision as long as they have the information." Hutchins suggests the commission could assume a more limited role, making sure information being sent out by the campaigns is accurate. Under such a system, candidates could get a seal of approval from the commission that their literature is truthful.

Hanson, on the other hand, says he firmly believes an ethics ordinance needs a body to enforce it. He does, however, think there's room for improvement. The commission could take on a more pro-active role in initiating complaints, but without any staff this could be difficult. With a special election coming in February to fill Mike Honda's seat on the county Board of Supervisors, Kirkwood says the commission has a chance to use the lessons from the general election. She hopes the commission can serve as a resource to educate candidates about the law and not simply a vehicle to hear complaints. Already, she says, the commission has sent out a memo to prospective candidates to explain the basics of the ethics law, the reporting schedule, and the new rules under Proposition 208.

UNDER PROP. 208, the recently passed state campaign finance reform initiative, much of the county ethics law may become irrelevant. The state initiative imposes lower contribution limits and offers less time to raise money for primary campaigns. Whether Proposition 208 makes the Ethics Commission moot is another question without a clear answer. In the meantime, Kirkwood says, the commission will move forward and prepare for the special election and draft an annual report to give to the board of supervisors. The commission may even ask the board to fund a staff person. Kirkwood cautions against drawing any long-term conclusions about the ordinance or the commission from its first year in action, saying a better assessment can be made a few years down the road. "I don't think it's worth continuing if it's creating more confusion than it clarifies," she says. "But it's too early to say now."

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From the December 19-25, 1996 issue of Metro

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