San Jose council eases transparency rules
City Attorney Nora Frimann and Mayor Matt Mahan at a San Jose City Council meeting. Photo by Jana Kadah.

    San Jose leaders eased key transparency policies hours after a local judge ruled the city and former mayor violated a separate transparency law.

    The San Jose City Council changed three ethics rules last week that could affect how money is used to influence policy. Officials revised the city’s revolving door protocol for former employees, removed fees for late lobbying disclosures and uncapped reimbursement amounts for personal loans candidates made to their campaigns. Mayor Matt Mahan and three councilmembers downvoted various parts of the changes, citing concerns that the rollbacks make for a less transparent San Jose.

    “(We should be) holding ourselves to that high ethical standard of great transparency and clarity,” Mahan said.

    The revolving door policy, meant to limit former employees from leveraging their relationships in the city, triggered the most contentious debate on the dais. The council shortened the probation period for former employees working at an organization that lobbies the city from two years to one. Councilmember Bien Doan and Mahan downvoted it.

    The city will also allow former employees to work at 501(c)(3) nonprofit organizations that are not inherently political, but still influential in city politics.  Mahan and Councilmembers Doan, Dev Davis and Arjun Batra voted against it. They wanted to adopt the recommendation from the city’s ethics commission, the Board of Fair Campaign and Political Practices, which suggested not exempting nonprofits.

    “(Nonprofits) compete for and secure millions of dollars worth of contracts every year,” Mahan said. “It feels to me of all the work we do, this is one of the areas where there’s the greatest room for conflict of interest.”

    Mahan said removing the exemption could incentivize a nonprofit to hire former city staffers who might give them an advantage because of their relationships.

    But nonprofit leaders and labor-aligned councilmembers lauded the change, noting the work nonprofits do is an extension of the city, so former employees shouldn’t be barred from these roles. Nonprofits without 501(c)(3) status are not exempt.

    Alison Brunner, CEO at the Law Foundation of Silicon Valley, said those who leave the city to work for a nonprofit are assets because of their knowledge of city programs, and they should not be viewed as a threat. She added that nonprofits are struggling to hire and retain staff, so removing the exemption makes it easier for organizations to recruit individuals motivated by public service.

    “Unlike for-profit employees and lobbyists, nonprofit professionals act in the public interest for everyone in our San Jose community, supporting residents in need,” Brunner said. “Restricting one’s ability to advocate for community interests impedes our joint missions and strong, longstanding partnership.”

    Davis said the revolving door policy doesn’t bar someone from taking the job, it just means they need to ask for waiver.

    Late fees

    San Jose requires lobbyists to file reports every week after they conduct business with officials about who they met with and what they discussed. The report requires lobbyists to disclose if they contributed money to who they met with and how much they were paid to lobby.

    Before last week’s revision, if a lobbyist was late filing their report, they would receive a late fee to incentivize on-time filing. Now there are no fees.

    The suggested policy change came from City Clerk Toni Taber, who said her office lacks staff to track the lobbying reports and enforce late fee collection, according to city documents.

    Taber said the city did not collect fines for late weekly filings before council nixed the fees. A San José Spotlight review found lobbyists often don’t fill out the form properly even if submitted on time, and there was no enforcement from the city.

    Sean McMorris, an ethics expert at government transparency nonprofit California Common Cause, said while the late fines may add additional pressure for lobbyists to file on time, he understands it’s a heavy lift for city staff—which is why most other cities don’t have those same requirements for lobbyists.

    “Will it diminish deterrence? Maybe or likely,” McMorris said. “But the fact that the city is keeping the weekly reports still in the law as mandatory, even if they don’t get fined, means lobbyists still need to comply with them.”

    He said San Jose is still ahead of other cities when it comes to transparency laws around lobbying, but there is always room for improvement—and the city shouldn’t continue to relax other aspects.

    Loan reimbursements

    The council voted 10-1 to relax the city’s campaign finance laws because of last year’s U.S. Supreme Court case involving Texas Republican Sen. Ted Cruz. Doan was the sole councilmember who voted against the change.

    Candidates in San Jose can get the personal money they loaned their campaigns reimbursed through the use of pre- and post-election contributions—a recommendation by the city’s ethics board. Previously, candidates could only get reimbursed up to $20,000.

    “(It was) buried in the policy language,” Doan told San José Spotlight. “Elections should be decided by the people and should not be available for purchase by a candidate with a greater access to capital. For this reason, I voted against the recommendation.”

    While councilmembers voted on these policies at the meeting, a Santa Clara County Superior Court judge ruled the city and former Mayor Sam Liccardo violated the California Public Records Act. The state law exists so any member of the public and media can readily access government documents and communications. The lawsuit was brought by this news organization and the First Amendment Coalition.

    Contact Jana Kadah at [email protected] or follow @Jana_Kadah on Twitter.

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