San Jose last year shelled out more than $117,000 to an outside attorney to investigate ethics complaints against local politicians, a process some lawmakers say is driven by political motives and wastes taxpayer dollars.
“The complaints filed against me have been frivolous and politically-motivated, filed by someone who is abusing the process,” said San Jose Councilmember Magdalena Carrasco, who last year was the subject of three complaints – all filed by the husband of a woman who ran against her for City Council. “The outside counsel earns their fees by investigating whether or not these complaints are frivolous. That leaves taxpayers paying large bills for very little oversight or compliance.”
But Adrian Gonzales, chair of the city’s Board of Fair Campaign and Political Practices, which investigates the complaints and issues penalties, says that’s the price of holding elected officials accountable.
Formerly known as the Ethics Commissions, the board has final say over investigations into alleged violations of the city’s election law, which covers everything from campaign contributions to electioneering communications.
But while the system is supposed to act as a watchdog arm of the city’s government and can penalize local politicians for wrongdoings, there’s an increasing call for reform to curb abuses that have gone unchecked for more than a decade.
“I think the biggest problem is people using that preliminary (investigation) stage to get some credence,” Gonzales said. “It’s fuel for them to use in campaign communications or to get media attention when the board does not find any violation of law.”
San Jose taxpayers forked over $117,996 in 2018 to Hanson Bridgett, the outside law firm, to investigate things such as campaign lawn signs without a ‘paid for by’ disclosure or spending independent expenditures without forming a committee. The city signed an agreement with Hanson Bridgett in 2015 to provide investigative services for a maximum of $250,000 until June 2019. The law firm asked for more money in March 2016 in anticipation of complaints pouring in ahead of the June primary.
The complaints against Carrasco alone, which involved her Twitter posts and a few missed lines on campaign finance reports, cost the city nearly $33,000.
“I believe the system needs to be fixed to become more effective and more efficient,” Carrasco said.
The problem traces back many election cycles.
Gonzales pointed to a 2017 complaint filed by District 7 City Council candidate Chris Le against former Councilmember Tam Nguyen that made headlines. In the complaint, Le accused Nguyen of illegal wiretapping and invasion of privacy.
The city spent nearly $2,000 investigating before it determined the complaint isn’t a local election law violation.
I've filed an Ethics Complaint against Council Tam for spying on my team on Jan 24th, 17 at SJ Council Meeting. He must answer for his crime
— Chris Le (@ChrisleD7) March 23, 2017
Then in 2015, nearly two dozen local politicians and candidates, including nearly every member of the City Council, were investigated for an inadvertent mistake on campaign finance reports after they received wrong information from the City Clerk’s Office.
The “political nightmare” took months – and $30,000 later – all the charges were dropped against the 20 politicians, including Mayor Sam Liccardo.
Political showdown continues
Six months before the Nov. 2018 election, Robert Imhoff-Dousharm – whose wife unsuccessfully ran against Carrasco in District 5 – filed a complaint that she was using her Twitter to “disseminate electioneering communications without the disclaimers required by” the city’s election law.
Stealing is a big no no, as my team and I were walking precincts today, we encountered @jennifer_imhoff’s husband stealing our lit. We should all be running a clean campaign. I sure am, is Jennifer? pic.twitter.com/IZHKWuyxxp
— Magdalena Carrasco (@CM_Magdalena) May 6, 2018
The board dismissed the complaint after investigators’ initial report found it was not under the purview of the city’s election law.
“I want to thank the Board of Fair Campaign and Political Practices for their response into this baseless complaint filed by my former council candidate’s husband,” Carrasco wrote to the board in a July 11 letter. “This complaint was one of many failed attempts to allege false accusations towards myself and my campaign.”
In the last year, Imhoff-Dousharm has filed three complaints against Carrasco, alleging that she filed campaign forms incorrectly or didn’t turn over remaining campaign money to the city’s general fund.
In November, the board ultimately fined Carrasco $3,000 for not disclosing the address, occupation and employers of some donors on her campaign finance forms and filing a tardy contribution form.
But Imhoff-Dousharm, who is the treasurer of the Santa Clara County Libertarian Party, denies targeting Carrasco for “political payback” – he said he combed through all the 2018 candidates’ finance reports and only found mistakes made by his wife’s opponent.
Kathryn Phillips, a spokesperson for the government watchdog group California Common Cause, said it’s not uncommon for “rivals” to file ethics complaints against each other.
“Often, they are the people who are paying closest attention. The source of the complaint is less important than whether the complaint is founded,” Phillips said.
But “if the bills associated with complaints are burdensome or too many complaints are unfounded,” Phillips added, “the commission could adopt a standard requiring a particular bar be met by a complainant before referring it to the attorney. This could help cut down on costs.”
Reforms on the way?
In an effort to stop the “mud-slinging” and abuse of the system, Gonzales is advocating for keeping some complaint details private. Unlike San Jose, cities like San Francisco, Los Angeles, Oakland and San Diego don’t discuss complaints during public meetings unless they could amount to a violation.
“This structure may mitigate situations like the Tam Nguyen case by preventing cases without evidence, or cases outside the board’s jurisdiction, from becoming public hearings,” Gonzales said.
However, that would require hiring an enforcement director or other employee – an idea that a City Council committee killed last year. The board is gearing up for a second attempt as part of a biennial ethics review coming this fall.
Gonzales added that he’d like to see the board obtain audit capabilities and proactively monitor various campaign filings instead of waiting for a complaint to be filed by the public.
Imhoff-Dousharm agreed with Gonzales’ proposal for an audit arm.
“They don’t have the capability to serve the citizens that they want to help,” he said. “They want to make sure that everyone is held accountable and they just don’t have the tools.”
Phillips from California Common Cause said an ethics commission can’t fully do its job if it can only investigate complaints. “A good watchdog needs to patrol and have real teeth,” Phillips said. “Commissions work best when they can conduct audits and enforce penalties. Otherwise, they are just repositories of information or just playing defense.”
And while it’s inevitable that most complaints will be investigated with no violation found, Phillips said having that check in place is better than having no check at all.
“The alternative of no watchdog system is far worse,” she said.
Contact Grace Hase at firstname.lastname@example.org or follow @grace_hase on Twitter.