Campaign Watch

Unethical ethics In a late-night backroom deal that seems to violate the spirit of the city's open-government laws and subvert its mission of promoting clean electoral politics, the San Francisco Ethics Commission agreed to fine Kamala Harris and her district attorney campaign just $34,000 for violating local laws controlling campaign expenditures.

And for now Harris will now be able to raise as much money as she can, despite the fact that she voluntarily signed a legally binding pledge in January to abide by the $211,000 cap set for the race.

Under city campaign finance law, Harris could have been fined three times the amount she overspent past the cap by the last reporting deadline Sept. 25. That would have meant a fine of about $300,000, and it would have provided a disincentive to continue spending.

After meeting in closed session for several hours late Friday night, commission president Bob Planthold announced the terms of the deal around 12:30 a.m., according to David Pilpel, the only member of the public who was still in attendance. From roughly 9 p.m. until that moment, commission deputy director Mabel Ng and staffer Shannon Hardin periodically left the meeting chambers to have hushed hallway discussions with representatives of the Harris campaign, including consultant Jim Stearns and attorney Jim Sutton (who frequently represents the interests of downtown-backed campaigns, such as those of Pacific Gas and Electric Co.). At one point, Pilpel said, Stearns, Sutton, and the ethics staffers met in a back room behind the main commission chambers.

Pilpel told the Bay Guardian he complained to Planthold that the process violated the city's sunshine laws and the deliberations shouldn't be taking place during closed session. Planthold told us no inappropriate discussions took place. The special meeting came after campaign watchdogs cried foul when commission director Ginny Vida lifted the spending limits in the race Sept. 26, the day after Harris filed a report showing she had blasted some $100,000 past the spending limit and signed a new document indicating she would not stick to the cap.

"That's absolutely outrageous," attorney Peter Bagatelos, who examined the law on behalf of candidate Bill Fazio, told us. "That pledge clearly states it cannot be withdrawn. It is irrevocable and binding.... It is not fair that she gets to come back at such a late date and change her decision for her own personal benefit."

Critics of the decision note that neither the Ethics Commission nor Vida has any authority to make a call as to whether the limits should be in place. Only when a candidate who hasn't accepted the voluntary limit spends more than $211,000 can the limits for the other candidates be lifted. In this race, only Fazio didn't agree to cap his spending, and he is still below that mark.

"There is nothing gray in the law about this," civil rights attorney Ben Rosenfeld, who spoke during the open-sessions meeting, told us. "The commission had no legal choice that night but to reverse the actions of its director, which were arbitrary, capricious, and for which there is no legal mechanism."

The commission decision also lets Harris off the hook on the stickiest part of the matter: whether she or her campaign knew they were legally bound to the limits Sept. 20 when they spent more than that amount. If she knew, then it's a criminal violation. And that means if she's convicted before the election, she would be disqualified; or if it happens after, barred from elected office for five years.

And there are indications that she was aware, although the commission didn't investigate them. In early August a representative of Harris's campaign visited the commission and asked a staffer how Harris might get out of her binding pledge. The staffer told her it was not possible. The Bay Guardian also interviewed Stearns and campaign treasurer David Looman Sept. 15, and both acknowledged concerns about the cap (see Campaign Watch, 9/17/03).

Since then Harris has claimed that she thought her January pledge accepting the limits was no longer valid as a result of a phone call from an Ethics Commission staffer in July to Looman informing him that the city had changed the law that month so that the commission, rather than the Department of Elections, was the official keeper of this record.

Given that the issue wasn't dealt with until Sept. 25, it was too late to stop the printing of the city's official voter handbook – which identifies her as a candidate who agreed to limit spending in the race (although $19,000 of her $34,000 fine will be spent on flyers and newspaper ads alerting voters that Harris didn't stick to the spending cap). At the same time, she's free to spend the nearly $1 million her campaign's wealthy fundraisers – Mark and Susie Tompkins Buell – are pledging to haul in for her.

"It's pretty clear [the commission] doesn't have a legal leg to stand on," Rosenfeld said. "This has the stink of a Willie Brown machine maneuver – especially with the clandestine negotiations outside of public scrutiny." (Savannah Blackwell)

October 8, 2003