Starving the watchdogs
Sunshine action and budget deadline put the spotlight on the Ethics Commission and other underfunded regulatory agencies

By Steven T. Jones

Concerns about Ethics Commission executives who would rather destroy than look into a suspicious campaign finance document are prompting calls for investigations by state and local agencies and raising questions about whether already underfunded city regulatory bodies can sustain any more budget cuts.

The catalyst was the decision by Ethics Commission executive director Ginny Vida to order the destruction of a document that seemed to show a plan to illegally divert money from Mayor Gavin Newsom's inaugural committee to his campaign committee (see "Newsom's Funny Money," 2/11/04).

Two staffers filed a complaint over the order, prompting the Sunshine Ordinance Task Force Feb. 24 to unanimously rule against Vida and deputy Mabel Ng and ask for follow-up investigations by the Ethics Commission, the state Attorney General's Office, and the Fair Political Practices Commission (FPPC).

Vida has defended her decision by minimizing the significance of the document – which was accidentally sent by an employee of attorney Jim Sutton, who represented both Newsom committees – saying "it was a policy call on my part whether we keep it." But in her written statement to the task force, Vida made it clear that past budget cuts that have gutted the agency's enforcement abilities influenced her decision.

"The two complainants ... are not aware of the many factors that I considered in making that assessment," the statement read. "For example, I have over 40 complaints under investigation which involve actual evidence of violations of law. I have only a half-time investigator, and soon no investigator, to pursue those."

Newsom required city departments to turn in budgets by March 1 with spending reductions of up to 15 percent in order to help close a deficit of about $250 million. The Ethics Commission included a plea for more investigative resources. So did other regulatory agencies, including the Assessor-Recorder's Office, which is asking for three new investigative positions to be able to adequately deal with large downtown corporations that are trying to cut their property tax bills by a total of $98 million. Newsom has also talked about giving more resources to the District Attorney's Office and the Police Department in order to better solve homicides.

Following a well-attended town hall meeting in Noe Valley Feb. 28, Newsom told the Bay Guardian he's committed to making sure the Ethics Commission has the resources it needs to be effective. "I want to service that framework because I believe in it," he said, although he acknowledged it won't be easy. Newsom would not comment on the document incident, for which his office has referred all questions to Sutton, and limited his comments to the budget issues.

"That's the challenge here," Newsom told us. "We talk about across-the-board cuts, but there are areas where we need to make investments, even during recessionary times, and I think you'll see that demonstrated in our budget. We're going to make investments and add resources where we must, and in turn find savings somewhere else. It's difficult."

Activist Charlie Marsteller, who helped author some of the city's campaign finance reforms, is now spearheading an effort to "create greater autonomy for the commission through a charter amendment to provide for an independent counsel and to have some autonomy in the budget."

This attempt to shield the commission from political and budgetary influences – and to get legal advice from someplace other than the City Attorney's Office, which sometimes represents the targets of ethics probes – could be on the fall ballot.

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With the task force's action, the investigation of this latest Vida-Sutton incident (see "The Political Puppeteer," 2/4/04) moves forward, although it's tough to tell how far. The Attorney General's Office can look at whether Vida broke Government Code Section 6200, which makes the destruction of public documents a felony, and the FPPC could investigate the significance of what the document showed. Yet both agencies have policies of not commenting on ongoing investigations, so it will be tough to track the progress.

Ethics commissioner Mike Garcia, who took over as chair March 1, told us he would place the sunshine complaint on the commission's March 8 agenda. Normally, it's Vida who would process complaints privately, but because the complaint is about her actions, Garcia said the commission will deal with it directly.

"Because of the public nature of this complaint, we will do something in public, rather than behind closed doors," Garcia said. "This is a serious matter, and we are taking it seriously."

Garcia would not elaborate on specifically how the commission will handle the matter, saying such comments would prejudice the process. Yet departing commission chair Bob Planthold, who is being replaced on the commission by attorney Emi Gusukuma, offered us frank comments about the situation.

"We were emasculated, and now we're being amputated. We're moving backward," Planthold said of the ability of the commission to watchdog campaign finance violations. He also questioned Vida's actions but said little would likely be done to punish her because she's retiring in June.

"Why was there such a rush to delete it?" Planthold said. "I can't understand it. Why couldn't they decide to put it in a blocked file and think about it and research it? They seemed to take the position that they were subordinate to a private law firm."

He noted that there are still many unanswered questions about the document, which someone should be asking Sutton employees and others associated with its creation and later its modification into what Sutton ultimately released.

"There needs to be some detailed, persistent, effective inquiry into how in the world these documents could be so different. Someone should be looking into this," Planthold said, raising questions about how a proposed $54,000 transfer to the campaign committee later became a $3,400 transfer for rent, and about listed, then withdrawn, $20,000 payments to Heather Hiles and Joyce Newstat, who were owed that same amount by the Newsom campaign. "It raises questions about whether its ultimate filing was thought of in a political sense. Could the second filing have been a damage-control response?"

Answering that question, Sutton reiterated past statements that the initial document was an internal working draft neither approved nor acted upon. Sutton said he would cooperate with any investigation but noted there's nothing to investigate.

"What has legal significance is the checks that were cut and the documents that were filed," Sutton said. "There was no legal significance [to the first draft]."

The Ethics Commission meets March 8, 5:30 p.m., City Hall, Room 408, 1 Dr. Carlton B. Goodlett Place, S.F.

E-mail Steven T. Jones