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SR-104-000-06 (7) f:\atty\m un i\strpts \m jm \eam paig nfi nanee. doe City Council Meeting 7-13-04 i-C ~ JUl 2 7 2004 Santa Monica, California TO: Mayor and City Council FROM: City Staff SUBJECT: An Ordinance Of The City Council Of The City Of Santa Monica Amending Santa Monica Municipal Code Sections 11 .04.040 And 11.04.100 And Adds Section 11.040.105 To The Municipal Code Relating To Campaign Finance Reporting Requirements Introduction The attached proposed ordinance would modify the City's Elections Code to implement certain suggestions made by the Santa Monica Living Wage Commission and Center for Governmental Studies with respect to campaign finance reporting requirements. The ordinance is presented for first reading. Backqround Following the referendum election held on November 5, 2002, which narrowly invalidated the City's Living Wage Law, a community based group instituted an unofficial inquiry into the election. In June of last year, the group, the Santa Monica Living Wage Commission, issued a report entitled "Democracy Distorted" and presented that report to the City Council along with various recommendations for amendments to the City's Elections Code and other actions relating to the conduct of City elections. The Council considered the recommendations and directed staff to evaluate them and report back on possible actions. Staff did so at a Council meeting last December. JUl 2 7 2004 1 7-C '" I' _Ad At that meeting, the Center for Government Studies provided detailed written comments regarding the reforms recommended by the Living Wage Commission. A copy of those comments is attached to this report. Discussion The Center's first three recommendations relate to campaign finance reporting. They are to : (1) repeal the Municipal Code definition of "committee" so that state law will apply; (2) require slate mailer organizations to file copies of statements required by state law with the City Clerk by the deadlines specified in state law; and (3) require committees making expenditures of $1,000 or more to report such expenditures to the City Clerk unless they are direct contributions. The proposed ordinance incorporates each of these suggestions. From a legal perspective, only the third requires comments in addition to those supplied by the Center. The proposed ordinance would require any committee that expends $1,000 or more to support or oppose a candidate or measure to report. The requirement would apply to independent expenditures, which are defined by state law as those made in connection with a communication, which expressly advocates for or against a candidate or measure. The requirement would also apply to member contribution expenditures that are expenditures made to communicate to organization members about supporting or opposing a candidate or measure. The requirement would not apply to contributions made directly to political committees. There may be some legal risk attendant upon the adoption of restrictions relating to committee expenditures. On the other hand, the 2 Center's proposal is a limited disclosure requirement which has apparently been successfully implemented in Los Angeles. The Center also commented on three suggestions with respect to public disclosure. The first is to require disclosure on an advertisement of the five largest contributors to the committee funding the advertisement. Staff continues to recommend against such a requirement. The Center itself points out that a federal court in California has already struck down such a requirement as violative of privacy rights. Also the United States Supreme Court has determined that First Amendment protections cover anonymous political speech. The second suggestion is to require the ballot pamphlet to include a notice regarding the availability of campaign finance information on the City Clerk's and State's web sites. Staff previously recommended against this requirement because it would increase elections costs and because the availability of the information is already known within the community. However, this is a matter of Council discretion; the requirement could readily be added to the ordinance or, the Council could simply give direction. Moreover, the City Clerk has suggested that a brief reference to her web page could be added. The third suggestion in this category is that the Municipal Code requires the City Clerk to post campaign statements within 24 hours. Speedy posting already occurs and it is unclear why this needs to be a legal mandate. Therefore the suggestion has been omitted from the ordinance. However, it could be included; and, if so, the Clerk 3 suggests that the language mandate posting within 24 hours or as soon thereafter as practicable. The final category is compliance recommendations. There are two: that the Council create an ethics commission to enforce laws, train candidates and treasurers and monitor issues. The creation of commissions is a matter of Council discretion. However, staff notes that the proposed functions are already handled. Enforcement of local election laws is undertaken through criminal prosecution and civil lawsuits. Moreover, even if a commission were created in Santa Monica, it could likely not have any enforcement powers because (unlike the very large cities referenced in the Center's comments) Santa Monica has a city manager form of government. Likewise, the City Clerk, state representatives and the City Attorney's Office already undertake training. As to monitoring election issues, it is not clear that a separate commission is necessary for that purpose. The other suggestion in this category is to incrementally increase fines for repeat violations of the state slate mailer election disclosure laws. Staff agrees with the Center's comment to the effect that this is a matter of state law. Thus, the proposal should be made to the State Legislature. Moreover, there may be constitutional impediments to including a penalty consisting of disqualification from paid campaign work. 4 Financial Impacts The adding of a brief reference in the voter's information pamphlet on the availability of campaign finance information on the City Clerk's and State's web sites will not have a noticeable impact on the cost of printing materials. Recommendation Staff recommends that the Council introduce the attached ordinance for first reading. PREPARED BY: Marsha Jones Moutrie, City Attorney ATTACHMENTS: Comments of Center for Government Studies Proposed Ordinance 5 Center for Governmental Studies lm)~l West Pico Olvd.. Suilf! 120 Los Angeles, C^ 90064 leI: 310A IO.G!J90 tax: 310.4/!dl~2 t'lIlj~j\. n~ lICF-"(;':J....;.:(~1 .....t:h;:jt~:: t~l:p!""''''-r/'N.qls :'/1'0 Comments to Santa Monica City Council December 16, 2003 Meeting Agenda Item 8-G: Response to Recommendations on Elections Submitted by the Living Wage Commission Paul S. Ryan, Political Reform Project Director (310) 470-6590 x115, l'n'an(ii~cgs.ol1'o The Center for Governmental Studies (CGS) submits for consideration by the Santa Monica City Council the following comments regarding political refonns recommended by the Santa Monica Living Wage Commission of Inquiry in its June 2003 report Democracy Distorted. CGS conunents in this memorandum arc limited to Living Wage Commission recommendations supported by CGS. Please feel free to contact CGS with any questions, comments or concerns. A. Campaign Finance Reporting Recomme ndations 1. Repeal the definition of "committee" found in Santa Monica Municipal Code Section 11.04.040(b), making the state's definition of "committee" controlling law. Under current Santa Monica law, ballot measure committees arc not included in the definition of "committcc." Ballot measure committees are included in the state's definition. Relying on the state's defmition would make enforcement of the other reporting refomls described below easier. Under state law, a person does not become a committee until slhe receives contributions or makes independent expenditures of$l,OOO or more. Under existing Santa Monica law, any person who receives a contribution or makes and expenditure for the purpose of infiuencing an election-no matter how small-becomes a committee. CGS supports this recommendation to incorporate the state's definition of committee into Santa Monica law and believes a SI,O(){) threshold is better public policy than the city's current I ~ threshold. 2. Require any slate mailer organization producing a slate mailer supporting or opposing one or more Santa Monica candidates or ballot measures to file copies of its statement of organization (Cat. GO\,'t Code ~ 84108) and each campaign statement required by state law (Cal. Gov't Code ~~ 84218 anfl84219) with the Santa Monica Citv Clerk, by the filing deadlines specified in state law. Current state la\'..' does not require a slate mailer organization to file its campaign statements with the Santa Monica City Clerk unless the slate mailer organization only produces mailers that exclusively support or oppose Santa Monica candidates or ballot measures. Slate mailers typically list candidates from the top of the ticket (e.g.. presidential or gubematorial candidates) to the bottom of the ticket ( e.g., municipal candidates andior ballot measures). Consequently, it is rare for a slate mailer organization to be required by existing state law to file campaign statements with the Santa Monica City Clerk. Santa Monica City Staff incorrectly reports that "state law already imposes" the recommended filing requirement," citing Elections Code * 84215 (stafTmemo p. 5). The state Elections Code does not contain a * 84215. City StafrIikely intended to reference CaIifomia Govemment Code * 84215. Gov't Code * 84215, however, does not address filing by slate mailer organizations. Instead, * 84215 establishes filing requirements for "candidates, elected officers, committees, and proponents of state ballot measures or the qualification of state ballot measures." A "slate nniler organization" is not a "committee" under state law. (See CaI. Gov't Code *82048.4(c).) Instead, Gov't Code ** 84218 and 84219 establish filing requirements for slate mailer organizations. A slate mailer organization producing slate mailers supporting or opposing candidates or ballot measures in a single county must file two copies of these campaign statements with the clerk of the county in which it is domiciled. In addition: . A slate mailer organization producing slate mailers supporting or opposing candidates or ballot measures in a state election or in more than one county must file thc original and one copy of thcse campaign statements with the Secretary of State, two copies with the Los Angeles County Registrar- Recorder and two copies with the San Francisco Registrar of Voters. . A slate mailer organization producing slate mailers supporting or opposing candidates or ballot measures in a single cOllnty or in more than one jurisdiction within a single county must file the original and one copy of these campaign statements with the clerk of that county. · A slate mailer organization producing slate mailers supporting or opposing candidates or ballot measures in a single city must file the original and one copy of these campaign statements with the clerk of that city. CGS believes that the state's CUlTent filing requirements for slate mailer organizations do not adequately the public's interest in timely disclosure. CGS supports this recommendation. 3. Require any committee that makes expenditures of$1,000 or more to support or oppose any Santa Monica candidate or hallot measure to report such expenditures to the Santa Monica City Clerk, CGS supports this recommendation in large part. CGS encourages the City of Santa Monica to apply this recommendation only to independent expenditures and member communication expenditures. which are no longedndependent expenditures under California state law. (See Cal. Gov't Code * 85312.). This provision should not apply to expenditures that are direct contributions to political committees. The City of Los 2 Angeles requires campaign finance reporting of both independent expenditures and member communication expenditures and has implemented this requirement effectively. B. Public Disclosure Recommendations 1. Require any advertisement supporting or opposing any Santa Monica ballot measure to include a disclosure statement identifying the five largest contributors to the committee making the expenditure for the advertisement. A vcry similar requirement in state law (CaI. Gov't Code * 84503) was invalidated by a federal district comi in Sacramento. Although CGS supports this recommendation in concept, the City of Santa Monica might face a legal challenge if it werc to adopt this recommendation. The decision of the federal district court in Sacramento is not binding precedent on the district court in Los Angeles that would hear a legal challenge to a similar law ifadopted by the City of Santa Monica. Nevertheless, the City of Santa Monica should be prepared to defend this recommendation if adopted. 2. Require the ballot pamphlet for the City of Santa Monica to include a notice to voters regarding the availability of candidate, political committee and slate mailer organization campaign finance information on the Santa Monica City Clerk and the California Secretary of State Web sites, including Web site addresses. CGS supports this recommendation to alert voters to the availability of campaign finance data on the City of Santa Monica's Web site. 3. Require the Santa Monica City Clerk to post on the city's Web site ",ithin 24 hours any campaign statement filed with the Clerk pursuant to state or local law, including: . Semi-annual and pre-election reports (Cal. Gov't Code Title 9, Chapter 4, Article 2) . Late contribution reports (Cal. Gov't Code ~ 84203, $1,000 threshold) . Late independent expenditure reports (Cat. Gov't Code ~ 84204, $1,000 thres.hold) . Late payments to slate mailer organizations reports (Cal. Go,"t Code ~ 84220, $2,500 threshold) CGS supports this recommendation to mandate electronic disclosure oral! campaign finance infomlation related to Santa Monica City elections. The City Clerk currently posts candidate and committee campaign statements on the city's Web site, but is not required bv law to do so. This recommendation would make the Clerk's posting of these campaign statements a legal requirement and would include slatc mailer organization campaign statements. C. Compliance Recommendations 1. Create a Santa Monica Ethics Commission to enforce state arid local campaign finance laws; train candidates and campaign treasurers; and monitor emerging election issues. CGS supports this recommendation to create a Santa Monica Ethics Commission similar to those created in the cities of Los Angeles, San Diego, San Francisco and Oakland. 2. Incrementally increase the fines for repeat violations of state slate mailer election disclosure laws-with a third violation resulting in disqualification from paid election campaign work in California for a period of 10 years. CGS supports de concept of imposing incrementally increased penalties on repeat- violators of state slate mailer disclosure laws. Imposing Stich penalties on violators who are not active in Santa Monica elections, however, is beyond the scope of the City of Santa Monica's authority. The City should consider imposing such penalties only for violations related to Santa Monica elections. f:\atty\muni\laws\mjm\campaignfinance-1.doc City Council Meeting 7-27-04 Santa Monica, California ORDINANCE NUMBER (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING SANTA MONICA MUNICIPAL CODE SECTIONS 11.04.040 AND 11.04.100 AND ADDS SECTION 11.040.105 TO THE MUNICIPAL CODE RELATING TO CAMPAIGN FINANCE REPORTING REQUIREMENTS WHEREAS, meaningful campaign finance disclosure laws are an essential element of the democratic electoral process because they protect the voters' ability to make informed choices; and WHEREAS, disclosure requirements must be tailored to preserve First Amendment rights; and WHEREAS, the City of Santa Monica is committed to protecting both the democratic electoral process and individual rights; and WHEREAS, committees and slate mailer organizations pose particular challenges to effectuating this commitment; and WHEREAS, in order to honor its commitment and meet these challenges, the City Council wishes to modify the City's Elections Code to address the reporting requirements applicable to such groups, 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Santa Monica Municipal Code Section 11.04.040 is hereby amended to read as follows: Section 11.04.040 Definitions. Unless a word or phrase is specifically defined in this Chapter, the definitions set forth in the Fair Political Practices Act, Government Code Sections 82000 et seq. shall apply to this Chapter. The following words or phrases as used in this Chapter shall have the meanings set forth below. (a) Candidate. Any individual who has qualified to be listed on a ballot or who has solicited write-in votes on his or her behalf for election to the Santa Monica City Council, Santa Monica Rent Control Board or any other elected office of the City of Santa Monica, or who receives a contribution or makes an expenditure or gives consent for any other person to receive a contribution or to make an expenditure with a view to bringing about such person's election to such office, whether or not the specific elective office for which such person will seek election is known at the time the contribution is received or the expenditure is made, and 2 whether or not such person has announced candidacy or filed a declaration of candidacy at such time. "Candidate" also includes any office holder who is subject of a recall petition. (b) Committee. !\ny person or combination of persons \Nho directly or indirectly receives contributions or makes expenditures or contributions for the purpose of influencing or attempting to influence the action of the voters for or against tho nomination or election of one or more candidates. (6Q) Election. Any general or special election held to elect or remove a member of the Santa Monica City Council, the Santa Monica Rent Control Board or any other elected office of the City of Santa Monica. (a~) Organization. Any corporation, association, partnership, committee, labor organization, political party or other similar legal entity or arrangement, whether organized for profit or not. (eg) Person. A natural born individual, as well as any organization. 3 (f~) Small Contributor Political Action Committee. "Small contributor political action committee" means any committee which meets'all of the following criteria: (1 ) All of the contributions it receives from any person in a twelve month period total fifty dollars or less. (2) It has been in existence at least six months. (3) It contributes to at least five candidates within a three year period. (4) It is not a candidate controlled committee. (5) It receives contributions from more than one hundred persons. SECTION 2.Santa Monica Municipal Code Section 11.04.100 is hereby amended to read as follows: Section 11.04.100 Filing of statements. €aeR--Anv candidate~ and oach committee. elected official or slate mailer organization filinq a statement supporting or opposing a candidato or candidatos or any ballot moasuro and oach mombor of tho Santa Monica City Council, Santa Monica Ront Control Board or any othor oloctod offico of tho City of Santa Monica, shall filo with tho 4 City Clerk each statement required under ~Chapter 4 of Title 9 of the Government Code (Political Reform Act of 1974) shall also file a COpy of that statement with the City Clerk by the filinq deadline specified in state law SECTION 3.Section 11.04.105 is hereby added to the Santa Monica Municipal Code to read as follows: Section 11.04.105 Reportina of committee expenditures. Any committee that makes expenditures of One Thousand Dollars ($1.000) or more to support or oppose a candidate or candidates or any ballot measure shall report such expenditures to the City Clerk. This requirement shall apply to independent expenditures and member contribution expenditures but not to direct contributions to political committees. SECTION 4. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 5. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the 5 remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 6. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: 6