A house divided: Vague law pits city against ’self
CITY HALL — A law passed four years ago by Santa Monica voters aimed at eliminating political corruption and special interest campaign financing is still not being enforced as a lawsuit filed by the city against the city is hashed out in court.
After City Hall sued itself and lost in 2002, it appealed the decision. Oral arguments were made in the Court of Appeals on Oct. 27. A ruling is expected within the next month.
Proposition LL, approved by Santa Monica voters in 2000, limits public officials from receiving gifts and campaign contributions from companies that contract with the city. It blocks officials who award contracts of more than $50,000 from receiving campaign contributions, gifts or employment from the party to whom the benefit was awarded.
But City Clerk Maria Stewart refused to enforce the law because it’s unconstitutional, based on advice from the city attorney. City officials, who are normally supportive of campaign finance reform, think the measure — levied by a local taxpayer and consumer rights advocacy group — violates constitutional rights mostly because it’s full of holes. The law was so poorly written that the city was forced to sue itself just to enforce it, city officials said.
The results so far are racked-up attorney fees most likely to be paid by taxpayers, a voter-mandated law still not being enforced and a case that has taken more than four years to resolve.
The city and Stewart hired separate, outside law firms to represent both sides because the city attorney’s office couldn’t represent either of them. It’s unknown how much lawyers have billed both city entities in the case.
When Prop. LL was supposed to go into effect, Stewart was unsure on how to enforce it because it was riddled with confusing provisions and is widely deemed too broad, therefore it violates due process, city attorneys argue.
The City Council wanted clarification too, but it also wanted to make sure the city was honoring the “will of the people” — the 59 percent of Santa Monica voters who approved the law. And suing the group that forced the measure onto the ballot, the Oaks Project, wasn’t an option because city officials didn’t want to appear to be going against that will, officials said.
So the only way city officials thought they could clarify the law’s constitutionality was to sue its own city clerk for not enforcing it, then wait for a judge to rule.
Santa Monica Superior Court Judge Debra Yang dismissed the suit in April 2002, but not because it’s unconstitutional — rather that the city had no legal grounds to sue because no one had challenged the law. Yang left the bench to become the United States Attorney for Los Angeles shortly after her decision.
“We didn’t agree that the law was unconstitutional per say, but that there are several provisions that are apparently unconstitutional,” said Deputy City Attorney Tony Serritella. “We asked the court to modify the provisions, or strike them from the initiative.”
While there are several provisions the city wants either stricken or clarified, it appears the one of utmost importance is to clear up whether appointed officials and low-level employees would be subject to civil and criminal penalties under the law.
The initiative applies to “any elected official or appointed public official acting in an official capacity.” The city argues the initiative doesn’t specify which employees are deemed to have discretion in conferring a public benefit.
The city argues that if a zoning administrator — an appointed official who has discretion to approve routine applications for zoning permits — would violate the law if he accepts sports tickets from a family friend who happens to be a partial owner of a construction company that does business in Santa Monica.
“Determining which officials are actually covered... presents a question of some complexity,” wrote Serritella in his brief to the Court of Appeals. “While the principal tool of the initiative is the limitation or banning of campaign contributions, its apparent reach to both appointive as well as elective officials, to both lower-echelon as well as commissioners and department heads is troublesome in its overbreath and the uncertain burdens which accompany it...
“This court can save the initiative by reforming the term ‘public official’ to mean only those persons who hold local elective office.”
The city also asks that the initiative not include non-profit organizations, so that the officers, directors and volunteers would still be able to contribute to the campaigns of public officials. In addition, the city argues that the ban on campaign contributions to Santa Monica officials who subsequently pursue federal and state office can be severed without invalidating the law.
The city argues that the criminal and civil penalty provisions of the law could violate due process because “it’s hard to imagine how a public official is supposed to know, for example, the identities of all persons who hold more than 10 percent... equity, participation or revenue interest, or who is a trustee, director, partner or officer of a person or entity receiving a public benefit,” according to Serritella’s brief. City attorneys have asked that the law be more specific to say that public officials “who knowingly or willingly” accept contributions are violators.
Santa Monica was a test market for the initiative that has now been tried out in Pasadena and San Francisco. Only San Francisco is currently enforcing it. The Pasadena case has been consolidated with Santa Monica’s, said Oaks Project Director Carmen Balber.
Balber contends that the measure is constitutional and the arguments made by City Hall are “ridiculous,” particularly the argument that the law is designed to go after low-level employees. She contends it’s intended for elected officials.
“That’s a red herring argument,” Balber said. “The city had no right, with city money, to challenge what the Santa Monica voters approved.
“We think it’s a shame that the city has taken this through the ringer.”
Originally published in the Santa Monica Daily Press print edition on December 3, 2004. Read the original PDF.