Tell us about the money

Later this year, Councilwoman Marilyn Ezzy Ashcraft will get the chance to strike a blow for “transparency” and set an example to her colleagues about timely disclosure of campaign contributions.

The Bladium Sports & Fitness Club, which has been operating at Alameda Point since 1995, wants to buy the land on which it is located from the City.  For a sale to take place, Council will need to approve both a final parcel map and a purchase-and-sale agreement.  (The Planning Board took the first step in the process last week by recommending approval of a tentative parcel map.)

When the deal comes before Council, here’s what Ms. Ashcraft might say:

“Before we hear from staff, I’d like to disclose that the Bladium and its president, Brad Shook, have been among the largest individual contributors to my three most recent Council campaigns.

“In 2010, when I ran unsuccessfully for Council, I got a $1,000 cash contribution from the Bladium.  Only one person gave me more.

“In 2012, when I was elected to Council, I got a $500 cash contribution from Mr. Shook personally.  Again, only one person gave me more.

“In 2016, when I was re-elected, I got two cash contributions totaling $1,500 from Mr. Shook.  No person gave me more.”

Having heard Ms. Ashcraft’s disclosure, Councilman Jim Oddie then might raise his hand and say, “I should disclose that, I, too, received a contribution from the Bladium when I ran for Council in 2014.  It was for only $300 – which is chump change compared to the $23,544.90 I got from my union friends.”

If Ms. Ashcraft was sitting on the Planning Board (or, for that matter, the Recreation and Parks Commission) rather than on Council, not only would she be legally required to disclose the most recent contributions from the Bladium’s president but she would be disqualified from participating in the Council decision on the Bladium deal.

The Levine Act (Government Code section 84308) provides that,

Prior to rendering any decision in a proceeding involving a license, permit or other entitlement for use pending before an agency, each officer of the agency who received a contribution within the preceding 12 months in an amount of more than two hundred fifty dollars ($250) from a party or from any participant shall disclose that fact on the record of the proceeding.

The statute continues,

No officer of an agency shall make, participate in making, or in any way attempt to use his or her official position to influence the decision in a proceeding involving a license, permit, or other entitlement for use pending before the agency if the officer has willfully or knowingly received a contribution in an amount of more than two hundred fifty dollars ($250) within the preceding 12 months from a party or his or her agent, or from any participant, or his or her agent if the officer knows or has reason to know that the participant has a financial interest in the decision.

The contribution by the Bladium to Mr. Oddie occurred more than 12 months ago, outside the time period covered by the statute.  But the Levine Act doesn’t apply to Ms. Ashcraft, either – because of the way it defines “agency.”  An appointed board or commission is covered; a body directly elected by the people is not.  So Ms. Ashcraft would be entirely within her legal rights if, when the Bladium deal is presented to Council, she remains silent about the campaign cash she received from the party seeking to buy land from the City.

Likewise, receipt of the contributions does not disqualify Ms. Ashcraft from voting on the transaction.  Under the Political Reform Act, a public official may not make, participate in, or influence any decision that will have a “reasonably foreseeable and material financial effect” on the official or her immediate family.  As far as we know, the Ashcrafts own no stock in the Bladium.

But should she remain silent?

It certainly can be argued that she should not.  Start with the proposition that campaign contributions may influence how an elected official will vote.  Various theories have been offered to support this proposition.  We like Harvard Law School Professor Lawrence Lessig’s concept of a “gift economy”:  if a person or organization gives a politician something she needs (money for her campaign), the politician feels obligated to return the favor later by giving the contributor something she wants (a vote for a government contract).  And the most recent research by the social scientists shows that it is empirically true.

The recognition that campaign contributions may affect how a candidate will act if elected underlies the laws requiring her to disclose before the election the contributions she has received.  But information about contributions is relevant not only when a candidate is seeking office but also when, having won the office, she is asked to take an action benefiting one of her contributors:  Once the candidate has been elected, the formerly hypothetical opportunities for payback become real.  And one really can’t expect the ordinary citizen to plow through all of the previously filed campaign disclosure reports to investigate whether an agenda item would profit a contributor to a Council member.  It ought to be up to the member herself to disclose the facts when the item is called for discussion.

So that’s the challenge we pose to Ms. Ashcraft:  If she agrees that campaign contributions may influence legislative decisions – or, at least, that the public, with support from scholars, perceives that they do – she ought to set an example by vowing to speak up whenever Council is asked to confer a benefit on one of her campaign contributors – and then following through when the Bladium deal gets on the agenda.

(We don’t mean to pick on Ms. Ashcraft; indeed, we think it is highly unlikely that she would vote to approve a sweetheart deal for the Bladium simply because it has been one of her largest contributors.  It just so happens that she’s the first Council member who will get the chance to lead her colleagues toward more timely disclosure of campaign contributions.)

If Ms. Ashcraft took this course, she would establish a precedent that would shed light on other decisions Council will be making in the not-so-distant future.

For example, when Tim Lewis Communities (or its affiliate, North Cove Waterfront) seeks approval from Council for its proposal to develop the Encinal Terminals (as well as any subsequent authorizations required for its previously approved Del Monte warehouse project), Ms. Ashcraft and Vice Mayor Malia Vella would disclose that the Tim Lewis-affiliated entity contributed $5,000 to an organization – Alamedans United – that spent $12,888.91 to re-elect Ms. Ashcraft, and $18,706.32 to elect Ms. Vella, to Council.  (The figures cover the reports filed through November 3; they may go up when Alamedans United files the semi-annual disclosure due next Tuesday.)

And when Bay West Development (or an affiliate) seeks approval from Council for its proposal to develop the Alameda Marina, Ms. Ashcraft and Ms. Vella would disclose that one of the project’s advisors, Oakland real estate developer James D. Falaschi, gave $5,000 to Alamedans United.  In addition, Mr.  Oddie would disclose that Mr. Falaschi gave him a $500 cash contribution for his 2014 campaign.

And if and when Pacific Union Land Investors revives its proposal to build a senior assisted-living facility on Harbor Bay Isle, Ms. Ashcraft and Ms. Vella would disclose that an affiliate of the developer called Hartz Holdings, Inc. gave $10,000 to Alamedans United.  (Our conclusion about affiliation is based on the facts that the two entities have the same address and the same chief executive officer, Jeffrey W. Abramson.)

And if and when Bay Ship & Yacht seeks to modify or renew its $54,000 per-month contract with the City to provide port berthing services at Alameda Point for two years, Ms. Ashcraft and Ms. Vella would disclose that the company gave $2,000 to Alamedans United.  Update:  According to the campaign disclosure statement filed on January 31, 2017, Mr. Oddie – who is not up for re-election until 2018 – received a $500 cash contribution from Bay Ship & Yacht on October 23, 2016.

The last four disclosures, of course, all involve Alamedans United, which, as Ms. Vella was wont to remind audiences during the campaign, positioned itself as an “independent expenditure” committee, rather than a “candidate-controlled” committee.  We remember well how Stephen Colbert used to mock the idea that a committee that raised and spent money to elect a candidate could call itself “independent,” and, as it turns out, he is not the only skeptic.  A more serious source – a “major empirical study” cited by the League of Women Voters – found “political actors” believe that, in fact, candidates and “independent” committees “do engage in cooperation through a tapestry of signals that allow them to pursue their electoral goals in concert.”

In any event, a contributor gains just as much influence by paying an “independent” committee to send out mailers on a candidate’s behalf as it does by giving the money for the mailers to the candidate herself.   It’s the spending to get the candidate elected, not the vehicle through which it’s done, that matters.

Which brings us to what might be the most interesting voluntary disclosure of all.

The public safety union contracts former City Manager John Russo pushed through Council as his last official act don’t expire until December 2021.  But we wouldn’t be surprised if a spending proposal hatched by the Alameda firefighters’ union finds its way onto a Council agenda in the next two years.  After all, couldn’t the new $14.4 million Emergency Operations Center/fire station no. 3 use a bigger staff than just one “disaster preparedness” captain at the EOC and a single engine company at the fire station?

If such a proposal is made, the precedent we hope Ms. Ashcraft will establish would prompt an outpouring of voluntary disclosures:

Ms. Ashcraft and Ms. Vella would disclose the amounts spent on their behalf by Alamedans United, which was co-sponsored by the Alameda firefighters’ union and which received a $2,103.32 cash contribution from the union.

Ms. Vella would disclose that the firefighters’ union co-hosted her campaign kick-off fundraiser last year and that it spent $1,199.11 just before the election on mailers promoting her and the rest of the IAFF Local 689 slate.

Ms. Ashcraft would disclose that, as it did for Ms. Vella, the firefighters’ union co-hosted a fundraiser for her (it was less expensive than Ms. Vella’s – $242.47 for food and drink compared to $287.67), and that she was one of the candidates featured in its slate mailer.  In addition, Ms. Ashcraft would disclose that the union gave her a $500 cash contribution in 2012 and a $3,000 cash contribution in 2004.

Mr. Oddie would disclose that he’s got both of his colleagues beat:  the firefighters’ union spent $11,799.07 ($10,627.44 on mailers, $904.67 on phone banking, and $266.96 on food and drink for a fund-raiser) to get him elected in 2014.

If all these disclosures were made, the public would know exactly how much financial assistance the firefighters’ union provided to the three Council members – who comprise a majority sufficient to pass a resolution – when they ran for office.  (In case you’re wondering, neither Mayor Trish Spencer nor Councilman Frank Matarrese would have anything to disclose.)  The public would then able to judge for itself the risk that campaign contributions would taint Ms. Vella’s, Mr. Oddie’s, or Ms. Ashcraft’s decision about whether the City can afford to hire and equip more union firefighters.  And, in a city as enamored of symbolic gestures as Alameda, there might be something to be gained by having each of the three look their constituents in the eyes and swear that nothing of the sort would happen.

The ball’s in your court, Ms. Ashcraft.

Sources:

Campaign disclosure statements for the local candidates, “Alamedans United,” and the IAFF Local 689 PAC are available on the City website: http://docs.ci.alameda.ca.us/WebLink8/Browse.aspx?startid=310100&row=1&dbid=0.

Sale to Bladium: 2017-01-23-staff-report-to-pb-re-bladium-deal

Levine Act: california-government-code-section-84308fppc-pay-to-play-contribution-restrictions

Influence of campaign contributions: powell-the-influence-of-campaign-contributions-on-the-legislative-process-2014peoples-yes-contributions-really-matter-2014lwv-evidence-of-spendings-impacts-on-electoral-and-legislative-outcomes-2015

 

 

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Council, Firefighters and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to Tell us about the money

  1. Full Disclosure says:

    Why not include the other council members in your investigative reporting?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s