Oakland’s Public Ethics Commission —A Part of Our Government Which Is Changing

By Judy Cox

[ October 2014 ]  The Oakland’s Public Ethics Commission was established in 1996 for the purposes of seeing that City ethical standards, regulations and policies are followed:

• the Sunshine Ordinance, which mandates open meetings, public records access and retention, and transparency;
• the Code of Ethics,
• the Campaign Finance Reform Act, which sets campaign contribution limits;
• the Limited Public Financing Act, which provides for partial public financing of campaigns of those who apply;
• the False Endorsement in Campaign Literature Act, which sets voluntary expenditure ceilings and requires campaign finance disclosure;
• the Lobbyist Registration Act, which requires lobbying disclosure and spending disclosure of to influence govt. decisions;
• the Conflict of Interest Code which forbids misuse of public resources, and conflicts of interest in govt. decisions;
• City Council Code of Conduct, which sets restrictions on post-City employment, protects competitive bidding on govt. contracts and outlaws nepotisim and corruption;
• Ordinance Prohibiting Retaliation Against City Employees Who Act as Whistleblowers (PEC not presently able to enforce this law);
• and the Public Records Act.

The City Council agreed to create the Commission so they would not have to grant themselves raises, but could give the Commission that function.  As a result of good government advocates wanting a body which would curb unethical behavior and Councilmembers wanting raises without having to award them to themselves, we got an Ethics Commission with wide and increasing responsibilities but no power to enforce violations of the codes and acts for which it has responsibility and no power to initiate investigations, or to censure or fine wrongdoers.  Staffing of the PEC has been kept low, so there has never been enough staff to adequately investigate potential wrongdoing.

In short, the PEC has lacked the effectiveness which many of us looked for in establishing it.

Councilmember Dan Kalb campaigned on a platform of reforming and empowering the PEC and has labored with a working group during 2013-14 to  provide for reforms and enhancements.  Measure CC on our current ballot contains these proposed reforms.

We need major changes to foster ethical behavior in City employees, lobbyists, candidates and citizens, if we are to have a City which operates for the common good—a city we can be proud of.

To make the PEC into an effective ethics teaching and enforcement body, Measure CC  proposes the following:

• Have PEC Commissioners appointed more broadly: have the mayor, the City Attorney and the City Auditor each appoint one commissioner and that others apply;  under the current system, the mayor appointed three commissioners and no other City official appointed; lobbyists would not be permitted to apply to be commissioners;
• Allow Commissioners to serve for two three-year terms to allow the City to benefit from the learning about how the PEC operates and what impact it can have.
• Oakland has never been mandated to provide minimum staffing or resources for the PEC; at times this has meant that there was an Executive Director and one half-time additional employee.  Measure CC calls for minimum staffing of six staff positions with appropriate budget for that group;
• Replacements for the PEC Executive Director would be found by a search by the City’s Human Resources Dept., providing potential candidates to the commission; the commissioners would select two or three finalist candidates and the City Administrator would then select the final candidate who would serve at the pleasure of the Commission. The Commission would have full control of its office, to submit biannual proposed budgets and to expend the funds in that budget.
• Measure CC proposes making the PEC responsible for administering, implementing, investigating, enforcing and responding to issues related to compliance with the acts, ordinances and other legal requirements relevant to its mandate. The PEC would also have the role of protecting whistleblowers, teaching ethics, and investigating ethical violations.  All investigations would remain confidential until decisions are made.
• The Commission would also have penalty powers for all the ordinances under its jurisdiction. It could issue advisory and warning letters and make recommendations to appointing authorities when a City employee should be disciplined, suspended or removed for a violation of ethics laws. The Commission would refer situations/actions to other enforcement authorities such as the District Attorney, and the CA Attorney General. Penalties would not be limited by the $1000 limit specified in the City Charter.
• Oakland should adopt an ethics ordinance modeled on the ones used by major cities.
• The PEC should be given oversight and enforcement of Non-interference in Administrative Affairs;
• The PEC should have the authority to reprimand or censure City employees violating the Council Code of Conduct.
• The PEC should enforce Oakland’s Conflict of Interest Code; it should incorporate state conflict of interest laws and should be charged with disclosing any personal, professional and business relationships between City employees and those who are  the subject of govt. decisions.
• There should restrictions on gifts, on paying for government services (bribery), on paying for office, and on nepotism and other decisions involving family members.
• The PEC must prohibit City employees from using their position or resources for personal gain or from engaging in political activities while at work, in uniform, etc. It must also prohibit City officers and employees from disclosing City information for personal gain or advantage.
• Oakland must prohibit providing false or misleading information to the PEC and must require cooperation with PEC investigations.

Measure CC will bring welcome change and enhancement if Oakland voters pass it.  A lot of work will still be needed to develop the enhanced charter and other documents to fully empower our new Ethical Arm.