July 8, 2004

Proposed lobbyist ordinance poses questions, concerns
City Council defers vote, schedules study session

By Kymberli W. Brady
Staff Writer

With the apparent need to curtail the growing influence lobbyists place on City Council decisions, councilmembers have decided to establish a Blue Ribbon Task Force on Ethics to review and revise the ethics provisions in Title 12 of the Municipal Code. The result is expected to be a landmark ordinance that will cast a keener eye into the dealings of municipal lobbyists—if it ever goes up for a vote.

During the June 29 City Council meeting, closed-door task force meetings, coupled with confusion surrounding those who might be labeled a “lobbyist” remained key issues that prompted further discussion and delayed the vote until Aug. 10, after the Council returns from legislative recess.

The role of a lobbyist is clear in that companies willingly pay upwards of $500,000 in “success fees” to those who are victorious in influencing elected officials to take legislative or administrative action that might benefit them. It worked for Calpine in 2001, where a handful of lobbyists convinced San Jose officials to give the green light to the Metcalf power plant. And they did it again last year, resulting in an $18.9 million contract with Santa Clara County for the purchase of electronic voting machines from Sequoia Voting Systems.

The central concern lies in the ability to fairly regulate unhealthy lobbyist activity, while preserving healthy participation in democracy.

Currently, San Jose rules only require that lobbyists register with the city and disclose clients’ names and addresses. Under the new ordinance, lobbyists would be required to complete an ethics training program every three years and pay an annual $350 registration fee, plus $60 per client for whom lobbying results in compensation over $500. Full client disclosure, including the nature of the business and the item(s) of legislative or administrative action the lobbyist is seeking to influence will be mandatory, along with campaign contributions to elected officials and charitable donations made on their behalf. They will also be required to file quarterly reports, whether or not lobbying occurred during that time.

A memo, issued by Councilmembers Dave Cortese, Cindy Chavez, Judy Chirco and Nora Campos recommended that the Council receive the Blue Ribbon Task Force Report, but defer any council action until Aug. 10 in an effort to further review the ordinance, schedule study sessions and perform extensive outreach to media outlets, members of the public, and community groups for public comment.

“I’m not just interested in public input and their understanding of it, I need to understand it myself,” admitted Dave Cortese. “I don’t understand it. This was a task force that other councilmembers could not participate in without noticing those meetings as full public meetings. I couldn’t participate in them, nor, I suppose could other councilmembers. And the translation of what happens in a meeting is not brought back necessarily in absolute direct terms. I’m not prepared in the time allotted to absorb this without some sort of full-on presentation that would demonstrate to us what a dry run of this ordinance would look like if we were to walk through it.”

“This is a policy that we will be adopting,” agreed Chirco. “To adopt it without complete understanding to the best of my ability would not be performing my job in the manner I perceive it needs to be performed.”

Mayor Gonzales remained concerned with the council’s inability to find common ground on enough issues to quantify a vote. “Some members of the council had a lot more access to information than others did and they were able to come to conclusions that my other colleagues haven’t been able to come to,” he explained. “If we are to embark on major changes to our ordinance, I’d sure like to see a consensus up here, because we’re the ones who will have to live with it—to execute what ever ordinance we put into effect.”

With the majority of councilmembers in agreement that additional time would be needed to allow everyone involved an opportunity to “catch up” with the findings of the task force report, the motion to defer further action until Aug. 10 passed, with Vice-Mayor Pat Dando and Ken Yeager opposed.

“We have discussed and re-discussed this,” argued Dando. “We have advertised this far and wide and my sense is that we are going to hear from the same people again if we do a study session. If people don’t understand it, I think it will be the councilmembers up here that better have to understand it.”

Although Yeager, chair of the Blue Ribbon Task Force, understands the need for public input, he blames the way the ordinance was set up for the confusion surrounding those who think they might be affected by it. “Actually, they won’t be,” he said. “I think it is significant that what is being presented doesn’t include neighborhood organizations. They don’t need to fear it.”

According to a letter read by Yeager, The Silicon Valley Council of Nonprofits and their 165 member agencies supports the ordinance. “We have received no opposition,” it read. “Our agencies believe their efficacy on issues of behalf of clients would not exceed the 20 hours over three months. Additionally, we appreciate the exclusion of uncompensated, nonprofit board members.”

Also issuing support of the ordinance on behalf of the League of Women Voters was Virginia Holt, who praised the council’s continuing efforts to ensure a high ethical government. “The lobbying ordinance marks the start of San Jose’s progress toward a more open and trustworthy government,” she said. “The question now is why and how has lobbying become such a problem for San Jose? The answer should be found in the next phase of the task force’s mission. We’re losing emphasis from the lobbyists to the targets of the lobbyist’s efforts and develop a code of ethics for councilmembers, their staff, and their aids.”

While most agree the ordinance is necessary, the once black and white issue is now riddled with pockets of gray areas, where many continue to search for the definition of the word “lobbyist”—leaving them to question the roles they would play under the new rules.

As president of HPC Architecture and past president of the American Institute of Architects, Steve Cox asserted that it wasn’t until Rick Doyle’s interpretation of the ordinance last week that architects, engineers, and planners are suddenly trying to crawl out of a potential dragnet that might label them contract lobbyists, as opposed to in-house lobbyists—forcing a troublesome full disclosure of fees. “We are very visible in the process,” he stated. “Our names are on the application. We know we’re being compensated because we are providing a service as required by state and city law that would be involved in the process. In the course of providing technical expertise or an aesthetic opinion, we oftentimes interface with councilmembers and department heads to clarify and answer questions—that would put us in the category of being contract lobbyists and we think that’s harsh.”

“They are trying to take this broad brush and capture as many people as they can into the lobbying category to be able to track who is doing what,” added civil engineer Matt Kamkar, whose company, CCC Engineers, specializes in transportation and public works projects. “It’s about transparency. We feel the idea is fantastic, but to call an architect or civil engineer a lobbyist is not fair, nor accurate. Lobbyists do things from the back door and keep them hidden. Ours is public information. Adding additional reporting responsibilities on us for the services we offer would be counter productive.”

Public encouraged to participate in study session
In an effort to address concerns and unresolved issues with the text of the ordinance and generate additional public comment, a study session has been scheduled for Aug. 3, following the council’s regular meeting at City Hall. According to city attorney Rick Doyle, it will be a noticed meeting where “the world could come” for an in-depth review of what the proposal is and how it came to be.

With the second reading scheduled for Aug. 10, the new ordinance, if passed, would go into effect Sept. 9.
For more information on the lobbyist ordinance, including the Aug. 3 study session and downloadable versions of the draft text, log onto http://www.sanjoseca.gov/