Mayor Agran urges stricter campaign donation rules, which other California cities have adopted. Some see legal difficulties.

Los Angeles Times

Irvine may join a handful of California cities that have passed controversial campaign and ethics rules intended to prevent elected city officials from using their office to enrich themselves.

The proposed ordinance would restrict elected officials from accepting campaign donations, gifts or jobs from anyone with a major municipal contract or project that required a City Council vote.

“I think it’s always important to do everything possible to instill and maintain public confidence in the honesty and integrity of elected officials,” said Mayor Larry Agran, who is pushing for the restrictions. Voters in San Francisco, Santa Monica, Pasadena and Claremont recently passed ballot measures imposing the stricter guidelines–initiatives sponsored by the Oaks Project, a Santa Monica-based citizens group. The ballot measure failed in the San Diego County community of Vista.

In Irvine, backers failed to gather enough signatures from registered voters to place the measure on the city’s March ballot–coming up 81 signatures short. But the organization successfully lobbied the City Council to consider adopting the ordinance, and Agran is heading a council panel studying the proposal.

Agran said he hopes to bring the ordinance to the council for consideration this fall.

State law already prohibits public officials from voting on matters involving individuals or companies that have donated $250 or more to their campaigns within a year. State and local officials also are prohibited from receiving gifts totaling more than $320 from any single source in a year.

The Oaks Project’s proposed rules aim to regulate conduct for five years after a vote or one year after the public official leaves office, whichever comes first. During that time, officials would be barred from accepting any money, gifts or jobs from companies or employees who benefited from the vote.

The Oaks Project was founded in 1997 as an arm of the Foundation for Taxpayer and Consumer Rights, a Washington-based nonprofit organization headed by consumer activist Harvey Rosenfield. The project also is allied with Ralph Nader.

The group targeted only Irvine and the five other cities for the measures because they represent a cross-section of communities in California, said Margaret Strubel, an Oaks Project spokeswoman.

At issue is whether the outright ban on campaign donations violates the 1st Amendment. Critics, including Irvine City Atty. Joel Kuperberg, contend that campaign donations are a form of free speech and cannot be banned.

“If a company enters into a contract to resurface a city street, for example, then the management, the employees and the owners of that company would be prohibited from making a campaign contribution to any City Council member who voted on that contract . . . and that would be a violation of the 1st Amendment,” Kuperberg said. “If I’m not allowed to cash your check, you haven’t really contributed to me.”

However, other legal experts say the law on contribution limits is not well defined.

“There’s really no definitive answer because there’s really no constitutional law on this,” said USC law professor and constitutional law expert Erwin Chemerinsky. “The Supreme Court has said you can limit contributions, but the Supreme Court has never dealt with a complete prohibition of contributions.”

Chemerinsky also said supporters could argue that the contribution ban is an extension of anti-bribery laws, which prohibit public officials from accepting money or gifts in exchange for votes.

“Such quid pro quo contributions are deemed bribery, and the Supreme Court has no constitutional problem with that,” Chemerinsky said.

The new restrictions have already spawned a flurry of legal action in three of the four cities where the measures have passed.

In Santa Monica, the City Council has sued the city clerk, who refused to implement the law because of concerns about its constitutionality.

Claremont and Pasadena officials have expressed the same constitutional concerns and are trying to intervene in the Santa Monica lawsuit so they too can have legal clarification, said attorney Craig Steele, who is representing both cities in the matter.

“We are going to urge the court to take action on all three cities’ measures since they are identical,” Steele said.

Oaks Project members say they believe the initiative will pass the court’s muster because it’s aimed at public officials, not their supporters, said the Oaks Project’s Strubel.

“This deals with conduct after the vote takes place, not before,” Strubel said. “We have constitutional lawyers who have looked at this already. We don’t even think this is a constitutional issue.”

Strubel said the group will support groups pushing for ballot measures in other cities.

Irvine already limits campaign contributions to $320 from a single company and its employees. Public officials also must disclose gifts of $50 or more.

Irvine’s five-member City Council appears to be divided on adopting the additional measures. While Agran supports the tougher restrictions, Councilman Greg Smith, who also sits on the panel reviewing the measure, isn’t so sure the ordinance is necessary. Plus, it may cause more problems than it’s worth, he said.

“There may be some instances where employment after someone’s term ends would be beneficial,” Smith said. “Take, for example, if Mayor Agran were to leave office, and we decided we wanted to hire him to lobby for us in the airport fight. With this law, we would lose our most effective mouthpiece in the fight against an airport at El Toro. It’s a two-edged sword.”

Smith said he would rather the city focus on ways to promote public access to campaign contributions and gift disclosures, such as posting the data on the city’s Web site.

Agran said he hopes the city can draft an ordinance that builds on the strengths of the Oaks Project measures without creating the same difficulties.

“The whole point is to avoid violation of 1st Amendment rights while instituting reforms that get the job done,” Agran said. “In the end, we want to be sure that any ordinance discourages misconduct but doesn’t just sit out there and snare unwitting office seekers or officeholders.”