Nothing but public trust was hurt in the Gunfight at the ‘Everything Is OK’ Corral.
Selective Conflict Disorder aside, after last night’s meeting, I have to think that the illness affecting City Attorney Joseph Fletcher has now risen to epidemic proportions on the Santa Ana City Council. The City attorney appears to have spread the virus by advising the council that it was okay to vote on projects benefiting developers who have given them money because, get this, the Supreme Court has ruled that campaign contributions are free speech. He also infected the council with the understanding that the only people and businesses directly effected by votes moving a development project forward such as the actual developer or applicant applies to the law. For example, the developers of the Station District project benefit directly, but any of the brokers, lenders, etc. involved are not directly related so a member can take money from them without issue. With this rationale contributions received from Voit, a company in line to receive $22,350 in real-estate brokerage fees for work on the Station District project, are okay. Huh?
Sec. 425. – Disqualification due to campaign contributions.
A council member shall not participate in, nor use his or her official position to influence, a decision of the City Council if it is reasonably foreseeable that the decision will have a material financial effect, apart from its effect on the public generally or a significant portion thereof, on a recent major campaign contributor. As used herein, “recent major campaign contributor” means a person who has made campaign contributions totaling two hundred fifty dollars ($250.00) or more to the council member or to any campaign committee controlled by the council member in the twelve-month period immediately preceding the date of the decision. The mayor is a council member for purposes of this section.
So what part of “A council member shall not participate in, nor use his or her official position to influence, a decision of the City Council if it is reasonably foreseeable that the decision will have a material financial effect on a recent major campaign contributor” isn’t perfectly clear? For Santa Ana City Attorney Joseph Fletcher, the definition of “material” is a bit hazy. So hazy in fact that more than $22,000 in brokerage fees is not material. As I pointed out on Monday, Fletcher already doesn’t consider that, as the sole leasing agent for the One Broadway Plaza project, Voit and its agents are not materially affected by the approval of modifications that make the project more likely to be built and space leased. Last night he actually advised the council that taking contributions from a contractor who would directly profit from their vote on a project does not bar their participation because the Supreme Court has ruled that contributions are freedom of speech.
On their agenda last night was rhe recision of the Developer Agreement with Station District, LLC. This came up because members Tinajero and Martinez improperly voted on the project in June due to a conflict that arose because they had accepted thousands of dollars in campaign contributions before their votes on the project from affected parties. Indeed, contributions are freedom of speech, and the law does not make it a crime to make contributions to a candidate in excess of $250. It makes it a crime for a council member to vote on a project that directly benefits the donor. These are two unique and separate acts, one prohibited, the other not. The outside counsel that the City attorney dragged in to advise the Council told them that essentially they should take their chances. If they vote to rescind, they would bring lawsuits. If they did not they could possibly draw law suits for moving forward on a project without proper authorization, but the liability exposure would be considerably less. In effect, they were advised that two wrongs make a right. So with that in mind, Council members voted 3 to 1 against rescission of their previously improper vote on the Station District. For the record, Tinajero voted to rescind the previous action.
What is annoying about this is that technically the council could heal the conflict by declaring that inadvertent conflicts had arisen preventing a majority of the council from taking mandated actions requiring the council to heal the conflict in order to move forward in their mandated legislative duties. They could have simply declared the conflict and then randomly select enough conflicted members to heal the conflict so that they could vote. To heal the conflict; they simply have to disclose what they are doing and usually, members conflicted by contributions would need to return those contributions in order to heal their conflict, and then they all vote on the project. This process is an exception to be used in rare circumstances (like this one) and should be used as a common practice.
Well, leave it to the Gang That Can’t Get Their Conflicts Straight, they figured it was better to simply ignore the conflict, or claim it never existed. Then Sal Tinajero votes on the matter, because he never intended to do anything wrong. And the conflict that Councilman VInce Sarmiento had back in June, that has mysteriously disappeared. So ends the Gunfight at the ‘Everything Is OK’ Corral.