The call for reform in the way commissioners are placed on the San Diego Ethics Commission board is growing stronger. If supporters of depoliticizing the process succeed, this would be the rare and welcome instance where a problem area is cauterized before the hemorrhaging becomes critical.
For now, though, three new commissioners and one re-appointee have been tapped by Mayor Kevin Faulconer, and await September confirmation by the city council.
In early August, former San Diego City Councilmember Donna Frye told CityBeat: “Get rid of the mayor and the city council participating in the appointment of people who are going to provide enforcement actions on you.”
That makes infinite sense—which is what proponents of good government, sigh, might say is the reason it doesn't exist in political practice.
Frye has long been a backer of changing Ethics Commission board appointments so that a panel of retired judges makes the picks. The League of Women Voters favors this idea. Last year, according to an editorial in The San Diego Union-Tribune, City Attorney Jan Goldsmith included this notion in an annual list of possible changes in the City Charter.
When the city's Charter Review Committee met in May 2014, none of the city councilmembers in the group—Sherri Lightner, Chris Cate, Marti Emerald or Mark Kersey—made a motion to consider the plan, according to the U-T.
In August, Kersey's office sent CityBeat this email: “Many of the recent nominations for this commission have been made in a bipartisan nonpolitical manner, including the nominations made by my office. (I joined Council President Lightner to nominate a Republican and Councilmember [David] Alvarez to nominate a Democrat.) I favor allowing the current appointment process to play out before we begin looking at ways to change it.”
Alvarez's office sent word that he is “willing to consider reforms.” Reform action must begin in the city council.
Well, a public proposal for reform is currently being drafted. Several former Ethics Commission chairs are working on an op-ed piece that will call for changing to a process of retired judges nominating commissioners—similar to the way redistricting commissions are formed.
There have been three Ethics Commission board chairs (Gil Cabrera and William Howatt, and current outgoing chair John O'Neill) who were nominated for second terms but not selected to return. Ostensibly, they were booted for being perceived as too aggressive in levying fines, or for political paybacks. That's the kind of retaliatory action that could be avoided if impartial board selectors were in place.
In the Ethics Commission's 14 years of existence, there haven't been any reported instances of political party blocks working together on the seven-member board to vote for or against levying a fine. The board can include no more than three members of any political party, and must have at least one “decline to state” member.
It takes four votes to pass non-enforcement related decisions (like approving meeting minutes, or, perhaps, ordering pizza for after-hours sessions).
But it takes five votes to impose a fine. That means three votes (out of seven) can block a fine. It also means impartiality is paramount.
The hoopla surrounding this year's nominations focused on two types of politics: office, and the old-fashioned political party kind. It was widely believed the nomination of Bob Ottilie— an oratorically gifted lawyer who became disdainful of perceived overreaching by the commission—was an office politics nomination. (After Ethics Commission Executive Director Stacey Fulhorst stated publicly that she and other staff and commissioners would quit if Ottilie was picked, the risk-averse decision by Mayor Faulconer was to pass on him. It also appears that stating an objection to Ottilie joining the board helped push O'Neill out the door. A mayoral spokesperson, though, says “all nominees were thoroughly vetted” and “public statements by various individuals had no bearing on his decision-making process.”)
The negative perception of two other nominees— Democrat Xavier Martinez and Republican Bill Baber—is that they are too entrenched by party politics. Martinez didn't get picked; Baber is tentatively in.
Ethics Commission board members need to look, and be, politically untouched. The city council needs to give up control of the appointment process, stat.