One of the essential items on the agenda of last Tuesday’s meeting of the City Ethics Commission was a wide-ranging set of proposals from Enforcement staff for revisions to the CEC’s enforcement regulations. These are the laws and policies which guide the enforcement process. The proposals were emailed to interested parties only a few days in advance of the meeting, evidently leaving everyone feeling kind of blindsided,¹ especially because they appeared with a recommendation from staff that they be adopted right then.

So at the actual meeting, when the item came up for discussion, Commission President Jessica Levinson made fairly convincing noises to the effect that the matter should be postponed until April. More interestingly, though, she mentioned almost in passing that she’d received a number of written public comments asking the Commission to table the matter. Well, one of my favorite bits of the Brown Act, §54957.5(a), states unequivocally that:²
any … writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records under the California Public Records Act … and shall be made available upon request without delay.

As one might expect, the Ethics Commission is absolutely the best of all City agencies at following this law. They keep a big plastic box at the back of the room during meetings which contains every possible piece of paper necessary for compliance. So as soon as President Levinson³ mentioned that there were written comments, and as soon as it became clear that all the Commissioners had copies, I zipped back to look in the box. How disappointing to find nothing of the sort in there! But the story has a happy ending, never fear, and turn the page to learn the details.

So after the meeting I asked Executive Director Heather Holt if I could look at a copy of the public comments.⁴ She referred me to her deputy, David Tristan, who functions as, among other things, the guardian of the box. He was busy giving quotes about the John Ek situation to none other than the incomparable Emily Alpert Reyes, but when they got done talking and I had a chance to ask him about it, he told me that they’d had copies, they’d run out, and if I left my email address he’d send me PDFs. I did, he did, and here they are for you to read as well.

Fully half of them are from lobbying firms, which I suppose is to be expected. The main thing they said is that they hadn’t had enough time to absorb the complex proposal, which is almost 40 pages long, after all. This strikes me as totally reasonable. Interestingly, the part of the proposal that the lobbyists uniformly objected to in their comments was the one suggesting modifications to the statute of limitations:

In keeping with Charter §470(o)(2), the current regulations specify a four-year statute of limitations for enforcement actions. LAAC §24.26(a)(2). The four-year period is tolled if the respondent engages in concealment or deceit or fails to comply with a subpoena. LAAC §24.26(a)(2)(A)-(B).

We recommend expanding this provision to also toll the statute of limitations while a respondent is in negotiations with the Director of Enforcement regarding a stipulated order. See proposed LAAC § 24.26(2)(C); Attachment A, p. 2; Attachment B, p. 4. The tolling would begin when the Director of Enforcement initiates negotiations and would last until the date the resulting stipulated order is approved or the date that one of the parties gives the other a written determination that further negotiations will be unproductive. Id.

Without this additional tolling, negotiations that begin near the end of the statute of limitations can be unnecessarily hurried. In those circumstances, the staff is required to initiate an enforcement action to preserve a case, even when negotiations are moving along productively. This puts an unnecessary strain on staff resources, and it can also appear to respondents as a coercive or manipulative action on the part of the staff, which can make it more difficult to reach a settlement. We believe that adding the recommended tolling language will help to foster more objective and productive negotiations.

• Kaufman Legal Group makes the point that “…the way to avoid “unnecessary strain” on the enforcement staff is not to extend the period of the statute; rather, it is for staff to diligently proceed with an investigation so as to bring the matter to closure or begin enforcement proceedings within the four year statutory period.”
• Olson, Hagel, & Fishburn note that “…we have substantial concerns with the Commission’s recommendation to toll the four-year statute of limitations during settlement negotiations. The city’s statute of limitations exists to protect citizens from stale claims and to promote prosecutorial diligence. In our experience, it is not the negotiation process but rather the factual investigation that requires the most time and effort on the part of enforcement agencies. Therefore the mechanism for ensuring that the statute of limitations does not expire during settlement negotiations is for the city to more timely and actively pursue its factual investigation in enforcement cases.”
• And the most weirdly paranoid of all L.A. lobbying firms,⁵ the famed Sutton Law Firm says that “We agree that settlement negotiations are often more stressful and less productive when done immediately before the statutory deadline — but this rush is typically caused by staff not acting more quickly in its investigations, and in no event warrants such a ‘power grab’ against the due process rights of respondents. Four years is more than enough time to review campaign or lobbying reports, subpoena documents, and interview witnesses in order to determine whether a violation has occurred — and is longer than statutes of limitations in other jurisdictions and in other enforcement contexts. Moreover, the proposed amendment makes a mockery of the statute of limitations because staff could simply tell respondents that ‘settlement negotiations have now begun’ and thereby give themselves unlimited time to complete its investigations.”

And you know, I mostly agree with them, even though they’re a bunch of Satan-worshipping lobbyists. Statutes of limitations do exist to protect citizens, and four years is more than enough to investigate ethics violations. The fact that the Ethics Commission is perennially underfunded and may need far too much time to get through its investigations, is not a reason to modify the statute of limitations. It’s a reason to modify the laws that determine the Commission’s funding. Here at MK.Org we’d like to see their budget statutorily set at a fixed proportion of the LAPD’s, or of Councilmembers’ discretionary funds. Those are the two figures which are never ever ever going to be too low in this City.

As for me, I don’t care much about the statute of limitations. But I am extremely excited by the proposal to make reporting of ethics violations by City employees mandatory.⁶ Can you imagine if freaking Councilmembers and their staff had to report unregistered lobbying?! And if they could get popped by the CEC if they didn’t report?!?! Chaos!! And in a good way!!! The spectacle of these politicos working with unregistered lobbyists, accepting donations from them which ought to be illegal, and so on, is thoroughly disgusting, and ought to stop. This item will stop it! Anyway, President Levinson ended up tabling the matter till April, so we all have time to make informed comments.

Image of Los Angeles City Ethics Commission President Jessica Levinson started its life as a public record on the website of KCRW and then I messed around with it to the point where I believe I could copyright it but instead, in the public interest, as a gift to those who’ve given so much to me, I hereby release it freely into the public domain. Fly away, little image, and be free!

1. Including your humble correspondent, I gotta admit.
2. And there are some other relevant details in subsection (c) as well, but in the interest of concision I’m blurring a distinction or two. But if you noticed, you already know what’s really going on and how it doesn’t actually affect the story I’m telling.
3. These days I have this irresistible urge to refer to President Whoever explicitly with title as long as it’s not President You-Know-Who.
4. Among its many virtues is the openness of Ethics Commission meetings. One can talk to pretty much anyone there after the meeting, unlike City Council meetings and the meetings of their committees. You have to be a lobbyist, a developer, or a cop to get past the lines after those locked-down affairs.
5. I have no reason to think this is true beyond the instant letter, although perhaps I will know more in the future.
6. The proposal suggests that it is currently mandatory, but that the mandate is distributed across a number of code sections and may not be clear to everyone who’s subject to it. I will definitely be looking into this in the future.