Questioning the Editorial

Published: Wednesday, October 10, 2007 4:17 PM PDT

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There are two lawyers that are generally considered the experts on local campaign laws, Pamela Wilson here in San Diego and Jim Sutton in San Francisco.

I just spoke with both of them and neither thought The San Diego Union-Tribune had much of a case against City Attorney Mike Aguirre in today's editorial. (The editorial has since led the local Republican Party to formally seek Aguirre's ouster.)

The editorial asserted that Aguirre had violated Section 218 of the City Charter by accepting campaign donations from employees of his office. It also pointed out that the employees who'd given had received recent pay increases.

"I question the U-T's interpretation of this law," said Sutton, whose clients include Mayor Jerry Sanders and the conservative political group the Lincoln Club. "The law in my opinion doesn't say that candidates can't accept contributions from their subordinates."

Today's editorial quoted part of Section 218. Here's the full section:

Section 218: No Contributions for Employment
No officer or employee shall solicit or accept any donation or gratuity in money, or other thing of value, either directly or indirectly, from any subordinate or employee, or from any one under his charge, or from any candidate or applicant for any position as employee or subordinate in any Department of the City. Any officer or employee found guilty by the Council or a court of competent jurisdiction shall thereby forfeit his office or position.

Sutton interpreted this as an anti-bribery law (to prohibit someone from accepting something in exchange for giving employment), not a campaign finance law. The campaign finance rules overseen by the Ethics Commission, which are contained not in the charter but in the municipal code, forbid elected officials from specifically soliciting contributions from their employees, but allow employees to donate to their bosses.

"There are a lot of public policy reasons why you might want to limit contributions from employees, but also employees have a First Amendment right to give him a contribution," he said.

Sutton also said that, under the U-T's interpretation of the law, an elected official could then be ousted for accepting a cup of coffee, birthday gift or even a car ride home from a subordinate.

One caveat from Sutton: he said he's passing no judgment on the suggestion that the city attorney gave the raises in exchange for the contributions. That, he noted, would be bribery. But he didn't believe merely accepting the contributions was a violation of the law.

Wilson wasn't quite as strong as Sutton. "I don't think there's any way for anyone to say what this charter section means unless it's been construed in a memo or court case," she said.

However, she did say there's too much ambiguity right now. The municipal code explicitly deals with campaign contributions and allows them, while the charter section referenced by the U-T doesn't. And, Wilson said, the city's own Ethics Commission authored a fact sheet that says it's permissible to accept the contributions.

"I think you'd have a pretty tough road to hoe to prosecute someone on this," she said.

Three other campaign vets, none of whom are allies of the city attorney's, told me they'd never heard of the charter provision.

-- ANDREW DONOHUE