October 13, 2009
Elaine M. Howle, California State Auditor
Bureau of State Audits
555 Capitol Mall, Suite 300
Sacramento, CA 95814
Attn: Daniel Claypool
Bureau of State Audits
danc@bsa.ca.gov
RE: Citizens Redistricting Commission Modified Text of Draft
Regulations
Dear State Auditor Howle:
I am writing on behalf of the California Voter Foundation to
request that you reconsider the way you intend to use the Form
700 as stated in the regulations covering the application process
for the new Citizens Redistricting Commission.
While I understand your office needs to verify the eligibility
of applicants to ensure they have no conflicts of interest as
defined in Proposition 11, we recommend against using the Form
700 to accomplish this task. We also object to the inclusion
of this provision in the revised regulations, as we consider
this change to be highly substantive in nature.
Form 700 currently is required to be filed by people who have
already been elected to, appointed to or are a candidate for
state or local office, or hired to work in a state office. It
has never been used before to vet applicants for a state commission
or job. The form itself is burdensome (the entire form and instructions
are twenty pages, and the accompanying reference pamphlet at
the FPPC web site is an additional fifteen pages) and simply
by your collecting it it will become a matter of public record
subject to the Public Records Act. It is unclear whether these
completed forms would be published online along with commission
applications. No other government agency in California has posted
completed Form 700’s online and if yours were to do so
it would be the first to our knowledge.
According to Proposition 11, what you need to know in order
to vet applicants for this commission is whether the applicant
or anyone in their immediate family has, over the past ten years:
1. Been appointed to, elected to, or have been a candidate
for federal or state office.
2. Served as an officer, employee,
or paid consultant of a political party or of the campaign
committee of a candidate for elective federal or state office.
3.
Served as an elected or appointed member of a political party
central committee.
4. Been a registered federal, state, or local
lobbyist.
5. Served as paid congressional, legislative, or Board
of Equalization staff.
6. Contributed two thousand dollars ($2,000)
or more to any congressional, state, or local candidate for
elective public office in any year.
Some fields in the Form 700 may help you verify the accuracy
of applicants’ responses for some, but not all of the listed
conflicts. It will not assist with #1, #3, #6, and it would only
assist with #4 if the applicant or his or her spouse was a paid
lobbyist.
The Form 700 includes several schedules:
Schedule A-1: Investments – Stocks, Bonds and Other
Interests
Schedule A-2: Investments, Income and Assets of Business Entities/Trusts
Schedule B: Interests in Real Property
Schedule C: Income, Loans, and Business Positions
Schedule D: Income – Gifts
Schedule E: Income – Gifts – Travel Payments, Advances,
and Reimbursements
Many of these schedules are designed to provide an accountability
mechanism for ensuring that officeholders are adhering to officeholder
honorarium bans, loan bans, gift bans and limits and do not have
conflicts of interest in carrying out the power they wield by
virtue of the positions they already hold. To use this form prospectively
to gather information about applicants in the commission application
process who have a one-in-ten chance of getting the position
for which they are applying, is invasive and burdensome. It is
a fishing expedition, and would gather far more information (and
put that information on the public record) than the Bureau needs
to carry out its duties to vet these applicants according to
Prop. 11’s conflict of interest prohibitions. The form
is also insufficient for the purposes you seek to use it because
it requires the person completing it to cover activities over
the prior one-year period, and the period of time covered by
conflict of interest activities in Prop. 11 is ten years.
What you really need to know is whether an applicant, or an
applicant’s immediate family as broadly defined in Prop.
11 (and not defined on the Form 700, which only covers spouses,
domestic partners and dependent children, which could also cause
confusion) has been a paid consultant or employee to a political
party, campaign committee, candidate for state or federal office,
or been a congressional, legislative or Board of Equalization
staff member.
Using Form 700 as-is would only help you in a limited way in
answering these questions. As the directions are written, it
would not cover a ten-year period as required and it would not
cover all family members as defined by Prop. 11. We urge you
to consider a different approach involving the following five
steps (the first four are already in place):
1. Ask the applicants specific “yes/no” questions
regarding the conflict of interest provisions and whether the
applicants meet them;
2. Require them to attest to the truthfulness of their answers;
3. Require them to provide the names, occupations and contact
information for their immediate family members;
4. Make their applications public record and provide the public
with an opportunity to challenge their answers; and
5. Before deciding the final pool of 120, spot-check the applicants’ family
members’ names against the state payroll database and the
Cal-Access campaign finance disclosure database (it is likely
that the technical staff people in State Department of Personnel
Administration and the Secretary of State’s office could
assist the Bureau with writing a simple software program that
could perform this check in an automated way). Performing this
check will verify whether applicants or their family members
received any payments for work performed on a campaign, for a
political party, or as a state, legislative or Board of Equalization
employee. While this analysis would not cover Congressional or
federal campaign activity, we believe this extra step, along
with the other four provisions listed above are sufficient for
vetting candidates’ potential conflicts.
While the kind of financial income disclosure required under
Form 700 is useful for identifying conflicts of interest in California
government generally, the contents of that form stray far from
the specific conflicts of interest outlined in Prop. 11. For
example, there is nothing in Proposition 11 that disqualifies
a Commission applicant because he or she received a gift from
a state officeholder, or holds any specific investments or interests
in property.
We understand that Form 700 might be useful in determining whether
an applicant has a “bona fide” relationship with
an immediate family member as defined by the draft regulations
(i.e. “A relationship is bona fide if it is so substantial
in nature that it includes any of the following within the preceding
12 months: cohabitation for a period or periods cumulating 30
days or more; shared ownership of any real or personal property
having a cumulative value of $1,000 or more, or either party
to the relationship providing a financial benefit to the other
having a cumulative value of $1,000 or more. A “financial
benefit” includes anything of value, whether tangible or
intangible, and includes any payment, gift, discount, or rendering
of services”). However, it is important to note that the
specifics of this definition are contained in the regulations
and not the initiative itself. There may be some fields on the
Form 700 that would be useful in making this determination, but
those benefits, we believe, far outweigh the costs to applicants’ privacy
in casting such a wide net on their personal financial information
during the application process and asking them to report all
gifts received from anyone, and not just from members of their
immediate family.
It might be useful for the Bureau to rely on some of the instructions,
such as those that accompany Schedule D in the Form 700, which
lists the various kinds of transactions that could be described
as “gifts” (i.e. tickets to sporting events, food,
beverage and accommodations, rebates or discounts, wedding gifts
and honoraria, transportation and lodging or forgiveness of a
loan) to help vet applicants for conflicts, but applicants should
only be asked to answer such questions as they relate to gifts
from immediate family members only, and not all gifts received.
Once an applicant is a member of the commission, he or she should
be expected to provide all this information on the public record.
But to ask them to do so before they have been appointed will
likely have a chilling effect on many applicants’ desire
to participate at all and may cause some would-be applicants
to refrain from applying in order to protect their privacy.
We appreciate your consideration of our concerns and are happy
to discuss them further with you at any time. I can be reached
at 916-441-2494 or via email at kimalex@calvoter.org.
Sincerely,
Kim Alexander, President
California Voter Foundation
cc: California Voter Foundation Board of Directors
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