FPPC Fights For Public Records

OCT. 21, 2010

When I was a reporter in Orange County a decade ago, calling the Fair Political Practices Commission could be a frustrating experience. “We cannot comment on the existence of an investigation,” the nice spokesperson would tell me when I called to confirm whether the state’s campaign watchdog was actually looking into a particular candidate or official’s allegedly rotten behavior. I would hear from some source that the FPPC was indeed looking into some matter, but getting the agency to acknowledge that was impossible.

That changed three years ago. In February 2007, the commission decided that the public – who make most of the complaints the FPPC investigates – weren’t getting enough information. So they started sending letters to sworn complainants saying their complaints had been received and were (or were not) being acted upon. Logically, this necessitated the sending of additional letters to the subject of the complaint saying there was an active investigation into his or her behavior (anything from failure to file an appropriate form to an actual conflict of interest).

Both sets of letters are, as FPPC staff readily acknowledges, public documents. Since there’s nothing to stop a complainant from alerting the press when being told the commission is acting on their complaint, the FPPC began commenting on the existence of investigations when called by reporters.

Considering how passive all this was, it’s probably not surprising that the FPPC’s change in policy didn’t get a lot of attention. Now fast forward to September of this year, and the commission’s decision to become active: no longer content with simply waiting for a reporter to call and confirm the existence of an investigation, the FPPC began posting all notices of investigation on its Web site as and when it became available (the complaints all carry the warning that the “Commission has not made any determination about the validity of the allegations made, or about the culpability, if any, of the persons identified). The reason for the new posting policy, said FPPC Chairman Dan Schnur, was deterrence.

“The prospect of this information coming up before an election has a greater deterrent effect than paying a five- or six-figure fine after the election,” Schnur said, who added that the FPPC only investigates 12 percent to 13 percent of the complaints it receives. “I believe we can more successfully deter behavior with these steps.”

Reporters like me cheered. Others, like the California Political Attorneys Association, not so much.

“(O)ur membership has grave concerns about the practice of disclosing the fact that an investigation is under way,” CPAA Executive Committee member Liane Randolph wrote to the FPPC on Oct. 19. Randolph’s letter outlined a host of these concerns, including harming ongoing investigations and violating due process.

At an Oct. 20 “Interested Persons Meeting” at FPPC headquarters, Randolph asked the commission to seek an opinion on from the state Attorney General’s office on the legality of publicly posting investigation complaints. She also disagreed with the notion that posting investigation complaints would deter wrongdoing.

“I’m not sure what the deterrent effect is,” she said at the meeting. “A lot of them (allegations) are just incompetence, misunderstanding – in some cases, people who don’t make the effort to find out what the rules are.”

CPAA’s big fear is that telling the public about investigations could tilt a close election, but FPPC Executive Director Roman Porter disagreed. To show just how far the agency had changed over the last decade, his reasoning was now that the FPPC had to tell the public what was going on.

“We do not believe withholding the information from the public served the public’s interest,” he said. “The Public Records Act says we have to provide (documents) in the most expedient manner possible. Everything we produce is a public document – the question is whether we can withhold it. I think personally the people of California have a right to know what this agency is doing.”

Randolph admitted that if it were up to her, the FPPC would say nothing at all publicly about an investigation until everything was done and the agency issued a stipulation – the final judgment in its investigations. In fact, she even called the stipulation itself “a big ol’ deterrence.”

Porter said the Public Records Act requires that they acknowledge investigations and release notices of investigation – a view as welcome as it is novel. And though he didn’t say so, the notion that an FPPC stipulation will in some way retard or destroy a candidate or operative’s career is laughable.

Case in point is John Perez. In 2003, while political director for the United Food and Commercial Workers Local 324, Perez received a stipulation from the FPPC for being “negligent” in reporting tens of thousands of dollars in campaign contributions (click here to read my story detailing this). Despite that supposed black mark, he got himself elected to the state Assembly in 2008, and chosen as speaker in early 2010.

Though Schnur said the two-hour meeting constituted “meaningful talk,” he also insisted it doesn’t “conclude anything” – meaning the posting of investigations, as well as concerns over due process violations, will definitely continue.

-Anthony Pignataro