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Even Independent Ethics Commissions are Affected By Partisan Politics

by Chad Peace, published

SAN DIEGO, CALIF. -- There’s been a lot of controversy surrounding the nominees to San Diego’s Ethics Commission. The controversy started with the nomination of lawyer Bob Ottilie, in part, because he had previously defended City Councilmember Marti Emerald before the commission itself.

The controversy continues as additional nominations roll in, including Republican Party general counsel William “Bill” Baber and Democratic campaign treasurer Xavier Martinez—for obvious reasons.

The nominations, now eight and counting, plus three re-nominations, will soon go before Mayor Kevin Faulconer, who will make the appointments. The City Council will then have the authority to confirm or deny those appointments.

What’s important to consider is the purpose of the Ethics Commission itself.

According to its website, the San Diego Ethics Commission is, “an independent department that does not report to the mayor or city council. It is a body of appointed volunteer city officials, formed in 2001 for the purpose of monitoring, administering and enforcing the city’s governmental ethics laws.”

In short, all the people monitored by the Ethics Commission, and subject to its enforcement, are the same people who nominate, appoint, and confirm those who serve on the commission And we wonder why we are concerned about potential conflicts?

Let me preface by emphasizing a reality: Controversy over the impartiality of those who serve on the Ethics Commission is nothing new.

Nor is the irony. We have created an Ethics Commission that is established by a process that is inherently in conflict with the purpose of the commission itself. The hens have to get together to choose the foxes!

What are we doing to ourselves?

Ethics, more than almost any other area of regulation, is a matter governed by perspective.

So, in an era when every representative who holds a seat in our supposedly nonpartisan local offices so clearly identifies with one of the two major political parties, why are we surprised that the commission in charge of “monitoring, administering and enforcing the city’s governmental ethics laws and proposing new governmental ethics law reforms,” has become so politicized by a partisan debate?

For example, if I’m a Republican, from my honest perspective, I might argue that political parties should have high contribution limits. Even in nonpartisan races.

Why? Because from this perspective, Democrats have an unfair advantage when it comes to having the reliable unions to turn to for campaign support—in the form of “independent” expenditure committees and campaign volunteers, for example.

If I’m a Democrat, from my honest perspective, I might argue that political parties should have low contribution limits -- especially in nonpartisan races.

Why? Because corporations and businesses have too much power, and because big business donates more money to the Republican Party. Therefore, high contribution limits give Republicans an unfair advantage in the election process.

The reality is that they are both right. And they are both wrong.

It depends upon the perspective from which you view the world.

And there are more than two perspectives in the political world we live in.

An independent, for example, might conclude that our nonpartisan elections should be truly nonpartisan. So why, for example, should political parties get any special exemption from campaign finance limits at all? Why shouldn’t they be subject to the same limits as every other individual, organization, or corporate “person/entity?”

More importantly, when we pull back the blinders a bit, shouldn’t we all be asking more fundamental questions, like: Shouldn’t a commission whose job is to oversee politicians be as independent from those politicians as possible?

The Republicans are rightfully worried about the partisan influence of nominees to the Ethics Commission. So are Democrats.

I don’t know how anyone could, for example, blame the mayor for rejecting an oversight commissioner who is a card-carrying member of the opposition party.

And I don’t know why anyone could, for example, blame a Democratic councilmember for being suspect of a commissioner who has been nominated by someone who is a card-carrying member of the opposing party.

And we shouldn’t blame the nominees either.

When the political process we created becomes a competition between two teams, members of the teams should not be in charge of selecting the referees.

Donna Frye was absolutely right last week when she told CityBeat, “Get rid of the mayor and city council participating in the appointment of people who are going to provide enforcement actions on you.”

That the city council and the mayor have anything to do with selecting the commissioners makes no more sense that having suspects hire investigators.

And asking them to appoint their investigators is not fair to the politicians either. When we asked them to appoint their watchmen and watchwomen, we ask them to cast aside their perspective, and to withhold their suspicions.

But they, like all of us, are people, bound by perspective and full of suspicion.

The fact is that most elected officials on both sides of the aisle are really trying to do an honest job. Even the ones who inadvertently break the rules.

We should have a commission that is selected by people as far removed from the political process as possible.

Select them from a random pool of retired volunteer judges?

Create a public jury system to oversee the commission’s staff instead of having commissioners at all?

Who knows? But whatever the right solution is, it should let the commission focus on the few people breaking the rules, and not on defending its own legitimacy.

Editor's note: This op-ed originally published in the San Diego City Beat on August 12, 2015, and has been slightly modified for publication on IVN.

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