City Seeks Supreme Court Review of Conflict Law

By Jorge Casuso

February 24 -- In an effort to determine the constitutionality of one of the nation’s strictest conflict of interest laws, the City Council Tuesday night voted to ask the California Supreme Court to take up the issue.

The move comes less than one month after a State Appeals Court ruled that the City could not sue itself in an effort to strike down the law, which was approved by 60 percent of Santa Monica voters in 2000.

Sponsored by the Santa Monica-based Foundation for Taxpayer and Consumer Rights (FTCR), the law bars public officials from accepting campaign contributions, gifts or jobs from sources who have benefited from their votes or actions.

Santa Monica will likely join the City of Pasadena, which voted on February 7 to challenge the court’s decision, which was made on procedural grounds rather than the constitutional merits of the case.

“It seems to be unconstitutional, and we’re trying to get the court to give us a determination,” said Mayor Pam O’Connor. “It’s something that seemingly can’t be implemented. It’s problematic.”

Sponsors of the initiative said the City’s decision to appeal the ruling by the 2nd District Court of Appeal is a waste of time and money.

“It is an absolute waste of taxpayer money for the City to continue this charade,” said Carmen Balber, consumer advocate with the foundation. “Two courts have said there is no reason they should be in court.

“The reason the courts have not reached that issue (of constitutionality) is that the City doesn’t have the standing (to sue) because its rights haven’t been violated,” Balber said.

Balber said the issue could be raised if, for instance, a council member or a contractor challenges the law on First Amendment grounds.

City officials, however, were heartened that in its January 28 decision the Appeals Court acknowledged the issue of constitutionality was an important one that needed to be addressed.

In the midst of the 55-page ruling, the court wrote: "We recognize the constitutional questions posed by Santa Monica and the City Clerk undoubtedly are of significant interest and continuing public import.

"Strong public policy and public interest principles are at stake, issues which are of great interest to the parties to the litigation and the public at large," the court said.

In addition to ruling on the City’s inability to sue itself, the court ruled that the City -- which had to hire outside attorneys since it was suing its own City Clerk -- must pick up the legal fees for the suit.

The City's tab will likely be considerable, since it must pay for the law firms representing the City, the City Clerk and the foundation.

The foundation has been exploring ways to require the individual City Council members who initiated the suit with a unanimous vote in May 2001 to repay the taxpayers, Balber said.

“We think it’s important, and if there’s a way to require them to pay those funds they should,” Balber said.

City officials must still decide whether to continue to refuse to implement the measure, which has been ruled unconstitutional by trial courts in Orange County and Pasadena.

In deciding to challenge the law, the council argued that in addition to being unconstitutional, the initiative would chill citizen participation on boards and commissions and is unnecessary because City election law already limits campaign contributions to $250 for Council races.

They also point out that in Santa Monica contracts -- which are a key component of the measure -- are hammered out by paid City staff.

Under the initiative, which became an amendment to the City Charter, officials cannot receive gifts from public benefit recipients for two years after the expiration of their terms, two years after the official's departure from office, or six years from the date the official acted to approve the allocation, whichever comes first.

Citizens would be authorized to bring civil enforcement actions under the law. Civil remedies would include penalties, restitution to the City, injunctive relief and disqualification from future public office.

A resident prevailing in a civil action would be entitled to attorney's fees, costs and 10 percent of any civil penalty, with the balance going to the City's general fund.