Council OKs funds for campaign fines
Changes were set in motion by a former councilman’s lawsuit
SAN JOSE — Less than a year after adopting a new policy that allows elected officials to raise “legal defense funds,” city leaders this week recommended allowing the money to be spent on fines and clarifying the fundraising time limits.
City leaders had previously approved allowing candidates to raise money to defend against an election lawsuit for an unlimited period of time. But the City Council unanimously reaffirmed that on Tuesday. Incumbents who file a lawsuit have six months after an election to raise money.
Councilman Lan Diep, who was sued last year after narrowly winning the District 4 council race, said removing time constraints on fundraising for legal fees spares candidates and office holders “the pressures of a mad dash for cash.”
The revisions, which the council unanimously approved Tuesday, also allow politicians and candidates to raise money to pay off campaign-related fines, in addition to funding a ballot recount or lawsuit over an election result.
San Jose leaders in September approved legal defense funds — previously prohibited in the city — after Diep was taken to court by former Councilman Manh Nguyen who sought to overturn the election results. Election law requires that the winner be personally named in a lawsuit contesting an election.
But Diep, who beat Nguyen in November by a mere 12 votes, ended up paying out-of-pocket to defend himself from Nguyen’s lawsuit, which has dragged on for 10 months and won’t be heard by a judge until August.
“This forces a candidate or officeholder into the unenviable position of having to raise as much money as possible within six months to cover attorneys’ fees in an amount yet-to-beknown ,” Diep said.
The rules approved last year allowed Diep and others to raise unlimited amounts of cash following an election for legal costs. Each contribution is limited to $1,100.
But the money could only be used “in connection with attorney fees and other costs associated with an election contest or recount.” The city’s Board of Fair Campaign and Political Practices — formerly the ethics commission — recommended changing that to let candidates pay off penalties.
Now candidates and elected officials in San Jose can use the money to pay off certain campaign-related fines, which is consistent with state election law.
“I think it means San Jose won’t be an outlier, though they can be stricter than what the state allows,” said Jessica Levinson, a professor at Loyola Law School and president of the Los Angeles Ethics Commission. “This is more generous for office holders, but it raises the question about whether fees will really be a deterrent. It may be legal, but now officials won’t feel the pinch of any penalties because they can just raise money.”
That change was also spurred by Nguyen. The one-term councilman was slapped with a $10,000 fine last year from the city commission for failing to file campaign disclosure reports. But Nguyen, along with 20 other council members and candidates, were told by the City Clerk’s Office that the finance statements were not required.
“Technical violations for failing to file disclosure forms can expose candidates to potentially large financial liabilities without means of raising additional funds,” said City Clerk Toni Taber in a staff report. Nguyen’s penalty was eventually dismissed