I made a mistake when drafting the Political Reform Act of 1974, Proposition 9 passed by 70% of California’s voters in June of 1974.
When Dan Lowenstein, the chief drafter of the Act, and I worked together on the measure, he insisted that the chair of the Fair Political Practices Commission be full-time while the other four commissioners be part-time members. I resisted saying that no other commission had such a structure and that the chair would be given too much power. He acknowledged the uniqueness of the structure but said the chair, not an executive director hired by the entire commission, should run the staff. Dan’s arguments prevailed.
Last month, we saw the part-time FPPC commissioners rebel against the full-time chair and pass regulations that cuts down her power and gives the part-time members much more influence over the direction and policy of the commission. Ironically, Jerry Brown’s legal secretary appeared before the commission arguing against the changes the part-time commissioners were proposing. Note: Jerry Brown, then Secretary of State, was Dan Lowenstein’s and my boss at the time we working on how the commission should be established. Dan also became the first chair and I became the first general counsel of the Commission.
Since the beginning, the part-time commissioners have chafed at the power of the chair. I recall that part-time commissioner Jerry Waldie (a former member of Congress) was extremely upset when Chairman Lowenstein issued a statement at the very first commission meeting about how this was the end of an era when lobbyists could wine and dine legislators without restriction. The new Political Reform Act limited lobbyist gifts to $10 a month per legislator, enough for two hamburgers and a coke according to Jerry Brown. Waldie, at the meeting, argued that a statement by the chair should have been run by the other commissioners before it was issued.
During the term of Tom Houston, the second chair, I received phone calls from part-time commissioners complaining that they were not being kept in the loop and were surprised at some of the actions taken between commission meetings by the staff and chair. I tried, probably unsuccessfully, to keep the part-time commissioners informed as to the every day activities being taken by the staff.
It was during Houston’s term in 1981 that the legislature tried to make the chair part-time rather than full-time. This was a retaliatory action because the commission, under Houston’s leadership, announced it would consider regulations banning the personal use of campaign money. We had issued a report showing legislators taking surplus campaign money with them when they left office; they called it severance pay. Other legislators were using campaign money to purchase a car, to go on vacation trips and other types of expenditures that had nothing to do with campaigning or holding public office.
Ironically, it was a later full-time FPPC chair, Ross Johnson then a legislator, who introduced the bill to make the chair part-time. After front page stories in the newspapers criticizing the proposed new law, he tabled his bill. I was against his legislation since it clearly was in response to our personal use regulation. We withdrew the regulation when the legislature passed a bill banning personal use of campaign funds.
I now agree with my original argument that the Chair should be part-time, not full-time. To this day, no other ethics agency has a structure like the FPPC. All other state and local agencies either have one commissioner or all part-time members.
I think one of the biggest problems with the current California structure is that the full-time chair (appointed for one four year term, with no reappointment allowed) almost always replaces the executive director of the commission and sometimes the general counsel and then brings in her own personnel for these key positions. This causes a disruption every four years and removes much of the institutional memory of the commission.
And as we have seen recently and in the past, the part-time commissioners feel left out of much of the on-going operations of the commission.
My proposal: the commission should itself sponsor legislation making all commissioners part-time. That legislation should be enacted this year so that next year’s chair, who must be appointed by the new governor on or about February 1, 2019, will be part-time like all the other commissioners.