FPPC Meeting in Oakland – January 20, 2019: Ethics Commission Presentation, Text Message Ad Disclaimers, Streamlined Settlement Regulations Approved
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FPPC Meeting in Oakland – January 20, 2019
The Fair Political Practices Commission (FPPC) held its first meeting of 2019 in Oakland, California, on January 20, 2019, from approximately 2:30 PM to after 2:30 PM (the meeting ran long). The meeting featured a presentation from the Oakland Ethics Commission, a contentious discussion on text message advertising disclaimers, and the adoption of major changes to the streamlined settlement program. Commissioners voted on several items, including a letter to the legislature regarding misuse of public funds for campaigns.
Consent Calendar
- The commission approved the December 2018 meeting minutes.
- The enforcement calendar (items 4 and 6 through 26) was adopted unanimously. (Item 5 had been pulled.)
Public Comments & Testimony
- Daniel Swain, CEO of Tosker (relay), argued that peer-to-peer text messages are person-to-person communications, not general advertisements, and that adding the “who funded this ad” disclaimer reduces response rates. He requested the commission grant an opinion exempting such messages from the full disclaimer requirement.
- Trent Lang, president of the California Clean Money Campaign, stated that the “who funded this ad” language is inappropriate for conversational texts. He suggested a legislative fix and argued that the disclosure should only apply to the first message in a thread, and that a simple link might suffice. He also urged the commission to allow some flexibility.
- Jim Sutton, a practicing political attorney, argued that the law on text message disclaimers is not clear, citing high legal bills to interpret it. He pointed to ambiguities in the definition of “advertisement” and which disclaimer applies, and encouraged the commission to take up an opinion rather than deny it.
- Stephen Kaufman, chair of the Enforcement Review Task Force, opposed three specific provisions in the streamlined settlement regulation that automatically exclude certain 24-hour report violations from the streamline program, arguing they eliminate needed flexibility. He provided examples of past cases that would have been excluded.
- Trent Lang (again) supported the streamlined regulation’s general approach but advocated for the three provisions to remain, noting that late 24-hour reports near an election cause significant public harm. He proposed a 48-hour grace period for inadvertent errors and a de minimis exception for small amounts relative to total campaign activity.
Discussion Items
- Oakland Ethics Commission Presentation: Whitney (executive director) presented an overview of the Oakland Ethics Commission, including its history, staffing, and enforcement of ethics, campaign finance, and sunshine laws. Highlights included a partnership with Code for America to create the open disclosure.io website, a review of city ticket policies for athletic events, and a public financing program for city council candidates. Commissioners praised the collaborative approach.
- Regulation 18702.2 (Conflict of Interest – Property): Staff proposed amendments to clarify that a property interest more than 1,000 feet from a decision site is presumed immaterial, rebuttable by clear and convincing evidence. The commission adopted the regulation after a brief discussion, including technical clarifications on the 500 and 1,000-foot thresholds.
- Request for Review of Denial Opinion (Text Message Ads): The commission considered whether to overturn the acting executive director’s denial of an opinion request from Tosker. After hearing from the applicant, stakeholders, and legal counsel, the commission decided to affirm the denial but committed to a broader rulemaking on digital advertising disclaimers. The chair noted the need to address emerging technologies before the 2020 election cycle.
- Streamlined Settlement Program (Regulations 18360.1 and 18360.2): Substantial debate centered on three provisions excluding late 24-hour reports from the streamline program. After a closed session, the parties reached a compromise that added a de minimis exception and increased penalties for late filings. The amendments were adopted unanimously, and the full regulation passed. The commission also debated the process for approving streamlined stipulations, ultimately voting to allow the chief of enforcement to execute them after a 10-day public notice period in an executive report, with the option for commissioners to flag concerns.
- Budget Update: The quarterly expenditure report for the second quarter of 2018-19 was presented. Staff added line items for the San Bernardino and Sacramento contracts. Current staffing is 82.5 FTEs, with five positions being recruited.
- Letter to Legislature re: Public Money for Campaigns: A motion to send a letter to legislative leaders asking for an amendment to the Political Reform Act to explicitly prohibit spending public money on campaign activities and give the FPPC enforcement authority was passed, but with an amendment to first bring back a draft letter with supporting documentation for full commission review at the next meeting.
- Legislative Delegation: The commission adopted a modified B+ option (B++), authorizing the executive director to delegate to the legislative director the authority to accept or refuse non-substantive amendments on sponsored legislation, with written notification to the commission. Substantive amendments require full commission approval, potentially via a special meeting.
Key Outcomes
- Regulation 18702.2 adopted with technical amendments (unanimous).
- Denial of Tosker opinion affirmed; staff to develop a broader regulation on digital ad disclaimers.
- Streamlined settlement regulations (18360.1 and 18360.2) adopted with the compromised amendments: late 24-hour reports are excluded from streamline unless the amount is de minimis relative to total campaign activity, and penalties for pre-election late filings are increased. The new process for streamlined stipulations moves them from the consent calendar to an executive report.
- Letter to legislature on public funds for campaigns: staff to draft letter with supporting documentation for approval at the February meeting.
- Legislative delegation for non-substantive amendments adopted (B++ option).
- The next FPPC meeting is scheduled for February 2019; the commission will also address the text message ad issue further.
Meeting Transcript
Let the record reflect we are one minute early, but I'm proud of that. Uh so I'd like to um bring this meeting of the FPPC to order. Let's start by um calling the role. Commissioner Cardinals. Here. Commissioner Hatch? Here. Commissioner Hayward. Here. Chair Germond. Here. And I'm sure you've all noted that we have a button to push for our mic. What so when you're going to speak, you uh we'd ask you please to press the button, and when you're done speaking, press it again and it will disappear, and that way we'll all be able to hear one another as well as our listening audience. First, let me thank the incredible people of Oakland who have uh invited us to join them today. As some of you may know, we have decided to take the FPPC on the road and not only meet in Sacramento. We think it's an important opportunity for people around the state to know more about who we are, to join us at meetings if they would like to, and for us to show that we are not just the capital of our wonderful state oriented, but we're interested and want participation throughout the state, and much of our work, of course, is about elections and public and civic involvement around the state, and we feel that by having our meetings uh, not just in Sacramento, but um north and south and east and west, that we accommodate and accomplish that. So uh th I'd like to thank the Oakland Ethics Committee for helping us put this meeting together and uh be able to uh be at the City Hall in spite of the rain and thank all of the people who are here today. Uh who in person and those of you who are I hope watching us on the video. We are about ready to commence twenty nineteen, which will be a very good year for our state and for the FPPC and welcome. I'd like to mention a few other things. Um but first before I say anything further, I would like to thank our incredible staff for the amazing job that they did throughout twenty eighteen and as we begin to prepare for twenty nineteen, the work that they continue to do. I am now going to showcase our annual report. We voila annual report. That's my one word of French, so please savor it. It's uh really a serious document that talks about who we are and what we did and some of the cases that were a particular significance last year. I'm incredibly proud of it and incredibly proud of the work that was done in putting it together. And it looks really nice too, which is always a good thing because I think it encourages people to pick it up and read it. So if you haven't seen it yet, it's both on our website but also in hard copy, and I urge you to uh take a look. Secondly, I'd like to point out that we have this really nifty thing on the website called our heat map. And what our heat map does is it talks about what happened where you, the California public can go to the heat map, press your community, your county, your city, your assembly district, your Senate district, uh, and find out what kinds of activities and issues came before the FPC that are highlighted in the heat map. So I urge you to do that. It's a wonderful and interesting tool, and it helps you know who your representatives are and if things were not quite as they should be, how they were taken care of and adjudicated. So uh please take a look at that. It's it's another new wonderful way to make our public more aware of the work of the FPPC and um what is going on in our government. And with that, I would like to begin our formal agenda. The first item on our agenda is to open our meeting as I we always do. Somebody with any public comment of any issue that is not on the formal agenda. So are there any members of the public here who would like to make a comment? Seeing none, we will move on to what I'm very excited about. Uh the Oakland Ethics Committee, whom I just uh referenced, who has been so wonderful and helpful in putting this meeting together, is going to give us a brief presentation of some of their work, and then hopefully uh we will have a little bit of time to ask questions of them, learn from what they're doing, learn how we can work more closely together and will um really help make sure that the kinds of ethics and issues that the committees in cities and counties and we on the state level are charged with take maintaining and taking care of are done in ways that are um uh partnerships and perhaps more innovative and with more new ideas that make us even more successful for the coming election cycle. I would like to um welcome Whitney uh and Whitney and I had dinner last night, I confess she is delightful and wonderful and smart, and she used to work for the FPVC and Oakland stole her, and so it's okay because she's doing a heck of a job. Whitney, thank you. Thank you very much. Thanks for inviting me to speak. Um good morning to all of you and welcome to the City of Oakland. We appreciate that you came here. Um I also wanted to mention that I'm joined by our outgoing chair, Jonathan Stein, and our incoming newly elected chair, Jody Smith in the audience today. So thanks for being here. I'm gonna walk through a quick um overview of our commission. And to give you a brief overview, this is an explanation of our laws that are within our jurisdiction.
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