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Split Eureka council passes code of conduct

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San Francisco Ethics Commission Chair Peter Keane believes the Eureka City Council was headed down the right path when members recently debated whether elected and appointed officials should make political endorsements.

In fact, the law professor embraces the idea that office holders, in general, should be restricted from throwing their support behind candidates. But that's not the route councilmembers ended up taking.

Instead, a split council — with Austin Allison and Marian Brady dissenting — voted last week to approve a code of conduct that allows elected and appointed officials to make endorsements as long as their titles are not used.

Brady and Allison unsuccessfully pushed to keep the status quo, saying it's a traditional part of the campaign process and they wanted to retain the ability to back qualified candidates.

"The name as well as the title ... hold weight," Allison said in his attempts to have the decision be an individual choice, noting the change would impact future councils as well.

Brady also questioned the point of removing designations like councilmember from endorsements, saying to the other board members, "You'll never be John Q. Public, because we're not."

After the meeting, Brady said she was left wondering if the majority had an "attack of conscience" in casting their votes, referencing when Councilmembers Natalie Arroyo and Kim Bergel signed Allison's last minute nomination papers at city hall.

"It's a little odd," she said.

According to Keane, there's no real consensus in California on the issue, with some cities and counties have varying levels of prohibition while others don't regulate the political rite of passage for candidates despite the benefits he sees in no-endorsement policies.

What gives the law professor and the former public defender of San Francisco pause in Eureka's case, however, were concerns voiced by some councilmembers during the discussion.

Arroyo had raised the possibility of shutting down endorsements across the board, citing — among other issues — the "potential to negatively impact our working relations with people later."

Such a policy, she said, would also take pressure off councilmembers who may feel obligated to endorse.

Bergel echoed similar sentiments during the discussion, saying they need to "be able to work together as a team."

"Two councilmembers did endorse me," she said, "and it was divisive."

A policy against endorsements would not be an infringement on individual First Amendment rights if it was laid out as an ethics issue, Keane said, noting a seat at the dais comes with requirements not placed on the average citizen.

For example, he and other members of the ethics commission cannot endorse candidates because of their role in investigating public officials.

"If a city wants to have a prohibition ... that's considered to be a beneficial approach because one of the things it does, from an ethical standpoint, it prevents all sort of quid pro quo situations," said Keane, who also served as San Francisco's chief assistant public defender from 1979 to 1998.

If people don't want to give up the ability to endorse, he said, they don't have to run for office or accept an appointed position.

But, Keane notes, those restrictions should be set down for the right reasons: Namely to avoid the perception or reality of political favoritism or other types of corruption.

Concerns about simmering tensions and whether taking sides in a race could damage the council's ability to work together are more appropriate for the playground than the political arena, he said.

Keane said he found that line of reasoning "interesting" but misguided.

"If you don't want hurt feelings, don't go into politics," he said. "Those reasons are totally without merit."

While he appreciates the idea of wanting people to be nice to each other, Keane also notes that "you can't legislate against human nature."

The Sacramento-based Institute for Local Government also offers up some red flags on the subject, noting that "agreeing to take an action in return for a person or group's endorsement is just as much a violation of criminal laws against bribery as making commitments in return for campaign contributions."

"Whenever a group asks you to take a position that conflicts with your sense of what best serves your constituents' interests, you are in a danger zone," an ethics column by the nonprofit affiliate of the League of California Cities and the California State Association of Counties states. "You may be tempted to think that you need the group's endorsement — or a series of groups' endorsements — to get elected and do good things for your community."

The endorsement topic came up during the Eureka council's May 2 discussion on a set of standards that the city's appointed and elected officials will now be expected to follow in their interactions with the public, the media, staff and each other — all centered around a theme of respect.

Mostly gleaned from the city of Sunnyvale's code, the hefty document included an added passage that states in part: "Councilmembers may support board and commission members who are running for office, other than for City Council, but not in an official forum in their capacity as a Councilmember."

The board eventually threw out that sentence and allowed endorsements for all offices as long as an individual's title wasn't used and the support was not made during official duties — like at a council meeting.

While the council expressed appreciation — as well as surprise — at receiving a 20-page document, including a 'Checklist for Monitoring Conduct" and glossary of terms, the rest of the code was passed as written.

Council conduct will now include addressing each other by their title and last name and a councilmember offended by remarks at the dais can call a "point of personal privilege" to challenge the other member "to justify or apologize for the language used."

This all came about at the suggestion of councilmembers during a strategic visioning session

"Well," Mayor Frank Jager said after the conversation that included collective moments of confusion, a few terse exchanges and what at times seemed to be an airing of grievances by Brady. "That only took an hour."

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