Did newbie San Diego Ethics Commissioner Andrew Poat cross an ethical line when he recently posted comments on CityBeat’s website that appear to endorse the re-election of Councilmember Lorie Zapf?
If so, that would not only run counter to city law, but it would put the former city official in a position to be removed from his newly acquired post by a simple majority vote of the San Diego City Council.
Following an April 17 CityBeat story about a raucous Pacific Beach debate between Republican Zapf and her Democratic challenger, Sarah Boot, Poat wrote in the online comments section: “I hope this campaign turns to some "REAL" issues. Council Member Zapf being reimbursed for the transportation costs to attend the many events she does, in my mind, is NOT an issue. The fact that she attends so many events is the issue - and a measure of her success in office.”
After another commenter referred to his attending-events-equals-success comment as “ridiculous,” Poat countered: “I must not have been clear … a Council member being reimbursed for expenses getting to events is NOT an issue. The fact that CM Zapf, like her colleagues, spend so much time in their Districts is something for which they ALL deserve credit - like being re-elected.”
Those final words apparently rang like an endorsement to some, including Ethics Commission Vice Chairman John O’Neill, a Carl DeMaio appointee and attorney at the influential Procopio law firm.
In a May 19 memo to City Attorney Jan Goldsmith, commission Executive Director Stacey Fulhorst wrote that “[o]n Friday, May 14, 2014, the Commission’s Vice Chair, John O’Neill, directed me to forward the attached memo to the Council President concerning public comments” made by Poat.
In the memo, Fulhorst noted that the Municipal Code states: “No member of the Commission shall participate in a campaign supporting or opposing a candidate for City office…. Participating in a campaign includes engaging in fundraising activities and making public endorsements with regard to a City candidate or measure.”
Failure to comply, she wrote, “shall constitute cause for purposes of determining whether a member should be removed from the commission.” That could be done, according to the code, with a majority council vote following a public hearing at which the accused can respond to “written charges.”
Michael Giorgino, a City Attorney spokesman, said an attorney has been assigned to the matter but had no further comment. Legal sources, however, suggest that any response from City Attorney Jan Goldsmith will likely deal only with the process of removal and not whether Poat did indeed cross the line.
That would be left to the City Council to decide.
Poat—who has spent some 30 years in various city, state and federal positions and officially joined the Ethics Commission as a Zapf nominee last December—downplayed his comments in an email to CityBeat.
“I believe a plain reading of my comments speak to the caliber of conversation in all Council elections—not the endorsement of any single candidate,” Poat wrote. “To paraphrase Mark Twain, if I had intended to violate rules and regulations, I would certainly not have chosen a medium that ‘buys ink by the barrel’—or, here, digital space by the gigabyte.”
CityBeat won’t quibble with the now-discounted Twain attribution. But he followed with a confusing remark that “I hope to use my time on the Ethics Commission to understand how we can deepen the conversation had [d]uring elections – such as the way the Presidential Debate Commission does at the federal level. In the end, this may best handled by an organization other that the City Ethics Commission….”
Yes, considering that the Ethics Commission has no domain over election debate formats.
He ends the email by saying, “I apologize if my remarks suggested any other intent.”
Gil Cabrera, a local attorney who served on the Ethics Commission from 2005 to 2010, including two years as chairman, wouldn’t say specifically if he thought Poat had crossed the line. (Cabrera acknowledged he’s a Boot supporter.)
But, Cabrera added that during his tenure, he and commission colleagues “were very mindful of our special role in the electoral process in city elections and did our best to avoid any public comments regarding any elections that were under our regulatory purview.
“Like judges, it is important for Ethics Commissioners to avoid even the appearance of impropriety. Given that, if there is now a discussion as to whether a public comment by a commissioner is an endorsement or not, then it was probably more than should have been said.”
A spokeswoman for Council President Todd Gloria said he, too, would refrain for now from comment on the specifics, but she added that Gloria “encourages Ethics Commissioners to refrain from political activities in order to preserve the integrity of the Commission.”
When Zapf nominated Poat for a vacant “independent” commission post last October, the councilmember said he “will be an excellent addition to continue preserving the public confidence in our city government.”
As is standard practice for new commissioners, Poat had to sign a waiver that says, in part, “I support the City’s concern regarding members of the Ethics Commission becoming engaged in political activity, and I therefore agree to comply with the restrictions…” He did so just a month before posting his comments.
CityBeat reached out to the Zapf and Boot camps for comment, but none was forthcoming.
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Kelly Davis contributed to this story.