Longtime political watchdog Shirley Grindle cried tears of joy in October when Orange County supervisors validated decades of her work by approving an ethics commission measure for the June ballot.
“I can’t thank this board enough,” said Grindle, 81, who pushed for the measure to keep county campaign finance enforcement going when she’s unable to.
But she ran into a surprise a few weeks ago.
Grindle discovered that language had been inserted into the measure – without her knowledge, she says – that would legalize controversial fundraising by Supervisor Shawn Nelson that she and others say is barred under the county’s campaign finance law.
“They put it in without calling it to anyone’s attention,” said Grindle, who authored the original campaign finance law and got the supervisors to put the ethics commission measure on the ballot after threatening to run a voter initiative herself.
The legalizing language was “snuck” in, she added.
The language Grindle is referring to would give Nelson the green light to keep fundraising into his supervisor account – despite being termed out – and then use that money to run for judge, a job he openly aspires to.
While he was re-elected in June 2014 without any debts left over, Nelson has since raised well over $47,000 into his supervisor account, which until recently was named Shawn Nelson for Supervisor 2018.
But the state’s Fair Political Practices Commission said it was illegal for Nelson to name the account for an election he’s not running for. So he changed the name back to 2014 last month.
But the fundraising itself is illegal under county campaign finance law, according to Grindle and a prominent elections law attorney, Fred Woocher.
That law, TINCUP, limits candidates to receiving $1,900 per donor during each election cycle. But because Nelson is no longer a candidate, he can’t fundraise into his supervisor’s account, according to Woocher and Grindle.
The law “appears to prohibit someone from collecting any campaign contributions after the close of the previous election cycle,” Woocher recently told Voice of OC.
After questions were raised about the fundraising, Nelson asked the office of District Attorney Tony Rackauckas – who enforces criminal violations of TINCUP – for an opinion. The DA’s office then issued a memo in December clearing Nelson, saying he can keep fundraising into his supervisor account.
But the memo makes no reference whatsoever to the TINCUP provision that requires people to be candidates in a given election cycle in order to raise money for a supervisor campaign account. It instead relies on a secret 2008 County Counsel opinion that is still under wraps.
The DA’s office has declined to comment on whether the candidacy requirement section was taken into account in its analysis.
Woocher, meanwhile, has described the DA’s memo as “about as bereft of actual legal analysis as anything I’ve ever seen.”
However, the new provision in the ethics commission proposal would clear up the controversy in Nelson’s favor. It adds wording to expand who is eligible to fundraise under TINCUP – to also include elected county officials, not just candidates.
Nelson played a major role in crafting the final language of the ethics commission proposal. But neither he nor county staff would answer questions regarding who requested this provision and why.
Nelson didn’t return messages seeking comment. And county spokeswoman Jean Pasco said the County Counsel’s office, which handled the item from staff’s side, “doesn’t respond to media inquiries.”
Grindle says the new wording amounts to an admission that Nelson’s fundraising isn’t currently legal. If it’s legal, “then why are they making the change?” she asked.
She is okay with changing the law to allow termed-out fundraising, but only if that money isn’t later used to run for a different office.
“It’s just misleading,” she said of Nelson’s apparent fundraising for judge using his supervisor campaign. “What I really want to do is make sure that they can’t collect funds in their last term of office…and then transfer all that money to run for another office, when at the same time they could be upfront about it and set up a different committee to run for [that] different office.”
She added: “We’ll let them collect $1,900 [per donor] again if they want. But they can only do it for retiring [campaign] debt or officeholder expenses.”
Grindle doesn’t want the supervisors to re-open the ballot measure, since that opens up the possibility of it being taken off the ballot altogether.
Instead, if the measure passes in June, she wants the supervisors to adopt a separate ordinance afterwards that would tighten the law to limit termed-out fundraising from being used for other campaigns.
This is allowed without going to the voters, she says, because TINCUP permits supervisors to strengthen it by adopting “additional requirements.”
Woocher says such a restriction would likely withstand constitutional scrutiny.
“I don’t see how you could argue that [people] have any kind of constitutional right to raise money for an office that they are legally prohibited from running for,” he said. “It’s a little bizarre that he hasn’t done what a lot of other people do, and say, ‘Hey, I’m raising money for a…[run for] judgeship,’ which doesn’t have any limits.”
Grindle agrees.
It “seems to me we’re not restricting him. We’re letting him set up a committee to raise campaign money, but not in his supervisors’ committee, because that’s false. He’s not running for re-election.”
As for Nelson, Grindle says he should set up a campaign committee for the real office he’s running for and collect his campaign contributions into that account.
“I’m waiting for Nelson to do the right thing,” Grindle said.
This isn’t the first time Nelson has helped craft a ballot measure that purports to tighten rules governing him, but in the end works out to his benefit.
After running on a tough-on-pensions platform in 2010, he signed up for one upon being elected. This ignited a firestorm of criticism from his conservative backers, which led him to turn the pension down.
Then, in 2014, he co-authored a ballot measure that was touted as lowering the amount of money county supervisors receive in pensions.
But after the measure passed, it turned out that it actually forces Nelson to take a lucrative pension – which triggered a nearly $250,000 taxpayer payment into his retirement fund.
Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.