Orange County supervisors are preparing to change the law voters approved for a county ethics commission, in an effort to expand their influence over the panel tasked with enforcing campaign money violations by supervisors, their election opponents, and other county-level candidates.
The changes under discussion would modify the term of office for commissioners to either align with the term of their appointing supervisor, or grant each supervisor the power to choose how long their appointee serves.
The ethics commissioners are supposed to enforce county campaign and other rules that apply to the supervisors as well as other county office holders and candidates.
Supervisors can make the changes to the ethics commissioners' terms without going to voters for approval, according to their top attorney.
Supervisor Andrew Do, who supports the effort, has suggested to his colleagues that they make it so the ethics commissioners "serve at the pleasure of the supervisor" who appointed them.
When he proposed it during a public discussion last month, none of the other supervisors opposed the idea. Do's suggestion was: “Can we not have a term on it? Can we just make it at, at the pleasure of the supervisor?”
That's concerning to Shirley Grindle, who co-authored the county's campaign finance law and supported the ethics commission ballot measure.
“If they keep trying to emphasize 'serving at the pleasure' of the board, all they’re doing is telling the public that if their commissioner voted against them on a campaign finance issue or a gift ban issue, [then] that supervisor could get rid of them," Grindle said in an interview.
"My concern is that this [ethics] commission needs to be as politically independent of any influence of the Board of Supervisors, because they’re the ones that [appoint] them to it. And what they’re doing is just creating more influence."
So far, three of the five supervisors – Do, Shawn Nelson and Michelle Steel – have publicly supported changing the term rules. If a fourth agrees to changes, the supervisors can make the changes without going to voters, according to their top attorney.
The supervisors already have the power to appoint all five ethics commissioners, and they can remove commissioners for any reason as long as four of the five supervisors approve the firing.
The changes being considered could give supervisors more frequent chances to remove commissioners without the appearance of firing them, by having shorter terms and appointing a different person to replace the incumbent.
The ballot measure to create the Campaign Finance and Ethics commission was overwhelmingly approved by 70 percent of county voters last June. It requires supervisors to create the commission to enforce the county’s campaign finance limits, lobbying law, gift ban and code of ethics.
While it's been more than a year since voters ordered its creation, the supervisors still haven't established the ethics commission, even as the campaign season for next year's elections is already underway. Multiple candidates are actively fundraising for major county-level offices like sheriff-coroner, district attorney, and 4th District county supervisor.
Among those subject to enforcement by the ethics commission are the county supervisors, who make the commission appointments, and the supervisors' election opponents.
Voters approved specific rules for the commission's terms of office, which require initial terms of one, two, and three years – chosen at random – in order to set up staggered three-year terms later on.
But supervisors want to change that, and their top attorney, County Counsel Leon Page, said they can do it without voter approval. He said that's because of a provision in the measure that allows supervisors to make major changes as long as four of the five supervisors approve and the changes "further the purposes" of the ethics commission measure.
Grindle said she seriously doubts the proposed changes fit that definition.
“The whole idea was to make this as independent of political influence as possible. And that is not what they’re doing,” she said. By increasing their influence, she said, "that is not furthering the purposes of this commission.”
The supervisors' interest in changing the ordinance came into public view at their June 27 meeting, as they prepared to appoint the first ethics commissioner.
Page, the attorney, noted the voter-approved term rules require a random selection of which appointee gets the one, two, or three year initial term.
Supervisor Shawn Nelson, who nominated the first commissioner, Peter Agarwal, questioned that approach.
“Why wouldn’t we just do it based on our election terms?” Nelson said, to which Supervisor Andrew Do voiced his support.
“Our appointee should – should terminate with us, unless the next person wants to appoint them,” said Nelson, who is termed out in January 2019.
Page replied the voter-approved law already lays out how terms are supposed to work.
“Well the statute did provide for three-year terms, two-year terms, and [a] one-year term. That’s in the county ordinance,” said Page.
Do asked Nelson: “So you want to make it, serve at the pleasure of the, uh, supervisor?”
“Well we’re in that awkward situation where we’re starting anew," Nelson replied, saying he has 18 months left in his term and his appointee "shouldn't be forced on" his successor as 4th District supervisor.
"I just think the [commissioners'] terms ought to mirror ours," Nelson said.
Do suggested each supervisor could have total discretion about how long they want their appointee to be on the commission.
“Can we not have a term on it? Can we just make it at, at the pleasure of the supervisor?” Do asked Page.
The county's attorney reiterated that the law already specifies how the terms would function.
“The ordinance does provide for specified terms of office, for appointees to the ethics commission,” Page said.
But, he noted, supervisors can change the ordinance, by a four-fifths vote, if it “furthers the purposes” of the measure.
Supervisors' Chairwoman Michelle Steel, who has been an avid opponent of the ethics commission, was supportive.
“Why don’t we do that then? Yeah,” Steel said in response to Page explaining how to change the law.
The supervisors directed Page to come back with action they can take to change the rules for ethics commissioners' terms.
If Nelson, Do, and Steel want to make changes, they would have to gain support from at least one of the two other supervisors, Todd Spitzer and Lisa Bartlett. Neither has publicly weighed in yet.
In the ethics commission measure they successfully put before voters, supervisors included provisions granting themselves the power to make substantial changes.
“Nothing in this article prevents the Orange County Board of Supervisors by majority vote from amending this article to make technical non-substantive changes or by a four-fifths vote from making substantive amendments to further the purposes of this article,” the ordinance states, in Section 1-2-116.
The supervisors also voted unanimously to appoint Nelson's nominee, Agarwal, as the first of the five ethics commissioners. While supervisors talked about changing the commission terms, they didn’t discuss their first appointee at all, including Agarwal's qualifications to serve on the commission.
Agarwal is a longtime appointee of the supervisors to various entities, including CalOptima, the county Waste Management Commission and Audit Oversight Committee. CalOptima is the county's federally and state financed health plan for low-income, disabled and elderly county residents.
Agarwal works as a bank branch manager with Citizens Business Bank in Fullerton and is a board member of the Anaheim Chamber of Commerce
The proposed changes to the commissioners’ term lengths could come before supervisors at one of their upcoming meetings. The topic is not on the public agenda for Tuesday's meeting; the following meeting is scheduled for July 25. Public comments on any issue under the supervisors' jurisdiction are heard at the beginning of the meetings, starting at 9:30 a.m.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at firstname.lastname@example.org.