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Government Attorneys Shouldn’t Give Political Legal Advice

Going to the city attorney or county counsel for outside legal advice is like going to a proctologist for a head injury. Yes, they are doctors—but they are not the right kind of doctor. Moreover, government attorneys do not represent individuals, they represent government entities and their advice on legal matters pertaining to political questions is often wrong.

The latest example involves San Jose Councilwoman Magdalena Carrasco. She dutifully asked the city attorney for legal advice regarding a trip to New York. The advice cleared the way for her to take the trip based on the counsel given. But the analysis was incomplete. The city attorney, Rick Doyle, correctly looked at the issue strictly from the city of San Jose’s point of view. He did not look at the issue from Carrasco’s entire situation—she was also an East Side school board member at the time and still restricted by law on gifts to elected officials.

The city attorney did not take this detail into account and he was not required to—Carrasco was a council member-elect, and not yet a client of the city attorney.

Now, Carrasco has to deal with the political and legal fallout of breaking state law by accepting a $2,400 trip from the Chamber of Commerce. Unfortunately for her, she sought advice from the wrong counsel; she should have retained her own private attorney.

Carrasco is not the first person who was ill served by a government attorney. I have seen first hand with several of my own previous clients.

Years ago, John McLemore relied on the Santa Clara city attorney regarding a conflict of interest vote—his wife had stock in Intel. McLemore was given the wrong advice, and as a result he was fined $10,000 by the FPPC. He could have appealed the decision and won in a court of law, but the cost of doing that was more than the FPPC fine. It didn’t make economic sense and he had to live with the consequences.

In Cupertino, the city attorney ruled “incorrectly” that Congressman Mike Honda could not sign a local ballot argument. A less sophisticated campaign would have amended the statement and taken the congressman’s name off of it. Instead, the organizers sued the city and won the case, and Cupertino ended up paying the legal costs for both sides.

More than a decade ago in Campbell, the city attorney sent a letter to a candidate warning them not to use the logo of the city or any police officers in their campaign literature. This made the newspapers and may have cost the candidate the election based on a published story and the deference given to the city attorney position. But, once again, it was the wrong legal analysis. Campbell’s logo is not owned by the city, but by the people of who live in Campbell. There is also a huge difference between political speech and commercial speech—a distinction many government lawyers fail to grasp.

Most government attorneys are competent in their area of expertise. But it has been my experience that they do not understand distinctions of a political nature. Moreover, they have an inherent conflict of interest in giving advice to politicians when their client is the government entity they serve.

You would be better off asking Josh Koehn for legal advice on these issues than a government attorney who does not represent you.

Office holders should be fully advised that any advice coming from a government attorney is for the benefit of the entity they serve and not personal. Moreover, they should decline to give political advice to their office holders and advise them to seek their own counsel.

There many types of doctor, and most of them are not competent to perform brain surgery. So it is with attorneys. Seek competent counsel.

 

‘Spoiled Ballots’ Subvert Will of Voters in Special Election

Sitting in what we affectionately call the “bat cave,” watching returns come in from the special election for San Jose’s District 4 council seat, Steve Kline noted there was something wrong. “There are too many spoiled ballots, “ he said.

Kline, our numbers guy, was noting the difference between votes cast and votes counted. In a small turnout, spoiled ballots can make a huge difference. Fortunately, it did not affect our candidate in the race: Tim Orozco.

But it did hurt Lan Diep, who should be Orozco’s opponent in the runoff, not Manh Nguyen. It is an anomaly that falls in line with the “butterfly” ballots cast in Florida for Pat Buchanan, back in 2000. The spoiled ballots cost Diep, who finished just 13 votes behind Nguyen.

This is every candidate and campaign consultant’s nightmare. An election lost not because the votes were lacking, but because of the way votes were counted. The write-in portion of the ballot was left blank on a substantial number of ballots. Diep told his supporters to mark the last spot on the ballot—where he thought his name would be listed. Some voters clearly made a mistake by instead selecting the write-in choice.

The damage is done. There is no recourse and the courts would never interfere, regardless of voters’ intent. Nguyen moves on to the June election.

But we can remedy this problem in the future. Internet voting would help. If a voter had marked a place on the ballot that signified nobody, a warning could be given before the vote was cast. “Are you sure you don’t want to vote for anybody?” But today’s system, especially paper ballots that are mailed, don’t allow for that kind of assistance.

There is potential for mistakes in any voting system. Experienced political operatives take precautions but nothing is full proof. To lose an election by 13 votes is excruciatingly painful. A candidate who loses and knows he should have won is inconsolable.

So, credit is due to Lan Diep. We move on with Orozco and Nguyen, in a runoff expected to have very low voter turnout. Let’s hope the winner is the definitive choice of voters.

Voting by Mail Should be Free

While parts of our nation engage in voter suppression, the city of Santa Clara continues to provide new ways to increase voter participation and provide citizens with tools to evaluate candidates. The most recent proposal, from Councilmember Dominic Caserta, calls on the city to provide postage-paid envelopes for ballots.

The idea should be statewide or, at least, countywide. The burden of paying postage to vote is small poll tax. Those who can afford it and are motivated will comply; many who are below the living wage threshold will not. Moreover, the cumbersome nature of the ballots causes the postage to always come out to more than a first-class stamp. Getting the right amount on the envelope becomes problematic.

Caserta’s plan for Santa Clara ballots eliminates the problem. Oregon already has an all mail-in voting system that produces increased turnout and saves taxpayers money. Some people still like to vote at the polls, just as some people still like to read a physical copy of the newspaper. But times are changing.

At some point, we should all be able to vote on the Internet using our thumbprint. Such a system should be utilized first in Silicon Valley—to date our election system and management have been the laughing stock of the state. Santa Clara County has used cumbersome voting systems and made poor decisions for their employees, many of whom are unfairly blamed for poor results.

But good management, like that seen in the city of Santa Clara under City Clerk Rod Diridon Jr., matched with good policies like the current proposal from Caserta is a model for what can be achieved.

The current Board of Supervisors for Santa Clara County is addressing the issue. Supervisors Joe Simitian and Cindy Chavez are both looking into reforms. A strong proposal would be to adopt the Caserta plan countywide.

The anemic turnout of voters is hurting our democracy at all levels. Anything government can do to make the process easier is a positive. Take notice: Santa Clara is showing the way.

 

Compulsory Voting Make Sense for Democrats

Republicans in red states continue to churn out policies designed to limit access to voting, while Democrats look for ways get more people to turn out. Political pundits usually agree that money is the biggest evil in American politics. They are wrong. The real secret to securing political power is, and always will be, voter turnout. Democrats win when there is heavy turnout, and Republicans win with lower turnout. It is just a fact.

But what if voting wasn’t just a right for American citizens, but rather a requirement? President Barack Obama recently noted the successful system in Australia, which provides for compulsory voting.

Republicans utilize their resources to suppress voting—especially among growing minority populations. Moreover, they engage in negative campaign tactics that tend to depress voting figures. Democrats have foolishly engaged in similar behavior, believing that negative campaigns “influence” voters. They do, but not in the way one would hope.

It really is a simple math equation. There are more Democrats than Republicans, both in registration and philosophy. Most people who are unregistered are at the lower ends of the economic scale. Traditionally, they would more likely vote Democrat. Independent voters used to be more conservative, but that has changed. Disdain for both parties, especially among young people, has given rise to a larger universe of liberal, independent voters.

About 130 million people voted in the last Presidential election. The population of the country is greater than 300 million—the difference does not consist of children and undocumented immigrants. Thus, the majority of the non-voting population—those who are unregistered and those who are registered but choose not to participate—are Democrats based on demography.

If people were required to vote, all the Koch money and all the Koch men could not protect the Republican Party. In Australia, they have imposed compulsory voting. The penalty is a $20 ticket, unless a sufficient reason for not voting can be provided.

This poses the question: Should voting be a right or a duty? A case could be made it is both, preventing compulsory voting from being antithetical to freedom. We currently require our citizens to serve on juries. We force people to pay taxes and require them to sign-up for military service, if ever required. All of these are duties we have placed on citizens, whether they like it or not.

Voting is an extension of this principle of civic participation. Voting should be seen at least as important as serving on a jury.

The penalty for not voting could be as simple as a fine or community service. If a person refuses to vote should they really receive any entitlements from the government? This economic argument could even appeal to some Republicans—though a turnout of all the people would likely remove hardline Republicans from power.

Of course, Republicans could then resort to their strategy from 2000, when  those who counted the votes, especially in Florida, became more important than the votes cast.

Culture of Misogyny Persists for Women in Silicon Valley Politics

San Jose was once the female capital of the world for political power. Janet Gray Hayes was the first woman mayor of a major city. She had a council consisting mostly of women. The Santa Clara County Board of Supervisors also had a majority of women. Gender parity was coming into vogue.

But times have changed and fewer women are now in local public office. The Board of Supervisors has just one woman, Cindy Chavez, and previous to her special election victory the board was all male. San Jose has three women councilmembers, one of whom was appointed on an interim basis (Margie Matthews) and another who is in her final two years in office (Rose Herrera). The third, Magdalena Carrasco, is rumored to be looking at higher office.

The South Bay legislative delegation once boasted two state senators, Becky Morgan and Elaine Alquist, and assemblywomen Leona Egland, Rebecca Cohn and Sally Leiber. Now just a single woman represents the South Bay, Nora Campos, and she will term out in 2016.

Only in Congress, where Mike Honda joins Zoe Lofgren, Anna Eshoo and Jackie Speier, is there an actual majority of women representing Silicon Valley. But both the House and U.S. Senate have sizable male majorities.

Two nationally prominent women, Barbara Boxer and Barbara Milkulski, have already announced their plans to retire from the U.S. Senate. So, while likely presidential candidate Hillary Clinton seeks to bust the gender glass ceiling, there is a tremendous need for today’s leaders to also look at how to bring more talented women into positions of power.

Groups such as Emerge, Emily’s list, Democratic Activists for Women Now and the National Women’s Political Caucus are becoming more active and their leaders more attentive to gender politics. It is not simply enough to elect women leaders to change the culture in which they are forced to compete.

The recent flap with The Daily Fetch is the latest example. The Fetch is a anonymous links blog that shows open disdain for some local politicians. It is considered snarky, but it often crosses the line with attacks on people opposed by liberals and progressives. Recently, the blog referred to our current vice mayor, Rose Herrera, by her husband’s last name. She kept her surname from a prior marriage.

Progressive women, many of whom are not often quick to praise the vice mayor, came to Herrera’s defense because a woman’s name is her choice—not the media’s. This is not the first time such issues have been raised. Both the Mercury News and Metro (parent company of San Jose Inside) have received criticism in the past for their coverage of women in politics. The people who have spoken out do not usually take issue with substance of reports, but more so how women are portrayed in contrast to men—and the double standard that is easily identifiable.

Nobody cares when Bill Clinton changes his hairstyle, unless he holds up airport traffic getting it cut. Nobody comments on Dick Blum’s fashion choices when he stands next to his wife, Sen. Dianne Feinstein. They don’t refer to him as Mr. Feinstein. Nobody questions Mitt Romney’s commitment to his numerous grandchildren when he ran for president, but for some reason it is a story for Hillary.

To many in the good old boy establishment, much of this is dismissed as political correctness or women being overly sensitive to criticism—an insulting charge. The simple truth is that there is a new generation of women who will not play by the outdated codes and double standards that continue to persist. They see rules that need rewriting and want to change perceptions.

What women wear, whom they date, what they look like and what name they choose to be called is not relevant to the content of their character. It is not news and it will be challenged.

The next generation of women will not be forced to break as many glass ceilings. They will grow up emancipated from the constraints their mothers faced. They will expect to be treated as equals. Like their male counterparts, they will not be monolithic, nor share the same philosophy, and they will speak up without waiting to be called upon.

But they will still need help from the leaders who are currently breaking barriers to succeed. It is imperative that the women who are achieving so much today lend a hand to their sisters coming up behind them. As we have seen in Silicon Valley, nothing lasts forever and the fight for equality continues.

 

Misogyny: The Real Culture War

Hillary Clinton’s recent appearance in Silicon Valley highlighted the culture divide in today’s world. Clinton, as much as Barack Obama did in 2008, represents a culture change for our nation and the globe.

While many Republicans like to couch the terrorist threat in terms of religion, Muslim versus Christian, the real issue is the control of women. Making things more than a little uncomfortable, the two religions have this single issue in common. ISIS terrorists falsely proclaiming Islam as their own, creating a bastardized form of religion that has no relevance in the modern world. And yet they have recruited their 100 percent male membership by promising women, in life and in death, as a reward for service. Not only can these mercenaries rape captured infidels, they can buy, own and abuse “converted” wives, many under the age of 13 years of age.

While the Christian religion, based on biblical teachings, does not overtly support the stoning of women or their sale into bondage in the modern era, it is nonetheless codified in historical doctrines. Rightwing fundamentalists, who also falsely claim Christianity as their own, clearly seek laws that regulate women’s bodies and force them into subservient roles.

Both sides are very clear about their agendas and make no apologies for their beliefs.

But the world is changing, much to the disdain of extremists in both religions. In the United States, fundamentalists are being rejected by the vast majority, and all they have left thin power grabs through artificial democratic constructs. The vast majority of citizens live in urban areas, while more radicalized and narrow-minded minorities can be found seeking shelter in vast rural, gerrymandered areas of the country. It is generally in these places—often gerrymandered to create homogenous demographics—where charismatic religious leaders praise a 2000-year-old bible as the only source of truth in their lives.

The division of voting precincts, states and Constitutional provisions give the religious minority a disproportionate amount of power in our country. The presidency, fortunately, is the only office in the nation that truly reflects the national will of the people. But even that system is flawed as we saw in 2000. Al Gore won the popular vote, regardless of the vote stealing machinations that allowed the state of Florida to oversize its role and choose our national leader.

For ISIS, its structure is simple. Soldiers simply need to follow the orders of the Caliph, the representative of Muhammad on earth, who is currently Abu Bakr al-Baghdadi. A godlike figure to his followers, he must live underground as U.S. intelligence and military agencies search for his whereabouts. He will eventually be eliminated, as was Osama Bin Laden and other terrorist leaders. But someone will always step up to take his place until everyone is killed or captured.

The Caliph and ISIS terrorists really aren’t all that upset with western values—except when it comes to the role of women in our society. They like our computers, they use modern vehicles and obviously our weapons—the only thing that really separates us is their savagery and view of women. A free, educated and empowered woman is what they fear most.

For this reason, Hillary Clinton is the embodiment of what the terrorists fear most in western culture. There’s no shortage of irony that most of the opposition to Clinton’s candidacy will come from rightwing Christian zealots who will try to portray her as weak on issues of war—mainly because she is a woman.

But this, in all probability, won’t stop Clinton from winning a national, non-gerrymandered election. The majority of this country—and the world—have moved into the 21st century.

Leadership Starts with Trust

The current conundrum at City Hall has been exacerbated by the inability of personalities to work together on Measure B and pension reform. The more the issue is raised, the tighter the Gordian knot becomes, leaving the city less equipped to move forward on critical issues. Morale declines, frustration persists and attitudes harden.

The late Sen. Alan Cranston used to try a different approach. When faced with an intractable disagreement with a colleague, constituent or political adversary, he tried to find one issue on which they could agree. Peace activists were outraged over the senator’s support for the B-1 bomber, but they could agree to work with him on a nuclear freeze.

This approach builds trust between individuals of differing views. There would still be disagreement, but it would not become personal in the future. The late Ted Kennedy and Orin Hatch had a famous friendship as they worked with each other, despite plenty of disagreements.

Mayor Sam Liccardo and his opponents, public safety unions in particular, should try to find one issue on which they agree. Leaving the battles of Measure B aside, they should identify a single issue on which they can work together and share credit. Labor’s working families agenda is full of promise.

The new mayor has been an advocate for affordable housing. Working Partnerships is a community-labor organization working on the root causes of inequality in our society. They both have solutions regarding affordable housing policies. This is a natural fit for both sides to come together on something they both passionately support. It’s easier to gain trust in a project when both sides agree on the goals.

Another possibility for collaboration is transportation and transit-oriented development. It has nothing to do with pension reform, but it’s a subject on which many people can agree.

The key to working on common initiatives will be bringing in people from both sides of the current divide. The issue must be inclusive, separate from the pension angst. Building trust between these individuals—when none exists today—would go a long way toward working on other issues.

While pension reform and the lack of police officers in our city remains a primary issue, the simple fact of the matter is that there can be no solution when there is no trust. In the best scenario it will take a minimum of five years to rebuild San Jose’s emergency services.

It could take longer than that to build trust between different leaders in San Jose. But we need to take those steps now to bring the city together. In my personal experience, there has never been a time where I couldn’t agree on at least one topic with someone to begin forging a friendship around that issue.

The late Ron Smith ran a campaign against Sen. Cranston in 1986. There was no one considered more “evil” than Ron during that campaign. He died last year and by that time he had become very good friends. We still disagreed on many things, but we had common goals on certain issues: political ethics, gay rights and civil discourse. We continued to disagree on many things, but I learned you could trust Ron Smith, even when I thought he was wrong.

It is time for San Jose’s leaders to learn to trust again.

 

The Worst Way to Spend Taxpayer Money

NBC News anchor Brian Williams recently admitted that he lied about an incident in Iraq. His punishment: a six-month suspension with no pay.

In San Jose, three top-level city managers were recently shown the door after dysfunction overtook the office. Their punishment: six months pay.

Maybe we should have simply suspended them.

The anger expressed by San Jose Inside commenters regarding the city payouts is representative of the public at large. A substantial segment of the population doesn’t believe taxpayer money is being used effectively; excessive payouts simply reinforce that idea.

In any large institution, government or otherwise, there will be some waste, fraud and abuse. Most of government works well and government employees often take on extra tasks simply to ensure service is provided to the electorate. These stories are not well chronicled by the media, but they are highlighted when individuals are recognized by their jurisdictions for going above and beyond the call of duty. Awards usually consist of a plaque and picture with public officials. These workers certainly are not rewarded with a six-month vacation.

To the larger point, taxpayers don’t want to pay for nothing. The old line applies that people will pay for a hand up, but not a handout. Conservatives will rail against people who take welfare, and yet when one points to government subsidies for businesses, they will express similar opposition at a lower decibel. It’s incredible how low-income people of color, and especially single mothers, are considered a greater pestilence to our nation’s bottom line than the grinning suit with his hand out.

If government officials are truly concerned about the perception of how they handle taxpayer money, paying people to go away should violate policy—and not become the norm for doing business. We should also have more stories on how individuals in government are making a difference—and not simply those who hold public office.

How the Game has Changed

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For years political mail and TV commercials have made up the bulk of campaign spending. But it’s clear that the same tired tactics are not working. Voters, turned off by the seemingly hate-filled missives that arrive in droves during campaigns, are simply tossing mail in the trash.

The mantra coming from fearful consultants is that candidates must send this type of mail, or else risk being buried by the opponent; television ads must also keep pace. The need to stay up with the Joneses has caused the majority of voters to reject politics altogether. The beneficiaries are those who have a vested interest in the outcome—they already vote and no amount of mail or television advertising will change their views.

In races that have more than one candidate and “down-ballot,” the need to stand out becomes even more pressing. Arithmetic shows that almost everyone loses in political campaigns. The mayor’s race is a good example: eight candidates ran but one could win. Another example: 14 lost souls failed to defeat Gov. Jerry Brown in June.

Legitimate candidates are weeded out by the media, based on qualifications and level of support in polling data, but just as—if not more—important is whether a candidate raises enough money to compete.

Top-level races receive the most scrutiny. While most of the money is spent on these contests, it’s the down-ballot races, where voting drops off, when money makes the biggest difference. For instance, billions were spent on the Presidential race in 2014. News coverage was extensive. But nothing changed from a polling perspective. President Obama won with the same polling figure he started with at the beginning of the contest.

Consultants might claim that President Obama would have lost had he not matched Mitt Romney in resources. But Meg Whitman spent over $165 million to become governor of California in 2010, and she lost to the frugal Brown. Voters actually rejected her spending as crass and unnecessary. So the big races aren’t really about money.

Television advertising, in particular, has become a huge turnoff. Again, many consultants will say that a candidate must compete on the same level of their opponent to win. But that doesn’t explain the Ed Gillespie-Mark Warner race in Virginia. Gillespie, behind in the polls, stopped his advertising. Warner stayed up, with most pundits agreeing he would win in a walk; he ended up barely limping over the finish line. Could it be that Gillespie actually won over voters by foregoing TV ads?

This brings us back to down ballot races. Resources do have an effect, as Gary Kremen’s water district victory showed. (Full disclosure: I worked on Kremen’s campaign.) He won, but it wasn’t just that he had resources. Kremen effectively spent money on things that matter. Yes, he did mail, but he also did voter identification, GOTV and worked very hard to convince voters on the issues.

It is never about how much a candidate spends, but how they spend that money. Kevin Jensen had the best sign campaign in the county last summer but still lost to Sheriff Laurie Smith (another client of mine). Signs have never been effective—but, again, they are necessary because of the Joneses mentality in politics.

Winning in politics is a simple formula, more arithmetic than art. You have to get more voters to the polls than your opponent. In a down-ballot race, this means defining an environment and making sure supporters vote, which can be much easier said than done. But candidates who target resources on things that matter will always have the advantage.

Ready for the Super Bowl?

levi's stadium

Little known Glendale, Arizona, played host to Super Bowl XLIX, reaping economic benefits anywhere between $50 million and $600 million. Next year, Santa Clara stands to gain that windfall. Are we ready?

The discrepancy between the two economic benefit figures depends on who’s doing in the analysis. But even the “worst-case” scenario means the game will be an economic boon to the community.

Most studies refer simply to the city that hosts the Super Bowl. Having been to five Super Bowls, the flaw in such an analysis is it fails to take the whole region into consideration. New Orleans, which does a great job for patrons, certainly received an economic windfall when it hosted the Harbaugh Bowl (a.k.a. The HarBowl). But every city in the surrounding region also got a boost. Hotels in Baton Rouge were filled, as were hotels in Biloxi, Mississippi—both more than 80 miles from the host city.

The Super Bowl generates billions in activity nationwide, as consumers rush to buy everything from big screen televisions to Doritos for the big game. So are we ready?

The host committee in Santa Clara will have its hands full and it should look to how other cities have fared. New Orleans and Miami are great venues. Palo Alto hosted in 1984, and those folks should be queried on what went wrong and what went right.

There is a myth that a home team has never hosted a Super Bowl. But in 1984, the 49ers won the event. Only by a technicality—the game was hosted at Stanford and not Candlestick—can people make that claim. Reasonable individuals know the 49ers are 1-0 in Super Bowls played in the Bay.

For those who have never been to a Super Bowl, it’s basically two weeks of partying followed by a football game. Fortunes can be made in two weeks with the right enterprise. Hotels, taxis, bars, restaurants and everything in between will be in great demand. Those who prepare and market themselves are sure to see profits increase. Those who fail to understand the magnitude of the opportunity will forever regret it.

It’s not simply the two teams and their fans who show up to the game; it’s the entire world. Every network works remotely for two weeks from the host city. Reporters from around the globe descend upon the host city. How Santa Clara treats these people, and how much fun they have, will be recorded for posterity. Of course, major corporations will sponsor huge events and parties, as well as be on hand to sell their wares.

The opportunity to sell Santa Clara as a place that knows how to do business will be on display for these high-rollers. And preparations need to begin now.

More Super Bowls could be forthcoming if Santa Clara and the region receive high marks from the NFL and business community. NFL executives have been salivating to return to the Bay since the successful Super Bowl of 1984. The only downside was the stadium itself was ill-equipped to host a gathering of that size.

Levi’s Stadium in Santa Clara has solved that problem. Now the NFL is coming back to take advantage of everything this region has to offer. Are we ready?