Fair Political Practices Com. v. Suitt

• Decision Date: 06 March 1979
• Citation: 90 Cal.App.3d 125,153 Cal.Rptr. 311
• Court: California Court of Appeals Court of Appeals
• Parties: FAIR POLITICAL PRACTICES COMMISSION, Plaintiff and Appellant, v. Tom SUITT, Friends of Tom Suitt Committee, an unincorporated association, and Harry Brent, Defendants and Respondents. FRIENDS OF TOM SUITT, Plaintiff and Respondent, v. The FAIR POLITICAL PRACTICES COMMISSION, Defendant and Appellant. Civ. 17707.

Page 311

153 Cal.Rptr. 311

90 Cal.App.3d 125

FAIR POLITICAL PRACTICES COMMISSION, Plaintiff and Appellant, v. Tom SUITT, Friends of Tom Suitt Committee, an unincorporated association, and Harry Brent, Defendants and Respondents.

FRIENDS OF TOM SUITT, Plaintiff and Respondent, v. The FAIR POLITICAL PRACTICES COMMISSION, Defendant and Appellant.

Civ. 17707.

Court of Appeal, Third District, California.

March 6, 1979.

As Modified on Denial of Rehearing April 3, 1979.

Daniel H. Lowenstein, Robert M. Stern, Natalie E. West, Lee C. Rosenthal, Barbara Campbell, Sacramento, for plaintiff and appellant, and defendant and appellant.

Ronald A. Zumbrun, John H. Findley, and Sandra R. Johnson, Sacramento, for amicus curiae Pacific Legal Foundation, in support of plaintiff and appellant, and defendant and appellant.

Blease, Vanderlaan & Rothschild, and Coleman A. Blease and Richard L. Gilbert, Sacramento, for defendants and respondents, and plaintiffs and respondents.

PARAS, Associate Justice.

This is a consolidated appeal from a portion of the judgment entered in Friends of Tom Suitt v. The Fair Political Practices Commission (FPPC), Sacramento Superior Court Action No. 270251 (hereinafter called Suitt v. FPPC ), and from the judgment entered in Fair Political Practices Commission v. Suitt, et al., Sacramento Superior Court Action No. 270419 (hereinafter called FPPC v. Suitt ).

The issue in both cases is whether the Assembly Democratic Caucus of the State Legislature (Caucus) is a "person" within the meaning of the Political Reform Act, Government Code section 81000 ¹ et seq.

The legal dispute arises out of the activities of Michael O'Key, an employee of the State of California and more specifically of the Caucus, an association of the Democratic members of the California Assembly. The Caucus is authorized by statute and by Assembly resolution to hire and direct employees, whose salaries are paid by the state.

The FPPC v. Suitt complaint alleges that in May and June of 1976, O'Key was relieved of some of his normal working responsibilities to enable him to perform campaign work for the Suitt Committee (Committee), a political committee working for the reelection of Assemblyman Tom Suitt. O'Key spent at least three of the twenty working days of May and at least three of the twenty-two working days of June on campaign activities. On these days he solicited campaign contributions and engaged in and was substantially responsible for campaign strategy and planning, coordination of the activities of volunteer workers, and preparation of the campaign budget. Such work was done at the behest of Suitt. ²

While allegedly performing campaign work, O'Key continued to receive his full state salary. He received no compensation from Suitt or the Committee; and neither the Committee nor anyone else reimbursed the state for his salary accumulation while doing the campaign work.

Pursuant to sections 84200 and 84210, the Committee was required to file periodic campaign disclosure statements, revealing contributions received and disbursements made. The FPPC contends that as a consequence of O'Key's campaign work the Committee received a nonmonetary contribution in the form of personal services, which it was required to disclose on the campaign disclosure statements covering the two months. The Committee made no such disclosure.

Pursuant to its civil enforcement authority, the FPPC commenced FPPC v. Suitt on November 17, 1977 for injunctive relief and damages, seeking to have the court compel Suitt, the Committee, and its treasurer Harry Brent (respondents) to file amendment campaign statements making the disclosures; the action also sought damages equal to the monetary value of the uncompensated personal services. (§§ 91001, 91004.)

Several days before the FPPC v. Suitt complaint, and in anticipation thereof, the Committee filed the Suitt v. FPPC action, based on the same facts but seeking declaratory, injunctive and extraordinary relief. Its thrust was that the Legislature is not a "person" within the meaning of sections 82047 (which defines "person") and 84210, subdivision (g) (which requires the Committee to report the name of each "person" from whom a reportable contribution has been received), hence it had no obligation to report O'Key's services.

On December 16, 1977, a hearing was held in Suitt v. FPPC, which by stipulation of counsel was deemed a trial on the merits of the complaint. The trial court agreed with the Committee and ruled accordingly. In FPPC v. Suitt the court sustained a demurrer without leave to amend. Appeals were taken by FPPC in both cases. On July 6, 1978, pursuant to uncontested motion, we consolidated them.

The Political Reform Act was adopted as an initiative measure in June 1974, effective January 7, 1975. It covers a wide range of matters involving public officials, including lobbying, conflict of interest, and campaign disclosure. Section 81002 recites the public policy applicable to campaign disclosures and declares "Receipts and expenditures in election campaigns should be fully and truthfully disclosed in order that the voters may be fully informed and improper practices may be inhibited." (§ 81002, subd. (a).) To accomplish this purpose, section 84200 Et seq. require all candidates and committees supporting or opposing candidates and ballot measures to file periodic campaign disclosure statements. The Act also requires records to be kept (§ 84100), prohibits anonymous and cash contributions (§§ 84300, 84304), and regulates payments by agents and intermediaries (§§ 84302, 84303).

Campaign statements must disclose, inter alia, the "full name of each Person from whom a contribution or contributions totaling fifty dollars ($50) or more has been received . . . ." (Emphasis added.) (§ 84210, subd. (g).) The term "contribution" includes not only cash and cash-equivalent contributions but also nonmonetary or "in-kind" contributions of goods and services. Specifically, "contribution" is defined to include "the payment of compensation By any person for the personal services or expenses of any other person if such services are rendered or expenses incurred on behalf of a candidate or committee without payment of full and adequate consideration." (Emphasis added.) (§ 82015.) This provision is intended to prevent a potential subterfuge; it assures that when an employer allows an employee to spend compensated time in campaign work for a campaign committee, the committee must report that benefit, just as it would if the employer made a direct cash contribution to the committee which in turn used it to pay a campaign worker.

The term "person" is broadly defined in section 82047 to mean ". . . an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, association, committee, and Any other organization or group of persons acting on concert." (Emphasis added.) The emphasized segment of the definition, broad as it is, appears at first blush to include the Caucus and other governmental entities like it, but because governmental entities are not actually specified respondents offer several reasons for the supposition that they were intentionally omitted.

Respondents assert first that "much of what is done by the Legislature, and consequently by legislative aides, is done for a political purpose;" therefore application of the Act to the Legislature would result in ". . . an interference with the normal functioning of the sovereign powers of the Legislature." Just how this comes about is not clear to us; presumably the claim is that the effort of legislators would be hampered by their inability to distinguish work on a political campaign from work on legislation in deciding what is or is not a contribution under section 82015. As the FPPC points out in response, this argument is not convincing; for even if the definition of "contribution" might be unclear as applied to certain legislative activities not here involved, the Act obviously does not infringe on the performance of Suitt's official duties insofar as the activities alleged in this case are concerned. The use of state employees by a legislator's campaign committee to solicit contributions, plan campaign strategy, coordinate volunteers, and prepare the campaign budget, all at state expense, is in no way a proper part of a legislator's official functions; that is not to be questioned. If it is to be done at all, the public has a serious interest in its disclosure.

The Legislature's asserted difficulty here, if indeed it exists, is no different from that faced by government officials in distinguishing between the improper expenditure of public funds for "campaign" purposes and the proper expenditure thereof for "informational" activities. In Stanson v. Mott (1976) 17 Cal.3d 206, 223, 130 Cal.Rptr. 697, 551 P.2d 1, the Supreme Court resolved that problem by holding governmental officials liable only if they fail to use due care in authorizing the expenditure. Analogously the Legislature need not be absolutely perfect in distinguishing between the performance by its employees of proper legislative functions as distinguished from election campaigning; it should nonetheless exercise due care in separating the two activities.

Respondents emphasize however that the Legislature is so political that it is impossible to distinguish campaigning from legislating. In particular, they state: ". . . Government Code Section 82015 defines 'contribution' as 'a payment . . . except to the extent that full and adequate consideration is received unless it is clear from the surrounding circumstances that it is not made for political purposes.' (P) This definition makes a payment a 'contribution' Unless it is Not made for a political purpose. The use of the Double negative means that if there is a single political purpose, then a payment made with such purpose is a contribution. That is, if there are multiple...