May 9, 2001
Christopher L. Bowman
1200 Gough Street #5D
San Francisco, CA 94109
Dear Mr. Bowman:
You requested the Ethics Commission's interpretation of the Campaign Consultant Ordinance, San Francisco Campaign and Governmental Conduct Code § 1.500 et seq., ("Ordinance"), which imposes registration and disclosure requirements on campaign consultants.
The Ethics Commission provides two kinds of advice: written formal opinions and informal advice. S.F. Charter § C3.699-12. Written formal opinions are available to individuals who request advice about their responsibilities under local laws. Formal opinions provide the requester immunity from subsequent enforcement action if the material facts are as stated in the request for advice, and if the District Attorney and City Attorney concur in the advice. See id. Informal advice does not provide similar protection. See id.
Because you seek advice regarding specific actions that you may take in the future, the Commission is treating your question as a request for a formal opinion.
You asked the Ethics Commission to consider the following question:
Does post-election analyses represent work that must be registered with the Ethics Commission under the provisions of the Ordinance?
Summary of Advice
You state that you prepare statistical surveys and maps after an election occurs. If you are otherwise not engaged in providing campaign consulting services when you use election statistics to prepare precinct maps and make oral presentations regarding an election that has already occurred, your activities are not subject to regulation and disclosure under the Ordinance.
In your letter, you indicate that after an election, you prepare color-coded precinct maps and make oral presentations to show how candidates and ballot measures fared in the election. Your clients include candidates, campaigns, consultants, and non-profit organizations with political action committees, as well as individuals and entities that do not engage in local electoral politics. Your electoral analyses are statistical in nature and address past and potential political attitudes and voting behavior.
The Ordinance imposes registration and disclosure requirements on campaign consultants, defined as persons or entities that receive or are promised economic consideration equaling $1,000 or more in a calendar year for campaign consulting services. S.F. C&GC Code § 1.505(a). The term "campaign consulting services" is defined as "participating in campaign management or developing or participating in the development of campaign strategy." Id., § 1.505(b).
"Campaign management" means "conducting, coordinating or supervising a campaign to elect, defeat, retain or recall a candidate, or adopt or defeat a measure, including but not limited to hiring or authorizing the hiring of campaign staff and consultants, spending or authorizing the expenditure of campaign funds, directing, supervising or conducting the solicitation of contributions to the campaign, and selecting or recommending vendors or subvendors of goods or services for the campaign." Id., § 1.505(c).
"Campaign strategy" means "plans for the election, defeat, retention or recall of a candidate, or for the adoption or defeat of a measure, including but not limited to producing or authorizing the production of campaign literature and print and broadcast advertising, seeking endorsements of organizations or individuals, seeking financing, or advising on public policy positions." Id., § 1.505(d).
Here, based on the facts you provided, you do not prepare color-coded precinct maps or make oral presentations until after an election has occurred. Generally, post-election activities are not subject to reporting under the Ordinance. After an election, you are not conducting, coordinating, supervising, or planning activities to elect, defeat, retain or recall a candidate, or to adopt or defeat a measure. Accordingly, you are not engaged in providing "campaign consulting services," as that term is defined in the Ordinance, and you are not subject to the provisions of the Ordinance.
However, in certain situations, post-election activities may trigger reporting under the Ordinance. For instance, if a client utilizes your maps in a future election, a question arises as to whether the analyses you perform are part of a campaign strategy or management or merely part of a goods or services contract. Depending on the operative facts, your activities may or may not be covered. You have not provided sufficient facts to enable the Commission to respond to your question whether the Ordinance applies because some future campaign might utilize your analyses. In order for the Commission to provide formal advice, the Commission must have sufficiently specific facts before it. Accordingly, the Commission is unable to answer this question.
If you are otherwise not engaged in providing campaign consulting services when you use election statistics to prepare precinct maps and make oral presentations regarding an election that has already occurred, your activities are not subject to regulation and disclosure under the Ordinance.
I hope you find this information helpful. Please contact me at 415/581-2300 if you have further questions.