Ethics Commission
City and County of San Francisco

Advice Letter – September 24, 2001 – James R. Sutton, Esq. – Campaign Consultant Ordinance

September 24, 2001

James R. Sutton

Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP

591 Redwood Highway #4000

Mill Valley, CA 94941-3039

Dear Mr. Sutton:

You requested the Ethics Commission's interpretation of the San Francisco Regulation of Campaign Consultants Ordinance ("Ordinance"), San Francisco Campaign and Governmental Conduct Code § 1.500 et seq.

The Ethics Commission provides two kinds of advice: written formal opinions or 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. Id. Informal advice does not provide similar protection. Id.

Because your request seeks advice regarding a hypothetical set of facts and does not describe a specific situation involving your responsibilities or those of your client, the Commission is treating your question as a request for informal advice.

Questions

You asked the Commission to consider the following questions:

1. Does a telephone bank operator who edits the script of a telephone message, hires workers to make telephone calls, purchases the voter lists, and otherwise effectuates the campaign strategy developed by a campaign manager or lead consultant qualify as a campaign consultant or a vendor?

2. Does an outside consultant who coordinates mail production, formats the text and graphics of a mailing into a computerized file (hiring a graphic artist to assist with this task if necessary), purchases a mailing list, coordinates with the printer and post office, etc., and otherwise effectuates the campaign strategy as developed by a campaign manager or lead consultant qualify as a campaign consultant or vendor?

3. Does an individual who is paid to provide information to field directors regarding a political organization's past endorsements, political leanings, important leaders, etc., with the ultimate goal of increasing the chances that the field director will be able to obtain the endorsement of the club for the campaign or ballot measure, qualify as a campaign consultant or vendor?

4. Must a vendor who provides multiple services to a campaign and who earns under $1,000 providing services that qualify as campaign consulting services, register as a campaign consultant under the Ordinance?

Short Answers

1. The hypothetical telephone bank operator does not appear to perform campaign consulting services and thus would not be required to register as a campaign consultant.

2. The hypothetical mail production coordinator does not appear to perform campaign consulting services and thus would not be required to register as a campaign consultant.

3. The hypothetical endorsement advisor does not appear to perform campaign consulting services and thus would not be required to register as a campaign consultant.

4. A person who hypothetically earns less than $1,000 in a calendar year for campaign consulting services is not required to register as a campaign consultant under the Ordinance.

Discussion

A. The Regulation of Campaign Consultants Ordinance

To assist the public in making informed decisions and to protect confidence in the electoral and governmental processes, the voters of San Francisco adopted the Regulation of Campaign Consultant Ordinance in 1997. The Ordinance imposes reasonable registration and disclosure requirements on campaign consultants. S.F. C&GC Code § 1.500.

Campaign consultants are persons or entities, including subcontractors, that receive or are promised economic consideration equaling $1,000 or more in a calendar year for campaign consulting services. Id., § 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).

B. It is likely that the activities of the telephone bank operators do not constitute campaign consulting activities.

You indicate that in the course of managing the campaign of a San Francisco candidate or ballot measure, a campaign manager or lead consultant often retains professional telephone bank operators to contact voters. You state, "Whereas the campaign manager or lead consultant drafts the script for these telephone calls and identifies which segment of the voting population will be contacted, the telephone bank operator edits the script into the most appropriate format, hires workers to make the calls, purchases the voter list, etc. In short, the telephone bank operator effectuates the strategy developed by the campaign manager or lead consultant."

Under the hypothetical facts you presented, the telephone bank operator is not engaged in campaign consulting services. Instead, the telephone bank operator is acting in the capacity of a vendor, much like that of a printer.1 Where a telephone bank operator merely effectuates a strategy developed by a campaign manager or lead consultant, the telephone bank operator is not subject to the registration and reporting requirements of the Ordinance.

However, under certain circumstances, the activities you described may be deemed campaign consulting services subject to reporting under the Ordinance. For example, if in editing the telephone message, the telephone bank operator makes changes that alter the meaning of the message, or if in purchasing voter lists, the telephone bank operator identifies which segment of the voting population will be contacted, it is possible that the telephone bank operator is no longer engaged in merely effectuating a strategy developed by the campaign manager but is also engaged in providing strategic planning services for the campaign. If the telephone bank operator is so engaged and earns $1,000 or more in economic consideration in a year, he or she would be subject to the registration and disclosure requirements of the Ordinance.

Under the circumscribed facts that you set out, if the professional telephone bank operator merely effectuates a strategy developed by the campaign manger or lead consultant, he or she would not qualify as a campaign consultant. However, the determination of whether a person is providing campaign consulting or vending services is fact specific; thus, this conclusion may change depending on an analysis of the actual responsibilities and activities of the telephone bank operator.

C. It is likely that the activities of the mail production coordinator do not constitute campaign consulting activities.

You explain that campaigns often hire outside consultants to produce mail pieces. You state, "After a campaign manager or lead consultant drafts the mail piece, he or she gives it to a production coordinator, who formats the text and graphics properly into a computer file (sometimes hiring a graphic artist to assist with this task), purchases a mailing list, coordinates with the printer and post office, etc.," and otherwise "merely effectuat[es] the campaign strategy as developed by the campaign manager or lead consultant."

Similar to the hypothetical telephone bank operator discussed above, the hypothetical mail production coordinator does not engage in campaign consulting services. The activities you described do not constitute campaign consulting management or strategy. Although the Ordinance defines "campaign strategy" to include "producing or authorizing the production of campaign literature," the hypothetical mail production coordinator is not truly producing or authorizing the production of campaign literature. Instead, in effectuating a campaign strategy developed by a campaign manager or lead consultant, the hypothetical mail production coordinator is acting as a vendor and is not subject to the registration and reporting requirements of the Ordinance.

Nonetheless, like the activities of the telephone bank operator, the activities of a mail production coordinator may cross over and become campaign consulting services subject to the reporting requirements of the Ordinance. For example, if in editing the campaign mailer, the mail production coordinator makes changes that alter the message of the mailer, or if in purchasing mailing lists, the mail production coordinator identifies which segment of the voting population will be contacted, it is possible that the mail production coordinator is no longer engaged in merely effectuating a strategy developed by the campaign's campaign manager but is also engaged in providing strategic campaign planning services. If the mail production coordinator is so engaged and earns $1,000 or more in economic consideration in a year, he or she would be subject to the registration and disclosure requirements of the Ordinance.

Under the circumscribed facts that you set out, if the mail production coordinator merely effectuates a strategy developed by the campaign manger or lead consultant, it is unlikely that he or she would qualify as a campaign consultant. However, as discussed above, the determination of whether a person is providing campaign consulting or vending services is fact specific; thus, this conclusion may change depending upon an analysis of the actual responsibilities and activities of the mail production coordinator.

D. It is likely that the activities of the endorsement advisor does not constitute campaign consultant activities.

You state that a campaign often hires a field director to attend meetings of various political clubs in order to attempt to obtain the clubs' endorsement of the candidate or ballot measure. You agree that a field director who earns $1,000 or more in a calendar year qualifies as a campaign consultant, but you ask whether an endorsement advisor so qualifies. You describe endorsement advisors as individuals who "will not themselves attend the meetings or otherwise contact club members. Instead, the advisors provide the field director with information regarding the club's past endorsements, political leanings, important leaders, etc., with the ultimate goal of increasing the chances that the field director will be able to obtain the endorsements of the club for the campaign or ballot measure."

Under the hypothetical facts you presented, the endorsement advisor is not engaged in campaign consultant services if the advisor is merely providing information about a club's history, political leanings and important leaders. However, if the advisor provides additional services such as identifying the specific clubs from which the campaign should seek endorsements, then the advisor may be engaged in providing strategic campaign planning services. If so, and if the endorsement advisor earns $1,000 or more in economic consideration in a year, he or she would be subject to the registration and disclosure requirements of the Ordinance.

Under the limited facts you set out, the endorsement advisor does not appear to qualify as a campaign consultant. Nonetheless, as stated above, the determination of whether a person is providing campaign consulting or vending services is fact specific. Thus, this conclusion may change depending on an analysis of the actual responsibilities and activities of the endorsement advisor.

E. Payment for Multiple Services

You state that campaigns often retain vendors who can provide more than one service. For example, the person hired to operate a telephone bank may also conduct a poll for the campaign, or the person hired to solicit club endorsements may also manage the campaign's headquarters. You asked, "If a person provides multiple services to a campaign, and earns under $1,000 for the services which qualify as campaign consulting services under Campaign & Governmental Conduct Code section 1.505(b), would the person have to register as a campaign consultant?"

By definition, if a person receives or is promised economic consideration totaling less than $1,000 in a calendar year to perform campaign consulting services, he or she does not qualify as a campaign consultant under the Ordinance. Accordingly, there is no registration or reporting obligation. However, as discussed above, the determination of whether a person is providing campaign consulting or vending services is fact specific. Thus, the allocation of funds to campaign consulting or vending services by an individual who provides multiple services must necessarily be fact specific. It follows that a multiple services provider must keep an accurate accounting of the types of services that he or she provides and the compensation that he or she receives for each service. If the compensation that the provider receives for providing campaign consulting services reaches the $1,000 earnings threshold, he or she must register under the Ordinance; if it does not, the registration and reporting requirements do not apply.

Your letter does not present specific facts regarding the activities of the multiple services provider. Accordingly, the Commission cannot provide any further advice regarding the provider's filing obligations under the Ordinance. If you wish to obtain additional advice, please provide specific information regarding the actual responsibilities and activities of the provider.

I hope you find this letter responsive to your inquiry. Please call me at 415.581.2300 if you have questions, or if you require additional advice.

Sincerely,

Ginny Vida

Executive Director

By: Mabel Ng

Deputy Executive Director

S:\ADVICE\campaign consultant\01-0822 Sutton\Sutton.doc

1 A "vendor" is a person or entity that sells goods or services, other than campaign consulting services, including but not limited to printing, catering, and transportation services. S.F. C&GC Code § 1.505(k)
 

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