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Advice Letter – February 19, 2002 – James R. Sutton, Esq. – Campaign Finance Reform Ordinance

February 19, 2002

James R. Sutton

Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP

591 Redwood Highway #4000

Mill Valley, California 94941-3039

Dear Mr. Sutton:

You requested the Ethics Commission's interpretation of San Francisco Campaign and Governmental Code Section 1.161, a new law that imposes disclosure and filing requirements on candidates for City elective office who pay for mass mailings.

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 your clients may take in the future, the Commission is treating your question as a request for a formal opinion.

Questions Presented

You asked the Ethics Commission to respond to the following questions:

1. What is the effective date of the new law?

2. What are the actual deadlines for filing a copy of the mass mailing and the itemized disclosure statement?

3. If the candidate has not received an invoice from a vendor associated with the mass mailing by the filing deadline, may a committee use an estimate in the itemized disclosure statement?

4. Has the Ethics Commission promulgated a form for the itemized disclosure statement, as required by the new law?

5. Does the "detailed description" of the cost associated with the mass mailing require the actual names of vendors, or simply a description of the services they provided in connection with the mass mailing?

6. Does the term "mass mailing" include fundraising solicitations?


Applicability and Requirements of Section 1.161

The new law applies to mass mailings that (1) are paid for by candidates for City elective office from their campaign funds, and that (2) advocate for or against candidates for City elective office. S.F. Campaign and Governmental Conduct Code § 1.161(c)(2). The law requires such mass mailings to include the following statement in no less than 14-point type and in a color or print which contrasts with the background so as to be easily legible: "paid for by ___ (insert candidate's name and street address)." Id., § 1.161(a). A post office box may be provided in lieu of a street address if the candidate's address is a matter of public record with the Ethics Commission. Id.

The new law also requires each candidate who pays for such a mass mailing to file a clearly legible original or copy of the mailing with the Ethics Commission within five working days after the date of the mailing. Id., § 1.161(b). In addition, as currently stated, the candidate must file an itemized disclosure statement with the Ethics Commission for that mailing within two working days. Id. A technical amendment to the Ordinance to change the time within which the itemized disclosure statement must be filed to five working days, to conform with the deadline for filing an original or copy of the mass mailing, is pending with the Board of Supervisors.

The new law requires the Ethics Commission to promulgate the itemized disclosure statement, which will contain a detailed description of the separate costs associated with a mass mailing, including but not limited to, costs of photography, design, production, printing, distribution and postage. Id., § 1.161(c).

1. The effective date of the new law is November 25, 2001.

As you indicate in your letter, the Board of Supervisors passed the new law on October 15, 2001, and the Mayor returned it unsigned on October 26, 2001.1 The law became effective 30 days later, or on November 25, 2001. S.F. Charter § 2.105. In implementing the new law, the Commission noted that the date by which a candidate must file an original or copy of a mass mailing with the Ethics Commission differed from the date by which the candidate must file the corresponding itemized disclosure statement. The Commission believed that the difference in the dates was unintended. Therefore, on November 19, 2001, the Commission voted to endorse a technical amendment to make the filing deadlines uniform. A technical amendment to this effect was introduced at the Board of Supervisors on December 3, and is currently pending in committee.

The Commission is developing the itemized disclosure statement and other materials for the implementation of the new law. However, because of the uncertainty surrounding the different filing dates and the pendent technical amendment, and because campaigns for the March 2002 election are already underway, the Commission determined that it would not begin enforcement of the new law until after the March 2002 election.

In addition to developing the itemized disclosure statement, the Ethics Commission is reviewing the new law to determine if there is a need for regulations. The Commission expects to have this work completed by the time the technical amendment is effective. As soon as the technical amendment is effective, the Commission will inform you and other candidates about the requirements of the new law. The Commission will begin enforcement of the new law in the November 2002 election season.

2. The actual deadlines for filing a copy of the mass mailing and the itemized disclosure statement are five and two working days, respectively, from the date of the mass mailing.

As discussed above, the Board of Supervisors is considering a technical amendment to change the time by which a candidate must file the itemized disclosure statement from two to five working days. This change, if approved in its current form, will make the deadlines for filing both the itemized disclosure statement and the mass mailing with the Ethics Commission consistent, which means that both documents must be filed within five working days from the date of the mailing. However, if the pending amendment is changed by the Board, these deadlines may change.

3. Candidates may provide good-faith estimates on the itemized disclosure statements.

When the members of the Ethics Commission considered endorsing a technical amendment to the new law, they discussed whether five days was a sufficient amount of time for candidates to provide the Commission with accurate itemized disclosure statements detailing the costs of the mass mailings. The Commissioners expressed concern, which you echo in your letter, that candidates may not be able to make accurate disclosures within five days because they may not receive invoices from vendors within that time period. Although the Commission voted to propose that the two-day period be extended to five days, to make the filing deadlines consistent, the Commission also decided that the itemized disclosure form could be amended if the initial statement contains inaccurate or incomplete information. Accordingly, if candidates do not know the actual costs when they file the itemized disclosure statement, they may provide good faith estimates, provided that they amend the statement as soon as they receive accurate information regarding the costs.

4. The Ethics Commission is preparing an itemized disclosure statement

The Ethics Commission is developing an itemized disclosure statement, which will be available once the technical amendment is effective.

5. The actual names of vendors must be disclosed.

The new ordinance serves not only to mandate public disclosure of the funding source for political messages but also to provide information regarding the various costs associated with a mass mailing. Disclosing the names of vendors will accommodate the purpose of the law as well as enable better tracking of costs. Therefore, the "detailed description" of the costs will require candidates to provide the actual names, addresses and telephone numbers of the vendors.

6. Mass mailings include fundraising solicitations.

Section 1.161(c)(2) adopts the definition of "mass mailing" under state law, which is "over 200 substantially similar pieces of mail, but does not include a form letter or other mail which is sent in response to an unsolicited request, letter or other inquiry." Gov't Code § 82041.5. As provided under section 1.162(c)(2), only a mass mailing that "is paid for by a candidate for City elective office with funds raised for the candidate's campaign," and that "advocates for or against candidates for City elective office" is covered under the new law.

In an opinion letter issued by the Fair Political Practices Commission (FPPC), the FPPC considered whether a letter and invitation sent by the Republican State Central Committee of California to individuals and corporations appealing for campaign contributions were mass mailings.2 CA FPPC Op. 75-167 (1976 WL 38752). The FPPC stated, "Both the invitation and the letter are mass mailings because more than 200 identical or nearly identical copies were mailed." Id. The Ethics Commission concludes that a fundraising solicitation is a mass mailing under section 1.162.

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.


Ginny Vida

Executive Director

By: Mabel Ng

Deputy Executive Director


1 Unless vetoed by the Mayor , an ordinance is deemed approved 10 days after the Board of Supervisors sends it to the Mayor. S.F. Charter § 3.103.

2 The law at that time required that "a copy of every mass mailing in support of or in opposition to a state candidate or state measure" be sent to the FPPC.

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