Mayor Wants City Clerk Audited, Stripped of Some Duties

San Jose’s City Clerk barely squeaked by with her job after coming under fire for misguiding candidates about local election law.

While Toni Taber will have another chance to prove herself, she may be stripped of some duties and undergo an audit.

Taber endured a closed-session performance review last week, after city officials learned that her office had told candidates to follow state law instead of local law on reporting late campaign donations.

Toni Taber.

Toni Taber.

Her bum advice resulted in hundreds of violations for council members in the past two years, including Mayor Sam Liccardo. Prompted by a citizen complaint, the city’s Ethics Commission billed newly elected north side Councilman Manh Nguyen with a $10,000 fine.

“Repeated problems have been reported privately to the mayor's office and more publicly to the media regarding difficulties that council members and candidates have had in getting reliable, accurate information from the office of the clerk on issues ranging from election-related rules to office budgets,” Liccardo wrote in a memo to the Rules and Open Government Committee.

The mayor said City Attorney Rick Doyle should take over responding to questions on election law and writing up guidelines for candidates. In his memo, Liccardo noted Taber’s missteps that put candidates at risk of paying out tens of thousands of dollars in fines.

“The city clerk previously informed a compliance official from my mayoral campaign that she should comply with the state rules for reporting of end-of-cycle campaign contributions in that June election,” Liccardo wrote. “The city clerk indicated in that email that she would similarly direct other council campaigns. Nearly every single campaign followed that direction, which proved to be inaccurate, as multiple candidates violated contrary local rules; council member Manh Nguyen is merely the latest candidate to suffer from this advice.”

Several council offices have also had trouble getting accurate, timely information about budgets, Liccardo continued.

“These problems raise questions about core competencies and of the allocation of responsibilities within City Hall,” he wrote. “It appears more sensible to ensure that responsibilities of interpreting rules and laws lie with the city attorney, whose employees obviously have legal training that the clerk lacks.”

The mayor asked City Auditor Sharon Erickson to conduct a performance review of Taber’s office. The audit would review her core responsibilities and figure out how the office failed to provide reliable information on election law and council office budgets.

Taber was appointed city clerk by the council in 2013.

More from the San Jose Rules and Open Government Committee agenda for September 9, 2015:

  • San Jose may adopt an equal pay ordinance, taking a cue from Santa Clara County. “The recent celebration of the 95th anniversary of women getting the right to vote puts a spotlight on the continued importance of treating all members of our society equitably,” Councilman Don Rocha wrote in a memo co-signed by Liccardo and council members Ash Kalra and Magdalena Carrasco. “One of the most significant barriers women and minorities still face is an economic one: disparity in pay.” The city, as an employer of 6,000 people, should examine its policies regarding pay equity, Rocha said. “By taking up this issue, we can reaffirm our longstanding commitment to equity in the workplace,” the memo continued, “as well as serve as an example for other employers within our community.”
  • Vice Mayor Rose Herrera said the city should model its equal pay ordinance after a newly signed state law. California led the nation in signing a pay equity bill, she said, and San Jose should follow suit. “This bill ensures that our state is on its way toward the toughest gender pay equity policy in the nation,” Herrera wrote.

WHAT: Rules and Open Government Committee
WHEN: 2pm Wednesday
WHERE: City Hall, 200 E. Santa Clara St., San Jose
INFO: City Clerk, 408.535.1260

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to [email protected] or follow her on Twitter at @jennwadsworth.

13 Comments

  1. It would be one thing if the City Clerk had simply given Manh Nguyen the wrong information on reporting late donations, but those who followed the District 4 race closely will recall that this was the third of several severe mistakes from Taber’s office that Manh Nguyen was at the receiving end of.

    Taber did not place a “diamond designation” by Manh Nguyen’s name on the original primary ballot to indicate that he had not taken the campaign spending limit. To rectify this, she wrote a letter to every voter in the district with the sole purpose of informing them that Manh Nguyen was not accepting the spending limit — no doubt causing him to lose hundreds of votes that he would not had lost had the ballot been handled correctly.

    Additionally, Taber’s office communicated to the Manh Nguyen campaign that the Form 500 for candidates to initiate fundraising was “optional” to those candidates who did not accept the spending limit, when in fact it was not. Manh was taken to the Ethics Commission over a complaint regarding his failure to file, and Taber’s office continued to deny that they had given bad information — although the independent evaluator concluded that they had.

    Considering how much damage our newest Councilmember has suffered at the hands of the City Clerk, it’s pretty surprising she’s getting off with a slap on the wrist.

    • I totally agree with you that Taber got off so easily. She was also very quick to blame others for her mistakes. She blames her predecessor.

      Before people are so quick in defending her, don’t forget that SHE was the Assistant City Clerk BEFORE she became City Clerk. So my question is: why did she not fix this mess when she was in her previous position, if there was any existing BEFORE she became City Clerk.

      When her predecessor, Dennis Hawkins, made a mistake regarding the library measure, he went on TV and said that HE made the mistake. He did not blame his staff who along with him were the ones who actually dispensed the information. He did not blame the City Attorney’s Office who he must have consulted BEFORE he informed those involved in the measure. He blamed only himself because he honored the fact that he is the captain of his ship. That is the mark of a good man with good character. He did not drag anyone’s name either through mention or insinuation in the mud. That type of man is someone you can trust.

      Here’s Toni Taber. She quickly blames everyone but herself. She blames the past and forgets that she IS part of that past, and yet all of those mistakes happened. People who have common sense and a good heart should recognize that this is someone who plays the dirty game of politics just as the rest of those bad ones out there. She’s not there to do the right thing. She’s out there for herself and doesn’t care on who she hurts. Do you think that such a person is trustworthy or deserves a second chance? She is not as innocent as anyone thinks she is, or she poses to be.

      Yes, the laws regarding campaign change a lot but the Clerk’s Office should and must be able to keep up with them since that office is the election official of the city. Yes, there are laws for each jurisdiction regarding elections

      As much as the office asks or consults other sources such as the City Attorney’s Office, the buck stops at the City Clerk’s Office. The CMO is NOT involved in elections, so it is moot and incorrect to blame an office that doesn’t even see a single campaign filing.

      I feel sorry about the entire situation. Why? People such as Manh Nguyen unfairly got so much of the brunt of this (or a series of) mistake done by the Clerk’s Office because he and his campaign folks followed bum information. Other people who probably knew the law better than they pose themselves took advantage of that weakness and reported incorrectly. And there are others who are running a fair and clean campaign. All of them got affected due to these glaring mistakes.

      The ones who paid most heavily are the ones who are doing their best to do the right thing from the start. They get branded as thieves and cheats along with the rest of them. Public trust is destroyed. All of this mess ending in a mere slap on the hands to the one who made these messes.

      I do hope for the sake of the City of San Jose that this gets all straightened out.

  2. People, wake up! The whole damned system is broken. Sure, go after the Clerk, but where’s the CMO and the City Attorney in all of this???

    Why is the Clerk’s office dispensing legal advice in the first place?

    Why are there two sets of campaign finance laws instead of one?! Who is responsible for who here?!
    And where is the outrage for the incompetence/dysfunction in the Finance and Planning Dept???!

    Lastly, instead of conducting another audit, maybe the Mayor and the Council should actually read and implement the existing audits for the departments that are collecting dust on their book shelves!!!!!

    Shame on you Liccardo – picking on hard working employees without considering whether or not they have the best tools to begin with. You’ve been at City Hall for over eight years, only now you recognize a problem???

    • “Why is the Clerk’s office dispensing legal advice in the first place?”

      My thought, exactly. How can he even fault her for this when she is NOT an attorney and thus not well versed in the law, in the first place? I say shame on HIM for jumping all over her for something that should not have ever been her responsibility.

      • Well said So So Interesting.

        Yep. Maybe Liccardo should have gone to medical school instead of law school. Any doctor will tell you simply cutting off limbs doesn’t heal the patient.

        But then again, he did go to Harvard so he should know better – the system is broken not the people. Fix the system!

  3. It is unconscionable to serve up City Clerk Toni Taber as a sacrificial lamb in San Jose’s little Advicegate mini-scandal. She is not a lawyer, and therefore she should not be expected or required to give legal advice regarding election laws, or any laws for that matter. However, Mayor Sam is a lawyer. Reliance on the advice of Ms. Taber, even though she is not a lawyer, has been pled by the mayor and several council members who have admitted to the same violation for which only Manh Nguyen has been fined. Since they have all admitted to the same violation, fundamental fairness requires that either all of them be fined or Manh Nguyen’s fine be rescinded. The City Attorney’s clients are the City of San Jose, the Mayor and Council, City Boards, Commissions, and Officers, and City employees while on City business. SJ City Charter, Section 803. Under that section, candidates for office are not clients of the Office of the City Attorney. To make candidates for office clients of the City Attorney would require a charter amendment, which would be ill advised. I am quite sure the City Attorney’s office is not the right choice to give election law advice to candidates in the future.

    • I’ve been saying this for years…. the city attorney has been consigliere to the people occupying the Council and mayor’s office for years. He has been dispensing all sorts of legal advice to those people’s campaigns for public office and even was the “source” of the legal advice that Councilman Sweatpants used to justify stealing campaign signs.
      It’s the City Attorney’s office that needs an audit!

  4. Does the state’s new equal pay legislation apply to public employers? If it does, there is no need for local legislation. If it does not, why not? What public entities lobbied against inclusion of public employees in this protection? Start digging Josh & Jenn.

    • Could we examine the rise of independent expenditure committees under Taber?

      The violations of gift laws?

    • Why would public entities need to be included? Most if not all employees even the elected here in SJ and their appointees are members of bargaining units that negotiate pay and benifits for all members of the unit…
      I think this is why we don’t hear female firefighters and police officers and librarians and attorneys whining that they are paid less than their male colleagues.

      Another reason why I wonder why this law is needed in the private sector is because we have been told time and time again that private sector employees are the real rugged individualist types… the ones with the best education and best skills and can-do attitudes! Private sector employees have all the marketable qualifications that make them employable anywhere in any line of work for top dollar! No need for the job security and guaranteed pay, benifit, pension packages that the typical lazy, ignorant, greedy public employee is dependent on… a private sector employee who learns that a coworker doing similar work but is being paid more can simply take his or her self to a new employer and be paid what he or she is truely

  5. Toni Taber is being used as a political scapegoat. The law is very clear on these issues. The City Attorney has the sole responsibility to provide advice, not the City Clerk. The clerk’s duties are strictly limited to those specified in the city charter (see below). The clerk has a responsibility to run the elections, not manage the candidates questions about law.

    Even when you look to state law, informal advice is just that, informal. See FPPC website: “Advice does not provide immunity under Government Code Section 83114 and does not constitute legal advice or alter any legal right or liability”

    This is not fair at all to Toni Taber. And today’s Rules Committee memo reads as if everyone at city hall is unaware of the charter and municode.

    Municode 12.05.080 – Formal written advice from City Attorney.
    Any person may request the city attorney to provide written advice with respect to the person’s duties under the provisions of Chapter 12.05 and Chapter 12.06. The city attorney must provide the advice within twenty-one working days of the request, provided that the time may be extended for good cause. It shall be a complete defense in any enforcement proceeding before the elections commission, and evidence of good faith conduct in any other civil or criminal proceeding, if the requestor, at least twenty-one working days before the alleged violation, requested written advice from the city attorney in good faith, disclosed truthfully all the material facts, and committed the acts complained of either in reliance on the advice or because of the failure of the city attorney to provide advice within twenty-one days of the request or such later extended time.

    (Ord. 28660.)

    Charter SECTION 804. Office of City Clerk.
    The office of City Clerk is hereby established. The City Clerk shall have the following
    powers and duties:
    (a) Attend all regular and special meetings of the Council, unless prevented by
    illness or physical incapacity or unless his or her absence has been authorized
    by the Council; and keep an accurate record of the proceedings of the Council;
    (b) Keep a record of all ordinances of the City, and of all written resolutions
    adopted by the Council, in such manner that the information contained therein
    will be readily accessible to the public. To each ordinance contained in such
    record he or she shall annex or attach his or her certificate stating (1) that it is
    the original copy of such ordinance or, if the ordinance contained in his or her
    record is not the original copy, that it is a true and correct copy of the ordinance,
    and (2) if the ordinance was one required by law to be published, that it has
    been published pursuant to law;
    (c) Keep all other records of Council proceedings and of his or her office in such
    manner that the information contained therein will be readily accessible to the
    public until such time as any of them are destroyed in accordance with State
    law;
    (d) Be custodian of the seal of the City;
    (e) Administer oaths or affirmations and take affidavits and depositions in
    connection with or pertaining to City affairs or business; and certify copies of
    official records of his or her office;
    (f) Have charge of all City elections;
    (g) Be responsible for the publication of all official advertising of the City; and
    (h) Perform such other duties consistent with this Charter as may be required of him
    or her by the Council.
    24 Printed 02/13
    Except as may be otherwise provided by the Council, the City Clerk shall be under the
    direction and supervision of the Council.
    Amended at election June 7, 1994

  6. It is a misdemeanor to practice law without a license from the State Bar. Court clerks routinely tell patrons that they cannot dispense legal advice and direct them to the County Bar Association’s Lawyer Referral Service.

  7. It’s hypocritical and disingenuous for Mayor Liccardo to say the candidates may need to hire consultants to interpret campaign funding laws that are so complicated. He is among the incumbents who drafted these very same additions to the campaign funding reform rules. If the laws they themselves authored are too complicated to follow and understand a few years later, then we either need simpler laws or more sophisticated elected officials with the capacity to understand and comply the laws they have voted to enact.