Sources: Ethics Complaint Filed against Dave Cortese Campaign

Dave Cortese’s decision to opt out of the voluntary expenditure cap in the San Jose’s mayor’s race isn’t necessarily a done deal, despite a judge’s ruling last week. Sources confirmed Monday that a complaint has been filed with the city's Ethics Commission against Cortese's campaign, and questions are now being raised about whether he will have to return money that was collected immediately following the June 3 primary.

Cortese initially filed a Form 500 for the mayoral runoff on June 17, noting that he would accept the voluntary expenditure cap for the Nov. 4 election. The voluntary spending cap for the mayor’s race in each election cycle this year is set at $794,342.68. By accepting the cap, a candidate receives a diamond designation next to their name on the ballot. It’s very fancy.

But on July 25, Cortese filed an amended Form 500, stating he would opt out of the spending cap, similar to that of his opponent, San Jose Councilman Sam Liccardo, who filed his own form June 4.

City officials filed a complaint in Santa Clara County Superior Court on Aug. 4, challenging Cortese’s ability to amend the form at such a late date. San Jose’s election code states that candidates must file a Form 500 within 14 days of a primary, which occurred June 3 this year.

Judge Beth McGowan ruled in favor of Cortese, noting that an email City Clerk Toni Taber sent out to all candidates in the San Jose general election essentially opened the door to amended filings.

“The City Clerk waived the fourteen-day deadline for Petitioner to opt-out of the City of San Jose's Volunteer Expenditure Limits Program by inviting Petitioner, through an e-mail dated July 18, 2014, to submit a Form 500 for the run-off election,” McGowan wrote. “Accordingly, Petitioner's Cross-Petition for Writ of Mandate is granted solely on this basis. The City Clerk is ordered to accept Petitioner's amended Form 500, dated July 24, 2014 and received July 25, 2014. The Court also finds that the public is not harmed in this case by the City Clerk accepting Petitioner's amended Form 500.”

While that counted as a win for Cortese, he still may have violated the city’s election code.

His last campaign disclosure filing (Form 460), which covers the first half of the year through the end of June, appears to show he inappropriately raised $9,825 between June 3 and June 16. According to the city clerk's office, a candidate is not allowed to start raising funds for the runoff until filing a Form 500, which Cortese waited to do until June 17. Taber confirmed with San Jose Inside that the contributions reported between June 3-16 do not comply with city election code.

Cortese could have a bigger situation on his hands, though.

His amended Form 500 didn't arrive to the city clerk's office until July 25. It’s not known if that should be the actual starting date for his campaign to resume fundraising after the primary. If so, it would be a major blow to Cortese's cash flow.

A close inspection of his last Form 460 on file shows that Cortese raised $68,990.14 from June 3 through June 30. That would be a lot of money for him to return and then ask for a second time—and the total wouldn’t even include money hauled in through most of July.

Cortese, who is noted as his own treasurer on his campaign forms, responded to San Jose Inside's request for a phone interview with the following text message:

"To my knowledge we were in compliance with all reporting and disclosure rules at all times," he said. "The city brought it's [sic] case to court and the judge ruled in our favor. I cannot really add or subtract anything from the court documents."

When informed of the clerk's take on the June 3 to June 16 contributions, Cortese sent a follow-up message pointing to election code 12.06.290, which focuses on the "Campaign contribution collection period." This form, dated Feb. 16, 2012, notes that the "campaign contribution period for the run-off municipal election for council or mayor shall: 1. Begin on the day after the primary municipal election for that office."

However, the latest Form 500 instructions on the city's website, dated November 2013, state: "Each candidate shall file a separate expenditure ceiling statement for the primary election (or special primary election) and the general (or special) run-off election with the city clerk, indicating whether or not he/she will participate in the voluntary campaign expenditure limits program before accepting or receiving any campaign contributions." (The city's emphasis was underlined text, but that is not an option on our website.—Editor)

Cortese did not respond to a text message noting this city document, as well as an additional request for a phone interview. Liccardo declined comment for this story.

Taber told San Jose Inside she would be unable to confirm or deny if a complaint has been filed against Cortese's campaign with the city’s ethics commission, but when asked about the status of Cortese’s campaign filings, she said, “It is something that I am looking at right now.”

Josh Koehn is a former managing editor for San Jose Inside and Metro Silicon Valley.

23 Comments

  1. There is so much blatant hypocrisy from the Cortese camp in this piece. First they attacked Liccardo for opting out of the spending limit, then they decided they should do the same. Steve Kline makes an accusation with no basis in reality that Liccardo fundraised before he was allowed to, and after the claim is dismissed by the FPPC Cortese undeniably did just what his supporters falsely accused Liccardo of doing.

    • Liccardo’s done the same? The FPPC threw out the complaints against him and noted that they were totally unsubstantiated. I know that people don’t tend to honor the whole “innocent until proven guilty” ideal, but you could AT LEAST respect “innocent after proven innocent”.

      On the other hand, there’s no need to invent facts or connect dots to arrive at the conclusion that Dave broke the law- it’s plain as can be.

        • So Robert, here’s the thing; every time you offer a comment, I think people take you less seriously.

          Enjoy irrelevance!

          • Your very comment contradicts your statement, if I was irrelevant, then why respond to me?

            Also gotta look at the context, outside of a few folks that follow politics, this site isn’t even on the radar of 99% of voters. I just come here for the laughs.

          • Good point Robert…..these pinhead thread squatters think that commenting on SJI is somehow making a difference lol just anxiously waiting for something to take credit for….but keep losing lol

      • If there was nothing to the complaints then went did Sam’s chief proclaim “…that’s what winners do” in response to questions about Sam soliciting/raising funds before the legally allowed start date? Why did Sam return money he acknowledged was solicited and/or collected before the legally authorized date?

        • Your question doesn’t even make sense. What does that stupid soundbite have to do with the veracity of the FPPC ruling? If you’re saying that she said “cheating is what winners do”, you’re either lying or your mind has been warped by your biases to twist her original statement.

          • Carthagus: The following is the opening paragraph from an SJI article that you commented on but did not dispute. Does it mean something different than what it says?

            “Sam Liccardo’s campaign admitted Friday that a violation occurred in the councilman’s collection of contributions for the San Jose mayor’s race. Ragan Henninger told San Jose Inside that a supporter’s email announcing a fundraiser before the campaign window began is “totally a violation” and “we’re going to return the money.”…”

            http://www.sanjoseinside.com/2014/02/14/2_14_14_sam_liccardo_campaign_fundraising_violation_money/

            The FPPC ruled the way it ruled and cleared the campaign. Why did the Campaign admit wrong doing? Why did it return the money? It didn’t do anything wrong right? Is that another thing that winners do? Admit guilt when innocent?

  2. When candidates for elected office enter into the fray of the democratic process, a process that is fraught with stringent disclosure rules and deadlines, it is prudent for the candidate not to act as their own Treasurer.

    A controversy has arisen from an interpretation or misinterpretation as to the reporting date in time that defines when the “flood gates of money raised” was opened.

    The City of San José’s position on the aforementioned matter [114CV268872] is articulated succinctly in the well constructed sentence, “However, the City Clerk cannot accept the untimely filing of a Form 500.” (Page 5, Lines 19-20)

    While I am not an apologist for the Cortese campaign, I personally see no “skullduggery” here. As to the missed “deadlines” for timely filing, Mr. Cortese will have to explain himself.

    It is my hope and prayer that the next Mayor for San José will take the necessary and thorough action(s) to reduce the complexity of the “Battle of the Forms” without negatively affecting the transparencies of full and timely disclosure.

    Good reporting JK!

    David S. Wall

  3. If his friend Laurie Smith doesn’t have to return excess money collected for a run-off election that never happened, why should he have to return any for something so simple as changing his mind about campaign money? Come one people, it’s just money, we want it out of elections unless it about our candidate spending it, right?

  4. YO! Cousin Robert Michael As I understand your “logic”: Liccardo broke the law and got away with it, so cousin David should be able to, as well.

    • It’s a strange day Johnmichael. Robin Williams dies a year or two after making a movie about a son who dies from auto erotic asphyxiation, but then staged it to look like a straight suicide. I’m starting to think more about this, and less about local politics.

        • I’m assuming you probably never saw the movie. It was never in theaters, only on demand/on netflix only.

          http://www.imdb.com/title/tt1262981/

          I just wonder if it’s life imitating art. Not trying to be tasteless, Williams did make the movie, and the circumstances coming out about his death are starting to point towards this being an accidental, yet humiliating death, not a suicide.

  5. Liccardo and Cortese each want to be the next mayor of a small town with a million people living within its borders. Yet, neither can learn and follow the campaign finance rules. No wonder this town is so FUBAR’d

  6. I am having trouble understanding this. Cortese is facing a complaint about campaign disclosure rules. However, Magadelena Carrrasco got a waiver from the City Clerk over a fine, and the committee that supporting her, using the consultant of her ex husband, a campaign treasurer who has been cited by the FPPC, and Bobby Lopez can get 100 grand from a committee who did not disclose their sources at the City Clerk without penalty.

  7. Neighborhood Empowerment Coalition which spent 100,000 dollars for the effort to support Carrasco has never filed a single document with Taber. But she does nothing.

    • when does Shirakawa’s trial for the illegal flyers for Campos that criminally impersonated Carrasco start? That pesky DNA and all those I plead the fifth claims should have Campos occupied. Someone hurry and get that guy a job flipping burgers because the amount of whining he does here for being the only incumbent in SJ history to lose outright in a primary is pathetic.

      She beat you. Eastside public thinks you sucked as a councilman. Work on your resume because listing MACSA, Aide to felon Shirakawa and now as the ousted and under investigation City Council guy you don’t have much to be proud of.