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.”