May 06, 2004
Is Francesconi Violating City Ethics Guidelines?
Campaign Uses Constituent Email Addresses For Campaign Communications
In the comments to a previous item on the Francesconi campaign, a reader writes:
I recently received a random "e-news" letter from Jim Francesconi. I was surprised and wondered how he had gotten my email address onto his list of "supporters". I called his office. It turns out, that awhile back I had emailed all my city commissioners to urge them to vote on something I felt was important to me.
In other words, Francesconi's political campaign is mining the email addresses of Portlanders who contacted his City Hall office about City business. Now, we can all probably agree that this is, well, slimy. After all, sending one's elected official email about a City issue is not the same as requesitng to receive information about their election campaign.
So, okay, it's slimy. But is it any sort of violation?
This might depend, it would seem, in part on just how these addresses were gathered. For example, ORS 269.432 (scroll down) reads, in part:
260.432 Solicitation of public employees; activities of public employees during working hours. (1) No person shall attempt to, or actually, coerce, command or require a public employee to influence or give money, service or other thing of value to promote or oppose any political committee or to promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder.
(2) No public employee shall solicit any money, influence, service or other thing of value or otherwise promote or oppose any political committee or promote or oppose the nomination or election of a candidate, the gathering of signatures on an initiative, referendum or recall petition, the adoption of a measure or the recall of a public office holder while on the job during working hours. However, this section does not restrict the right of a public employee to express personal political views.
So, in this respect, if a public employee was involved, and if a list of email addresses is considered "a thing of value" (you'd have to work hard to convince us that it's not), then there's a potential violation of state campaign laws. Obviously, we can't assert that this is the case, but clearly the question ought to be asked.
But even if it's not a violation of state campaign laws, there's another problem: The practice appears to violate the ethics guidelines contained within City Code, specifically provisions in 1.03.020:
1.03.020 Trust.
The purpose of City government is to serve the public. City officials treat their office as a public trust.
A. The City’s powers and resources are used for the benefit of the public rather than any official’s personal benefit.
...
H. City officials devote City resources, including paid time, working supplies and capital assets, to benefit the public.
I. Political campaigns are not conducted on City time or property.
One would think that data-mining the email addresses of one's constituents as an elected official in order to create a mailing list for one's election campaign represents a rather clear violation of these ethical guidelines, regardless of whether or not the specifics of how the addresses were gathered also violates state campaign laws.
Now, 1.03.020 also provides the following defintion of "ethics" for the purposes of this part of City Code:
1.03.010 Definitions.
...
B. "Ethics" means positive principles of conduct. Some ethical requirements are enforced by federal, state, or local law; others rely on training, or on individuals’ desire to do the right thing. The provisions of this Chapter which are not elsewhere enforced by law shall be considered advisory only.
So it is, of course, possible that what the Francesconi election campaign and the Francesconi elected office is colluding to do here is a violation of something that is "considered advisory only."
Nonetheless, it is clearly a violation of what is being at the very least advised by the City's ethical guidelines for elected officials. And that, in and of itself, and regardless of its legality or illegality, makes the practice a foul play.
Disclosure: PORTLAND COMMUNIQUE accepts political advertisements, and currently runs ads from the Busse, Francesconi, and Potter campaigns.
Comments (17)
Keith on 06 May 2004
I can't vouch for the reader's experience, but I'd be kind of shocked if that were the case -- though I don't know all the particulars of use of such information, my personal experience is much different. I live in Francesconi's district, and emailed him quite a bit over the past year on an issue that I was concerned about (and received quite a few emails back), and I have not received one email newsletter, campaign solicitation or any other communication, except for the ones related to my concerns.
So, if he isn't sending solicitations to me, a constiuent who has emailed him frequently, then I would question if he was data mining any contact to the city made by residents, and using it for his campaign.
I hope you get your answers on this, it's amazing to see what the depth and breadth of issues you cover -- while my hometown paper seems so daftly unable to go after any issue except same-sex marriage these days. (sigh)
Kari Chisholm on 07 May 2004
B!X - you're missing the critical element in the story.
I don't work for the Francesconi campaign, but I'll tell ya how this works... All emails with a public official are public record.
As public records, they're available with a public records request. For example - In the past, various news outlets have received archives of email correspondence and then written stories about various scandals, controversies, etc.
Now, since they're public records, any member of the public can make such a request. And, yes, that includes his campaign - which is, after all, a completely separate private organization.
E-mail isn't ever private. But it's definitely not private when it's sent to a public agency or elected official.
Kari Chisholm
Mandate Media
Bob R. on 07 May 2004
I, too, received the Francesconi email in question.
I am on a few different city-related mailing lists and have contacted several agencies, so I can't really guess where they got my email.
- Bob
hilsy on 07 May 2004
Some comments relating to the first two comments. First, we (as in Portland residents) are all in Francesconi's "district" because city commissioners are elected on a city-wide basis.
Second, sure those emails may be available through a request. The question then should be whether the Francesconi campaign acquired those email addresses through such a request, or did they just feel they could use them without having to go through such a request.
Keith on 07 May 2004
My apologies, I don't yet understand the intricacies of the Portland political structure -- you're no doubt correct. As I recall I contacted City Hall first, and they directed me to Francesconi. I assumed it was because of where I lived, of course it makes sense it could have been because of the issue itself. Where's the Portland civics 101 website? :)
The One True b!X on 07 May 2004
As public records, they're available with a public records request. For example - In the past, various news outlets have received archives of email correspondence and then written stories about various scandals, controversies, etc.
Of course, they don't do this in order to then send the emailers in question solicitations to subscribe to their newspaper, though.
Now, since they're public records, any member of the public can make such a request. And, yes, that includes his campaign - which is, after all, a completely separate private organization.
And here I'd raise the same question that hilsy did. I'm willing to wager that they didn't file a public records request to obtain these addresses, but simply picked them directly off of the City Hall office computers.
As I said, I can't tell you whether any campaign laws were broken (that would depend upon use of City Hall staff for doing this). But surely just grabbing and using them still violates the City's ethical guidelines for public officials.
The One True b!X on 07 May 2004
A further interesting and theoretical question, actually: Is it the email as a whole that's a public record, or can just the email address be considered a public record?
If I were to submit a public records request to a City office requesting just the names and addresses of every person who ever contacted them through the regular mail, would they give me just that information? Or would they say, "We're sorry, you can't just ask for that, you'd have to ask for all of the letters themselves?"
Noah Brimhall on 07 May 2004
I decided to look at the City Code on the issue of public records.
Here is how Chapter 3.76.010 (http://www.portlandonline.com/index.cfm?&a=14964&c=28448) defines a public record:
"B. "Record" means any document, paper, book, letter, drawing, map, plat, photograph, photographic file, motion picture film, microfilm, microphotograph, exhibit, magnetic or paper tape, punched card, or other document of any other material, regardless of physical form or characteristic, developed or received in connection with the transaction of official business and preserved or appropriate for preservation by an agency as evidence of the organization, function, policies, decisions, procedures, operations or other activities of the City of Portland or because of the informational value in them. The term does not include library and museum material developed or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved solely for convenience of reference, or stocks of publications."
Since a e-mail is esentially a letter of electronic form recieved in connection with the transaction of official buisness, then it meets the definition.
Chapter 3.76.090 (http://www.portlandonline.com/index.cfm?&a=14972&c=28448) regards public access to records:
"All records created or received by the City, except for those excluded by law, are available for inspection and copying by the public. The City may require that records use occur during certain business hours and at specified locations, and may charge fees to recover the cost of retrieval and copying."
This is pretty vague, but does not exclude the requesting of addressing, but it also does not say that the city has to give you just the addresses.
I had hoped that there might be some answers in the city code, but it looks like the only answers that would help would come from the city or the Francesconi campaign.
I agree with b!X that it seems doubtful that the Francesconi campaign actually filed a public records request.
The One True b!X on 07 May 2004
Well, I never doubted that the emails themselves were public records under the law, but thanks for thinking to go pull the definition, which didn't even occur to me.
The One True b!X on 07 May 2004
For what it's worth, it's likely that this practice is not something the Francesconi campaign pulled out of thin air.
Sarah Ames on 10 May 2004
Jim Francesconi's office got me onto their email list when I sent them a comment about the county income tax. I've gotten three or four email newsletters since then -- not on any regular schedule. So while you might raise questions about whether the SUN Schools update is timed politically, it's entirely consistent and legal for Francesconi's office to do this.
I'm helping with Nick Fish's campaign for the City Council against Sam Adams, and a similar issue has come up there. People have come up to us wondering how Sam's campaign got their email -- they'd been getting his campaign updates regularly. In his 11 years in the Mayor's Office, Sam collected a huge number of emails from constituents. When he left, he asked the City Attorney if he could take the email list with him -- and got a verbal okay. The Mayor's new Chief of Staff recently told the Fish campaign that the email list was a public record, and for a fee to cover costs, they could get an electronic version to us, too. We didn't go for it.
The public records law is pretty broad. My only concern is that this sort of political use of government records will discourage citizens from contacting their elected officials -- the last thing we need in Portland right now!
The One True b!X on 10 May 2004
What SUN Schools update? I don't see anything here about a SUN Schools update, only things about campaign newsletters.
The One True b!X on 10 May 2004
I'm helping with Nick Fish's campaign for the City Council against Sam Adams, and a similar issue has come up there. People have come up to us wondering how Sam's campaign got their email -- they'd been getting his campaign updates regularly. In his 11 years in the Mayor's Office, Sam collected a huge number of emails from constituents. When he left, he asked the City Attorney if he could take the email list with him -- and got a verbal okay.
This irritates me. While I have no issue with anyone filing public records requests to obtain such information, it's entirely inappropriate for someone to simply assume ownership of such information without going through the same process other people would have to use in order to obtain it.
I guess the City Attorney's office, as much as anyone else, doesn't find it important that the City Code includes ethics guidelines. That's charming.
Don on 13 May 2004
I too received Jim's e-news and have for about 2 years now. If you would take the time to read the E-News that was sent to you, you will realize that it has absolutely nothing to do with his campaign. It has everything to do with his job as a City Commissioner. He is just trying to keep in touch with his constitutents.
He has been sending out these e-news for a few years now. Why has it all of a sudden become such an issue. Most of the Commissioners send out e-news, including Eric Sten and the Mayor. Why don't you bitch about them? Will you just let him do his job and also run for the office of Mayor. I'm amazed that he still wants to help our city. This man has nothing but compassion for all our citizens. He is the best man for the job and the most ethical.
If you allow Tom Potter to be Mayor you all will be so sorry. Tom has a history of starting things but never following through. He wouldn't know the first thing about balancing a budget. If the police union won't even endorse him, why should you. You are idiots and you will ruin our city by voting Potter in.
So go ahead and waste your time nick picking at Jim. If Potter becomes Mayor I will be the first one to go on record saying "I told you so!".
Don on 13 May 2004
You are all wasting your time and misinformed. This is how stupids rumors get started. Jim has been sending our e-news from his Commisioner's office for a couple years now. So does Eric Sten and the Mayor. It has absolutely nothing to do with the campaign. Go waste you time on something that really matters. If Tom Potter becomes Mayor, I will be the first person to tell you "you asked for it". He wouldn't know the first thing on how to balance a budget. He hated being the police chief and now he wants to be Mayor? It just does not make sense to me. You think the police have all the power now. Just let Potter in office. If you are black, I would advise to not drive.
The One True b!X on 13 May 2004
If you would take the time to read the E-News that was sent to you, you will realize that it has absolutely nothing to do with his campaign.
Not according to the person I know who received one. But more importantly, let's get to this bit of your second comment:
Just let Potter in office. If you are black, I would advise to not drive.
Yes, what this election cycle needs is more uncalled-for race baiting. Charming.
pdxkona on 14 May 2004
Even regardless of what the content was, for me it is in extremely bad taste to assume and then follow through on adding an email address to their e-news list, without prior consent, just because they recieved a query via email.