Routinely over the years, land developers across the country have contributed to the campaigns of candidates for local elective offices having key responsibilities for the developers' projects. On being elected or reelected, the officeholders sometimes approved questionable projects.
That pattern tells "much of the story of the destruction of the American countryside," says Nicholas C. Yost, general counsel of President Carter's Council on Environmental Quality.
In California, however, an appeals court tore up the pattern in March, with a statewide ruling involying more than $10,000 in campaign contributions to 13 of the 15 members of the Los Angeles City Council from a developer and the engineering and law firms it retained to represent it before the council and city agencies.
Although the contributions were perfectly legal, Judge Bernard S. Jefferson wrote for the 2-to-1 majority, they created an appearance of bias and unfairness that disqualified the recipients from voting on the developer's proposal to build 123 houses on a tract in the rugged Santa Monica mountains.
Yost, in a phone interview, termed the decision "extrordinarily significant." Los Angeles Deputy City Attorney Anthony S. Alperin, while finding "fabulously interesting" implications in the ruling, said the city would seek a rehearing and was prepared to carry the issue to the California Supreme Court.
The case arose when citizens' groups, mainly citing environental grounds, mounted a campaign against the proposed housing development. They contended that the developer, California Western Concepts (CWC), would have to undertake extensive grading and fill that would severely alter the mountain terrain.
At a hearing in April 1977, the city council, sitting as an administrative tribunal, approved the development despite the objections. The caimpaign contributions had been made during the preceding 27 months by CWC, Spindler law firm of Latham & Watkins, and members of the engineering and law firms.
All of the eight council members who voted for approval had received contributions. Three recipients voted against it, and two of them were absent. At the time, the citizens' groups knew of the contributions, which were listed in public records, but don't make an issue of them.
The citizens' groups then carried their fight to Superior Court, where they argued that the contributions had created such an appearance of bias and unfairness as to deny them a "fair trial."
Judge Campbell M. Lucas disagreed. No brilbery or conflict of interest having been shown, he said, it was not improper for the councilmen to have voted.
The Court of Appeal reversed with an opinion saying that the question wasn't whether the contributions had biased recipients in favor of the developer.
"Bias in fact or bad faith on the part of the voting council members is not the test of whether petitioners (the citizens' groups) were denied a fair hearing," Judge Jefferson wrote for himself and Judge Arthur Alarcon.
Rather, he said, the test is this one, as stated in 1966 by the 6th U.S. Circuit Court of Appeals: "It is fundamental that both unfairness and the appearance of unfairness should be avoided."
In the CWC case, Jeffrson wrote, "it is abundantly apparent that the vote by the . . . City Council is lacking in an 'appearance of fairness' and must be declared void."
In the dissenting opinion, Judge Robert Kingsley emphasized that the California Political Reform Act "not only implies but sanctions the giving and receving of campaign contributions" and looks to public disclosure of them to deter corruption.
"I conclude that this court should not, on its own, impose restrictions that the people did not see fit to impose," Kingsley said.
Another dispute between the majority and the dissenter concerned a requirement that the city council act on applicatins such as CWC's. The council couldn't act, for lack of a quorum, if all but two of its members were to be disqualified.
Kingsley said he wouldn't allow CWC's application to be kept "forever at a stalemate." But Jefferson disagreed, on the ground that the council members had disqualified themselves by their "own acts and conduct."
In seeking a rehearig, the city points out that the Political Reform Act requires an official to disqualify himself in cases where his financial interests might be affected by "income"-but explicitly excludes campaign contributions from income.
Deputy City Attorney Alperin also stressed that Jefferson laid down no guidelines. Thus, he said, there's no clue as to whether a council member would have to disqualify himself if, say, he received a mere $10 contribution 10 years ago.
He also held out this Machiavellian possibility: knowing that Councilman X would vote against a project, a developer, before announcing it, could remove X from the picture simply by contributing to his campaign treasury.