Proposal to bar police union endorsements, donations, draws ethics panel’s skepticism

A State Bar ethics committee charged with raising questions about a proposal to prohibit elected district attorneys from accepting political or financial assistance from law enforcement unions raised a host of concerns during a meeting Friday about its constitutionality and whether it would conflict with a state law.

The Committee on Professional Responsibility and Conduct, the State Bar's legal ethics experts, was drafting questions for public comment scheduled next month on the proposal by three current district attorneys and former San Francisco County District Attorney George Gascon, who is in the midst of a campaign against Los Angeles County District Attorney Jackie Lacey in a November runoff election.

Stephen M. Bundy, a Berkeley attorney who is the committee's chair, raised concerns about the proposed ban not only of campaign contributions from law enforcement unions but also of endorsements.

"We can't regulate the endorsement, can we?" Bundy asked during a videoconference. "That's a much more grave free speech issue."

Committee members raised concerns about whether the proposal -- signed by Gascon, San Francisco County District Attorney Chesa Boudin, Contra Costa County District Attorney Diana Becton and San Joaquin County District Attorney Victoria M. "Tori" Salazar -- would pass constitutional muster or usher in more expansive restrictions on who can contribute or endorse in district attorney campaigns.

"This request is so narrow and it only addresses support from law enforcement employee unions," said Kendra L. Basner, a committee member and attorney with O'Rielly & Roche LLP in San Francisco. "Whatever we decide will affect more than just this union. Should we look at it from a broader perspective?"

The district attorneys' proposal, signed June 1 in the wake of nationwide protests following the police killings of George Floyd and Breonna Taylor, urged a new professional responsibility rule "to reduce the possibility of political influence from law enforcement unions over prosecutorial decision making."

They argue the political clout of police unions creates a conflict of interest when a district attorney is considering whether to investigate and prosecute law enforcement officers over use of force allegations. The financial and political support of those unions, which represent officers in investigations, "should not be allowed to influence that decision making," they argued.

"In order to cure this conflict, or the appearance of a conflict, the rules must therefore explicitly preclude elected prosecutors -- or prosecutors seeking election -- from seeking or accepting political or financial support from law enforcement unions," the three district attorneys wrote.

In Los Angeles County, law enforcement groups donated almost all of the more than $2 million to two outside committees supporting Lacey's re-election, according to the Los Angeles Times. Gascon criticized that.

Lacey, in a statement last month, defended accepting labor union money and compared the police organizations to teachers' unions that contribute to school board campaigns.

Bundy, the ethics committee chair, was focused on direct donations to candidates' campaigns and not on the outside committees. He wondered if a proposed ethics rule would conflict with a state law, AB 571, scheduled to go into effect in January that limits but allows contributions.

David C. Carr, a San Diego attorney on the committee, wondered how ethics rules could address some issues that might have an appearance of impropriety, given the inherently close working relationship between police departments and district attorney's offices.

"There's sort of a political aspect here that doesn't fit into the rules very well," he said.

After receiving public comment on the proposal, the committee is to report back to the State Bar Board of Trustees in November, Bundy said.