The San Mateo County 1998 Grand Jury received a complaint shortly after the June 1998 election alleging that Controller-Elect Tom Huening did not possess the qualifications for the office of Controller set forth in the San Mateo County Government Code. The complainant provided the Grand Jury with a copy of the qualifications.

The 1998 Grand Jury reviewed the complaint, finding that both the qualifications submitted by the complainant and the "Candidates Guide" issued by the County Elections Division in December 1997 for the June 1998 election did not include one of the alternative qualifications, the holding of "a certificate issued by the Institute of Internal Auditors showing the person to be a designated professional internal auditor, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance." This qualification was added in 1995 by the State Legislature as an amendment to State Government Code §26945. Because County Code §2.44.010 adopts the qualifications for Controller set forth in State Government Code §26945, the County Counsel held that this 1995 amendment automatically became a part of the County Code.

The San Mateo County 1998 Grand Jury requested that the San Mateo County 1999 Grand Jury investigate problems which may arise from:

1. Incomplete, inaccurate and/or obsolete published material and instructions issued by various agencies within San Mateo County, including but not limited to the offices of Assessor-County Clerk-Recorder and election officials for cities, special agencies, joint power boards and all other public agencies, documenting the qualifications and procedures needed for election to all public offices within the county.
2. Insufficient legal review, instructions and advice by the offices of County Counsel and legal counsels to cities, special agencies, joint power boards and all other public agencies, apprising election officials of any new and modified statutes and ordinances affecting the election to all public offices within the county.

In response, the 1999 Grand Jury conducted several interviews and reviewed pertinent materials.

The applicability of the 1995 amendment to the State Elections Code has been disputed. The State Legislature first provided qualifications for county Controller in 1957 in §26945. At the same time, it also added §26946 which made the applicability of §26945 of the State Elections Code contingent on its adoption by the Board of Supervisors of any county wanting to do so. San Mateo County did so in 1957 when it passed ordinance 1261 adding §2.44.010 of the following County Code:

Qualifications necessary.

The provisions of article 4, chapter 4, part 3, division 2, of title 3 consisting of §§26945 and 26946 of the Government Code as added by Chapter 1543, Statutes of 1957 be and they are hereby adopted and made a part of this Ordinance Code."

The 1995 State Legislature also added §27000.7 to the Elections Code to provide qualifications for county Treasurer. It also made those changes contingent on their adoption by the Board of Supervisors of any county wanting to do so in §27000.6. The San Mateo County Board of Supervisors has not adopted these changes.

In 1997, the State Legislature made further changes in the qualifications for county Controller by amending §26945. Except for a minor change, §26946 continued to state that adoption of §26945 depended upon county action.

In mid-1997, Huening submitted his qualifications for Controller to the Assessor-County Clerk-Recorder who in turn requested an opinion from the County Counsel. The County Counsel responded by memo dated July 8, 1997, deeming Huening qualified under the internal auditor provision.

The County Counsel provides legal advice to certain County departments, school districts, and special districts when requested. It serves the office of Assessor-County Clerk-Recorder. The Elections Division of this office keeps abreast of changes in State law affecting elections by sending representatives to a State-wide meeting in December after the close of each legislative session. In December 1997, the Elections Division published the "Candidates Guide" for the June 1998 election without including the changes in qualifications for Controller enacted by the State in 1995 and 1997. The County Counsel and the Deputy County Counsel assigned to the Elections Division did not review the "Candidates Guide" prior to publication. The Elections Division was either not aware of or overlooked the County Counse's memo of July 8, 1997, and the 1995 amendment to State Code §26945.

The Elections Division was under the impression that any amendment to this Code section would have to be enacted by the Board of Supervisors to make the amendment effective for San Mateo County.

When one of the candidates for Controller questioned the qualifications for Controller listed in the guide, this question was referred to the County Counsel. He advised the Elections Division to issue a letter to the two prospective candidates incorporating the internal auditor provision as one of the qualifications for this office. This was done on January 12, 1998. County Counsel continues to conclude that the 1957 adoption by the Board of Supervisors governs the adoption of the 1995 changes.

In December 1998 Gerry Trias, the incumbent Controller and losing candidate in the election of June 1998 filed suit against Tom Huening. Among other matters, the suit alleges that the internal auditor provision in the 1995 State Legislation was not incorporated into County Government Code 2.44.010 because of the failure of the Board of Supervisors to adopt specifically the State amendment. It asks that the court declare Tom Huening ineligible for the office of Controller. The case is currently scheduled to be heard in March 2000. The decision may not resolve the issue of the internal auditor provision if the case is decided on procedural or other grounds, and may be appealed.

Recommendation 23

The San Mateo County 1999 Grand Jury recommends that the Assessor-County Clerk-Recorder, prior to the issuance and dissemination of all election information to the public, such as the "Candidates Guide," shall have such information reviewed and approved in writing by the County Counsel.

Recommendation 24

The San Mateo County 1999 Grand Jury recommends that after a final decision has been rendered in the Trias v. Huening case, the San Mateo County Board of Supervisors review the 1995 and 1997 State legislation affecting the offices of Controller and Treasurer and by official action clarify or enact all changes as they deem appropriate.

The San Mateo County 1999 Grand Jury recommends that the San Mateo County 2000 Grand Jury monitors the status of Controller qualifications and the accurate dissemination of candidate qualifications published in election information.