Taxpayers Schipske-Stout-Lejins-Weinstein File Sworn Complaint w/ Fair Political Practices Comm'n Alleging City of Long Beach Violated Political Reform Act With Materials Described As "Informational" That They Say Amounted To Campaigning For Measure M
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(July 12, 2018, 12:25 p.m.) -- Four Long Beach taxpayers have submitted a sworn complaint to the CA Fair Political Practices Commission (FPPC) alleging that the City of Long Beach violated CA's Political Reform Act by spending public funds for what the City claimed were "informational" materials that the complainants say amounted to campaign advocacy for passage of Measure M (City utility revenue transfer/diversion) on the June ballot.
The complaint. submitted on July 11 by Tom Stout, Diana Lejins, Dr. Joe Weinstein and retired Long Beach Councilwoman Gerrie Schipske, also includes an allegation that Mayor Robert Garcia, Vice Mayor Rex Richardson and City Councilmembers Suzie Price and Dee Andrews sent emails, texts and tweets on computers and cellphones allegedly paid for at government expense with messages advocating for passage of Measure M.
The four FPPC complainants co-signed the official ballot argument in opposition to Measure M. Mr. Stout [titles that follow for identification] co-founded the Long Beach Taxpayers Association. Ms. Lejins was the taxpayer-plaintiff in a lawsuit, in which Ms. Schipske served as co-counsel, that challenged the City's utility revenue transfers as violating Prop 218. [The City settled the lawsuit without admitting violation of Prop 218 but agreed to rebate millions of dollars to LB Water consumers collected under its challenged practice...and the City then sought voter authority to resume the practice under Measure M.] Dr. Weinstein, Ph.D., is president of Citizens About Responsible Planning. Ms. Schipske, an attorney, represented LB's 5th Council district for two terms (2006-2014).
The taxpayers' complaint
The complainants' filed complaint includes the following allegations:
[Complainants' allegations] The City of Long Beach violated the Political Reform Act by producing and mailing tens of thousands of copies of direct mail at government expense, titled "Common Questions and Answers on Measure M":
1. The direct mail pieces specifically were not "informational" in tone or contents as required, but in fact campaign pieces paid with government resources.
2. The information provided and the manner in which they were disseminated were inconsistent with any established practice used by the City to circulate information.
3. There are currently 259,839 registered voters or 147,579 households in Long Beach. The mail pieces were prepared by a direct mail consultant and mailed to only targeted (63,741 households) voters shortly before the upcoming election, which unquestionably constitutes campaign activity. If the pieces were truly "informational" they would have been sent to each and every voter in the City.
4. The pieces contained inflammatory language to present the City's position of support for passage.
5. When considering the style, tenor, and timing of these communications, these mail pieces can be reasonably characterized as campaign material and not a fair presentation of facts serving only an informational purpose.
More specifically, the direct mail pieces [attached to complaint] were not a fair representation of facts in as much the mail pieces:
1. Used inflammatory language by threatening to cut public safety, street maintenance, storm drains, parks, senior services, libraries and homelessness if the measure did not pass. The City council had taken no action to make these cuts nor produced any analysis indicating that these or any cuts would be made to services;
2. Misled voters by failing to disclose that the measure was a "tax" as defined by Proposition 26. The seriousness of the omission of this material fact is compounded by the mailing at the same time of pieces by "Mayor Robert Garcia Committee to Support Utility Transfer Measure M Committee" stating that the measure was "not a tax increase" [attached to complaint]
3. Misled voters that the transfer would be "of surplus City utility revenues" when in fact the measure would allow a transfer based upon a percentage of the "utility's annual gross revenues"; and
4. Failed to further disclose that the measure allows the City Council and Water Commission "to approve water, sewer and gas rates in an amount sufficient to recover the costs of operating each utility, including Council/Board-approved utility revenue transfers to the General Fund." That fact alone contradicts the direct mail piece which begins on side two with a statement that the measure would "explicitly authorize and affirm the transfer of surplus City utility revenues." Within less than a month after passage, the Water Commission sent a "Notice of Hearing" that water utility rates were being raised 7.2% as a result of "Long Beach voters approved Measure M authorizing continuing utility revenue transfer to the General Funds." [attached to complaint]
Mayor Robert Garcia and Councilmembers Suzie Price, Rex Richardson and Dee Andrews [allegedly] violated the Political Reform Act by:
1. Sending emails, texts and tweets to voters on computers and cellphones paid for at government expense, with messages advocating for passage of the measure and specifically misleading voters with statements that the measure "is not a tax," that the transfers would only be on "surplus funds," and that the measure "would not raise your utility rates." [attached to complaint].
2. Complainant sent a letter to the Long Beach City Attorney requesting that these individuals be directed to stop and was informed that a privileged letter was issued by the City Attorney on the matter [attached to complaint]. However, those messages were forwarded to others by voters using social media.
The "style, tenor and timing" of these communications did not serve only "an informational purpose." The City clearly orchestrated these mail pieces with the mail pieces sent by the Mayor's Committee, to overwhelm voters and to bring about passage of the measure using government resources.
Responses to invitation for comment(s)
LBREPORT.com received the complainants' release shortly after the close of business July 11, and that evening invited comment (via email and/or Facebook messages from City Attorney Charles Parkin, Mayor Garcia, Vice Mayor Richardson and Councilwoman Price, and from Councilman Andrews when his office opened this morning (July 12.)
Vice Mayor Richardson, in transit, emailed: "I actually don't accept a city cell phone" and said "we maintain a clear firewall from political activity in my office." Richardson added that on his return he would examine the complaint further to see if it warrants further comment.
Councilman Andrews' chief of staff replied that "[Neither] Councilman Andrews nor his office has been made aware by the FPPC of such complaint, therefore, the Councilman has no comment."
As of noon July 12, we'd received no responses from the City Attorney, Mayor Garcia or Councilwoman Price [and will update this text as warranted.]
What happens next?
The FPPC website indicates:
A sworn complaint entitles [the complainants] to certain rights and processes, including notification of whether the matter will be investigated and the ultimate resolution...
Within 14 days of receiving your sworn complaint, the Enforcement Division will inform you how it intends to proceed. Please be advised that unless the Chief of Enforcement deems otherwise, within three business days of receiving your sworn complaint, we will send a copy of it to the person(s) you allege violated the law.
A sworn complaint found to have merit will be assigned to staff in the Enforcement Division for a full investigation. The division may obtain additional documents, issue subpoenas, and interview witnesses, including the person alleged to have violated the Act.
Once the Enforcement Division has fully investigated a complaint, the case may be resolved in several ways. If there is insufficient evidence to prosecute, the division may close the case with a letter finding no action or an advisory letter. If the seriousness of the offense and public harm are low, a warning letter may be issued identifying a violation of the Act but concluding a monetary fine is not warranted.
If the case merits an administrative penalty, the Enforcement Division may ask the Commissioners to approve a settlement agreement in which the subject of the investigation agrees to pay a fine or to take other remedial action. If an agreement cannot be reached, the case will be subject to a more formal administrative proceeding, including a probable cause conference and a hearing before an administrative law judge. In some cases, the FPPC may decide to prosecute a case by a filing a civil lawsuit in court.
Long Beach political context
A political committee operated by Mayor Garcia raised over $125,000 (two largest contributors were LB's police officer and firefighter union PACs] for a campaign seeking passage of Measure M. Opponents had minimal resources. On June 5, Measure M passed with roughly 53.9% of the vote.
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