LBREPORT.com Seeks District Attorney Review Of Long Beach Mayor/City Council Feb. 18 Actions re Measure B
Publisher raises issue of using public resources at that meeting to promote ballot measure
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(Feb. 21, 2020, 4:45 p.m.) -- LBREPORT.com today (Feb. 21) requested Los Angeles County District Attorney review and consideration of civil penalties in connection with actions by Mayor Robert Garcia and the City Council [eight members present, Richardson absent] at their Feb. 18 meeting.
Our email dated Feb. 21 (text below) speaks for itself.
Alan Yochelson.
Public Integrity Division
Los Angeles County District Attorney Office
Dear Mr. Yochelson:
This email is from LBREPORT.com (LongBeachReport.com), an online outlet now in our 20th year in Long Beach. We seek your office's review and application of CA Government Code section 8314 and related constitutional principles (Vargas v. City of Salinas and Stanson v. Mott) regrading actions of Long Beach Mayor Robert Garcia and the City Council on Feb. 18, 2020. The matter involves City Council agenda item #17, background and summary below, visible in full on the Long Beach City Clerk's website at this link.
[Scroll down for further.]
Background: On November 12, 2019, the Long Beach City Council voted to pursue and on November 19, 2019 voted to approve placement of a measure (now called "Measure B") on the March 3, 2020 ballot that would increase the General Fund (unrestricted revenue) collected as part of the city's hotel room tax. At the time, the Mayor and Council voiced support for allocating te revenue to arts-related programs and upkeep/upgrades of the city's convention center.
Roughly three months later on Feb. 18, 2020 -- at the Council's final meeting before the March 3 election with vote by mail ballots already circulating -- an agenda item proposed a non-binding resolution reciting the Council's current "intent" to spend Measure B's General Fund sums on arts-related programs and to upgrade to the city's convention center.
In advancing previous city General Fund tax measures (June 2016 Measure A sales tax and a proposed March 2020 extension of Measure A), the Council also adopted resolutions stating its "intent" but did so when it placed those measures on the ballot, presumably to avoid running afoul of the statutory and constitutional matters below.
Statutory issue: CA Government Code section 8314 provides in pertinent part: "It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity, or personal or other purposes which are not authorized by law." It applies these terms:
(2) "Campaign activity" means an activity constituting a contribution as defined in Section 82015 or an expenditure as defined in Section 82025. "Campaign activity" does not include the incidental and minimal use of public resources, such as equipment or office space, for campaign purposes, including the referral of unsolicited political mail, telephone calls, and visitors to private political entities. [Government Code section 82015 explicitly states that a "contribution" isn't restricted to expressly advocating a measure (to vote "yes" or "no"); it includes a communication that "taken as a whole and in context, unambiguously urges a particular result in an election."]
(3) "Public resources" means any property or asset owned by the state or any local agency, including, but not limited to, land, buildings, facilities, funds, equipment, supplies, telephones, computers, vehicles, travel, and state-compensated time.
(4)"Use" means a use of public resources which is substantial enough to result in a gain or advantage to the user or a loss to the state or any local agency for which a monetary value may be estimated.
[Another statute, CA Gov't Code section 54964, is similar to Section 8314 in stating that any "officer, employee, or consultant of a local agency may not expend or authorize the expenditure of any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure" but is more narrow in applying to communications that "expressly advocate" approval or rejection of a ballot measure.]
Constitutional principles: The issues occur in the context of two CA Supreme Court cases, In 2009, the Court held Vargas v. City of Salinas that government-funded material that doesn't "expressly advocate" may still amount to advocacy based upon its "style, tenor and timing." It reaffirmed its 1976 holding in Stanson v. Mott that determining whether a government communication about a pending ballot measure is permissible or impermissible "depends upon a careful consideration of such factors as the style, tenor and timing of the publication [and] no hard and fast rule governs every case."
Applying that principle to the facts at hand, Mayor Garcia opened and closed the agenda item. He told the public the public that Measure B would be "transformational." He said it would produce "unprecedented" benefits for Long Beach arts organizations and their supporters. These aren't statements of intent. They are advocacy.
City management has indicated that Measure B is expected to produce roughly $2.8 million in unrestricted General Fund revenue. Notwithstanding the Council's stated "intent" to use that sum for arts related programs and the convention center, the revenue infusion would simultaneously provide a major advantage for city electeds (for better or worse depending on taxpayers' viewpoints) in freeing up a corresponding amount of other General Fund sums for other City Hall spending.
Prior to submitting this request, LBREPORT.com communicated with Long Beach Deputy City Attorney Amy Webber (Feb. 20) on this matter. Ms. Webber said the agendized item was a statement of the Council's intent and didn't advocate a "yes" or "no" vote on the ballot measure. We believe CA Gov't Code 8314 and the Vargas and Stanson cases reject a:"vote yes" or "vote no" standard. (To allow otherwise would let City Halls avoid the principle (by simply avoiding "vote yes" or "vote no") regardless of the clear substance of their communication.
Ms. Webber also said the two Supreme Court dealt with informational or educational communications while the Long Beach agenda item was a statement of Council's direction to city management. LBREPORT.com notes that the Vargas case explicitly reaffirmed Stanson v. Mott which arose based on a ballot measure. The underlying principles are the same.
LBREPORT.com believes it would be unwise and contrary to the public interest to enable Long Beach City Hall (or others) to repeat what Long Beach's Mayor and City Council did. The "style, tenor and tone" of Mayor Garcia's statement -- calling a ballot measure long after it's been placed on the ballot by Council action -- "transformational" and "unprecedented" isn't a statement of intent. It's clearly advocacy.
The timing of the Feb. 18 agenda item -- months after the Council voted to place the measure on the ballot while the public's vote by mail ballots are now circulating -- is in our view also extremely problematic.
CA Government Code section 8314(c)(1) specifies that "Any person who intentionally or negligently violates this section is liable for a civil penalty not to exceed one thousand dollars ($1,000) for each day on which a violation occurs, plus three times the value of the unlawful use of public resources." Although the statute specifies that civil penalties shall be assessed and recovered in cities of over 75,000 persons by their City Attorney, this remedy now presumably rests with the District Attorney's office since the Long Beach City Attorney's office has an impossible conflict in seeking remedies for an action it enabled.
Government Code section 8314(c)(2) specifies that civil penalties recovered "shall be paid to the treasurer" of the city involved. LBREPORT.com notes that the Mayor and nearly all Long Beach Council members maintain "officeholder accounts" -- sums provided by contributors, not taxpayers -- from which they could reimburse the LB city treasury for civil penalties assessed,
In the public interest, LBREPORT.com asks the District Attorney's office to independently examine this matter, apply Government Code section 8314 and its associated constitutional principles as appropriate, apply an appropriate remedy and advise the undersigned of its decision.>/small>
And LBREPORT;com sent a courtesy :cc to Ms. Webber in the City Attorney's office.
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