FPPC Enforcement Division Will Investigate Allegations By Taxpayers/Measure M Opponents Schipske/Stout/Lejins/Weinstein That (1) City of Long Beach "Informational" Material Amounted To Campaigning For Measure M; And (2) A Related Measure M Allegation Re Content By Councilwoman Price...But Finds "Insufficient Evidence" Re Mayor Garcia and Councilmembers Andrews and Richardson
Enforcement Division says it hasn't made any determination about the validity of the allegations or about the culpability, if any, of any of the person(s) identified in the taxpayers' complaint
LBREPORT.com is reader and advertiser supported. Support independent news in LB similar to the way people support NPR and PBS stations. We're not non-profit so it's not tax deductible but $49.95 (less than an annual dollar a week) helps keep us online.
Subsequent development: Aug. 31: FPPC Clears Councilwoman Price Re July Allegations Centered On Measure M-Related Communications(July 25, 2018, 1:00 p.m.) -- CA's Fair Political Practices Commission's Enforcement Division has opened an investigation into allegations by four Long Beach taxpayers (Tom Stout, Diana Lejins, Dr. Joe Weinstein and retired Long Beach Councilwoman Gerrie Schipske) that the City of Long Beach allegedly used public funds for what the City portrayed as "informational" material but amounted to campaign advocacy for passage of Measure M (City utility revenue transfer/diversion) on the June ballot.
The four taxpayers (who authored the official ballot argument against Measure M) also alleged that Councilwoman Price, Mayor Garcia and Councilmembers Richardson and Andrews had allegedly used taxpayer-paid resources for communications that advocated passage of Measure M, but in a letter dated July 24, 2018, Galena West, Chief of FPPC's Enforcement Division, said it found insufficient evidence of a violation by Mayor Garcia, Councilmembers Andrews and Richardson (meaning they're not named as respondents in the case.)
The FPPC letter states that the Enforcement Division will investgate the complainants' allegation(s) but has not made any determination about the validity of the allegations or about the culpability, if any, of any of the person(s) identified in the taxpayers' complaint.
Shortly before the start of the July 25 business day, LBREPORT.com emailed City Attorney Charles Parkin and Councilwoman Price inviting their comments/responses; we'll add them as received.
[Scroll down for further.]
In a release, the four taxpayers who filed the FPPC complaint stated, "We hope that because the FPPC is moving forward, the City of Long Beach gets the message for the upcoming election, that the Political Reform Act is clear: government cannot use public resources to campaign -- for a tax measure or for a charter change." On August 7, the City Council is scheduled to vote on whether to call a special citywide November 2018 election for all or some or none of five Charter Amendments proposed by Mayor Garcia after voters re-elected all City Hall incumbents (April-June 2018) and approved Measure M (June 2018).
The FPPC website provides the following general information for complainants:
...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.
The FPPC website says the following about its Enforcement Division:
[FPPC website text]
Types of Enforcement Actions
A violation of the [Political Reform] Act can be pursued in three ways:
1) Administrative proceedings by the Enforcement Division;
2) Criminal prosecution by a local district attorney or the state attorney general; or
3) Civil action by the public, certain government agencies or the Enforcement Division.
The vast majority of cases are handled through the administrative enforcement process.
The Enforcement Division analyzes and processes over 1,500 complaints and referrals per year about potential violations of the Act. Complaints and referrals are received from citizens, other government agencies, and the media. The Enforcement Division also investigates on its own initiative. The division also operates a campaign audit program of both mandatory and discretionary audits. A matter will be fully investigated if there is sufficient information to believe that a violation of the Act has occurred...
Administrative Enforcement Case Resolution
A complaint can be resolved in several ways depending on the strength of the evidence, the particular facts, and the amount of public harm involved. If there is insufficient evidence to prosecute and no further information would be helpful or informative or the allegation has been disproven, a case may be closed with a no action closure letter. If there is insufficient evidence to prosecute but the person complianed about appears to need information about the Act to ensure future compliance, a case may be closed with 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. Finally, if the case merits pursuit of a fine, the Enforcement Division will prosecute the violators and may seek penalties of up to $5,000 per violation, which must be approved by the Commissioners.
The four LB taxpayers who submitted the complaint to the FPPC complaint are:
Tom Stout (co-founder, Long Beach Taxpayers Association)
Diana Lejins (taxpayer-plaintiff in a lawsuit 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 then sought voter authority to resume the practice under Measure M. Ms. Schipske (co-complainant, below) was co-counsel for Ms. Lejins in the lawsuit.
Dr. Joe Weinstein, Ph.D., president of Citizens About Responsible Planning.
Gerrie Schipske, an attorney, who was LB's 5th district City Councilmember for two terms (2006-2014)
The taxpayers' complaint
The complainants' complaint included the allegations below. The FPPC's Enforcement Division July 24 letter stated that it has not made any determination about validity of the allegations or about the culpability, if any, of any of the person(s) identified in the taxpayers' complaint.
[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]
[Caveat: The July 24 FPPC Enforcement Division letter indicates it found insufficient evidence of a violation by Mayor Garcia, Councilmembers Andrews or Richardson regarding the following complaint allegation] 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.
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.
Support really independent news in Long Beach. No one in LBREPORT.com's ownership, reporting or editorial decision-making has ties to incumbent Long Beach officials, development interests, advocacy groups or other special interests; or is seeking or receiving benefits of City development-related decisions; or holds a City Hall appointive position; or has contributed sums to political campaigns for Long Beach incumbents or challengers. LBREPORT.com isn't part of an out of town corporate cluster and no one its ownership, editorial or publishing decisionmaking has been part of the governing board of any City government body or other entity on whose policies we report. LBREPORT.com is reader and advertiser supported. You can help keep really independent news in LB similar to the way people support NPR and PBS stations. We're not non-profit so it's not tax deductible but $49.95 (less than an annual dollar a week) helps keep us online.