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FPPC Regulation 18420.1 Complaint Against Bay Area

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FPPC Regulation 18420.1 Complaint Against Bay Area FPPC Regulation 18420.1 Complaint Against Bay Area Rapid Transit District (BART) Concerning Illegal Use of Public Resources to Promote Passage of November 2016 Measure RR, a $3.5 Billion Bond Measure, in Alameda, Contra Costa and San Francisco Counties. This is to serve as a complaint under FPPC Regulation 18420.1 and Government Code sections 8314 and 54964 against the San Francisco Bay Area Rapid Transit District (hereinafter “BART”), a public agency, for illegal use of public resources to promote passage of the $3.5 billion Measure RR bond measure on the November 2016 ballot in Alameda, Contra Costa and San Francisco counties. This complaint is further substantiate the allegations made in an FPPC complaint filed by State Senator Steve Glazer in October 2016 concerning illegal use of public resources by BART to promote Measure RR. That complaint was publicized in an online East Bay Times newspaper article, “Sen. Steve Glazer files complaint against BART alleging public money used on bond campaign,” by reporter Erin Baldassari published on October 27, 2016 at 6:30 a.m. See: http://www.eastbaytimes.com/2016/10/27/sen-steve-glazer-files-complaint-against-bart-alleging- public-money-used-on-bond-campaign/ A version of Ms. Baldassari’s article appeared in the print edition of the East Bay Times on October 28, 2016. Complainant asks that the FPPC find that BART should file campaign statements and reports, pursuant to Regulation 18420.1(f), “A … local governmental agency that qualifies as a committee under Section 82013 shall file campaign statements and reports pursuant to Chapter 4 and any other relevant provisions of the Act.” The key fact is that the BART Board of Directors voted to place Measure RR on the November 2016 ballot at its June 9, 2016 meeting. Soon after that vote on the morning of June 9, 2016, BART hosted a news conference to promote passage of the BART bond measure (ultimately designated “Measure RR”). After the BART Board of Directors reached a “single view” on the bond measure on June 9, 2016, advocacy by BART of the pro-bond measure position, undertaken at public expense, in an effort to influence the electorate was improper. In League of Women Voters v. Countywide Crim. Justice Coordination Com. (1988) 203 Cal.App.3d 529, the Court of Appeal held, “It is only at the point the activities … [a public entity] cross the line of improper advocacy or promotion of a single view in an effort to influence the electorate that the actions of elected officers or their deputies, undertaken at public expense, likewise would become improper.” The June 9, 2016 BART news conference, seen in this 26-minute YouTube video posted by BART https://youtu.be/24h6zasmiVU, and the related BART-produced “news” article, “BART approves $3.5 billion capital reinvestment bond measure” (posted to the BART website at http://www.bart.gov/news/articles/2016/news20160609 - text is included with this complaint as an appendix), were improper advocacy or promotion of the Yes on RR view in an effort to influence the electorate by BART officers (Board President Tom Radulovich) and BART employees (Maisha Everhart), undertaken at public expense, as this complaint explains. 1 I. FPPC Regulation 18420.1 Violations: the June 9, 2016 Post-BART Vote News Conference, the Related YouTube Video and the BART-Produced “News” Article Concerning the June 9, 2016 BART Board Vote and Post-Vote News Conference Were BART Public Communications That Constitute “Contributions” and/or “Independent Expenditures” Benefiting the Yes on RR Campaign. FPPC Regulation 18420.1 (Payments by State or Local Agencies for a Campaign Related Communication) says in part that a “payment of public moneys by a … local governmental agency, or by an agent of the agency, made in connection with a communication to the public that expressly advocates … the qualification, passage, or defeat of a clearly indentified [sic] measure, as defined in Regulation 18225(b)(1), or that taken as a whole and in context, unambiguously urges a particular result in an election” is either a “contribution” or an “independent expenditure.” Regulation 18420.1(c) defines “payments of public moneys by a state or local governmental agency made in connection with a communication include payments for both the direct and indirect costs of the communication. Indirect costs of a communication are costs reasonably related to designing, producing, printing, or formulating the content of the communication including, but not limited to, payments for polling or research; payments for computer usage, software, or programming; and payments for the salary, expenses, or fees of the agency's employees, agents, vendors, and consultants.” (emphasis added). Therefore, BART must publicly report as “contributions” or “independent expenditures” benefiting the Yes on RR campaign the direct and indirect costs of planning, producing, documenting and publicizing its June 9, 2016 news conference relating to the BART bond measure, including the salaries and expenses of BART employees and consultants related to production of the news conference, production of the BART “news” article about the news conference, and production of the video of the news conference placed on YouTube. A. The June 9, 2016 Post-BART Vote News Conference and Related YouTube Video Violate FPPC Regulation 18420.1 Because They Expressly Advocate the Passage of the BART Bond Measure (Later Designated “Measure RR”). BART engaged in illegal express advocacy for passage of the BART bond measure (Measure RR) through its planning, production and publicity of the June 9, 2016 post-BART vote news conference. The YouTube video of the June 9, 2016 post-BART vote news conference is found on the world wide web at: https://youtu.be/24h6zasmiVU The publisher of the video on YouTube is “BARTable.” The “BARTable” YouTube channel appears to be controlled by BART. The video title is “Bond Measure Announcement.” It was published on June 9, 2016. Duration is 26 minutes, 10 seconds (26:10). 2 June 9, 2016 BART News Conference Promoting BART Bond Measure Was a BART Production Illegally Using Public Resources. This news conference clearly was a BART production, using BART public resources. BART planned and produced this news conference, as evidenced by the pictorial and audio contents of the YouTube video. A BART officer, BART Board President Tom Radulovich, delivered the opening and closing remarks at the news conference. A BART employee, Local Government and Community Relations Manager Maisha Everhart, served as host or emcee of the news conference. Ms. Everhart identified herself with her BART title within the first ten seconds of the video, “My name is Maisha Everhart. I’m the Manager of Local Government and Community Relations.” Ms. Everhart introduced each speaker. The video shows all of the news conference speakers together in front of a backdrop that bears many iterations of images of the BART logo along with many iterations of the text “www.bart.gov”. This BART-logo backdrop appeared behind all of the speakers as they spoke. Each news conference speaker appeared to have the official imprimatur of BART literally behind them, as if BART endorsed their express advocacy for the BART bond measure. Furthermore, all of the speakers spoke from a podium that had a BART logo on its front. A BART administrator, Maisha Everhart, introduced each speaker. Speakers indicated during their news conference remarks that BART had either invited them or allowed them to appear at the news conference. Evelyn Torres, co-president of the Latino Young Democrats of the East Bay said from 11:52 to 11:59, “I want to thank BART for allowing me to be here today” and from 13:41 to 13:44, “Thank you again for the Board for allowing me to be here.” Renee Rivera, executive director of Bike East Bay said from 19:43 to 19:48, “Thank you to BART and Director Radulovich for inviting us to be part of this today.” BART officers and/or BART employees clearly coordinated planning and production of this news conference. BART cannot legally use public resources to line up supporters for a bond measure “for building the broadest possible coalition in support of the measure,” as California Attorney Generals have repeatedly ruled. Attorney General Bill Lockyer in 2005 ruled in Opinion 04- 211, “In preparation for submitting a bond measure to the electorate for approval, a [public entity] may not use district funds to hire a consultant to develop and implement a strategy for building the broadest possible coalition in support of the measure and the financial support for a campaign by, for example, assisting [public entity administrators] in scheduling meetings with civic leaders and potential campaign contributors in order to gauge their support for the bond measure if the purpose or effect of such actions serves to develop a campaign to promote approval of the bond measure by the electorate.” See: https://oag.ca.gov/system/files/opinions/pdfs/04-211.pdf Attorney General Kamala Harris re-affirmed this position in Opinion No. 13-304 in January 2016, stating that a public entity “violates prohibitions against using public funds to advocate passage of a bond measure by contracting for services related to a bond election campaign if those services may be fairly characterized as campaign activity.” See: https://oag.ca.gov/system/files/opinions/pdfs/13-304_0.pdf 3 Therefore, if BART used any consultants or contractors to plan, produce, or publicize the June 9, 2016 news conference, any public funds used were illegally spent and must be reported on FPPC reports as campaign activity. For example, if the news conference camera operator was a BART contractor or employee, his or her time must be reported as campaign activity.
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