City Upholds Complaints Against Independent Expenditure but Imposes No Penalties

asmundsonThe Vanguard received a response from the city regard its complaints that the committee entitled, “Committee to Support Sydney Vergis for City Council 2010” failed to comply with Municipal Code section 12.01.055(c) regarding notification of independent expenditures within 24 hours.

The response indicated that while the committee was in violation of the city’s municipal code, due to their notification of the city clerk and candidates regarding this mailing via email on May 25, 2010 (three days after the mailing was postmarked), they would not seek any penalties.

In a response to the Vanguard on June 2, 2010, the Davis City Clerk, Zoe Mirabile wrote, “Although I do have the ability to fine for code violations, I have not actively sought the imposition of fines against the Committee to Support Sydney Vergis for City Council 2010.”

She continued, “My reasons include that this was a first time offense and the mailing and subsequent notification occurred two weeks before the election. My actions in this case are consistent with my treatment of similar violations for other candidates and committees.”

She explained her generally policy on such matters, “The City Clerk has the responsibility for administering the elections code of the City of Davis. For the past several years, I have followed an informal procedure regarding any violation of the code.”

“When I become aware of a violation, I notify the candidate or committee of the violation and give them a notice to cure,” she continued, “I try to work with candidates and committees as much as possible; however, if a candidate or committee is non-responsive, I will look at imposing fines or other administrative remedies including enforcement referrals as necessary. This process has proven to be generally effective and produces the desired results. Further, I consider my time and effort best spent on obtaining accurate and complete information for both my office and the general public.”

The Vanguard had previously reported that the committee mailed approximately 1,700 letters to Davis residents for an estimated cost of $1,000. Letters were dated May 20, 2010 and postmarked May 22, 2010.  We have since learned from the disclosure filed last Thursday that the actual cost was $1112 and that both principles, Marty West and Ruth Asmundson had contributed roughly $550 in direct and in-kind contributions to independent expenditure effort.

As previously mentioned, this was a clear effort to circumvent city election provisions limiting individual contributions to $100.  While this is clearly legal, it does exploit a serious loophole in the law.

The complaint eventually filed with the City Clerk’s office following a series of unintentionally misleading information as to where to file, alleged that the committee failed to notify the city clerk’s office and other candidates within 24 hours of the expenditure (the expenditure almost certainly occurred on May 21, possibly even as early as May 20 when the committee was filed and the letters were dated).

Davis Municipal Code section 12.01.055(c) specifies the following:

“Any committee that makes independent expenditures of two hundred fifty dollars or more in support or in opposition to any candidate shall notify the city clerk and all candidates running for the same seat within twenty-four hours by facsimile transmission, overnight delivery, or personal delivery each time this two hundred fifty dollar threshold is met. This notice shall include a copy of any mailing or advertisement produced, if applicable.”

Municipal Code section 12.01.090 imposes the following penalties for “knowing” or “willful” violations:

“(a) Any person who knowingly or willfully violates any provision of this chapter is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars or six months imprisonment; or both. Prosecution for violation of this chapter must be commenced within four years after the date on which the violation occurred.”

In a response Ms. West emailed to the City Clerk and other candidates, “You may have heard that Ruth Asmundson and I sent out a letter at the end of last week as an independent expenditure, supporting Sydney Vergis for City Council.  I met with the City Clerk last Thursday to find out what the requirements were for making an independent expenditure.  She gave me the form to fill out, which I did, and told me to mail a copy to the state FPPC, which I have done.  She did not mention anything about sending a copy of our letter to other candidates.  But someone raised that issue with me today.  I have a call in to the City Clerk about this requirement, but she has not called or answered my e-mail.”

Sydney Vergis for her part has denied knowledge of the letter.  She writes, “You may be aware of a contrived controversy regarding an independent expenditure committee formed by Marty West and Ruth Asmundson to send out a letter supporting my candidacy for Davis City Council.”

“I first learned about it when I received a copy of the sent letter; which was positive and delightful,” she continued.  “I am honored that Marty and Ruth, who are known for their long-time commitment to the community, are supporting me so proactively.”

“Free speech when applied to a political campaign is not totally free and unlimited,” she writes.  “Because first class stamps cost 44¢, any mailing more than 250 envelopes from Marty and Ruth, would require an independent expenditure committee to be formed (after all they do have a LOT of friends).”

She concludes by stating, “There is no truth to the rumor that this IE is being utilized to engage in negative campaigning.”

While we feel vindicated that the City Clerk has validated our complaint, we feel that this process is important.  Both Marty West and Ruth Asmundson are experienced individuals in the campaign community.  While we do believe that they had no knowledge of this particular law, given the fact that Marty West is a retired law professor and Ruth Asmundson is the Mayor, we think perhaps they should have taken more care to insure they had followed all of the rules.

We recommend that the city inform all future committees that file form 410 to become independent expenditure committees provide them with a copy of the requisite municipal codes and insure that they are read.

We think it is a bit disingenuous for the city clerk to state that they complied three days after the fact, when the reason they complied was due to the fact that there had been media reports about their failure to adhere to city municipal code.

Nevertheless, the provisions of the law say “willful” or “knowing” and all available evidence would suggest the transgression was neither willful nor knowing.  As such, the lack of penalty seems reasonable.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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12 Comments

  1. davisite2

    This communication from the City Clerk was certainly an opportunity to confirm Ms. West’s claim that Ms. Mirabile had failed to inform her of the city code in question. Such an oversight admission would certainly bolster the City Clerk’s decision not to impose any penalties. What can we construe from her NOT confirming Ms. West’s claim?

  2. nprice

    I received the “Dear Friend and Neighbor” letter from West and Asmundson. I am neither a “friend” in customary sense of expected/anticipated behavior and interactions over time, nor am I a “neighbor” in the usual sense of easy proximity across space – that is a number of blocks and or waving distance.

  3. Ryan

    I for one am pretty appalled that Marty West has the audacity to try to deflect the blame of her municipal election code violation to the City Clerk. Everything I have ever heard or read regarding the City Clerk on this blog or elsewhere has been positive. When I watch City Council meetings on cable and Ms. Mirabile is called on for clarifications or information by Council, she is clearly competent.

    Marty West as an attorney, and a former UCD law school faculty member should be embarrassed to have mishandled this entire independent expenditure caper so badly. Furthermore, she should be ashamed of herself to try to blame someone else for her failure to follow the Municipal Election Code which she is responsible for reading, understanding and implementing. I looked on line and it is all clearly available and posted for anyone to access. Or does Marty think she is better then others and is above the law? This desperate attempt for her to try to weasel out taking responsibility for her own actions is pretty bad. Who would ever trust Marty West now on anything including whoever she endorses or whatever she recommends after this fiasco?

    Grow up Marty and accept the responsibility for your screw-up. You are guilty. Stop trying to blame others for your wrong doings. Your credibility in this town is dwindling to zero.

  4. Phil Coleman

    There was a form (published here) that had to be completed by this committee and submitted to the City. Instead of giving copies of the relevant ordinances as suggested above, simply amend the existing form to say, “Applicants must comply with,” followed by the controlling Code Sections. Then, on the signature line a proviso is added that the applicant is aware of the relevant ordinances under penalty of law.

    Remember, these are lawyers we are dealing with. Think crafty and plan deviously. Prevent convenient pleas of ignorance,and transferring blame to the innocent and the defenseless City Clerk. Then you’ve plugged the loophole.

  5. Rich Rifkin

    [b]ZOE:[/b] [i]”When I become aware of a violation, I notify the candidate or committee of the violation and give them a notice to cure,” she continued, “I try to work with candidates and committees as much as possible; however, [u]if a candidate or committee is non-responsive, I will [b]look at[/b] imposing fines[/u] or other administrative remedies including enforcement referrals as necessary.”[/i]

    Zoe’s answer is perfectly reasonable, except I don’t agree with the subjectiveness of her saying she will “look at” imposing fines when one is non-responsive.

    I think the fact that she did not impose a fine in this case, because the committee followed the rules once properly notified that they were not in compliance, is wise. Just because a law enforcement officer has the power to penalize someone does not mean that justice is best served by unblinkingly and unthinkingly penalizing everyone all the time. I was pulled over by a Davis cop a few years ago because (after filling the bed of my pick-up with compost) my rear license plate was partially obscured. That is a violation. Yet he simply asked me to wipe off the dirt and informed me that I could have received a ticket. Everyone who has ever driven a car wants cops to have that kind of discretion.

    If Zoe runs into a candidate or committee which is non-responsive in a case like this, I think her policy should instead be, “If a candidate or committee is non-responsive, I will impose a fine at that point.” That allows for flexibility, yet removes subjectivity.

  6. JustSaying

    She continued, “My reasons include that this was a first time offense and the mailing and subsequent notification occurred two weeks before the election. My actions in this case are consistent with my treatment of similar violations for other candidates and committees.”

    It certainly sounds as though our City Clerk has had enough past experience with this issue so she could have responded accurately to any process questions Marty might have asked. It’s difficult to believe that Ms. Mirabile contributed to this violation by her own ignorance or lack of customer service. Maybe someone preferred to maintain plausible deniability in case anyone noticed the independent committee’s activities?

    In any case, I agree with Phil’s recommendations for improving these forms (or any city applications, etc.) and with Rich’s idea of imposing sure fines on non-responsive actors, but not on those who promptly correct their errors.

  7. hpierce

    [quote]If Zoe runs into a candidate or committee which is non-responsive in a case like this, I think her policy should instead be, “If a candidate or committee is non-responsive, I will impose a fine at that point.” That allows for flexibility, yet removes subjectivity. [/quote]

    Rich, with all due respect, I think you’re ‘splitting hairs’… how does making a determination of “non-responsiveness” differ from “looking into” whether a fine be levied. Still professional judgment, and in my experience and opinion, Zoe is a professional.

  8. Rich Rifkin

    pierce, “to look into” suggests even if someone has violated the law and been reminded by the clerk he is in violation of the law and remains non-responsive the clerk still might not penalize him. If she followed that course, we would have less of a rule of law and more of a rule of whim. Much better would be for her to be forthright: I’ll give you a break one time, but once you have been reminded, if you still flout the law, you will be fined. That makes it clear everyone gets the same treatment.

  9. davisite2

    “When I become aware of a violation, I notify the candidate or committee of the violation and give them a notice to cure,” she continued, “I try to work with candidates and committees as much as possible; however, if a candidate or committee is non-responsive, I will look at imposing fines or other administrative remedies”
    The above policy of the City Clerk probably is appropriate for the election code violations that we have seen in the past, namely putting campaign signs on public property. This is a far cry from the seriousness of attempting to circumvent Davis’ $100 max contribution, the essential bulwark of Davis’ attempt to “level” the money playing field. This additional Davis code,IMO, is expressly designed as a major disincentive to the creation of IEC’s in Davis local elections. It was the Vanguard’s story that forced Ms. West to pay “catch up” with the code. We would never have learned of this IEC otherwise.

  10. hpierce

    Rich… a judgment call is a judgment call… not black & white, & sometimes right, sometimes ‘wrong’… Zoe made a good call… unlike the umpire at last nights Tigers game.

  11. davisite2

    “i still don’t know why they didn’t just sent an email for no cost. don’t local pols put efforts into building up email lists?”

    Wu ming….because Vergis’ explanation that it was directed only towards Asmundson’s “friends” is bogus. As nprice has commented, she received the letter and does not consider herself a “friend” or nearby “neighbor”.

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