City Forwards Measure L Complaint to DA and FPPC

On Tuesday, the council held a closed session meeting after the regular meeting to discuss both anticipated and current litigation.

There was, according to City Manager Mike Webb, one reportable action taken by the council: “The City received allegations of potential violations of the Political Reform Act during the recent election regarding Measure L and the WDAAC development. The Council believes these allegations merit further investigation and have directed the City Attorney to forward the allegations to the District Attorney and FPPC [Fair Political Practices Commission] for their review.”

The city formally acted on public complaints raised by WDAAC (West Davis Active Adult Community) developer David Taormino and a letter from Attorney Stephen Boutin.

Last week the Vanguard sat down with Mr. Taormino, who spoke at length about the lawsuit that has now been dismissed as of January 18, as the Vanguard reported over the weekend.

He wants to know if the opponents of Measure L violated the law by conspiring to avoid disclosing that they had either a contribution in lieu of dollars or actually made a contribution to Attorney Mark Merin.

“Those are factual questions that should be investigated,” Mr. Taormino stated.

David Taormino wants to know how Mr. Ignacio, who does not live in Davis, even became aware of the project. He showed the Vanguard stacks of papers where people had inquired about the project and expressed interest – Mr. Ignacio was not one of them.

He said, “He never contacted us.”

“Where does somebody get $20,000?” he asked. “That’s the question. Who gave him (Mr. Merin) $20,000? Where did they get it? Were they part of the campaign? The opposition.”

“If so,” he believes, “that needed to be disclosed by federal and state laws – that the money was spent, the purpose of which was in support of their opposition to the ordinance.”

He told the Vanguard, “There is no disclosure in Measure L’s filings that any money or any contributions in lieu of money… Those are violations of the reporting laws. The reason they exist is that the voter deserves to know and judge the motivation of people involved in the campaign.”

“We think the law was violated,” he said. “Dark money being hidden from the public for nefarious purposes.

“I think the public has the right to know,” he added.

The Enterprise reported previously that Mr. Taormino has requested the city’s help in pursuing the issue – including an investigation by the Yolo County DA’s office.

Responding to a records request from the Vanguard, the city disclosed the letter dated January 18 from Mr. Boutin:

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Dear Harriet:

As you are well aware, we have just finalized the case of Ignacio v. City of Davis; Binning Ranch Holding Company, LLC; and J. David Taormino (“Lawsuit”). Justice prevailed in that the entire action has been dismissed by Judge Morrison England of the Eastern District. Although the case is now behind us, the Lawsuit represents a troubling example of how persons can attempt, and apparently are attempting, to unduly influence our electoral processes. This concern is particularly acute in this situation where there are certainly reasons to believe there are backers, financial and otherwise, of the Lawsuit in addition to the single named Plaintiff. As we became aware during the Lawsuit, the Plaintiff has no known connections with either the City of Davis or the West Davis Active Adult Community (“WDAAC”).

It is not hyperbole to state that the integrity of the electoral system is the foundation of our democracy. While we are not suggesting Vladimir Putin or the Koch Brothers were involved in Davis’ November 6 election, we are addressing the very same concerns, namely, dark money by undisclosed outside persons attempting to influence the outcome of an election.

Based on what we believe should be all of our concerns, we would like to have an investigation by a public entity of the money, parties, and circumstances surrounding the filing of the Lawsuit. Second, we want to discourage future surreptitious manipulations of elections, so that Davis is not a victim in elections yet to be held. (This time Davis was victimized, but the educated voters of Davis recognized the merits of WDAAC, while rejecting the Complaint’s accusations that Davis was attempting to perpetuate racism.)

On behalf of Dave Taormino, we respectfully request that the City of Davis take the lead in requesting that the Yolo County District Attorney and/or the FPPC investigate. Dave Taormino stands ready to actively support that request, and is cooperating with investigators in seeking the whole truth.

You know the facts, but we will succinctly repeat some of them .

On November 6, 2018, Measure L passed with a healthy plurality of the votes. Defendants then moved to dismiss the Lawsuit on the grounds that the action was filed prematurely and Plaintiff Ignacio lacked sufficient standing to sue. Shortly thereafter, Mark Merin filed a Consent Order Granting Substitution of Attorney; and he was subsequently replaced by John McIntyre, of San Jose.

One day before Ignacio’s Opposition brief was due, I received a call from McIntyre, who informed me that Defendants’ 12(b)(1) Motion was “well-taken.” In light of this, McIntyre offered, and Defendants accepted, Ignacio’s dismissal of the Complaint without prejudice in exchange for a waiver of costs on both sides. We were very satisfied with this just outcome.

What you do not yet know is that over the course of the Lawsuit, we acquired information that strongly suggests persons connected with the No on L campaign (“Campaign”) expended $20,000 to initiate the Lawsuit likely for the purpose of influencing the election and defeating Measure L. Although those persons were ultimately unsuccessful, Dave and I harbor serious concerns about the credibility of the local election process moving forward.

As background, the Political Reform Act (PRA) places substantial restrictions on the role of money in California politics. Among other things, the PRA strictly regulates the use of campaign funds by candidates, elected officials, and others who control the expenditure of campaign funds. Under the Act, and relevant for our purposes, attorneys ‘ fees (and other costs relating to civil litigation) may only be paid with campaign funds if the litigation is directly related to activities of the committee that are consistent with its primary objectives. Further, if funds are used for litigation purposes, those expenditures must be disclosed.

In light of the foregoing, if No on Measure L funds were used in relation to the Ignacio Complaint, those expenditures would likely violate the PRA. At the very least, litigation-related expenditures would need to have been disclosed by the Campaign.

Importantly, however, we believe we are uncovering not only technical violations of the PRA, but also an influence campaign by Davis residents to harm Measure L’s chances. This possibility presents a direct threat to the integrity of the Davis election process.

To get you up to speed, here is a condensed outline of what we now believe:

• On September 10, 2018, the Davis Vanguard published “Why Is Davis So White, A Brief History of Housing Discrimination,” part one in a three-part series on housing and purported discrimination, by a Davis resident, whom we believe you know (if not, we can identify that person).
• On September 24, 2018, just forty-three days before the Davis Election, Samuel Ignacio filed a Federal lawsuit alleging racial discrimination in connection with the WDAAC development project. The Complaint in that Lawsuit incorporates verbatim several lines of the earlier September 10 article.
• That same day, Mark Merin issued a press release about the Lawsuit, discussing the alleged consequences should Measure L pass in the Davis election, and stating that he and “other opponents” would appear at the following Davis City Council Meeting. He did not appear; however, “other opponents” did.
• Plaintiff Samuel Ignacio is a long-time Vallejo resident and recent Sacramento transplant, moving to 9480 Pournelle Way in 2017. The grant deed to that property does not include his name. Moreover, Mr. Ignacio has never lived in Davis, and to our knowledge, has never signed up for WDAAC’s waiting list or otherwise inquired about WDAAC.
• On October 14, 2018, CivEnergy hosted a forum on Measure L where the author of the September 10 article, among others, spoke on behalf of the No on Measure L Campaign.
• In the weeks leading up to the election, the Davis Vanguard published several op-eds written by apparent supporters of the No on Measure L Campaign, including again the author of the September 10 article.
• No on L Campaign’s financial disclosures fail to indicate any sum paid to attorney Mark Merin for the purposes of initiating a Federal lawsuit.
• On November 6, 2018, Measure L passed with 55.7% percent of the vote.
• In a telephone conversation, Mark Merin mentioned that his client would be interested in settling the Lawsuit for $20,000 (which he discussed in the context of returning a retainer).
• On December 4,2018, we filed our 12(b)(I) Motion to Dismiss. On January 9, 2019, the day before his Opposition brief was due, Mr. McIntyre, on behalf of Plaintiff Ignacio, agreed to voluntarily dismiss the Lawsuit.

We think that with their investigative capabilities and subpoena powers, the Yolo County DA and/or FPPC (both of which hold concurrent jurisdiction over violations of the PRA) can connect these dots and investigate the trail of money potentially connecting the Lawsuit with the No on Measure L Campaign. (Supervising Assistant District Attorney David Irey has had significant success with white collar matters.)

To this end, it is our hope that the City of Davis will take the lead in initiating a thorough and meaningful investigation. Our current political climate suggests that, if left unaddressed, this problem will only compound.

We hope you and the members of the Davis City Council will consider these points and then let us know your questions, in sights, and conclusions. Thank you very much in advance for your consideration.

The letter is signed Elizabeth Key on behalf of Stephen F. Boutin

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—David M. Greenwald reporting