City Forwards Measure L Complaint to DA and FPPC

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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:


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


—David M. Greenwald reporting

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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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26 thoughts on “City Forwards Measure L Complaint to DA and FPPC”

  1. PhilColeman

    Clarification please, if anybody knows or understands a particular bullet point.
    In what promises to become a landmark phone conversation, plaintiff attorney Merlin is depicted as being willing to dismiss a lawsuit he filed provided that defendant reimburses a $20,000 retainer received by Merlin (from an unknown source) for legal services rendered.
    Expressing this verbal exchange in lay terms, You give us $20K I received for filing the suit and we’ll agree to dismissal of the lawsuit. Is that correct?
    If so, did the defendant agree to this stipulation and did the defendant pay that sum prior to the joint request for dismissal?

    1. David Greenwald Post author

      There are a lot of things that I don’t really understand about this suit and neither attorney got back to me to explain it. My understanding is that Merin got a $20,000 retainer. I don’t know how much of that was spent before the case got transferred to another attorney and then dismissed.

        1. Alan Miller

          Those who deserve respect, receive respectful inits.

          There are some in this town that I use those “the other way” inits in reference to, even if their name is Zelda Xray.

  2. Craig Ross

    A lot of silence on this from peopole who normally have a lot to say.  But it appears now that the FPPC and the DA will have the complaint and can do with it as they choose.
    It still seems pretty obvious that the lawsuit was used as a campaign tool.  Whether they can identify where the $20,000 came from is another factor.

    1. Matt Williams

      Very interesting Don.  I suspect you deleted a public conversation, not a private one.  I have had three conversations with Mark in the past two (probably closer to three) years, and all were public.  The most recent was at the post-election all-comers party this past June at the Sudwerk Dock where he approached me and loudly lambasted me for my very public advocacy for 5,000 to 7,000 student beds at Nishi.  Since I strongly believed in (and still believe in) the highest and best use of land principles I had fought for in the Nishi debates, I provided him with my counterpoint to his point. The back and forth that ensued was just as public a debate as the CivEnergy forum at Council Chambers where Robb Davis and I had a similar polarized public exchange.

      So, if your deletion was about that Sudwerk conversation, it was anything but private, as the people quaffing their post-election beers can easily attest to.

      The other two conversations happened when Mark spoke to me in my public figure role as (A) 2016 Council Candidate, (B) presumed 2018 Council Candidate, and (C) member of the Finance and Budget Commission.  In the first meeting Mark’s purpose in requesting the meeting was to ask me to take a public action, with an explanation about why he was making the request, and in the second meeting I provided him with an answer, with an explanation about why my answer was what it was.  Again, not a private conversation.  So, if your deletion was about those two conversations, you should have contacted Paul Harvey to get the rest of the story.  What you heard from Mark was only one side.

      Going back to my conversation with Jason, I often begin conversations like that one with the words “For the record …”  I do not remember whether I began that specific conversation with Jason with those words, but given the nature of the opinion I was going to share with him, it would not surprise me if I did.  Similarly, I often preface any question I ask with the words, “Please feel free not to answer this question if you do not want to, but …” That serves a similar purpose as “For the record …” and have often both been used by me within a single conversation.  I probably started my second conversation with Mark, delivering my answer to his request to him, with the  “For the record …” disclaimer.

      Bottom-line, I suspect your deletion was heavy-handed at best, and probably did not align with the Vanguard comment moderation guidelines.  I have sent this comment to both you and David by e-mail.

      1. Bill Marshall

        Matt… the “yes” folk had to disclose their contributions… for the record… and did, as I understand it…

        This is about the real possibility that the “no” side did not want to play by the rules (“same standards”), and wanted no “record”… and are still concealing their contributions, well past any reporting period.

        The “yes” folk did not bring a lawsuit to enhance their chances at the polls… the “no” side is accused of bringing a ‘untimely’ lawsuit (might even be frivolous, given lack of ‘ripeness’ that certainly any competent attorney, and many non-attorneys would know), apparently to affect voters who might well be swayed by “discrimination” cachet… meant to cast false aspersions specifically to get to a “no” vote.

        There is a world of difference (using “same standards”), and I say that as someone who was disinclined to vote for the project…

        The ‘bullet’ Phil referred to is especially troubling… the current effort is to find ‘the smoking gun’, as it were… and who ‘bought it’… depending on the outcome of the FPPC, might even engender a complaint to the State Bar as to a certain attorney’s actions…

        Just saying… 

        [Craig responded more succinctly, but is correct.]

  3. Bill Marshall

    Not sure we’ll get there, but I am of the opinion that the ‘truth will set us free’… just like the intent of the Mueller investigation… 

    Whoever paid for the untimely lawsuit is responsible for divisiveness, ‘poisoning the well’, pick your metaphor.

    1. Bill Marshall

      No problemo, Mark, now that you clarified …

      But your, and my thoughts, about ethics, still apply… what went down does not appear to be ethical… so many ways… the prostituting by the project proponents, with the ‘Davis first’ ploy to appeal to the ‘no growth’ folk, or “tweeners”, as to the vote… the lawsuit timed to appeal to ‘anti-discrimination’ folk who otherwise might not vote, or intended to sway the vote of “tweeners”… am seeing no “good guys” [not intended to be sexist]… 

      But, at the end of the day, not disappointed about the project moving forward (although I had/have serious reservations as to location and how mitigations will be handled), but am disappointed in the rhetoric/tactics used on both sides of the issue… which may still continue…

      We need more “grown-ups in the room”…
       

    2. Alan Miller

      am disappointed in the rhetoric/tactics used on both sides of the issue…

      Yeah, Ali or Fraser?  Is it possible both could simultaneously throw a punch and knock each other out, disqualifying both from the sport forever?
      Much to the benefit of Davis . . .

    3. Bill Marshall

      Alan, a weak metaphor… Ali/Fraisier… non-title (whereas measure L was about entitlements), and Ali won by unanimous decision (Measure L came nowhere close to that)… this is ‘fifty shades of gray’… haven’t seen it, but have seen enough (ads/trailers) that I don’t choose to see it…

  4. Rik Keller

    Let’s have an accounting of the Davis Vanguard’s shady complicity in WDAAC dark campaign money that point to campaign/ethical violations, including:
     – The Yes on Measure L/WDAAC campaign finance disclosures do not name any individual, so we have no idea where a $250,000+ in campaign money actually came from. Plus, there are hundreds of thousands of $ of de facto campaign expenditures before the ballot measure was approved that are unaccounted for. 
     – WDAAC was the largest advertiser on the Davis Vanguard for months, yet there are no listings in the WDAAC campaign filings about these thousands of $ in expenditures
     – The Davis Vanguard does not its list donors/funders–violating standard industry recommended ethical practice for 501(c)(3) journalistic operations
     – The required campaign disclaimer text did not appear on any of the Davis Vanguard advertisements made by WDAAC
    One wonders about the continuing willingness of David Greenwald and the Davis Vanguard to carry water for the large special interest money behind the WDAAC campaign.

    1. Bill Marshall

      Rik, sounds like you should file a complaint with the FPPC… have the CC forward it if you wish… fair is fair… assuming, you’re telling the truth…

        1. Alan Miller

          W.M. . . . I believe RK is making the point that with rhetoric one could spin what money spent looks like in the court of public opinion.  As I said, in my fight both dogs would go down, but the point isn’t the filing itself . . .

    2. Craig Ross

      Rik is doing an interesting diversion here.  As things stand, he faces significant legal jeopardy if the DA attempts to prosecute this case.  He could decide to charge it as a felony conspiracy by the Measure L team to hide financial records from the public.  Given that, Rik probably should not only get an attorney, but also stop posting self-serving diversionary comments in public.

  5. Eric Gelber

    From the Taorminos’ lawyer:

    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.

    As one of the impliedly uneducated voters of Davis, who opposed WDAAC based on its exclusionary character—in the form of age and buyer restrictions—I’m wondering when we will see a proposed final version of the Davis Based Buyer’s Program. That’s what we should be focusing on now, rather than petty and vindictive complaints based on misrepresentations of the allegations of the former lawsuit. (The quote above suggests the Taorminos’ lawyer doesn’t understand the difference between intentional discrimination and disparate impact discrimination.)
     

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