As I wrote up the article on the city council’s public announcement of closed section actions of referring complaints to the DA and the Fair Political Practices Commission, I took a look at the letter Alan Pryor sent earlier this week to the council.
Mr. Pryor claims to have been “unfairly and slanderously maligned and libeled and subjected to further expense to defend myself by these unwarranted and unsubstantiated allegations.”
But what really struck me was his denial that the allegations are “flat out false.”
He writes, “This is because according to the FPPC’s own campaign finance and disclosure guidelines, it would actually be illegal if the No on Measure L campaign actually used campaign funds to finance such a lawsuit.”
In other words, Mr. Pryor is claiming that they could not have broken the law because that would be illegal? Somehow I’m thinking that explanation would not hold up in court. Can you imagine, the defendant going before Judge Rosenberg and stating, your honor, that would be illegal, I couldn’t have done that?
The reality is that I don’t think anyone believes that the No on Measure L campaign as a formal organization is the one that paid the $20,000 retainer to Mark Merin. Instead, it is far more likely that an individual member of that team did so.
What I find interesting is that, with all of the allegations and counter-allegations along with the denials, there was never a statement by Mr. Pryor or anyone else that they had not individually paid for the lawsuit or that they were not involved with it whatsoever. No one has directly confronted the core issue here.
The question then moves from the black and white bright line question of legality to a more gray area, which is where I think all of this lies. Let us suppose someone from the campaign individually or a group of someones collectively paid for the retainer – is that an effort to influence the election and should that have been reported? Just as the Trump hush money *could* be considered a campaign expense, you have to look at litigation aimed to influence the electorate in the same light.
But that is not the end of the story here – in fact, that is just the start. The question is if the campaign violated the law here, what are we looking at?
You could make a case where if they were intentionally setting about to make and hide these contributions, that could in fact constitute felony conspiracy. The problem with a conspiracy charge – as some have suggested – is that it requires a concerted effort to conspire to break the law. Unlike other charges where ignorance of the law is no excuse, to sustain conspiracy, it is a specific intent law – not only do you have to break the law, you must have acted in concert with the specific intent of doing so. And it seems far more likely that there was no such intention here – they simply believed that a lawsuit was separate from the campaign.
It might be a good idea for the FPPC to look at such actions, especially as they are put forward in an increasing way to influence campaigns – but, realistically, it does not seem likely that the DA would need, let alone want, to get involved here.
Meanwhile, the opposition has charged that the developers also broke campaign laws for failing to disclose an ad to the Vanguard. They believe that donating food to the Vanguard fundraising event was improper, that they had used campaign funds for attorney fees improperly and that they had “laundered” funds from a non-legal entity.
It is hard to know what this all amounts to without diving a lot further into the nuances than seems necessary at this time. But I would suggest there are two likely outcomes here.
The first is that once again there are gray areas about what can and cannot be done with campaign funds and there especially gray areas with respect to the fact that campaign-related expenses may have been expended long before there was a campaign.
In the end, the result of all of this could be a fine paid by the developers on top of their huge expenditures that they will be laying out in order to not only run the campaign, but run the normal planning process and finally building the project.
As was the case involving the No side, if there were violations, it is more likely that they fall into the category of unwitting and arising from the complicated nature of campaign laws – of which David Taormino is probably less than familiar with.
The city may want to look at disclosure rules and how to more clearly delineate what constitutes a campaign expenditure and what is part of the normal development process, which itself has public outreach components.
As I suggested in a previous column – this pox on both their houses actually serves to undermine the Measure R process, as it looks like both sides are guilty of misconduct and perhaps even hiding the true extent of their campaign conduct.
In reality this could simply be run-of-the-mill campaign finance violations, most of which occur all the time due to the complexity of reporting requirements and overlapping jurisdictions, which have been blown up beyond all reasonable proportions.
My view is, as with the fiasco involving the Maria Grijalva situation, the DA will not want to touch this with a ten-foot pole and all the FPPC can and will do is issue a fine.
In the meantime, it is time to put this campaign to rest and move on to other topics with which the council and voters must grapple.
—David M. Greenwald reporting