by Alan Pryor
The “unclean hands” legal doctrine is where one party in a legal dispute argues the other party is not entitled to obtain an equitable remedy because the other party is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with “unclean hands”.
David Taormino is the principal promoter of the West Davis Active Adult Community (WDAAC) which was recently approved by the voters of Davis on the November 2018 ballot as Measure L. During the course of this campaign, a federal lawsuit was filed by the well-known Sacramento civil rights attorney, Mark Merin, against David Taormino and the City of Davis. This lawsuit alleged that a preferential “Davis-Based Buyers Program” in the Development Agreement signed between the Davis City Council and David Taormino was discriminatory and exclusionary in nature. Thus, it was illegal because it favored Davis residents or people connected to Davis who are predominantly white. However, this Development Agreement was NOT part of the ballot measure put before the Davis voters and the lawsuit was unrelated to the issues before the voters on the ballot.
Readers can get more information on the specifics of this lawsuit by referring to the following articles – “Planned West Davis Adult Community, if Approved, Would Perpetuate Racial Imbalance in the City of Davis” and “Measure L discriminates Against Blacks and Latinos”.
Mr. Taormino as defendant is represented in this matter by Stephen Boutin of Boutin Jones. Boutin Jones is a Sacramento-based law firm with almost 50 lawyers on staff who represent only business interests. Mr. Boutin is also a member of the “Advisory” council for West Davis Active Adult Community.
After the election, Mr. Taormino and Mr. Boutin have both made ambiguous but inflammatory allegations of nefarious behavior and improper reporting of campaign expenses by the No on Measure L campaign related to this lawsuit. In particular, they have claimed that legal expenses incurred in the prosecution of the Merin lawsuit should have been paid for directly by the No on Measure L campaign and subsequently reported as a campaign expenses by the campaign. We vehemently disagree with and dispute all of these allegations. We note to the contrary that California election law specifically disallows campaign monies to be used for these type of litigation expenses.
Most recently, the Davis City Council was petitioned by Mr. Taormino and Mr. Boutin and then agreed to send a letter to the Yolo County District Attorney and California Fair Political Practices Committee (FPPC) requesting investigations of these alleged wrong doings by the No on Measure L campaign and to determine whether any campaign expenditure or finance reporting violations have occurred.
These spurious allegations are patently false and obviously intended to be inflammatory rather than factual. For instance, Mr. Boutin alleges “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.” These unsubstantiated claims have been recently parroted by David Greenwald of the Davis Vanguard, and City of Davis Councilmembers Lucas Frerichs and Will Arnold.
Of note, neither Mr. Taormino’s or Mr. Boutin’s claims were supported by ANY references to ANY specific sections or citations of California election laws in their public promotion of their allegations. No were any specific allegations made by the Davis City Council in their letter to the Yolo County District Attorney or the FPPC. They were only made references and vague warnings of dark money and the possible subversion of the Davis electoral process. As such, it seems apparent that these actions were taken by Mr. Taormino and Boutin in collusion with the Davis City Council in a direct effort to intimidate potential challenges to this and future development projects in Davis.
Ironically (but perhaps not surprisingly), it is actually the Yes on Measure L campaign that has made numerous non-allowed campaign expenditures for attorneys’ fees as disclosed in their financial disclosure documents and further disclosed below. Further, because these willful actions and campaign expenditures for attorney’s fees taken by the Yes on Measure L campaign seemingly directly conflict with California election campaign laws, they themselves have “unclean hands” in this matter.
Let me explain.
FALSE ALLEGATIONS BY THE YES ON MEASURE L CAMPAIGN AND THEIR PAID SURROGATES
As discussed above, David Taormino and his attorney, Stephen Boutin, have alleged improper and/or illegal involvement in the Merin lawsuit by the No on Measure L campaign. The Davis City Council through their Councilmembers have publicly repeated these vague and unsubstantiated allegations and have voted to refer the matter to the FPPC and the Yolo County District Attorney for investigation.
Yet not a single allegation or claim anybody has made is supported by any reference to a single specific campaign disclosure law they allege has been violated. Instead, Taormino and Boutin, and the Davis Vanguard along with the Davis City Council, only allege that there may be “dark money” which is a “direct threat to the integrity of the Davis election process”.
In fact, according to specific references on the use of attorney fees for campaign expenditures in the FPPC’s Disclosure Manual for local ballot measures, these claims of impropriety made by Taormino and his surrogates against the No on Measure L campaign are completely false. Further, making these unsubstantiated allegations without any conclusive evidence to support them demonstrate either a clear ignorance of California campaign expenditure and reporting requirements concerning attorney’s fees or it is an intentional effort to intimidate future opposition to City-sponsored development projects. Either option is very disturbing.
Most recently, in last Friday’s Davis Vanguard (“City Forwards Measure L Complaint to DA and FPPC” – https://www.davisvanguard.org/2019/02/city-forwards-measure-l-complaint-to-da-and-fppc/), David Greenwald authored an article repeating and supporting allegations by Mr. Boutin that the No on Measure L campaign may have been directly or indirectly involved in the Merin housing civil rights lawsuit and that any fees paid to Merin should thus have been disclosed as campaign-related expenditures. As shown in that article, a letter was written by Stephen Boutin, a lawyer and member of the Yes on Measure L campaign advisory committee, to the City stating in part,
“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.” (Emphasis added)
Wow, really? Uncovering an “influence campaign” that is a “direct threat to the integrity of the Davis election process” sounds very serious indeed; even “dark” and “nefarious” as alleged by our City Councilmembers Lucas Frerichs and Will Arnold who have chimed in on the topic. Councilmember Arnold even went so far as so use the hashtags “#darkmoney” and “#shadyaf” in a re-posting of the allegations made in the Davis Vanguard.
First, let’s get real here and dismiss the over-the-top hyperbole. Is not every single election campaign an “influence campaign” by definition? Of course they are for God’s sake! That is the exact reason and whole purpose of any political campaign exists.
Is not the money paid by the Yes on Measure L campaign to run ads in the Vanguard, the Davis Enterprise, and the Aggie, etc. and all of their mailers and non-profit event sponsorships part of an “influence campaign”? Of course it is.
In many respects, the City itself was part of the Yes on Measure L “influence campaign”. In fact, in this particular campaign I found myself in a public forum debating another member of the Davis City Council, Dan Carson, who was one of the representatives of the “Yes on L” campaign. On this basis alone it would certainly seem that the City itself was participating in one of those dark, nefarious ”influence campaigns”.
OK, but that was all during the campaign. You can understand trying to “influence a campaign” up to when the vote is actually made. But here we are 3 months later and the City is now putting on this full-court press to supposedly defend Davis democracy…?
So I have to ask myself, “What is going on here? The campaign is over, they won the election, the lawsuit is dismissed (for now); why would they even want to bring up the sore issue of the lawsuit and put the racially charged topic back before the public?”
Well, given 1) The grandiosity but lack of specificity of Mr. Boutin’s letter and allegations that were presented to a closed door session of the City Council and then made public by the Davis Vanguard, combined with 2) the subsequent highly publicized disclosure by the City Council that they are referring the matter to the District Attorney and FPPC for investigation; it seems the real intentions of these orchestrated allegations go way beyond protecting Davis democracy from “influence campaigns”.
Rather it is part of a well-funded plan and intentional effort to intimidate future legal and campaign opposition to this and other future City-supported development projects subject to Measure J/R votes. The City Council is clearly on record as very strongly objecting to the past number of lawsuits that have been filed about Davis development projects. They have had a number of discussions on how to limit them in the future. Well, it seems that here they are going to try intimidation.
These exact intentions of the City are clearly confirmed here as directly referenced in Mr. Boutin’s letter to the City Council where he states, “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.” (Emphasis Added) The use of these strong-armed public and personal attacks by a governmental agency in collusion with the developer and local press is the true subversion of the democratic process here.
However, more to the specific points alleged by Taormino in Mr. Boutin’s letter (and dutifully immediately published by the Vanguard), he alleges, the “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.” And he further stated, “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.”
Shamefully, without any references to any specific legal statute or any ordinance that was purportedly violated by the No on Measure L campaign, this claim amounts to little more than Trumpian campaign rally chants of “Lock her up… Lock her up!” as Trump implored the FBI to further harass and intimidate Hillary Clinton through spurious investigations .
These false allegations have been re-shouted by Taormino, Greenwald, and even by our own City Councilmembers over and over as they jumped into the fray at Taormino’s urging and request. This coordinated chorus all make the same general allegation:
Fees paid to Mark Merin to prosecute a federal housing civil rights violation case arising out of the Buyers Preference Program contained in the Development Agreement between the City and Taormino somehow constitute “dark money” used for “nefarious purposes”. And such expenditures (and donations to pay for the legal fees) should have been run through the No on Measure L campaign and reported as campaign donations and expenditures.
There is one major flaw in their collective howling, however: State election law clearly prohibits a campaign from expending campaign dollars for such a lawsuit and such expenditures would be considered illegal if they were made by the No on Measure L campaign – exactly the opposite of what is alleged by the chorus of Taormino, et al., and dutifully trumpeted by the Davis Vanguard!
Unfortunately, had Mr. Boutin or Mr. Taormino, or the Vanguard or Will Arnold or Lucas Frerichs or Harriet Steiner (the City attorney) even bothered to read the FPPC ‘s own guidance on use of campaign funds for attorney’s fees, they would have instantly realized that if any campaign donations were used to fund the Merin housing civil rights lawsuit as Taormino and the Davis Council allege has occurred, that would be an illegal use of campaign funds according to the FPPC itself!
The FPPC guidance on use of campaign funds to pay attorney’s fees is very succinct and clear and posted on their website at http://www.fppc.ca.gov/learn/campaign-rules/campaign-disclosure-manuals.html. (See Manual_3_Ch_5_Use_of_Campaign_Funds.pdf
Generally, attorneys’ fees and other costs related to administrative, civil, or criminal litigation may not be paid with campaign funds.
However, where the litigation is directly related to activities of the committee that are consistent with its primary objectives, campaign funds may be used to pay for expenses related to the following:
- Action to halt defamation;
- Defense of an action to halt defamation;
- Defense of an action for violation of state or local campaign, disclosure, or election laws;
- Litigation to secure a place on the ballot or challenge the wording of the ballot pamphlet;
- Contest an election;
- Election recount; and
- Compliance expenses (for example, completing campaign disclosure reports).”
The federal housing civil rights complaint filed by Merin does not even come close to meeting any of these allowed uses of campaign funds for attorney fees. To emphasize this point and clarify the scope and intent of the Merin lawsuit, it is worthwhile to note that the lawsuit by Merin, in particular, did NOT challenge the legality of the election or attempt to pull the election from the ballot and prevent the project from being put before the voters. Specifically, it did NOT petition the court for a temporary restraining order or stay of the election to prevent a vote by the people or request any injunction challenging the integrity of the election (i.e. “Contest an Election”).
Rather, the Merin lawsuit only very narrowly challenged one clause in the Development Agreement that was not even being voted on by the voters. That clause entitled a “Davis-Based Buyers Program” which would give preferential buyer rights of new homes first to Davis residents and people past connected to Davis . The lawsuit claimed this constitutes a continuing pattern of de facto housing racial discrimination in the City and is discriminatory and not allowed under federal law. However, none of that was part of what the Davis voters were voting on in the ballot.
Based on these incontrovertible facts, if the No on Measure L campaign actually DID raise money for and pay attorneys’ fees for the Merin lawsuit and they were reported as campaign expenditures by the No on Measure L financial filings, it would be a clear violation of FPPC requirements for use of campaign funds for attorney’s fees. This is exactly the opposite of what Taormino and Boutin and the City and David Greenwald allege.
It is absolutely not credible and somewhat beyond belief that nobody in the Yes on L campaign or Mr. Boutin or anybody in City Hall or on the City Council itself or Mr. Greenwald (who likes to portray himself as well-versed in election and legal matters) even bothered to read the FPPC Disclosure Manuals before making their outlandish allegations of misdeeds by the No on Measure L campaign.
These official FPPC Disclosure Manuals clearly articulate what are allowable legal expenditures by campaign committees for attorney fees. And these guidance manuals unambiguously state that it would be illegal if the No on Measure L campaign did accept campaign donations and then used them to finance such a lawsuit as filed by Mr. Merin.
If this knowledge was known and the City continued to represent that the No on Measure L campaign has not correctly followed the letter of the law with respect to payment of and disclosure of Attorney’s Fees, then they are intentionally engaging in the Trumpian campaign strategy of repeating a lie often enough to try to convince everyone it is the truth.
THE YES ON MEASURE L CAMPAIGN HAS “UNCLEAN HANDS”
In fact, ironically, it is the Yes on Measure L campaign itself that has apparently violated campaign laws by illegally using campaign money to pay for legal expenses specifically not allowed by the FPPC Disclosure Manuals.
For instance, following are the campaign expenditures paid by the Yes on L campaign to attorneys for legal work during the course of the campaign.
It is believed that NONE of these Yes on Measure A paid and accrued legal expenditures of almost $70,000 for attorney’s fees meets any of the uses allowed in the FPPC Disclosure Manuals and their use therefor appears to be a clear violation of campaign fund uses and reporting by the Yes on Measure L campaign.
So it would otherwise appear that it is actually the Yes on Measure L campaign that was the illegally using campaign funds to pay their unallowable legal expenses and all the while clamoring through their bullhorn that the No on Measure L side was violating FPPC election standards and subverting Davis democracy.
The “pot calling the kettle black” is also an old Trump campaign tactic that the Yes on Measure L campaign and the Davis Vanguard now seem fully willing to embrace.
In summary, I welcome the scrutiny that any Yolo Co DA or FPPC investigation may bring. I am confident that the No on Measure L Committee has not committed any campaign expenditure or reporting violations. And I certainly look forward to sharing information on the Yes on Measure L campaign’s election expenditure on legal fees if the Yolo Co DA or FPPC comes knocking on my door.
I also welcome the additional scrutiny that their tactics bring to the issue of discriminatory preferential buying policies allowed by the Council for this project and am pleased the promoters seem intent on keeping the issue alive before the public as the Council considers finalizing the ill-advised “Davis-Based Buyers Program”.
But it is dismaying that the City Council and Staff have resorted to political thuggery using vague allegations of misdeeds without a shred of evidence to try intimidate future opposition and lawsuits. This whole issue is clearly an obvious attempt to squelch dissent and opposition or lawsuits to future development projects they are envisioning.
Quite honestly, this display of civic chest-beating by our City Council has had quite the opposite effect on me and others I have talked to. Many feel these means and methods used by this Council only make them more suspect of the Council’s future intentions and plans.
Alan Pryor was the Treasurer and Principal Officer of the No on Measure L campaign