Guest Commentary: Yes on Measure L Campaign has “Unclean Hands” when Alleging Improper Financial Disclosures by No on Measure L

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

Attorneys’ Fees

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.

SUMMARY

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


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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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65 Comments

  1. Craig Ross

    Three very telling things in this very long article…
    1. I could have missed it since the article was so long, but I looked twice and saw at no point where he and the campaign team denied making the payment.  I find that VERY telling.
    2. He relies on a legal defense made by a non-lawyer.  So he is not looking at caselaw or court decisions or application.  The biggest problem that he has is that Trump is facing legal jeopardy over hush payments to a hooker.  If that’s a campaign expenditure, so is this.
    3.  He faces legal jeopardy and is not doing the wise thing – lawyering up.  The DA’s office is not be trifled with.  As I posted here last weekend, the DA could turn this into a felony charge if he decides to by calling it a conspiracy to hide the expenditure.  This is serious stuff and you don’t do an ill-considered 3000 word diatribe when you are facing felony charges – EVEN IF YOU BELIEVE YOU ARE INNOCENT

    1. Alan Pryor

       

      One curiosity for me is why the No on L campaign did not advertise in the Vanguard?

      Robert – it is a pretty simple answer!

      1) Because we didn’t have the money – Our total budget for the entire campaign was $8936.29. Just one month of Vanguard ads was $600.

      2) Why should we support a supposedly no-profit organization that was openly hostile to the No side by calling us liars and repeatedly “sitting down” with Taormino (Greenwald’s words, not ours) to craft articles and strategy on the Yes side’s behalf.

      BTW, I have a few questions for you as the Treasurer for the Vanguard. The Yes side spent $250,000 +/-  on reported donations and offsetting expenditures. None of these reported donations or expenditures listed the Vanguard for ads they ran during the campaign. So,

      1) Did the campaign or a proxy pay the Vanguard for the ads (which expeditures were not reported by the campaign)?, or

      2) If the campaign did not pay the the Vanguard to provide the ads, were they provided to the Yes campaign as “Non-monetary contributions” (which contributions were not reported by the campaign)?

      3) What was the fair market rate for the approximate 2 years worth of WDAAC ads run on the Vanguard?

      1. Don Shor

        3) What was the fair market rate for the approximate 2 years worth of WDAAC ads run on the Vanguard?

        The election was called by the council in June and occurred in November. July – November are the relevant months. “2 years” is not relevant.

        The ad rates are on a clickable link here on the Vanguard. You can do the math. 

        Did the ads change once there was an official campaign underway? Or were they still just generic WDAAC ads? Do those constitute campaign ads?

         

        Who recruited the plaintiff? Who paid the plaintiff’s attorney’s retainer?

        1. Rik Keller

          Don Shor:
          Their website now states “The West Davis Active Adult Community was approved by Davis voters on November 6, 2018.”
           
          Hmmmm. Where have I heard that name before? Ah yes: 
           
          “West Davis Active Adult Community [WDAAC] is the entity that funded the campaign. “WDAAC” is in the General Plan Amendment Resolution, “WDAAC” is in the Developmenf Agreement Ordinance, “WDAAC” is in the Ballot Question. “WDAAC” is in the ballot Argument in Favor. “WDAAC” is in the City Attorney’s Impartial Ballot Analysis. “WDAAC” is in the Rebuttal to Argument Against. WDAAC is in the City Declaration of election results…etc., etc. 
          But you insisting that WDAAC ads are not campaign ads?  Amazing!

        2. Rik Keller

          Don: for election violations, 2 years is perhaps not relevant. But it looks like the Vanguard and WDAAC violated election laws for months during the campaign.
          And for the full picture of how deep the Vanguard is in the pockets of the developers, 2 years is most certainly relevant.

    2. Alan Pryor

      The biggest problem that he has is that Trump is facing legal jeopardy over hush payments to a hooker.  If that’s a campaign expenditure, so is this.

      Huh?…What?…Are we now being indirectly accussed of conspiring to not report purported hooker payments as campaign expenses?

      I am clearly in over my legal head on this one!
       

      1. Craig Ross

        You’re definitely over your legal head, you’re facing a potential DA investigation, you don’t have a current project to oppose, I’m not sure why you are throwing chum in the water.  But you also didn’t understand my point which is that such legal payments can constitute campaign expenditures.

        1. Alan Pryor

          I’m not sure why you are throwing chum in the water.

          Because, kind sir, my honor has been challenged and my integrity impugned….Harrump

          …and writing an article rebuttal is safer than challenging them to a duel at dawn.

  2. Tia Will

    Ok. We have exemplified in one situation most of what I dislike about our adversarial system of justice. I find little here on either side regarding arriving at a just solution to a dispute. What I see is the usual vague comments, presentation of only one side, chest pounding, trotting out the heaviest hitters one can find and general trumpery arguments ( deliberate choice of adjective) associated with local politics especially as define land use issues in Davis. I am going to limit my comments to only one aspect although there are many. The appropriateness of any commentary at all.

    The Taoromino’s on several occasions demonstrated their combative nature both before and after the vote as did the No on L side. I would expect nothing different therefore on either side subsequently. Although I find it abrasive and unnecessary, it is within both sides right to present their arguments in the manner of their choosing.

    The Vanguard is a local news and opinion blog. It’s owner and principal author has every right to use his platform to express his opinion and has no obligation to convey what either side might wish as a matter of “fairness” under the First Amendment.

    What is appalling to me, is that members of the City Council, supposedly representatives of all members of the community would come out in support of generalized complaints about one side in the absence of very specific allegations backed by strong evidence. To me, this would seem to be a breach of their obligation to the community as a whole, not just the portion of the community with which they are philosophically aligned.

     

    1. Craig Ross

      I agree with most of your comment Tia.  I don’t understand where the council did wrong here – they simply voted in closed sessions to direct the complaint to the proper authorities – DA’s office and FPPC.  What’s the problem?

      1. Eric Gelber

        “What’s the problem?” The problem is that the City didn’t simply direct the complaint to the proper authorities. The City also weighed in on the merits of the complaint: “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.” Rather than being complicit, the City should have simply instructed the complainant to submit their complaint to the proper investigative entity or entities themselves.

        1. Bill Marshall

          Since the City was ‘also named’ in the lawsuit, does not the City have legitimate ‘standing’ to add their cachet?  The City acted to place the measure on the ballot…

          “merit further investigation” is just first blush, not a finding…

      2. Tia Will

        Craig

        Our comments are out of order. In addition to agreeing with Craig’s comment of  9:28, I would add that several of the council members made comments during the campaign that were not only in support of the project ( which I feel is entirely fair) but prejudicial against the No campaign, which I do not believe is seemly given their position.

         

    2. Rik Keller

      Tia: I strongly agree with this statement of yours-  “What is appalling to me, is that members of the City Council, supposedly representatives of all members of the community would come out in support of generalized complaints about one side in the absence of very specific allegations backed by strong evidence.”

      However, your statement about the Vanguard’s owner merely “using his platform to express his opinion” is problematic. WDAAC/Yes on L was the biggest advertiser on the Vanguard for months, was a contributor to the fundraiser at the highest tier (which, in a direct quid pro quo, got them the ironic title “Social Justice Champions”), and received special favors throughout the campaign, including David Greenwald sitting down with them an attempt to develop rebuttals in the infamous “highlighter” article in which unsubstantiated allegations of “150 lies” by the No on L campaign were recklessly trotted out.

      The Vanguard has no policies or procedures in place to stop these kind of egregious violations of standard ethical non-profit journalism guidelines. There is no editorial/advertising firewall. There is no transparency in disclosing advertising and donation sources. And as a result, rather than the “community watchdog” that it fancies itself,  the Vanguard is widely and rightly seen as a pay-for-play blog, bought and paid for by big-money development interests.

        1. Rik Keller

          Bill: The Vanguard comment section is not an appropriate place to discuss the lack of journalistic ethical standards by the Vanguard? But it is an appropriate venue for your untethered accusations? Ok, whatever, man.

    3. Bill Marshall

      Tia, there is a distinction… one party [not clear who all was involved] filed a lawsuit that “sniffs” of having no real merit, as a lawsuit, possibly to win a political ‘dispute’… the other party has requested an investigation into the behavior of the other… the lawsuit named the City as a ‘real party of interest’, along with the developer.
      The party who filed the lawsuit, has supporters who have now claimed the development team violated campaign laws… those supporters are perfectly free to file a complaint, requesting an investigation, with DA and/or FPPC and are equally free to ask the CC to forward it to those entities… thus far, the Alan Pryors/Rik Kellars have not apparently chosen to do so, but just impugn, via VG (and perhaps other social media) to make unsubstantiated claims, and suggesting that the ones asking for investigation “have unclean hands”, at length… 
      I invite Alan Pryor/Rik Kellar/others, to “put up or shut up” by filing their own complaints with the DA/FPPC… rather than just “throwing spaghetti” here…
      Just saying…

      1. Alan Pryor

        impugn via VG to make unsubstantiated claims and suggesting that the ones asking for investigation “have unclean hands”

        Actually I was not suggesting the Yes on L campaign has “unclean hands”, I am directly claiming that they do. And I point to specific expenditures in their financial disclosure filings I believe were illegal and specific sections of the FPPC disclosure manual that shows why they were illegal. I can’t be any more specific and substantiate my claims anymore than that…and which in itself is far more than the Yes campaign, Boutin, the City, and they Vanguard have done to support their wild speculations.

        I invite Alan Pryor/Rik Kellar/others, to “put up or shut up” by filing their own complaints with the DA/FPPC

        Now that’s a darn good idea!
        Spoiler alert!…The good stuff is still coming!

        1. Bill Marshall

          Spoiler alert!…The good stuff is still coming!

          “Teaser” (and when will it be ‘released’?), or more innuendo/spaghetti?
          And by “good stuff” does that mean the No on L folk will be freely releasing any and all contributions either by the campaign, and/or all financial records related to the engagement of the attorneys involved in the lawsuit?  Or, must we wait until those are requested/required by DA/FPPC?

      2. Eric Gelber

        “… filed a lawsuit that “sniffs” of having no real merit, as a lawsuit …” The sniff test is not a legal standard. The lawsuit was voluntarily dismissed on procedural grounds, not on the merits. On its face, the complaint clearly states a legitimate claim of disparate impact discrimination.

        1. Eric Gelber

          The premature filing of a lawsuit is improper; but it has nothing to do with the merits of the underlying allegations off the complaint. We’ll have to wait to see the final, approved version of the local buyers’ program to see if it passes legal muster. I’m skeptical.

        2. Bill Marshall

          As to the “local buyers program”, both as written in the past, and the concept itself, I have been and am a staunch opponent of that, and have said so repeatedly since it was first proposed…
          You may recall (or not) that I initially questioned its legality, and unequivocally have opined that even if legal, is bad public policy.
          But, the current topic is timing of the lawsuit, both as to merits, and the vote, and what will “following the money” tell us, to determine if, or if not, campaign financing laws were violated.  It sure seems like those who paid the retainer, and whether the “plaintiff” was also paid, and by whom, and why the money transactions apparently will never be willingly disclosed, is a legitimate public policy concern.

    1. Bill Marshall

      Funny you say that, Alan… 
      If Pryor/Keller/others actually reciprocate and file complaints, it is likely DA and FPPC basically will dismiss both as a “schoolyard spat”… despite the possible real violations… on either/both sides…

      Both have bigger fish to fry and neither will be compensated initially by the filers for their efforts…

  3. Don Shor

    I suspect most people don’t care about technical violations of the FPPC regulations. But it would still be useful to know:

    — who recruited the plaintiff?

    — who paid his retainer?

    Seems we never get answers to those two questions. 

    1. Craig Ross

      This isn’t a technical violation of the FPPC, this is hiding a large expenditure from the public… if that’s what a court determines happened.  This is a crime… potentially.

    2. Bill Marshall

      — who paid his attorney’s retainer? ?

      But if I misunderstood, perhaps the ‘plaintiff’ of record was also remunerated? That would even be a more interesting twist!  Where both the official plaintiff and the attorney were paid for “their services” by parties unknown… 
      Might be 3 questions, definitive answers to which may never be known…

  4. Craig Ross

    It’s interesting that both Alan Pryor and Rik Keller have posted numerous times, made numerous allegations and attacks, and neither have denied making the expenditure for the lawsuit.  They never said, “We never spent the money, it was someone else, so this is a non-issue.”  That’s pretty telling right there.

  5. Robert Canning

    Alan Pryor writes: “Most recently, in last Friday’s Davis Vanguard (“City Forwards Measure L Complaint to DA and FPPC”… David Greenwald authored an article repeating and supporting allegations by Mr. Boutin…”

    How does that article support Boutin’s allegations?

    (Disclaimer: I am a member of the Vanguard Board – Treasurer – but don’t have much say in what David chooses to write. Also, I voted NO on L.)

    1. Rik Keller

      Robert Canning: are you not aware of Greenwald doing legwork on behalf of WDAAC? 
      Since you are the Treasurer, you have the ability to provide transparency and disclose the total compensation that the Vanguard has received from WDAAC/Yes On L and related entities. You could also push forward the institution of  standard non-profit journalism financial transparency and firewall policies and procedures. 
      Here are some examples:
      http://www.investigativepost.org/about-us/transparency-policy/
      Do you disclose the names of your donors?
      Yes; we do not accept anonymous donations. We believe it is essential that readers know who is providing the funds that pay for our operation.
      The Institute for Nonprofit News, the trade organization we belong to, requires its members to disclose donations of $1,000 or more. We’ve taken it a step further with this thought in mind: New York State election law requires politicians to disclose donations of $50 or more. Given that Investigative Post is in business partly to hold politicians accountable, we think it’s important that we’re as transparent as candidates when it comes to disclosing our donors. In fact, we’ve gone a step further: not one dime goes unreported.
      Do you accept anyone as a donor?
      No. We do not accept donations from political parties, special interest groups or others whose donations would raise legitimate questions about the independence and integrity of our coverage.
       
      https://inn.org/for-members/membership-standards/
      Public trust in journalism is essential. To build and maintain trust, journalists and their organizations must be truthful, transparent and independent in their reporting in order to best serve the public.
      All INN members share a commitment to transparency and by becoming members, agree to publish policies regarding fundraising, donations and conflict-of-interest on their websites, in an effort to maintain reader trust….

      Ensure that no more than 5 percent of its total annual budget derives from anonymous donations.
      Post an editorial independence policy…

       
      https://www.wisconsinwatch.org/about/funding/fundraising-policy/
      All donations, sponsorships and other forms of financial support are subject to compliance with the Policy on Financial Support, including provisions for transparency, the disclosure of donors’ identities, and the prohibition on donations from political parties, elected officials, or others whose contribution may affect public perception of WCIJ’s independence…
       
      https://www.thetrace.org/editorial-independence-policy/
      The Trace does not accept donations from government entities, political parties, elected officials or candidates actively seeking public office.

      1. Robert Canning

        Rik Keller says: “are you not aware of Greenwald doing legwork on behalf of WDAAC? 
        Since you are the Treasurer, you have the ability to provide transparency and disclose the total compensation that the Vanguard has received from WDAAC/Yes On L and related entities. You could also push forward the institution of  standard non-profit journalism financial transparency and firewall policies and procedures.”
        What do you mean by “legwork on behalf of WDAAC”? That’s quite an assertion. Is it backed up by evidence? David was certainly in favor of the development (just as he has favored other developments in Davis). 
        I’m not interested in getting into a p**sing match with you since it is obvious that you and Alan have strong opinions about the Measure L campaign and the way different parties behaved.  I don’t particularly like the Taormino’s and the way they do business. And I don’t agree much with Greenwald’s opinions about development at times. But I also don’t like the way that the NO campaigns in this town work to distort facts and sway voter opinion at times.

        1. Rik Keller

          Robert Canning: why don’t you want to push for ethical and transparent 501(c)(3) journalistic practices and disclose the dark money paid to the Vanguard by WDAAC/Yes on L and related entities?As far as legwork: Among other things, Greenwald was not happy with the responses provided by the Yes on L campaign, so he sat down with them for hours to coordinate and publish a rebuttal (the infamous “highlighter” article that made baseless allegations of “150 lies”). He has also been conducted his own investigations of the lawsuit and feeding information/allegations directly to WDAAC. Ask him about that…

      2. Tia Will

        Rik

        “why don’t you want to push for ethical and transparent 501(c)(3) journalistic practices and disclose the dark money paid to the Vanguard by WDAAC/Yes on L and related entities?”

        I am puzzled. What is this “dark money” of which you speak?  You speak of paid ads which is definitely true, but hardly “dark” since they are clearly posted on the Vanguard for everyone to see and for everyone to take out if they care to pay the money. At Vanguard events and forums, the sponsors are clearly listed either on the program, on a prominently displayed poster or from the podium by David.  We also get money from regular subscriptions. So in the interest of transparency, can you tell me what funds you are speaking of, and your source of information.

        For full disclosure, I am also on the editorial board but my interest is content, not finances & news of which passes directly from David’s mouth over my head. I also opposed Measure L and am frequently ( although not always) on the opposite side from David on development/building issues.

         

         

        1. Rik Keller

          Tia: it is “dark” because: 1) the expenditures have not been accounted for by either WDAAC or the Vanguard, 2) we don’t know where this $ is coming from (WDAAC is the only listed entity on the Yes on L funding and we have no idea who that $ passed through first); 3) the Vanguard is engaged in deeply shady practices by accepting this $ in the first place, much less with all the water carried for the Yes campaign throughout.
          It is bizarre that both you and Robert  Canning suggest that the opposition should have paid for ads in the Vanguard as a solution. The point is that the Vanguard should not be taking money from political campaigns (especially ones about which it writing about non-stop and providing assistance to) at all. And a larger point is that the development campaign spent approximately 30x what the opposition campaign did, to the tune of about $18 per every “yes” vote they received.
          In an earlier comment I provided some examples of the type of ethical, transparent disclosure and editorial firewall practices that other non-profit journalistic enterprises across the contrary use. The Vanguard follows none of these. As a Board member you should move to fully disclose the WDAAC and related-entity funding that the Vanguard received in this past campaign cycle, as well as institute best practices moving forward.

  6. PhilColeman

    This column rebuttal is lengthy and detailed but does not address the primary issue that gave rise to the investigation request. Passing mention was made to dark money but no illumination is offered to help us understand the actual source of the retainer leading to the federal lawsuit filing.
    We understand the legal constraints with campaign funds received and their subsequent use as attorney fees. We who are still in the dark are still wondering where the $20K retainer came from and did the defendant reimburse the Merlin retainer fee as a condition of the mutual dismissal after the election? As the primary financial officer for the No on L Campaign please tell us anything you might know about the receipt and disbursement of this considerable sum of money.
    Finally, a request of the Vanguard Editor, easily answered, one that will address the repetitive complaints of favoritism or journalistic bias by this publication.
    Did the Vanguard every receive a request and payment to publish an advertisement from the Non on L Campaign? Knowing of the ever-perilous financial situation of the Vanguard operation, I suspect they would publish just about any political ad, provided it came with a check. But let’s find out.

  7. Robert Canning

    Keller says: “why don’t you want to push for ethical and transparent 501(c)(3) journalistic practices and disclose the dark money paid to the Vanguard by WDAAC/Yes on L and related entities?As far as legwork: Among other things, Greenwald was not happy with the responses provided by the Yes on L campaign, so he sat down with them for hours to coordinate and publish a rebuttal (the infamous “highlighter” article that made baseless allegations of “150 lies”). He has also been conducted his own investigations of the lawsuit and feeding information/allegations directly to WDAAC. Ask him about that…”

    “Dark money”? Really? Do you have any evidence to back up this assertion? Also, neither you or Alan Pryor answered my first question about how the 2/8/19 article “supported” the referral. 

    And how do you know Greenwald “sat down with them for hours to coordinate and publish a rebuttal…”? 

    You make a number of allegations and seem to have some sort of inside knowledge about how the Vanguard operates. How do you know these things?

    One curiosity for me is why the No on L campaign did not advertise in the Vanguard? As Phil Coleman points out, the Vanguard is a low-budget operation and advertising is available to all comers.

    1. Alan Pryor

       

      One curiosity for me is why the No on L campaign did not advertise in the Vanguard?

      Robert – it is a pretty simple answer!

      1) Because we didn’t have the money – Our total budget for the entire campaign was $8936.29. Just one month of Vanguard ads was $600.

      2) Why should we support a supposedly no-profit organization that was openly hostile to the No side by calling us liars and repeatedly “sitting down” with Taormino (Greenwald’s words, not ours) to craft articles and strategy on the Yes side’s behalf.

      BTW, I have a few questions for you as the Treasurer for the Vanguard. The Yes side spent $250,000 +/-  on reported donations and offsetting expenditures. None of these reported donations or expenditures listed the Vanguard for ads they ran during the campaign. So,

      1) Did the campaign or a proxy pay the Vanguard for the ads (which expeditures were not reported by the campaign)?, or

      2) If the campaign did not pay the the Vanguard to provide the ads, were they provided to the Yes campaign as “Non-monetary contributions” (which contributions were not reported by the campaign)?

      3) What was the fair market rate for the approximate 2 years worth of WDAAC ads run on the Vanguard?

    2. Rik Keller

      Robert Canning: it would be a simple matter to provide transparency for the money that the Davis Vanguard received and to institute proper policies moving forward. But your solution for that highly unethical behavior is for other campaigns to donate money too for better coverage? That’s a nice shake-down racket you are suggesting.How do we know that Greenwald sat down with the developers to do that stuff? Because he wrote about it. P.S. the $3,000 food expenditure that WDAAC/Yes on L donated for the Vanguard fundraiser (that got them the moniker of “Social Justice Champions”) was, by itself, about 1/3 of the total budget of the No on L campaign. We don’t know how much other advertising $ and other donations that WDAAC and other entities pumped into the Vanguard, because No on L did not disclose it and because the Vanguard has not disclosed it. That is the very definition of “dark money”.

      1. Tia Will

        We don’t know how much other advertising $ and other donations that WDAAC and other entities pumped into the Vanguard, because No on L did not disclose it and because the Vanguard has not disclosed it. That is the very definition of “dark money”.

        So since I know nothing at all about this, I can honestly ask the obvious question. If none of it has been “disclosed”, how do you even know that it exists?

        1. Rik Keller

          Tia: the only thing disclosed by Yes on L/WDAAC  is the $3,000 spent on Froggy’s and donated to the Vanguard fundraiser. There were two years’ worth of advertising by WDAAC on the Vanguard–including WDAAC being the largest advertiser on the Vanguard for months during the campaign–which was either purchased on in-kind donations, but neither Yes on L/WDAAC has disclosed these amounts. Also, in the Yes on L campaign disclosures, the only entity listed as providing money was WDAAC. No individuals are listed, and there is no information about where/how the money flowed into WDAAC.

          1. Don Shor

            And the funny part is the advertising rates are posted on the Vanguard and always have been. Just click on the link.
            Advertising for the project before the election was called by the council wouldn’t have been a campaign expense.
            It’s questionable whether generic ads for WDAAC, non-advocacy, would have qualified as campaign ads. I suspect only “Vote Yes on Measure L” ads would constitute campaign expenses. And the total $$$ for the monthly cost of the WDAAC ads, campaign or not, isn’t $20K during the period of the election campaign.
            So:
            Who recruited the plaintiff?
            Who paid his attorney’s retainer fee?

        2. Rik Keller

          Don Shor said ”It’s questionable whether generic ads for WDAAC, non-advocacy, would have qualified as campaign ads.”
          This is a joke, right? 
          How much money has the Vanguard received from WDAAC and related entities in the past two years?

  8. Tia Will

    Robert is busy doing some consulting work at the moment and is not seeing your posts. So that you do not feel he is avoiding you, I am going to state the following. Robert assumed his position of Treasurer in the last couple of months and has not yet even had his first review of the books. I post this just so you know that he was disclosing his position for purposes of transparency, but will not be able to do justice for these questions prior to such review.

  9. Craig Ross

    I find it interesting that Keller demands answers and yet neither he nor Alan Pryor provide the most basic answer – did they fund the lawsuit?  The answer seems obvious at this point, but it would be nice is they deliver on what they have demanded – transparency.

    1. Craig Ross

      I find it amusing that these guys are all about transparency and open government and they want Measure R, but they won’t answer the simple question about the $20 thousand.

  10. Tia Will

    Rik

    It is bizarre that both you and Robert  Canning suggest that the opposition should have paid for ads in the Vanguard as a solution.”

    I don’t see how pointing out that ad space is available on the Vanguard for essentially whomever wants to spend their resources that way is bizarre. Neither Robert nor I said anyone “should have paid for ads in the Vanguard “as a solution”. Only that it is widely available. There is nothing in that statement that is not both straightforward and true.

    Once again I do not know what money you are talking about. It might be helpful if you were to state what amount and how you learned about it since you seem to think you know more about it than I do which is quite possible since I know about no “hidden money”.

    1. Rik Keller

      Tia: why did Robert specifically ask why the “No” campaign didn’t purchase ads? That’s just bizarre. And why are you pointing out that anyone can purchase ads? That’s a non sequiter.
      The larger point is that ethical, transparent nonprofit journalism enterprises have strict rules against accepting that kind of money. 
      Since you are on the Board, you could push forward a proposal to disclose all money that the Vanguard has received, in accordance with nonprofit journalism best practices. A starting point would be to disclose all the money that the Vanguard has received from WDAAC and related entities in the last couple of years. 
       

  11. Tia Will

    Rik

    I would like to loop this discussion back to my original statement. I dislike the adversarial nature of our legal and political processes. My preference would be for developers, prior to putting forth a plan, to consult with all likely stakeholders to develop a plan that is likely to address all salient concerns early in the process. I would like those who oppose development to bargain in good faith using real concerns based on evidence, not simply personal preference. I would like all concerned to aim for development that meets real demonstrated community needs rather than “we thought it would be nice to have”based on personal experience and preference. I would like transparency by all sides.

    I think that any suggestions we make about how others “should act”, we should be willing to apply to ourselves equally.

  12. Rik Keller

    Tia:You had a lot of questions about my statements about the Davis Vanguard’s  complicity and collusion with the WDAAC campaign. When I provided additional information and clarification, you now just want to “loop back” the discussion. When will the Davis Vanguard Board step up and demand the kind of transparency, accountability, and ethical guidelines that are standard operating procedure for non-profit journalistic enterprises across the country?

      1. Rik Keller

        Carol, here’s some transparency:  I have published a series of long-form essays on the topic of housing discrimination in Davis. That is my interest. That and getting big money specusl interests colluding with supposed journalistic enterprises out of our local politics.

        1. Rik Keller

          Just as an observation: Vanguard Board members Tia & Robert got really quiet once they realized the extent of Greenwald’s complicity, collusion, and possible campaign violations with WDAAC. 
          Should they decide to implemrnt  standard ethical non-profit journalism disclosure standards it’ll be really interesting to see the tens of thousands of $ that the Vanguard has received from development interests over the past few years.

        2. Bill Marshall

          Since you and Alan P, in particular  (and others), have asked others to “show the money”, so as not to be a hypocrite, y’all should do the same… “follow the money” is a good mantra, no matter what side…
          I say that as someone who voted No on L, but am getting sick and tired of the rants of some… wish we had a “re-do”, and I’d vote Yes… primarily by the continuing tactics/reactions of the “no” folk…
          As I’ve said/posted many times, agree with Eric and others that the “Davis First” concept was bogus, likely illegal, and bad public policy in any event… 
          But methinks you obfuscate… big time.  This is the most recent.
          The “Davis First” thing was not part of “L”… not baseline.

  13. Alan Miller

    Hello everyone,

    Wouldn’t it be great if the “Yes on L” and “No on L” people sued each other and took each other to court, and ended up spending all their resources attacking each other, suing each other, and also ended up in jail on felony campaign violations?  Then we’d be rid of all of them.  I think this would be a good thing for Davis.

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