Commission declines action against MAPF
After reviewing the complaint by Truckee resident Harry Smith against the Mountain Area Preservation Foundation, the Fair Political Practices Commission has closed its consideration of the matter without enforcement action – placing the case back with Nevada County Court Judge Ersel E. Edwards.
The suit was initially filed last fall shortly before the controversial Truckee land-use election concerning proposed development at Boca Sierra Estates north of the Interstate 80-Highway 89 intersection.
“After reviewing the complaint and the material sent by multiple parties, including declarations, legal drafts and constitutional arguments, the Enforcement Division has decided to close this matter without formal enforcement action,” FPPC enforcement division chief Darryl East wrote in an April 16 memorandum to Judge Edwards.
“We have determined that the nature of the potential violations would tax our already scarce resources to investigate. In addition, the issues raised in this complaint are of a nature that we would not normally initiate an investigation.”
East requested that the FPPC close the matter due to the lack of resources, and allow the parties involved to go forward in the discovery process so the court can make factual findings and issue whatever orders it deems appropriate.
Last week, Smith’s attorney Robert Tamietti, said MAPF declined an offer to settle with his client on the following terms:
— MAPF must disclose in amended public campaign filings the full cost of the full page advertisement MAPF placed in the Sierra Sun on April 17, 1997, the full costs of a public opinion poll conducted by MAPF in March of 1997, and the identities of donors and the amounts of money they each donated to place the ad and conduct the poll.
— In return, Smith offered to give up his claim for attorney’s fees and costs he has incurred in seeking the disclosures, and offered to waive his ability to recover monetary damages against MAPF equal to the amounts that he alleges MAPF and the committee failed to report.
“MAPF and its Committee refused to accept Smith’s offer because they do not want to identify the individuals who bankrolled the Measure M campaign,” Tamietti wrote in a press release Monday, May 18.
Tamietti provided a copy of a letter sent to MAPF, stating that the offer had a deadline of May 18, and confirmed that the group had not accepted the offer by the end of the day.
“I am trying to resolve this in a fair manner,” Smith said in the release. “It’s just a shame we have to sue MAPF to make them tell the truth. If MAPF had just played by the rules and disclosed all of the money they spent promoting their campaign, we could have avoided the whole problem.”
But the opinion of MAPF’s attorney, Patricia Johnson, is quite different regarding the FPPC memorandum. Johnson said in her opinion the memorandum is not as favorable to Smith’s case as he believes.
“We disagree with his [Tamietti’s] interpretation,” Johnson said. “We find the memorandum to be more favorable to us than to him. The ruling is not as favorable to him as he believes.”
She also said MAPF has not turned down the offer, as reported by Tamietti in his release.
“We did not turn down the offer,” Johnson said. “We are continuing to investigate and consider it.” She said the offer was proposed about two weeks ago, and that part of the delay is due to the difficulty of assembling the eight-member MAPF board for a discussion.
“We do have some trouble with disclosing the names of people who may have made donations to MAPF [and not to the Measure M campaign], because of First Amendment issues,” Johnson said.
Johnson said the entire dispute boils down to whether a poll, which was admittedly paid for by MAPF, was used in framing advertising for either MAPF or Truckee Mountain Area Preservation Campaign Committee.
“MAPF has freely admitted commissioning the poll, for which it paid $1,500, in order to verify whether there was or was not support for the initiative,” Johnson wrote in a release this week. She said the poll was used by MAPF for the sole purpose of determining whether or not there was public support for the initiative, and that its results were never used in crafting any advertising during the campaign and were never provided to TMAPCC for any purpose.
“MAPF and TMAPCC have nothing to hide and have disclosed everything they are required under the law to disclose,” Johnson wrote. “MAPF has publicly disclosed payment of $930 for the ad and $1,500 for the poll. These expenditures were paid from MAPF’s general fund. At no time did MAPF ever receive contributions for the Measure M campaign. That was the function of the campaign committee.”
Johnson said MAPF is disappointed that Tamietti would release the terms of a confidential settlement offer to the press, and that it was surprising he would state that MAPF and the committee refused to accept the offer and gave a reason for the refusal.
“The first time that MAPF, the committee, or their attorney learned of the purported refusal was May 20, 1998, when verification was sought by the Sierra Sun,” Johnson wrote. “MAPF and TMAPCC were still considering Mr. Smith’s proposal. In fact, the MAPF board met with their attorney May 19 to discuss the proposal and an appropriate response. This certainly calls into question the genuineness of the settlement offer and makes it difficult to negotiate in good faith.” She said a fax sent to Tamietti on May 14 clearly stated that MAPF needed 7-10 more days to research and consider the proposal.
Johnson said MAPF is still searching for a reasonable way to settle the complaint without further litigation.
Issues in Smith’s complaint
East discussed in his memorandum to Judge Edwards the issues outlined in the complaint, and a possible legal interpretation of each, pending actual findings.
He said the first issue raised in the complaint was the alleged failure of MAPF to report costs of the poll taken before filing a “Notice of Intention to Circulate Petition.” According to the California Political Reform Act disclosure of political expenditures by individuals or committees is required if they reach $1,000 or more, East wrote.
However, he also added that the FPPC has long held that costs of a poll are not reportable as long as it is not used for political purposes – most recently explained in a letter to Oakland Assistant City Attorney Joyce Hicks. In that letter, the City of Oakland was advised that the cost of a poll is not a reportable political expenditure prior to the city council taking action to place a measure on the ballot. But if the results of the poll are used in a communication to advocate passage of a ballot measure, the cost of the poll as well as the cost of the communication would be public record.
“It is undisputed that on April 17, 1997, MAPF placed what they term an “open letter” in the Sierra Sun newspaper,” East wrote. “The complaint calls this open letter an attempt to influence voters. “However, regulation 18225(b)(1)(D) states ‘A measure that has not yet qualified to be placed on the ballot is clearly identified if the communication refers to the subject matter of the measure and to the qualification drive.’ The open letter satisfies this requirement.”
The next issue, East wrote, is ‘communication,’ defined in regulation 18225(b)(2).
The regulation states, “A communication expressly advocates . . . the qualification, passage or defeat of a measure if it contains express words of advocacy such as ‘vote for, elect, support, cast your ballot, vote against, defeat, reject, sign petitions for,’ or otherwise refers to a clearly identified candidate or measure so that the communication, taken as a whole, unambiguously urges a particular result in an election . . .”
East said the open letter by MAPF qualified as express advocacy because in its last sentence it seeks, “support and help in this important effort.”
“Thus if the polling data was used to fashion the communication, the entire cost of the poll and the open letter are reportable expenditures,” East wrote. “If MAPF spent in excess of $1,000 on these efforts, then they are required to file as a committee.”
East also addressed the issue of attorneys fees, where the supporters of Measure M stated that attorneys had reviewed the measure to ensure that it would survive a “takings challenge by private property owners.
“This is not a political expenditure, under regulation 18225(a)(1) as previously discussed,” East wrote. “The representation made at the Truckee Republican Women public forum and the Truckee Sunrise Rotary does not qualify as an expenditure under 18225(b)(2) since there was no communication that expressly advocates the passage or defeat of a particular measure.”
Next East addressed the issue of a membership solicitation letter sent out by MAPF in August 1997, which allows individuals to ether join the organization, contribute to Measure M, or both.
“At the bottom of the letter is the sentence: ‘Confidential donations are gratefully accepted,'” East wrote. “It is unclear as to whether this meant to the organizations or to the Measure M campaign.”
East said confidential contributions are not allowed under the political reform act, and that any confidential contribution to the Measure M campaign that went undisclosed must be properly reported.
“If the confidential contributions went to MAPF for membership fees, there is no violation of the act,” he wrote. “If the membership fees were earmarked for a political purpose, (i.e. contributions to Measure M), then those contributions must be disclosed. However, since we have no evidence of any earmarking of funds, we respectfully decline to investigate this issue.”
In regard to Smith’s final issue – that MAPF improperly solicited political contributions for Measure M, East said that the political reform act does not prevent an organization from seeking funds for an election.
“In this case, the organization mailing was soliciting memberships and using this issue to solicit these new members,” East wrote. “As a result, there was no reporting requirement that accrued under the act, and no violation of the act.”
East said the FPPC does not have the legal authority to investigate the potential tax implications of a non-profit organization expending funds for a political purpose, and did not review that issue.
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