Last week we reported that Thomas Randall, one of the co-leaders of the No on Measure E campaign, had filed an FPPC complaint against the Davis Joint Unified School District and Susan Lovenburg, over what he is calling their campaign on Measure E.
However, that complaint has been unceremoniously been tossed aside by the FPPC. In a letter dated October 24, 2012, Gary Winuk, the Chief of the Enforcement Division, writes, “After review by staff, it was determined that the complaint does not contain evidence of a violation of the Political Reform Act since the flyer does not expressly advocate the passage of the measure.”
In a press release actually sent out on Friday, October 19, he writes: “Thomas Randall, Jr. coordinator of the NO School Board Taxes Political Action Committee, a PAC that is campaigning against Measure E, has filed a complaint with the Fair Political Practices Commission Against the Davis School Board of Education and specifically against its President Ms. Susan Lovenburg, for their role in using taxpayer’s money for campaign materials produced at taxpayers’ expense and disseminated in print and on the internet with the purpose to pass Measure E.”
“The issues in this complaint are based on violations of the Political Reform Act.,” says the press release.
The five complaints are: 1. Campaign piece printed, mass distributed and produced at public expense. 2. Public Entity involved in campaigning without registering as a Political Action Committee. 3. Failure to file required campaign statements and reports. 4. Publication of campaign materials at taxpayers’ expense on the internet, equivalent to large mass mailed communication. 5. Conflict of interest of the board president Ms. Susan Lovenburg in her campaign for reelection, and use of campaign material produced at taxpayers’ expense on the School District stationary.
“It is urgent that the FPPC act on this complaint immediately before the election on November 6, 2012 to avoid irreparable damage to the voters in the Davis. The School Board members are not above the law. The exercise of democracy needs to have a fair and honest process instead of ramming Measure E on us, breaking campaign laws” said Thomas Randall.
Board member Susan Lovenburg responded, “Though I have not formally been notified of this complaint filed with the FPPC, I welcome the agency’s ruling on this issue.”
“In the case of a similar complaint filed by Thomas Randall regarding Measure A, the FPPC determined the District and Board members did not act improperly,” Ms. Lovenburg continued.
VANGUARD’s TAKE
The Vanguard‘s read of the flyer is that it was mostly a factual analysis of the impact of the loss of funding, explanation of the amount of funding the Measure would provide, and there was nothing in the letter than even remotely advocated for the passage of measure.
The law is very specific and a close read of Mr. Randall’s complaint suggests that, rather than making a specific complaint under the Political Fair Practice’s Act, he made political arguments against the claims in the flyer and used the complaint process not to enforce the law but rather as a publicity stunt to aid the flagging No on Measure E campaign.
Mr. Randall argues, “Although the title is ‘FACTS ABOUT MEASURE E,’ it hardly contains any ‘FACTS’ but rather contains inflammatory language with false and misleading information deliberately calculated to produce the outcome of a YES vote.”
Susan Lovenburg responds: “The fact sheet in question is consistent with neutral information provided by the District whenever a parcel tax is placed on the ballot.”
“As such, I have preferred to distribute it at campaign events in favor of materials produced by the Yes on E campaign,” she continues. “This fact sheet is freely available on the District’s website and in paper copy to all candidates and any member of the public. It contains the actual ballot language of the measure and indicates voters will be asked to vote ‘yes or no on Measure E.’ “
An analysis of both the language of the flyer and Mr. Randall’s claims demonstrates that this is largely a political ploy.
The Vanguard believes that the FPPC should have actually come down harder on Mr. Randall for what amounts to an abuse of process.
Perhaps the most ironic portion of the complaint is when Mr. Randall, nitpicking, complains that the district falsely claims, “Failure of Prop 30 will result in a $3.7 million cut this year. This amounts to approximately 5% of total revenue to the Davis Joint Unified School District.”
He argues, “This is inaccurate and misleading. If $3.7 million is 5% of the revenues, then the revenues are $74 million. The district received in 2011 exactly $70,306,825 in revenue. The $4 million dollar error here is very significant because this is not a small error.”
Not only did the district use the term, “approximately,” but the actual percentage of the district revenue is higher than 5% rather than lower, indicating that the district actually underplayed their argument by using the approximate 5% marker, rather than exaggerating their argument as Mr. Randall seems to be claiming.
The $3.7 million represents 5.26% of the districts total revenue which represents a larger impact than the 5% figure might imply.
In the end, this was clearly a political ploy to get attention and use the complaint process itself to suggest something untoward.
We believe this an abuse of process. The complaint process should be used when there is a clear violation. As the response by the FPPC makes clear, they are not there to referee political disputes over the facts, rather they are there to ensure that a public entity does not expressly advocate for the passage of a measure.
—David M. Greenwald reporting
Bob Dunning wrote about the Measure E ballot language and how it might not survive a legal challenge:
“So, I was looking over the ballot language for our latest school parcel tax, Measure E, and it’s just confusing enough that it’s unlikely to survive a court challenge should someone decide to sue after it passes.
According to the Official Sample Ballot sent to me by the Yolo County Elections Office, the measure reads as follows: “To offset the continued loss of significant state funding, shall the Davis Joint Unified School District be authorized to continue a special tax for a period of 4 years not to exceed the base annual rate of $20.00 per dwelling unit for multi-dwelling parcels and $204.00 per parcel for all other parcels, and levy up to an additional $242 to cover State funding shortfalls ONLY if the November 2012 Temporary Taxes to Fund Education initiative does not pass?”
Now, I know what the authors of this measure meant to say, but they crammed so many propositions into one sentence that the actual meaning is lost. At best, it’s subject to two or three separate interpretations, and at worst, the flaw is so certainly fatal it won’t matter if the measure passes or not.
What the authors were trying to say was that a “Yes” vote would create a $204 per parcel tax no matter what happens with Prop. 30, but that if Prop. 30 fails, the same “Yes” vote would also authorize another $242 tax, in addition to the $204, for a grand total of $446.
Unfortunately for the district, that’s not what the measure asks. And the “you know what I meant to say” argument won’t hold water in a court of law if and when someone challenges this.”
“The one essential element for any ballot measure is clarity. Sadly for those of us inclined to vote in favor of both parcel taxes, this measure fails the “clarity” test and, as such, is open to several interpretations and, ultimately, a legal challenge.”
I don’t buy his point and the fact is a number of lawyers have reviewed the language – did Dunning check with an election’s law lawyer in writing his piece? I don’t even see a problem there.
rusty: Dunning comment on the short ballot summary. The extended language that goes out to all voters from Yolo Elections is clear on the intent. I don’t see this being a legal problem:
[quote][url]http://www.yoloelections.org/election_central/voter_guide/20041102/AL1347896151/measure e.pdf[/url]
If the measure is successful, the District’s Board of Trustees would be authorized to levy a parcel tax for a period of four (4) years, from July 1, 2013 to June 30, 2017, at an annual rate of up to $20.00 per dwelling unit for all multi-dwelling unit parcels within the District and $204.00
per parcel for all other parcels within the District. Should the November 2012 Temporary Taxes to Fund Education initiative not pass statewide election, the annual rate shall be up to $20.00 per dwelling unit for all multi-dwelling unit parcels within the District and $446.00 per parcel for all other parcels.[/quote]
Actually, Dunning goes into the extended language today:
“School Board President Susan Lovenburg insists that we can only fully understand the measure’s meaning by referring to the extremely wordy “full ballot text” that hardly anyone actually gets around to reading. But I have time on my hands, so I took her up on it.
Unfortunately for Susan and the rest of the board, the full ballot text contradicts what the one-paragraph ballot measure says.
The full ballot text presents two scenarios under the heading “basis of tax.” One scenario assumes Prop. 30 passes and the other assumes it doesn’t.
If Prop. 30 passes, it’s $20 for multi-dwelling and $204 for “all other parcels.”
If Prop. 30 doesn’t pass, it’s $446 for “all other parcels,” but not a mention of any tax whatsoever for multi-dwelling. Not $20, not anything.
Interestingly, from my numerous email exchanges with various board members, neither the one-paragraph ballot measure nor the full ballot text reflect what board members claim they meant to say.
That’s unfortunate in the extreme, given what’s at stake here. But facts are facts and they need to be noted and evaluated, even when the home team fumbles, as they clearly did in this case.”
What’s written on the actual ballot should be clear and concise, not misleading and open to different interpretations. To me that would suggest that if Measure E passes there’s a good chance of a judge overturning it if challenged. I’m willing to bet that somebody will take it to court.
If his argument is so compelling, why not quote an election law attorney rather than offer his own layman opinion? If someone does take it to court, I’ll bet they lose.
Another example where a school ballot is being sued for misleading language:
“Voters Sue Over ‘Misleading’ Charter School Ballot Language
The lawsuit alleges that the preamble and the question on the Nov. 6 ballot is biased in favor of approval of the measure.
A public school teacher and Atlanta minister have filed a lawsuit in Fulton Superior Court against members of the state of Georgia government over the language of the Nov. 6 ballot as it pertains to charter schools.
The lawsuit, filed by Dalton teacher Beverly Hedges and Rev. Timothy McDonald, senior pastor at First Iconium Baptist Church in Atlanta, names Gov. Nathan Deal, Lt. Gov. Casey Cagle and Secretary of State Brian Kemp as co-defendants. The complaint alleges that Gov. Deal used language in the preamble to the ballot question and the ballot question itself that is misleading and that was not passed by the General Assembly.
This is how the ballot language currently appears:
Provides for improving student achievement and parental involvement through more public school options.
Shall the Constitution of Georgia be amended to allow state and local approval of public charter schools upon the request of local communities?
Do you think the ballot language for Amendment 1 is biased? Vote in the poll and tell us in the comments!
“Gov. Deal knows that the truth about what Amendment 1 [the charter school amendment] will do is not popular with Georgia voters, so he wrote a trick question and placed it on Georgia ballots,” said Bryan Long, executive director of Better Georgia said in a press release.
“The question voters will see sounds like a miracle solution for fixing Georgia’s troubled school system. It’s not. It’s an open invitation for out-of-state charter school corporations to profit from Georgia tax dollars. It will create a new, costly and unelected state commission with the power to use tax dollars to pick which companies will profit off our students.”
The press release goes on to say that polling has discovered that the current ballot language would shift the vote on Amendment 1 by as much as ten percent.”
Why are you posting on a Georgia case? We’re not even talking the same sets of laws, plus your talking about a local parcel tax in California versus a state ballot initiative. Not really helpful in sorting any of this out.
Just showing an example that ballot language does get sued.
You might as well have cited a Greek case for all of the applicability. Besides the issue not getting sued, it’s prevailing. I don’t see anyway that a suit here prevails. You might see Granda or Randall file a suit pro per, but I doubt very much they get a lawyer to file it and I think there is no chance this prevails.
Again, if Dunning had a point, he would have found an election law attorney to provide a convincing opinion on it.
Its one thing to pull off a political ploy with FPPC on Measure E. Its another to implicate Lovenburg in the complaint, that’s just dirty politics on par with Clint Parish’s attack on Dan Mcguire. Randall’s attack on Lovenburg is shamefully reprehensible and i hope it backfires on both Measure E and Granda.
Yes on E no on Granda.
This is a case of either waiting for Sacramento to figure out how they will take care of us (something they’re no good at), or taking ownership and taking care of ourselves. All the money helps the local economy by employing local teachers. A value-added all around for our community. Yes on E!