Benicia council directs staff to file complaint over “push poll”
By JOHN GLIDDEN, October 17, 2018 at 6:08 pm
BENICIA — City Attorney Heather Mc Laughlin has been directed by a unanimous vote of the council to send a formal complaint to the state about a recent polling survey in the city.
The vote took place during the City Council’s closed session on Tuesday.
Mc Laughlin will send the complaint to the California Fair Political Practices Commission after the polling firms, hired by Valero Benicia Refinery, refused to provide a copy of the questions.
City officials believe the survey may have violated the city’s municipal code when the callers failed to state that the survey was a political call. Research America and EMC Research, which were contacted to conduct the survey, said, through their attorney, that the calls were not political and thus didn’t require a disclaimer or “paid for” notice.
Vice Mayor Steve Young spoke during the open session portion of Tuesday night’s meeting and said the issue could be resolved if Valero simply provided a copy of the questions asked to about 250 residents.
“It’s easy to put to rest,” Young said about Valero providing the questions.
The council earlier this month directed Mc Laughlin to obtain the questions and other items related to the survey after Young and other residents reported receiving one of the survey calls in late September.
Young called the survey a “push poll,” which is a survey used to influence the respondent instead of collecting factual information.
The polling companies, through their lawyer, further said 256 randomly selected likely voters from within Benicia were contacted from Sept. 6 to Sept. 20 to participate.
During her investigation, Valero admitted to paying for the survey.
The Times-Herald has asked Valero repeatedly for a copy of the questions but the company has ignored those requests.
“It’s their property,” Young further said Tuesday night about the survey questions.
He said Valero’s failure to provide information about the survey forces the City Council to act.
“We’re put into the position of having to take the next step to protect our own ordinance,” he added.
Valero spends money to oppose Benicia candidate Birdseye
By JOHN GLIDDEN, October 16, 2018 at 6:42 pm
BENICIA — The 2018 Benicia City Council election just got more interesting.
According to financial statements submitted to the Benicia City Clerk’s Office late last week, the Valero Benicia Refinery is funding a special committee to oppose council candidate Kari Birdseye.
The committee, known by a lengthy name, Working Families for a Strong Benicia, a Coalition of Labor, Industrial Services Companies, Public Safety and Local Leaders Supporting Christina Strawbridge and Lionel Largaespada and Opposing Kari Birdseye for Benicia City Council 2018, has raised $124,200 within the past week.
Valero is responsible for $14,200 of that total, documents show.
Records further show that a portion of the monies have gone toward funding calls to local residents asking Benicians to support council candidates Lionel Largaespada and Christina Strawbridge, while rejecting Birdseye as “a yes man for the mayor.”
A phone script was provided with the expenditure as required by the Benicia Municipal Code. If the respondent says he/she is voting for Birdseye then the caller was to recommend that the potential voters reconsider.
In addition to the “yes man for the mayor” part, the script further states that “Benicia deserves an independent thinker to represent our local values.”
Records show that the special committee paid the Washington D.C-based Winning Connections to make the calls.
The business boasts on its website about getting results.
“Opinions are shaped one conversation at a time. At Winning Connections, we impact public policy by engaging thousands of Americans with one-on-one conversations over the phone or online,” the company’s website states. “Our clients pass legislation and win elections because we’ve reached their constituents on a personal level. With our research-based programs, research-driven scripts and precision operations we shape the way voters think about pivotal candidates and issues.”
Additional cash contributions came from the Heat & Frost Insulators and Allied Workers Local Union 16 Political Action Committee which gave $20,000 to the group, while $30,000 came from the International Brotherhood of Boilmaker, Iron Ship Builders, Blacksmiths, Forgers & Helpers Local 549 PAC, according to 497 forms posted to the city’s website last week.
The San Rafael-based Nielsen Merksamer Parrinello Gross Leoni, LLC firm serves as treasurer of the special committee. Campaign forms submitted to the California Secretary of State show that the firm also serves as official treasurer to Valero’s major donor committee.
Jason D. Kaune, partner in the firm, confirmed the Heat & Frost Insulator’s PAC actually gave $20,000 to the Working Families for a Strong Benicia committee instead of the $30,000 first reported. He said a correction will be filed.
The clerk’s office has posted new 497 forms online this week showing that the State Building and Construction Trades Council of California Independent Expenditure PAC also gave the Working Families for a Strong Benicia $30,000, and $30,000 came from the California State Pipe Trades Council PAC, bringing the total monies raised for the committee at $124,200.
State and local campaigns are required to submit a 497 form when receiving a total aggregate of $1,000 or more during the 90 days before an election. They must report the donation within 24-hours after receiving the large donation.
The special committee has submitted six expenditure forms as of Tuesday, two for each candidate.
The forms show that a combined $29,700 was spent for the calls and “use of poll.” It’s not known if “use of poll” is in reference to a survey commissioned by Valero which appeared to smear Birdseye and show support for Largaespada.
Many of the residents who took the survey felt it was a “push poll,” meant to sway public opinion instead of recording objective information from those surveyed. The polling firms which conducted the poll deny the allegation.
Records also show that the special committee spent an additional $20,000 on media adds which, in the same manner as the phone script, support Strawbridge and Largaespada, while bashing Birdseye.
Birdseye, Largaespada, Strawbridge, and Will Emes are all running for two open seats on the five-person Benicia City Council this fall. The two incumbents, Alan Schwartzman and Mark Hughes have both declined to seek re-election to the council.
Repost from the Vallejo Times-Herald [Editor – Thanks to Times-Herald reporter John Glidden for requesting poll questions and call data from Valero. The polling companies refuse to comply with City Attorney McLaughlin’s request, but Valero paid for the poll and thus owns the poll information. So far, not a word from Valero. BUT… guess what. There’s a NEW campaign phone poll going around, openly promoting 2 of Kari Birdseye’s opponents and smearing her. My guess is that the wording for this new poll is based squarely on the results of Valero’s incendiary push poll. Sponsors of the new poll and the candidates they endorse are benefiting from Valero’s shady research. – R.S.]
Polling companies decline to provide survey questions
By JOHN GLIDDEN , October 11, 2018 at 4:17 pm
BENICIA — The City Council will strategize in closed session once again about an alleged “push poll” incident after two polling firms have refused to provide a copy of the survey questions that were asked to residents in September.
Gary Winuk, with the Los Angles-based Kaufman Legal Group, which represents Research America and EMC Research, sent a three-page letter to City Attorney Heather Mc Laughlin on Wednesday arguing that the council’s request for the questions was improper.
“This requested disclosure of information is particularly inappropriate where the city is making the request and the poll explored subject responses to statements regarding City Council candidates whose campaigns are being personally supported by current members of the council,” Winuk wrote. “The city should not place itself in the position of immersing itself in the back and forth of electoral politics by attempting to force the public disclosure of confidential poll information.”
Vice Mayor Steve Young reported in a Sept. 20 letter first published by the Benicia Independent that he received such a survey call, with the questions allegedly smearing Benicia council candidate Kari Birdseye while championing fellow council candidate Lionel Largaespada.
Asked for comment about Wednesday’s letter and Winuk’s assertion of impropriety by the council, Young said all the councilors have endorsed candidates in the council race.
“However, I imagine they may be targeting me since I was one of the Benicia voters who actually received and took the poll, and then reported on the nature of the questions. Fortunately, there are many more people who reported not only receiving the poll, but also confirming the biased nature of the questions,” Young wrote in an email to the Times-Herald. “The attorneys claim it is not a push poll, but by simply complying with the City’s request to provide a complete list of the questions, that question could be put to rest. Now, all we have is their word.”
Young has called the survey a “push poll,” which is a type of survey meant to influence voters instead of gathering objective survey information from those called.
Representatives from the Valero Benicia Refinery have already admitted to Benicia City Attorney Heather Mc Laughlin that the refinery paid for the polling that was carried out by the polling firms Research America, and EMC Research.
Young said he doesn’t know if Winuk represents Valero as well.
“We have not heard anything directly from Valero; only a conversation between the City Attorney and Valero General Manager Don Wilson in which Wilson admitted Valero paid for the poll,” Young added. “And since they did pay for the poll, the requested information should be their property, and be made available to the city.”
Wilson has not returned requests by this newspaper for comment on the poll and a copy of the survey questions.
Winuk further reiterated in his Wednesday letter that the poll was done to gather feedback from Benicia voters “on issues relevant to the upcoming election.”
The Benicia City Council met in closed session on Oct. 2 to talk about the survey and whether it may have violated the city’s municipal code when the pollsters failed to state who paid for the polling. Winuk has maintained that the poll was not a campaign communication and thus didn’t need a “paid-for” disclaimer.
Councilors at that time directed Mc Laughlin to investigate and find out who paid for the polling and receive a copy of the questions asked.
The Council is scheduled to meet in closed session on Tuesday.
[Editor – as expected and predicted, the push poll survey companies’ attorney claims it wasn’t a push poll, violated no laws, is protected by the US Constitution, and would cost Benicia a fortune to contest it in court. Stay tuned, and continue to raise alarms about Valero’s secret dirty meddling in our election. Content of the attorney’s letter is reproduced below, and downloadable as a PDF copy. – R.S.]
Email from Benicia City Attorney Heather McLaughlin
Attached is the letter declining to provide the City with the requested information. We have this items scheduled for Closed Session on Tuesday.
The letter is public information.
KAUFMAN LEGAL GROUP A PROFESSIONAL CORPORATION
777 S. Figueroa Street, Suite 4050 Los Angeles, CA 90017
main 213.452.6565 fax 213.452.6575 www.kaufmanlegalgroup.com
Direct: (916) 498-7715
VIA U.S. MAIL & E-MAIL
Heather McLaughlin, City Attorney
City of Benicia
250 East L. Street
Benicia, CA 94510
Re: Poll Conducted by EMC Research and Research America
Dear Ms. McLaughlin:
This letter is in response to your letter to Research America and EMC Research dated October 5, 2018. In that letter, you requested two items of information. First is a list of the polling questions used by the professional polling firms for the poll in question. Second is an “itemized invoice showing the dates, times and number of calls made.” You also requested that any future “push” polls that meet the definition of independent expenditure comply with Benicia City Chapters 1.32, 1.40 and 1.42.
As I mentioned in my October 1, 2018 letter to you, the public opinion research poll referenced in your e-mail was conducted by Research America and EMC in full compliance with applicable federal, state and local laws, which do not require campaign advertisement disclaimers on telephone polls. EMC Research and Research America are professional polling companies that conduct surveys based on scientific data and modeling to provide information to campaigns about voter preferences and attitudes. They do not engage in campaign advertising communication-which is exactly what so-called “push” polls are. Contrary to local press reports, the poll at issue was not a “push” poll.
Valero, although under no legal obligation to do so, has identified itself as the entity that commissioned the poll. The purpose of the poll was to gather feedback from local voters on issues relevant to the upcoming election. It involved a robust sample methodology, designed to achieve a random sampling of likely voters from within the City of Benicia. The survey was conducted September 6 through September 20, among a random selection of256 likely voters from within the City of Benicia. This period lies outside the 45-day period referenced in Benicia Municipal Code Chapter 1.40.041.
There are no federal, State or local laws that require disclaimers on polls, whether conducted telephonically or by electronic mail. As previously noted, a recent opinion issued by the California Fair Political Practices Commission (FPPC) at their September 2018 hearing confirmed this. I Polls are not considered campaign communications or “mass mailings” and, thus, do not require campaign advertising disclosures. The Benicia Municipal Code provisions referenced in your letter do not apply to polls. Those provisions, Chapters 1.36, 1.40 and 1.42, only apply to campaign communications. As the FPPC has opined, a poll is not a campaign communication.
Because the poll in question here was not a campaign communication, the professional polling companies are under no obligation to provide you with the information you requested. Polling questions and invoices for polls that show the date, time and number of calls made are confidential, and not subject to compelled governmental disclosure. While the City ordinance may regulate disclosures for campaign communications, they do not regulate polls. Nor should they as a matter of public policy. Polls are not conducted to influence voters; rather, they are targeted to a limited cross-section of voters to form as accurate a representation of the electorate as possible.
Further, the First Amendment of the United States Constitution protects the right of those who paid for the poll to engage in political discourse. Any restrictions on this right by government are examined under an exacting legal standard that prohibits government from passing laws that impermissibly restrict political speech without a showing of a compelling interest.2 Polls are an important part of the process of determining whether and how to potentially engage in political speech. Requiring public disclosure of poll funders, questions and other details impermissibly restricts the ability of individuals to engage in political speech and association. See, e.g., Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010) (on petition for mandamus, blocking discovery order seeking to compel disclosure of internal campaign materials); In re Motor Fuel Temperature Sales Practices Litig., 258 F.R.D. 407, 418 (D. Kans. 2009) (finding privilege against disclosure of internal communications regarding political activities).
This requested disclosure of information is particularly inappropriate where the City is making the request and the poll explored subject responses to statements regarding City Council candidates whose campaigns are being personally supported by current members of the Council. The City should not place itself in the position of immersing itself in the back and forth of electoral politics by attempting to force the public disclosure of confidential poll information. Nor should City resources be used to engage in these activities. These actions serve as a chill on free speech and association rights set forth in the Constitution.
For the above-listed reasons, Research America and EMC Research respectfully decline your request for further information regarding the poll. If the City chooses to issue a subpoena or take other legal action, the companies stand ready to vigorously defend their rights. Finally, since the two polling firms do not engage in campaign communications, we do not expect that any future polls will implicate the disclosure and disclaimer requirements of the Benicia Municipal Code. Please contact me immediately should you have any further questions.