Category Archives: Benicia City Council

Polling companies decline to provide Benicia with survey questions

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.

    Push poll attorney’s preparatory posturing

    [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

    Hi all!

    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.

    Thanks, Heather

    777 S. Figueroa Street, Suite 4050 Los Angeles, CA 90017
    main 213.452.6565   fax 213.452.6575

    October 9,2018

    Direct: (916) 498-7715


    Heather McLaughlin, City Attorney
    City of Benicia
    City Hall
    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.


    Gary S. Winuk


      VIDEO: City Council announcement of legal action on push poll

      Excerpt from Benicia City Council video, October 2, 2018

      This 7 minute video begins with City Attorney Heather McLaughlin reporting action taken by the Council in closed session to initiate legal action on the recent “push poll” attack, and includes comments by Vice Mayor Steve Young, Council member Tom Campbell and Mayor Elizabeth Patterson. (See transcript and relevant section of Benicia’s Municipal Code below…)


      City Attorney Heather McLaughlin announcement on 10/2/2018:
      “We also met in closed session on conference with legal counsel regarding anticipated litigation and the initiation of litigation regarding potential enforcement of Benicia Municipal Code Section 140, and this is regarding the push poll that came out in recent days. The Council gave me direction regarding initiating a lawsuit on this. The concern is that the poll did not comply with the disclosure requirements of the ordinance. As follow-up to that, I have been directed to contact the Fair Political Practices Commission regarding enforcement of the disclosure rules. And I’m also to send a letter to EMC and to Research America informing them about our ordinance and demanding that they provide us the questions and who paid for the poll. And then finally, we’re going to provide a press release. And I think some of the Council members would like to add onto that. That was a four-one decision.”

      Benicia Municipal Code Section 140
      (download PDF or go to City of Benicia website)  Here is a relevant subsection:

      1.40.042 Disclaimer requirements for campaign communications funded by independent expenditures.

      A. Campaign communications funded by an independent expenditure supporting or opposing city candidates or city measures shall include the phrase “Not authorized by a candidate,” and shall also include the name of any contributor of $2,500 or more made in the past six months to a committee funding the independent expenditure, in the phrase “Major Funding Provided By [Name of Contributor(s)].” Expenditures of $2,500 or more that are earmarked for any other candidate or ballot measure outside of the city of Benicia need not be disclosed.

      B. The disclosures required by this section shall be presented in a clear and conspicuous manner to give the reader, observer or listener adequate notice, as specified below:

      1. For printed campaign communications that measure no more than 24 inches by 36 inches, all disclosure statements required by this section shall be printed using a typeface that is easily legible to an average reader or viewer, but is not less than 10-point type in contrasting color to the background on which it appears. For printed campaign communications larger than this size in area, all disclosure statements shall constitute at least five percent of the height of the material and shall be printed in contrasting color.

      2. For video broadcasts including television, satellite and cable campaign communications, the information shall be both written and spoken either at the beginning or at the end of the communication, except that if the disclosure statement is written for at least five seconds of a broadcast of 30 seconds or less or 10 seconds of a 60-second broadcast, a spoken disclosure statement is not required. The written disclosure statement shall be of sufficient size to be readily legible to an average viewer and air for not less than four seconds.

      3. For audio, telephone call or radio advertisement campaign communications, the disclosures shall be spoken in a clearly audible manner at the same speed and volume as the rest of the telephone call or radio advertisement at the beginning or end of the communication and shall last at least three seconds.

      C. For purposes of this section, “campaign communication” means any of the following items:

      1. More than 200 substantially similar pieces of campaign literature distributed within a calendar month, including but not limited to mailers, flyers, faxes, pamphlets, door hangers, e-mails, campaign buttons 10 inches in diameter or larger, and bumper stickers 60 square inches or larger;

      2. Posters, yard or street signs, billboards, supergraphic signs and similar items;

      3. Television, cable, satellite and radio broadcasts;

      4. Newspaper, magazine, Internet website banners and similar advertisements;

      5. Two hundred or more substantially similar live or recorded telephone calls made within a calendar month.