Category Archives: Legal action

Anti-Birdseye PAC tries to stop forum, threatens to sue City

By Roger Straw, November 3, 2018

Deep pockets hire attorneys, send threatening letter

Just hours before Benicia Open Government Commission was to convene its “Final Word” forum on Saturday Nov. 3 to give candidates a chance to counter dirty campaign tricks and last-minute smears, Valero’s anti-Birdseye PAC hired the attorney firm Nielsen Merksamer Parrinello Gross & Leoni to demand the forum be cancelled.

The November 2 letter is itself a last-minute campaign smear, explicitly linking Birdseye to city officials, claiming “the Forum is nothing more than a taxpayer-funded platform to boost the candidacy of a single candidate favored by the current Mayor.”

In a Trump-like maneuver to flip its own dark side back on its declared enemy, the letter makes up a fantasy and cries, “the appointed city officials tasked with policing political speech at the Forum certainly know that the City’s Mayor and Vice-Mayor have endorsed one of the candidates in the debate in the hopes of cementing their own political agenda, while aggressively trying to demonize others for their support of a different candidate.”

Reports indicate the City of Benicia will go forward with the forum.  The attorney letter will be reprinted and placed on a side table in Council Chambers as a matter of record.  [UPDATE: The forum was held.  See Final Word: No one likes the anti-Birdseye PAC’s dirty campaign.]

The PAC is highly active in its negative campaigning in other ways.  A local resident who works for a Richmond refinery and supports Birdseye reported receiving a phone call from an Ironworker asking him to arrive early to pack the forum.  The caller clarified that the PAC hoped to deny any Birdseye supporters from participation.

Now both sides are asking supporters to arrive early.  The doors at City Council chambers open at 8:30 a.m. for the 9 a.m. event.

One may assume that rules and procedures as adopted by the City will prevail:

“The City of Benicia code(Sec 1.42.110) allows for a last minute candidate forum to allow candidates to address last minute “hit pieces” and to respond to inflammatory statements and misinformation.

This forum does not always happen but, given the amount of negative campaigning happening in the City Council race, the City’s Open Government Commission will sponsor such a session this Saturday, Nov. 3 from 9-11am at the City Council chambers.

The event will be televised live on Ch. 27, and rebroadcast at 7pm on Sunday and Monday nights, Nov. 4 and 5. It will also be archived for the public on Monday, 11/5 on the City’s Agendas & Minutes page – scroll down to Open Government.

The forum will be moderated by Open Government Commission Chair Bonnie Silvera, with assistance from two other OGC members.  Questions from audience will be written on 3×5 cards and selected by OGC members. Questions will be addressed to all candidates.  Only questions that deal with the purpose of the forum will be addressed.  Candidates are asked to speak to the issues and not make personal comments about other candidates, especially in a negative manner.

    SF Chron Perspective: Facing the coming flood with a sense of optimism

    Repost from the San Francisco Chronicle

    Facing the coming flood with sense of optimism

    By Caille Millner, Oct. 19, 2018 2:12 p.m.
    The 2017 Russian River flood in Guerneville. A new U.N. climate report says we have about 12 years to do something huge on climate change. Photo: Santiago Mejia / The Chronicle 2017

    After I read the United Nations’ new apocalyptic climate change report, I looked to see when my house was going to be underwater.

    For this grim task, I set out to model different possibilities with an online sea level rise tool from Cal-Adapt, a public database for research from California scientists and researchers. (Isn’t the internet amazing? It provides those of us who believe in climate change with all the tools we need to find out when it’s going to swallow us whole, and those of us who aren’t willing to be convinced with all the conspiracy theories we need for political arguments.)

    I zoomed in to my street and tried the tool’s first option, “no rise.”

    My neighborhood remained gray and dry, untouched by the neon blues of inundation.

    Comforted, I tried half a meter. That’s about 1.6 feet, which sounded like a lot until I remembered that the California Coastal Commission has told cities to be prepared for more than 10 feet of ocean rise by 2100.

    My house wasn’t underwater yet, but suddenly I could no longer get downtown. Nearly 10 feet of water had inundated the area just north of Mission Bay. San Francisco had lost an Interstate 280 exit, and it’s pretty much assured that all of my Muni buses were getting re-routed as well.

    I switched to 1 meter (about 3.3 feet).

    My house was still OK, but the water was approaching fast.

    Many buildings in the surrounding neighborhoods, including Mission Bay and the Dogpatch, were underwater at least some of the time. The Bayview and Hunters Point neighborhoods were receding into marshland. San Francisco’s Board of Supervisors just approved the construction of a new community in India Basin this week that’s going to be soggy as soon as it’s built.

    At 1.41 meters (4.6 feet), Hunters Point was half as large as it should have been, South Beach was surrounded by water on all sides, and Interstate 280 was swamped heading out of Potrero Hill.

    Ten feet of ocean rise by 2100. I imagined myself standing on my roof and waving a white T-shirt for rescue. In fact, I should start practicing right now — according to that new U.N. climate report, the party starts in just 12 years. Given the level of anxiety I feel about all of this, it’s going to take me at least six years just to loosen up my spine.

    Bad joke, I know. And the truth of the matter is that cynical humor — which is quite frankly the most natural human reaction to the news that the world is about to be flooded and there’s nothing you personally can do to stop it — is not going to get us out of this mess.

    So what kind of attitude will get us out of this?

    I’ve been thinking about that a lot, partially because I’m so terrified by all of the political inaction and partially because I’ve noticed so many otherwise indomitable people responding to the news on climate change with a sense of helplessness.

    Like cynical humor, helplessness is a natural reaction. But it won’t work, and neither will telling other people to give up the benefits of modernity to save the Earth. (Everyone I meet in Berkeley is eager to tell me how climate change will evaporate if we all just stop flying on planes, eating meat and having children, but I have yet to see any of them take their own advice.)

    What might work?

    Optimism.

    It’s hard to find optimism anywhere in America in October 2018, but I’m finding it in the lawsuit brought by 21 young people against the U.S. government for failing to tackle climate change.

    Levi Draheim, 10 (center), and other youth activists suing the Trump administration over climate change in San Francisco on Dec. 11. Photo: Gabrielle Lurie / The Chronicle 2017

    It’s scheduled to go to trial on Oct. 29, and while the Justice Department has asked the Supreme Court to block it from happening, something about their action feels … antediluvian. A lot of that has to do with the fact that the children are unshaken by the size of the fight they’ve taken on.

    “I believe that the momentum is on our side,” said one of the plaintiffs, then-17-year-old Nathan Baring, when the kids were presenting their lawsuit before the Ninth Circuit Court of Appeals in San Francisco in December.

    The youngest plaintiff, 11-year-old Levi Draheim of Florida, has said that if he doesn’t do this, he may not have a home when he’s older.

    It’s the simplest reason to take on this fight, and it’s also the most inspiring one. It smacks of can-do spirit, a trait that used to be associated with American values. I think it’s time we brought it back again.

    Why not make fighting climate change our next national challenge, like putting a man on the moon once was? Why not at least believe we can do that, and behave accordingly?

    I can tell you this much: Optimistic action sounds like a lot more fun than clicking for your personal flood zone.

    Caille Millner is an editorial writer and Datebook columnist for the San Francisco Chronicle. She has worked at the paper since 2006. On the editorial board, she covers a wide range of topics including business, finance, technology, education and local politics. For Datebook, she writes a weekly column on culture.She is the recipient of the Scripps-Howard Foundation’s Walker Stone Award in Editorial Writing and the Society of Professional Journalists’ Editorial Writing Award.

      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


      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

      October 9,2018

      Direct: (916) 498-7715

      VIA U.S. MAIL & E-MAIL

      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.

      Sincerely,

      Gary S. Winuk

      GSW:VCC