Category Archives: Legal action

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

    Campbell wanted to sue immediately over push poll; Largaespada defends himself

    Repost from the Vallejo Times-Herald
    [BenIndy Editor: I believe that no current Benicia City Council candidate was involved in nor favors push polls. But the reason for Valero to smear one candidate and lift another is clear. Valero can’t be unaware that Mr. Largaespada stood firm with Valero and against the will of the people during the controversial Crude by Rail debate in 2014-16. Planning Commissioner Kari Birdseye voted with the unanimous decision to stop Valero “in its tracks.” Valero has every reason – and every right – to openly and fairly voice its preference. But to secretly fund dirty tricks to achieve its goal is a tactic that should be soundly criticized by all candidates. I’ll vote for Birdseye, and hope that our next Council will include 3 women for the first time ever.  – RS]

    Campbell sought tougher response to push poll incident

    By John Glidden, October 8, 2018 at 5:51 pm
    Tom Campbell

    BENICIA — Days after the Benicia City Council met in closed session directing City Attorney Heather Mc Laughlin to seek answers about a controversial polling incident, speculation swirled on which councilor voted against the move.

    Councilman Tom Campbell confirmed he was the lone “no” vote in the Oct. 2 closed session decision.

    “I wanted a stronger response than the rest of the council members wanted,” Campbell explained in an email to the Times-Herald.

    The City Council authorized Mc Laughlin to contact Research America and EMC Research about their respective roles in a series of phone calls made to residents in September. Research America conducted the polling, which included questions about the city’s current council candidates.

    The polling firm said EMC hired them, and just last week, Mc Laughlin confirmed that the Valero Benicia Refinery sponsored the entire polling.

    Steve Young

    Vice Mayor Steve Young, and other residents, have stated they received one of the survey calls which allegedly smeared council candidate Kari Birdseye while championing fellow council candidate Lionel Largaespada. Young called the survey a “push poll,” a type of survey meant to influence voters instead of gathering objective survey information from those called.

    Councilors expressed concern that since the survey calls didn’t provide a “paid for by” disclaimer at the end of the phone calls the survey may have violated the city’s municipal code. A claim the polling firms have denied through their lawyer.

    Campbell, who led the charge for the present campaigning ordinance in the municipal code, said he wanted immediate action in response to the poll.

    “What I wanted was that the council authorize the city attorney to immediately go to Superior Court, file an injunction/lawsuit against the pollster and subpoena the records from EMC on who paid for it, how much, and what the exact questions were,” Campbell wrote in the same email. “The council took a little softer line than I wanted. I felt we had to act now to obtain the information as quickly as possible before the Nov. election.”

    Lionel Largaespada

    Largaespada issued a statement on Sunday in response to the news that Valero paid for the polling.

    “I was very disappointed to learn that Valero sponsored the recent polling in Benicia,” he wrote in an email to this newspaper. “As I previously stated, I was not involved in any way with this polling effort, and I did not know who was conducting it.

    “As I also stated, push polling, or any misrepresentation of a candidate’s stance or ideals is not something that I support in any way,” he added. “I hope that Valero will provide the content of the poll so that this issue can be resolved.”

    Largaespada, who has expressed support in the past for the “crude by rail” initiative, also defended himself from comments made online by residents.

    “To the commenters on Nextdoor that have suggested that I am in favor of this type of tactic, or that I am a ‘tool’ or ‘mouthpiece’ for Valero — these comments are completely false and without merit,” he wrote. “I understand that issues involving Valero are polarizing in our community, but to say that because someone believes differently than you do about an issue makes them a ‘tool’ for an entity is nothing more than name-calling.”

    Mc Laughlin was also tasked by the council to obtaining a copy of the poll questions. In a letter she sent Research America, and EMC, last Friday, she gave them 72 hours to send a copy of the questions to her office.

    Mc Laughlin said she didn’t have a copy of the poll questions as of Monday afternoon and was told she would get a response to her request on Wednesday.

      Valero paid for smear campaign, survey attorney claims it was not a “push poll”

      Repost from the Vallejo Times-Herald
      [Editor:  Download City Attorney’s Oct. 5 letter here.  – R.S.]

      Valero refinery sponsored survey calls, Benicia City Attorney says

      By John Glidden, October 5, 2018 at 5:32 pm

      BENICIA — The mystery of who sponsored a poll to survey Benicia residents about the upcoming City Council election has been solved.

      Officials with the Valero Benicia Refinery confirmed to Benicia City Attorney Heather Mc Laughlin on Thursday that Valero authorized the polling.

      Mc Laughlin revealed the information in a formal letter she sent the Los Angeles-based Kaufman Legal Group. A copy of Mc Laughlin’s letter was provided to this newspaper.

      Valero Benicia Refinery General Manager Don Wilson couldn’t be reached for comment on Friday.

      Mc Laughlin was ultimately responding to a letter Kaufman attorney Gary S. Winuk sent the city on Monday defending Research America, Inc. and EMC Research.

      A representative from Research America, a data collection company, previously confirmed to the Times-Herald that the firm was hired to gather polling information for EMC.

      Contacted by phone on Friday afternoon, Winuk didn’t want to confirm if Kaufman is representing both Research America and EMC Research.

      “I don’t have anything to say about it,” Winuk said before abruptly hanging up the phone.

      Several Benicia residents, including Vice Mayor Steve Young, said they received a phone call from a group — later identified as Research America, Inc. — asking to conduct a survey about the City Council, senatorial and gubernatorial contests.

      However, Young, said that most of the questions centered on Benicia City Council candidates Kari Birdseye and Lionel Largaespada.

      “The statements about Mr. Largaespada were uniformly positive and stated how, for example, he would use his small business background to improve the city’s economy and relations with its businesses,” Young wrote in a Sept. 20 letter published by the Benicia Independent. “The statements about Ms. Birdseye were the opposite. Among these statements were ‘She wants to shut down Valero, costing hundreds of jobs,’ and ‘She will bring radical left-wing politics to City Hall.’”

      Young said the survey was a “push poll,” a type of survey meant to influence voters instead of gathering objective survey information from those called.

      Winuk in his Monday letter denied that the survey was a “push poll.”

      “The public opinion research survey in question was designed 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,” Winuk wrote.

      He further said 256 randomly selected likely voters from within Benicia were contacted from Sept. 6 to Sept. 20 to participate in the survey.

      In response to the calls, the Benicia City Council met in closed session on Tuesday. A majority of the council directed Mc Laughlin to contact Research and EMC Research about the survey, and ask for a copy of the questions and provide information on who paid for the poll. She was also directed to contact the California Fair Political Practices Commission about the calls.

      At issue is the alleged failure of the companies to disclose who paid for the poll — a violation of the Benicia Municipal Code.

      “From the reports I received, the polling by your clients may have contained “push” questions without disclosing the payor and amount spent,” Mc laughlin wrote in her letter to Winuk. “The caller also did not provide a ‘paid for by’ disclaimer at the end of the phone calls.”

      Winuk previously said the poll was not a campaign communication, and “did not require any disclaimer and did not violate any federal, state or local laws, including the provisions of the Benicia Municipal Code.”

      Mc Laughlin’s Friday letter officially requested a copy of the poll questions.

      “In order to avoid having to issue a subpoena, I would ask that you voluntarily provide a copy of the poll questions to me within the next 72 years,” Mc Laughlin wrote to Winuk.

      She also requested an itemized invoice which shows the times, dates and number of calls made. Finally, she asked that Winuk file disclosure reports for any future push polls, which meet the definition of an independent expenditures, and also ensure a disclaimer is provided with the calls.

      “The city believes strongly that an open, fair and truthful election process is essential to promoting and improving public trust in the election process,” she wrote. “The city also believes that candidates should have meaningful opportunities to respond to claims about their qualifications and positions on issues.”