Category Archives: Benicia City Attorney Heather McLaughlin

"Push poll", Benicia City Attorney Heather McLaughlin, EMC Research, Kari Birdseye, Legal action, Lionel Largaespada, Local elections, Local Regulation, Research America, Steve Young, Tom Campbell, Valero Benicia Refinery

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.

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia Municipal Code, EMC Research, Heather McLaughlin, Benicia City Attorney, Kari Birdseye, Legal action, Lionel Largaespada, Local elections, November election, Research America

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.”

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia Municipal Code, EMC Research, Heather McLaughlin, Benicia City Attorney, Legal action, Local elections, November election, Research America

Bombshell news: Valero admits it paid for the push poll

Benicia City Attorney Heather McLaughlin’s letter of October 5, 2018 to attorney for EMC Research and Research America (download in PDF format)…
[Editor: See next-to-final paragraph for Valero involvement.  – R.S.]
Via US Mail and Email

October 5, 2018

Gary S. Winuk
KAUFMAN LEGAL GROUP
777 S. Figueroa Street, Suite 4050
Los Angeles, CA 90017

RE: Polling in Benicia California by Research America and EMC Research

Dear Mr. Winuk:

Thank you for your letter and your telephone calls. As I mentioned to you on the call yesterday, the City Council has directed me to send this letter to Research America and EMC Research. I understand you represent them.

The City of Benicia wishes to inform you that the City has several election related ordinances. You may find copies of the ordinances on line at https://www.codepublishing.com/CA/Benicia/   Chapters 1.36, 1.40 and 1.42 are the main election ordinances. In particular, I draw your attention to Chapter 1.40 “Disclosure of Contributions and Expenditures in Candidate and Ballot Measure Elections.” From the reports I received, the polling by your clients may have contained “push” questions without disclosing the payor and amount spent. The caller also did not provide a “paid for by” disclaimer at the end of the phone calls.

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 hours.

The City believes strongly that an open, fair and truthful election process is essential to promoting and improving public trust in the election process. The City also believes that candidates should have meaningful opportunities to respond to claims about their qualifications and positions on issues. For these reasons the City Council asked me to request that you file the required disclosure reports for any future push polls that meet the definition of an independent expenditure and provide a disclaimer on them.

The City also requests the following information related to the current poll:

  1. The actual questions used in the poll.
  2. An itemized invoice showing the dates, times and number of calls made.

After you and I spoke yesterday, I received a call from Don Wilson, the Vice President and General Manager of the Valero Benicia Refinery. He informed me that Valero sponsored the calls so we no longer need to know who authorized the poll. I appreciate Valero’s willingness to help address the City’s concerns.

I am providing a copy of Chapter 1.40 for your reference. The City asks that you comply with the Benicia Municipal Code.

Thank you for your cooperation.

Very Truly Yours,

Heather C. Mc Laughlin
City Attorney

Enclosure

cc:  City Council
City Clerk
City Manager
Assistant City Manager
Steve Churchwell
Don Wilson

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia Municipal Code, EMC Research, Heather McLaughlin, Benicia City Attorney, Local elections, Research America

Attorney for “push poll” firm denies everything

Letter to Benicia City Attorney Heather McLaughlin from Attorney for EMC Research and Research America  (download in PDF format)

KAUFMAN LEGAL GROUP
A PROFESSIONAL CORPORATION

October 1, 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 email to Research America dated September 21, 2018 regarding a public opinion research poll conducted by Research America and EMC Research (“professional polling firms”). The public opinion research poll referenced in your e-mail was conducted by the professional polling firms regarding the upcoming Benicia City Elections. The poll was conducted in full compliance with applicable federal, state and local laws, which do not require campaign advertisement disclaimers on telephone polls. This letter will also serve to correct inaccurate facts reported in media articles regarding the poll. Specifically, the contents of the poll were not as stated in the media reports, which also misstated the scope and purpose of the poll.

EMC Research and Research America are professional polling companies with sterling reputations in their field. Neither company engages in campaign advertising communications. Rather, the purpose of their telephone communications is to conduct surveys based on scientific data and modeling to provide information back to campaigns about voter preferences and attitudes.

Political polling is conducted for the purpose of advising a campaign of public opinion as it relates to numerous campaign issues. Among these issues are: overall support for the candidate or measure with the electorate; overall support for the candidate or measure with the electorate versus opponent(s); support for the candidate or measure among specific demographic groups; support for the candidate or measure among registrants of different political parties; and effectiveness of specific campaign messages. Campaigns rely on this polling to guide decisions of where, when and how to spend campaign funds.

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. The survey was conducted September 6 through September 20, among a random selection of 256 likely voters from within the City of Benicia.

There are no federal, State or local laws that require disclaimers on polls, whether conducted telephonically or by electronic mail. A recent opinion issued by the California Fair Political Practices Commission (FPPC) at their September 2018 hearing confirmed this.1 Polls are not considered campaign communications or “mass mailings” and, thus, do not require campaign advertising disclosures. The Benicia Municipal Code provisions similarly do not apply, as they only apply to campaign communications. As the FPPC has opined, a poll is not a campaign communication.

The survey at issue was also not a “push poll,” as it was referred to in a Benicia Herald Op Ed dated September 23, 2018, and reiterated in a subsequent article dated September 28, 2018. As was noted in the article, “the American Association of Public Opinion Research (AAPOR) … defines a ‘push poll’ as a form of negative campaigning that is disguised as a political poll. ‘Push polls’ are actually campaign communications — telephone calls disguised as research that aim to persuade large numbers of voters and affect election outcomes, rather than measure opinions.”

Polling by professional polling companies is not done to influence voters. The persons who are targeted for the poll solicitation are selected to form as accurate a representation of the electorate as possible. They are not selected for the purpose of finding groups to influence in the election. The communications, which vary in content, are not used for or intended to persuade voters. Even when questions state something positive or negative about a candidate or measure, the purpose of the language is to identify which arguments the campaign can use most effectively. This information is not presented to persuade voters, but rather to gather information to guide the client’s activities, including subsequent communications that actually may be intended to influence the electorate.

The Benicia poll conducted by the polling firms had a limited universe of targeted call recipients. The poll asked questions that included both positive and negative messages about several candidates to determine which messages were most persuasive to voters. These were asked as a part of numerous other questions designed to gather relevant data. This is in contrast to how the poll was reported in the aforementioned media stories, which described it as being communicated to a broad audience and one-sided in the questions presented.

Professional polling firms are not paid to communicate with voters. Instead, they are paid to gather information by conducting a poll. Polling firms seek to communicate with the fewest number of people necessary to obtain a scientific sample, as opposed to a campaign communication, which is designed to reach as many likely voters as possible. Once the poll is completed, the results are analyzed and provided to the client. That is the “product” for which the client is paying — not for a campaign communication.

The poll conducted by the polling firms at issue here was not a campaign communication, and was not a push poll. As a result, it did not require any disclaimer and did not violate any federal, State or local laws, including the provisions of the Benicia Municipal Code. Please contact me immediately should you have any further questions.

Sincerely,

Gary S. Winuk  GSW:VCC

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