Category Archives: Benicia City Council

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, EMC Research, Kari Birdseye, Legal action, Local elections, Research America, Valero Benicia Refinery

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

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, Legal action

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…)

Transcript:

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.

"Push poll", Benicia City Attorney Heather McLaughlin, Benicia City Council, Heather McLaughlin, Benicia City Attorney, Kari Birdseye, Lionel Largaespada, Local elections, November election

Benicia City Council directs city attorney to take action against push poll

Repost from the Vallejo Times-Herald

Benicia City Council directs city attorney to take action against push poll

By JOHN GLIDDEN, October 3, 2018 at 5:55 pm

BENICIA — Fearing an outside group or person is attempting to negatively influence the City Council elections, councilors took action Tuesday night.

The council in closed session directed City Attorney Heather McLaughlin to contact the California Fair Political Practices Commission in response to a series of calls residents received that some say smeared one of the council candidates.

“When an outside force appears to be engaging in activities that are outside of the ordinance and not disclosing who they are — I think we have no choice but to move forward,” Vice Mayor Steve Young said in the meeting.

Several residents, including Young, have received a phone call from Research America, Inc., asking to conduct a survey about the City Council, senatorial and gubernatorial contests. However, Young says that most of the questions centered on 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.’”

A representative with the data collection company Research America previously confirmed to the Times-Herald that the business was hired to conduct the survey by EMC. Representatives with that group didn’t return calls for comment.

McLaughlin was also directed Tuesday to contact Research America, Inc. and EMC Research about the survey, and ask for a copy of the questions asked and provide information on who paid for the poll.

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

Many have called the survey a push poll. Such polls are meant to sway public opinion instead of recording objective information from those surveyed.

Councilman Tom Campbell also spoke during Tuesday’s meeting stating that residents support having fair elections in town.

Campbell, who spearhead a campaign reform initiative in 2009, said he got 1,200 signatures during that time with only five people expressing doubt about the initiative. The rest supported the item, he said.

“Ninety-nine percent of the people want the same thing. They want to be fairly informed of who is actually backing a candidate. They want the elections to be clean, and they want people, who spend money on elections, to disclose how much money they spent,” he said Tuesday.

Campbell further said that if Research America and EMC won’t provide answers that are necessary for the city to go to court for those answers.