Category Archives: Legal action

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.”

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
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   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


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

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.

These Teens Just Won a Victory Over the Trump Administration in Court

Repost from Mother Jones
[Editor: For more on this story, see Our Children’s Trust, and Climate Liability News.  – RS]

The plaintiffs are arguing that the government’s actions have caused climate change which violates their constitutional rights.

By Amy Thomson, Apr.  13, 2018 3:44 PM
Eighteen of the 21 kids and young adults suing Trump, their lawyers, and supporters pose for a photo outside the US Court of Appeals for the Ninth Circuit in San Francisco. | Amy Thomson

“We the people are ready to leave,” sang a small choir of climate activists in downtown San Francisco, “’cause the White House makin’ it hard to breathe.” 

That was the rallying cry in support of the 21 plaintiffs, ages 22 and younger, who are suing the federal government for causing climate change damages and thereby violating their constitutional rights. Last year, on December 11, a crowd of around 100 people gathered across the street from the 9th Circuit Court of Appeals in San Francisco where oral arguments were being heard as the government defendants tried to argue the case should not go to trial.

But the court ruled in favor of the young plaintiffs last month, and on Thursday, a US magistrate judge set a trial date for October 29 in Eugene, Ore.   Continue reading These Teens Just Won a Victory Over the Trump Administration in Court