The November 2012 election has come and gone, but Berkeley’s Fair Campaign Practices Commission will address some alleged violations of campaign law on Thursday night.
The commission is scheduled to take a look at donations made to a Slate Mailer Organization (SMO) that spent more than $43,000 to send out five campaign mailers in support of the TUFF Rent Board slate, which included incumbent Nicole Drake, (who was defeated) Judy Hunt, (who was elected), Jay James, and Kiran Shenoy.
Patti Dacey, a Berkeley Planning Commissioner, filed a complaint with the FCPC on October 25 alleging that real estate businesses improperly donated to the TUFF SMO in order to circumvent Berkeley election laws, which prohibit businesses from contributing to candidates and limits individual donations to candidates (but not ballot measures) to $250.
Dacey also alleged that the donations were ostensibly made to defeat Measure U, but the mailers placed much more emphasis on the Rent Board candidates and only allotted a small space to wording about the measure, among other complaints. On Nov. 30, Dacey amended her complaint to add a charge that the TUFF candidates did not properly list the donations on their campaign statements.
A staff report prepared by Kristy Van Herick, a Berkeley city attorney, suggests that some of Dacey’s allegations are covered by state law, and are therefore outside the purview of the FCPC. But she recommended that the commission examine some other issues, including contributions made by five real estate companies to the TUFF SMO to determine if they were improper. Van Herick also reported that all of the four TUFF candidates failed to file reports of the contributions in a timely fashion. While Hunt amended her campaign reports before the election, the other three candidates did not do so until early December, according to the report.
The amount of money raised for the TUFF slate mailings reveals just how important Berkeley landlords considered the 2012 Rent Board election. Four years ago, in the 2008 election, candidates for the rent board all filed short form expenditure statements, certifying that they had raised under $1,000 and would spend under $1,000.
On Oct 5, Berkeley Tenants United for Fairness, or TUFF, filed the paperwork to form a SMO. Rita Copeland was listed as treasurer and Jay James was listed as principal officer. SMOs are unusual organizations. They are often for-profit companies that solicit funds to place candidates on targeted mailers. They cannot be controlled by any candidate, party committee, or committee formed specifically to support or oppose a candidate or measure.
Any mailing done by an SMO is not considered a direct donation to a candidate, but an in-kind donation that must be listed on a candidate’s campaign spending form.
During October, the TUFF SMO raised $44,920 to finance five mailers. The East Bay Rental Housing Association Political Action Committee donated $32,000, Diablo Holdings, an Alamo property management company run by John Lineweaver, donated $5,000 and Ellis Street Properties, Stuart Street Properties, and Lower Carleton Properties also donated funds, as did a number of individuals.
In her staff report, van Herick points out that BERA, Berkeley’s election law, does not give it jurisdiction over SMOs except to require they file campaign reports with the City Clerk’s office. However, she raises the question about whether the TUFF SMO might also be a candidate-controlled committee since it received unallocated contributions of more than $1,000 and then steered the funds to the mailers. In that case, the FCPC would have jurisdiction over the TUFF SMO, said van Herick.
The staff report determined that the donations made by Ellis Street Properties, Stuart Street Properties, and Lower Carleton Properties, which all have the same address in Berkeley, were prohibited because they were listed on the campaign report as going directly to candidates rather than to the slate mailing. After Dacey filed her complaint, the TUFF SMO refunded $1,440 to those businesses, according to the staff report.
Van Herick also questioned the propriety of a $5,000 donation by Diablo Holdings to the TUFF SMO and a $1,000 donation made to the candidates by the East Bay Rental Housing Association PAC. In an interview with staff, Lineweaver said he meant the donation to go to the candidates rather than the mailer, said Van Herick. If the FCPC finds that is the case, it would not be allowed since Berkeley law does not permit businesses to donate to candidates.
“The information discovered by staff to date also calls into question whether the $5000 payment by Diablo Holdings and the $250 payments allocated to each of the candidates by the East Bay Rental Housing Association PAC were also in part or in whole prohibited source contributions to the candidates,” reads the staff report.
The staff report concludes that that the TUFF SMO did not do anything wrong by accepting the bulk of the donations to defeat Measure U, but using most of the money to support the four TUFF candidates.
After hearing the report tonight, the FCPC can refer the matter back to staff to do some more investigating; determine there is probable cause that Berkeley election laws were violated and set a date for a hearing; or refer the matter to the state.
The staff report is also recommending the FCPC decline to take up another complaint because it falls outside the commission purview. In October, former Mayor Shirley Dean charged that City Councilman Laurie Capitelli, who was running for reelection, violated state campaign laws by mailing out a picture of himself standing next to his son, who is dressed in his police officer’s uniform. State law, Dean alleged, prohibits any peace officer from participating in political activities while in uniform.
Capitelli, in a letter dated Nov. 26, told the FCPC that his son, who is a policeman in Sonoma County, was not appearing in the mailer to endorse him but was there to show Capitelli’s “personal connection to public safety.” While the photo was taken on the steps of Berkeley’s police department, it was carefully cropped to remove all indications of its location to eliminate any identifiable Berkeley characteristics, said Capitelli.
Dean also charged that Capitelli incorrectly listed SEIU Local 1021 as having endorsed him. Capitelli removed all reference to that from his website after the complaint was filed.
View a copy of the FCPC packet with the staff report.
Late money flows into Berkeley election campaigns [11.02.12]
Rent Board candidate accuses Capitelli aide of trespassing [11.06.12]