Commission to consider alleged campaign violations

One of the mailers sent out by the Tenants United For Fairness slate mailer organization

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.

Patti Dacey, a planning commissioner, filed a complaint against the TUFF slate mailer organization. Photo: Frances Dinkelspiel

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.

A photo of a flyer sent out by City Councilman Laurie Capitelli showing him standing next to his son, a police officer in Sonoma County

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]

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  • The Sharkey

    Is anybody going to investigate Kriss Worthington’s illegally placed signs? Or how about the signs he re-used from previous campaigns but blacked out filing information on?

    How about the signs from various campaigns that are still taped to lamp posts up and down San Pablo? Anyone going to do anything about that?

  • hilldah

    What a waste of tax payer’s money. I can think of hundred of places more deserving of the funds that will be wasted on Dacey’s wasteful game. Thought she was in favor of helping those that need affordable housing, guess not.

  • voxhumana

    Hard to un-ring the bell of Capitelli’s well planned and illegal mailer, despite his later corrections using a completely different and hidden media. This is how power operates.

  • 3rdGenBerkeleyan

    He will fit right in…Master Bates will retire before his term is up, and appoint Capitelli to the post just in time to get re-elected this is all possible because people in Berkeley like the status quo and are afraid of change…think i’m wrong just look around nothing changes around here…EVER!

  • sickandtired

    agreed look at the cesspool called “people’s park” what a filthy disgusting place, and telegraph ave isn’t very far behind.

  • Bill N

    And so….what? Is this a wast of time or will it change or so anything? Exposure of irregularities with what result? None?

  • tor_berg

    Care to make it interesting? I would definitely put money on that.

    (Whatever you do, don’t read Article V, Section 12 of the City Charter before accepting my big-money wager.)

  • The Sharkey

    Is it illegal for Council members to have sons who are police officers?

  • The Sharkey

    I don’t think Berkeleyans like the status quo as much as you think. Bates didn’t win because people loved his record. Bates won because a lot of people believe that his strongest challenger – Kriss Worthington – would have run this city into the ground.

  • hilldizzle

    The only ones who wasted taxpayer money in this case is the TUFF slate. The FCPC and legal staff exist for the purpose of enforcing BERA law. The rules, like state campaign finance limits, are there for a reason – to ensure that financial records get the disclosure they deserve and that no single person (or slate) can buy the election. They are now doing their job and investigating what looks like many gross violations committed by TUFF. Maybe TUFF should have considered that their attempts to lie and cheat their way into office would have consequences down the road.

  • hilldizzle

    The only ones who wasted taxpayer money in this case is the TUFF slate, by forcing the FCPC and legal staff to investigate what looks like their many gross perversions of campaign finance law. Like state disclosure and finance rules, BERA is there for a reason – so that no one can buy their way into office, candidates can run on their merits, and citizens know what’s going on. Maybe TUFF should have realized that their attempts to lie and cheat their way into office would have consequences down the road.

  • Charles_Siegel

    I couldn’t find the charter on the city web site. Links to the charter lead to the Municipal Code instead. I did find the charter on a site named bixby[dot]org, and here is the article and section:

    Vacancy in Office of Mayor or Councilmember.
    (1) If a vacancy shall occur in the office of Mayor or Councilmember:
    (a) If the unexpired term is less than one year, the remaining members of
    the Council shall elect a successor with requisite qualifications to fill the vacancy for the
    unexpired term.

    We can speculate on what the council would do if Bates resigned with less than a year left to his term.

  • voxhumana

    No. It’s illegal for California officers to pose in uniform with a candidate for office. And it’s unethical for a candidate to pose on the Berkeley Police Dept. steps with a son in police uniform, that works in Sonoma, to counter an endorsement by the Berkeley Police union of an opposing candidate. It’s just downright misleading, and everyone knows it.

  • Charles_Siegel

    So, you agree that Shirley Dean was wrong to say that Capitelli acted illegally. From this article:

    “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.”

    There have been lots of accusations about unethical conduct by both candidates in this race. But Shirley Dean was talking about legality, not about ethics.

  • voxhumana

    I’m not a judge, but my sense would tell me the police officer is at fault, since he was the one with the prohibition. But the candidate that put him up to it was unethical in asking him to do it, and suspect in his intentions, since the opposition candidate had been endorsed by the LOCAL police union. It was clearly intended to be misleading, regardless of his protestations now. I’m aware of the other accusations of unethical conduct and don’t want to paint anyone as saintly. Just look at who has the power. That’s where I see the most violation, because there is an assumption on most voters’ parts (those that don’t actually follow the city issues) that the incumbent should be re-elected, unless there is some malfeasance. I still meet many who think Laurie is a woman. What does that tell you? Those who say this is not worth pursuing should remember Watergate. People said that should be dropped too, and it led to the resignation of a president. A democracy depends on truthfulness and openness. And this example was neither.

  • Charles_Siegel

    “Just look at who has the power”
    Who has more power, Laurie Capetelli or the Police Union?

    “A democracy depends on truthfulness and openness.”
    by both incumbents and insurgents.

    “I still meet many who think Laurie is a woman. What does that tell you?”
    It tells me that most people in Berkeley ignore city politics. I don’t see anything more sinister than that.

  • EBGuy

    I think Sopie Hahn’s campaign ‘misunderestimated’ how the electorate would react to her divide and conquer campaign. I certainly don’t blame her for trying to go that route as she needed to pick up votes somehow. As someone who viewed her favorably before the campaign, I have to say, though, I don’t think she came off well. I don’t even live in her district and was ready to campaign against her. She managed to lose voters from 2008 and Capitelli actually picked up a handful.
    2008 results: Capitelli 4299 (52.35%) Hahn 3898 (54.25%)
    2012 results: Capitelli 4324 (52.35%) Hahn 3619 (45.40%)

  • potheeny

    Wait. More than 100% voted and Hahn won in 2008?

  • potheeny

    It recently was reported that Ms. Hancock terms out of the State Senate in 2016. Any chance of that coming into play?

  • EBGuy

    Take two:
    2008 results: Capitelli 4299 (52.35%) Hahn 3898 (47.47%)
    2012 results: Capitelli 4324 (54.25%) Hahn 3619 (45.40%)

  • potheeny


  • The charter is the first document available on the municipal code site (see the left-hand navigation — it’s not very well designed):

  • fabuberkeley

    As long as we’re looking more deeply into things…what is happening with the follow up of the Alameda Civil Grand Jury’s scathing assessment of the Berkeley Rent Board. Can Berkeleyside follow up? Is our District Attorney looking into that?

  • Howie Mencken

    You’re giving much too much credit to everyone. There’s a simple explanation; the candidates, They are very simple.

  • Howy Mencken

    Thank God it was after the election that Vox Humana suggested Laurie’s name won him votes via gender confusion.

    Kriss pasting all those “Y”‘s on his signs would not have been pretty.

  • The Sharkey

    If you can’t throw down the race card because of the unfortunate circumstances of your birth, at least you can throw down the gender confusion card.

  • The Sharkey

    If individual officers are prohibited from endorsing candidates if they’re wearing their work clothes, why is the Union allowed to regardless of what their individual members might think?

    How sad that Mr. Capitelli might not be allowed to put his own family photos on his website if his son happens to be wearing the wrong clothes.

  • The Sharkey

    Hahn came across as a rude, shrill liar.
    She had never really been on my radar before, but during this election cycle she convinced me that she’d be horrible for office and quickly join the anti-progress cabal if elected.