$2,750 fine assessed after Measure S campaign violations

The FCPC commissioners review their papers in a fall meeting. (Note: Some of these commissioners are no longer serving.) Photo: Frances Dinkelspiel — FCPC commissioners review papers in a May 2013 meeting. (Note: Some of these commissioners are no longer serving.) Photo: Frances Dinkelspiel

Update, Jan. 17: Berkeley’s Fair Campaign Practices Commission voted Thursday night to increase the fine for “Yes on S” campaign violations to $3,750, according to the East Bay Express. The campaign had failed to list the individual names of canvassers hired on election day 2012, made cash payments to them that should have been paid by check or card, and did not properly categorize or disclose two of its non-monetary contributions. After two votes failed, one to increase the fine amount and one to leave it at $2,750 — which had previously been set through an agreement between the city and “Yes on S” — the “Yes on S” campaign attorney agreed to raise the fine to $3,750.

Original story, Jan. 16: Thursday night, Berkeley’s Fair Campaign Practices Commission will consider adopting an agreement that fines the “Yes on Measure S” campaign for violating several election-related rules in 2012. One of the violations included the campaign’s failure to report it had paid people $50-$100 in cash to pass out flyers on election day.

The Yes on S campaign has acknowledged its mistakes and agreed to pay $2,750 in fines, according to a draft of the agreement negotiated by the campaign and the Berkeley city attorney’s office. If the commission approves the agreement, it will be the second time in recent months the FCPC has levied a large fine in connection with the 2012 election.

Measure S, which was defeated in November 2012, would have made it illegal to sit on sidewalks in commercial districts for much of the day.

Thursday night, the city’s Fair Campaign Practices Commission (FCPC) is scheduled to review the draft stipulation and determine whether to accept it. Any changes or amendments will trigger further review by the “Yes on S” campaign, as the stipulation is a legally negotiated document and reflects a proposed compromise that campaign organizers and the city agreed upon.

According to the stipulation, the “Yes on S” team is guilty of several related violations of the Berkeley Election Reform Act: that it paid for a Berkeley Democratic Club mailer that included a “Yes on S” endorsement message, but did not initially disclose the payment accurately on campaign finance statements; that cash payments of $5,000 were paid by the campaign to canvassers to distribute that flier, and that many of those payments — those for amounts of $50 or more — did not comply with local election rules; that the names and addresses of those canvassers were not initially disclosed to the city; and that John Caner paid another $530 to cover canvassing costs, and never asked to be reimbursed for it or listed it as a contribution.

(Caner is the director of the Downtown Berkeley Business Improvement District and was deeply involved with both the Berkeley Democratic Club and the “Yes on S” campaign, for which he was the manager.)

In an email to the FCPC, Caner said last fall that the committee hired about 50 people to pass out literature and paid them from $50 to $100 in cash for their work.

According to the draft stipulation, the “Yes on S” team corrected all the requisite documentation to include the proper disclosures and information last fall.

Those corrections came after an Aug. 15 complaint was filed by Patricia Wall, executive director of the Homeless Action Center, and Bob Offer-Westort, coordinator of the “No on Measure S” campaign.

On Sept. 19, after learning of the complaint, Caner reached out to city staff to confirm the cash payments and provide additional information. That evening, the Fair Campaign Practices Commission considered the complaint and asked city staff to investigate.

On Oct. 15, the “Yes on S” team took steps to begin to amend its financial documents to ensure that they included the proper disclosures and information.

On Nov. 21, staff presented the results of their investigation to the commission. At that time, the commission recommended moving forward with efforts to come to a settlement with the “Yes on S” team about what had taken place.

The stipulation also notes that the campaign has cooperated with city staff, voluntarily provided information about the allegations, and voluntarily amended its campaign statement to include the proper information.

Also noted as a mitigating factor is the fact that the campaign “had a volunteer treasurer who had not previously worked on a political campaign. Respondent [Yes on S] relied on the advice of its professional political consultant that it could pay the canvassers in cash.”

As a “factor in aggravation,” however, the stipulation implies that Caner — who was a former member of the Berkeley Fair Campaign Practices Commission, had previously served as a committee treasurer, and was a party to an FCPC stipulation in 1999 — should have known better.

Caner said Wednesday that Berkeley voting regulations are quite complex, and that the campaign relied on its professional consultant’s advice when determining how to make its payments to canvassers in 2012.

“It was an honest, honest mistake,” he said. “We relied on professional advice, and we came clean before there was even an investigation, as soon as we found out there was a possible violation.”

The campaign has since hired a professional treasurer to handle its finances and to prepare and file any future campaign statements.

Though not part of the stipulation, the “No on S” campaign has also taken issue with exactly who “Yes on S” hired to hand out campaign literature.

“No on S” claimed in September that “Yes on S” hired homeless people to hand literature out, expressing outrage that homeless people would be paid to help promote the passage of a law that would be to their detriment.

In a press release distributed Thursday, the “No on S” campaign reiterated its belief — and concern — that their opponents had paid homeless people to work against their own interests.

“Hiring the homeless clients of a recovery program to campaign for their own criminalization is the opposite of harm reduction. Berkeley’s vulnerable populations deserve better,” said Wall, director of Berkeley’s Homeless Action Center.

Caner said Wednesday that, as far he knows, no homeless people were hired as canvassers. He said the campaign worked with a number of coalition partners, and hired approximately 56 people who were recruited from churches, labor unions and the Options Recovery Services.

A handful of those, an estimated 12%, came from Options, which does work with the homeless, as well as other people needing different types of services. But Caner noted that none of the people hired to canvas were, or had ever been, homeless.

“The opposition jumped to that conclusion,” said Caner. “There were no homeless people as far as we know.”

Offer-Westort, a “No on S” coordinator who was reached shortly after this story was originally published, stood by the assertion that homeless people were hired to canvass. He said he personally drove around on election day and spoke with 7-8 people who identified themselves as homeless clients of Options. He said other members of his campaign spoke with additional people at other polling stations who also said they were homeless Options clients, and added that the 12% Options figure provided by Caner seemed impossibly low due to the number of people he and others spoke with.

Offer-Westort said the canvassers he spoke with believed they had been hired by the Obama presidential campaign.

“They were given Obama signs and were waving those while handing out the slate card,” he said Thursday at approximately 4:10 p.m. “This isn’t just an honest mistake. This is dishonesty from election day through the present. Either Caner’s not telling the truth or he’s been given bad information.”

Regarding the agreement between the city and “Yes on S,” Caner called the stipulation regarding the violations fair, though he said the fine was “fairly high” given that the violations were mistakes.

“But we’re willing pay the amount and have it get behind us,” he said.

In May, the Fair Campaign Practices Commission levied its second highest fine ever — $4,000 — on a landlord-backed group that spent $42,500 in the 2012 election. The commission found that the people behind the Slate Mailer Organization, which supported the Tenants United for Fairness Rent Board slate (TUFF) — had improperly administered and distributed the organization’s funds.

Thursday night’s meeting of the commission takes place at 7 p.m. at 1901 Hearst Ave. upstairs in classroom C. Comments to the commission can be sent to FCPC@CityofBerkeley.info.

[Editor’s Note: This story was updated with several new paragraphs after a “No on S” campaign coordinator was reached for comment at approximately 4:10 p.m. The story was also corrected later in the day to explain that one of the violations was related to a payment from “Yes on S” to cover printing costs for Berkeley Democratic Club literature, which initially had been disclosed using an inaccurate designation on “Yes on S” campaign finance statements. No wrongdoing by the Berkeley Democratic Club was alleged in the stipulation.]

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Emilie Raguso