The City of Sunnyvale used public funds to advocate for a ballot measure, alleges a political group opposed to Sunnyvale’s Measure B creating six City Council districts and the new office of a directly elected mayor.
The group, No Directly Elected Sunnyvale Mayor, endorses a seven-district Council organization and continuation of the present method of a Council-appointed mayor with a two-year term.
The groups said in a Wednesday press release that City mailers and utility bill inserts on Measure B were not merely informational — which is legal. The group contends that the communications were intended to influence voters to pass the measure. [Measure B City Flyer_2020-01-22, Measure B Utility Insert_2020-01-13]
California law expressly prohibits public agencies from spending public money on campaigning. But the question is whether the mailers are advocacy pieces.
The law defines communications as advocacy if they “(1) can be reasonably characterized as campaign material or activity, and (2) is not a fair presentation of facts serving only an informational purpose when taking into account the style, tenor, and timing of the communication,” according to the California Fair Political Practices Commission, or FPPC.
The advocacy purpose is shown, the press release said, by the City’s hiring of San Francisco-based political strategy and communications firm TBWB Strategies for strategic consulting services and creating the mailers.
TBWB is up front that its work is not just communicating but convincing voters to pass ballot measures. Its landing page says “TBWB helps you package and pass a ballot measure to meet your needs.”
A TBWB invoice shows that Sunnyvale spent $8,000 on consulting fees and roughly $80,000 on two mailers sent to 62,000 Sunnyvale households.
No Directly Elected Sunnyvale Mayor spokesman Steve Scandalis said in an email that in these communications “the city attempts to obscure the basic effect that Measure B extends term limits…[and] tacitly supports Measure B by implying it will protect the City from ‘potentially costly CVRA lawsuits.’
“The City’s series of fliers and utility inserts stopped just as the Yes on Measure B campaign began sending their materials,” he continued. “Also, very interesting is that both the City and the Yes on B committee used Every Door Direct Mail (EDDM) which is novel for political mailers, especially for Sunnyvale.”
The City disputes the contention that these communications are campaign pieces.
“It is well established that agencies may spend public funds to provide information to the public about the possible effects of a ballot measure on the activities, operations, or policies of the local agency,” said Sunnyvale Communications Officer Jennifer Garnett in an email.
“The agency’s information must present relevant facts in an accurate, fair, and impartial manner to aid voters in reaching an informed judgment regarding the ballot measure. (Cal. Gov’t. Code§§ 8314(d), 54964(c)).
“Further,” she continued, “courts have upheld such public expenditures for informational materials. We developed our informational materials for Measure B in close coordination with our City Attorney to ensure we met these ‘accurate, fair, and impartial’ standards, did not improperly advocate for or against Measure B, and were consistent with our ongoing style of communications with Sunnyvale residents regarding the transition to district elections.”
No Directly Elected Sunnyvale Mayor says it “is looking at what, if any, options may be available to remedy this use of public funds to advocate for Measure B as well as the lack of candor the City showed by labeling the materials in question as ‘informational only.'”