.Sit/Lie Committee Violated Berkeley Election Laws

The city's ethics commission plans to fine the Yes on Measure S committee for failing to report more than fifty cash payments to Election Day workers.

The committee that backed a hotly contested ballot measure — known as the sit/lie ordinance, or Measure S — in last year’s Berkeley elections is facing a fine from the city’s ethics commission for failing to report more than fifty cash payments to campaign workers in violation of local election law. The campaign violations also have stirred controversy in Berkeley because some of the payments handed out on Election Day allegedly went to homeless people who were paid to distribute fliers in favor of an ordinance that would have made it illegal to sit on city sidewalks. Opponents of Measure S say that homeless workers were duped into thinking that they were campaigning for President Obama’s reelection.

“The facts are they received tons of cheap labor from this deal,” said Bob Offer-Westort, who, along with fellow Measure S opponent Patricia Wall, first alerted Berkeley’s Fair Campaign Practices Commission (FCPC) to the campaign violations. “But aside from that, it’s hard not to say there is a sadistic aspect to this when you’re asking people to advocate for their own criminalization.”

In an email to the Express last week, John Caner, CEO of the Downtown Berkeley Association and a leading proponent of Measure S, acknowledged that he paid people cash to hand out fliers that included an endorsement of the sit/lie ordinance. But he said that of the more than fifty campaign workers he hired for Election Day canvassing, only seven came from Options Recovery Services — which works with homeless people in Berkeley. He also said he told all of them that they were working for the Yes on S campaign. In addition, he said he told each that they were handing out literature originally produced by the Berkeley Democratic Club, which had endorsed the sit/lie ordinance.

But Offer-Westort disputed Caner’s assertions. “Not a single person we spoke with knew what Measure S was,” Offer-Westort said of the campaign workers. “And we spoke with far more than seven homeless people who had been hired by the Yes on S Campaign.”

In the fall of 2012, there was no Berkeley ballot measure more controversial than Measure S, which sought to prohibit people from sitting on sidewalks in the city’s commercial districts. The measure was backed by Shattuck and Telegraph avenue merchants, but opposed by many homeless advocacy and civil rights groups. Ultimately, the measure lost 48 percent to 52 percent.

After Offer-Westort and Wall filed a complaint with the Berkeley FCPC, the commission’s staff launched an investigation and found that the pro-Measure S campaign had violated numerous city election laws. In an email to the FCPC, Caner acknowledged that he made more than fifty cash payments of nearly $100 each to workers to hold campaign signs and hand out leaflets but had failed to itemize each of the cash expenditures on campaign disclosure reports as required by city law. In addition, most of the cash payments violated the Berkeley Election Reform Act, which prohibits unreported cash expenditures of $50 or more. Caner, a former member of the FCPC’s board of directors, told FCPC staffers, in the same email, that he had been unaware of the allegations against him and the Yes on S campaign until September.

The Yes on S campaign also failed to properly disclose a $5,000 loan involving Caner. He had loaned the campaign the money, and then after the campaign repaid him, he used the $5,000 to pay for the Election Day workers. He made 58 cash payments to 55 workers totaling, $5,530; 51 of the payments were for $50 or more. Caner later said he paid cash because he thought that many of the workers did not have bank accounts. The Measure S campaign also failed to report that Caner paid $530 out of his own pocket, when it should have been reported as a donation to the Yes on S campaign and as an expenditure by that campaign. The Measure S campaign also mislabeled the $5,000 loan repayment to Caner as for “polling and survey research.” In addition, it failed to report a $1,692 payment to print the campaign fliers as a donation to the Berkeley Democratic Club — since the Measure S campaign had promoted the club and its endorsements by handing out its fliers. Ultimately, the Measure S campaign filed amended campaign finance reports, correcting its violations.

Opponents of Measure S also complained about the moral and ethical issues of hiring homeless people to campaign on behalf of the sit/lie ordinance. And they questioned whether the Berkeley Democratic Club had violated county or state Democratic Party rules when it endorsed Measure S — since neither the county nor the state party had backed the measure. But the FCPC said those issues were not within its jurisdiction.

Measure S opponent Elisa Della-Piana said she talked to numerous campaign workers on Election Day last year in Berkeley who had no understanding of the local measures for which they were advocating. “They thought they were campaigning for Obama,” she said. When she repeatedly described what Measure S could ultimately do to the city’s homeless, most of the workers were dismayed, she said. Others immediately dropped their signs and left. “Two women brought their children with them, and when I told them what the measure would do, they both looked at their kids, put the remaining fliers in their purse and left.”

Last month, the FCPC board voted to negotiate a settlement fine to be levied against the Measure S campaign. However, the fine is not expected to be large because the FCPC decided to count the fifty-plus cash payments as a single violation rather than as individual violations as the Measure S opponents had requested. The FCPC attributed the errors in part to the inexperienced treasurer who recorded the Measure S campaign’s finances.

But David Waggoner, an attorney for Offer-Westort and Wall, argued that the FCPC was wrong to cobble together all 58 of the cash payments into one violation, thereby greatly limiting the potential fines that may be levied against the Yes on S campaign. City staff only spoke to Caner and members of the Berkeley Democratic Club, but not to Waggoner’s his clients, Waggoner said. Waggoner also noted that Caner is a member of the Berkeley Democratic Club.

Offer-Westort and Wall had also made a complaint against the Berkeley Democratic Club, alleging that it should have filed campaign finance reports with the city. But the FCPC ruled that the club only had to file with the Secretary of State’s Office because most of the club’s expenditures were for issues and campaigns outside of Berkeley.

Dan McMullan, who runs the Disabled People Outside Project, said the Yes on S campaign’s Election Day acts were a form or coercion against vulnerable people, some of whom may have been under court order to attend treatment in Berkeley. “This is reprehensible for this to happen in Berkeley,” McMullan told the FCPC last month.


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