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The Berkeley Fair Campaign Practices Commission Hears TUFF Charges

By Dave Blake
Friday May 17, 2013 - 11:42:00 AM

Last night marked the first well-attended Fair Campaign Practices Commission meeting on the TUFF violations; there were 20 audience members, and the Oakland Tribune sent a reporter. The result was predictable, with commissioners whose Council appointers had endorsed the slate voting to accept the stipulation arrived at between city legal staff and the offenders (with one important change) and commission members appointed by Councilmembers who hadn't backed the slate voting in the minority (4-3) to reject it. But the path to the vote involved four different kinds of hand-wringing by the prevailing majority that at least provided the audience, the vast majority of which had spoken against accepting the stipulation, with moments of suspense and mystery. 

The first interesting wrinkle was technical. There are only eight members on the commission (the Moore appointment is vacant), which would normally mean five votes were needed to prevail; but even though one commissioner was absent (Dave Ritchie, Maio's appointee—Maio's long-time aide Brad Smith was appointed by Wozniak, so Ritchie is likely a swap with Wozniak, a move generally made when political considerations make it uncomfortable for a Councilperson to appoint the person they really want to appoint), they were able to pass the stipulation with only four votes because Ritchie's absence was, under recently-adopted Council rules, counted as a vacancy because it was formally excused in advance. 

The minority also voted, on motions by Anna De Leon (Arreguin), first to reject the stipulations, and next to overturn the previous decision by the board and to proceed with an investigation and testimony under oath. The only member to put on a real show of conscience, Jay Costa, was appointed by, appropriately, Bates, who's also the only member of the council machine who had not endorsed the entire TUFF slate. In order to bring Costa back into the fold, chair O'Donnell (Capitelli, originally appointed by Diane Woolley Baer) offered a motion which included sacrificing the parts of the stipulations declaring that there was no evidence of intent to violate city ordinances. De Leon had argued forcibly that the idea of making a determination of no intent in the absence of a hearing and sworn testimony was logically impossible. O'Donnell also made the assertion that the Commission shouldn't fine the TUFF defendants the $50,000 in illegal donations they'd gotten because the statutory authority to do that had been put in place by Council a year ago, and it was too new and untested to use yet. The accused parties will have to accept the stipulation absent the no-intent determination before the case is closed. 

Afterwards, in the matter of the stipulation arrived at by staff with the No on S Committee over their failure to report $500 in late contributions in a timely fashion as prescribed by the ordinance, the commission voted unanimously to reduce the stipulation from $500 to $50. it had been pointed out by audience members that the No on S committee's fine, unlike the TUFF fine, was exactly equal to the amount of donations they had mishandled. It was also pointed out that the violation the No on S committee had made, not reporting late donations on time, was surely worth a discount on a par with that given to the TUFF violators, who had solicited, accepted and spent donations in illegal amounts and from prohibited business entities. 

FORMAL VOTES: To reject both stipulations (as to 1) TUFF officers and illegal donors and 2) TUFF members. Made by De Leon, seconded by Al Murray (Anderson). In favor, De Leon, Murray, Spencer Pritchard (Worthington); Opposed, Jennifer Lombardi (Wengraf), O'Donnell, Smith; abstain, Costa. 

To open an investigation: same vote. 

To amend the stipulations to remove from each paragraph 29, which asserts that the Commission has found no evidence that respondents violated the ordinance intentionally. Made by O'Donnell, seconded by Costa. Unanimously in favor. 

To accept the stipulations as amended. Made by O'Donnell, seconded by Costa. In favor, Lombardi, O'Donnell, Smith, Costa. Opposed: De Leon, Murray, Pritchard.