Hollister City Manager Bill Avera has published letters on the city’s website that highlight reasons to support Measure W on Election Day, while it is illegal for government officials to advocate for such tax proposals using public resources.
Avera contended his posts on the proposed 1 percent sales tax extension were merely informational and didn’t qualify as campaigning.
It would be illegal for an appointed official to campaign in favor of a sales tax measure affecting his or her jurisdiction. Government Code 8314 states: “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity, or personal or other purposes which are not authorized by law.”
The code defines public resources as any property or asset owned by state or local agencies including but not limited to “land, buildings, facilities, funds, equipment, supplies, telephones, computers, vehicles, travel, and state-compensated time.”
The administrative penalty from the Fair Political Practices Commission is a fine.
“Any person who intentionally or negligently violates this section is liable for a civil penalty not to exceed one thousand dollars ($1,000) for each day on which a violation occurs, plus three times the value of the unlawful use of public resources,” the code reads.
Additionally, a League of California Cities document from 2015 mentions a misdemeanor potential on the criminal end for violators.
Despite the code, cities and other public districts throughout California hire consultants to help them strategically spread information about ballot measures while trying to weave around restrictions in the law. Those efforts are often in addition to the campaign committees that are allowed. With Measure W, the Campaign for Hollister in Support of Measure W is comprised of retired Hollister employee Carol Lenoir and current City Hall employee Cheryl Mullen, according to the elections office.
In May, the City of Hollister entered into a services agreement with the Lew Edwards Group for no more than $52,500 beginning May 1, 2016 and ending Oct. 31, 2016. The Oakland-based consulting firm previously worked with the City of Hollister on the 2012 sales tax measure. The firm has worked with other local agencies and municipalities, including the City of Gilroy, Salinas Union High School District and the City of San Jose.
Under the consultation of the Lew Edwards Group, Avera published three letters on the City of Hollister website about Measure W. The local ballot measure is a 20-year extension of a 1 percent sales tax that contributes $4.5 million annually to the city’s general fund. That’s more than a quarter of the general fund, which is the main discretionary pot of money used to pay out employee compensation. The general fund also funds Avera’s salary of $180,220 as of 2015, according to state data.
Two Avera letters talk about the need for local funding, as well as potential cuts to city services. One letter tells voters why Measure W would be beneficial.
“Dear Friends and Neighbors,” starts one of the posts.
The letter dated July 6, 2016 goes on to include statements such as the following:
“In recent years, because of local funding, Hollister has become a community where people desire to live and raise families. However, without continued funding we will be forced to cut basic public safety services and other vital city services that contribute to our quality of life.”
It goes on.
“We need continued local funding to maintain and improve our local roads and maintain streets and roads now as opposed to the future.”
Avera wrote another letter, dated August 2016, which includes the following statements:
“If enacted, Measure W would prevent cuts and maintain the current public services that residents need by simply continuing existing local funding with no increase in taxes.”
“Measure W would provide locally-controlled funds to help maintain public safety and other essential city services.”
“Measure W is a no tax increase continuation of a one-cent local sales tax that will not increase the current tax rate.”
“Measure W does not apply to prescription drugs or food purchased as groceries.”
“All funds from Measure W would stay in Hollister to attract and retain qualified police officers and firefighters, prevent cuts to youth gang and drug prevention and intervention programs, support programs to retain, expand, and attract business to Hollister, and other essential city services.”
In a phone interview with the Free Lance, Avera said everything posted on the city’s website went through a number of different attorneys and that his statements were strictly informational. Merely providing information, city leaders have noted, is not against the law.
Avera said the letters are not intended to do anything other than inform people about Measure W.
“This is why we have attorneys looking at this stuff, to make sure we don’t violate anything,” Avera said. “I absolutely want this thing to pass because I want us to provide the minimum level of services we already do.”
City Attorney Brad Sullivan said the post was run through an attorney before publication.
“We have checked it,” Sullivan said. “We feel it’s informational, she feels it’s informational and that would be our position.”
City Clerk Tom Graves said the city worked with an attorney from the Lew Edwards Group, which President/CEO Catherine Lew said is a communications consulting firm.
“I’m confident anything that’s been posted on the city website is purely factual,” Lew said.
The Lew Edwards Group does consulting work across the state for industries including elected officials, political action groups, education districts, healthcare providers and transportation agencies. Some of their other clients, which can be found on their website, include the California Nurses Association, the City of Cupertino, Gavilan Community College District and Kaiser Permanente.
“The Lew Group does two things: one is that in order for us to get things on the ballot that we do those things appropriately,” Avera said. “The second part is they make sure that we don’t do anything that’s campaign in nature. All we can ever do is factual in basis.”
According to the agreement, the Lew Edwards Group performed various services for the city, including:
“Project-facilitate a coordinated strategy and timeline for City staff and other professionals/consultants assigned to the Project through October 31, 2016;”
“Develop, update and refine an informational Strategic Communications and Outreach Plan to expand community awareness of community service needs, solicit community input, respond to questions and keep the community informed about these issues through informational materials and activities;”
“Conceive and produce informational communications materials, such as brochures, letters, or mailers;”
“Provide input on ballot measure language and assist in informing the community of the policy reasons of any ballot measure;”
“Provide additional strategic advice as needed.”
The Lew Edwards Group also entered into an agreement with San Benito County earlier this year for an amount not to exceed $55,000 over two years. The agreement was for development and implementation of a county outreach and education plan, in light of consideration for a sales tax hike in the county. According to the county meeting agenda from April 26, the contract includes services like assisting the county in developing its message presented to the community, use of direct mail and other outreach mediums, and educational presentations for the public.
Hollister City Councilman Ray Friend said he thought Avera’s letters, meanwhile, were more informational, not campaign pieces. He referred to the failure of Measure P, a proposed half-cent sales tax countywide to fund road improvements, and said that part of that initiative’s failure was lack of education. He said the city wants people to understand that Measure W is not a tax increase.
Mayor Ignacio Velazquez had a different view on Avera’s letters.
“Personally, I don’t like seeing city involvement in this part of it,” Velazquez said. “I think it’s probably not under the category of promotion, but it’s a little too close for me.”