Records reveal tax-measure planning with use of city resources

This was attached in a city employee's July email to the city manager asking for feedback on "poster" ideas in the months before voters decided on Measure W. City Manager Bill Avera claimed it was for brochures to go in City Hall.

A Hollister engineer technician in July sought feedback over his work email from City Manager Bill Avera about a campaign-like sign relating to a special sales tax, according to email records obtained by the Free Lance.

Separately, those same email records revealed that a group of city employees met on a regular basis during work hours—an official said they went on lunch breaks for the gatherings—within Hollister City Hall about planning for the sales-tax measure.

The email communication calls into question whether city employees properly followed a state law barring them from doing any campaign work on city time or resources, and were among findings from records requested by the newspaper.

Hollister Engineer Technician Michael Grzan sent an email to Avera on July 14 seeking feedback on the employee’s design for a campaign-like sign regarding the special sales tax, according to the records.

Measure W on the November ballot was an extension to Measure E, the 1 percent, five-year sales tax approved in 2012. Voters initially OK’d the tax in 2007 as Measure T.

The Free Lance requested all of Avera’s emails relating to Measure W and received the response Friday. Other findings relating to transparency from the public records request include:

• City staff officials spent a multitude of time, while using public resources, coordinating with consulting firm Lew Edwards Group that ran the taxpayer-funded “information” campaign on Measure W.

• A hired consultant wrote or co-wrote letters signed by Avera in support of a tax extension and posted on the city website. It is illegal to use government resources like the website to campaign, but Avera claimed the messages were merely informational.

• City Attorney Brad Sullivan had all of his commentary redacted from the stream of email obtained by the newspaper.

Voter support
Voters approved Measure W, the 20-year tax extension, on Election Day. The “yes” vote won 79.07 percent with 7,849 votes, while the “no” side won only 20.93 percent with 2,078 votes, according to the preliminary county elections office numbers. Measure W is expected to contribute $4.5 million annually, in today’s dollars, to the city’s general fund.

City officials, meanwhile, are barred from campaigning for such measures on, or using any, city resources while doing so. According to Government Code 8314: “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 “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.

There haven’t been any known reviews of the city’s Measure W activity outside of the Free Lance examination.

The subject of Grzan’s email to Avera reads “Measure E Poster” and includes an image attachment titled “Measure E Sample.png.” The image is a poster that depicts a Cal Fire firefighter with his back facing the viewer. Text in the bottom-left corner reads “Don’t Let Our Services Disappear—Vote Yes on Measure E.”

Grzan included the attachment and his note in the email.

“Good Evening Bill,” begins Grzan’s email. “I was working on a couple different ideas for posters, and I realized maybe the tone I am thinking of isn’t what you’re thinking of. I attached a sample (right now I just have drawings of ideas) of something I quickly put together. Is this sort of the direction you were looking for, or am I off base? (also I chose cal fire just for the example because I couldn’t find any other good HQ photos to use for free).”

Grzan did not respond to requests for comment.

Avera said that the poster wasn’t for the Measure W campaign. He said it was for brochure displays used in city offices.

“The other thing is, it was in July,” Avera said in a phone interview with the Free Lance. “We didn’t even have a campaign in July. The reality is that wasn’t what I was looking for.”

Although city leaders had not voted to place the tax extension on the November ballot until August, there had been open discussions about the potential to do so in the months before it became official.

Other emails obtained in the public records request detail the close, elaborate collaboration between the city and consulting firm Lew Edwards Group.

‘Collaborative effort’
The Lew Edwards Group does consulting work across the state for parties that include elected officials, political action groups, education districts, healthcare providers and transportation agencies. Some of their other clients include the California Nurses Association, the City of Palo Alto, Gavilan Community College District and the Santa Clara County Library District. Lew Edwards has previously consulted locally with government agencies as well.

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.

Obtained emails show Lew Edwards Group Associate Catherine McGuire worked with the city on the language of the Measure W ballot question, as well as the proposed resolution that brought the sales tax extension before city council in August. McGuire did not respond to requests for an interview.

McGuire sent an email May 17 of this year to Avera, Finance Manager Brett Miller and city employee Cheryl Mullen regarding a conference call. One of multiple attachments to that email is a Microsoft Word document titled “Hollister.WebsiteText.v1.docx.”

The document features a letter that is Avera’s May 20 post on the city’s website, word for word.

When asked what language was written by the Lew Edwards Group and what was written by himself, Avera said that the city and consulting firm collaborated on the language.

“Basically, everything was a collaborative effort between the City of Hollister and the Lew Edwards Group,” Avera said. “That’s why we hired a consultant—to help us do that.”

McGuire sent an email July 5 to Sullivan, Miller, Avera and Lew Edwards Group President/CEO Catherine Lew concerning the Measure W ballot question.

“In formulating Hollister’s question we have reviewed other ballot questions, including measures LEG has worked on for other public agencies,” McGuire’s email reads. “To put the City’s best foot forward we recommend structuring the question similarly to the questions below. We find that citing the services the City provides and what the funding would go toward helps the average resident have better clarity on what the question is really asking them, as many residents often do not know exactly what a general fund is or what services a city provides through this.”

With the note, McGuire provided examples of other jurisdictions’ questions.
In an interview for a previous article relating to Measure W, Lew told the Free Lance that her business is a communications consulting firm. McGuire makes this point in a July 20 email, titled “Re: REVISED Reso” sent to City Clerk Tom Graves, with Avera and Sullivan copied.

“Brad, we do not typically provide the full text of the measure, we look to the City and City Attorney to provide these official documents as the formatting for every city is different and we are not functioning as a legal counsel,” McGuire’s email reads. “We would not want to submit something to the city that would not be in compliance with election law, or particularly you and your teams (sic) interpretation of it.”

In an email sent Aug. 2, McGuire attached a Microsoft Word document titled “Do’s and Don’ts for City Employees.”

The guide, marked in red for internal use only, states: “This information should NOT be considered formal legal advice but a guide to follow. For additional information please confer with the Hollister City Attorney.”

The guide advises city officials and employees on “Do’s” such as providing objective, factual information about the measure. The “Don’ts” advise against using “City resources of any nature, such as city facilities, city money, time while working in the City, city vehicles, city computers or email addresses, city phones, city faxes, supplies or copies, for advocacy efforts (e.g. encouraging others to support or oppose a ballot measure).”

City Hall meetings
Obtained emails also show McGuire arranged conference calls with city officials on various occasions. One email sent from McGuire to Avera, Miller and Mullen reads: “Team, Looking forward to our call today at 11AM… Attached, please find the agenda and materials for discussion on today’s call. Don’t worry about reading anything before the call as we will methodically go through everything on the call.”

City Clerk Tom Graves said meeting participants would take their lunch and talk with McGuire. Participating city employees and officials, however, would have the conference calls in Avera’s office, according to Graves. Graves thinks the meetings were every Wednesday at 11 a.m., but said he rarely participated himself.

Avera, who confirmed the conference calls took place on Tuesdays or Wednesdays, said those meetings weren’t campaign related and that campaign meetings would take place after work. He said the conference calls were to make sure everything was in order for the proposed city council resolution and information relating to Measure W.

“We were having those meetings well before August,” Avera said. “So the Aug. 1 city council meeting is when city council adopted the resolution. Even after that, all the Lew Edward Group did is then make sure we were doing our mailings and making sure we were getting info out to the public as to what Measure W does.”

Although the public records obtained from Avera’s email include an array of the contracted city attorney’s responses, Sullivan had all of those statements redacted.

“Mr. Sullivan believes his communications with employees or contractors of the city are protected under attorney/client privilege,” wrote Graves in an email to the Free Lance.

California Newspaper Publishers Association Legal Counsel Nikki Moore said that attorney/client privilege can apply to public record requests.

“In every email, there’s information that isn’t public,” Moore said. “If the attorney has blanket exempted his communications, I would consider that a place where you could push back because you could ask for those emails with the proper redactions.”

Sullivan called the redaction of his statements a “policy thing” relating to legal questions he answered over email. He said it applied to anything “substantive” and not just being included on a mailing list.

“We actually had a debate about whether to do it,” Sullivan said. “But then the next time somebody asks for something, then it’s, ‘You gave it to the Free Lance.’”

Editor Kollin Kosmicki interviewed City Attorney Brad Sullivan for this story.

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