Concord voter files complaint over Measure V mailer

CONCORD, CA—A registered Concord voter and his lawyer have filed a Fair Political Practices Commission (FPPC) complaint against the city and the Yes on Measure V campaign, saying that the city paid for a campaign-related communication.

In the complaint, Tobias Lester and his attorney Jason Bezis say that Concord City Manager Valerie Barone and her staff illegally used public resources “in apparent coordination” with the Yes on Measure V campaign committee.

City attorney Susanne Brown described Measure V in her impartial analysis as a successor tax that would increase Measure Q – a general transactions and use (or sales) tax passed in 2010 and extended in 2014 to sunset in March 2025 – from 0.5 percent to 1 percent and extend it until repealed by Concord voters.

Lester previously filed a lawsuit to try to alter the Measure V ballot question and was successful in changing the wording to include the word “increase” when describing the tax. However, according to the new complaint, he was disturbed to find that the day vote-by-mail ballots were sent to Concord voters so were brochures titled “Community Update, Important Information About Measure V.”

Lester claims the brochure was a mass-mailer, as the U.S. postage reflected it was in the upper right-hand corner and it is titled “Measure V Mailer – Oct. 5, 2020” on the city’s website.

Lester alleges that the brochure was campaign material or activity as it was printed in full color on heavy paper and identifies the measure 26 times. It also featured the same color scheme and font as Yes on Measure V material.

Aligning the “style, timing and tenor” creates voter confusion because of the apparent association between the city’s copy and Yes on Measure V’s promotional content, Bezis wrote.

When contacted Thursday, Mayor Tim McGallian denied any wrongdoing by the city.

“In California, any community member may file an FPPC complaint about a public entity, and the FPPC is bound by statute to notify the public entity and review those complaints,” McGallian said in an email.

“Due to the election, the FPPC is receiving voluminous amounts of complaints, like those against the city. We will, of course, cooperate with the FPPC fully and provide any requested information. We firmly believe that the city has complied with the law and look forward to clearing up any misunderstandings.”

Questions about the content

Councilman Edi Birsan noted that Yes on Measure V is an independent advocacy group supporting passage of the measure and that “no city tax money was involved.”

“The city sent out two neutral fliers as info,” Birsan added. “That is being disputed, but legal department says they are proper.”

However, Lester claims the mailer was “not a fair representation of facts.” The complainant says the document only includes “good” consequences that mirror the language posed in an April city research survey and takes advantage of what the city found residents would prioritize, “persuading them rather than informing them.”

The mailer presented Measure V as a solution that would maintain emergency disaster response, support local business and job recovery and more. Lester states that the brochure guaranteed that money from the tax would be spent on the “priorities” and did not mention funding voters surveyed with low favorability ratings, such as paying off the city’s public employee pension debt. The definition of a general sales tax is a tax that can be used for any project and guarantees no certainty that the tax proceeds will be used for a specific project.

Birsan defended proposing a general sales tax that could profit any project or commitment in the city’s General Fund, given the “absurdity” of California’s sales tax law. The law requires that special taxes need a two-thirds vote to pass, while general sales taxes only require half of voters plus one additional voter to pass.

“What we need is a state law that allows us to bond specific sales tax to things such as roads and be passed (by half of voters plus one additional voter),” Birsan said in an email. “One of the ways to deal with this was what our city manager came up with in the last Measure Q, when we took out a $22 million loan and used the pledge/assignment of the tax revenue to pay back the loan.”

Birsan said that the option prevented another priority from dominating the funds and provided money for street repair.

Debate over end date

The city’s mailer did not mention that the tax would be in place until repealed by Concord voters, one bone of contention for City Council candidate Hope Johnson.

She said she supports Lester and the complaint, adding that she doesn’t think all voters realize how much work it is to repeal a tax.

“Voters would have to collect signatures and place it on the ballot themselves,” Johnson said. “It’s not that easy to do, because the City Council could place it back on the ballot to remove (Measure V) but they’re not likely to do that. What council is going to take away taxes?”

Johnson is opposed to Measure V for many reasons, including that the tax can be used to fund anything. In 2015, the first thing the council did with Measure Q funds was change the municipal code so that the money could be used to pay unfunded pension liabilities, she said.

“It made me really angry, because I don’t agree with this governing by fear,” Johnson said. “Back in 2014, (representatives of the city) said they wouldn’t be able to respond to 911 calls as fast, that public safety was in danger – but then they immediately prioritized pensions.”