State watchdog to ask for prosecution over BART campaign violations

“It’s very significant they decided to refer this for a criminal investigation ... They are trying to say, ‘You can’t get away with doing this.’ ” — Jessica Levinson, a law professor at Loyola Law School

SACRAMENTO » In a move ethics experts call “significant,” a state watchdog agency on Thursday requested the attorney general and Bay Area district attorneys prosecute BART over violations in its Measure RR campaign.

The request is about sending a message, said Alice Germond, the chairwoman of the Fair Political Practices Commission. The commission voted unanimously to also impose a $7,500 fine against the agency for failing to report the campaign expenses, as required by law.

“It ’ s not the total (amount) of what was used; it’s the concept of misusing public funds,” Germond said at the commission’s monthly meeting Thursday. “We want to send a warning and not create a precedent that it’s a minor, ‘slap on the wrist’ kind of thing.”

The commission began investigating the transit agency in 2016 following a complaint filed by Lafayette attorney Jason Bezis, who claimed BART improperly used district resources to advocate for its $3.5 billion bond, Measure RR, including posting a video starring Warriors player Draymond Green on its YouTube channel. Ultimately, the commission decided two other videos, along with text messages sent to riders, crossed the line into advocacy, not Green’s video.

Voters approved the measure in 2016 to pay for repairs and upgrades on the system with more than 70 percent of the vote in BART’s three- county district. It needed 66 percent to pass.

State law prohibits public agencies from using public funds to campaign for any candidate or ballot measure, though they can provide factual information. Using taxpayers’ dollars to advocate or oppose anything on a ballot, however, qualifies as “an independent expenditure,” which must be registered with the state, attorneys for the state’s Fair Political Practices Commission said in its draft order.

But, fining BART for failing to disclose the money it spent campaigning misses the point, said state Sen. Steve Glazer, who has long been critical of the agency.

“This was so much more than a disclosure issue,” Glazer said. “Fundamentally, it’s that you can’t have public agencies engaged in electioneering.”

To Glazer’s point, the commission voted to draft a letter to the legislature at a future meeting to allow the FPPC to censure public agencies that misuse public funds for campaigning, which has so far been the purview of the Attorney General and district attorneys.

“( It’s) not a subject we have any jurisdiction over,” said Brian Hatch, an FPPC commissioner. “And, they ought to make it our jurisdiction, not exclusively, but adding a provision to the ( Political Reform Act) to make it our jurisdiction.”

BART spokeswoman Alicia Trost said the agency cooperated fully with the FPPC on its investigation, and it had “learned from this process.” She described the errors as “accidental.”

“We have been and will continue to be committed to following the law,” said Trost. “We accept their finding.”

Usually, agencies are much more careful about distinguishing education from advocacy, said Bob Stern, a principal author of the Political Reform Act, which created the FPPC, as well as the commission’s first general counsel.

“That’s unusual to have a public agency in violation of campaigning improperly or campaigning at all,” he said. “There has to be more awareness about what the law says and more care being spent to promote these measures.”

Bevan Dufty, the president of BART’s Board of Directors, said he would work to make sure that care is taken in the future. He was elected in 2016, after the measure was developed and put before voters, and called the agency’s actions “wholly inappropriate.”

“It speaks to our reputation, including my own,” he said. “I’ve been in politics and public service for 43 years, and I do take this very seriously and have wanted always to err on the side of caution and maintain people’s trust.”

But, the issue is not unique to BART, Bezis said in written comments to the commission. Often, agencies hire consultants to help them conduct public outreach and craft a ballot measure, and then those same consultants lead the campaign for the measure once it’s on the ballot. In this instance, BART paid the public relations firm, Clifford Moss LLC, $99,000 to craft its measure before the item was placed on the ballot, according to public records Bezis obtained.

The same firm then led the independent campaign. That led to striking similarities in a so- called “independent” campaign and BART’s own messaging, including Green’s YouTube video. These were not “accidental coincidences,” Bezis said.

BART has said in the past it didn’t coordinate with Green or the Warriors on the video spot, but Bezis noted Green used the campaign’s tagline to “Keep BART Safe and Reliable.” Dufty was supportive of ensuring that future measures would not employ the same agencies to help BART craft its message and then run its campaign, he said.

“There’s an importance to have a separation from the legitimate public purpose of outreach and developing a plan, which then should be implemented for campaign purposes by another entity or firm,” Dufty said.

Either way, the letter to the state attorney general and Bay Area district attorneys, which has yet to be written, sends a strong message to other public agencies, said Jessica Levinson, a law professor at Loyola Law School and the former president of the Los Angeles Ethics Commission.

“It’s very significant they decided to refer this for a criminal investigation and to do it so publicly,” she said. “They are trying to say, ‘ You can’t get away with doing this.’ ”