The little boy's expression says it all, and days before the Nov. 2 election his tear-stained mug landed in hundreds of San Diego mailboxes. He adorned a mailer accusing mayoral candidate Donna Frye of jeopardizing the city's "6 to 6" before- and after-school program. The mailer urged recipients to call Frye's office and "tell her she should support San Diego's children."
At the same time, another flyer hit mailboxes, accusing Frye of voting to boost her own pay while cutting funding for city police and of being "the only member of City Council who has no position on how to solve the pension crisis."
Funded by a local political action committee known as the Coalition to Keep San Diego working (KEEP PAC), the fliers-seen by many as political hit pieces-quickly became a source of controversy due to their last-minute timing and KEEP PAC's failure to file independent-expenditure reports with the city clerk's office-a move that has allowed the group to remain relatively anonymous.
While this pre-election hullabaloo was eclipsed by the post-election legal challenges to Frye's candidacy and battles over vote counting, it has not been forgotten. Not by Frye, and not by city watchdogs Mel Shapiro and Ian Trowbridge.
Earlier this month, Trowbridge filed a complaint with the city's Ethics Commission alleging that KEEP PAC's treasurer, April Boling, and Top of the Cove restaurateur Ron Zappardino (named by Boling when asked to identify the group's other officers) violated at least four campaign finance laws by failing to report an independent expenditure (an election-related communication to voters not coordinated with a particular candidate), exceeding the maximum $250 limit an individual is permitted to contribute to an independent expenditure, accepting contributions from sources other than individuals and failing to indicate on the mailers that they were not authorized by a candidate or committee.
Last Friday, the Ethics Commission announced that it had voted unanimously in closed session to authorize an investigation into complaint number 2004-59, which corresponds to the number issued to Trowbridge's grievance. The Ethics Commission will have to decide if the mailers were intended to influence the election-making them an independent expenditure-or if they were simply advocacy pieces about salient issues of the day.
"That's the legal question that this whole thing turns on," says Boling, who has some experience with the Ethics Commission. On Monday, the commission published an agreement under which Boling will be fined $500 in a separate matter. It was her second violation of election code this year.
The commission's ultimate decision could result in additional penalties and help clarify what exactly qualifies as an independent expenditure. The definition in question is found in the city's Election Campaign Control Ordinance, which describes an independent expenditure as "any expenditure made by any person in connection with a communication which taken as a whole and in context, unambiguously urges a particular result in a City election."
Trowbridge argues the mailers qualify.
"Taken "as a whole and in context' the timing of this mailing two days before the election, its effort to portray mayoral candidate Donna Frye in a negative light both by its text and photos, and its attempt to conceal from the voters who had paid for the mailing would lead any reasonable individual to conclude the mailing was an effort to "urge a particular result in a city election,'" he wrote in his complaint. "In addition, Keep PAC [sic] has no prior record of advocating for the 6-to-6 child-care program or any other related social issue."
Contacted by CityBeat, Zappardino referred all questions about KEEP PAC to James Sutton, the committee's San Francisco attorney. Dubbed the "dark prince of campaign finance" by the San Francisco Bay Guardian, Sutton is known as a heavy hitter in San Francisco politics with a history of attempting to help well-funded clients out of tough legal situations. He also has been the focus of numerous campaign-finance scandals and has the honor of receiving the largest ethics fine in San Francisco history-$240,000, according to the Bay Guardian.
Sutton isn't a new face in San Diego. In January, he testified before the Ethics Commission as a registered lobbyist for the Lincoln Club, a conservative political group, opposing a proposal to strengthen local campaign-finance law, and he represented Ron Roberts in a 2002 Ethics Commission investigation into unpaid campaign debts.
On Monday, Sutton said he was unaware of the Ethics Commission investigation but says Trowbridge's allegations are unfounded and the laws they are based on are unclear. He also says local law clashes with state law and may violate the First Amendment.
"First of all, the pieces don't talk about the election, [and] they don't talk about opponents in the race. They simply talk about a public policy issue and where a particular public official stands on that issue," he says. "If the law is not clear, you can't enforce it."
Sutton says KEEP PAC will file appropriate papers related to that advocacy after the December filing deadline.
While Zappardino's role with KEEP PAC remains unclear, he is the president of the California Restaurant Association (CRA) as well as a board member of the San Diego Restaurant Association and a member of the SDRA's governmental relations subcommittee, which controls the San Diego Restaurant and Beverage political action committee. All of these organizations are connected in a complex arrangement to fund KEEP PAC. Boling also serves as the treasurer for the SDRA and its PAC.
KEEP PAC's filings list its sole source of funding as the San Diego Restaurant and Beverage PAC, which donated $10,000 in March. Restaurant and Beverage PAC campaign statements list that donation, as well as a $25,000 donation from the California Restaurant Association as the Restaurant and Beverage PAC's sole source of income.
But on Oct. 5, months after the June filing deadline, Boling amended the Restaurant and Beverage PAC filings to include $55,000 in contributions from approximately 100 local restaurants and businesses that were routed through the CRA before landing in the Restaurant and Beverage PAC's bank account after it donated to KEEP PAC.
Where did that chunk of change come from, and why the delay in reporting it?
Boling, who is also the treasurer for Mayor Dick Murphy's reelection campaign and for the Lincoln Club, says the funds were generated by the CRA's Golden Medallion Awards Banquet and Auction in May. Murphy attended as an awards presenter. Boling says the delay was caused when the CRA changed accountants shortly after the banquet, and confusion and errors resulted.
While a lack of current documentation makes it impossible to determine exactly what happened-if any of those donations were funneled to KEEP PAC or used to fund the anti-Frye mailers-an Ethics Commission decision could force that information to surface early or delay the report until the January campaign-expenditure filing deadline. In the meantime, the list of contributors has raised some eyebrows, many belonging to the contributors themselves.
CityBeat spoke with some restaurant owners whose businesses were listed as donors, and most said they believed their donations were being used to oppose Prop. 72, the failed ballot initiative that would have required businesses with more than 50 employees to provide health insurance. None of those contacted said they were aware of the possibility that their money could have been used to influence the mayor's race or advocate for the "6 to 6" program.
Others weren't even aware that they had made a donation.
The San Diego State University Foundation launched an internal investigation after it learned that it had unknowingly contributed $120 to the Restaurant and Beverage PAC.
"The donation to the San Diego restaurant and Beverage Political Action Committee was not authorized by the San Diego State University Foundation or intended to be used in support or opposition of any candidate running for public office," says Theresa Nakata, director of community and public relations for the foundation. She added that San Diego State University staff attended the banquet and failed to check off a box on the registration that would allow them to opt out of donating to the political action committee.
"At the bottom, in probably less than 6-point font," Nakata says, "there is some copy that says if you don't want $60 of your $120 ticket to go to the political action committee, check this box."
A San Diego Convention and Visitors Bureau spokesman told a similar story about his organization's $600 donation. Both groups are nonprofits that receive public funding and say it's against their policies to make any types of political contributions. They're subsequently asking for refunds.
Other notable banquet attendees who donated funds to the Restaurant and Beverage PAC via the CRA banquet include the San Diego Union-Tribune ($1,200), San Diego Gas and Electric ($600), San Diego Magazine ($600) and Jefferson Pilot Communications, owner of five local radio stations ($120).
Frye says she's not sure why local restaurateurs might align against her, but she says voters have a right to know who is behind KEEP PAC.
"Absolutely the public has a right to know who is sending these out and who is paying for them," she says. "Advocacy pieces are sent out as a way to get around election laws... to make it sound as if it is not an election piece."She wants to know why she was singled out for cutting "6 to 6" funding when every other member of the City Council, including the mayor, voted the same way, and why those mailers were sent out just days before the election.