The Morning Report
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Wednesday, July 2, 2008 | The Unified Port of San Diego’s board has a message for you. It thinks a developer’s proposed November ballot initiative that would usurp its planning power is a horrible idea. It is vehemently opposed and wants you, a potential voter, to know it. Oh, and it wants you to remember that when you go to vote.
The port has summed up that message in an open letter from its chairman, Michael Bixler, which is running as an advertisement in 18 publications across the county. It has spent $59,062.04 to place the advertisements in local newspapers, business papers, trade publications and community weeklies, from The San Diego Union-Tribune to the Imperial Beach Eagle and Times.
The advertisement never specifically tells voters to vote against the proposal from developers Richard Chase, Nancy Chase and Frank Gallagher. But it does remind them, when they’re voting, to remember what the port thinks.
“Before casting a ballot, the Board urges your careful consideration of this educational message,” the advertisement says. “This initiative threatens an important source of regional jobs and well-paying jobs, which we believe you should protect and preserve.”
State law prohibits public agencies from using public money to advocate partisan positions in elections. They are, however, allowed to educate the public about election-related issues, provided they do not take partisan positions. The advertisement is the latest from a local public agency to raise questions about crossing the line between advocacy and education.
The San Diego Association of Governments was criticized for advocating for the extension of TransNet, a half-cent sales tax extension to fund road-building projects. The San Diego County Regional Airport Authority was lambasted in 2006 for sending a slate mailer in advance of absentee ballot distribution for the Miramar airport vote.
The port says the advertisement is educational and does not advocate for voters to oppose the plan.
“We believe, and the Board of Port Commissioners believes, they’re educating the public about an initiative that strikes at the heart of what the port stands for,” said Irene McCormack, a port spokeswoman. “It doesn’t say anywhere that we advocate a no vote. To us, it’s ‘Please be educated before you vote.’”
Critics say the advertisement does advocate a specific outcome and is a misuse of public funds. Voters are smart enough to understand the advertisement’s intent, said Lani Lutar, president and CEO of the San Diego County Taxpayers Association.
“They’re clearly preparing themselves for a battle that will be occurring leading up to the November election,” Lutar said. “You don’t need to directly say vote yes or vote no. You can still communicate a strong intent of your message in a campaign ad. We don’t buy that argument.”
The underlying issue traces to the very establishment of American democracy. In a 1976 California Supreme Court decision that ruled against public agencies using taxpayer money to advocate in elections, the court said the nation’s fathers had sought to prohibit the government from taking sides.
“Such expenditures raise potentially serious constitutional questions,” Justice Mathew Tobriner opined in the 1976 ruling, Stanson vs. Mott, which found that a state official had improperly used public money to advocate for a bond package. “The use of the public treasury to mount an election campaign which attempts to influence the resolution of issues which our Constitution leaves to the ‘free election’ of the people does present a serious threat to the integrity of the electoral process.”
The ruling notes that advertisements can be improper even though they may not specifically tell voters how to vote. The state Fair Political Practices Commission, which regulates campaign finance, defines advocacy as “unambiguously” urging a particular result. It can fine public agencies up to $5,000 for violating that law; the local district attorney can similarly investigate whether public funds were properly used.
Bob Stern, a former FPPC attorney and president of the Los Angeles-based Center for Governmental Studies, said the port’s advertisement was “very close” to being a violation of state law.
“I’m surprised that they’re doing this,” said Stern, who worked as a port consultant three years ago. “If I were still a consultant to the board, I would say: ‘Don’t spend public funds on that.’”
The port has taken an unambiguous position — it unanimously opposes the initiative — and is now spreading the word. The port’s advertisement derides the initiative’s language as “vague and unclear,” and says the effort threatens the viability of waterfront industries.
The port’s commissioners have agreed to let the advertisements speak for themselves. They unanimously decided at their Tuesday meeting to not speak publicly about the initiative, though McCormack said the education campaign will continue.
The proposal the port opposes takes aim at the potential future uses of the 10th Avenue Marine Terminal, which serves as one of San Diego’s cargo ports. The developers want to build a deck above the existing terminal, creating a space for commercial use. Such a decision would typically belong to the port, which supports blue-collar jobs along the waterfront. To avoid the port, the developers are turning to the voters for approval.
The ballot initiative would ask voters whether they wanted to amend the port’s master plan to pave the way for non-maritime uses of the terminal, effectively usurping the Port Commission’s authority to make such a decision.
The three developers have turned to a ballot initiative as a way to get past the competing visions that have long been offered for San Diego’s bay front — whether it should be a tourist attraction or home for marine-based industry.
Frank Gallagher, part of the trio proposing the effort, said he believed the port’s advertisement inaccurately represented the initiative. It can help increase maritime and other well-paying jobs along the waterfront, he said.
“If this truly was an educational piece, you’d have to be dealing with facts,” Gallagher said. “And they aren’t. So how can you call it an educational piece when it’s not factual?”
The initiative has not yet been certified for inclusion on November’s ballot. Deborah Seiler, the county’s voter registrar, said her office was still verifying the 60,536 signatures the developers submitted. A total of 34,462 valid signatures are needed. That review will likely conclude in mid-July, Seiler said.