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Top Poway Unified School District leaders have not been shy about their support for the new $448 million Measure P school facility bond measure on the March ballot.
The superintendent and some principals are listed in the ballot arguments in favor of the measure. And large signs at district schools list the types of improvement projects that could be funded there if the bond passes.
Such messages are typically permitted. But other communications from Poway and its leaders have gone further and may push the state’s legal limits prohibiting the use of public funds to campaign for or against ballot measures.
A district spokeswoman disputed any notion the district’s bond messages may flout state law, and claimed they were impartial and necessary to inform the public properly.
In short, districts can spend money to inform the public impartially about ballot measures but cannot pay to support or oppose those measures under state law, case law and rules from the state’s Fair Political Practices Commission.
Messages on the Poway district’s Twitter and Facebook pages say Measure P “would ensure that our aging facilities are improved and repaired,” and “ensure modernized classrooms and buildings that match our standard of educational excellence.”
Did you know the average age of schools in #PowayUnified is 30 years old? Measure P would ensure modernized classrooms and buildings that match our standard of educations excellence. Still have questions? No worries! Follow this link to learn more: https://t.co/TgxA2uKCLu pic.twitter.com/pxBoe2HlUu
— Poway Unified (@PowayUnified) February 17, 2020
Did you know some schools in #PowayUnified still rely on ice for their air conditioning? Measure P would ensure that our aging school facilities are improved and repaired. Still have questions about Measure P? No worries! Visit this site to learn more: https://t.co/TgxA2ut1TW pic.twitter.com/IxguaFZG9F
— Poway Unified (@PowayUnified) February 19, 2020
Superintendent Marian Kim Phelps has also been clear about what she believes will happen if the bond fails to pass with 55 percent approval. At community meetings, Phelps said the bond will return in November if it fails in March, and failure in November will lead to cuts to classroom budgets to pay for facilities repairs, according to news reports of the events.
In September, months before deciding whether to put the bond on the March or November 2020 ballot, Phelps conveyed a sense of urgency to the school board about the launch of the district’s bond communications plan. That plan, she said, would begin with “starting to talk to our constituents, community leaders and getting endorsements,” according to a video of the Sept. 12 board meeting posted by the district.
One of the more poignant pleas came in the form of a video recently sent by Poway Unified via email to district staff and families and posted on the district’s YouTube channel.
In the video, Phelps laments the state of the district’s existing facilities, says supporting the bond signals support for local schools and thanks residents for their partnership after urging them to vote.
“We have rotted rain gutters pouring down on students, cracking and broken stucco walls all over our schools, air conditioning systems that still run on ice blocks that break down frequently and musty smelling portables over 30 years old,” Phelps said in the Feb. 13 video. “By passing a bond measure, a community is saying, ‘Yes. We support our local schools and are willing to invest in them and support them! We want our schools to remain the pinnacles of our communities and we want to ensure that they are continually maintained, upgraded and in the best possible condition for the future generations!’”
Phelps concluded her video message by asking people to vote and saying, “Thank you for doing your part in ensuring that we can continue to prepare our students for college, career and life. Thank you for your partnership.”
Though Poway’s disseminated messages never say “Vote Yes” on Measure P, the supportive nature of the communications caught the attention of some residents, who thought they were paid for by the Yes on P independent campaign committee, and not the district.
Donation disclosures from the Yes on P campaign committee show that group has raised more than $157,000 as of Feb. 15, primarily from construction firms. But that effort is separate from what the district is doing, said Poway Unified spokeswoman Christine Paik.
“All advocacy and campaigning for the measure is handled by an independent campaign committee, which is supported by privately raised funds, and not funded by the district nor supported by the district,” Paik wrote in an email.
It is not clear what the Poway district is spending on its bond messages, some of which have been crafted with the help of consultants. The district has yet to provide that information in response to requests from VOSD for the costs and consultant contracts.
Paik said a firm called TBWB Strategies helped with “informational communications prior to the election being called.”
The TBWB firm’s website advertises itself with phrases like, “Public Consensus → Winning Propositions,” and “TBWB helps you package and pass a ballot measure to meet your needs.”
TBWB partner Jared Boigon said in an email the firm hasn’t worked for the district since the board voted to place the measure on the ballot. He didn’t answer questions about what the firm did specifically.
How much was spent on questionable bond advocacy might matter, said Bob Stern, former president of the now shuttered Center for Governmental Studies in Los Angeles and past general counsel for the FPPC in the 1970s and ‘80s.
“If I were their attorney, I would say reimburse the small amount of money it cost” just to be safe, Stern said. “If it’s such a small amount of money, it won’t be enforced I don’t think.”
Paik said some other consultants helping with the bond, like bond counsel Dannis Woliver Kelley and financial advisor Isom Advisors, “do not charge the district unless the bond measure passes.”
As for the video, Paik said she filmed it in Phelps’ office and “no additional district funds or resources were utilized.”
She also defended the district’s messaging as consistent with what’s allowed in the law and said the district consulted bond counsel regarding “the general legal constraints on district activities during this period of time.”
Poway’s efforts to inform the public about the bond are “not unique,” but “more extensive education and effort” is needed to “ensure that stakeholders are properly informed,” said Paik, because so much time has passed since the district’s last bond measure.
Poway Unified voters passed a $198 million Proposition U bond measure in 2002, and a $179 million Proposition C bond in 2008 — the latter which included a costly so-called capital appreciation bond deal in 2011, which sparked outrage and state reforms for its high debt payback terms.
“Our bond-related efforts are all fact-based, fair, explanatory and part of a regular pattern of communication by the district. In the video, Dr. Phelps explained how facilities are funded, described the condition of our schools, and asked parents to get informed about our needs and the measure. She did not tell viewers how to vote on Measure P,” said Paik.
But telling voters to vote “yes” or “no” is not the only test used by the Fair Political Practices Commission to determine whether public funds have been improperly spent on campaigns. And somewhat similar messaging that “unambiguously urges” a particular result in an election has earned other government agencies fines from the commission in recent years.
The courts have also found express voting advocacy by governments is not required to violate the state ban.
“Everything they put out is basically a reason to vote for it,” said Melinda Converse, a Rancho Penasquitos resident who’s lived in the district since 1978 and opposes the bond. Converse also questions the repeated safety needs she’s seen in each bond, as well as claims the district doesn’t get state funding for facilities maintenance.
“How much asbestos and lead is there?” she said. “They are supposed to use part of that (state) money for maintenance. Because they don’t use it for maintenance, every five to eight years they come back and want a bond. The schools aren’t safe, and they’ve received all this money?”
Deteriorating buildings and safety needs are a major part of the Measure P bond pitch to voters, and district officials have pointed to a recent consultant facility analysis showing at least 23 of the district’s 39 campuses will be in poor condition by the year 2023.
The Fair Political Practices Commission patrols and fines people or groups who do not follow the Political Reform Act, which includes state campaign laws requiring public disclosure of expenses more than $1,000 by those campaigning for or against a ballot measure.
It was under that authority that the FPPC fined the San Francisco Bay Area Rapid Transit District $7,500 in 2018 for its promotional messages about a $3.5 billion bond. Because BART’s messages cost more than $1,000 and were promotional, the agency qualified as an independent expenditure committee. Since the BART agency didn’t file as a committee or report its spending as required by law, the FPPC could levy a fine.
Broader enforcement of state laws barring the use of public funds for campaigning is left to city, county and state prosecutors. But little has been done by those forces, according to the FPPC, so the FPPC board is seeking to change state law.
On the heels of the BART decision, the FPPC board asked state legislators to expand their civil enforcement abilities to better cover illegal spending of public funds to campaign, FPPC letters show.
Now, Assemblyman Marc Levine plans to take another crack at it. A draft of a bill, AB 2467, expanding the FPPC’s enforcement authority should be released within 30 days, said Terry Schanz, Levine’s chief of staff.
Jay Wierenga, spokesman for the FPPC, said the push for new legislation “is an issue that remains a high priority for the chair and this commission.”