Four (or Five?) Times the Impropriety, Plus Potential Brown Act Violations
By Roberta Millstein and Colin Walsh
On Thursday, the Davisite published an article, “Mayor Brett Lee’s Fundraising for the Davis Vanguard Crosses a Line.” Since then, the Vanguard has changed the format of its fundraising event to include four of the five members of the Davis City Council. But this doesn’t make the event better. The new format makes it worse – at least four times worse. Plus, with four City Council members in attendance it will be nearly impossible to avoid Brown Act violations.
First, let’s consider the changes in format and advertising of the Vanguard fundraiser. The main change, of course, is from one councilmember attending the fundraiser (Brett Lee) to four councilmembers (Lee together with Gloria Partida, Lucas Frerichs, and Dan Carson) attending. But the Facebook event page was also changed from saying that Lee would “host” the fundraiser to saying that the fundraiser will “feature” the four councilmembers, with Will Arnold (who is pictured in the photo associated with the event; see above) “unable to attend” while “there in spirit.” It also states that “Each of the speakers will speak briefly and then take questions.”
In his “Premium Newsletter” for people who send at least a $10 monthly donation to the Vanguard, David Greenwald said that these changes were made in response to “pushback” on the original announcement. Presumably, the origin of that “pushback” was the previously mentioned Davisite article, although we’ll never know for sure since Greenwald refuses to mention the Davisite by name. What we do know is that Mayor Lee was not happy with the original advertising of the event; in response to a citizen query, Mayor Lee stated:
I think David did not accurately describe what I agreed to. I agreed to attend a Vanguard fundraiser and be available for questions. I believe some of my colleagues may attend as well.
I have asked him to update what he posted about the event to more accurately describe the event.
(The Davisite obtained this correspondence from the citizen in question as well as from Mayor Lee).
But it is utterly unclear how these changes are supposed to make things better.
The problem with the previous fundraiser format was not with the word “host” or with the fact that only one councilmember would be in attendance. The problem was, to quote the previous article, that
Elected officials – especially those who may be running for re-election soon – should not be raising money for purported news outlets, as Mayor Lee is planning on doing for the Vanguard… by fundraising for the Vanguard, Mayor Lee raises the spectre of “pay for play” – that by raising money for the Vanguard, Mayor Lee will receive favorable press from the Vanguard in return.
And the article emphasized, citing relevant sources, that “Just as with standard understandings of conflict of interest, the point is to avoid even the appearance of impropriety.”
The four – really five, since Councilmember Arnold is featured in the event announcement – are all still helping to raise money for the Davis Vanguard. Thus, the spectre of “pay for play” is now raised for our entire Council. That’s just a bit too cozy. We need an independent press that is willing to challenge Council decisions; there is a reason why the press is sometimes called “the fourth estate.”
The Vanguard and each of the councilmembers are complicit in violating this trust. The new format is five times worse than the previous one.
Now let’s turn to the potential Brown Act violations. The Brown Act is meant to ensure that all deliberations of matters in front of the City are publicly noticed, with agendas distributed 72 hours in advance. That means, for example, that the five councilmembers can’t simply meet up somewhere and discuss issues in private (with a few exceptions for issues such as those regarding personnel, although even these must be properly noticed). Four can’t meet either; neither can three. Only two councilmembers (less than a majority) can meet without public notice.
But there will be four councilmembers at the Vanguard’s fundraiser. To be clear, their mere presence there is not a violation of the Brown Act. The Brown Act does allow the Council majority to attend meetings that are “open and publicized,” free, open to the public, and held by another organization to a discuss “a matter of local interest.” However, according to the League of California Cities’ guide to the Brown Act:
The Brown Act permits a majority of a legislative body to attend and speak at an open and publicized meeting conducted by another organization. The Brown Act may nevertheless be violated if a majority discusses, deliberates, or takes action on an item during the meeting of the other organization. There is a fine line between what is permitted and what is not; hence, members should exercise caution when participating in these types of events.
So, there are numerous potential problems here. Does merely creating a Facebook event constitute being “open and publicized”? Does it count as “free” if the event has a “suggested donation” of $25, probably collected by a neighbor sitting at a table in a prominent location? Citizens will feel pressured to donate to the Vanguard to get the advertised access to Council members. More troubling, how can the majority avoid discussing an item that is, or is soon likely to be, in front of the City? Who determines whether the “same” item is being discussed or a different item? (For example, is discussing the proposed “Mace Ranch Innovation Center” the same as discussing the building of business parks outside the current borders of Davis, or is it different?). Since the event description states that the Council members will answer questions, how will they avoid answering questions on similar topics, especially given that they will have to make split second judgments about which questions were answered already and how many times?
As the League guide says, there is a fine line here, and it would be extremely easy to step over it. The members of the City Council are flirting with trouble. Together with the impropriety of supporting a local press outfit in the first place – an outfit that, as noted in the previous article, has numerous ethical problems of its own – it seems that our councilmembers are not acting wisely.
We previously called on Mayor Lee to withdraw his support of this event to avoid ethical improprieties. Here we reiterate that call, and now similarly call on the rest of the members of the Davis City Council to ask to be removed from the promotion, advertising, and description of this or any other Vanguard fundraising event.
Davisite 
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