Road Tax Campaign Deemed Within Law

Ventura County transportation officials may have been overzealous in pushing passage of a highway tax last year, but they didn’t break the law, Dist. Atty. Gregory Totten said Thursday.

In a 35-page report, Totten’s staff concluded that Ventura County Transportation Commission chief Ginger Gherardi improperly mailed postcards, made phone calls and sent e-mails from her public office promoting Measure B in the months before it was defeated by voters.

But those “mistakes” weren’t egregious enough to justify filing criminal charges, the report said.

Instead, prosecutors will ask for a review by the Fair Political Practices Commission, a state agency that investigates violations of campaign-finance law and can issue administrative sanctions.

“They came very close,” Totten said of Gherardi’s actions. “But we didn’t feel the legal or factual requirements” for filing charges existed.

State law prohibits the use of public dollars to advocate a particular view on ballot measures.

The district attorney’s office launched its inquiry after the Ventura County Star ran stories about calls made to campaign consultants from Ventura County Transportation Commission offices.

Transportation commissioners and an Oxnard attorney separately asked the district attorney to investigate.

Although the report absolves Gherardi and her staff of criminal conduct, their actions still merit “legitimate criticism,” Totten said in his findings. He also warned other public officials who may be tempted to try the same tactics.

“The overarching objective of this report is to prevent a repeat of these mistakes” by any public agency, he said.

Gherardi thanked Totten for his “careful review” and predicted that the Fair Political Practices Commission would similarly find no violation of law.

“Public education and polling are commonplace activities for governments contemplating sales tax measures throughout the state of California,” she said. “So we welcome the FPPC review.”

Measure B, which was on the November 2004 ballot, sought a half-cent sales tax hike to pay for long-delayed highway construction and road repairs.

Under state law, the transportation commission could authorize its placement on the ballot but could not openly advocate its passage.

Despite that ban, Gherardi or people in her office placed several phone calls and sent e-mails dealing with a variety of campaign-related issues to campaign supporters or consultants, the report found.

Because the communications were not distributed to voters and may have been sent inadvertently, they did not violate the law, Totten said.

Of greater concern, he said, were a series of glossy postcards mailed to 575,000 voters in March 2004 at a cost of $163,000. The mailers were “professionally developed marketing pieces” that used provocative language to persuade voters to support the ballot measure, Totten said. One mailer, for instance, included several photos of gridlocked traffic next to the line “Greetings from Ventura County.”

One reason Totten concluded that no law had been broken was because the ballot measure had not yet been certified for the November ballot when the mailer was sent out, “skirting” the prohibition against advocacy, he said.

Transportation Commission Chairman John Procter said the report pointed out the inherent difficulty faced by governments that place measures before voters.

“Anything that was done improperly was through negligence, not criminal intent,” Procter said. “It’s a very thin line between what you think is informational and what is illegal.”

But Commissioner Steve Bennett said panel members need to be more assertive in providing direction and oversight to the staff.

“If there ever is another campaign, the commissioners need to be very clear about procedures and policies to make sure staff errs on the side of caution,” Bennett said.

Hemal Master, the Oxnard attorney who also asked for the investigation, said he appreciated the depth of Totten’s investigation and hoped that public agencies would take note of it.

“I understand it’s a fine line between what is information and what is advocacy,” he said. “But we hope this will keep them on the good side of that line.”