DiQuisto v. County of Santa Clara

H032345. Sixth Dist. Jan. [No. 2010.] al., DIQUISTO

JOHN et Plaintiffs and v. Appellants, al., OF

COUNTY SANTA CLARA et Defendants and Respondents.

Counsel McBride, Renner, McBride, Flatten, John Flatten & Wylie, E. Christopher Renner; Sorter, Clisham; Mark S. Clisham & David P. Law Offices of Donald T. and Donald T. Ramsey for Plaintiffs and Ramsey Appellants. Ravel, Counsel, Counsel,

Ann Miller Miguel Márquez, Acting County Botha, Counsel, Sebastinelli, Winifred Assistant County J. Gregory Deputy Counsel; Crowell & Ethan P. Schulman Michael Y. Kao Moring, for Defendants and Respondents.

Opinion McADAMS, J. litigation arose at the crossroads of labor —This and the electoral initiative bargaining three unions process. early

243 as a means arbitration binding to mandate ballot initiative local sponsored County. Santa Clara with their resolving employer, of labor disputes county the time period, the same During the initiative. county opposed unions, discussions which included with the in labor negotiations engaged the initiative. their not to aimed at agreement two of the its board county, supervisors, sued As taxpayers, plaintiffs for funds officials, the spent public asserting county improperly county the of for the unions’ nonsupport by bargaining electoral partisan purposes e-mail based on a supervisor’s later added claims initiative measure. Plaintiffs the matter extensive pretrial proceedings, the initiative. After concerning trial, defendants. for finding ended in a bench court the county impermissibly their arguments On renew appeal, plaintiffs through table and at the bargaining used funds for both public campaigning, defendants, defends the county of itself and the other e-mail. On behalf both judgment arguments. against are the trial determinations supported As we court’s explain, and the law. We therefore affirm judgment. evidence INTRODUCTION; LEGAL BACKGROUND and the conten- of the facts parties’ To context our discussion provide tions, here. briefly play begin by summarizing legal principles we on the Public Funds Expenditure

Limits reaffirmed, “in absence recently Court Supreme As California entity authorizing public clear and unmistakable language specifically materials, lacks entity activities or funds expend public City v. Salinas (2009) (Vargas to make such authority expenditures.” 286, on (Vargas).) 1, This limitation P.3d Cal.4th Cal.Rptr.3d 207] [92 recognized has been funds for campaigning expenditure decisions, case leading Court including of California line long Supreme 551 P.2d v. Mott (1976) Cal.Rptr. Stanson 1] 17 Cal.3d [130 on). (Stans Public Statute Employment

The Relevant & (Coachella Valley Mosquito Various statutes govern public employment. Bd. Relations Employment Dist. v. Public Vector Control California (Coachella 112 P.3d 1084-1086 Cal.Rptr.3d 623] Cal.4th [29 (MMBA), Act codified is Meyers-Milias-Brown Valley).) At here issue Government Code sections The 3500-3511.1 MMBA “governs collective and bargaining relations for most California employer-employee local public entities, cities, counties, and including (Coachella districts.” special Valley, 1077.) It meet “requires public agencies and confer in faith with good hours, of representatives recognized employee organizations regarding wages, and other terms and conditions of employment.” v. (County Sonoma of 322, Superior (2009) Court 39], 173 Cal.App.4th 329-330 Cal.Rptr.3d [93 3505.) “If these citing an meetings § produce agreement, representa- tives of must parties jointly written memorandum of prepare under- Sonoma, 330, (MOU).” standing (County 3505.1.) at p. citing The MOU § of (memorandum of understanding) must then be approved by agency’s Sonoma, governing body. (County at p. of

Binding Interest Arbitration

“Interest arbitration agreement involves an between an and employer union submit disagreements about the of content a new labor proposed contract to an arbitrator or arbitration {City Fresno v. ex rel. panel.” People of Fresno Firefighters 71 Cal.App.4th Cal.Rptr.2d [83 603] also, (Fresno); Court, see e.g., County Superior Sonoma v. 341-342.) Cal.App.4th

FACTUAL BACKGROUND Evans, The and DiQuisto, are John plaintiffs appellants Mildred and Knox Rosemary (collectively, plaintiffs). They are taxpayers residents the County of Santa Clara. The defendants and are the respondents Clara, officials, Santa its board and two of its chief supervisors, adminis- Kutras, Jr., trative officer Peter and chief labor Luke negotiator Leung (collectively, County).

The Ballot Initiative: Measure C three Santa early Clara sector labor unions agreed a local initiative measure on the The sponsor November 2004 ballot. three were sponsoring unions Nurses Professional Registered Association (RNPA), the Clara County Santa Correctional Peace Officers’ Association (CPOA), (GAA). the Santa Clara Government Association Attorneys initiative’s was to amend charter county’s by adding purpose provision binding interest arbitration as a means of labor resolving the three between unions disputes sponsoring County. unspecified statutory Further references are to the Government Code. Knox, in her as president Rosemary capacity

On April plaintiff RNPA, to the measure to a qualify notice of intent circulate petition filed a three signatures began gathering the The measure’s proponents for ballot. later, 23, on 2004. April weeks 2004, met with 4, unions of the three

On sponsoring June representatives Kutras, county other Leung, and with Gage, Donald county Supervisor binding The unions “discussed to the initiative. discuss representatives, would and . . . shared with County] [the measure] interest arbitration [the some language out if there was forward” while to see “reaching go reached. was agreement would be for both sides.” No acceptable ballot, 2004, identi- November the initiative the On June qualified 3, 2004, board of as C. On the August county’s supervisors fied Measure to the a to submit Measure C voters. resolution adopted its board of Measure C. county Acting through supervisors, opposed ballot, the identified as Measures the two countermeasures on county placed B. A and directed the dissemi-

In October Blanca Alvarado county Supervisor individuals, 1,500 encouraging nation of an e-mail to approximately educate the three initiative measures themselves about recipients of a a “no” vote on Measure C attaching urging a editorial copy newspaper on A and “yes” vote Measures B. as C defeated were Measures November Measure was polls, and B. A

Contract Negotiations with negotiations In 2003 and was contract County engaged to reach unions. The aim of was negotiations number of its employee with each union for labor contract. agreement with the Association

Negotiations Deputy Sheriffs’ Sheriffs’ was County One of the unions negotiating Deputy 2003; (DSA). Those County negotiations began Association of Santa Clara in 2004. the then current contract was set expire in its was to secure negotiations One of the “main DSA goals” Police with the San Jose Department. agreement “benchmarking” be just basically members “would benchmarking, piggybacked With DSA with the Jose San Police so whatever raise Department, would they get would get when contract due.” subsequently [DSA] came Although [its] first, seemed to the County resistant idea of benchmarking its position softened once the of a possibility contract was broached. longer 1, 2004,

On the DSA and April reached a tentative agreement, which included both raises and a pay benchmarking After tentative provision. issues, on agreement those economic the DSA offered the a “side letter” that the stating DSA would not interest arbitration binding idea, initiative. The side letter union who “totally” negotiator’s offered it “freely” to the The union the County. negotiator was aware that County was “hostile” to the arbitration initiative. The was county negotiator said, well, “a bit startled” at the offer but “essentially sure.” yeah, Both the DSA and the general later ratified the membership County agreement, the letter. including side with the

Negotiations Correctional Peace Association Officers’ In the the was also with the CPOA. spring County negotiating before, The CPOA’s contract had and for expired years the a negotiations new contract had been for some time. underway 29, 2004,

On March a execu- meeting place took that included county tives CPOA Leung Kutras officers Everett and William Fitzgerald Calabrese. As union wanted the to enhance its president, “Fitzgerald County At economic offer.” the was CPOA from the a point, “demanding County 30 a a percent wage increase over little over three period years,” while offered had a raise of 18 over five half County and a percent years. Fitzgerald “was his rank file” and he wanted the “to having difficulty County more on the table.” put money “raised discussions about Fitzgerald measure, interest arbitration asked CPOA binding whether was being going be in it or not.” “in indicated that order for out of Fitzgerald stay [CPOA] Kutras, it to see more But money.” according County [he had] 30, 2004, to more on the The “going day, table.” March put money following the CPOA the coalition the arbitration initiative. joined supporting County

The offered to the on 7 and again CPOA package proposals April on Both much than the 12. offered raises lower April proposals percent CPOA, and both included requested by provisions prohibited CPOA ballot from measure interest initiating supporting binding arbitration. In September

The rejected April proposals. CPOA arbitration interest binding its County nonsupport withdrew request contract for a three-year reached finally agreement initiative. The parties in June 2005. starting Association with the Nurses

Negotiations Registered Professional with the RNPA. negotiating In the was also spring RNPA contract was set to November 2004. expire 30, 2004, and county representa- On March there was union meeting awith contract extension two-year tives. The offered RNPA was no mention of increase of over two There wage percent years. interest arbitration initiative. binding 1, 2004, Knox and county

On RNPA representative representative April her concern Louis Knox spoke by telephone. expressed Chiaramonte a recent nurses’ standards.” She mentioned stay salaries “within industry them raises totaling percent contract Stanford nurses negotiated giving a two-year in the two their contract. Knox years three-year suggested first of the of 6 each After year. contract extension for the RNPA with raises percent conversation, to see “did a salary comparison Chiaramonte telephone quick what the community wage had for increases.” 7, 2004, RNPA

On the Chiaramonte April county representative presented with (wage a contract extension raises two-year with written for proposal in year increases and the first and 6 “alignments”) totaling percent 6 percent in the When the Chiaramonte characterized year. second presenting proposal, it as “a interest arbitration involving binding since incomplete, component in a A version was reflected follow.” draft of component [was] aloud; document, the it prohibited handwritten which Chiaramonte read a ballot measure RNPA and its from or initiating supporting leaders in testimony: As Chiaramonte trial binding interest arbitration. described had and at time I “That much a discussion aspect pretty conceptual finalized, it was still advised the association I didn’t have that was anything form, draft back to them at a later date.” giving in and I’d be it 2004, the day extended the made County proposal On the April formally before, both schedule of raises and including separate, typewritten the same the interest arbitration initiative. of agreement binding nonsupport finally parties The RNPA rejected April proposal. later, contract approximately year reached on a successor agreement April 2005. The successor contract did not include any provision concerning binding interest arbitration.

PROCEDURAL BACKGROUND Pleadings

In June filed a verified plaintiffs which asserted causes of complaint, (1) funds; (2) action for unlawful waste public unlawful restriction of activities; (3) relief; political declaratory writ relief. The complaint DSA, includes allegations concerning County’s bargaining RNPA, and the CPOA.2 As relevant this accuses appeal, complaint “interfering the electoral through the unauthorized process expenditure funds and to fund a public resources series of wage compensation and benefit increases for County employees represented by DSA, CPOA, RNPA, ... as a quo for an quid pro agreement [and the] initiative, qualification passage” arbitration Measure C. July answered the It complaint. six interposed defenses,

affirmative lack and failure to a cause of including standing state action.

Pretrial Proceedings When filed their in June complaint also for a plaintiffs they applied were preliminary injunction. Opposition submitted. Plaintiffs reply papers later sought to submit additional evidence based on the October permission Thereafter, 26, 2004, 2004 e-mail Alvarado. on October by Supervisor trial court for a The granted plaintiffs’ application preliminary injunction. then this court for a writ. County We the and petitioned stayed injunction writ, the and requested Plaintiffs issuance of a the opposition. opposed County we denied the writ in June Ultimately, County’s replied. petition 2005. 2005,

In December the moved for on the County judgment pleadings. motion, Plaintiffs the the court it in and denied March 2006. opposed 2006, In June the intervention was filed Public complaint (PERB). Relations Board PERB and filed cross- Employment plaintiffs each motions other for on the against judgment pleadings. September concerning County’s bargaining The makes no complaint claims conduct GAA, binding which interest and the cosponsored arbitration initiative with the RNPA CPOA. motion, motion, and denied PERB’s the court granted plaintiffs’ PERB as a

dismissed party. judgment. a motion summary In October filed motion, it 2007. The and denied in March Plaintiffs the court opposed we denied in stay, then court for and for which this a writ petitioned 2007. May

Trial and 2007. After The matter tried to the court in late June May early sides testimonial and arguments, presented motions and both pretrial opening documentary evidence. officers, witnesses were union members and

Among plaintiffs’ including CPOA, RNPA, and and David Notari Calabrese Knox of Fitzgerald Code Charvez of the DSA. Under Evidence section Joseph plaintiffs Kristina chief Blanca county called of staff Cunningham, Supervisor Alvarado, as officials Kutras and The defense witnesses county Leung. well as DSA, Yank, county included a union for the Ronald and three negotiator Chiaramonte, DSA, who had with the RNPA and negotiated employees two Kenneth and Brian McKenna. Defendants also Phillips expert presented witnesses, former San Arthur former state member and Assembly Agnos, Gould, William law Mayor, Francisco Stanford University professor Labor documen- former chair the National Relations Board. The parties’ to the CPOA and evidence included the tary proposals April DSA, RNPA, the and the 2004 side letter with the agreement April sent Alvarado. by Supervisor October e-mail sides, of evidence both the court Following requested presentation form.” written submitting in written “closing argument parties complied, in June 2007. arguments

Thereafter, considered plaintiffs’ application late June court record, evidence of their as standing taxpayers. in order submit reopen matter the court stated: “The remains granting After request, plaintiffs’ its in this matter.” And will continue to work on decision submitted. the Court decision, filed ruling the court its statement July here, the court favor all causes action. As relevant as to County’s (1) use for partisan determined did not funds public improperly unions, and sent (2) the e-mail bargaining electoral in its purposes not an use of resources for campaign Alvarado was illegal public Supervisor activity.

Judgment Judgment for defendants entered An 2007. amended September judgment was entered the month. following

Appeal In November this plaintiffs brought timely Plaintiffs seek appeal. reversal, based on their contentions that both the County’s bargaining activity and Supervisor Alvarado’s e-mail constitute illegal expenditures public The funds. defends the judgment.

DISCUSSION turn, We analyze contentions in plaintiffs’ first their appellate addressing claims the contract concerning negotiations then to their turning argu- each, ments about the e-mail. As to we first set forth the governing legal facts, Next determined we summarize the relevant principles. as the trial court. Then we the law to the facts. apply

I. The Bargaining Conduct

A. Legal Principles

1. The Rule Stanson

Under the Stanson rule, “at in the least absence of clear and explicit authorization, a legislative funds to public agency may expend public (Stanson, supra, in an promote election . . . .” partisan position Cal.3d 209-210.) at That does not to informational or pp. prohibition apply (Id. educational however. at expenditures, p.

Stanson was a suit the Director of the taxpayer against Department Recreation, Parks and which alleged department’s improper expenditure $5,000 of more than funds to of a ballot promote passage (Stanson, supra, for a recreational bond. 17 Cal.3d at proposition The p. trial court sustained the defendant’s demurrer and entered a defense judg- (Ibid.) (Ibid.) ment. On the California Court reversed. appeal, Supreme the Stanson court discussed its earlier decision in Mines v. In its analysis, (Mines). (Stanson, Del Valle Cal. P. 17 Cal.3d [257 530] id. at 216; Mines on other [partially overruling grounds].) (Id. 216-217.) court examined also case law from other jurisdictions. so, After the court which doing observed court has addressed “every

251 for campaign funds partisan use of found the public to date has issue was not explicitly that such use either on ground improper, purposes are that such expenditures on the broader ground or authorized [citations] (Id. this uniform “Underlying court stated: 217.) The at p. never appropriate.” campaigns for election funds the use public reluctance to sanction judicial serious raise potentially that such recognition expenditures an rests implicit (Ibid.) constitutional questions.” Stanson, constitu- the serious to “resolve unnecessary found it

In the court authorization legislative an by explicit that would be posed tional question the legislative because campaigning, funds partisan the use of public such do not authorize certainly defendant Mott by relied upon provisions Mines.” language’ required the ‘clear and unmistakable expenditures Mines, 219-220, Cal. at 201 (Stanson, supra, at quoting 17 Cal.Sd autho- could properly concluded “that defendant 287.) The court thus p. to passage funds to spend public rize department hand, con- (Stanson, 220.) “reasonably the other as at On issue.” p. bond strued,” authority spend “the statute department provided pertinent ‘fair with a funds, for informational purposes, provide budgeted on which a bond issue information relating park of relevant presentation’ (Id. However, arose 221.) because appeal at has labored.” agency p. whether the demurrer, depart- to determine the court had “no occasion on ‘campaign’ expenditures actual constituted improper ment’s expenditures (Id. 222.) at p. authorized ‘informational’ expenses.” Court revisited Stanson. later, the California Supreme More than a decade (Keller v. State Bar P.2d 767 (1989) 47 Cal.3d Cal.Rptr. [255 Bar nom. Keller v. State sub. (Keller), other grounds revd. on 1020] Keller, 2228].) In L.Ed.2d 110 S.Ct. U.S. [110 California Bar the State funded material was an “educational packet,” the challenged to the groups” prior and other interested “sent to local bar associations (Keller, included packet election. retention judicial months “about three inaugural speech, given of the State Bar copy president’s (Ibid.) election,” that election.” referred to “clearly which before , letters to . . . addition, sample “a speech contained sample packet forum, press sample might speech which organizations provide rates, judicial crime and conviction included fact sheets on release. It also criteria. It retention, and removal and judicial performance selection Hamilton, from independence concerning judicial concluded with quotations (Id. Jefferson, 1171-1172.) The court described Madison, and others.” at pp. a state election kind of material which as “the the contents of packet (Id. in the to aid them campaign.” to local committees committee distributes view, educate was “intended to although packet In the court’s be a would an informed campaigner authors believed the reader because its in the . . . was to assist its primary purpose more effective campaigner, 252 Stanson,

election on (Ibid.) behalf of the campaign Keller justices.” Citing court concluded that “the nature and of the timing 1982 . . publication . indicate that it is a form of prohibited (Keller, election at campaigning.” omitted.) citation p.

The California Court again revisited and reaffirmed Stanson in its Supreme 2009 decision in Vargas, supra, 46 Cal.4th 1. At issue in Vargas were of expenditures by City Salinas for communications a local concerning initiative, O, Measure which would have repealed tax. city’s utility (Vargas, supra, 46 Cal.4th at 7.) funds, p. Claiming use of improper public in Vargas challenged three plaintiffs communications: particular informa- site, tion on the Web posted city’s residents, articles in the newsletter city’s and a one-page service summary anticipated cuts if Measure (46 O passed. 35.) Cal.4th at court p. high rejected plaintiffs’ challenge, ultimately concluding “the City engaged permissible rather than informational campaign . . .” (Id. activity to the Web site respect 37.) at postings. p. The court reached similar conclusions the newsletter and concerning (Id. 37-38.) one-page summary.

a. Distinguishing and campaign activities informational Stanson, Keller, teach,

As and Vargas there is a critical distinction between activities, expenditures by governmental for informational body which are activities, generally permissible, expenditures (Stanson, Keller, which are not. supra, generally 220-221; Cal.3d at pp. 1170; supra, 47 Cal.3d at Vargas, supra, p. 35.) 46 Cal.4th at As the p. Vargas court “because of explained, constitutional potential questions be may presented by public entity’s expenditure funds connection with a ballot measure that is to be voted in an upon upcoming election, there is a need (1) between distinguish materials ‘campaign’ activities funds, not be presumptively may paid by public (2) ‘informational’ material that ordinarily be financed may by public expen (Vargas, 7.) ditures.” p. however, the line

“Frequently, between unauthorized campaign expendi- tures and authorized informational (Stanson, activities is not so clear.” cases, 17 Cal.3d at “In such determination of the propriety of the impropriety careful consideration of such expenditure depends upon factors as tenor and style, of the no hard and timing fast rule publication; (Ibid., omitted; accord, case.” governs fh. Vargas, supra, every 46 Cal.4th at whether determining another consid partisan campaigning implicated, eration is the audience to which the communication is directed. (League of Com. (1988) 203 Coordination Crim. Justice Countywide Voters v.

Women also, Voters)', see Women (League Cal.Rptr. Cal.App.3d 161] [250 v. Santa Automobile Subsidies Coalition Against Barbara Santa e.g., (2008) 167 Cal.App.4th Ass'n Governments [84 Barbara Lake Forest City Measure A v. Barbara); Yes on (Santa Cal.Rptr.3d 714] 517]; Miller v. Miller (1978) Cal.Rptr.2d 60 Cal.App.4th [70 768-769, 197].) the audience Where Cal.Rptr. 87 Cal.App.3d [151 se, or influence to persuade . . . there is no attempt “is not the electorate per Voters, omitted.) Women at italics (League p. vote.” any Neutrality b. demo of this nation’s

As stated in Stanson: “A fundamental precept in election not ‘take sides’ is that the government may cratic electoral process factions.” an unfair on one of several advantage competing contests or bestow (Stanson, 217.) Cal.3d at p. must be that statement “properly Vargas

But as the court explained, treasury a ‘use of entity’s public understood as out singling public constitutionally as the an election potentially mount campaign’ [citation] conduct, a from entity analytically rather than as public suspect precluding an as measure and expressing opinion a ballot evaluating proposed publicly omitted, at italics (Vargas, supra, quoting to its merits.” 46 Cal.4th p. Stanson, words, “Stanson does not preclude a 218.) governmen In at other p. merits of a with to the regard tal from an entity opinion publicly expressing measure, funds to mount ballot so as it does not long expend public proposed (Vargas, 36.) at a on measure.” campaign p.

“Indeed, reflection, a that in circumstances many it is apparent upon and not be a ballot measure will ‘take sides’ on entity inevitably public 36.) at “If 46 Cal.4th (Vargas, supra, p. to its ‘neutral’ respect adoption.” funds no one by citizen were to have a to insist that right paid public every concern issues of great he debate over disagreed, view with which express sector, and the be limited to those in the private process to the would public (Keller v. State Bar it transformed.” radically as we know government “Thus, 12-13.) the mere circumstance U.S. at California, supra, regarding have an or position be understood to entity may opinion public 36.) (Vargas, is not p. the merits of a ballot measure improper.” c. Legislative authorization Stanson, forth “the general principle expenditures the court set authorized, insofar as are they are only an administrative official proper (Stanson, supra, 17 Cal.3d enactment.” legislative

explicitly implicitly, Thus “officials are not free funds spend public any ‘public choose, but purpose’ they may must utilize funds in accordance appropriated with the (Ibid.) legislatively designated purpose.” the more

Concerning specific question expenditures partisan Stanson “reaffirmed campaigning, in Mines that in the holding absence of clear and unmistakable language specifically authorizing public entity materials, funds for expend activities or lacks entity to make such authority 46 Cal.4th at expenditures.” (Vargas, supra, case, In this relies on the MMBA as authorization for its conduct collective during bargaining.

2. The MMBA and its are county (Coachella unions to the MMBA. subject Valley, 35 Cal.4th at

supra, 1077.) p. “The (1) MMBA has two stated to full communication purposes: promote (2) between and and to public employers employees; improve personnel and management relations within the various employer-employee rel. agencies.” ex Seal Beach Police (People City Ass'n v. Seal Officers of (1984) Beach (Seal 36 Cal.3d P.2d 597 685 Cal.Rptr. [205 1145] Beach).)

One of the MMBA is its meet-and-confer key provision requirement. “Section 3505 of the MMBA bodies of local to requires governing agencies ‘meet and confer faith employee representatives] good regarding [with hours, and wages, other terms and conditions of and to ‘con employment’ sider such made fully’ (Seal presentations employee organizations.” Beach, 596.) 36 Cal.3d at supra, p.

A related describes the of provision broadly scope representation by (unions) to include “all to organizations matters employee relating employ relations, ment conditions and but not limited including, employer-employee to, hours, and with the other terms conditions of wages, employment,” 3504; (§ of matters committed to see Seal management exception prerogative. Beach, 601-602; 36 Cal.3d at Claremont Police Ass'n v. supra, pp. Officers Claremont Cal.4th P.3d City Cal.Rptr.3d [47 of (Claremont).) 532]

“Thus, MMBA the to meet and under has governmental employer duty confer all matters within the of its concerning scope representation (Fresno, There are the union.” at employees Cal.App.4th (Id. “Interest of bargaining. mandatory subjects permissive (Id. . . subject bargaining.” are a . arbitration clauses permissive 96-97.) Determinations B. Trial Court’s decision, its rationale for the trial court explained

In its statement of conduct, “the MMBA saying provided the County’s bargaining upholding over terms collectively bargain with County statutory authority interest binding which included the issue conditions of employment, Thus, the was County and a union’s waiver of collective activity. arbitration this objective.” free to funds and resources to support expend public contention that “the The trial court with disagreed plaintiffs’ it in the MMBA because actions went its beyond legislative authority DSA, CPOA, and the silence’ of’ the attempted ‘purchase political The court claim that the offered “quid pro RNPA. rejected plaintiffs’ not to for the three unions’ arrangement” higher wages “agreement quo DSA, said, the court interest arbitration.” With binding respect matter, of its a fundamental within the acting scope “as since MMBA, under the the mere suggestion collective bargaining authority actively more than a that the were nothing recognition parties quid pro quo Moreover, [jQ the evidence failed to even demonstrate engaged bargaining. side of a to the DSA arrangement regard existence quid pro quo CPOA, stating letter.” The court made similar findings concerning offered the wage cited evidence Plaintiffs’ that the suggestion County “belies interest the CPOA’s of binding increase specifically purchase non-support RNPA, Likewise, “The to the the court found: arbitration.” with respect the increased offers were wages predi- evidence failed to demonstrate that arbitration cated on the interest binding provision.”

C. Analysis trial, adduced at we find to the facts governing legal precepts

Applying now determination. As we overturning challenged explain, no basis for authorized, (2) there was no (1) quid pro conduct was County’s statutorily (3) activity. did not engage arrangement, County quo MMBA, to discuss County 1. Under the authorized arbitration initiative. “One of the most issues on this appeal

According important plaintiffs: under bargain to ‘meet and confer’ and duty concerns whether the unions about their bargain authorized [MMBA] for the interest arbitration taxpayer initiative.” Plaintiffs frame this view, as one of law. In question “the plaintiffs’ efforts cannot be County’s categorized as ‘mandatory’ ‘permissive’ bargaining and because the MMBA does not authorize the use of funds for public it partisan purposes cannot authorize the kind of unlawful ‘bargaining’ conducted here.” review

a. Appellate Whether the conduct was authorized MMBA is a matter of construction. It statutory thus of law to our presents question subject (Smith v. Court 77, review. Superior independent (2006) 39 Cal.4th 83 [45 218].) 137 P.3d Cal.Rptr.3d statute,

When our construing task is to ascertain the intent of the (Coachella Legislature, effect to the Valley, thereby giving law’s purpose. 1083; supra, San Leandro Teachers 35 Cal.4th at Ass'n v. Bd. Governing p. San Leandro School Dist. (2009) 46 Cal.4th Cal.Rptr.3d [95 Unified (San Leandro).) 209 P.3d 73] b. Binding interest arbitration as a proper subject collective bargaining its the MMBA

Among aims to “to full communi purposes, promote cation” and “to . . . relations” between improve public employers Beach, (Seal 36 Cal.3d at employees. Consistent with those (‘meet the MMBA purposes, confer’)” as a “provides negotiation (Fire means Union v. labor Fighters City of resolving disputes. 608, 614, Vallejo 12 Cal.3d fn. 4 971].) 526 P.2d Cal.Rptr. [116 “The meet-and-confer is an essential of the state’s requirement component Beach, scheme for . . . legislative regulating employment practices.” {Seal 599.) “The to meet duty and confer in faith is limited to matters good (Claremont, within the . . .” however. supra, ‘scope representation’ Cal.4th at p.

The broad of definition of includes matters statutory “scope representation” hours, and other terms and conditions of concerning “wages, employment,” (§ 3504.) while certain matters. “The definition of management excepting of and its are ‘scope representation’ exception ‘arguably vague’ ‘overlap ” (Claremont, supra, 631.) Cal.4th at But there is a significant 39 ping.’ p. of federal law of the federal act’s body “interpreting meaning ‘wages, ” Fighters hours and other terms and conditions of employment.’ {Fire City Union v. 616.) at And courts Vallejo, supra, Cal.3d California p. of “have referred to such federal frequently precedent interpreting parallel (Ibid.) in state labor language legislation.” law, arbitration is not a mandatory

Under state interest although about which the subject of contract it is a negotiations, subject permissive (Fresno, at supra, meet and confer. may Cal.App.4th parties properly Likewise, law, a interest arbitration “is not 96-97.) under federal binding on terms and conditions of of since its effect mandatory subject bargaining, (N.L.R.B. v. at remote.” the contract is best during employment period No. 252 1976) Columbus Pressmen and Assistants’ Union (5th Cir. Printing 1161, 1166.) F.2d “It in the federal courts that interest is well settled (International arbitration . . .” however. is permissive bargaining subject Ass'n 1264 v. 1999) Firefighters, Municipality Anchorage Local (Alaska of 156, 157.) P.2d the discussions here Propriety of

c. While interest arbitration acknowledging general principle binding is a that it subject nevertheless permissive bargaining, plaintiffs argue for the to over it here. to “an negotiate improper According plaintiffs, interest arbitration clause in a contract have constituted might itself of collective But in this case the interest permissive topic bargaining. arbitration . . measure . was a initiative measure constitutionally protective to the voters This it outside the confines of presented by taxpayers. placed collective and within the broader arena of the union-management bargaining electoral process.”

We find that argument unpersuasive.

For one as California Court thing, Supreme precedent recognizes, Beach, and the MMBA can coexist. In Seal electoral the corn! held process that “the council was city meet confer with the required [unions] before it charter which affect their amendments matters within proposed The MMBA such action and the council scope representation. city requires cannot avoid the use of its charter amend- requirement by right propose Beach, (Seal out, Seal ments.” 36 Cal.3d at As p. plaintiffs point (Id. Beach concerned fn. mandatory subject bargaining. Moreover, it did “not involve the whether meet-and-confer question was intended to to charter amendments requirement apply proposed (Id. so, of Seal Beach initiative.” fn. 8.) Even reasoning undercuts assertion that collective and the initiative plaintiffs’ bargaining are exclusive. process mutually event, contention any plaintiffs’ appellate contrary below. “It is a entrenched

position they consistently urged firmly must adhere to the on principle litigants theory appellate practice (Brown v. Boren which case was tried.” 74 1316 Cal.App.4th court, 758].) In the trial recognized Cal.Rptr.2d plaintiffs propriety [88 over union involvement with the interest arbitration bargaining binding initiative. Plaintiffs that most in their expressed succinctly closing position in which “the could that arguments, they acknowledged County legitimately initiative,” with a union to withdraw from an but nevertheless negotiate that the exceeded in an to “stifle argued those bounds County attempt partisan the unions” and their members. Plaintiffs’ political participation by closing echoed the view in their statement at trial.3 It argument expressed opening was reinforced the trial Knox.4 And it was consistent testimony plaintiff with made in to the arguments County’s pretrial plaintiffs opposition motion.5 summary judgment at trial with our construction position espoused by plaintiffs comports MMBA,

of the which interest arbitration as recognizes permissible subject Fresno, 3504, 3505; (§§ of collective bargaining. Cal.App.4th 96-97.) We therefore affirm the trial conclusion that the MMBA court’s authorized the discussion of interest arbitration at the binding table, as a voter even was bargaining though subject presented proposed initiative, not as a contract clause. County gone argue Plaintiffs stated: “We do not that the couldn’t have to DSA and [said] you may being proposed named one the beneficiaries of this ballot be interested as what, you you give you wages you and prefer initiative. We that don’t do it. And I’ll tell we’ll that, they they No Where crossed the line was said to the sheriffs problem withdraw. [f] giving you wages you want not to part as of the deal for our the increased we also committed they line with the There is no support that measure. . . . That’s where crossed the DSA. fi[] time, gone any to them at we question they that could have to either CPOA RNPA said things you County] always negotiate . . . can those prefer part would not be of this. [The unions, they They beyond They only didn’t that. went far that. said not do we with the but do agree any initiative you participate, you want not to we want not to this or other may the line the . . . life of this binding measure for interest arbitration that come down short, they the line.” new contract. . . . crossed [f] [f] agreed County binding “free” to discuss interest arbitration with Knox County expect she “would to use RNPA and other unions. Knox further testified that time, resources, carrying “obligation engage in collective personnel” out its wages, working conditions”—which bargaining unions issues of hours and with its over included, view, binding arbitration. in her interest authorities, plaintiffs argued: “County officials are points In their memorandum of was not binding that the interest arbitration ballot initiative more than entitled to hold the view bargaining at a collective They express are more than entitled to that view good public policy. do, do, they spend taxpayer did in fact they permitted are not and which table. What initiative, attempt could the restrict or defeating a ballot nor purpose dollars for political activity employees.” of its to restrict agreed to refuse to groups true that labor could have argued: Plaintiffs also “It is other an they have reached such did. It is also true that could support Measure C as the DSA However, when the facts demonstrate agreement collectively bargained of a deal. part as money, then the exchange payment for the County’s offer of such a deal is made in line, bargaining principle or law makes and no collective County has crossed over the partisan purposes.”

permissible expenditures

259 however, autho- said, the MMBA that we find in nothing explicitly That “clear and in the requisite for partisan campaigning rizes public expenditures Court precedent unmistakable California language” binding Supreme Stanson, (Mines, 287; 17 Cal.3d at supra, Cal. at supra, demands. 201 see p. Therefore, 219-220; consider at we must Vargas, supra, 46 Cal.4th p. collective constitutes bargaining imper- whether the conduct during it does not. missible As we now activity. explain, partisan campaign 2. did not as a higher compensation quid pro quo offer the unions’ silence. political the offer of substantial pay Plaintiffs contend that County “coupled of, for, in an indivisible that included raises as exchange part ‘package’ initiative.” While supporting prohibition against joining taxpayer the need ... in order to show a “to establish disclaiming quid pro quo case, Stanson violation” in contend that “contrary this nevertheless plaintiffs evidence in trial court’s ill founded conclusions there was substantial the record” to their claim. support quid quo pro

a. Standard and scope appellate review As both we review the trial court’s determinations on parties acknowledge, this evidence. are essentially substantial Those determinations point Miller, Miller v. (Cf. factual. 87 772 Cal.App.3d [“question whether a communication is ‘informational’ or given public ‘promotional’ issue”].) is ... a factual The substantial evidence rule factual governs v. McGraw-Hill Co. (1995) (Nordquist Broadcasting determinations. 32 standard, 221].) deferential 561 Under that Cal.App.4th Cal.Rptr.2d [38 conflict, when “the evidence in court will not disturb the appellate of the trial court. The court must consider the evidence in the findings light every most favorable to the benefit of prevailing giving party party, reasonable inference and of the resolving judgment.” conflicts words, (Ibid.) In other if are must be sustained “findings they supported evidence, substantial even the evidence could also have though justified (Yield Dynamics, Systems Inc. v. TEA (2007) Corp. 154 contrary findings.” 1].) Cal.App.4th Cal.Rptr.3d [66 out, a factual

As the “an who appellant challenges points determination in the trial court . . . must marshal all of the record evidence relevant to the demonstrate its insuffi affirmatively point question TEA (Yield Systems Inc. v. Dynamics, to sustain the ciency challenged finding.” omitted.) “If one is Corp., supra, going italics Cal.App.4th one’s brief argument, make ‘the-facts-compel-that-I-win-as-a-matter-of-law’ Taxpayers v. Howard Jarvis (McCauley must state all the evidence.” fairly 900].) Ass'n Failure to Cal.App.4th Cal.Rptr.2d [80 (Ibid.) with that risks forfeiture of the claim. comply requirement County asks us to find forfeiture here. In assert that “have more they reply, plaintiffs than summarized and cited the evidence on this forthrightly properly appeal.” demonstrates, We cannot As a review of briefs “the agree. plaintiffs’ appellate facts stated and the ... inferences drawn are those most favorable to [them] (Oliver rather (1986) than to v. Board Trustees 181 [defendants].” 824, Nevertheless, 1].) 832 brief County’s cites Cal.App.3d Cal.Rptr. [227 “considerable evidence the order”—a circumstance that eases our supporting (Ibid.', (2004) task on cf. v. 121 appeal. Goehring Chapman University 353, 363, fn. 7 [reaching merits Cal.App.4th Cal.Rptr.3d despite [17 39] record, failure to an where “submitted appellant’s provide respondent reason, record”].) For that and without the defects in adequate excusing briefs, we shall address their on the merits. plaintiffs’ evidentiary challenges (Wershba 224, (2001) v. Inc. 237 Computer, 91 Apple Cal.App.4th [110 145].) Cal.Rptr.2d court directed

Plaintiffs’ claims this are quid pro quo County’s efforts with the CPOA and the RNPA. bargaining Although plaintiffs argued below that the side letter with DSA was an County’s agreement improper do not renew that here. We arrangement, they argument quid pro quo therefore limit our discussion to the CPOA challenges concerning plaintiffs’ (Tiernan University and the RNPA v. Trustees Cal. State & negotiations. 211, 216, 115, 317]; (1982) 33 Cal.3d fn. 4 655 P.2d Colleges Cal.Rptr. [188 451, 466, 457].) (1998) v. Kosha 65 fn. 6 Reyes Cal.Rptr.2d Cal.App.4th [76 b. with the CPOA Negotiations infer a

As the trial court noted in its statement of decision: “Plaintiffs quid because arrangement April package proposals pro quo to increase in over a of collective wages year were the first offers County’s that the not to agree and these demanded CPOA bargaining, proposals arbitration.” The court infer- rejected interest binding proffered view, that the did ence. In the court’s “the evidence demonstrated County and half on or about years offer the CPOA a increase of 18% over five wage 29, 2004, a Citing March week before April package proposal.” Kutras, said: “This evidence belies Plaintiffs’ the court testimony increase that the offered suggestion wage specifically purchase interest arbitration.” binding CPOA’s non-support “The sole evidence that the trial court Plaintiffs attack this finding, saying: testimony this version of events is the plainly incompetent offers for that the testimony Executive Peter Kutras.” In Kutras’s challenging binding concerning increase offer wage predated provision first initiative, his it was undermined assert that arbitration plaintiffs interest written propos- “contradicted by later and that it was testimony als” to the CPOA. whole, Taken as a merit argument.

We find no plaintiffs’ Nor does the law Kutras’s testimony. evidence does not us to reject compel an court will that we do so. “Although appellate request support plaintiffs’ inherently improbable, or verdict based evidence judgment upon uphold not come circumstances does which discloses unusual testimony merely v. Huston P.2d (1943) 21 Cal.2d within that category.” (People [134 Burton v. 758], 55 Cal.2d People overruled on another ground 433].) the of the P.2d “To warrant rejection 352 359 Cal.Rptr. [11 court, there believed a trial who has been given by statements witness true, falsity are or their they must exist either a impossibility physical (Huston, at to inferences or deductions.” resorting must be without apparent v. Title Ins. Co. (1953) 120 (Evje City are rare indeed. Such cases 279].) P.2d 492 Cal.App.2d [261 that Kutras’s testimony

This case does not warrant the conclusion claimed The is not without falsity was inherently “apparent improbable. Huston, v. 21 Cal.2d at (People deductions.” to inferences or resorting and even which is testimony subject justifiable suspi “Conflicts for it is the exclusive province cion do not the reversal of justify judgment, of a witness and the truth of the trial or to determine the judge jury credibility short, (Ibid.) determination of the facts which falsity upon depends.” unbelievable cannot be inherently claim that Kutras’s plaintiffs’ testimony It thus no basis for reversal. sustained. provides

Moreover, the trial Kutras’s is not the evidence testimony only supporting to the the made no offer quo court’s determination that County quid pro of that determination from The court drew inferences in support CPOA. offers were far wage facts. was that the 2004 several One April demands, for the CPOA necessary the union’s the incentive “hardly below interest arbitration binding offer itself with along both wage accept no increase in that the 12 offered Another was April proposal provision.” interest arbitration binding when the over wages April proposal, introduced, increase was wage which “suggests was first proposal The terms of the interest arbitration binding provision.” of the independent did include a MOU ... not also noted that the 2005 “successor parties’ court the wage there was no evidence that arbitration but interest binding provision, removal of the binding MOU was lowered due to increase in the successor Furthermore, did not the trial court though interest arbitration provision.” it, that initiated that it was the CPOA on there was evidence rely expressly measure, the County. interest arbitration not about the binding discussions reasons, For all these we to the trial reject plaintiffs’ evidentiary challenges court’s determination the CPOA concerning negotiations. with the RNPA Negotiations

c. RNPA, With to the the trial court respect County’s negotiations made these “The evidence failed to that the increased findings: demonstrate offers were on the wages interest arbitration predicated binding provision. arbitration binding interest was not even a actual provision part rather, but read from a draft April package proposal, document. While the contained a interest April proposal binding arbitration offer remained the in the same as provision, wage April and there was no evidence that proposal, wage necessarily offer conditioned on this The fact was an ‘all or provision. provision offer was consistent with nature of and does nothing’ packaged proposals that the increase was conditioned on one such suggest wage any provision Instead, as interest arbitration there was evidence that binding provision. the increased offer was based on discussions with Knox wage regarding rates of nurses in other local area as well as salary competitive hospitals, conducted between March salary comparison investigations 30, 7, 2004 and 2004.” April determinations,

Plaintiffs those that the trial court erred challenge arguing in not the 2004 offers of a increase and the introduction connecting April pay of the interest arbitration In their brief on binding provision. opening appeal, the trial court’s “substantial evidence refutes plaintiffs argue clearly claim that the increased offer to the RNPA was wage insupportable sharply not tied to the new but absolute condition that the nurses’ association neither brief, their on the rely nor initiative.” In join reply plaintiffs support offer was “incontestable” fact that the increased County’s wage “accompa- that the union withdraw its nied condition by County’s non-negotiable for the ballot measure.” taxpayer evidence review standard that this governs Under substantial cases, Here, are as in arguments unavailing. many challenge, plaintiffs’ of credibility, “trial court’s decision is based predominantly upon questions from the evidence and reasonable inferences drawing weighing conflicting (Jordan Santa Barbara City (1996) 46 evidence v. voluminous presented.” 1245, or more infer 340].) 1254 “When two Cal.Rptr.2d Cal.App.4th [54 facts, no be deduced from the court has reviewing ences can reasonably (Shamblin v. the trial court.” to substitute its decision for that of authority 339]; Brattain P.2d (1988) 44 Cal.3d 478-479 Cal.Rptr. [243 Stores, Court Sav-on Inc. v. Drug Superior accord, 34 Cal.4th case, was 194].) the trial court’s decision P.3d In this Cal.Rptr.3d [17 offer followed its receipt wage increased County’s based on evidence and its information increases wage nurses’ recent the Stanford about This evidence provides proper salaries. industry investigation comparable increased wages inference offer of that the for the court’s basis Contrary interest arbitration provision.” on the binding not “predicated contention, “accompanied” increase the fact that proposed plaintiffs’ inference that proposal the contrary does not compel proposed provision arrangement. quo was an attempted quid pro negotiations. the RNPA concerning arguments

We therefore reject plaintiffs’ activity addressing did not engage campaign 3. The collective during bargaining. initiative proposed now we arrangement, that there was no pro confirmed Having quid quo to discuss the initiative whether it was a misuse of resources public consider That with the unions. bargaining question measure as of the part process of informational category “turns whether the activities fall within upon or, instead, funded . . . through general appropriations activities be may funds in activities that not be may paid constitute campaign 46 Cal.4th at p. authorization.” (Vargas, supra, of . . . absence explicit review Appellate a. Stanson, (See evidence rule this issue. governs substantial defendant engaged

Cal.3d at 222-223 whether [determining Miller, Miller v. allegations]; would on of activity plaintiff’s depend proof communication consti at 772 whether supra, [determining 87 Cal.App.3d p. Jarvis McCauley v. Howard issue”]; “a factual cf. tuted activity campaign Ass'n, [concluding at 1264—1265 Taxpayers supra, 68 Cal.App.4th pp. that a communi challenged evidence the determination substantial supported advocacy].) cation was not express enunciated in decisional we consider factors this analyzing question, (Stanson, supra, 17

law, with the of or communication. starting activity type 221; 35.) Other factors Cal.4th at Vargas, supra, at Cal.3d p. (Stanson, at of the communication. include “the tenor and style, timing” Keller, 1171; 222; 7.) at Another Vargas, Cal.3d at supra, p. see p. p. directed. the communication is the audience to which relevant consideration is (Le Voters, 550.) We supra, Women ague Cal.App.3d p. examine each of those factors in turn. b. Type activity

As in explained Vargas, “the Stanson decision identified a explicitly number of materials and activities that constitute unquestionably campaign (without activities need to any consider their ‘style, tenor and timing’)—for stickers, use of funds example, purchase bumper posters, ‘floats,’ advertising or television and radio also identified ‘spots’—and number of activities that are clearly informational—for example, providing fair presentation facts to a response citizen’s for information.” request Stanson, {Vargas, supra, 46 Cal.4th at 17 Cal.3d at p. citing supra, 221.) p.

Here, the challenged is the conduct activity County’s discussing unions’ of the ballot initiative as nonsupport proposed of the collective part bargaining process. Plainly, conduct does not “constitute the kind of typical materials or activities” identified in Stanson. {Vargas,supra, Stanson, 46 Cal.4th at p. discussing 221.) 17 Cal.3d at To the p. it more contrary, resembles of “a closely ‘informational’ role” pursuit proper “view a presenting agency’s of ballot at a proposal meeting [an] organization” {Stanson, has interest in the expressed topic.

The fact that the conduct is not typical campaigning activity however, because “the items dispositive, listed in Stanson do not exhaust category materials or activities.” potential campaign {Vargas,supra, Cal.4th at We therefore examine other factors. pertinent c. and tenor Style

An examination of the and tenor of a style communication challenged Here, with its necessarily begins language. under the identical nearly propos- RNPA, als made to the CPOA and to the each union—for itself and for “its officials”—would have not to agreed “directly indirectly initiate or effort to support any interest arbitration on the ballot. place binding As to efforts initiated to interest arbitration already place binding on ballot,” each union would be to “take obliged immediate action to disassoci- Furthermore, ate from itself such action.” the unions would not to agree initiate or “efforts to binding interest arbitration on ballot” place in the future.6 initiative, County’s The full the proposal regarding binding text of the interest arbitration 8, 2004, presented April Registered as to the RNPA on reads as follows: “The Nurses (RNPA) agrees immediately Professional Association that effective and for the term of the 5, 2006, Understanding expires

Memorandum of that November the RNPA and its officials will directly indirectly any binding not or support place initiate or effort to interest arbitration on ballot, already place binding the ballot. As to efforts initiated to interest arbitration on the Keller, “is

Here, the material challenged the and tenor” of as in “style factual, . . .” claim . but without of impartiality informative and basically there. 1172.) cases’ ends (.Keller, similarity But the supra, p. Cal.3d reten- an Keller involved an educational packet judicial related to upcoming election election, which state “the kind of material tion which contained the to aid them in campaign.” distributes to local committees committee (Ibid.) Here, contrast, intended for further the were not communications not election. Keller thus does distribution or for direct use in the November materials. the as campaign support characterizing bargaining proposals and tenor Vargas style that the finding proposals’ Nor does compel “that Vargas, In the contended plaintiffs renders them activity. campaign are communications challenged when the and of the ‘style, timing’ tenor account, be viewed as improper taken into the communications should as materials.” materials rather than informational permissible campaign that 35.) That on the claim (Vargas, supra, 46 Cal.4th contention hinged held to views” communications failed set forth challenged “competing that the materials and other result taxpayers, plaintiffs as on and should be viewed ‘took sides’ the ballot measure “improperly (Ibid.) con- argument, The that activity.” rejected court improper campaign instead all of the “constitute challenged permis- communications cluding sible activities—and not activities.” informational inappropriate (Id. at p.

Here, “an or in the County Vargas, as fact expressed opinion (Vargas, the merits of a ballot measure is not regarding improper.” position Furthermore, were framed 46 Cal.4th at proposals contract, not in the tone exhortatory dispassionate language petition drive RNPA will take action to disassociate from such action immediate itself by the ‘public ‘any person employed to health employees’ take action to have references Registered Nurses registered Santa a classified or unclassified nurse in Clara as binding entirely language proposed interest bargaining unit’ removed from the ballot addition, place binding arbitration any ballot future efforts to interest arbitration measure. if initiated, indirectly any effort.” directly support initiate or on ballot are RNPA will not or virtually presented identical. As to operative language proposal in the CPOA 12, 2004, (CPOA) Peace Association April provides: CPOA on it “The Correctional Officers’ Understanding agrees immediately that effective and for the term of the Memorandum 15, 2007, directly indirectly not or initiate or expires August the CPOA and its officials will already binding As to support any effort to interest arbitration on ballot. efforts place ballot, on the CPOA will take immediate action place binding initiated to interest arbitration petition action and drive and take action have references disassociate itself from such sergeants, ‘County correctional ‘public safety employees’ and of Santa Clara correctional lieutenants, entirely language ballot in the lieutenants’ removed from the sheriff’s correctional addition, any place future efforts to binding arbitration ballot measure. In if proposed interest initiated, indirectly binding directly CPOA on the ballot are will interest arbitration any initiate or effort.” Thus, their and tenor is all persuasion. “style not at to comparable traditional (Id. 38.) at campaign material.” p.

d. Timing case, In this the collective challenged took bargaining activity place April between 7th and 12th. That was after Knox filed the notice of intent to circulate a to the measure for the petition ballot qualify 2), but (Apr. before began 23), proponents gathering signatures before (Apr. (June initiative for the 23), ballot and before the qualified county adopted a resolution before 3). initiative the voters placing (Aug. Barbara,

In terms of this is timing, case similar to Santa supra, 167 There, the defendant Cal.App.4th 1229. “formulated a agency plan outlining needs, the county’s and a transportation ballot proposed measure would impose one-half tax to percent sales for set forth in pay projects its (Id. sued, 1233.) at plan.” p. asserting that the defendant plaintiff advocated and for “unlawfully funds of the ballot spent public passage suit, (Ibid.) measure.” The trial court dismissed the and the court appellate (Id. 1234.) affirmed. at the court relied on p. affirming, grounds: two existence of authorization and statutory for the the fact express expenditures (Id. that the at challenged activity any 1239-1240.) predated campaign. pp. here, As relevant the Santa Barbara court concluded “activity did occur in challenged by an election appellant contest campaign.” Barbara, Rather, (Santa 1240.) at supra, court Cal.App.4th p. observed, the activity “occurred before . . . finalization of the ordinance ballot, on the and before the board of placing county supervi- [the measure] had sors the ordinance and certified for the 2008 adopted [the measure] reason, (Ibid.) ballot.” For the court Stanson other explained, decisions were distinguishable. “Stanson involved the of funds expenditure materials and for to partisan engagements campaign speaking promote of a measure bond that had been on the and was passage already ballot placed (Ibid.) current subject election “The cases cited in campaign.” recent Stanson more cases also concern bond or other ballot measures also, that had (Ibid.’, been on ballot.” see already qualified placement Voters, 548-549.) Women at As the e.g., League Cal.App.3d Santa Barbara court “the of a ballot acknowledged, drafting sponsorship measure is to the election that follows its necessary prerequisite “ Barbara, (Santa ballot.” on the But to and placement ‘prior initiative, through drafting of a action is not taken to stage proposed measure; to influence voters either or to an initiative attempt qualify pass ” yet nothing (Ibid., there as either of those proceed stages.’ quoting Voters, League Women

267 in Stanson suggests The Santa Barbara “Nothing court thus concluded: its a ballot measure before and of drafting proposed the formulation for the ballot campaigning for ballot constitutes partisan the qualification Barbara, 1241; League at see also (Santa supra, p. 167 Cal.App.4th measure.” Voters, 548 formulation Women 203 at supra, CaI.App.3d p. [“the of . . of . fall within the purview a initiative does not of drafting proposed .”].) . . partisan campaigning v. Duffy Common Cause rely For their on part, plaintiffs California arose fees attorney That over appeal

200 730 Cal.App.3d Cal.Rptr. 285]. [246 Duffy. John Diego County, the Sheriff of San against from a suit taxpayer (Id. Crime 738.) by had at conferences appeared press “sponsored at Duffy p. Reform, encour committee to organized Court private political Victims for that, the encourage Justice Bird to resign failing Chief Rose age (Ibid.) announced his support retention.” against “Duffy vote her containing distribute committee and stated he would postcards political help (Ibid.) As message.” plaintiffs anti-Bird strongly-worded taxpayers, by of the anti-Bird “sought postcards to establish the distribution illegality (Id. 742.) uniformed at and using departmental p. on-duty deputies supplies.” The found “the distribution scheme was clearly partisan court postcard (Id. 747.) informational at activity, activity.” p. not political this: fact the election the court said “The retention Concerning timing, make less any political. more than two did not years away postcards already underway of Chief Bird was retention Justice campaign involving . . .” identified in committees organization as evidenced supra, Common Cause v. (California Duffy, defendant. memorandum 748.) 200 at Cal.App.3d p. case, a determination that

In this evidence undisputed supports had the notice of intent underway. Although was not yet election campaign filed, initiative ballot. been it would be months before the qualified circumstances, conclude, collective challenged bargaining Under these we Barbara, an or campaign.” “did not occur in election contest {Santa activity at supra, p. Cal.App.4th Audience

e. RNPA, found that “the the trial court both the CPOA and Concerning collective during bargaining were made [each union] proposals in its stance to influence actions union] therefore were intended [each arbitration, the actions of voters.” on binding interest case which holds: finds authority, That determination the electorate per these directed is not “The at which activities are audience se, citizens; but only interested potentially private there no attempt or influence any persuade vote. It follows those activities cannot [Citation.] Voters, be construed (League Women reasonably as partisan campaigning.” 550; accord, supra, Yes on Measure A v. City at Lake Cal.App.3d p. Forest, Barbara, 626; supra, Santa Cal.App.4th contrast, Cal.App.4th By activities in connection awith ballot measure “directed at voters’ swaying are even opinions improper, pre-filing.” (88 Here, however, (2005).) found, Ops.Cal.Atty.Gen. as the trial court unions, in activity question was intended to sway not the voters.

f. Conclusion record, examined of the Having each factors light in of the we pertinent conclude that did “not funds to expend public promote partisan (Stanson, in an election supra, 17 Cal.3d position 209-210.) at campaign.” First, the collective conduct not bargaining is under typical campaign activity (Stanson, Stanson. 221; supra, 17 Cal.3d Vargas, supra, 46 Cal.4th at at p. Second, 35.) p. and tenor” of the at “style “is not all bargaining proposals Third, to traditional (Vargas, comparable material.” at in campaign 38.) terms of timing, activity for the preceded qualification measure’s ballot and thus “did not (Santa in an occur election or contest campaign.” Barbara, Fourth, Cal.App.4th the collective bargain- (Id. unions, ing directed activity not at the electorate. at p. sum, in of the we light above analysis, reject plaintiffs’ arguments Stanson violated bargaining the unions about for interest binding arbitration initiative.

We next address claims about e-mail sent plaintiffs’ by Supervisor Alvarado, framed and Stanson as both by plaintiffs breaches statutory violations. E-mail

II. Supervisor Alvarado’s

A. Legal Principles

1. Statutory Provisions

a. Section 8314 it

Section makes “unlawful elected state or local any officer ... to use or others to use for a public resources permit or or other which are not authorized law.” activity, personal purposes definitions, (§ (a).) subd. Under its section 8314 statutory any prohibits in a or gain to result enough is which substantial

“use resources public which a local agency to the state or any loss advantage to user does (Id., subd. (b)(4).) But that section be estimated.” monetary may value to the information for providing the use resources public not “prohibit measure on or other ballot effects of bond issue any about the possible activities, (1) the informational provided or policies, state operations, state, of this or laws authorized constitution activities are otherwise presentation a fair and impartial the information constitutes provided reaching judgment an informed facts to aid the electorate of relevant (Id., (d).) subd. measure.” the bond issue or ballot regarding in Section “an as defined includes “Campaign activity” expenditure is where “it (b)(2).) That excludes (§ any expenditure subd. 82025.” made for political it clear from the circumstances surrounding the term (§ 82025.) regulations, As defined in accompanying purposes.” the to influence includes or “influencing attempting “political purposes” any the or of action tiie voters for or ... against qualification passage of 2, 18225, (a)(1).) through That occurs (Cal. Code tit. subd. Regs., § measure.” communication, as a of so that the taken advocacy use of words ... “express (Id., whole, an a result election.” unambiguously urges particular (b)(2).) subd.

“ of not the incidental minimal use does include ‘Campaign activity’ resources, such as or office space, campaign purposes, public equipment mail, calls, and of including telephone the referral unsolicited political “ 8314, (b)(2).) ‘Public re- (§ visitors to entities.” subd. private political the state or local agency, sources’ means or asset owned any by any property facilities, funds, to, land, but not limited including, buildings, equipment, vehicles, travel, and state-compensated supplies, telephones, computers, Leandro, (Id., see San at supra, (b)(3); time.” subd. 46 Cal.4th [for ” Code, 7054, of Ed. “the broad term ‘equipment’ encompasses purposes § mailboxes].) internal school

b. Section 54964 officer, 54964, consultant of a local “An or

Under section employee, of any of funds or authorize agency may expenditure expend aof ballot rejection local or or oppose agency approval candidate, measure, (§ the voters.” or defeat of a or election “a of this section as (a).) is defined for subd. “Expenditure” purposes used communications that expressly of local funds is agency payment measure, or identified ballot rejection clearly advocate approval (Id., candidate, the voters.” or defeat of a identified clearly the election of local (b)(3).) expenditure agency section does not subd. “This prohibit funds to information to the provide about effects possible activities, ballot measure on the or policies of the local if operations, agency, both of the conditions are met: following (1) The informational activities [f] are not otherwise the Constitution or prohibited by laws of this state. [][] fair, accurate, information constitutes an provided and impartial presentation relevant facts aid the voters in reaching an informed (Id., judgment ballot measure.” regarding (c).) subd.

2. Application to Stanson Claims

Courts must exercise caution in these applying statutory regula Stanson violations. As Vargas tory teaches, to claims of provisions were they intended, “not and should not be interpreted, displace analysis in Stanson. (Vargas, standard forth” set supra, 46 Cal.4th at 8p. [rejecting use of the see id. (b)(3)]; standard in express advocacy subd. § 31-32 of the pp. use Cal. [rejecting advocacy standard in Code express Regs., tit. (b)(2)].) subd. § above, Stanson

As exhaustively discussed generally prohibits expendi- ture of funds to “public promote an election partisan position campaign.” (Stanson, supra, 209-210.) Cal.3d at whether deciding partisan factors, the court campaigning implicated, considers various “the including (Id. style, 222; tenor and see Vargas, timing” communication. 46 Cal.4th at p. B. Trial Court’s Determination decision,

In its statement of court found that the did e-mail implicitly words, not constitute court’s “while the attached campaign activity. C, editorial advocated to Measure the text of the Alvarado piece opposition e-mail itself instructed to ‘educate simply recipients yourself your ” found, neighbors on these “More complex issues.’ court importantly,” the e-mail fell the statutory within for ‘the incidental “exemption resources, minimal use such as office or equipment space, ” which includes unsolicited referrals contact. purposes,’ following

C. Analysis

We review the trial court’s factual determinations the e-mail for concerning Miller, 772; (Miller substantial evidence. at supra, v. Cal.App.3d Ass'n, Howard Jarvis McCauley v. at Taxpayers supra, Cal.App.4th 1264-1265.) review, Plaintiffs de novo “The here are urge asserting: facts But de entirely novo review is when undisputed.” appropriate M. v. (Mary facts—even if rise to conflicting inferences. uncontroverted—give 99, 202, Cal.Rptr. 213-214 Angeles Los (1991) 54 Cal.3d City of [285 Court, Stores, 34 Cal.4th Inc. v. Superior 1341]; Drug Sav-On P.2d case, conflicting are open several factual issues In this e-mail. The sending reasons Alvarado’s including interpretation, rule, review we applies. Applying evidence rule thus substantial communication, be which must the challenged court’s findings concerning examined in its entirety. be must the attached editorial the e-mail and Both text of

1. considered. trial, text and both

The was admitted into evidence entire e-mail e-mail “neutral” the text of the attachment. The trial court found C.7 editorial “advocated” defeat of Measure while the attached alone, constitutes assert that it on the attached editorial Focusing plaintiffs Cal. Code (§ (a); subd. in violation section 8314. advocacy express (b)(2); (b)(3).) subd. While subd. see also Regs., tit. § § editorial, do not discuss even they from the quote extensively plaintiffs the text e-mail. challenged mention be of the e-mail must

Plaintiffs’ Both focus misplaced. components considered. We examine each turn. upcoming as know that the body pertinent part the e-mail follows: “We reads determine the contains choices will

election on November 2 is vital. Our ballot several state, local, many years With so choices and national levels for to come. direction at B,A, make, and C. County-related you I want to be aware of three measures—Measures ffl B, A are charter Supervisors unanimously Measures each supports [sic] The Board of the to Measure C which placed A and B were on the ballot counter amendments. Measures why It is. I am unanimously opposes. complicated? Sounds That Supervisors Board clearly and sending you Mercury simply October 3 published News editorial on against the your arguments for and sample can also ballot defines the issues. You reference complex these yourself your neighbors on Please take the time to educate and measures. volunteering for those “interested provides issues.” The e-mail contact information provide an to feedback. polls,” and it closes with invitation A and B. It passage defeat C and of Measures The attached editorial advocates of Measure years labor “After of bitter “power play” by C as a unions and states: refers Measure appealing are to voters County government employee unions disputes, some Santa Clara fighting two negotiations. supervisors are back with in contract give them more clout It commentary on the measures. provides editorial further ballot measures of their own.” The summary box a three measures. also includes a 2. Substantial evidence supports determination that the e-mail’s

text was informational.

a. advocacy Express Plaintiffs make no claim text of the e-mail constitutes express Nor would advocacy. such claim succeed. The e-mail itself encour- simply ages to educate recipients themselves about the three initiative measures and where suggests information can be found. It does not unambiguously defeat of C urge Measure A Measures and passage B.

b. Style and tenor The text e-mail that there are three local explains initiative measures ballot, on the to educate encourages themselves about the three recipients measures, and refers to the attached editorial and to the ballot as sample sources of further information.

The trial court found the e-mail be neutral in tone. That determination is evidence, by substantial both and supported testimonial documentary.

Called as an witness expert “Did County, Agnos was asked: you view Blanca as Alvarado e-mail informational or activity?” He campaign “In it my informational responded: opinion clearly because it describes the measures. It told them where could they more information and get included outlined an editorial that issues from local While newspaper.” C, that the acknowledging editorial defeat of Measure urged Agnos noted: it “But also included very box that outlined the specific three measures that ballot, A, B, C, were on the I think components.” In addition to that the e-mail itself was in testimony, evidence at trial. A review of its text demonstrates it was “moderate in tone did exhort voters with to how should vote.” regard they (Vargas, supra, 46 Cal.4th Its tone makes the text e-mail from “readily distinguishable traditional (Ibid.) material.”

This testimonial and evidence documentary determination that supports the e-mail text reflected a style neutral and tenor.

c. Timing The Alvarado e-mail was on sent October less than a month before November 5th election. “the According timing plaintiffs, alone, as e-mail it the e-mail text we flags advocacy.” Considering disagree. observed, Vargas As court “under some circumstances of material mailing to a ballot measure to a number of relating large potential voters before an shortly election would constitute upcoming unquestionably be . . . .” campaign activity may funds properly paid by public Keller, 38; (Vargas, supra, 46 Cal.4th at see at Cal.3d p. p. sent one month” before election was cam [packet “approximately improper circumstances, But under other paign activity].) material distributed close in time to an election may nevertheless be informational. 1, 2002,

At Vargas was issue in newsletter mailed on October city a month before the (Vargas, supra, approximately November 5 election. Cal.4th at 13.) Rejecting claim that the demon- plaintiffs’ timing strated that the city engaged the court cited “a number improper advocacy, of factors the conclusion that supporting] of the newsletter City’s mailing here at issue constituted informational (Id. rather than at activity.” 38.) (Id. those factors were p. Among 39.) tone and content. Addition- p. the court ally, found it “significant this newsletter particular regular edition of the City’s newsletter that quarterly general as was mailed practice residents, to all rather than a city edition created and sent to would-be special voters, because of the specifically election upcoming Measure O.” regarding (Id. case,

In this as in Vargas, several factors the conclusion the e-mail text represents permissible informational rather than activity, impermissible campaign activity. (Vargas, supra, 46 Cal.4th at Two such factors are content, (Ibid.) its tone and discussed above. Another is the fact e-mail was one in a series of communications distributed as “an regular (Ibid.) e-mail blast” to the in the recipients database. its Considering style, tenor, and timing, we with the trial court’s agree determination that the text of the e-mail is informational. however, attached editorial a different compels analysis, as we now

explain.

3. Substantial evidence the determination that the supports attached

editorial constituted advocacy. As the trial court recognized, editorial attached to the e-mail Alvarado advocates expressly against Measure C. That characterization is supported by the evidence and the law. The editorial begins: “COUNTY FACES UNIONS; [f¡ POWER PLAY BY VOTE NO on C.” The editorial exhorts the C, voters Measure which “reject is the union and vote for proposal, B, A Measures which are the to restore balance and supervisors’ attempt guard interest.” Commission,

Under Fair Political Practices regulations promulgated by nomination, “A advocates’ or defeat of communication election ‘expressly a candidate or the or defeat of a measure if it contains qualification, passage for,’ ‘elect,’ words such as ‘vote ‘cast express advocacy your ‘support,’ ballot,’ ‘defeat,’ for’ or refers ‘vote otherwise against,’ ‘reject,’ ‘sign petitions communication, to taken identified candidate or measure so that clearly whole, an (Cal. as a result in election.” Code unambiguously urges particular (b)(2).) tit. The editorial terms employs subd. Regs., specifically § in the as words of regulation advocacy. identified express the fact that the attachment constitutes express Despite unquestionably it falls within the certain advocacy, statutory provision exempting trial correctly as the court concluded. activity,

4. The attachment within statutory exemption. falls e-mail, to the the trial court rejecting challenges plaintiffs’ applied so, the cited both found in section 8314. In court statutory exemption doing “intent inform the on the differences between Alvarado’s ... recipients A, B, C costs on the November 2004 ballot” the minimal Measures involved in the e-mail and attachment. sending Intent

a. observe, there is As no aptly authority suggesting plaintiffs determination intent into the of whether a communica- communicator’s enters however, hand, On the other statutory exemp- tion constitutes advocacy. mail, calls, and “the tion does cover referral of unsolicited political telephone (§ (b)(2).) entities.” subd. political visitors private staff, case, Cunningham, there from Alvarado’s chief of testimony In this editorial. testi- Cunningham reasons for attaching about the supervisor’s confusion, concern over voter fied that Alvarado’s decision was prompted According Cunningham, a number of which had been expressed by people. that it a good because she contained thought Alvarado included editorial three measures. explanation editorial’s inclusion constitutes do not address whether the

The parties (b)(2).) (§ But we need entities.” subd. referral “to private political re- use of any public our determination given resolve question, was minimal. sources resources Minimal use public

b. e-mail, court heard the use of resources to send Concerning witnesses, who Cunningham, two the first being prepared from testimony distributed the e-mail at Alvarado’s direction. testified that Cunningham she created the text of the e-mail in about 10 minutes her lunch during period once, that she distributed the e-mail with the of a button. There was also push on this from testimony who “It point Agnos, explained: insignifi- was really cant in the sense that an e-mail to 1500 once hit the you button people it is instantaneous.” prepare described the cost of the e-mail Agnos as “decimal dust.” evidence, of light this the court determined that “the properly expendi-

ture was minimal.” That determination the court’s of the supports application resources, statutory for “incidental and minimal exemption use of such public as or office equipment used (§ space,” activity. (b)(2).) subd. It also the conclusion that there no supports “use” of public defined, resources as since statutorily there was neither a to Alvarado nor gain a loss to the County monetary may (§ 8314, “for which a value be estimated.” (b)(4).) subd. conclusion,

In reaching this we are cognizant that technological advances permit distribution of easy information with a negligible of expenditure time, employee using such as equipment that are computers telephones already (See place. (b)(1) subd. [allowing § “the incidental and resources, minimal use of public such as or office equipment space, personal purposes, an including call”].) occasional Our decision telephone should not be read as the use of sanctioning resources for public advocacy, however easily be may accomplished using today’s But on technology. here, the record presented under section use of any resources public was minimal.

5. There was no Stanson violation.

For a Stanson violation to occur, funds” must be “public expended “to (Stanson, promote in an partisan position election supra, campaign.” Cal.3d at 209-210.) “In the absence of some evidence creation of [that] the text involved the manner, expenditure funds in public some its political Voters, tone is irrelevant.” (League Women supra, Cal.App.3d

As just explained, evidence shows that any expenditure Keller, resources was de (See minimis. Cal.3d at Bar [State itself, course, president’s “speech cost the State Bar That nothing”].) being so, this record Stanson violation. no presents

SUMMARY OF CONCLUSIONS I. The Stanson in its labor negotiations. First, did not violate the MMBA authorized the discussion of binding interest arbitration table, at the the fact it was as a voter bargaining despite presented Second, initiative rather than contract clause. substantial evidence supports the trial court’s that there arrangement determination was no quid pro quo higher Finally, for the unions’ silence. did not pay political the initiative mea- engage impermissible campaign activity by discussing in its sure labor with the unions. negotiations violate Stanson. Substantial

II. The e-mail did not evidence supervisor’s text the determination that of the e-mail was informational. supports Furthermore, in and e-mail with the its any expenditure preparing distributing attachment was minimal.

DISPOSITION

The judgment is affirmed. J., concurred.

Duffy, MIHARA, J.,P. Acting are Concurring taxpay- Dissenting.—Appellants (the the County) ers who filed a of Santa Clara for complaint against County relief a writ of mandate declaratory and for injunctive coupled petition that the had violated or declaration prohibition. sought County Appellants v. 697, Stanson Mott (1976) Cal.3d 206 551 P.2d Cal.Rptr. 17 [130 1] (Stanson) in the future. barring and an such conduct injunction Appellants used funds electoral County illegally that the had alleged public partisan would with a ballot measure that have in connection local purposes proposed labor between the and the County mandated interest arbitration of disputes the obtained a Although unions representing County’s employees.1 appellants 2004, the in 2007 County prevailed October injunction preliminary trial. (1) court that the County contend that the trial erred in finding

Appellants about ballot to “meet and confer” with the unions obliged proposed was measure, to (2) had not offered a concluding County “quid pro quo” unions for the unions not exchange supporting of better contracts measure, of a (3) actions determining ballot proposed did out e-mail the ballot measure an sending regarding supervisor electoral amount to the use of funds partisan purposes. on the The trial court’s decision

Our standard of review is well settled. for abuse of or relief reviewed declaratory injunctive of granting propriety 1 employer and a union submit agreement an between an “Interest arbitration involves a new contract to an arbitrator arbitration disagreements proposed content of labor about 82, (1999) (City People Firefighters rel. Fresno Cal.App.4th 96 Fresno ex v. 71 [83 panel.” 603].) Cal.Rptr.2d

277 (Hannula v. Hacienda Homes 442, (1949) discretion 34 Cal.2d 448 P.2d [211 v. Eastin relief]; (1995) [declaratory Salazar 9 Cal.4th 302] [39 relief]), 890 P.2d but factual Cal.Rptr.2d underlying its [injunctive 43] v. San (Shapiro Diego are determinations reviewed for substantial evidence City Council (2002) 631]), its Cal.App.4th Cal.Rptr.2d [117 (City Los Angeles resolution to de legal issues is novo review v. subject Los Olivos Mobile Home Park Cal.App.3d [262 446]). Cal.Rptr. Stanson contend that violated

Appellants by seeking during labor to obtain a commitment not to negotiations unions support ballot measure. Stanson does not this proposed contention. Stanson, Recreation, Mott was the Director of of Parks and Department $5,000 and he authorized the allegedly a bond expenditure promote {Stanson, measure that had been ballot on the placed Legislature. Mott, 17 Cal.3d at Stanson sued but action was Stanson’s dismissed {Ibid.) on demurrer. On the California Court held appeal, Supreme because, Stanson entitled his “at pursue allegations least in the authorization, absence of clear and a explicit legislative public agency may not funds expend public to a in an promote election partisan position {Stanson, . . . .” 209-210.) at pp. Stanson

The County that did argues not it from with prohibit negotiating the unions the ballot regarding measure because such proposed negotiations were legislatively authorized the by Meyers-Milias-Brown (the MMBA) Act Code, (Gov. 3500 et The MMBA § the to “meet seq.). required County hours, confer in faith good and other terms and regarding wages, conditions Code, of with” the employment public employee (Gov. unions. § permissible concede that Appellants arbitration are a measures” “[i]nterest subject collective bargaining, they but contend that this subject matter was off-limits the during County’s negotiations with the unions because the ballot measure proposed was under consideration time. at that The trial court found that Stanson did not because the MMBA authorized the apply County to with the negotiate unions the measure. regarding ballot proposed

The of whether the question MMBA authorized the to County negotiate with the unions the regarding interest arbitration ballot measure a proposed is law, and I with the trial court question agree that the MMBA such provides It is authorization. inconceivable that the be would from County precluded in its labor with including negotiations the unions the of a subject proposed ballot measure- on interest when arbitration the a passage such potential measure could be future expected substantially impact with relationship employees the unions. Where a represented by authorized, are agency’s actions that fact legislatively agency’s are does actions related to ballot measure not establish violation proposed Stanson; actions fall within the such Stanson’s express exception rule. (Stanson, supra, 209-210.) 17 Cal.3d at general that, contend even if the was authorized to discuss the Appellants County unions, ballot measure with the was from prohibited proposed the unions a of better for the offering exchange contracts “quid pro quo” not measure. trial court made a unions ballot supporting proposed that there no as the did not sweeten pro factual was finding quid quo the terms its to the unions in order to obtain unions’ proposals not to ballot measure. acknowl- agreements proposed Appellants evidence, we they review this for substantial but contend edge finding it is not because testimony substantial evidence which supported finding it is the trial court’s is trial Since supports implausible. supported incredible, I agree which was testimony inherently my colleagues the trial substantial evidence that there court’s finding supported by no and therefore must be quid pro quo upheld. that the and dissemination of the Finally, maintain appellants preparation e-mail from Blanca Alvarado violated both Government County Supervisor Code section and Stanson. staff, that, trial chief of testified at

Kristina Alvarado’s Cunningham, election, before her to the e-mail and month Alvarado asked prepare to it no on the interest arbitration attach an editorial voters vote urging “check told Alvarado that she would with Ann Cunningham ballot measure. [Ravel, of the e-mail. Cunningham about county propriety counsel]” and to her for a few minutes” about e-mail. “just Ravel telephoned spoke the e-mail. then Cunningham about 10 minutes Cunningham preparing spent and took Ravel’s office so out the e-mail the attachment and them to printed e-mail sent. Cunningham that Ravel could review them before the of time that during to office and out” a period returned her “put [the e-mail] 1,500 She sent the e-mail to “could be called lunchtime.” my recipients, most, all, court found that not whom voters. trial if of were resources, use “was an incidental and minimal of public Alvarado’s e-mail 8314” and also a Code section and did not constitute violation Government did not violate Stanson. “(a) It unlawful for any is provides:

Government Code section officer, local any state or including appointee, employee, elected state or local consultant, a to resources for campaign to use or others use permit public or not law. by which are authorized or or other activity, personal purposes [f] those (1) ‘Personal means of this (b) purpose’ For section: purposes [f] or enjoyment, gain is for personal private which activities purpose or an endeavor advantage, outside not related state business. ‘Personal resources, does include incidental and minimal use of purpose’ public such as or office an equipment space, including for personal purposes, (2) occasional an telephone call. means activity’ activity ‘Campaign H] a as constituting contribution defined in 82015 or an as expenditure Section defined Section in 82025. does not include the incidental ‘Campaign activity’ resources, use minimal such as or office for public equipment space, mail, the referral unsolicited tele- campaign purposes, including political entities, calls, and (3) phone private visitors ‘Public resources’ political [f] any means or asset owned the state local or property by any agency, to, land, facilities, funds, but not buildings, limited including, equipment, time, travel, vehicles, telephones, supplies, state-compensated computers, (4) ‘Use’ means a use of which resources is substantial public enough [f] result a gain in or to the a or advantage user or loss to the state local any Code, for which a agency monetary (Gov. value be estimated.” may § Because contend that the appellants dissemination of the preparation e-mail was within “campaign activity” meaning of Government Code section of their contention on the validity rests necessarily premise that Alvarado or others to use resources a permit[ted] “use[d] activity” within limited definition of very “campaign activity” set forth Code (b)(2).2 “(b) Government section subdivision For of this purposes section Code section . . . [Government [f] 8314]: [f] ‘Campaign means an activity’ a contribution as activity constituting expenditure in Section an 82015 or as Section 82025.” (Gov. defined defined Code, (b)(2), subd. added.) italics & underscoring § Government Code “ section 82015 a provides: ‘Contribution’ means a payment, forgiveness a loan, a a of a loan third an payment or enforceable to make party, promise a extent to the that full and consideration payment except is adequate received, unless it is clear from the surrounding it is not circumstances Code, made (Gov. for political (a).) subd. Government purposes.” § “ Code section 82025 a means a provides: ‘Expenditure’ forgive- payment, loan, ness of of a third an loan enforceable payment party, to make a unless it clear from the promise payment, surrounding circum- Code, that it is (Gov. stances not made political purposes.” § No evidence was trial that the produced and dissemination preparation e-mail, of the which claim was activity,” was a appellants “campaign loan,” kind, of a “payment” any “forgiveness of a or a to make a “promise Hence, the of the did payment.” dissemination e-mail not fall preparation within the very exclusive definition of to which “campaign activity” Government Code section the trial court did not applies. Consequently, 2 Appellants do not appeal public “personal contend on that Alvarado used resources or Code, (a).) (Gov. other which are purposes not authorized law.” subd. § in contention that and dissemination rejecting err appellants’ preparation section of the e-mail violated Government Code 8314.

However, the trial court erred in no finding contention that appellants’ Stanson violation has merit. in Stanson or of a its even

Nothing expenditure progeny permits funds for assert My colleagues minimal amount of public campaign purposes. that Stanson does cases not to de minimis but the expenditures, they apply to uniform reluctance judicial cite do proposition. “[The] an of funds for election rests sanction use public campaigns implicit [on] constitutional that such raise serious recognition potentially expenditures of nation’s democratic electoral process A fundamental this precept questions. or bestow an that the not ‘take sides’ election contests government may is on factions. A danger unfair one of several advantage competing principal of in the that the holders country’s possibility feared our founders lay to would use official authority power improperly perpetuate governmental themselves, Madison, allies, The Federalist (see, e.g., or their in office Papers, Richardson, 53; of the Presidents Nos. Messages Papers election, Jefferson)); of funds (President the selective use public 98-99 course, of an distortion of raises such specter just improper of campaigns, {Stanson, 217.) 17 Cal.3d at electoral the democratic process.” use mount an election which treasury campaign to public “[T]he issues which our Constitution leave influence the resolution of attempts Const., II, (see 2) art. does present the ‘free election’ of the Cal. § people {Stanson, at p. to the of the electoral process.” serious threat integrity any use Thus, in an electoral contest funds to favor one side public it threatens the of the integrity process. because improper found that there was no Stanson violation because style, trial The court tone, the e-mail was primarily of the e-mail reflected that timing e-mail finding. this stated The evidence does not support informational. attached an editorial the ballot measure and opposition an editorial The dissemination of of the measure. the passage opposing informational rather merely can be deemed ballot measure hardly opposing “dissemination, Stanson explicitly Indeed, identified than advocative. by private proponents literature prepared expense,

public than an rather “campaign” activity a ballot measure” as a opponents activity. {Stanson, supra, 17 Cal.3d “informational” minimal that some beyond established

Cunningham’s testimony dispute the e-mail discussing this e-mail. After funds was on expended level Alvarado, her worktime preparing 10 minutes of Cunningham spent with e-mail, the e-mail discussing at least few minutes to and Ravel devoted and Cunningham it after reviewing had Cunningham it. While prepared lunchtime, testified Cunningham that she it out” her actually “put during this was a reference to the time when she sent the actually e-mail. Her discussion Alvarado, e-mail, her of the preparation Ravel’s conversation with Cunningham review of the e-mail occurred clearly during compensated worktime, and the e-mail was sent through system. computer While the funds public connection with the expended e-mail have might amount, been a small only evidence undisputed established that some funds was expended for the amount of the ballot purpose opposing measure. It follows that preparation dissemination of the e-mail Stanson, and, violated least, at the very were entitled to appellants declaratory {Stanson, relief to that effect. 17 Cal.3d at Whether injunctive relief is merited because “similar are expenses threatened in the future” is an issue that I would have the trial court consider on {Stanson, remand.

I would reverse the trial court’s judgment and remand with directions to the trial court to grant was a Stanson relief declaratory that the e-mail stating violation and to reconsider whether are appellants entitled to relief injunctive to that regard claim.

A for a petition 18, 2010, rehearing denied February and the opinion was modified to read Mihara, J., as above. printed was of the that the opinion petition should be granted. Appellants’ for review petition Supreme 12, 2010, Court was denied May SI80673.

Case Details

Case Name: DiQuisto v. County of Santa Clara

Court Name: California Court of Appeal

Date Published: Jan 22, 2010

Citation: 104 Cal. Rptr. 3d 93

Docket Number: H032345

Court Abbreviation: Cal. Ct. App.