Monday, April 30, 2007

The things you'd never know if it were up to our local MSM

Bond campaign loses $1.3M suit
‘Building Our Future’ committee ran illegal ads, says Superior Court judge

By David Tell, Messenger editor

From the April 16 issue of
The Midtown Messenger

Last year’s city bond proposal proved fairly controversial for a ballot item the details and general thrust of which tended to have a “my-eyes-glaze-over” quality. Still, when you’re borrowing and spending more than $800 million that city taxpayers will have to pay back, there are folks who want to see all the i’s dotted and t’s crossed on everyone’s behalf.
En route to doing so, one set of watchdogs last fall won a $1.3 million judgment against the political committee, Building Our Future, set up to promote the bond proposal. Superior Court Judge Michael D. Jones agreed with the plaintiffs that the committee had clearly violated state law governing required disclosures in its ads and signs touting the bond, and, per statute, awarded plaintiffs three times the amount spent on the illegal advertising.
With the city’s and state’s main mass-circulation daily paper, The Arizona Republic, closely tied to downtown power interests and thus largely mute if not an outright cheerleader on many such matters, it was the feisty folks at the Cave Creek weekly the Sonoran News who gave the bond proposal a needed critical eye. That coverage was what led to the lawsuit, as the reporter was goaded to action not only by the resistance and red tape she encountered complaining about the problematic ads, but also by the blowback she received as she began to publish her findings.
Linda Bentley, at the paper since 2001 (her entire journalistic career), was the reporter responsible for some well-researched articles on the bond that pulled no punches either in body or headline.
An article in the Feb. 8 - 14, 2006 issue began to look at the apparent advertising violations under A.R.S. (Arizona Revised Statutes) § 16-912.01. The story was headlined “Phoenix blows off campaign advertising violations” with a subhead “Mayor pimps for propositions,” and it outlined apparent violations of disclosures (when even present) as inadequate in text size, and more importantly, failing to identify, as required, the top four financial donors to the bond campaign effort.

Lawsuit Is Less Meaningful Redress
The article also detailed the reporter’s frustration with the labyrinthine route she followed attempting to find out who might be responsible for enforcing compliance on the committee as to its advertising.
That’s a key point, because, as plaintiff’s attorney Carol Lynn de Szendeffy said, “If you don’t enforce [the statute’s requirements] prior to the election, what good is the election?” Good enough to get the bond passed, clearly—but fallen well short as to the public’s right to know who was behind the huge bill they’ll be footing.
Statute seeks to mandate the disclosure of that information so that citizens might get some insight into who potentially stands to benefit from the money to be spent.
“All these companies stand to gain big contracts,” Bentley said in an interview. “Promises have been made, I would think.”
Among the seven propositions that made up the overall bond are a number of spending items for neighborhoods and historic preservation.
Even in the cases where the donors were disclosed, Bentley found, the identifications were often inaccurate. For the most part, the ads “weren’t disclosing who was funding the campaign,” Bentley said. One funder was “Macerich Corp., parent company of [Phoenix-based shopping center developer] Westcor. They had just purchased Westcor. [Macerich] only became a foreign corporation in Arizona the day before the election, weren’t allowed to do business in the state until a day before the election,” she said. The company contributed $50,000.
“If one of your highest funding sources is from out of state, you have to disclose that as well. They didn’t do that even, cited Westcor as a top funder,” Bentley said. “All the advertising that says Westcor is incorrect.” If seemingly a technicality, the identification mixup applies only to ads that contained the disclosure; as stated, many if not most did not, at least at first.

Proponents ‘Buying the Election’
“My interest in becoming a plaintiff [emerged as it became] very blatantly obvious that they were buying this election,” Bentley said.
“I covered it prior to filing the lawsuit; I filed a complaint when I saw they had illegal advertising; [then City Clerk] Vicky Miel said they forwarded it on to the city attorney. But the advertising continued on” in violation, Bentley said. “They just thought they were going to blow me off.”
Energized, Bentley said she “went thought their campaign finance report, which was mumbo jumbo—did they put all their receipts in a shoebox and shake it? I think they did it the way they did to keep people from being able to understand it, see dates and the order of donations and expenditures. I sorted it out, put it in a spreadsheet.”
One of the committee’s defenses about absent disclosures was that they thought yard signs could be categorized with campaign promotional items such as pen, pencils and buttons, which are obviously too small to contain much printed information. Judge Jones laughed that one out of court, writing “The enumerated [exempted] items in the statute are all quite small in actual size. Although a yard sign is small in comparison to a billboard advertisement, it would be a stretch to place it in the same category as the other items listed within the statute under this ‘small item exemption,’ such as buttons, pens and bumper stickers. A yard sign would have more in common with other sign advertisements and billboards, which clearly are not included in this list of exceptions. Thus, reason compels me to conclude that the yard signs are not ‘small items’ and are not exempt from the disclosure requirement.”

Defense ‘Tortures’ Law’s Meaning
The statute also requires that disclosure be in a size as the majority of the text in the advertisement. The committee, in an attempt to comply after being notified of disclosure deficiencies, went around putting stickers containing disclosures on signs, in fine print, at a word length purporting to make the disclosure itself the majority of the text. That didn’t fly with the judge either.
“Defendant argues that, because the disclosure contains more words than the main text of the ad, the disclosure itself constitutes the majority of the printed text. This interpretation leads to the absurd result that BOF’s disclosure could be virtually any size, as the disclosure will always be as large as itself,” Judge Jones wrote. “Such an interpretation tortures the plain meaning of the statute.”
It’s not that the city did nothing in response to Bentley’s complaint, though they may have dragged their feet even when she found the right channels to go through. Larry Felix, an attorney in the Law Department, said he did advise the committee that Bentley was correct in the complaints she was pressing.

City: We Told Them to Cut It Out
“We did get complaints filed with us about the advertising, and we directed the people to make some corrections. The opinion pretty much agrees with what we told the people,” Felix said. He added that he did not advise the committee they could satisfy the text size requirement by adding words in the disclosure. ‘We never said that; we said if you put the stickers on, they had to have the proper size of the text. We never felt that the disclosure language could be considered when determining what size text had to be used.”
In a subsequent article, Bentley questioned proponents’ assertion that the bond would not raise taxes, and argued that it was padded with projects for favored entities elevated above others in what would otherwise be a competitive grantmaking or prioritized budgeting process. She was not the only one making such allegations; in fact she quoted, among others, Ahwatukee activist Greta Rogers, who in this paper’s Viewpoints section argued that the bond was improperly seeking to fund the capital projects of a variety of non-profit groups. Others objected to the inclusion of ASU’s downtown campus—state-level facilities—in the funds. “Friends of ASU” was one of the top four donors to the campaign, at $34,500.
“I’m not surprised that [the violations and lawsuit] happened,” Rogers said. “The [lack of ] oversight that goes on down there [at City Hall] in very many cases—many more than this—nobody’s brought to their attention by using the legal system.” She said the city in its size and complexity has outgrown the skills of City Manager Frank Fairbanks, whom she called a legacy employee whose father worked in City Hall before him, she believes.
Rogers said what surprised her was that she hadn’t seen report of the suit and the award; then she corrected herself, saying Republic reporters “are kept on a short leash.”
As for city management in general and the bond campaign in particular, “Former Mayor Paul Johnson was the chairman of the executive bond committee; he and [Mayor] Phil Gordon are like Mutt and Jeff but two peas in a pod,” Rogers said. “I read in the paper this morning that Gordon’s going to have a new executive assistant. He [previously] got George Weiss, who got it after [Gordon’s former chief of staff and Sky Harbor Administrator David] Krietor was bumped up to the 12th floor; [Weiss] has been a political hack at the state and city, he just bounces from one place to the other. [Former Deputy City Manager and now Gordon’s new Deputy Chief of Staff Ray] Bladine, he was executive assistant to Johnson. I thought, ‘Isn’t this just cuter than kids in nursery school.’”
Johnson chaired the bond campaign, and he said he “was involved” in promoting the bond, “but not in this issue [remedying the deficient disclosures].”
He said the committee’s attorney Andrew Gordon, or a campaign consultant named Gary Casa, would be best able to respond to any questions.

Disclosure, Message Vie for Space?
“The only issue that was given to us during that period, via Andy Gordon [was], if what they were requesting was true, three-quarters or one-half of your sign would have your disclosure and you wouldn’t have room for your message. If that was the case, you couldn’t get your message out,” Johnson said. “It was a free speech issue; he was very exercised about it.”
Johnson said the law is complicated and thus difficult to comply with but that he understands its ultimate point, that for voters, “The one issue is the public disclosure” in properly understanding possible agendas behind raising and spending public monies.
Judge Jones in his ruling found that under a variety of precedents, the “state interest” in providing voters with pertinent disclosures outweighed alleged free speech issues, and that the statute’s disclosure requirements are sufficiently “narrowly tailored” in upholding that interest to be constitutional.
Gordon did not return a call seeking comment.

Us, Comply? No One Else Had to
Jones’ ruling has been appealed to the state Court of Appeals; “Basically they want to challenge the constitutionality” on free speech grounds, de Szendeffy said. In her view, in his ruling, “Judge Jones goes through each point they raised and addresses it. They were grabbing at straws. Judge Jones’ opinion is very succinct and does a good job of explaining what the law is. One of their arguments was actually ‘They shouldn’t have to comply with the law because nobody did before.’”
On that point, Bentley said the suit was the first test of the statute, revised in 2001; de Szendeffy wasn’t sure of that. But again, the suit after the fact and its remedies skirt the real issue, which is that the election could have gone the other way if promoted fairly. De Szendeffy provided an example of a previous instance, where the County Attorney’s Office sued the campaign committee “Yes on 400” to gain their compliance on disclosures during the 2006 campaign for that initiative, among many placed on the statewide ballot last year.
De Szendeffy believes in this case it should have been up to the City Attorney’s Office to better secure compliance on advertising a city ballot proposition, and she wrote not only to Felix (and Paul Johnson) but to Felix’s boss, City Attorney Gary Verburg, seeking that they proactively enforce the statute on the bond committee. Only when they did not did the lawsuit ensue.
Bentley said, as the real remedy, she feels the election result should have been overturned.
As for Bentley’s role as a plaintiff, journalistic ethics looks askance at a reporter becoming part of the story they’re covering. Granted, Arizona is home to a number of editors and publishers who have become prominent activists on their soapbox issues as journalists. A ready example is Chris Simcox, editor and publisher of the Tombstone Tumbleweed, who has helped spearhead the anti-illegal immigration Minutemen group. The cover tagline of the Sonoran News is “The Conservative Voice of Arizona,” and perusal of a recent issue also showed much of its editorial hole occupied with articles concerning the hot-button illegal immigration issue.
For Bentley, covering a case she’d decided to get involved in was a practical necessity on a paper the size of hers, which has only one other reporter, she said. And her involvement had the publisher’s blessing.
As for her general activist and muckraking credentials, Bentley said she wasn’t really a rabble-rouser prior to becoming a reporter. “I used to write a letter to the editor now and then, engaged in a lawsuit against Army of Corps of Engineers” but was by no means a serial litigator, she said. Prior to joining the Sonoran News, “I ran a general contracting company and did tilesetting,” Bentley said. As a citizen and a journalist, her interest is “pretty much [in] the rule of law. I gave the information [on the advertising violations] to the city, they got to continue advertising illegally; the only way to stop it is to sue them.”
Bentley said she tried to interest others in bringing the suit. “What you find out, most people, you give them the information, they just don’t know what to do. There’s only so much time you have in your life, you can give them the information, but they want you to fix it for them too. I see something corrupt, I want to fix it,” she said. “A police officer comes across something wrong in the course of his duties, he doesn’t want to look the other way.”

‘Pretty Cut and Dried’ Case
When she began considering bringing the legal action herself, she got advice that said anyone could bring suit, but that she needed to find an attorney outside of Phoenix: “Not far outside, but you’re not going to get anyone in the city to touch it,” Bentley said she was told. “I showed it to Carol, she thought it looked pretty cut and dried; said she would take it on contingency.”
She said she also asked her friend Rusty Childress, owner of Childress Buick-Kia and an activist formerly on Proposition 200 and other issues, if he was willing to be a plaintiff. “I didn’t want them to bring up standing” for lack of a city plaintiff in the suit, she said.

After Threats, Got a Gun Permit
As a measure of the interests at stake, after her first article on the bond was published, “I started getting death threats,” Bentley said. “I had an idea who it might be, I still have the recordings. After I got the first death threat, I got a concealed carry permit” for a handgun. She said she received a second threat on her voice mail while at the Ben Avery Center off Highway 74 practicing with her gun, the day after her second story on the bond appeared.
Bentley said she believes she knows the source of the threats; “however, I can’t prove it. A friend sent me a recording; the guy did a radio interview, my friend e-mailed me a recording and I listened to it and the hair on the back of my neck stood up—he phrased his sentences the same way.”
Bentley said she complained to the Maricopa County Sheriff’s Department, which investigated. “Voice print matching isn’t as sophisticated as I thought it was, they couldn’t rule him out, couldn’t rule him in either,” Bentley said. “The detective said he tried to get them to say some of the same things [as were said in the threats to her, but was unsuccessful].”
The first threat, she said, was “Hey, Linda, you better grow some eyes behind your fucking head because you’re not going to live to see next month.” The second went “What’s up, you fuckin’ whore? I’m watching you. It’s Thursday around three and we have our eyes on you, you fuckin’ whore. You’re gonna die.”
Not only did her superiors support her lawsuit, “Actually, my boss said he was jealous because he’d never received a death threat. John Dougherty from New Times said ‘Those look great on a resume,’” Bentley wrote in an e-mail. She said the threats stopped after she detailed them in an article.
As for the lack of awareness within the city of the bond campaign violations and the successful lawsuit, Bentley blames the Republic’s dismissiveness. (The Midtown Messenger was alerted to the lawsuit by another critic of the bond.) Republic reporter “Monica Alonzo Dunsmoor kind of mentioned it when we filed it,” Bentley said. But after they won, Dunsmoor refused to do another article or was handcuffed by an editor, she said. “They’re a propaganda mill,” she said of the Republic.
David Tell, holder of a concealed weapon carry permit since 2004, was his class’s winner for excellence in both the classroom and field (marksmanship) phases of his training course. And that was back when refresher training was still required every four years to keep the permit and the burden of proof was still on the person using deadly force in self-defense. (In this statement, he’s not trying to warn or intimidate, much less challenge, any potential threateners—he’s just bragging about how well he still does back in school.)