For Immediate Release: March 22, 2006
Contact: Ned Wigglesworth

Watchdog Offers Solution to Dilemma Posed by First 5 Commission's Misspending of Public Funds

If Proposition 82 proponents don't reimburse the state for the millions in public dollars apparently spent to promote an upcoming ballot initiative, the First 5 Commission should spend a comparable amount to air ads with credible opposing viewpoints to "Preschool for All", according to nonpartisan campaign watchdog TheRestofUs.org.

"Unfortunately, the First 5 Commission let the genie out of the bottle when it spent $23 million in support of its chairman's ballot agenda," said Ned Wigglesworth, analyst for TheRestofUs.org. "While some of the investigations currently pending or underway might eventually restore the funds, none of them will correct the enormous, unfair, and possibly illegal financial advantage Proposition 82 received from the public funds spent by the First 5 Commission. Only two ways exist to put the genie back in the bottle prior to the election: 1) Either Mr. Reiner's Prop 82 committee or the First 5 commissioners and consultants personally should reimburse the state; or 2) using a narrow legal window, the Commission can level the playing field by spending the same amount of money on an ad campaign which provides legitimate and credible opposing arguments to the universal preschool ads run previously."

The state auditor, the Fair Political Practices Commission, and the Sacramento County District Attorney, are looking into whether the California First 5 Commission's $23 million pro-preschool ad campaign illegally supported Proposition 82 - the pro-preschool ballot measure of First 5 Chairman Rob Reiner - which is scheduled to appear on the June 6 ballot. According to reports, Governor Schwarzenegger told the Fresno Bee yesterday that he would not fire Reiner or ask him to resign, saying that Reiner is "innocent until proven guilty".

"Sufficient questions have been raised about Mr. Reiner's role in these ads and in his supervisory duties as chairman to render him unfit to continue to serve as its chairman," said Derek Cressman. "If Mr. Reiner refuses to step down from the Commission, the Governor should fire him. The standards for holding public office in California should be significantly higher than the standards for staying out of prison."

In November, Governor Schwarzenegger asked Brent Wilkes to resign from the Del Mar Fair Board and the State Race Track Licensing Commission, although Wilkes has not been convicted, or even indicted. Regardless of the governor's double-standard, Reiner is no longer fit to serve as the First 5 Commission chairman, said the watchdog group.

Some further issues:

Potential Liability
The consequences facing anyone found of violating the prohibition on spending public money for campaign purposes are severe.

California Government Code Section 8314 makes it "unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity, or personal or other purposes which are not authorized by law." If Mr. Reiner, any other Commissioner, or any of the Commission's consultants are found in violation of this prohibition, they could be liable for fines of $1,000 a day and up to three times the value of the misspent resources under 8314(c). (emphasis added)

Section 424 of the California Penal Code makes it a crime for an officer of the state or person in charge of public money to "appropriate the same, or any portion thereof, to his or her own use, or to the use of another" without authority of the law. Such a crime is "punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state."

Section 425 of the Penal Code makes such crimes a felony: "Every officer charged with the receipt, safe keeping, or disbursement of public moneys, who neglects or fails to keep and pay over the same in the manner prescribed by law, is guilty of felony."

A Narrow Exemption
California Government Code Subsection 8314(d) provides an exemption to the prohibition on the use of public resources for campaign purposes, stating that public resources may be spent for providing information to the public about the effects of a bond issue or ballot measure, provided that the informational activity is otherwise authorized and that the information provided "constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure." (emphasis added)

Few would argue that either an ad that says about preschool: "(w)hen kids go, we all benefit," or that a "Preschool for All" ad campaign constitutes a fair and impartial presentation of the merits of universal preschool education.

Lockyer Decision May Cost State Recovered Funds
Three public bodies are currently looking into or conducting investigations of the First 5 ad campaign, including the State Auditor, the Fair Political Practices Commission, and the Sacramento County District Attorney, who is doing so at the request of Attorney General Bill Lockyer. In his letter to Senator Chuck Poochigian responding to Poochigian's request that Lockyer investigate the matter, Lockyer correctly stated that Government Code Section 8314 allows state, county, or local officials to bring a civil action to recover public resources illegally spent for campaign purposes.

What the Attorney General failed to mention in his letter is that any funds recovered will be recovered by the treasurer of the jurisdiction that brings the case. Thus, according to a plain reading of Government Code Section 8314(c)(2), if the District Attorney of Sacramento County successfully recovers the funds, that money will go to Sacramento County, not the state treasury.

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TheRestofUs.org is a nonpartisan campaign watchdog.