Auditor-Controller OKs Mailers, But State Watchdog Has Yet to Rule

Supervisors Andrew Do and Lisa Bartlett, the two members of the Orange County Board of Supervisors who serve on the CalOptima board.

County Auditor Controller Eric Woolery, after a meeting with County Counsel Leon Page, has decided to allow payments to go forward for questionable mass mailers sent by two supervisors.

In early April, Woolery said he was holding up payments on nearly a dozen mailers sent by the offices of supervisors Andrew Do and Lisa Bartlett based on concerns that they might violate the state Mass Mailing Act, which generally prohibits elected officials from mentioning their name on publicly-funded mailers, except for a few exceptions.

Woolery’s action came after Voice of OC reported on a mailer for a job fair sent by Do and one sent by Bartlett advertising the South County Pet Expo. Both mailers use the names of the supervisor three times, in a return address, letterhead and again to invite residents to join their supervisor at the event.

On Thursday morning, Woolery said he decided to release the payments after Page explained the county policy and said attorneys from his office had consulted with the state Fair Political Practices Commission.

Although Woolery had initially asserted that the law only allows one reference to an elected official in a publicly-funded mailer, now he points to exceptions listed in the law that allow officials to be named.

“Mr. Page gave us justifications for the mailers, and it was based on some information he got from the FPPC. Because of that, because I’m limited in the scope of my review, and the vendors were acting in good faith, I went ahead and released his payments,” Woolery said.

Woolery said the county “cleared” the mailers with the FPPC by providing a copy of a mailer sent by Do’s office and communicating by email with their staff.

However, the county did not request a formal advice letter from the FPPC on the mailers, which is customary when an agency has questions regarding whether an action or a policy complies with various state laws having to do with government ethics.

The only email from county attorneys to the FPPC in the last two weeks was one from Senior Assistant County Counsel Ann Fletcher to a staff member clarifying a rule on whether a reference to a supervisor’s district is considered a reference to the elected official.

FPPC spokesman Jay Wierenga said that the county has not asked them to review or sign off on the overall legality of the mailers. “The ask from the county looks to me to be very specific,” said Wierenga.

Meanwhile, the FPPC has yet to decide whether it will launch a formal review of a complaint regarding Do’s mailers filed by Garden Grove councilman Phat Bui, one of Do’s opponents in the race for First District Supervisor.

While the FPPC does not comment on specific issues under review, FPPC staff said in an interview that in general, exceptions apply to the mailing as a whole, and agencies should pick the one exception that is most applicable to a mailing.

However, under some exceptions in the law, more than one mention can be appropriate, although it’s not clear how many mentions would constitute a violation.

Page’s office, citing a policy of not speaking to the media, has not commented on its justification for the approving the mailers. County spokeswoman Jean Pasco has also declined comment on Woolery’s decision or on the Mass Mailing policy.

Pasco, however, asserted in an March 31 email to Voice of OC that “the Mass Mailing Act allows multiple mentions of an officeholder as long as there is an applicable exception for each mention.”

And on April 1, Page also wrote a three-page memo to Woolery outlining exceptions in state law that allow for a reference to a public official on mailers, although he does not engage the question of how many mentions are allowed on a single piece of mail.

“Under these exceptions, mailers that feature or reference an elected official may be distributed in unlimited numbers without violating the act,” the letter reads.

Whether this reading of the state law will hold up won’t be known until the FPPC renders its decision on the complaint filed by Bui.

Woolery, who is independently elected, has tried in the past to push county supervisors to give him his own legal counsel, arguing that Page, who also represents the Board of Supervisors, has an inherent conflict of interest when it comes to issues with the board.

“I asked for legal counsel and the board didn’t give it to me, so I have to rely on county counsel,” Woolery said.

Correction: A previous version of this article mistakenly attributed a quote from Auditor Controller Eric Woolery to County Counsel Leon Page.  

Contact Thy Vo at tvo@voiceofoc.org or follow her on Twitter @thyanhvo.