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A narrow majority of Orange County supervisors Tuesday rejected most of the reforms proposed by two of their colleagues to place new restrictions on taxpayer-funded mailers that prominently feature their names.

The restrictions effort came amid concerns that supervisors have been using government resources to send what effectively are re-election campaign mailers.

Earlier this month, Supervisor Michelle Steel used taxpayer money to send 16,000 mailers to voters prominently featuring herself and District Attorney Tony Rackauckas as they run for re-election. The mailers invited recipients to RSVP for a “community coffee” with them at the home of a Costa Mesa City Council candidate.

While the mailer was sent to 16,000 voters, Steel’s staff knew the venue only could handle 50 people, according to county emails.

“This was a campaign mailer, plain and simple,” Supervisor Todd Spitzer, who is running against Rackauckas for DA, said at the Feb. 6 supervisors’ meeting.

Added Supervisor Shawn Nelson: “That mailer – very clearly – looks exactly like what it is. It’s an invitation basically to meet and greet to kind of get someone’s name out there, not to necessarily discuss [a] particular policy.”

And Supervisor Lisa Bartlett said Steel’s staff appeared to have not followed the advice they received from county attorneys about how to make sure the mailers don’t violate state law.

Steel has not publicly defended her mailers, or responded to her colleague’s statements, and plans to host additional coffee events in the coming weeks.

In response to Steel’s mailers, Spitzer and Nelson proposed a series of restrictions on county taxpayer-funded mailers, which would:

  • Require county mass mailings about public meetings to prominently display a public purpose for the event, and say that the County elected officer intends to attend the meeting. “An announcement of a ‘meet and greet’ or gathering alone without a clearly stated public purpose would be prohibited.”
  • Outlaw references in mass mailings to “more than one elected official except in specified circumstances for announcements of constituent meetings and County events.”
  • Ban references to election candidates in taxpayer-funded announcements for events.
  • Ban “the use of mass mailings to announce constituent meetings or County events held in private residences.”
  • Require approval from county attorneys of the legality of the mailer design and address list targeting criteria for event announcements “before such announcements may be produced or sent.”

Spitzer and Nelson placed their proposal on Tuesday’s meeting agenda, asking their three other Board of Supervisors colleagues to place it on the June primary election ballot for voter approval.

They needed support from one more supervisor to place the measure on the ballot, or to directly enact the reforms into county law through an ordinance.

With Supervisor Andrew Do previously defending Steel’s mailers, Supervisor Lisa Bartlett was positioned as the deciding vote.

In the hours before Tuesday’s meeting, Bartlett rejected most of the proposed reforms in an open letter she wrote to her colleagues, and offered a much more limited proposal, which was approved.

Stating a public purpose for events would be “impractical,” Bartlett wrote in her letter.

Limiting mailer mentions of multiple elected officials would lead to inaccurate mailers when other elected officials have a shared responsibility for an event, she wrote.

Requiring supervisors to get an OK from their lawyers on the legality of mailers “erodes the [county’s] chain of command,” Bartlett wrote.

And placing reforms on the ballot would be expensive, at $160,000, Bartlett added, noting that supervisors could pass reforms into law themselves through ordinance or resolution.

Bartlett proposed that supervisors instead direct staff to develop an ordinance requiring supervisors to “seek” their lawyers’ advice about mailers, but not have to follow it, and an ordinance banning taxpayer-funded mailers for events at private residences that feature county elected officials. County lawyers would develop guidelines and training for officials who do mailers.

With Bartlett the swing vote, the supervisors ended up approving her proposal on a unanimous vote.

Rejected were the proposed requirements that mailers state the event’s public purpose and have a sign-off from county lawyers, and the proposed restrictions against mentioning political candidates or multiple elected officials on a single mailer.

During the discussion Tuesday, Bartlett said supervisors shouldn’t have to follow the advice of their attorneys.

“Ultimately it should be the decision of the supervisor,” Bartlett said.

Spitzer pushed back, asking what county staff, who authorize the mailer payments, are supposed to do when a supervisors’ office wants to send out mailers that county attorneys say aren’t legal.

Bartlett replied that there has to be “personal responsibility” from each supervisor, and that the supervisor should make the decision on sending out the mailers.

And if a supervisor doesn’t follow the lawyers’ advice, “that’s why we have the FPPC,” Bartlett said.

She was referring to the California Fair Political Practices Commission, a short-staffed state agency that investigates state and local cases.

Nearly two years after the FPPC received a complaint about mailers Do and Bartlett sent during the 2016 election, the agency still is investigating.

Additionally, the FPPC only has the power to issue fines, while county ordinances can be structured to make banned actions a misdemeanor, punishable by up to 6 months in jail.

Spitzer continued to push back after Bartlett said existing enforcement through the FPPC is sufficient.

“That is a very significant issue that I’m sitting here wrestling with,” Spitzer said. “If we’re gonna allow [a supervisor’s] office to make a determination that’s not consistent with the advice of county counsel…I think that could be extremely problematic.”

The supervisors directed county attorneys to develop specific language and privately present it to each supervisor for feedback. Final language would then be brought before supervisors for a public vote at their March 13 meeting.

Do, meanwhile, made clear that if supervisors end up trying to restrict mass mailers, he would push to expand the scope of restrictions into additional taxpayer-funded methods the other supervisors use to feature themselves.

“We have so many ways to reach out to the public now,” Do said, citing methods beyond just mailers, like robo calls, Facebook ads, and other social media.

“And so…if we’re gonna go through the trouble of defining the use – the proper – of county funds…we call it the ‘mass mailer,’ but really it should be expanded to community outreach…to constituent outreach,” because not all of the supervisors use mailers, and “strategies evolve over time.”

In response, Bartlett suggested the scope of the scaled-down restrictions proposal apply to any time supervisors use their county events budget.

But Do noted the supervisors’ spending on events and mass communications is “not just confined to our event budget. It goes beyond that” to other types of county funds.

Voice of OC disclosed Steel’s mailers in a Feb. 5 article, and the next day a majority of the board – Nelson, Spitzer, and Bartlett – criticized her handling of taxpayer funds when it came to the mailers.

A few days later, campaign finance activist Shirley Grindle sent letters to Steel and Rackauckas urging them to reimburse taxpayers all costs for the 16,000 postcards they sent to voters featuring their names.

The known costs for the Steel-Rackauckas mailers were about $5,800 to print and send the mailers, and another $250 for food for the event guests.

If they don’t reimburse the costs, Grindle and fellow activist Bill Mitchell wrote they would sue Rackauckas and Steel to get a court order requiring them to pay back taxpayers for the mailer and event costs. Grindle has endorsed Rackauckas’ opponent, Spitzer, for DA.

Rackauckas’ spokeswoman has declined to say what, if anything, the DA knew about the mailers, which prominently featured his name, before they were sent out. The spokeswoman, Michelle Van Der Linden, has referred all questions about the mailers to Steel’s office.

“Tony was an invited guest. [From] our understanding, everything was run through county counsel, so we don’t have any further comment,” Van Der Linden said earlier this month.

As district attorney, Rackauckas is in charge of enforcing state laws against using government resources for political purposes within Orange County.

Correction: An earlier version of this story said the FPPC often takes years to investigate state and local cases. A spokesman said two-thirds of its cases are resolved within 180 days and 88 percent to 90 percent are resolved within a year. Voice of OC regrets the error.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him atngerda@voiceofoc.org.

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