An attorney for College of the Desert accused a local activist group of violating California's Political Reform Act by sending out flyers and promoting social media ads critical of board trustees and raising questions about how the college is spending bond money, without disclosing who is funding the mailers and ads.
The lawyer was scheduled to give a presentation on the matter to the COD Board of Trustees during a "study session" at Friday's board meeting. However, the study session was pulled from the board agenda less than 24 hours before the meeting "for further review," according to college spokesperson Nicholas Robles. Robles said the item was "collectively pulled."
The activist group in question is called Promises Made-Promises Broken. The organization is a self-proclaimed "watchdog group" and a registered 501(c)(4) organization.
The college removed the agenda item after a lawyer for Promises Made-Promises Broken sent a letter to College of the Desert on Thursday afternoon denying any wrongdoing and warning the college trustees not to use taxpayer funds to advance their political careers.
Promises Made-Promises Broken launched a print and digital media campaign in December criticizing COD's plans related to more than $950 million in capital projects financed by Measure B and Measure CC, two bond measures approved by Coachella Valley residents in 2004 and 2016.
The group later sent mailers in English and Spanish to likely Coachella Valley voters accusing the college of "abandoning," "stalling," or "canceling" several planned bond projects it says were promised to voters, such as a Palm Springs campus including a restaurant/hotel management school and a Cathedral City auto technology campus (which the college's board has since voted to proceed with).
In January, Promises Made-Promises Broken promoted a 30-second ad on social media that alleged COD leaders were operating in "deceit." The ad called on COD President/Superintendent Martha Garcia and three of the college's five trustees — Ruben Perez, Aurora Wilson and Bea Gonzalez — to resign. Those three trustees voted to appoint Garcia last summer in a decision that divided the five-member board.
The agenda packet for Friday's COD Board of Trustees meeting originally included a presentation from Meredith Brown, a partner at the law firm of Atkinson, Andelson, Loya, Ruud & Romo. It was taken offline Thursday afternoon. The Desert Sun downloaded a copy of the original file posted online.
In the presentation, Brown said Promises Made-Promises Broken issued "communications that constitute political advertising concerning COD’s facilities bond program and operations (that) have been published within 60 days of an election."
Brown said the materials identify elected trustees by name and photograph and call for their resignation, but fail to identify the funding source of the campaign in violation of the law.
Promises Made-Promises Broken contends it did nothing illegal and Brown is wrong.
A lawyer for the group sent a letter to COD's general counsel, Carlos Campos, around 3:30 p.m. on Thursday. The lawyer, Cary Davidson, of Reed & Davidson, a Los Angeles-based law firm, maintains that Promises Made-Promises Broken is "fully compliant with the Political Reform Act."
Davidson noted that independent expenditures "expressly advocate for the election or defeat of a clearly identifiable candidate or measure, or taken as a whole, within the 60 days prior to an election in which a candidate or measure is on the ballot, urges a particular result in that election." However, he pointed out that COD trustees will not be elected in June 7 primary, but that the seats currently held by Perez and Wilson are up for election in November.
"The public education communications made by Promises Made, Promises Broken do not concern a candidate or measure on the June ballot," he wrote. "The next upcoming election for Trustees of the College of the Desert is the General Election scheduled for November 8, 2022, which will feature candidates for Area 1 Trustee and Area 4 Trustee." Perez represents Area 1, and Wilson represents Area 4.
Davidson acknowledged that Promises Made-Promises Broken is "not pleased" with some actions taken by the board but said "expressing that displeasure without the ability of constituents to vote on the matter is not a violation of campaign finance law."
Davidson then went a step further, warning COD trustees against using taxpayer funds to defend their political careers, which would be a violation of state law.
The letter is not clear whether the group is accusing COD trustees of having already done so, but Davidson concludes by writing: "We urge you to become informed of the applicable law."
Asked why the COD trustees would hear Brown's presentation on Friday, College spokesperson Nicholas Robles said Thursday: "At a previous meeting, Trustee Gonzalez asked the College’s legal counsel to provide a report verifying that applicable laws regarding transparent civic engagement are being followed on matters related to the College. That report was generated by Meredith Brown, a partner with Atkinson, Andelson, Loya, Ruud & Romo, the firm serves as the College’s Counsel on facilities projects and related matters."
Hours later the agenda item was pulled.
Robles said the report did not make any recommendations as to whether the college should pursue litigation against Promises Made-Promises Broken. Brown's report had a disclaimer at the end that said it "is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations."
Bruce Hoban, the spokesperson for Promises Made-Promises Broken, issued a statement Thursday to The Desert Sun blasting Brown's presentation.
"This May 20 attack on the citizens watchdog group Promises Made, Promises Broken is just the latest wasteful spending by President Martha Garcia and College of the Desert Trustees! The fact is, COD President and Trustees are the ones who are electioneering. And they are paying lawyers with public funds to defend their favorite COD Trustees through trumped-up charges meant to distract the public from the real issue – COD leadership’s dark history of failed promises to Coachella Valley students and taxpayers. Let the light shine. Stop COD leadership from trying to muzzle the citizens groups that are finally exposing COD mismanagement and shameful spending."
Group's criticism of college goes back months
In February, Promises Made-Promises Broken organized a Zoom teleconference to raise concerns about COD's bond management. The virtual meeting drew 150 residents, plus the mayor of Palm Springs, Lisa Middleton, and the mayor of Cathedral City, Ernesto Gutierrez. Both of them spoke during the session.
Since December, Hoban has repeatedly refused requests from The Desert Sun to disclose information about the group's operations. He declined to comment on Thursday regarding how much money the group has fundraised and how many donors it has. He said the group has "a lot" of members.
Hoban maintains, contrary to the college's allegations, that Promises Made-Promises Broken is not required to disclose any of that information.
The Desert Sun asked Hoban whether the responsible thing for the group to do would be to disclose that information regardless of the legal debate, considering that Promises Made-Promises Broken was founded around the issue of advocating for college transparency, yet the group itself remains opaque.
"No, because you know, there's all different people involved from different political parties, different walks of life, you know, and they just want the college fixed," Hoban said. "And, you know, they don't want and should not have to have, you know, the discussion about them. The discussion's about COD."
College of the Desert leadership hasn't been honest with us. We were promised three new campuses in Palm Springs, Cathedral City & Indo. They've all been canceled. Where is the money? Time for leadership to resign.
— PromisesMadePromisesBroken (@CODpm_pb) January 26, 2022
Group's leader says he's 'not concerned'
In her presentation to the board once included in the agenda packet, Brown first defended COD's bond program then attacked Promises Made-Promises Broken.
She said the school meets mandated financial and performance and accountability requirements, and said independent financial and performance audits of the bond program have yielded no audit findings. She said COD's capital improvement program meets best practices, citing the college's adoption of a facilities plan and its citizens' bond oversight committee, as well as ongoing dialogue between the campus community, the board, the oversight committee, administrators and other stakeholders.
But even some members of the citizens' bond oversight committee have raised questions about COD's transparency. For example, in December, Margie Eklund, a member of the oversight committee, said the college's "lack of transparency truly is appalling."
And, in March, critics called into an oversight committee meeting to express concern that the oversight committee itself was perhaps withholding information from the public and unnecessarily limiting public comment — possibly in violation of state law.
In her presentation, Brown suggested that Promises Made-Promises Broken's materials amount to expenditures and advertisements that fail to meet standards set by the Fair Political Practices Commission.
Brown argued that a communication expressly advocates support or opposition of a clearly identified candidate under the following scenarios:
The communication uses words such as “vote for,” “elect," “cast your ballot,” or “defeat."
The communication is made within 60 days prior to an election and the communication refers to a clearly identified candidate … so that when taken as a whole, unambiguously, suggests only one meaning which is to urge a particular result in an election.
In her presentation, Brown said that penalties of up to $5,000 per violation may be imposed for violating the Political Reform Act, including not filing campaign statements.
Hoban said he is "not at all concerned" about the possibility of the group receiving one or more of these violations.
Friday's COD Board meeting begins at 9:30 a.m. in Palm Desert, and it can be live-streamed at the following link: collegeofthedesert-edu.zoom.us/j/95625979578.
Jonathan Horwitz covers education for The Desert Sun. Reach him at firstname.lastname@example.org or @Writes_Jonathan.
This article originally appeared on Palm Springs Desert Sun: COD lawyer accuses Promises Made-Promises Broken of violating laws