Sunday, October 27, 2019

The 'Permissible' and 'Impermissible:' Admonitions Involving the California Stem Cell Agency and a $5.5 Billion Proposal

The 29 directors of the California stem cell agency are hearing a warning this week that certain types of their possible activities on behalf of a proposed $5.5 billion ballot initiative could lead to a criminal investigation by state or local law enforcement agencies. 

While that would seem to be an unlikely event, it has caught up another California public enterprise (the Bay Area Rapid Transit District). That's because state law restricts the use of public funds in connection with ballot campaigns. It is a complex subject, however, and laden with lots of gray areas. 

James Harrison
Remcho Johansen & Purcell photo
James Harrison, the former and longtime general counsel for the state stem cell agency, is scheduled to brief the board Thursday on the subject of "the permissible" and "the impermissible." Harrison is  well-known and respected for his work on election law and initiatives. 

He was deeply involved in drafting the $3 billion, 2004 ballot initiative that created the agency, known formally as the California Institute for Regenerative Medicine (CIRM). Harrison is also immersed in the proposed $5.5 billion measure for the 2020 ballot. It is designed to re-fund the agency, which expects to run out of cash this year for new awards. 

Harrison's memo to the CIRM board and his slide presentation on the use of public funds have been posted by the agency on its web site. In short, he says the key principles are:
"Communications about a ballot measure should be delivered through CIRM’s ordinary communication methods, like its website, blog, newsletter, emails to interested persons, and public meetings, in the style CIRM normally uses to communicate other information. CIRM should avoid passionate or inflammatory language and modes of communication that it does not regularly employ, and should not encourage voters to vote in a particular manner. For example, CIRM should not 'borrow the voices and the sympathy' of individuals who could benefit from the passage of the stem cell funding measure when discussing the measure, as BART did for Measure RR. CIRM should also take care to state past or present facts in a fair and dispassionate manner, and avoid using graphics, text, or video aesthetics that are similar to campaign advocacy (and different from CIRM’s normal practices). Taking steps like these will help ensure that the FPPC (Fair Political Practices Commission) or a court will conclude that CIRM is engaging in information sharing, rather than overt campaigning."
Harrison's presentation specifically discusses the BART case and others. The memo contains a list of specific permissibles and impermissibles. One permissible allows the board to vote on whether it supports the initiative. Another allows the agency to "prepare staff reports and other analyses to assist decision-makers in determining the impact of the measure and what position to take." 

Impermissibles include gathering signatures on the initiative and preparing materials for the public to use in support of the agency's position on the initiative. Working for an initiative on state time is barred, but CIRM employees can work for the campaign on their own time. 

Given the history and nature of California ballot campaigns, the state stem cell agency is certain to see public complaints that it is using public resources to support the initiative. The key, Harrison is telling CIRM directors, is to think about the context and content of proposed activities. 

His admonitions also include:
  • "Ask legal counsel when you are not sure about a proposed activity.
  • "Remember that even minimal use of public funds related to a measure can lead to investigation and litigation."

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