A campaign election complaint filed Monday, July 8 by Birmingham resident Clinton Baller with the Michigan Department of State Bureau of Elections alleging the city of Birmingham had violated state campaign laws by using public tax dollars to advocate for passage of the August parking bond ballot issue in a city-produced printed piece clarifying mistruths perpetuated by opponents of the parking bond proposal has been dismissed by state officials.
In a letter Friday, July 12, from the bureau of elections, Michigan Department of State election law specialist Adam Fracassi responded to Baller, stating that none of the city of Birmingham's communication advocated for a vote, thereby not violating the Michigan Campaign Finance Act (MCFA), and “Therefore, the department dismisses your complaint.”
Specifically, Fracassi explained that “The MCFA excludes from the definition of an expenditure any communication from the Act’s reach unless it contains words of express advocacy that specifically urges voters to “vote yes,” “vote no,” “elect,” “defeat,” “support,” or “oppose” a ballot question, using these or equivalent words and phrases.”
In Baller's complaint he alleged that by the city utilizing taxpayer funds to produce and mail a piece entitled “Get The Facts” – in which the city states it is correcting mischaracterizations and mistruths being perpetuated by opponents of the ballot question – it is seeking to influence the electorate. There are two groups, Balance 4 Birmingham and Citizens for Responsible Government, working against the ballot issue.
According to the Michigan Campaign Finance Act, Section 169.257 states, “It is the policy of this state that a public body shall maintain strict neutrality in each election and that a public body or a person acting on behalf of a public body shall not attempt to influence the outcome of an election held in the state.”
The Birmingham piece, reportedly reviewed by legal counsel prior to it being mailed this past week, is straightforward and informational, outlining what the newsletter calls “myths” and “facts” about the proposed new parking structure.
The bureau of elections, citing MCFA, determined the city's piece was acceptable because it never urged voters to “vote yes,” “vote no,” “elect,” “defeat,” “support,” or “oppose” the ballot proposal “using these or equivalent words and phrases.”
Fracassi said the department may only consider the actual text of the communication, and not any broader context, citing precedence, or in essence, how a reader may interpret it in reference to other election materials or from the reader's point of view.
“The Department has carefully reviewed all the evidence that you included with your complaint,” the letter to Baller continued. “There are no directives in the mailer urging voters to 'vote for, 'vote against,' 'defeat,' 'support,' or 'oppose' the millage. Nor are there any equivalent words or phrases. Without words of express advocacy contained within the text of the document itself, the mailer due to be sent out is exempt from the definition of “expenditure” in the MCFA, and therefore outside of the Act’s reach.”
The city's informational newsletter reached homes of residents on Friday and Saturday of this week.
This is not the first time Baller has tried to intercede with the bond proposal vote after Birmingham city commissioners approved a resolution to put a parking structure bond proposal in the amount of $57.4 million before voters on the August 6 election at their meeting on May 6, in order to secure financing for demolition and rebuilding of a new parking structure to replace the N. Old Woodward structure and an extension of Bates Street, the first phase of what is known as the Woodward Bates project. On June 12, the city's ethics board heard – and unanimously dismissed – two complaints from Baller against city manager Joe Valentine and mayor Patty Bordman, over their involvement with winning bids and proposals for the new N. Old Woodward Bates project which will involve several mixed use buildings, including an adjacent RH (Restoration Hardware) building.
Baller, representing the Balance For Birmingham Group, and Brad Host, who heads up the Citizens for Responsible Government political action group, were also the subject of a formal complaint this past week filed by a Birmingham resident with the Michigan Department of State Bureau of Elections, alleging the two citizen groups have violated election law with some of their printed literature because they did not adhere to election law requiring specific language and information that must appear on all election material.
If Baller and/or Host are found to be in violation of the Michigan Campaign Finance Act, section 169.247, they would be guilty of a misdemeanor punishable by not more than $1,000 or imprisonment by not more than 93 days, or both.
The vote on August 6 is to permit the city to obtain up to $57.4 million in general obligation bonds – a municipality is required by state law to receive approval of its voters before obtaining such bonds. Birmingham chose general obligation bonds because that has been the past practice when financing parking structures in the city and interest rates are marginally lower than revenue bonds, which do not require a vote. The general obligation bonds will be retired with city parking fund reserves and revenues from the parking system.
If the parking bond vote fails, the whole project will be dead, according to city officials, including the proposed RH building.