Topics and Tips

Checklist for Education Code 7054 Complaints

If you're confident about making a complaint, you can go directly to the checklist at the bottom. If you need a little confidence boost or you're not clear about why the district's activity is illegal, then start reading below.

Background

I'm going to give you some background, because many people's first reaction to filing a criminal complaint is "I don't want to get involved." And that, I suspect, is precisely why the school and community college districts have been getting away with flagrant violations of the law and its criminal sanctions for years.

When I first learned about this prohibition on school districts, I did some research. I tried to find references to any cases that have been prosecuted under this statute anywhere in the state. I couldn't find any. (Perhaps a lawyer with access to more legal research resources could.) That means that there are no cases that have reached an appellate court on this subject. I suspect, however, that there have been no prosecutions at all.

It's not that there aren't any cases that deal with the statute. It's just that the only significant case involved a teachers union, where the district did the right thing and prevented the use of its resources, so no crime occurred. The union, in #AnchorTag("San Leandro Teachers Ass'n. v. Governing Bd. of the San Leandro Unified Sch. Dist.", "http://caselaw.lp.findlaw.com/data2/californiastatecases/S156961.pdf", "00", "")#, simply wanted a decision that the district was wrong in denying it the use of the district's resources. The California Supreme Court came down on the side of the district.

There are several factors that contribute to the lack of prosecutions.

1. NO ONE FILES A COMPLAINT!
2. The average voter doesn't know that it's illegal.
3. The district claims that what it's doing is informational and, therefore, legal.
4. A grassroots campaign opposing a bond measure has its hands so full fighting the well-funded district campaign, it has no time to even think about it.
5. A bond measure election campaign typically lasts no longer than the month or two immediately preceding an election.
6. The advantage a district gains by its criminal activity makes it almost inevitable that it wins the election and therefore discourages future opposition campaigns.
7. District attorneys may consider other public officials as colleagues and brothers-in-arms.
8. District attorneys may believe that prosecutions will not result in convictions because the defendants are sympathetic, local school employees.

I believe that when you see this crime, even if you don't know that it's a crime, that you have an intuitive reaction (if you oppose a bond measure) that it's unfair. That's exactly why it's against the law. In my opinion, a jury of reasonable people who are not biased in favor of school bond measures would have the same intuitive response just by examining the materials and easily render a guilty verdict. As to the printed materials, they are, in fact, created by marketing companies whose sole purpose is to sell the bond measure. You intuitively know the difference between marketing hype and sales messages and a "fair and impartial presentation."

I also believe that prosecutors, whose main weapon nowadays is plea-bargaining, would get guilty pleas as a matter of course, in exchange for some kind of leniency in sentencing.

You just have to get the issue in front of the district attorneys who prosecute public corruption and get it there with some frequency, so that it can't be dismissed as an isolated incident or a tin-foil-hat crank.

Types of Complaints

There are two types of violations that are likely to occur under Education Code 7054.

The first type is a violation of 7054(a) where the district actively or passively puts its publicly-paid-for resources to work in an effort to influence the outcome of a bond measure election.

The second type is a violation of the exception to 7054(a), where it tries to pass off campaign propaganda as permissible informational material.

In the first type of violation, a district may dispute that it occurred. That's because the activity is generally not able to be viewed by the public. For example, how would you know whether the superintendent is calling potential campaign donors while at the office or using a phone provided for by the district? Another example might be where the district lets people who are working to pass the bond, but who are also district volunteers, have access to information like phone numbers, e-mail addresses, and parent names who then use that contact information to promote the bond.

The second type of violation is typically bold and visible to everyone. These are typically mailers, flyers, e-mail messages, meetings, etc. where there is no dispute that public resources were used to produce or disseminate the information. In this type of violation, the issue is whether BOTH conditions of the exception to 7054(a) are met. While it may be a matter of opinion, the district's opinion usually is that the resources were used to distribute information, leaving out the "fair and impartial" modifiers or that the information can only be "about the possible effects" of the measure.

7054. (a) No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.

7054. (b) Nothing in this section shall prohibit the use of any of the public resources described in subdivision (a) to provide information to the public about the possible effects of any bond issue or other ballot measure if both of the following conditions are met:

(1) The informational activities are otherwise authorized by the Constitution or laws of this state.

(2) The information provided constitutes a fair and impartial presentation of relevant facts to aid the electorate in reaching an informed judgment regarding the bond issue or ballot measure.

Resources Supporting Complaint

The resources supporting a complaint under Education Code 7054 are the specific conditional language of the exception to the general prohibition 7054(b)(2) and the recent #AnchorTag("California Attorney General's opinion", stGlossary.AgOpHarris, "00", "")# which explicitly covers this issue in Question 1 of the five questions addressed.

I strongly suggest that you read the entirety of the discussion about Question 1 in the Attorney General's opinion because it gives real examples of improper activity.

The conclusion for Question 1 states:

Synthesizing the approach taken in our earlier opinions, we conclude that a school district violates prohibitions against using public funds to advocate passage of a bond measure by contracting for services related to a bond election campaign if those services may be fairly characterized as campaign activity.

Note the last part of the triggering language for the violation -- when "those services may be fairly characterized as campaign activity." Campaign activity, by its very nature, is not fair and impartial.

If you ask one of the district drones about this, he will blabber that that it's not telling you how to vote. That's not what the law says and the Attorney General's opinion reinforces that.

Invariably, this is what occurs. The district hires a campaign advisor to get the bond passed (illegal) and then uses the work product and services of that campaign advisor to manipulate voter opinion about the district in general or about the bond itself.

The campaign actually begins, not when the trustees approve the measure for the ballot, but when the district hires the campaign advisor. The Attorney General is clear that even the voter surveys may be illegal. (Read the whole discussion of Question 1.)

Checklist

The point of a complaint is to provide enough specific information for the district attorney to begin an investigation. You don't have to prove the case. That's the district attorney's job. You want to present enough information for her to see that a crime has likely been committed.

You are the informant. Your identity will never be revealed. Unless you have knowledge that only you could possibly know, like a whistle blower, you will never need to testify because the nature of the violation is such that the defendants will provide all the evidence. They are even likely to admit to most of the facts. They will only try to dispute the conclusions that are drawn from them, i.e., it's information, not campaign activity. That's like saying black is white. They've likely even convinced themselves of this, because they're being told that what they are doing is legal. In most cases, the emperor has no clothes and it's plain for everybody to see.

So, what do you need to do? Here it is, step-by-step.

1. Identify the individual district attorney to whom to direct the complaint. Call the office and ask for the name and e-mail address of the lawyer to send it to. DO NOT SEND IT TO A GENERAL ADDRESS.
2. Use an affidavit format, with numbered paragraphs (usually one sentence per paragraph).
3. Name the district officers or employers who you believe are involved, but add "and others not known" or something to that effect, if you suspect that it's true.
4. Try to be succinct and get to the point. I saw something, I was outraged, I heard something, I learned something, etc.
5. Write everything in your own words. Write in the first person. Don't copy from examples. There is no need to make it sound like a lawyer has written it. Use your regular vocabulary.
6. Put the fact statements in chronological order.
7. State facts of which you have direct personal knowledge or which you have heard or which you reasonably believe to be true (circumstantial).
8. State your perceptions about the facts -- feelings, emotions, conclusions. For example, "Just by looking at the mailer, I could tell that it's clearly part of the campaign to pass the bond measure."
9. State conclusions that can reasonably be inferred from the facts.
10. If it's a type 2 complaint, cite the language of the exception to Education Code 7054(b)(2) (the "fair and impartial" language) that has not been met and why.
11. If applicable, cite the language of the attorney general's opinion. Don't assume the district attorney has read it.
12. Have a notary (your bank may do this for free) witness your affidavit. If it's not sworn, it will have less impact than if it is.
13. Write a short, succinct cover message that describes what you are sending, i.e., a complaint about officers and employees of a school district who have used public resources in a campaign to pass a bond measure.
14. Attach any evidence that you have to support the complaint, for example, an image of the printed material (front and back) or links to a district web site or campaign web site where those images are available. NOTE: If you link to a web site that you don't own, see the instructions for preserving a permanent copy of that web page in Mr. Peabody's Wayback Machine.
15. Blind copy or forward the complaint to walnutwatchdogs+7054@gmail.com so that I can gauge how many complaints are being filed in each school district and in each county.
16. Forward a copy of the acknowledgement letter that you will receive from the district attorney to walnutwatchdogs+7054@gmail.com.

How Often Should You Complain

You should file a complaint for each activity that you legitimately feel is a violation of the statute.

You don't have to file a separate affidavit for each violation. You can state each different set of facts in a single affidavit. So if you've only observed one violation up to now and file a complaint about it, but then over the next month the district commits several more violations, you can group those together in a single affidavit. Just make it clear that they are separate activities.

Individually, you should never complain about the same violation more than once. But if you find other people who have observed the same activity as you did, encourage them to file their own complaints. Please, however, don't write their affidavits for them. That must be done in their own words. They are the one that is making the sworn statement.

Once you've done one, in your own words, you can use it as your personal template for future complaints. File a complaint for every separate activity that you believe violates the law. If you're not sure the activity violates the law, send me the facts that you'd put in the affidavit and I'll let you know what I would do. There are those who feel that everything the district does is a violation, even when it's not. Look at the language of the statute. Does your fact pattern meet the standard set for a violation? Then go with your gut feeling. The worst thing that can happen is that the district attorney will reject it outright. Then you'll know you've gone too far. Once you've gotten a rejection, recognize what it is and don't do it again or you'll be dismissed as a crank in the future.

The typical misdemeanor has a two-year statute of limitations. Felonies have longer statutes of limitations. Since most of the illegal activities of the district are type 2 mass mailings, you're talking about thousands of dollars of district funds -- more likely felonies than misdemeanors. But you don't have to worry about what statute of limitation applies, file the complaint, even an old one from a previous election, and let the district attorney advise you if the statute of limitation bars your complaint.