San Jose’s Fair Campaign and Political Practices Commission has slapped Vice Mayor Magdalena Carrasco with $6,000 in fines for exceeding contribution limits, missing filing deadlines and failing to list identifying information about scores of individual donors during her re-election bid earlier this year.
The commission on Wednesday offered to reduce the penalty to $2,000 if Carrasco and her campaign manager, District 5 City Council policy aide Omar Torres, provide the missing names, addresses, occupations and employers of all contributors.
Santa Clara County Libertarian Party Treasurer Robert Imhoff, who filed the Aug. 10 complaint, urged commissioners to set the fine at $19,269 to reflect the combined amount of improperly documented contributions during the final fundraising period.
Attorneys Steven Miller and Katherine McGrath—the outside counsel from Hanson Bridgett LLP who reviewed the allegations and sustained four out of five—recommended no fine at all, saying the city’s election laws are “often complex” and donors frequently fail to provide mandated information about themselves.
Torres—the point person during the investigation, experienced campaign manager and, as trustee of the Franklin-McKinley School District, an elected official in his own right—blamed some of the missteps on bad advice from city staff. He said someone at the City Clerk’s Office told him the Form 497, which discloses late contributions, need not be filed within the 24 hours required by local law.
Though they have reportedly misguided candidates in the past, senior officials from the City Clerk’s Office begged to differ. Regardless, investigating attorneys said Torres should have known better.
“We find the Senior Deputy City Clerk’s account to be more credible and supported by documentary evidence that respondent received forms from the City Clerk's office providing the necessary and accurate information as to the timing requirements for filing a Form 497,” Miller and McGrath conclude. “Even if Mr. Torres’ account were credible, we do not think reliance on the City Clerk's office is a sufficient justification under these circumstances—in particular given that respondent acknowledged receiving a document that clearly sets forth the 24-hour reporting requirement.”
While reviewing the missing documentation about 33 donors identified in Imhoff’s complaint, investigators found dozens of additional violations from earlier campaign fundraising records known as Form 460s.
In 2017, Carrasco failed to list employment information about 55 donors, 39 of which were also missing addresses. In the first two reporting periods of 2018, she failed to include required information about another seven. That brings the grand total of such record-keeping violations to 96.
Torres explained the lapse by saying donors tend to give money online or with checks without providing the required information about themselves. Still, he promised to go back and fill in the blanks.
Investigators stressed the importance of complying with Title 12, the section of city code that requires identifying information about donors, which was written to prevent money laundering and to help determined whether a contribution came from prohibited businesses, such as card rooms, federally chartered corporations or foreign banks.
“We do not think that respondent should so easily shift responsibility for compliance with Title 12 to contributors,” Miller and McGrath state. “While it may be true that respondent’s website permits a person to make a contribution without providing the required information, we believe the technology exists that could easily prevent completion of a contribution transaction without providing all required information.”
Carrasco and Torres both skipped the hearing that took place four floors below their office at City Hall. In a statement through her chief of staff, Frances Herbert, the vice mayor said she appreciates that investigators did their due diligence, but disagrees with the commission’s ruling.
“This was a clerical error and we will track down all the missing information in the next 30 days,” Carrasco said. “I am very grateful for the large number of donors who have supported my re-election campaign. It has made it difficult to compile all the necessary regulatory information with such a small volunteer campaign team. We disagree with the assessment of such high fines that went against the recommendations from the professional investigator. I hope to have this all wrapped up within the month.”
Imhoff, however, said the campaign’s rule-breaking reflects poorly on Carrasco.
“The big thing that concerned me was their general disregard for the process,” said Imhoff, whose wife, Jennifer Dousharm-Imhoff ran against Carrasco in the primary. “They act like they’re above all this.”
That commissioners didn’t impose a larger fine was disappointing, too, Imhoff added.
“They gave her a loophole,” he said in a phone call the next morning. “So the message is, ‘Yeah, go ahead and break the law and you get to net $14,000—less, if you help us out with that missing information.’ That’s no deterrent at all.”
Below are the conclusions of the evaluation presented to the elections commission.
Allegation 1. Respondent did not comply with Section 12.06.215 because it received one contribution in excess of $600.00. Respondent indicated on the Form 460 filed on July 31, 2018, that it intended to refund the excess contribution and in fact returned the excess contribution on August 30, 2018. We believe the return to be motivated by a desire to comply with Title 12, and not just in response to these Complaints. Nevertheless, under the Municipal Code’s specific rules regarding enforcement of the contribution limits, the return occurred too late to erase the violation.
Allegation 2: Respondent did not comply with Section 12.06.910 because it failed to file a Form 497 within 24 hours of receiving a “late contribution” exceeding $1,000.00 in the aggregate. The Respondent ultimately returned the triggering “late contribution”—had it immediately done so, there would have been no need to file a Form 497 in the first place.
Allegation 3: Respondent did not comply with Section 12.06.235 because it failed to obtain the address, occupation, and employer information prior to depositing contributions into a campaign account.
Allegation 4: Respondent did not violate section 12.06.290 because it did not receive contributions after the end of the campaign contribution period.
Allegation 5: Respondent did not comply with Section 12.06.910 because it filed its amended Form 410 more than 10 days after receiving $2,000.00 or more into its campaign account. Respondent ultimately filed an amended Form 410 noting the correct date of qualification.