bypass truth coalition lunsford letter

8/13/2019 Bypass Truth Coalition Lunsford Letter

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OFFICE OFTHE COMMONWEALTH'S ATTORNEYlor lhe

COUNTY OF ALBEMARLE

DENISE Y. LUNSFORD DARBY G, LOWEco\ lo\\r [AI-TI] s .\Tl oRt\ E\ DEPL r\', ( Onl\lON\\'t:ALTH S ATTOR|EYPHONE: (;134)e72-.r072 February 18' 20L4 rrJStl;1',^orr"FAX: {'1r,r)e72-.r0e3 *3ffHf$r'.:#iffil^

Kristina Stoney, Senior Assistant Attorney GeneralOffice of the Virginia Attorney General900 East Main StreetRichmond, Virginia 23219Virginia State Board of ElectionsATTN: Chris Piper, Election Services1100 Bank StreetRichmond, Virginia 23219Michael Menefee, Program ManagerVirginia Department of AgricultureOfflce of Charitable & Regulatory ProgramsP.O. Box 1163Richmond, Virginia 23218

RE: Complaint regarding Charlottesville Bypass Truth CoalitionTo Whom lt Mav Concern:

I have received and reviewed Ken Boyd's letter dated october 30,2013, addressed to theInternal Revenue Service, Office of the Attorney General, Virginia State Board of Elections, and VirginiaDepartment of Agriculture. The matter was forwa rded to me for review pursua nt to Virginia CodeAnnotated Sections 24.2-946.3 and 24.2-1019.1

I During our initial conversation, Mr. Boyd and ldiscussed an assertion that others (unnamed) had questionedwhether I might have a conflict of interest rega rding this situation. As ldisclosed to Mr. Boyd, ldonothaveaposition on the western Bypass. Neither I nor anyone in my household has made contributions to theCharlottesville-Albemarle Transportation Coalition, lnc., nor have we publically supported either side in thisdebate. Because Mr. Boyd was unable to provide me with specifics, any discussion or contemplation of aperceived conflict would involve pure speculation on my part. In the end, Mr. Boyd indicated that he felt that Iwould render a fair decision on this matter. Because Mr. Boyd is the complainant in this matter and I am aware ofno actual or potential conflict, I have proceeded to investigate and respond to the complaint.

.IIO EAST HICH STREET. CHARLOTTESVILLE. VIRCINIA 22902


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Pursuant to Mr. Boyd's letter, my discussions with him, and his report to Detective EliseEspinoza of the Albemarle County Police Department, it is my understanding that Mr. Boyd is concernedregarding advertising by the charlottesville Bypass Truth coalition prior to the November 5, 2013General Election. Specifically, he requested an "investigation of the tax and registration status of the,Charlottesville Bvpass Truth Coalition'." As Commonwealth Attorney for Albemarle County, violationsof Virginia,s campaign Finance Disclosure Act alleged to have occurred in Albemarle county must bereporied to me. Although Mr. Boyd sets forth several questions in his letter, my review of this matter islimited to a determination of how and whether to proceed with regard to violations of Virginia lawwhich are or may be criminal in nature.lnvestigation

|nadditiontomydiscussionswithMr.Boydandreviewofhis|etterandinformationprovidedbyhim, Detective Espinoza and I met with representatives of the charlottesville-Albemarle TransportationcoaIition,Inc.(,,cATco,,).AdditionaIlY,lreviewedadvertisementsthatwerep|acedinVariousmediaoutlets, filings made both loca ;and on the state level, and information provided by cATco Finally' Ireviewed state statutes and discussed the requirements of such with the Virginia State Board ofElections. Information concerning the specifics of my investigation is

set forth more fully below'

FactsCATCo was incorporated on or about August 3' 1988' as a Virginia non-stock corporation A

review of the onlin" records ot ihe virginia state corporation commission reveals that the corporatloncurrently is in good standing O" i"pt"tJ"t 11' 2013' CATco.filed a Fictitious Name Certificate in theA|bemar|ecountycircuitcourtsettingforthitsintenttoconductbusinessas,,Char|ottesvi||eBYpassTruth coalition.,, As Mr. Boyd ,t.t", i-n hi, l"tt"r, there is no corporation known as the charlottesvilleBypass Truth coalition. rn,tt"j,inrco has decided to do business usinB this name ln filing theFictitiousNamecertificate,cATcosatisfieditsobIigation,pursuanttoVirginiacodeAnnotatedSection59.1-69,tonotifythepublicthatitwouldbedoingbusinessunderadifferentnameSpecifically'thatitwould transact business as chJoitesvitte aypassiruth coalition (the "coalition") This filing is publiclydiscoverable by a review ot r"iora, o" iif" with the Albemarle County circuit court and allows the publicto determine the entity and p"""tt *tt" do business as the coalition' specifically' cATco''

Thereafter, in late october 2013' CATCo contracted for radio and television advertising whichwourd run from rate october "-p a ."0 "^ November 5, 2013, the date of virginia's 2013 GeneralErection. This aaue.tising was ioniru.i"o r",. uv Mountain High Media for "Bypass coalition" and byGeorge Larie, President and Treasurer of CATCo

ln undertaking to Investigate this matter' I searched the internet for radio' television' orprint

advertisements thu, .ry n.u" f .rrplaced by cATCo. on the Facebook page titled "charlottesvilleBypass Truth coalition," rtounJfinlsto an apparent

radio advertisement described on the Facebookpage as "Radio Spot" as well as a photo of what appears to be a print advertisement in C'ville or TheHook.The"RadioSpot"l'ioentit'ftotit"radioadvertisementMr'Boydprovidedtome'Additionally'l

'"rrr h^'6rrtAr refpr to both CATCo and the Coalition as CATCo't For the purposes of clarity and simplification I will hereafter refer to b


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located what appeared to be a television advertisement on YouTube. The precise wording of the variousadvertisements is important to my analysis. Accordingly, the language is set forth below.The voice over for the apparent television advertisement stated as follows:

For decades, VDOT studies have shown the proposed Western Bypass won't solve our trafficproblems on Route 29. Duane Snow and Rodney Thomas voted to bring the proposed Bypasswithin 1,800 feet of six local K-12 schools. We need, and our children deserve, a cheaper, safer,and more effective solution. Snow and Thomas reversed decades of policy under darkness, nearthe stroke of midnight. On November 5, exercise your right to vote in the light of day. We canpursue an alternative to ease traffic on 29 and make our kids proud to call Albemarle Countyhome. Paid for by the Charlottesville Bypass Truth Coalition.

The Facebook link identified as "Radio Spot" stated:Thanks to a midnight vote thousands of parents across the region are wondering why their kidsand every student who will follow in their footsteps face construction of a four lane highwaywithin 600 yards of their schools. Some children would go their whole career, K-12, within thehalo of exhaust from the proposed Western Bypass. Even VDOTstudies saythe proposedBypass won't help ease traffic on Route 29. What we stood to gain from the back room dealsSnow and Thomas made in Richmond are anything but clear. The good news is this road is not adone deal. We can take back the power to shape our community. Let's improve 29 where itstands, the cheaper, safer, more effective solution.On November 5th, lets hold Duane snow and Rodney Thomas accountable for their actions. Thisisn't about politics. lt's about policy. For Charlottesville and Albemarle's future, vote for newleadership on November 5th, people who look to the future, not the past, to solve the challengesfacing our community today.Learn more about where the candidates stand at bypasstruth.com. Paid for by theCha rlottesville BVpass Truth Coalition.

Finally, the print advertisement stated as follows:Take action at the polls on November 5th. The Western Bvoass is not a done deal.For decades we have all known that the proposed Western Bypass isn't a bypass at all. Nor willit improve traffic on Route 29. Even VDOT says so. You can help our community take the firststep toward finding a long term alternative solution that serves Charlottesville's needs. Let'shold each other accountable in finding the best traffic solutions for our community.Learn more about where your candidates for supervisor stand on the Bypass.www.facebook.com/bypass truth or www.bvpasstruth.com

tssues

The question I must address is whether CATCo is in violation of the Virginia Campai8n FinanceDisclosure Act of 2006 with regard to the above advertisements. My analysis assumes that CATCocontracted with local media outlets for advertising and CATCo spent an aggregate of more than 5200 inplacing the advertisements.3 Based on my contact with the State Board of Election ("58E") and theAlbemarle Electoral Board, I find that no Independent Expenditure Report, a document available on the3 The sales order for WCNR\WINA\WQMZ alone is for a total of 56,048.00 for 138 spots over a two week period.


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SBE website, was filed by CATCo. Further, based on documents provided by CATCo a nd review of therelevant statute and records available online from the Virginia Department of Agriculture and ConsumerServices, it appears that CATCo is exempt from annual reBistration with that Department. Finally, Iassume that CATCo is properly organized under 501(cxa) of the Internal Revenue Code and documentsprovided by CATCo indicate as much. My analysis does not address whether CATCo is in good standingwith the IRS or other matters related to federal law.Lesal Analvsis

Pursuant to the Campaign Finance Disclosure Act of 20054 (the "Act"), a persons, defined as anindividual or corporation, making independent expenditures totaling S200 or more during an electioncycle must maintain records and report "independent expenditures made for the purpose of expresslyadvocating the election or defeat of a clearly identified candidate." Reports are due the earlier of 24hours from the time the funds were spent or 24 hours from when material is published or broadcast.6To phrase the matter differently, if CATCo spent more than 5200 during the 2013 election cycleexpressly advocating the election or defeat of a candidate, then CATCo must report the expenditure tothe Albemarle Electoral Board. Excluded from the filing and reporting requirements of the Act is a501(cX4) corporation which provides information to voters to the extent that such a corporation "doesnot advocate or endorse the election or defeat of a particular candidate".T Accordingly, a 501(cX4)corooration which does advocate or endorse the election or defeat of a candidate must report theexpenditure.

The terms used in the Act have very precise definitions. A "contribution" is money, services orany other thing of value provided to o condidate, politica I committee or person for the purpose ofexpressly advocating the election or defeat of a candidate.E An exa m ple of a contribution includes fundsprovided to o condidote tor use in his/her campaign or the total value spent for goods and services tohost an event for a candidate. Such contributions must be reported by the candidate or politicalcommittee. An "expenditure" is money, services, or any other thing of value disbursed by o condidote,politicol committee or person for the purpose of expressly advocating the election or defeat of acandidate. Examples of expenditures include a candidate's purchase of yard signs or television" Virginia Code Annotated 24.2-945 et seq.s I do not find that the Coalition or CATCo is a Political Action Committee. Having been in existence since 1988, Ifind no evidence to support the argument that its primarv purpose is or was to advocate the election or defeat ofclearly identified candidates. This analysis may change, however, based on future activities of the organization.Contrary to the assertions of CATCo in its October 31, 2013 response to Mr. Boyd's complaints, however, thisanalvsis is not limited to whether CATCo is a Political Action Committee.6 Vlrginia Code Annotated Section 24.2-945.2.t Virginia Code Annotated Section 24.2-945.f8.' Aduocacy on some social media sites likeTwitteror Facebook may not involve the disbursement offunds and,therefore, may not be considered an expenditure under the Act.


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advertising. Such expenditures must also be reported by the candidate or political committee. An"independent expenditure" is an expenditure made by a person, corporation, or committee that is notcontrolled by, coordinated with, or mode with the outhorization of o condidote. For example, if anorganization purchased radio advertisements advocating the election of a particular candidate withoutthe candidate's agreement or authorization, the organization is required to file an IndependentExpenditure Report. Conversely, an organization which engages in advocacy related to a particularissue, and which does not advocate or endorse the election or defeat of a particular candidate, may notbe required to report such expenditures pursuant to the Act.

The question then become whether CATCo's advertisements in late October and earlyNovember expressly advocated the election or defeat of a clearly identified candidate. I find that atleast one of the advertisements, the "Radio Spot," advocated or endorsed the election or defeat ofpa rticula r candidates.

The "Radio spot," located in a link from the Facebook page, specifically names Duane Snow andRodney Thomas. Additionally, the advertisement asks listeners to "hold ltheml accountable for theiractions" and "vote for new leadership." In terms of advocating the defeat of particular candidates, anadvertisement could hardly be more specific. Although the advertisement does not specifically name LizPalmer or Brad Sheffield, candidates for the offices held by Snow and Thomas respectfully, theadvertisement clearly advocates for "new leadership" and asks that Snow and Thomas be heldaccountable for previous actions. Accordingly, funds spent for the "Radio Spot" are independentexpend itures.e

Contrast the "Radio Spot" with the print advertisement. The print advertisement is more closelyakin to what might be described as issue advocacy. That print advertisement provides information toreaders/voters about whether the Bypass is a "done deal," asks that readers engage in the dialogue byholding each other accountable, and refers readers to a website for information about the positions ofca ndidates and suoervisors.

Having determined that the "Radio Spot" advocated or endorsed the election or defeat of aparticular candidate, I find that it was incumbent on CATCo to file an Independent Expenditure Report.Forms for such filings are found on the State Board of Election website and require only the name ofthecandidate(s) supported or opposed and the amount of the expenditure. Reporting of income or theidentity of organizers, a specific complaint of Mr. Boyd, is not required. Failure to file a report or thelate filing of a report is a violation of the Act which may result in a civil penalty. Willful violation of theAct is a class one misdemeanor.ro

I then turn to the issue of whether the violation was "willful" as a matter of Virginia law. Inmatters of criminal law and prosecution, the term "willful" is a term of art used throughout the Code ofVirginia. An act is willful if done with a bad purpose, or without justifiable excuse, or without ground forbelieving it is lawful. lt is an act done "designedly, intentionally or perversely." Ferquson v.t There is no information to suggest or support an argument that the expenditures by CATCo for advertisementswere coordinated with or authorized by a particular candidate.10 virginia Code Annotated section 24.2-953.


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Commonwealth, Record Number 0547 -06-3 (Va. App. 2/27/07). A willful act is one that is intentional, orknowing, or voluntary and, in the criminal context, Benerally means an act done with a bad purposewithout justifiable excuse and without grounds for believing that the act was lawful. See, e.p., Lambertv. Commonwealth.6 Va. App.360,362 (1988). Correct application of the term will "generally dependupon the character of the act involved and the attending circumstances." ld.; Smith v. Commonwealth,282Va.449,455 (2011). The mere fact that a required act was not done does not, in this context, giverise to a presumption that the omission was willful. The Act creates a rebuttable presumption that theviolation is willful if CATCo had received notice of a need to file and thereafter failed to file theIndependent Expenditure Report. CATCo received no such notice."In makinB my determination of whether to prosecute a violation, I must consider whether theCommonwealth could likely prove that CATCo's violation of the Act was willful. Inmattersof criminal

law, the Commonwealth must prove a violation of law beyond a reasonable doubt. While intent may beproved by circumstantial evidence, such proof must exclude all reasonable hypotheses of innocence. Ifind that in this case on these facts the Commonwealth could not meet its burden and, therefore,decline prosecution. I focus on whether CATCo's failure to file an Independent Expenditure Report wasdone with the requisite willful intent - whether CATCo had a bad purpose or was without grounds forbelief that their failure to file was lawful.

In this consideration, I reviewed the letter and attached documentation provided by CATCo anddiscussed its failure to file the Independent Expenditure Report with representatives. My investigationrevealed CATCo's attempt to negotiate the various requirements of the Act, an apparent desire tocomply with the requirements of the various laws applicable to the situation, and a belief that theirconclusion was legally accurate. While ignorance of the law is not a legal excuse for a failure to followthe law, in the matter at hand I do not find that CATCo's violation of the Act was done without groundsfor its belief that the failure to file the Independent Expenditure Report was lawful.

More fundamental to my analysis was the consideration of whether there was a bad purpose,specifically, whether CATCo was, as Mr. Boyd alleges, attempting to conceal "the identities of itsorganizers and funders." This consideration is important becausethe effectofthe requirements of theAct is to provide transparency in the financing of campaigns and, therefore, confidence in the electionprocess. Preservation of the integrity of this process is vital to the community's trust in its outcome.

The Independent Expenditure Report which CATCo should have filed requires disclosure of theentity making the expenditure and its contact information. The report also includes a certificationassuring that the expenditures were "independent" and not at the request or suggestion of a candidate.Finally, the report requires information about the candidates supported or opposed as well as adescription and the amount of any expenditure. The report does not require a disclosure ofcontributors. The filing of the report would have provided no additional information than that whichCATCo would have known was already available publicly. The advertisements included statements thatthey were paid for by the Coalition. A cursory search of the records available in the Albemarle CountyCircuit Court Clerk's Office revealed that the Coalition was an assumed or fictitious name being used by

" Vir8inia Code Annotated Section 24.2-953D. No such notice was sent in this case.


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CATCo. A search of the online records of the State CorDoration Commission established the officers anddirectors of CATCo. Records provided by Mr. Boyd, which he obtained from the media outlets, revealedthe cost of such advertisements. The fact that information required on the Independent ExpenditureReport was readily, albeit not conveniently, available to the public from other sources is a strongindication of whether CATCo was willfully attempting to obscure a process that is intended to betransoarent. lfind it was not.

As a result of the foregoing analysis, I find that the Commonwealth could not likely provebevond a reasonable doubt that CATCo's violation of the Act was willful. lncumbent in my analysis is acarefully weighted consideration of the benefits and likely outcome of a potential prosecution and thelikelihood of CATCo complying with the requirements of the Act on notice of a violation. In light of theseconsiderations and the foregoing analysis it is my conclusion that the more responsible approach is toafford CATCo opportunity to comply with the provisions of the Act.Conclusion

For the foregoing reasons, ldecline prosecution of this matter. Having made this determination,it should be noted that my analysis is fact and time specific and limited to the current allegation ofviolations. Future allegations ofviolations against CATCo or others may result in a different conclusion.Further, I hereby recommend and request that the Albemarle Electoral Board send written notice of thisfailure to file to CATCo by certified mail, return receipt requested to its most recent mailing addresspursuant to virginia code Annotated section 24.2-953(D).

Thank you for your attention to this matter and please do not hesitate to contact me if you haveany questions.

Ken BoydLloyd Snook, Esq.Richard J. Washburne

bypass truth coalition lunsford letter

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