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Berkeley election monitors effectively dismissed Wednesday a complaint filed against the Council of Neighborhood Associations (CNA), but failed to address the question of whether the group had violated Berkeley election law by mailing to non-members its newsletter urging the defeat of city tax measures. 

Malcolm Burnstein, who authored the complaint on behalf of the campaign to pass a library tax increase, said he would re-file it in December after the Fair Campaign Elections Commission, with only six members present, deadlocked on every vote. 

A separate complaint from Burnstein charging that Berkeleyans Against Soaring Taxes (BASTA) twice failed to file its contributions before a city deadline was dismissed when the commission could not muster the requisite five votes to pass a motion. Burnstein said he would not seek to reopen that complaint. 

Burnstein charged that CNA, by publishing a newsletter that took positions on local ballot measures, effectively functioned as a campaign committee and was required to register as such under the Berkeley Election Reform Act. 

The law, designed to shed light on the financial backers of campaign committees, requires the organizations to disclose their contributions and expenses and list the names of contributors who donated more than $50.  

CNA, which is registered as a nonprofit and has published a newsletter for nearly 30 years, is permitted under state law to take positions on ballot measures. The most recent newsletter published this month devoted much of its space to editorials opposing all of the proposed tax increases on the November ballot. 

In the past year, relations between neighborhood associations and city leaders have grown steadily worse over the groups’ opposition to tax increases. 

Charging that Burnstein’s complaint was a thinly veiled threat from the city’s political establishment, CNA President Laurie Bright cautioned that if Burnstein ultimately got his way neighborhood groups could be hindered from distributing newsletters, posting positions on Internet sites and canvassing for support. 

“This would have a chilling effect on free speech,” he said. 

CNA is an umbrella group of local neighborhood associations whose primary function is to produce the newsletter paid for by subscription fees of $30.  

Since state election law does not apply to regularly published newsletters whose circulation is limited to members and others who request it, Deputy City Attorney Prasanna Rasiah had recommended that the commission dismiss the case. 

However, Jenny Lipow, a Berkeley resident and supporter of the tax measures, testified before the commission that she received a copy of the recent newsletter addressed to her even though she had not been a member of CNA for at least five years and had not received a newsletter for the past three years. 

“Why am I only solicited on this issue, which was clearly an election piece?” she asked. 

Burnstein said he had also received calls from residents that opponents of the tax measures were distributing the newsletters door-to-door. 

Bright responded that CNA produces enough newsletters to mail to paid subscribers and then sends out any extras to former subscribers in hopes of getting them to re-subscribe. 

“As a general rule we send out more copies than to only the people who subscribe just like newspapers and magazines who want to add to their subscription list,” Bright said.  

Although he didn’t have exact figures, Bright estimated that CNA didn’t sent out more than 200 newsletters beyond its subscription base. 

Commissioner Eric Weaver called for staff to investigate the issue to determine how state law defined “a member of an organization” and whether CNA had then mailed the newsletter to non-members. However the commission split on the vote 3-2-1, failing to reach the five votes needed to pass.  

Weaver (appointed by Mayor Tom Bates) Gorden Gaines (appointed by Councilmember Maudelle Shirek) and Patrick O’Donnell (appointed by Councilmember Miriam Hawley) voted to investigate the charges, while Dennis White (appointed by Councilmember Gordon Wozniak) and Michael Issel (appointed by Councilmember Betty Olds) were in opposition. John Denvir, who was appointed to the commission Wednesday by Councilmember Dona Spring, abstained on all votes because he has supported Measure H, for public financing of city elections, which both BASTA and CNA oppose. 

A second motion, to dismiss the charges against CNA but direct city staff to research the issue, failed 4-1-1. Although he favored looking into the matter, Weaver cast the lone no vote because he opposed dismissing the complaint.  

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