A POLL CONDUCTED last December—one that Sho Dozono got a peek at before he jumped into the city's public financing program on January 7—is like a can of Diet Pepsi, attorney Christy Monson (representing the city auditor) argued during an all-day hearing in Tualatin on Monday, March 17. Using the empty soda can as a visual aid, Monson posed a hypothetical question to Portland Auditor Gary Blackmer, who sat on the witness stand next to Administrative Law Judge David Gerstenfeld.
If she gave a campaign the soda, would it count as a contribution when she gave it to the campaign, or when she paid for it? Would it matter if someone else paid for the soda, and gave it to her first?
Logistical questions like those have surrounded the poll, which Dozono says he heard about on December 21, and reported as a contribution he paid for on February 15. Complicating matters, the poll was ultimately paid for by lobbyist Len Bergstein and reported as an in-kind contribution to Dozono's mayoral campaign on March 4. But Blackmer says that none of that matters when it comes to the city's $12,000 cap on in-kind contributions for publicly financed candidates like Dozono, because he saw the results before he became a candidate under city rules on January 7. It's a confusing situation—hence the soda can as example.
The difference is, the poll in question cost a lot more than a can of soda—$27,295, to be precise. And if the judge decides that Dozono was a candidate when he saw the results—or that the cap on in-kind contributions applies to every last contribution, regardless of date—Dozono could lose $161,171 in public campaign funds.
Monson, an attorney representing the city, attorneys for Dozono and his opponent Sam Adams, plus candidates Beryl McNair and Craig Gier, spent six hours parsing the details—half of that time grilling Blackmer.
Monson argued that Blackmer was doing his job when he applied the current city code to Dozono's case, and certified him as a publicly financed candidate. When there are gaps in the program's code, she said, "the auditor's duty is to apply his discretion, in a careful and narrow manner."
Attorney Roy Pulvers, representing Adams, did the bulk of the talking among those challenging Dozono's certification. "It's our position that the auditor's decision to certify Mr. Dozono as eligible for public financing is based on an incorrect reading of the law, and ignores the ongoing value [of the poll]."
Indeed, the two sides debated the merits of the poll, and how valuable it is. A pollster for Adams, Robert Meadow, submitted a declaration based on notes Blackmer took when Dozono's daughter read the poll questions to him. In his expert opinion, the poll wasn't just exploratory, to help Dozono decide if he should run—it also had questions designed to help Dozono shape his campaign, which means the poll is still valuable.
In a last-minute counter declaration, Amy Simon of Goodwin Simon Victoria Research—who conducted the poll—said she "briefed Mr. Dozono and Mr. Bergstein over the phone on the overall results" on December 24. Simon said in her declaration that it "was an exploratory poll, which yields information about the general political climate as well as the potential candidate and likely opponents."
Blackmer, for his part, said the fact that a poll was at the center of the controversy—and not, like Monson's example, a soda can—made it difficult to deal with. "If someone would have given Dozono $27,000 in lawn signs we would have said you can't use those, give them back," he said. But a poll is essentially knowledge. "You can't give back what you've learned. It's difficult to put the value on that."
Or, as Pulvers put it: "We're not talking about soda cans here. That's not what today was about. Today was about a $27,295 gift, a contribution by a lobbyist in the middle of campaign, that's being exempted from the public financing limits pursuant to a code that doesn't allow for that."
Judge Gerstenfeld said he will rule in the case by Thursday, March 20. Hit portlandmercury.com/2008 for updates.