BERKELEY -- The Fair Campaign Practices Commission on Thursday slapped the group behind Berkeley's 2012 anti-sidewalk sitting ballot measure with a $3,750 penalty for violating Berkeley's election law by paying canvassers in cash and not identifying the canvassers in campaign filings.

Measure S, which lost 52 to 48 percent, would have made sitting on sidewalks unlawful in most commercial areas.

At issue were 55 cash payments of $60 to $100 made by John Caner, a volunteer for the Yes on S committee and CEO of the Downtown Berkeley Association, of campaign funds to some 55 individuals.

Berkeley's election law prohibits campaigns from cash payments of more than $50 and requires disclosure of names and addresses of campaign workers paid more than $50.

Caner had lent $5,000 to the campaign, which was returned to him to distribute to canvassers. He spent an additional undisclosed $530 out-of-pocket for canvassers, which was also cited as a violation.

The campaign did not dispute making cash payments, its failure to file payment details, or the undisclosed out-of-pocket payments. The campaign filed canvasser information and disclosed the $530 contribution in late filings.

Caner, who was not personally named in the matter, accepted responsibility for what he characterized as "an innocent mistake."

"The professional campaign adviser said to pay cash, keep detailed records -- that's what we did," Caner said, adding that as soon as the problem was brought to light, he went to the FCPC secretary to clear up the matter.


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The stipulated agreement, concluded between Yes on S attorney James Sutton and Kristy Van Herick, attorney and FCPC commission secretary, was before the commission for approval, with both attorneys agreeing on a penalty of $2,750.

However, Commissioner Dave Ritchie argued the amount was insufficient. "There needs to be something that's going to make people actually pay attention to the law," he said, adding that people involved with the campaign "should have known what they were doing," especially given that Caner once served as a FCPC commissioner.

Commissioner Sherry Smith contended that $2,750 was high enough to make an impact.

"The stipulation becomes a matter of public record," she said, further arguing against prolonging the process. If the commission wanted a higher penalty, the attorneys would have to craft a new agreement and the matter could end up in a hearing, she said.

"I'm wondering what more we would learn that we don't already know in a hearing process," she added.

In the end, the six commissioners -- with one absent and two seats vacant -- split their votes, with three voting for the stipulated $2,750 penalty and the other three voting for a $5,400 penalty.

Before the commission could decide how to handle the split vote, Yes on S attorney Sutton asked for a recess to speak to his clients and the commission attorney. The attorneys proposed a compromise $3,750 penalty, which the commission approved unanimously.

Bob Offer-Westort from the No on S campaign observed the proceedings. "I wish there had been an actual fact finding about what had happened on election day in 2012," he said.

Offer-Westort said he believes an investigation would have shown the canvassers were homeless and believed they were distributing literature to support Obama, without understanding that the literature criminalized sitting on the sidewalk.

Caner responded that the canvassers were not homeless and that he trained them himself, explaining the flier's support for Measure S.