Pavley asks that 'demonstrably false' TV ad be pulled by stations

By Timm Herdt
Ventura County Star, September 28th, 2012

Attorneys for state Sen. Fran Pavley have asked Time Warner Cable station managers to pull a political ad that attacks her through the use of what they describe as a "demonstrably false and injurious" claim.

The ad asserts that Pavley pays no taxes on her "six-figure salary."

In fact, as a state legislator, Pavley is paid a salary of less than six figures, $95,291 per year, and pays federal and state taxes on that income at the same rate as all other wage-earners.

An email from Pavley's tax attorney attests that she and her husband, Andy, paid $22,722 in federal and state income taxes last year.

The ad was produced by an independent expenditure committee called California Senior Advocates League PAC. It is airing as part of a $561,000 television advertising campaign opposing Pavley, D-Agoura Hills, who is seeking re-election in eastern Ventura County's newly drawn 27th Senate District.

The independent expenditure committee is financed by business interests, including the National Association of Realtors, Anthem Blue Cross, Chevron and Philip Morris. In papers filed with the California Secretary of State, the group lists as a contact only the phone number of a Sacramento accountant, and a receptionist at that office said the accountant does not respond to inquiries about the group.

Attempts by The Star to reach someone who could discuss the content of the ad were unsuccessful, but the group's legal counsel forwarded a copy of the formal response to Pavley's cease-and-desist request.

That letter, signed by attorney Brian Hildreth of the Sacramento law firm that typically represents Republicans and GOP-affiliated interest groups, asserts that the group's right to air the ad is protected under the First Amendment and "may not be abridged."

The letter further argues that the ad's assertion of a "$261,000 tax-free salary" is accurate because cumulatively over nine years in the Legislature, Pavley has received $261,977 in per diem payments, which are not taxed.

Lawmakers who are not from the Sacramento area are paid daily expenses, based on IRS guidelines, during times when the Legislature is in session and they are required to pay for room and board while in Sacramento. The rate currently is $141.86. Over her first nine years as a lawmaker, Pavley averaged $29,000 a year, or about $2,400 a month, in per-diem payments.

"Per diem is not salary," said Parke Skelton, spokesman for Pavley's campaign. "It's a reimbursement for extraordinary expenses that legislators who live outside of Sacramento have."

Pavley said her rent and utility expenses for an apartment in Sacramento come to about $1,300 a month.

Time Warner operates cable franchises in most of the cities encompassed by the 27th District. Company officials did not respond to a request to comment on how they intend to respond to Pavley's letter.

Skelton said that although TV stations typically "give a lot of latitude" for free speech issues in political advertising, they also have a legal obligation "not to run material that's factually inaccurate."

Skelton said the stations should cease airing the ad because the tax-free salary assertion is "more than misleading. It's an out-and-out falsehood."

Pavley is engaged in a big-spending, highly competitive race against Los Angeles County prosecutor Todd Zink, a Republican. The partisan registration of voters in the district is closely split, with Democrats holding a 7 percentage-point advantage. The race has been targeted by both parties as one of the key Senate contests statewide.

Matt Rexroad, spokesman for the Zink campaign, said the candidate has no control over the content of an ad created and paid for by an independent expenditure committee, which by law cannot coordinate or communicate with the candidates they support.

"We don't have any control over the ad. It is an independent expenditure," Rexroad said. "I don't know how they came up with the claim she is receiving over $200,000 tax free. Her per diem is tax free and amounts to about $30,000 annually."

Pavley's letter, from attorney James C. Harrison, says the ad's "tax free salary" assertion is libelous. To state that she does "not pay income taxes herself causes severe harm to her reputation" with constituents, the letter says.

See the article on Ventura County Star website

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