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Two days after election night, Max Grossman sent out an email blast to his subscriber list. In the November 10 email, Grossman quotes an email statement sent by the Analisa Cordova Silverstein Campaign to El Paso Matters. Silverstein and Brian Kennedy are on a run-off for the city council district 1 seat. The Silverstein email makes several statements against her opponent, Brian Kennedy. Who released an unpublished email to Grossman raises questions about journalistic ethics at El Paso Matters and whether El Paso Matters is actively engaged in the political process by working closely with one candidate over another.

Although El Paso Matters is branded as a news media outlet, it is a non-profit organization. As a non-profit, El Paso Matters does not pay taxes, including property or sales taxes and donations to it are tax-deductible. In return for the tax benefits, El Paso Matters is prohibited from supporting one candidate over another. According to the IRS, non-profits “are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf (or in opposition to) any candidate for elective public office.”

Unlike the El Paso Times or KVIA, for example, El Paso Matters is prohibited from endorsing any candidate for office. That is the reason El Paso Matters did not issue any endorsements during this election cycle.

The email quoted by Grossman in his email blast suggests that Silverstein’s email statement to El Paso Matters was leaked to the Kennedy Campaign. El Paso News asked Grossman who provided the email to him. Grossman, in a text message, replied that the email was given to him by a “confidential source.” We asked Brian Kennedy on Saturday via email for a comment on the leaked email. As of this morning we have not received a response to our question from Kennedy. We will update this article should we receive a response later in the day.

Yesterday morning we also asked Priscilla Totiyapungprasert and Elida Perez, the two El Paso Matters reporters who reported on Silverstein’s statement for information on who leaked the email to Grossman. We copied our request for information to the publisher Bob Moore and the editor Ramon Bracamontes. As of this morning, we have not received a response from El Paso Matters to our Sunday request for comment. Should we receive a response later today we will update the article.

After the polls closed on Election Day, Totiyapungprasert and EPerez reported on the election results. In their article they published a portion of the Silverstein email. When Grossman sent out his news blast later in the week he quoted verbatim the Silverstein email.

El Paso News asked Analisa Silverstein whether her campaign had provided the email statement to Grossman or to anyone else. Silverstein responded in an email statement that her campaign sent the email “to Elida from El Paso Matters directly and no one else.” Michelle Flores, the campaign manager for the Silverstein Campaign provided us a copy of the original email she sent to El Paso Matters on November 8 at 11:08pm.

El Paso News reviewed the copy published by Grossman with the copy provided by the Silverstein Campaign. Except for a small typographical error, the two emails are identical including their use of grammar. The original email statement included one typographical error of a period at the end of a sentence running into the next sentence. Grossman’s version had the typographical error corrected. Who made the correction in Grossman’s version is unknown.

Silverstein’s email statement was leaked to Grossman. Silverstein reiterated in her email statement to El Paso News that she provided the email statement to “Elida Perez at El Paso Matters” and “her only.”

Why was the email leaked is an important element to understand. Generally, there is no expectation that a statement to a news outlet is confidential. It is also not illegal to release unpublished materials to the public. It is the news outlet that determines whether to release unpublished materials to someone.

In 2012, a controversy ensued after the Texas Observer reported that a Washington Post reporter provided the University of Texas at Austin a copy of an article the Post was going to publish about the school. According to the Texas Observer, the Post reporter broke “journalistic convention” by sharing the story before it was published with the school. The Observer report noted that a Wall Street Journal reporter was fired because “journalists aren’t supposed to disclose unpublished stories” so as not to “compromise the gathering of information.”

The controversy over the Post reporter and the university pitted two arguments against each other. One that journalists should strive for factual accuracy and thus allowing vetting of an article before it is published ensures that it is accurate. On the other hand, some argued that it has been “a time-honored code that you don’t show sources stories before they run.”

Although the Silverstein email is not the story published by El Paso Matters it is an important element of the story of the run-off election between Kennedy and Silverstein. Thus it is important to understand who leaked the email and why.

Who Leaked The Email?

El Paso News is unable to determine conclusively if El Paso Matters leaked the email to Grossman. However, the information we have gathered strongly suggests that the email was provided to Brian Kennedy by El Paso Matters. This raises the question, was the email provided to Kennedy before El Paso Matters published its article, or after.

The timing is important as it can suggest improper election campaigning by El Paso Matters.

It is unknown who leaked the email to Grossman and when it was leaked. However, the strongest scenario is that El Paso Matters leaked it leaving open the question as to when it was leaked. Both versions are troublesome for El Paso Matters’ ethics and possibly its non-profit status.

El Paso Matters has not responded to our request for comment on the email leak.

Why does the leaked email matter?

If El Paso Matters leaked the Silverstein email to Brian Kennedy before Kennedy provided his responsive quote to Matters, it raises the question of how closely the Kennedy Campaign and El Paso Matters are working. Are they colluding together in the election? If El Paso Matters provided the email to Kennedy prior to receiving a quote from him, it provides Kennedy the opportunity to craft a responsive message to an unpublished statement before providing it to the news outlet. Normally a reporter asks a source for a comment by stating generally what someone said about them. This provides fairness in that the source does not have the opportunity to prepare a responsive statement based on unpublished materials.

An analogous example would be a television news reporter showing a source the clip of unpublished footage recorded of someone making a statement and then allowing the respondent time to formulate a response. It would be unfair to the original person making the statement because it gives the respondent time to formulate a response tailored specifically to the allegation.

If, on the other hand, El Paso Matters provided a copy of the unpublished email to Kennedy after it published its report, it raises an even more troubling question for El Paso Matters. The question is whether the news outlet is engaged in electioneering in the upcoming runoff election.

The Ethical Question

Both scenarios of who released the email and why leads to the inevitable question of whether it is ethical to provide an unpublished statement to a competing campaign during an election. Ethically it is about fairness. El Paso Matters chose to publish a portion of an email statement. The unpublished portion of the email ended up in a Max Grossman email blast. How Grossman received a copy of the unpublished email is not clear, but the evidence suggests that it came from El Paso Matters.

The unpublished email content provides additional insight to a campaign opponent that unfairly benefits one candidate over another. This unfairly supports one candidate over the other.

In a normal for-profit newsroom, the ethical question would end there, an ethical dilemma over the unfair influence by the news media in an election. However, in the case of El Paso Matters the issue becomes one of electioneering by a non-profit, which is a clear violation of the rules governing non-profits.

The Non-Profit Issue

Whether Brian Kennedy uses the email in his campaign against Analisa Silverstein and how remains unknown. But if Kennedy were to use the unpublished contents of the email to benefit his campaign, then it creates a problem for El Paso Matters.

If, as the evidence suggests, El Paso Matters released the email to Brian Kennedy then El Paso Matters would be providing material help to the Kennedy Campaign during the runoff election. This would put the non-profit status of El Paso Matters in jeopardy by participating in the election process instead of being a distant uninvolved reporter of the election.

Even if Kennedy does nothing with the unpublished contents of the email, it leaves open the question if El Paso Matters provided material help to the Kennedy Campaign by allowing them to craft a responsive message tailored to an unpublished statement.

More important is that there is no question that the unpublished material has been used in the election process. When Grossman sent out his email blast it was designed to influence the run-off between Kennedy and Silverstein, thus it is election influencing which leads back to El Paso Matters.

This is not the first-time the non-profit status of El Paso Matters is questioned this year. In August a complaint against El Paso Matters was filed with the IRS challenging its non-profit status. In the complaint, El Paso Matters is accused of being “intentionally involved in political activism.” The IRS does not routinely disclose the status of non-profit complaints and thus we do not know where in the process the complaint is at today.

Analisa Silverstein Responds

In an email statement to El Paso News on Saturday, Analisa Cordova Silverstein told us that “on election night, we sent an e-mail statement to Elida Perez at El Paso Matters to her and her only.” Silverstein added that “we are not sure why Elida shared the e-mail with Max Grossman, and we look forward to receiving clarification from El Paso Matters leadership.”

We asked El Paso Matters for a comment yesterday early in the day and have yet to hear back from them. Should they respond, we will update this article with their response. We have also not heard back from Brian Kennedy.

Martin Paredes

Reporting on public corruption, border politics, immigration and public policy in El Paso since 2000.

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