Monday, August 1, 2016
[Orange County] Does O.C. local government need more oversight?
Blog note: this article references two grand jury reports calling for an independent ethics commission to police political misconduct.
A pack of pit bull prosecutors once attacked public corruption in Orange County. They took down scores of politicians – county supervisors who sold their votes, city officials who squeezed money from strawberry farmers, a U.S. congressman who accepted bribes before he hit the big time.
Crusaders Cecil Hicks and Mike Capizzi won convictions, guilty pleas, jail sentences – and a curious combination of renown and resentment that, for Capizzi at least, hardened to scorn.
Capizzi’s zealous pursuit of fellow Republican powerbrokers for alleged political crimes as Orange County’s elected district attorney earned him jeers of “traitor” and “political grandstander.” After years of bruising court battles, some cases were ultimately dismissed. The Republican establishment turned its back on him, and Capizzi’s quest for higher office came to a screeching halt.
When Tony Rackauckas campaigned to succeed Capizzi in 1998, he pointedly promised to focus on attacking violent crime rather than generating “political publicity.”
Four terms later, Rackauckas has kept his word. But has he kept it too well? And is additional investigative oversight of local agencies in the county needed?
Rackauckas has investigated many public officials over the past 16 years. He has tended toward prosecutions involving public employees engaged in embezzlement and sexual harassment, as well as misconduct by police officers.
Cases that fall into more nuanced political realms – such as elected leaders accused of breaking campaign laws or taking actions that may benefit themselves financially – are often passed to the state’s Fair Political Practices Commission, which can wag its finger and levy civil fines but cannot press criminal charges.
“It’s possible that this D.A., unlike his predecessors Capizzi and Hicks, does not prioritize the value of prosecuting cases of political corruption,” said Mark Petracca, political science professor at UC Irvine. “It’s certainly not like such cases have disappeared. It’s that decisions are being made not to prosecute them.”
Rackauckas bristled at suggestions that he goes easy on public officials. His office looks into every corruption complaint it receives and brings criminal charges when they’re appropriate, the district attorney said, including cases filed against elected officials in Huntington Beach, Santa Ana and Laguna Beach.
But he does not want his office played by warring political machines, he said.
“Particularly during campaign seasons, political candidates accuse their opponents of all kinds of bad and criminal things,” Rackauckas said. “They want to be able to say, ‘So-and-so is under investigation by the District Attorney’s Office.’ I don’t think the D.A.’s Office should be used as a political tool.”
That stance may be laudable, but Orange County voters are demanding more.
Two grand juries have called for an independent ethics commission to police political misconduct in the county since 2013, citing its “reputation for impropriety rivaling that of New York’s Tammany Hall” and a general reluctance among elected leaders to pursue political cases.
Indeed, county supervisors repeatedly rejected calls for a new ethics commission, saying it was unnecessary and redundant.
Fed up, citizen watchdogs launched a ballot initiative to force the creation of an independent ethics commission. It was approved in June by 70 percent of voters.
Victory raises new possibilities, and issues: How robust should this new watchdog be? What about its reach and power?
Several cases of potential conflicts or misuse of government resources have come to the fore recently. They include steeply discounted stays by county workers at a county-owned hotel in Dana Point; the failure of Brea’s former city manager to disclose more than $100,000 in payments from a private water company, even as Brea’s investments in that company skyrocketed; and taxpayer-funded mailers sent by a county supervisor.
The D.A. is reviewing the first two cases, but no criminal charges have been filed. The Fair Political Practices Commission is investigating the supervisor’s mailers and the former Brea city manager’s dual roles. Officials involved in the cases say they did nothing improper.
However, a private attorney who has examined the Brea water deals asserted that the D.A. missed the boat. The then-city manager may have helped set the price for water rights and stock bought by the city and personally profited as a result, argued Patrick Muñoz, the attorney with Rutan & Tucker who was hired by a Brea developer who has tangled with City Hall.
Brea’s investment in the water company ballooned to more than $39 million from less than $400,000 while the then-city manager, Tim O’Donnell, served on its board.
O’Donnell believed he didn’t need to disclose payments because they came from the company’s subsidiary, which didn’t directly do business with Brea, the D.A’s office said. Even if he was obligated to disclose that income, or recuse himself from contract discussions, prosecutors “would be unable to prove beyond a reasonable doubt that he understood those requirements, and willfully chose not to follow them,” the D.A. investigator wrote.
The D.A. took for granted the assertion that the water company and its subsidiary are separate when they are one and the same, Muñoz wrote in a letter to Brea’s City Council.
After the FPPC’s probe concludes, Rackauckas said, he’ll decide if anything further is warranted.
The law requires prosecutors to weigh intent, said Ebrahim Baytieh, assistant D.A. and head of the special prosecutions unit that handles public-integrity probes. There’s a difference between doing things inefficiently and ineffectively and committing a crime, he said.
District attorneys in other large California counties – Los Angeles, Riverside, San Diego, San Bernardino, Santa Clara and Alameda among them – have discrete “public integrity” units dedicated to investigating allegations of misuse of public funds, electoral fraud and professional impropriety by elected and appointed officials.
But not Orange County.
In 2012, Rackauckas sought funding for such a team from the county Board of Supervisors, which controls his purse strings. He cited increased complaints of illegal or inappropriate use of public funds, bribery, election and campaign violations, conflicts of interest and malfeasance in office.
Supervisors balked, saying such a unit could launch unwarranted investigations to justify its existence. In the end, the board approved several new positions for Rackauckas’ existing “special prosecutions unit,” which pursues a wide variety of cases, including public corruption.
That unit numbers 13 prosecutors for a county of more than 3 million people.
As an independent elected official, Rackauckas could carve out a public integrity unit by reassigning prosecutors from his current staff. But that would leave the office short-handed elsewhere, he said.
Many other large California jurisdictions also have had long-established, independent ethics commissions to probe allegations of political misconduct. Among them are the city of Los Angeles and the counties of San Diego, San Francisco, Ventura and San Bernardino.
Finally, forced by voters, Orange County is joining their ranks.
Officially called the Campaign Finance and Ethics Commission, the new watchdog unit here will provide administrative oversight of the local campaign laws regarding contributions, lobbyists, gifts and more.
It is limited, at least for now, to cases involving county government, a nearly $6 billion yearly enterprise. The panel will have subpoena power and will track campaign contributions, as citizen watchdog and initiative sponsor Shirley Grindle has done by hand for nearly 40 years.
Details are being worked out, but supervisors voted last month to add three full-time positions to staff the commission, at a cost of $549,000 this year.
The panel won’t have jurisdiction over the myriad local governments in the county – cities, school districts and special districts.
That might change. More agencies could contract with the new commission to police ethics, Grindle said. And they should consider it, she added.
Much work remains: Will complaints that now pour into the D.A.’s Office go to the ethics commission? How will the D.A. and the panel work together?
“We will have to see,” Rackauckas said. “If they’re seeking criminal prosecutions, they will have to come to us.”
PASS OR PROSECUTE?
Orange County District Attorney Tony Rackauckas has drawn criticism over the years for his office's approach to cases involving powerful politicians and public employees.
"It's widely known that Tony Rackauckas does not prosecute elected officials accused of public corruption," said Fred Smoller, political science professor at Chapman University. The D.A. says such characterizations are incorrect and unfair. Here's a look at some political investigations during Rackauckas' tenure:
• Smoller says: "It took the feds to put Sheriff Mike Carona in jail." Carona was indicted by a federal grand jury on charges that he illegally accepted bribes of cash and lavish gifts in exchange for political favors and was convicted of a single count of witness tampering. Carona served a four-year prison sentence. Rackauckas rejected assertions that he let Carona slide. "We had an agreement with the (U.S.) Department of Justice – we split that," he said. "We investigated allegations on (former Assistant Sheriff George) Jaramillo, and we sent everything we got concerning Carona to the DOJ. To suggest we were sitting on our duff during that is wrong."
• The D.A. investigated Santa Ana Mayor Miguel Pulido in connection with a land-swap deal with a city contractor. After a lengthy probe, the D.A. handed the case to the FPPC, which fined Pulido $13,000 for voting to renew the city's contract with an auto parts dealer who had swapped land with Pulido's family.
• Days after hospital executives wrote checks totaling $5,000 for then-County Supervisor Janet Nguyen's re-election in 2012, she voted to pay $750,000 to a hospital network owned by one of those executives to settle a lawsuit over unpaid bills. Nguyen, then a trustee with the county's health system for the poor, said she did nothing wrong, and the D.A. concluded there were no criminal conflict-of-interest violations. The FPPC concluded that conflict-of-interest laws didn't apply because the votes did not involve a license, permit or other entitlement pending before the agency.
Rackauckas cites several sensitive public integrity cases his office has pursued, including:
• Former Assistant Sheriff George Jaramillo, who pleaded guilty to felony counts of perjury and misappropriation of public funds in 2007. Jaramillo lied under oath to the grand jury about getting paid by a private company; he used department employees to demonstrate that company's products; and he misused a helicopter and other equipment for personal travel.
• Carlos Bustamante, once the county's public works administrator as well as a Santa Ana city councilman, was charged and pleaded guilty to multiple sex-related charges after seven female county employees accused him of making unwanted advances.
• Two Fullerton police officers were charged with fatally beating Kelly Thomas, a mentally ill man, and three Santa Ana police officers were charged with petty theft, and one with vandalism, after raiding a marijuana dispensary and sampling the edibles. The Fullerton officers were acquitted, and the Santa Ana officers, who no longer work for the department, have pleaded not guilty.
July 24, 2016
The Orange County Register
By Ted Sforza