Blog note: This article refers to an accusation filed by the Contra Costa Grand Jury
MARTINEZ >> Less than three weeks before the Nov. 3 election in which he is running for a seat on the Board of Supervisors, Contra Costa County Assessor Gus Kramer must go to trial to face civil "corrupt or willful misconduct" charges, a judge has ruled.
In a case that has seen more than a year of legal delays, Superior Court Judge John Cope decided Friday to allow a grand jury's formal accusation against Kramer to proceed to a jury trial on Oct. 19.
Before doing so, he denied a motion by Kramer's defense attorneys, Michael Rains and Nicole Pifari, to "set aside" the accusation.
Rains and Pifari had argued that the Contra Costa civil grand jury used "inadmissible evidence" - what they called hearsay - in determining to file an accusation to remove Kramer from office. The accusation says that between 2013 and 2018, Kramer made sexual comments multiple times to female employees in his department and once made a racist slur to a worker.
Even if the court were to accept the witnesses' allegations as true, Rains and Pifar argued, the alleged harassment as witnesses described it was "not pervasive" and they were not "subjectively" harmed. At most, some were made "uncomfortable," the attorneys said.
Rains had also argued that the grand jury process itself was mishandled, noting there was no evidence the jury had received proper instruction in what to look for, what questions to ask and what information to gather to establish whether Kramer had indeed created a hostile work environment or engaged in willful misconduct.
Rains also argued that the grand jury was used as a political pawn by the Board of Supervisors. In late 2018, the board voted to censure Kramer and refer the matter to the grand jury after an independent inve st igat or sust a ined findings that he likely had made inappropriate sexual comments to women employees.
Kramer has multiple times since then denied any wrongdoing, claiming that the allegations are fabricated and part of a campaign against him.
Cope dismissed Rains' arguments about the jury process, noting that "The details show to this court that the grand jurors understood the legal instructions and specifically made their factual findings in the accusation." He went on to say it was not his role in the hearing to weigh how egregious Kramer's conduct was after the grand jury made its accusation.
Rather, "My job is to establish whether there is sufficient legal evidence to support the grand jur y's decision," Cope explained. "The jury found that in each of those instances - and overall - that the harassing conduct was pervasive. This court, by the standard of legal sufficiency, is finding that there is legally sufficient evidence to support the accusations in this case." "This is a disappointing spectacle of justice," Rains said in an interview after the hearing. "There is no justice the way this is played out." Rains railed against the judge's decision to not allow him to explore on the record his contention that the jury destroyed documents related to witness testimony.
"Nobody should be subjected to removal from public office when important evidence that would exonerate him is being destroyed," Rains said.
"Twelve grand jurors ret ur ned this a ccusation," Cope pointed out to Rains during the hearing. "What you're going to be left to argue is that all 12 of them were politically biased or improperly motivated. That's attacking an institution without any evidence. I'm not going to allow that to happen, frankly.
"There are ways to litigate whether it's right or wrong, and that's at a trial." Kramer's case has stretched across multiple hearings since the accusations were first filed in June 2019. Both the District Attorney's Office and Rains initially filed motions to remove Contra Costa County prosecutors from the case and hand it over to the state Attorney General's office, but Superior Court Judge Theresa Canepa denied them.
Canepa subsequently bowed out of the case, citing time constraints, and Charles "Ben" Burch temporarily took over, overseeing a series of motions and scheduling the trial to begin in January 2020. But the case then went to Cope when Burch took on a new assignment within the court.
Even motion hearings scheduled for earlier this month were delayed - first because of a homicide trial Cope was overseeing, and then because an attorney was ill. Now, the trial can commence on Oct. 19.
It's unclear how long the trial will take, but Cope estimated it would stretch over three weeks - several days past the Nov. 3 election in which Kramer is running against District 5 Supervisor Federal Glover. The race is actually a runoff from the March election, when Glover failed to secure the needed majority vote to win outright against Kramer and fellow contender Sean Trambley.
Regardless of the trial's outcome, Kramer could take the supervisor seat if he wins. While the case is being prosecuted by the District Attorney's Office in much the same way as a criminal trial, the consequences do not involve jail time or any felony or misdemeanor convictions. The only repercussion would be Kramer's removal from his position as county assessor. He has been reelected as the assessor multiple times since first winning the seat in 1994.
The process of removing municipal and county elected officials from office through a grand jury accusation alleging "corrupt or willful misconduct" is rarely used, but it is permitted by a 1943 state law. A unanimous jury verdict is needed to remove the official, who can then appeal.
East Bay Times
Annie Sciacca
September 26, 2020
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