As a campaign to recall Windsor Mayor Dominic Foppoli gets haltingly underway and law enforcement investigations proceed out of the public eye, town officials and Sonoma County political observers determined to oust the defiant mayor have looked to a rarely used civil grand jury proceeding for relief.
The
Windsor Town Council — minus Foppoli, who did not attend the April 21 meeting —
directed the town’s attorneys to research the proceeding and if possible, draft
a letter asking the California Attorney General’s office to request a grand
jury investigation.
Such
local bodies have been used to charge and seek removal of public officials
accused of official misconduct.
However,
legal experts say the nature of the allegations against Foppoli make for an
uphill and unlikely battle for any such grand jury investigation. Even if there
was a route forward, the process — which can involve both a secret grand jury
and public trial jury — is not much faster than a recall election, experts say.
“I
don’t want anybody to think that is something that could happen in a few weeks
and lo and behold there’s an accusation” from a civil grand jury, said Karen
Jahr, a past president and current official of the California Grand Jurors’
Association.
The
scandal that has enveloped Foppoli is still less than a month old, but after
briefly appearing to direct an unprecedented April 14 special town council
meeting, the mayor has retreated from public eye and issued few public
statements about his intentions. The scandal has widened since four women came
forward April 8 in the San Francisco Chronicle to publicly accuse Foppoli of
sexual assault and abuse. Three other women have now alleged abuse and assault
by Foppoli, including Windsor Councilwoman Esther Lemus.
Foppoli
is under a criminal investigation led by the Sonoma County Sheriff’s Office and
including the state Attorney General’s Office. The timeline for that process is
undefined, said Misti Wood, the Sheriff’s Office spokeswoman. It “takes as long
as it takes,” she said, declining to comment on the case’s status.
Outside
of a felony conviction, the other main way to remove an elected official from
office in California is through voter recall, a slow-moving and costly process
that could run the town anywhere between $50,000 and $84,000, according to
officials.
A
vote to recall Foppoli may come as late as next spring, according to recall
organizers.
Foppoli,
meanwhile, has proclaimed his innocence and said he would “step back” from his
regular duties as mayor. But he retains his directly elected seat and powers
over the conduct of town business.
The
consideration now being given to the grand jury option reflects just how
determined Foppoli’s many critics are to see his ouster — and also how
difficult it is achieve when an elected official won’t step down.
Grand jury proceeding
Buried
in state law, Government Code section 3060 outlines the process in which a
civil grand jury can be employed to investigate an elected official and
initiate a court proceeding to remove them from office. Eligible offenses
include “willful or corrupt misconduct in office.” The procedure applies to
officials at the county and city levels.
Every
county in California has a standing civil grand jury. The bodies conduct their
proceedings in secret and have wide latitude to conduct civil investigations.
When the juries investigate wrongdoing by public officials, the standard of
evidence is lower than what would be needed for a criminal conviction. The
procedure is “neither criminal nor civil,” Jahr said.
“There
aren’t any criminal penalties,” she said. “A conviction does not result in a
sentence of going to jail or a fine. The only result is the person is removed
from office.”
The
process is rarely used. Jahr estimated there is less than one case a year.
One
recent example comes from Contra Costa County, where the assessor was accused
of sexual harassment and other misconduct by a number of his female employees.
The Contra Costa Board of Supervisors asked a grand jury to investigate, and in
June 2019 the jury accused the auditor of misconduct, resulting in a trial for
his removal from office, according to the East Bay Times.
But
a hung jury led the judge to declare a mistrial, and in February 2021, the
Contra Costa District Attorney’s Office announced it would not retry the case.
The assessor, Gus Kramer, remains in office.
If
the Sonoma County Grand Jury investigated and decided there was sufficient
evidence of misconduct by Foppoli, the jurors could call in writing for his
removal from office. The case would then be prosecuted in open court in a jury
trial that would consider the merits of the grand jury’s stance. Foppoli would
have the right to legal representation.
It
was unclear whether there is any recent precedent in Sonoma County. Sonoma
County District Attorney Jill Ravitch has recused her office from the
investigation. The Board of Supervisors has little oversight authority over
elected officials in an incorporated community like Windsor and is not pursuing
a grand jury investigation, Sonoma County Counsel Robert Pittman wrote in an
email on Tuesday.
Many
California counties have never seen a civil grand jury seek to remove an
elected official, William Larsen, a retired San Mateo and Santa Clara
prosecutor who used to teach seminar classes on the procedure said.
“Most
district attorneys and deputy district attorneys don’t have a clue of what the
process is,” he said.
There’s
a bigger hurdle in Foppoli’s case, one that may be insurmountable, Larsen said.
So far, the public allegations against Foppoli, even those made by Lemus, do
not involve sexual assault while Foppoli in the course of conducting his
mayoral duties.
“It
has nothing to do with the carrying out of his office,” Larsen said. “It
certainly has to do with his character but that’s irrelevant to the law.”
Larsen believed the bar for what counted as misconduct “in office” was high.
The
California Grand Jury Association also saw little precedent. “We are unaware of
any accusations that has involved misconduct unrelated to the defendant’s
official duties,” Jahr said.
Windsor’s
attorney on Foppoli matters is Joan Cassman. Her research on the grand jury
option remains ongoing and she declined to comment while that work was in progress.
Push to change law
Even
as the embattled Windsor Town Council grapples with paths to remove Foppoli
from office, some are calling for changes to state law or municipal code for
similar situations in the future.
At
the April 21 meeting, Lemus, a deputy county prosecutor, asked the council to
look into new policies and procedures for investigating misconduct allegations
against elected officials. She also asked for an initiative to “promote healing
and the rebuilding of trust with the community.”
As
an example, she pointed towards community healing events in Santa Rosa
following the 2013 death of 13-year-old Andy Lopez, who was shot and killed by
a Sonoma County sheriff’s deputy.
The
council supported Lemus’s proposals.
In
an email, Fudge said she’s asked state Sen. Mike McGuire, whose district
includes Windsor, to consider changes to state law as well.
“It’s
pretty clear” that any bill the lawmaker might consider to attempt to remove
Foppoli from office would be unconstitutional, McGuire said in a statement
Wednesday night.
“That
said, we don’t want to leave any stones unturned,” he said. “We continue to do
our due diligence and have run the request by a State Legislative Lawyer and
we’re awaiting guidance.” Like others, he reiterated his call for the mayor to
resign.
Press-Democrat
By Andrew Graham
April 28, 2021
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