Saturday, May 8, 2021

[Sonoma County]Town’s new tack in mayor sex case

Grand jury could push Windsor’s Foppoli to quit

Rachel Wilcock and Vanessa Petersen protest in Windsor last month to demand the recall of Mayor Dominic Foppoli after several women accused him of sexual assault.

Faced with a defiant mayor who has refused to heed mounting calls for his resignation, Windsor officials requested Thursday that the Sonoma County District Attorney’s Office authorize a grand jury investigation into Dominic Foppoli’s “willful or corrupt misconduct in office.”

The obscure and quasicriminal process is yet another route to potentially unseat Foppoli, who was a rising Wine Country politician and winery owner until several women accused him of sexual assault in Chronicle investigations last month.

“I have been asked by our Town Council to request that your office consider commencing grand jury proceedings against Mayor Foppoli,” Windsor Town Manager Ken MacNab wrote in a letter to District Attorney Jill Ravitch.

MacNab cited the “magnitude” of the allegations and that they involved “conduct both outside his official duties as Mayor and conduct alleged to have occurred while the Mayor was acting in his official capacity, and may indicate a dangerous pattern of behavior and troubling character flaws that render him unfit to hold public office.”

In a a statement, Windsor Town Council members said the action was “provided for in California State law and is a method for removing local elected and appointed officials from office.”

Brian Staebell, the chief deputy district attorney for Sonoma County, said Thursday that Ravitch had forwarded MacNab’s letter to the California Attorney General’s Office.

One of Foppoli’s accusers is Esther Lemus, who is not only his colleague on the Town Council but also a deputy district attorney for Sonoma County. The office had already referred a criminal investigation into Foppoli to the state attorney general because its prosecutor was among the accusers.

Foppoli, who has repeatedly and emphatically denied assaulting any women, did not immediately respond to an email seeking comment. Earlier Thursday, he sent a statement to the town blasting Windsor residents leading an effort to recall him from office.

“They do not have Windsor’s best interests in mind,” Foppoli said. “They seek to advance their own leadership by any means necessary including tearing me down with false allegations.”

In addition to Lemus, six women have told The Chronicle that Foppoli, elected to Windsor Town Council in 2014 and first appointed mayor in 2018, groped, raped or otherwise sexually assaulted them in incidents that allegedly took place between 2002 and 2019. Foppoli went on to become Windsor’s first elected mayor in November 2020.

Foppoli announced last month that he would “step back” from his mayoral duties, but defied a near-universal chorus of calls for his resignation.

More than two dozen elected officials, including his Town Council colleagues, all eight other Sonoma County mayors, and both U.S. representatives from the North Bay, have urged Foppoli to step down. Foppoli’s older brother, Joe Foppoli, said the mayor had agreed to relinquish his title as chief executive officer of Christopher Creek, the winery north of Windsor that they co-own.

As an elected official, Foppoli can be removed from office by a felony conviction or a recall vote. The civil grand jury process, which is rare and often proceeds in conjunction with a criminal investigation, is another possible path.

Although the grand jury can’t remove Foppoli from office itself, it can make that recommendation to a judge depending on its findings, according to Robert Weisberg, a professor of criminal law at Stanford University.

“There are a lot of levers of power here,” Weisberg said. “A civil grand jury, although it can’t kick the guy out of office all on its own, can play a very significant role in making the case for it.”

Robert Pittman, counsel for the Sonoma County Board of Supervisors, said the Sonoma County civil grand jury is empowered to investigate allegations of misconduct against elected officials in the county and recommend their removal through what is known as an “accusation.”

The current grand jury, comprising 19 county residents, concludes its term on June 30. The next grand jury’s term will begin July 1.

Each of California’s 58 counties has a civil grand jury, normally volunteer residents selected annually under the supervision of the presiding judge of the Superior Court. Although they have subpoena powers, civil grand juries generally investigate matters related to local governments and produce reports and recommendations that identify specific inefficiencies or mismanagement. They are distinct from criminal grand juries that prosecutors convene to consider criminal charges.

Under state law, however, civil grand juries also have the unique power to investigate allegations of misconduct against elected officials and, if they decide the allegations are credible, file an accusation in Superior Court with the assistance of a prosecutorial agency.

“Accusations are rarely brought — less frequently than once a year in the state,” said Karen Jahr, a retired attorney and a current trainer and past president of the California Grand Jurors’ Association, which provides training and other support to the California grand jury system.

For accusation proceedings, Jahr said, all testimony is taken under oath in front of a court reporter. There is no definitive list of the types of misconduct that will support an accusation; however, past upheld accusations have involved the alleged commission of crimes connected to the official’s duties.

In addition, the alleged misconduct must have occurred while the official was in office, and within the past six years. For an accusation to proceed, the official must still be in office, and 12 of the 19 jurors need to sign on. The accusation can also be rolled into charges that have been brought in a concurrent criminal case.

“In the case where there is a criminal investigation going on, the grand jury can hold back to allow the criminal investigation to go forward first,” Jahr said. “There can be concerns that concurring investigations might butt up against each other.”

If the defendant either doesn’t answer, pleads guilty or is convicted by a separate trial jury of the allegations laid out in the accusation, the punishment is immediate removal from office per a judge’s order.

Grand juries ordinarily spend about six months conducting a civil investigation and writing their report, Jahr said. Weisberg estimated that a process like that of Windsor’s could take less than a year.

Although relatively rare, the civil grand jury process has played out twice in recent years in Contra Costa County.

In 2017, the Contra Costa civil grand jury found that the county’s district attorney had engaged in misconduct when he routinely used campaign funds for personal spending. Mark Peterson resigned and pleaded no contest to a felony perjury charge as part of a concurrent criminal case.

Most recently, however, Contra Costa County Assessor Gus Kramer faced a civil grand jury accusation that he had made sexual and racist comments to employees in his office. The misconduct case ended in 2020 in a mistrial, and Kramer has now filed a legal claim asking the county to cover hundreds of thousands of dollars in legal bills.

San Francisco Chronicle
Alexandria Bordas and Cynthia Dizikes
May 7, 2021

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