So, Is the DA Ignoring Campaign Law or Not?
Do call her Shirley.
John Gilhooley / OC Weekly
The news story in the latest Weekly is about county election-reform activist Shirley Grindle and her beef with the board of supervisors, who appointed a committee that, she says, is attempting to dismantle the county's anti-corruption campaign finance law.
But at the heart of the debates over TINCUP (that's the colloquial name for the county's contribution limits law, short for "Time Is Now, Clean Up Politics") is one question: Is the law being enforced?
Grindle says no, not really. For decades, she has been combing through county candidate campaign finance disclosure statements, looking for violations of the law and then contacting the violators. But the District Attorney has a role to play: prosecuting flagrant violators. Grindle says that DA Tony Rackauckas has been willfully negligent in playing that role ever since he was elected in 1998. A report issued by the county Grand Jury in 2008 echoed that sentiment.
As you might imagine, the DA's office--especially the office's irrepressible spokesperson Susan Kang Schroeder--sees it differently.
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So here are the facts.
TINCUP (which is officially called the "Orange County Campaign Reform Ordinance") allows for law-breakers to be prosecuted either criminally or civilly. Any citizen can bring a lawsuit against someone who violates TINCUP, but first that citizen has to give the DA a chance to take whack at it: They need to send the DA a complaint, and the DA then has 30 to 90 days to react. By the end of that time, the DA needs to say whether they're pursuing a civil action against the alleged violator, investigating it as a criminal violation or doing nothing.
The Grand Jury report issued May 2008 (read the PDF here) says that the DA's office received 11 TINCUP complaints since 1992. It also says the DA referred one of those complaints to the state's Fair Political Practices Commission for investigation, while taking no action on the other 10.
According to Senior Deputy District Attorney Rebecca Olivieri of the Special Prosecutions Unit, those numbers are wrong.
Olivieri is the OC DA's liason to the Grand Jury. When the jurors were investigating the enforcement of TINCUP, they asked her for numbers on its historical enforcement. Off the top of her head, she gave them some. She says the Grand Jury didn't ask for many specifics, and that's why the numbers in their 2008 report aren't right.
So she went back through the DA's archives to figure out how TINCUP had been handled over its history. Here's what she found:
- Since 1985, there have been 57 TINCUP-related cases and complaints reffered to the DA's office.
- Thirty-two of those have been since 1992.
- Eighteen of those cases merely consisted of requests for opinions from the DA. For example, a candidate might ask for clarification on how donors from the same corporation get their contributions aggregated under the law.
- In 14 of the cases, the DA's office reviewed the complaints and determined there was insufficient evidence to warrant investigation or prosecution.
- Five of the TINCUP complaints were referred to the FPPC, which doesn't enforce TINCUP but does enforce state campaign finance law, which in some ways overlaps with TINCUP.
- One of the cases/complaints was referred to the state's attorney general.
- In two of the cases, the candidate who received illegal contributions returned those contributions to the original donors.
- Three of the cases saw the DA issue warnings to the candidate and/or violating donor.
- Olivieri says the records for cases before 1990 are kind of sketchy; that's why she's not sure what exactly happened with six of those older complaints.
- Three cases were "self-generated," as in, investigations were initiated by the District Attorney's office itself.
- The remainder fall in the "miscellaneous" category and include lawsuits challenging TINCUP itself.
For some, one fact might override all these numbers: TINCUP has never ever been invoked by the District Attorney's office in a criminal or civil complaint, at least since 1985. But the DA's office says to not read too much into that.
"Has an actual TINCUP violation been filed as a complaint in court?" says Olivieri. "No, doesn't appear to be, but not for lack of trying."
Grindle points out a number of times, though, when she says the DA could have and should have acted on a TINCUP complaint but didn't. In 2002, she sent Rackauckas a letter complaining about the filings of just-then-elected County Supervisor Chris Norby. She also sent a letter to the FPPC. The DA declined to act, deferring to the FPPC--which eventually fined Norby $10,000 for violating state law. Grindle says that in cases such as these, if the DA had simply enforced the local ordinance, the candidate wouldn't have faced such harsh penalties from state government.
Schroeder says that interpretation is off the mark: There's no sense in the DA and the FPPC prosecuting the same person for basically the same offense, she says. Orange County Assistant District Attorney Michael Lubinski, who oversees the special prosecutions unit--the unit dealing with political crime--says the DA's office frequently cooperates with the FPPC when it is investigating local candidates. But he doesn't see any need to duplicate its work.
Grindle also says the DA has lapsed in even following the letter of the law, saying that there have been times when the DA hasn't even responded to her complaints about TINCUP--even though the statute requires some sort of response from the DA. That was the case with a letter she recently sent, relating to Dina Nguyen's 2008 campaign challenge to County Supervisor Janet Nguyen. Grindle never heard back from the DA; Lubinski says his records indicate that he never received the letter. The local state attorney general's office did, though, and responded by referring the complaint to the FPPC--a fact that, Lubinski says, backs up his argument that tthe DA is right to send complaints to the FPPC.
It all comes down to evidence, Schroeder says. In the DA's view, Grindle's complaints often simply don't come with enough empirical proof of violation to warrant investigation. But if they ever do, the DA will prosecute, she says.
Schroeder's favorite talking point on the whole matter is about Grindle: She's just playing politics, Schroeder says, by picking on candidates she doesn't like--which usually mean candidates supported by Susan Kang Schroeder's husband, Mike Schroeder. Rackauckas's predecessor Michael Capizzi worked closely with Grindle (though he, too, never actually used TINCUP in a prosecution, instead relying on money laundering statutes to take down a number of shady donors with Grindle's help). Under Rackauckas, though, Grindle no longer has the access she once had. And that's why she's mad, Schroeder says. She points to a letter Grindle wrote to the DA's office early this decade, complaining that she had been cut out of the "informational pipeline."
"Shirley just doesn't like the fact that she has lost the 'informational pipeline' that other citizens aren't entitled to," Schroeder says. "She wants special treatment from this DA's office, and she's bitter that she's lost that."
Grindle shakes her head and scoffs at the assertion that she's just playing politics. Over the years, she has picked fights with both Republicans and Democrats, and seems to openly despise most elected officials with equal gusto. And she says her beef isn't completely with Rackauckas alone; in retrospect, she wishes she had left TINCUP's enforcement to a different body.
"To ask a Republican elected official such as the DA to go after other Republican elected officials in the county is probably not a good idea," Grindle says. "It's an unfair position for him to be in."
Clarification, 12/4/09: The original version didn't make clear that when Schroeder used the phrase "informational pipeline," she was referring to Grindle's own words.
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