San Diego, CA.- IVN San Diego has obtained a letter dated September 26, 2016, from the CA Attorney General's office to John Ainsworth, the then acting Executive Director of the California Coastal Commission, discussing the legal representation the Attorney General's office provided for 5 coastal commissioners accused of violating open-government laws.
The letter, signed by Supervising Deputy Attorney General Jamee Patterson for then Attorney General Kamala Harris, brings up some questions now that a judgment has been entered against former commissioners Steven Kinsey, Martha McClure, and Wendy Mitchell and current commissioners Erik Howell and Mark Vargas.
Superior Court Ruling
On September 7, San Diego Superior Court Judge Timothy B. Taylor ordered the defendants to pay $929,046.57 in attorneys’ fees and $30,261.11 in court costs. He had previously ruled that the defendants must pay fines in excess of $57,000.
According to Taylor’s ruling, the five defendants are “jointly and severally” liable for the attorneys’ fees. All defendants are likely on the hook for more than $959,300 in attorneys fees and court costs. The members are accused of violating a multitude of rules involving private communications with applicants who have projects before the commission.
Attorney General Letter 9/26/16
Who Will Pay The Fines?
The case is bringing to light the very real possibility taxpayers will foot the bill for the defendants’ pay-to-play scheme.
Noaki Schwartz is the Public Information Officer for the California Coastal Commission. IVN reached out to Schwartz to comment on the case. She issued the following statement:
"This lawsuit stems from lingering controversy that began during a previous period at the Commission. The law entitles the commissioners to representation by the State absent malice, fraud or corruption. This Commission earlier agreed to indemnify the defendants to the full extent provided by law. The Coastal Commission is looking forward to moving past this difficult chapter and is committed to the important mission of protecting the California coast."
I asked Schwartz to clarify what “earlier” meant. She responded, "before the trial started."
There is no question the Attorney General's office provided legal representation to the defendants, and now it appears the Coastal Commission will be picking up the tab for their court costs and judgment in excess of $1 million.
Spotlight on Coastal Corruption
The plaintiff, nonprofit organization Spotlight on Coastal Corruption, sought about $22 million in fines with Martha McClure receiving an individual fine of $3.15 million.
According to Cory Briggs, the attorney representing Spotlight, each defendant is responsible for the full $959,307.68 in attorneys’ fees and court costs. “Each one of them is individually responsible for the full amount of attorney fees and costs. You can see the judge wrote for costs and attorneys’ fees, each of the defendants is ‘jointly and severally’ liable. It means collectively and individually you owe the money.”
Briggs told IVN San Diego, "It shocks the conscience that the defendants would expect taxpayers to pay for the damage done to the Commission’s reputation and to the public’s confidence in the regulators charged with protecting our precious coast. How arrogant – and politically connected -- must you be to think that you can break the law and then have someone else pay the penalty?”
The Complaint
In its complaint, Spotlight accused the defendants of violating the Coastal Act, Public Resources Code Section 30324, by conducting ex parte communications without fully disclosing them and making them public within the time limits prescribed by law.
Spotlight also accused the defendants of violating Public Resources Code Section 30327 by using their official positions as commissioners to influence a commission decision about which they “knowingly had at least one ex parte communication that was not reported.”
Spotlight also alleged that McClure and Mitchell violated Public Resources Code section 30327.5 (b) by accepting illegal gifts. In McClure’s case, this was a stay at the home of Don Schmitz, who represents clients, including U2 lead guitarist David Evans (the edge), with land development projects on the coast.
The case has been hard on McClure who had emergency surgery for an ulcer. In an interview McClure noted of the court’s decision, “It will certainly jeopardize future people who want to sit on boards or any kind of state agency. It was almost two years into this horrible (lawsuit) and I can tell you right now I’m lying in a hospital in Honolulu from the ulcer that has been created by this, with emergency surgery. I’m getting out, but that’s the kind of ramifications this stuff has.”
Kathryn Burton, Spotlight’s president, said the organization was grateful for the court’s recognition of the “extraordinary public service” the group provided to the public in bringing attention and correction to the illegal practices of commissioners.