Political watchdogs are accusing county Supervisor Shawn Nelson of breaking local campaign finance law as he tries to position himself to become a judge.
In the year following his re-election in June 2014, Nelson raised $47,000 in donations from 66 different people and groups that could be illegal under the county’s campaign finance law, a Voice of OC review of his campaign filings found.
Nearly all of these contributions were collected through his supervisor committee, which he re-named to “Shawn Nelson for Supervisor 2018.” But there’s a problem: Nelson can’t run for supervisor in 2018 because he’s termed out.
And county law blocks him from raising money into his supervisor account after he’s elected to his final term, according to the law’s author and a prominent elections law attorney.
Nelson has avoided answering direct questions about the name change, other than to say he was following his treasurer’s recommendation because the 2014 election had passed.
But the working theory among many who track local politics is that Nelson is using his lucrative position as a supervisor to build a war chest for a run at a Superior Court judgeship, something he openly covets.
Last week, District Attorney Tony Rackauckas’ office quietly cleared Nelson of any wrongdoing. But a prominent legal authority and the author of the local law are openly disagreeing with the DA’s position, saying the law prohibits Nelson’s actions.
State authorities have already cried foul, saying he couldn’t keep using 2018 in the name because he’s not running for that office. That prompted Nelson to change the year back to 2014 last month.
But that doesn’t necessarily get him off the hook. Retroactively changing the name of the committee doesn’t change the fact that he raised the money under the false premise of running for an office he can’t hold, say campaign finance watchdogs.
TINCUP Violations?
Then there are the specific issues regarding the county’s campaign finance law, known as TINCUP, an acronym for “Time Is Now Clean Up Politics.”
It limits candidates to collecting a maximum of $1,900 per donor during each election cycle. The idea is to spread the money influence over elected officials beyond just the wealthiest residents and organizations.
At issue in Nelson’s case is whether he can keep raising money into his supervisor account after being elected to his final term. The answer to that question is no, because he clearly is not a candidate for re-election, says Fred Woocher, a prominent campaign finance attorney.
“My interpretation would be that you have to be an actual candidate for OC elective office in order to be able to receive any campaign contributions for that upcoming election,” Woocher told Voice of OC.
TINCUP “appears to prohibit someone from collecting any campaign contributions after the close of the previous election cycle,” he added, which in Nelson’s case would have been June 30, 2014.
The law’s author agrees. “In my opinion he is not a candidate and he cannot raise money,” said Shirley Grindle, who wrote TINCUP.
But Nelson hasn’t stopped.
He held a fundraiser in June 2015 that netted over $43,000 in contributions and other support from key players who have business before Nelson at the county, like parking contractor PCI, hospitals, and longtime landlord Mike Harrah.
Other generous donations came from the Segerstrom family real estate business and county jail phones contractor Global Tel-Link.
More recently, he held a fundraiser in November that likely raised thousands more in contributions. Those won’t be publicly known until he files an upcoming disclosure, which is due by the end of this month.
While some candidates fundraise after elections so they can pay off debts, that wasn’t the case with Nelson. After his June 2014 re-election, he had no campaign debt and $95,000 in the bank.
(Click here for a list of contributions to Nelson since his re-election cycle ended.)
People who willfully violate the TINCUP limits can be charged with misdemeanors, and if convicted are barred from running for county office for four years. If a violation isn’t willful, the DA can issue fines of $5,000 per violation.
But Rackauckas’ office has already decided that Nelson has done nothing wrong.
After concerns about his fundraising became public, Nelson apparently reached out to County Counsel Leon Page’s office about the issue.
Page’s office referred the question to the DA, which gave the green light to Nelson in a memo last week that wasn’t publicly announced.
“An office holder is not prohibited from accepting campaign contributions for each new election cycle subject to the campaign contribution limits of that election cycle,” Senior Assistant District Attorney Mike Lubinski concluded in the memo, citing that the limits apply “per election.”
(Click here to read the DA’s memo.)
He also referenced a 2008 opinion from the County Counsel’s office allowing supervisors to receive campaign contributions during their last term in office. A county spokeswoman declined to provide that opinion to Voice of OC, citing county policy not to release such legal opinions without board approval.
The DA’s memo, however, made no reference whatsoever to the main TINCUP provision on fundraising limits, which seems to require candidacy in a given election in order to to raise campaign funds for that cycle.
Asked whether that provision was taken into account in the analysis, Assistant District Attorney Ebrahim Baytieh – who supervises the DA’s political prosecutions unit – deferred comment to a DA spokesperson.
But the spokeswoman, Roxi Fyad, refused to comment, citing an Orange County DA policy of not responding to questions from Voice of OC.
Woocher said the DA’s explanation for clearing Nelson is extremely weak.
“Yeah, that opinion is about as bereft of actual legal analysis as anything I’ve ever seen (not that I would expect much more from the OC DA’s office),” Woocher said.
“The issue isn’t whether we are in a new ‘election’ cycle,” Woocher said. “The issue is that Nelson is not and cannot lawfully be a ‘candidate’ for Supervisor, so he cannot lawfully solicit and receive campaign contributions as a candidate for that office.”
Nelson, meanwhile, says he’s “fully complied” with the rules, given his support from Rackauckas’ office.
“I have an opinion from the DA that I am in a new cycle and the DA consulted County Counsel and the Registrar. All agree a new cycle started,” Nelson wrote in a text message to a Voice of OC reporter.
“According to the authority that enforces [TINCUP] I have done what I am supposed to do.”
When pressed on his reasoning, Nelson said new cycles under TINCUP are separate from a person’s status as a candidate.
“Tincup [sic] authorizes office holders to raise and spend money. Cycles are defined in a separate section. A cycle starting is not related to your status as an office holder or candidate,” Nelson wrote.
“Once [I’m] told they consider me in a new cycle I don’t have a place or reason to argue.”
‘Own Up’
Beyond the legal issues, Grindle says it’s wrong for Nelson to keep raising money into his supervisors’ account when he’s termed out and actually planning on becoming a judge.
“Shawn should not be doing this. It’s unethical…own up to what you’re doing Shawn. Set up a committee to run for judge,” Grindle said.
Judicial campaigns have the added benefit of no contributions limits, Woocher noted. “Why he doesn’t do that is somewhat surprising, since he would not have any contribution limits to worry about if he ran for judge,” he said.
Any county resident can enforce TINCUP by suing the alleged violator, who if found liable has to pay up to $5,000 per violation or three times the amount illegally received. The plaintiff would receive half of the judgement.
Grindle noted that TINCUP was written before supervisors’ term limits. So she wants the supervisors to adopt language that updates the law to allow a new $1,900 per donor cycle for termed-out supervisors, but restricts them from transferring that money to run for a different office.
She also said she’s gotten indications that the mind behind Nelson’s fundraising machinations has been his chief of staff, Denis Bilodeau, who was an Orange councilman and serves on the Orange County Water District board.
“I’m about ready to tell Shawn Nelson, about the best thing he could do for his career is get rid of Denis Bilodeau,” Grindle said.
She went on to describe Bilodeau as “a sneaky little petty individual..always looking for something on somebody else, when [actually] he’s the culprit.”
Bilodeau didn’t return messages seeking his response to Grindle’s remarks.
Update (3:39 p.m.): This story has been updated to note that Nelson had no campaign debt and $95,000 in the bank after his re-election in June 2014. It also now includes a link to a list of Nelson’s contributions since his re-election cycle ended.
You can contact Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.