OC Supervisors Argue Over Request for Federal Takeover of DA’s Office

The county supervisors who clashed Tuesday about how to handle DA misconduct. From left: Shawn Nelson, Todd Spitzer, and Andrew Do. (Photos by Nick Gerda and Katlin Washburn)

Orange County supervisors launched into a heated debate Tuesday over Supervisor Todd Spitzer’s call for a federal takeover of the District Attorney’s Office, with some criticizing Spitzer’s move as he called on his colleagues to hold people accountable for misconduct.

The tussle centered on a letter Spitzer sent Monday to U.S. Attorney General Jeff Sessions, asking that the federal Justice Department “take control” of the DA’s office due to allegations of systemic illegalities and wrongdoing.

Two supervisors directly criticized Spitzer’s request at their regular meeting Tuesday, before the board’s discussion continued out of public view in a closed-door session. During the public discussion, Supervisor Shawn Nelson described a federal takeover as “impossible,” while Supervisor Andrew Do said it’s inappropriate for supervisors to act on the DA misconduct allegations at this point.

In response, Spitzer laid out the list of the most recent Orange County political corruption cases and urged his colleagues to take action on the ongoing issues involving the DA’s Office.

“The board should know about this [DA misconduct]. And the board should take some action. And the board should speak up. And the board should hold people accountable,” Spitzer told his colleagues during the public discussion.

But Supervisor Shawn Nelson, a lawyer who plans to run for judge next year, told the board Spitzer’s request to the feds was a non-starter.

“Not to waste a lot of time with Law School 101, but just so I’m clear…the ask is for the Department of Justice to take control of the OCDA,” Nelson said. “That’s not possible.”

“I don’t know how we ask someone to unilaterally do something that would require a negotiated settlement. ‘Cause that’s what consent decrees are – they’re settlements.”

In many cases, the Justice Department has sued local law enforcement agencies over systemic civil rights violations, in order to obtain consent decrees in which a court-appointed monitor oversees compliance with reforms.

Supervisor Andrew Do acknowledged the allegations Spitzer highlighted in his letter “are troubling,” but said the board is limited in its ability to supervise the DA’s office because its leader, Tony Rackauckas, is “independently elected.”

“We have budgetary oversight, and that’s about all we have,” said Do.

The supervisors also oversee the defense of all civil lawsuits against the DA’s office, including those that arise from the DA’s alleged wrongdoing. And they are responsible for finding a way to pay legal settlements and judgments in civil cases against the DA, which can mean millions of dollars being drawn from the rest of the county budget.

Spitzer said he and his colleagues on the Board of Supervisors have a duty to act when misconduct is brought to their attention.

“[Former OC Sheriff] Mike Carona was engaged in felonious conduct for years, and no one did anything. It only took the federal government before they went after Mike Carona, and he was convicted,” Spitzer said.

“We have a history in this county,” he continued. “The Orange County Board of Supervisors let Bob Citron do his magic with his crystal ball and his tarot cards, and try to invest in different securities like reverse repurchase agreements, that led to the greatest municipal bankruptcy in the history of the world at that time.

“And so we better, better – when this information comes to our attention – take action.”

The board, at the request of Chairwoman Michelle Steel, continued their discussion in private during their closed session.

Do hinted at the possibility of Spitzer’s colleagues issuing a counter-letter of their own, saying the closed-door discussion is appropriate so the board can make its “complete voice” heard on the matter. But there was no action reported out of the closed session discussion Tuesday.

During the public meeting, Spitzer also questioned why Chairwoman Michelle Steel was seeking a closed-session discussion of his letter when there’s been no such discussion of an explosive legal claim against the county by Craig Hunter, the DA’s former chief of investigations, who alleged a series of illegal actions by Rackauckas.

“This board knew about Craig Hunter’s allegations weeks ago, and yet it wasn’t put on the board agenda for this discussion,” said Spitzer, a political foe of Rackauckas’ who is preparing to run for DA next year.

Hunter’s claim alleges Rackauckas violated numerous laws, allowed his chief of staff to work on a fundraiser for Rackauckas during county work time, and interfered with political corruption investigations into his political allies.

Hunter says Rackauckas fired him in retaliation for testifying to the county grand jury about wrongdoing at the DA’s office.

When a sworn peace officer is “alleging, in writing, to all of us, on the record, that felonies were being committed [at the DA’s office], it is absolutely incumbent upon us to transmit that to the Attorney General of the United States of America, because [his department is] already here investigating,” Spitzer said, referring to the ongoing federal investigation of the jailhouse informants scandal.

His message for Sessions, Spitzer said, is: “It is really important for you to come in and just have [an] overlay, through a consent decree, until you figure out, Mr. Attorney General, what the heck is going on in this county.”

Steel fired back at Spitzer’s claim of a double standard regarding Hunter’s allegations, saying many people level claims when they’re being fired.

“When people [are] about to be fired, they [make] a lot of accusations,” Steel said. “We have a lot of accusations from our employees. We cannot put everything on our closed session agenda.”

The reason Hunter’s allegations weren’t on the supervisors’ agenda two weeks earlier, she said, is because the DA has his own human resources department that has to “take care of” the claim before it comes to the board.

Do said Spitzer’s comments about his colleagues “perhaps create a misunderstanding that somehow this board condones such conduct, or we have worked to keep it kind of secret from public. And that’s something that we need to address.

“The chair touched on the HR aspect of some of these allegations. And it’s true. These involved an employer-employee relationship that has to follow its own course before it can rise to the level of actionable item that this board can act on. And it hasn’t gotten to that point.”

Do also said it’s “ironic” that in the past, when justifying expanding the supervisors’ currently-defunct law enforcement oversight office, Spitzer argued he didn’t want the federal government taking over county agencies by consent decree.

“It is imperative” that if there’s a request for the Justice Department to come in, “that at least, a complete voice will be heard from this board, and I think that’s where the closed session item is necessary.”

“I want to be able to say, let’s take a time out. Let’s let the process work itself out before we go to this level of engagement with the Department of Justice,” Do said.

Spitzer responded by speaking at length about alleged and confirmed wrongdoing by the DA’s office – including repeated violations of defendants’ right to evidence indicating their innocence – and said the board isn’t doing enough to hold the DA accountable.

“In the California Court of Appeal case, they ruled, as a matter of law, that the problems in the Orange County District Attorney’s Office are systemic,” Spitzer said, quoting the justices’ warning that “the magnitude of the systemic problems cannot be overlooked.”

“We’re the county that produced Mike Carona and Bob Citron. We had Carlos Bustamante,” Spitzer said, referring to three high-ranking officials who were each convicted and imprisoned for corruption or abuse of power after earlier warnings of wrongdoing went unheeded.

“The fact of the matter is, we don’t get to just sit here,” Spitzer said of the supervisors. Regarding the Hunter complaint, Spitzer said, “it’s not a department-head HR issue. It’s a complaint filed with the clerk of the board” that made claims against the county.

“Craig Hunter is alleging that he has files, or at least knowledge, of political corruption investigations that were quashed,” Spitzer said.

Hunter’s complaint also alleges Rackauckas failed to file disclosures, mandated by state law, that money was raised under his name for a charity event that promoted his chief of staff’s business partner.

Spitzer said he brought that issue to the board “two years ago. Two years ago!”

“The really upsetting and offensive case,” Spitzer said, was the destruction of key evidence in a first-degree murder case.

A judge ruled last week that DA prosecutors knew the original California Highway Patrol report, which found an off-duty sheriff’s deputy at fault in his own death, was destroyed, and a different report was created that placed blame on the defendant, Cole Wilkins.

The existence of the original report wasn’t disclosed to defense attorneys, although it was the prosecutors’ legal duty to do so. Calling it “serious misconduct,” Judge Thomas Goethals barred the DA’s office from pursuing first degree murder charges in the case.

When the appeals court ruled there are systemic problems in the DA’s office, that put it “front and center in front of the Board of Supervisors. That’s our job,” Spitzer said. “We have a duty to talk about that” at a board meeting.

With Bustamante, a former county executive who ultimately pled guilty to sexually assaulting county employees, “the big complaint was: the Board [of Supervisors] should have known about that, the board could have done something about that,” Spitzer said.

He called on his colleagues to appoint an “outside counsel” to conduct an investigation, as he said they normally do when department heads are accused of misconduct. The outside attorney should look into Hunter’s claims and all of the other misconduct allegations, he said.

“We shouldn’t sit on our hands,” Spitzer said. “I am not about, as an elected official, to have allegations of felonious conduct come to my attention, and do nothing.” 

“That’s what a former CEO [of] this county was alleged to have done, and other county employees. They knew felonious [actions were] being conducted by Carlos Bustamante. They did nothing,” he continued.

County Counsel Leon Page told supervisors they were allowed to talk in closed session about Spitzer’s letter to the Attorney General, “as well as a potential response” to it.

Page said that’s because Spitzer’s letter “presents a significant exposure to liability” to the county, by increasing the likelihood of the Justice Department filing a civil rights lawsuit.

After the meeting, county officials confirmed the supervisors discussed the item in closed session, but no action was reported.

Meanwhile, investigations of the DA’s informants misconduct continue, led by the U.S. Justice Department, California Attorney General, and Orange County Grand Jury.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.