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By Howard Cole
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Prosecutors refuse to discuss the case and why they didn't take action. Assistant DA Thomas Bogott, the lead attorney of political corruption cases, offered this response in a June 20 letter regarding a request for files: "I am quite concerned about the type of information you are requesting since it can cause harm and unwarranted damage to reputations when no public action was taken."
In May, Smith announced his campaign "dream team," with John Whitehurst as his lead consultant.
The suggestion that politics drives prosecutions makes Carbone and Bogott angry. They blame their poor record on inadequacies of the law.
They have a point: Search warrants and subpoenas are a prosecutor's best tools, but they can only be used in felony cases and not the misdemeanor cases that fall under the ethics charges. Therefore, prosecutors must rely on the cooperation of people who have every reason not to cooperate.
"It's a real mistake in the drafting of the law," Carbone says. A mistake -- surprise -- that the state Legislature has refused to correct on several occasions.
Carbone adds that his office focuses on criminal cases, even though district attorneys can proceed in civil court.
"We look for criminal cases like money laundering and vote fraud," he says.
But those cases are hard to make because a prosecutor has to prove bad faith on the part of the defendant, which is difficult. "We don't focus on cases where there's an inadvertent violation," Carbone says. "We look for willful violations."
Moreover, Carbone says, the vast majority of the cases the office receives are "sour grapes" complaints, meritless filings made by candidates who lose an election.
Still, questions remain about how interested the DA is in enforcing ethics laws. For one, why the inaction and amnesia on the FPPC referrals?
Reading from an FPPC computer printout, the cases tick off: California Judges Association? "No recollection," Carbone and Bogott say. The call and response goes on from there.
And on and on until ... Wendy Nelder? Finally, a synapse sparks. "We looked at it," Bogott says. "But there was no chargeable offense."
Carbone estimates that less than 10 percent of the FPPC referrals are ever looked at. He says the office doesn't have the manpower to do more with the FPPC filings.
But in bankrupt Orange County, the DA reviews all FPPC referrals carefully and prosecutes or sues in civil court 10 percent of the time, according to Wallace Wade, the assistant district attorney in charge of Orange County's political corruption unit. (Orange County contains more than 30 cities. San Francisco County has only one.)
Wade thinks it's a good idea to review FPPC referrals.
"If the FPPC takes action, we will sometimes find something more because we are more familiar with the local scene," he says. "We will make connections and see implications that they may not see because we are on the scene here."
Carbone thinks the FPPC does a good enough job. "Those guys are the pros," he says.
Making the DA's excuses even harder to swallow is the office's complete lack of proactive investigations. In several other California counties -- Los Angeles, Orange, and Riverside, for example -- the DA conducts periodic audits of all campaign finance filings. Riverside has gone as far as to conduct sting operations.
"We look for obvious things like late reporting, contributions made on the same date, things like that would indicate a problem," says Orange County's Wade, who adds that his office regularly turns up prosecutable offenses through audits.
Carbone admits that proactive audits are a good idea. "Every county that has tried them has had success," he says.
So why isn't San Francisco doing audits? "We don't have that kind of manpower," Carbone says.
Bogott offers a different answer. "I don't think it would be a good use of our office's resources to scrutinize every report filed," he says.
If anyone makes the DA look good on ethics enforcement, it's City Attorney Louise Renne.
Like the DA, she declined to bring civil action against Maher and his cohorts for the Castro "hit piece" mailer. And she's equally responsible for the three-year delay in resolving the Common Cause complaint against James Fang for funneling Ning Yung money into Jordan's 1991 mayoral campaign. She also gave Fang a pass on the airline-upgrade issue, saying the attorney general's opinion would have made it impossible to win in court.
Renne says she has an official policy of allowing one unpunished violation of the law prohibiting the use of public resources for political purposes -- essentially advertising her willingness to look the other way. Likewise, she sends only warning letters to lobbyists who fail to report contributions to politicians, though the law allows her to impose fines.
Citing "attorney-client" privilege, she refuses to make public letters her office writes alerting elected officials of their financial conflicts. And despite numerous violations, some of which have been reported in the press, Renne has never acted to enforce the law requiring lobbyists to disclose their activities. She has also been silent when several city commissioners have failed to disclose their conflicts of interest.