Recommended reading:
MADMAN IN OUR MIDST: Jim Jones and the California Cover Up
by Kathleen Kinsolving and Tom Kinsolving
In this article, Tom and Kathleen Kinsolving describe what happened when their father, Les Kinsolving, began investigating the People's Temple. His early articles began to expose what was happening with the People's Temple. He had many interactions with Tim Stoen.
After the massacre at Jonestown, "Kinsolving was notified by the FBI of Temple death squads, and advised by agents that he should arm himself. Weeks later, the New York Times reported that Tim Stoen "planned the murder of Lester Kinsolving" and "had even used the District Attorney's office of Mendocino County" to research "the type of poison that could be used."
It's fascinating reading, especially if you are interested in understanding Tim Stoen's role in People's Temple. You may see marked similarities between his activities and comments then and his activites and comments in Humboldt County.
Some excerpts:
"Stoen elaborated on a long list of achievements, such as Jones's past appointments to various positions of public trust, "including Foreman of the Mendocino County Grand Jury...and that Jones was "the most compassionate, fearless, and honest person I know of..."
"Within a few minutes of entering People's Temple Sanctuary, Kinsolving was interrogated by Stoen, who was wearing a blue-green pulpit robe. Stoen then revealed himself not only to be an (unordained) assistant pastor of People's Temple, but Assistant District Attorney of Mendocino County."
Stoen's comments about "this wonderful group of people and their remarkable pastor Jim Jones...Jim has been the means by which more than 40 persons have literally been brought back from the dead this year.
"...I have seen Jim revive people stiff as a board, tongues hanging out, eyes set, skin graying and all vital signs absent...Jim will go up to such a person and say something like "I love you" or "I need you" and immediately the vital signs reappear...Jim is very humble about his gift and does not preach it..."
"The Sept. 20 story, "Probe Asked of People's Temple", revealed that earlier that year Ukiah Baptist pastor Richard Taylor had asked Mendocino County District Attorney Duncan James to investigate Tim Stoen's conduct surrounding Temple member Maxine Harpe's suspicious suicide."
For Leo J. Ryan, who gave his life, we dedicate this article.
© 1998 Kathleen and Tom Kinsolving
***
***
After 30 years, Jim Jones aide seeks forgiveness - Stoen apologizes to reporter: 'You were right ... I was wrong'
Wednesday, March 2, 2005 By MIKE GENIELLA THE PRESS DEMOCRAT
30 years later, Tim Stoen apologized to Les Kinsolving. One wonders if he will do the same to Debi August and Pacific Lumber Company.
"From my heart, I apologize for my mistreatment of you, including the
organizing the picketing, filing the lawsuit, and castigating your
motives."
***
Pages
▼
Sunday, April 30, 2006
FROM THE LAST DAY of THE DEBI AUGUST TRIAL
I hesitate to call it a trial, because this "trial" never made it to the Jury selection process.
Stoen's pattern seems to be to try his cases in the public, in the media, in a usually successful attempt to get his prey to settle to avoid court costs and further embarrassment. In both his cases in Humboldt County, people stood up to him and his cases were dismissed outright without ever making it to trial. One called "Smoke and Mirrors" and worse. Had Debi August not stood up to him, she would have been another notch on his belt. Instead he was exposed.
The information contained in this DECLARATION and its 19-page attachment reveals that:
The DA (Paul Gallegos) and ADA (Tim Stoen) told the Grand Jury that everything would remain secret if they went forward with the accusation.
They assured them that witnesses would not be identified.
Gallegos and Stoen disclosed confidential Grand Jury information without the permission or notification to the Grand Jury.
Gallegos and Stoen affirmatively sought the release of the information they assured the Grand Jury was totally protected by "attorney client privilege."
Stoen expressly told the Grand Jury that he was "their attorney."
Stoen waived the attorney-client privilege he had promised the Grand Jury against the wishes of the Grand Jury, but in favor of his office which clearly had a conflict in the matter.
The grand jury accusation process was being run by the DA (Gallegos) and ADA (Stoen).
Gallegos did not seal the record after promising the Grand Jury that he would nor did he advise the Grand Jury that he didn't seal it.
The Grand Jury felt that "The Grand Jury was badly used and misled by the DA and ADA and that the mishandling of the entire accusation process undermined the integrity of the Grand Jury System in Humboldt County."
The entire text of this declaration and the 19 page attachment are posted here as the FIRST COMMENT. To read it, click comments.
Stoen's pattern seems to be to try his cases in the public, in the media, in a usually successful attempt to get his prey to settle to avoid court costs and further embarrassment. In both his cases in Humboldt County, people stood up to him and his cases were dismissed outright without ever making it to trial. One called "Smoke and Mirrors" and worse. Had Debi August not stood up to him, she would have been another notch on his belt. Instead he was exposed.
The information contained in this DECLARATION and its 19-page attachment reveals that:
The DA (Paul Gallegos) and ADA (Tim Stoen) told the Grand Jury that everything would remain secret if they went forward with the accusation.
They assured them that witnesses would not be identified.
Gallegos and Stoen disclosed confidential Grand Jury information without the permission or notification to the Grand Jury.
Gallegos and Stoen affirmatively sought the release of the information they assured the Grand Jury was totally protected by "attorney client privilege."
Stoen expressly told the Grand Jury that he was "their attorney."
Stoen waived the attorney-client privilege he had promised the Grand Jury against the wishes of the Grand Jury, but in favor of his office which clearly had a conflict in the matter.
The grand jury accusation process was being run by the DA (Gallegos) and ADA (Stoen).
Gallegos did not seal the record after promising the Grand Jury that he would nor did he advise the Grand Jury that he didn't seal it.
The Grand Jury felt that "The Grand Jury was badly used and misled by the DA and ADA and that the mishandling of the entire accusation process undermined the integrity of the Grand Jury System in Humboldt County."
The entire text of this declaration and the 19 page attachment are posted here as the FIRST COMMENT. To read it, click comments.
Thursday, April 20, 2006
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
Re: Opinion No. 04-406 Re: Request for Formal Opinion - Authority of a board of supervisors to establish a trust fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular cases.
submitted via e-mail: Gregory.Gonot@doj.ca.gov
Dear Mr. Gonot,
Please consider the following input when considering the Request before you.
I. THE REAL QUESTION. No matter how carefully couched in legalese, the real question before you is whether or not the Humboldt County District Attorney can SOLICIT and accept special interest money to fund the public prosecution of Pacific Lumber Company.
The answer should be an immediate and resounding "No!" A "Trust Fund" such as this is unconstitutional in that it violates the spirit of "equal protection under the law." The District Attorney's Office belongs to the people, and should remain pure. No District Attorney's office should ever SOLICIT or accept special interest resources or funding for the public purpose of prosecuting ANY person, entity or firm, particularly in pursuit of a politically motivated agenda.
That this question is even being given serious consideration is disturbing. The extreme potential for corruption of public officials and public office alone demands that this request be denied. The fact that this very request indicates that corruption may have already occurred is even more troubling, and warrants further investigation on the part of the Attorney General's office, in addition to the denial of this request.
II. AS EVIDENCE of District Attorney Paul Gallegos' intent to solicit special interest money to fund the public prosecution of Pacific Lumber Company, see Humboldt County Interoffice Memo, dated April 14, 2003, a portion of which is referred to herein as "Salzman's document" (transcribed below, see EXHIBIT A) in which, Humboldt County District Attorney Paul Gallegos' chief fundraiser, turned Campaign Manager Richard Salzman, has procured a paralegal's read on whether or not the District Attorney may solicit, accept and use "donations" to fund the public prosecution of Pacific Lumber Company. Focused primarily on whether or not this violates FPPC rules, the paralegal concludes that Gallegos may, in fact, solicit and accept "donations" to "contribute significantly to the cause" by establishing a "Trust Fund" to be called "The Headwaters Litigation Fund."
The document details the procedure by which Gallegos can circumvent the Humboldt County Board of Supervisor's anticipated denial of the establishment of the "Trust Fund."
Then, the plan of political action is described: (paragraph 4, pg 7 of 7 of Salzman's document, attachment to Humboldt Co. Interoffice Memo) "Once the trust fund is established, fundraising plans could include calls and letters to environmentally involved celebrities, and to organizations such as the Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League. Full page ads in the Los Angeles Times and the San Francisco Chronicle could attract powerful allies to contribute significantly to the cause. Although local radio, television and newspaper releases might serve to clarify the DA's position on the lawsuit, and perhaps win some measure of support, a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area."
The plan also allows Gallegos to thwart the Board of Supervisor's decision to deny Assistant District Attorney Tim Stoen's request to hire an outside law firm to "assist" in the prosecution of Pacific Lumber Company. (Section III, pg 1 of 7 of attachment to Humboldt Co. Interoffice Memo) "...Whether a District Attorney's acceptance of pro bono legal assistance tendered by attorneys, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District attorney in the instant matter of the PL lawsuit? "
This plan, apparently procured on behalf of Paul Gallegos and Tim Stoen by Richard Salzman as head of the "Alliance for Ethical Business," has been in the works for over a year, and is now before you in the form of a "Request for opinion" by Paul Gallegos.
Evidence will show that this "Trust Fund" will serve to further the actions and agenda of Gallegos' campaign backers and contributors who have been involved in a decade or more long effort to destroy Pacific Lumber Company. With this District Attorney now acting on their behalf, and at their behest, this long-standing agenda will be fulfilled.
To compare this case to Borland is deceptive and inadequate.
III. SOLICITATION: In paragraph 2 of the request before you, it is stated that "we anticipate that some members of the public will be making gifts earmarked for the district attorney to use in the prosecution of particular cases, including both criminal actions and Unfair Competition Law civil actions"
This statement is deceptive, designed to hide the fact the the District Attorney and his Assistant District Attorney, with the assistance of Gallegos' campaign backers, plan to SOLICIT these "gifts" (call it what it is, special interest money) to fund ONE case, and one case only, not, as they imply "particular cases," plural. From paragraph 3 Pg 7 of attachment to Humboldt Co. Interoffice Memo "...It is concluded that the District Attorney of Humboldt County may lawfully accept contributions for the public purpose of budget supplementation to proceed with the PL lawsuit."
What's more, the District Attorney (the chief law enforcement officer of Humboldt County) intends to go out of his way to solicit these "gifts" by placing "full page ads in the Los Angeles Times and San Francisco Chronicle."
(Note that while the cost of a full page ad in the Los Angeles Times, at open rate is $103,200.00. ($800.00 per inch) $129,000.00 if the ad runs on Sunday ($1,000.00 per inch) and the cost of a full page ad in the San Francisco Chronicle, at open rate is $73,788.00. ($572.00 per inch) $77,529.00 if the ad runs on Sunday ($601.00 per inch), the cost of an ad in the local paper, The Times Standard is $30.50 per inch, or $3,934.50.
But an ad in the local paper would not "attract powerful allies to contribute significantly to the cause." To pretend that "significant monetary donations" would be coming in from members of the "general public" is therefore false and misleading.
IV. UNDUE INFLUENCE: Pg 2 section II paragraph 1 of the request in front of you states "In our situation, it appears there would be even less possibility of undue influence when the financial assistance comes from members of the general public who will not be direct victims in the earmarked case." (Note that this remark appears to have abandoned the pretense of several cases benefiting from the "Trust Fund")
What's more, Pg 2 section II paragraph 1 of the request in front of you mentions the test as whether the financial assistance is of "...a nature and magnitude likely to put the prosecutor's discretionary decision making within the influence or control of an interested party..." as being an important part of the question before you.
Again, this is deceptive and seeks to hide the true source and magnitude of the funds Gallegos intends to solicit accept and use. In their own words, (paragraph 4, pg 7 of attachment to Humboldt Co. Interoffice Memo) citing "... a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area."
In fact, though some degree of small "donations" from the "general public" will be solicited and accepted, the intent of this "Trust Fund" is outlined in Salzman's document. The intent is to solicit large "gifts" from "environmentally involved celebrities" such as Woody Harrelson and Bonnie Raitt. The potential also exists for "significant budgetary supplementation" to come from the likes of George Soros, as Gallegos' lead campaign consultant (see Exhibit C, below), besides being intensely involved in anti-Pacific Lumber Company activities for an extended period of time has links to Soros. Salzman's document also mentions "significant budgetary supplementation" to come from outside sources such as "Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League."
Even Salzman's document is deceptive in that it chooses the "respectable" members of the environmental activist community in order to elevate the nature of their intent. Left out are Earth First!, E.P.I.C., Salmon Forever and Humboldt Watershed Council, less respectable, more controversial, and significantly more vested in the ongoing attack on Pacific Lumber Company, and, in at least one case, specifically instrumental in the filing of the specific case in question.
The "financial assistance" or "significant budgetary supplementation" in this case can be expected to run into the millions. And it most definitely is of "a nature and magnitude likely to put the prosecutor's discretionary decision making within the influence or control of an interested party"
Based on the statement that the planned full page ads would be designed to "...attract powerful allies to contribute significantly to the cause." I believe the facts and an investigation will prove that this District Attorney and his Assistant District Attorney are already acting under "undue influence." acting on behalf campaign backers and contributors representing the extreme arm of the environmental activist community - interested parties with a political agenda, who have secured in Paul Gallegos and Tim Stoen a vehicle allowing them to pursue their specific goals.
Specifically, interested parties are represented by Ken Miller of Humboldt Watershed Council, Salmon Forever, and BACH (Bay Area Coalition for Headwaters) who, evidence will show, helped Stoen draft the Pacific Lumber Company lawsuit; Michael Shellenberger of Lumina Strategies, Gallegos' lead campaign consultant, and public relations activist (see exhibit C below for his many a.k.a.'s, links to Earth First!, Salmon Forever, Ken Miller, and Richard Salzman and the "Alliance for Ethical Business").
The extent to which these and other politically motivated special interest groups are involved should be the subject of a full-scale investigation by the Attorney General's Office. The longevity and extent of the ongoing attack on Pacific Lumber Company by these interested parties should be part of this investigation and should be considered when rendering an opinion in this matter.
V. INTERESTED PARTIES: In the Conclusion of the Request before you, the District Attorney stipulates that "... To make sure there could be no possible "interested party" issue, we would propose that such an ordinance prohibit earmarked gifts from any direct competitors of the persons being prosecuted."
In other words, in an attempt to pretend that this office will not be corrupted by these "donations" they will not accept money from other timber companies (The District Attorney sees competitors as "interested parties"), but they are free to solicit "significant budgetary supplementation" from interested parties he chooses not to mention; Earth First! E.P.I.C. Humboldt Watershed Council, Sierra Club, political entities with a political agenda, the very entities who have been hell-bent on destroying the company, and overturning the Headwaters Agreement. These are the "interested parties" which must be considered in the context of this Request and that Gallegos hopes you will not be aware of as you formulate your Opinion.
Do not be deceived. It is not the competitors of Pacific Lumber Company who are to fear, for they are next on the activists' agenda, and allowing this "Trust Fund" to be established will set legal precedent.
To grant this request - or to register an Opinion in the affirmative - has the effect of turning the District Attorney's office over to the special interest groups which have increasingly come to use the Court system as a weapon, through numerous civil lawsuits that they themselves have instigated. Now, they're seeking to add an even more powerful weapon to their arsenal, the ability to use the public prosecutorial system when they are successful in placing their sympathizers in publicly elected positions.
This situation is somewhat unique. At this time, no other industry is under such dedicated and concerted attack as the timber industry. Gallegos' backers have been involved in the ongoing efforts against Pacific Lumber Company as well as Boise Cascade, and other timber interests. Yet other politically motivated activist groups stand waiting in the wings, hoping to see legal precedent set in this case. Groups such as ELF (Earth Liberation Front), ALF, (Animal Liberation Front) and others, probably including many of Michael Shellenberger's groups, Rainforest Action Network for example.
VI. CONFLICT OF INTEREST: A full investigation of the gross conflict of interest between the "Alliance for Ethical Business" and District Attorney Paul Gallegos and Assistant District Attorney Tim Stoen is necessary to fully determine the extent of corruption this request represents. Specifically, examining the money trail between the "Alliance for Ethical Business" and Public Relations activist/lead campaign consultant Michael Shellenberger and his firm Lumina Strategies, and the many entities he manages and under which he co-exists, and the relationship with Gallegos and Stoen should be very revealing. (see exhibit B and C below)
VII. IN CLOSING: While there is no doubt that a Board of Supervisors can establish a Trust Fund to allow people to contribute funds to build a neighborhood playground, or improve a road, for example, there can also be no doubt that this Request cannot and should not be equated with that.
Nor should the Board of Supervisors be put in a position whereby they are forced to allow Gallegos to establish this "Trust Fund," when it is designed to contradict and circumvent their expressed wishes.
Paul Gallegos stated numerous times in the course of the recent 'Recall Paul' campaign that the District Attorney's office belongs to the people, and that the District Attorney's office is not for sale - in fact, the memo below, the request before you, and the facts indicate that he does not understand what those statements mean - and does not care.
The District Attorney's Office must treat all people, and all entities equally. If this request is approved, and this "Trust Fund" is established there will no longer be equitable treatment for all; undue resources and energy will be spent on one case above all others. This "Trust Fund" violates Equal protection statutes, and should be considered unconstitutional.
Allowing politically motivated activist groups to hijack the public judicial system, using similarly inclined public officials to act on their behalf in pursuit of their political agendas should never be permitted. Allowing a District Attorney to pursue a specific case above all others, funded by special interest groups, in pursuit of fulfillment of campaign backer's political agendas should never be permitted. The detrimental effects on society and on the public judicial system are immeasurable.
I thank you for your time and consideration. I have included supporting documents and relevant supportive information. Hopefully, this will aid you in making your determination, and in your investigations.
****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
submitted via e-mail: Gregory.Gonot@doj.ca.gov
Dear Mr. Gonot,
Please consider the following input when considering the Request before you.
I. THE REAL QUESTION. No matter how carefully couched in legalese, the real question before you is whether or not the Humboldt County District Attorney can SOLICIT and accept special interest money to fund the public prosecution of Pacific Lumber Company.
The answer should be an immediate and resounding "No!" A "Trust Fund" such as this is unconstitutional in that it violates the spirit of "equal protection under the law." The District Attorney's Office belongs to the people, and should remain pure. No District Attorney's office should ever SOLICIT or accept special interest resources or funding for the public purpose of prosecuting ANY person, entity or firm, particularly in pursuit of a politically motivated agenda.
That this question is even being given serious consideration is disturbing. The extreme potential for corruption of public officials and public office alone demands that this request be denied. The fact that this very request indicates that corruption may have already occurred is even more troubling, and warrants further investigation on the part of the Attorney General's office, in addition to the denial of this request.
II. AS EVIDENCE of District Attorney Paul Gallegos' intent to solicit special interest money to fund the public prosecution of Pacific Lumber Company, see Humboldt County Interoffice Memo, dated April 14, 2003, a portion of which is referred to herein as "Salzman's document" (transcribed below, see EXHIBIT A) in which, Humboldt County District Attorney Paul Gallegos' chief fundraiser, turned Campaign Manager Richard Salzman, has procured a paralegal's read on whether or not the District Attorney may solicit, accept and use "donations" to fund the public prosecution of Pacific Lumber Company. Focused primarily on whether or not this violates FPPC rules, the paralegal concludes that Gallegos may, in fact, solicit and accept "donations" to "contribute significantly to the cause" by establishing a "Trust Fund" to be called "The Headwaters Litigation Fund."
The document details the procedure by which Gallegos can circumvent the Humboldt County Board of Supervisor's anticipated denial of the establishment of the "Trust Fund."
Then, the plan of political action is described: (paragraph 4, pg 7 of 7 of Salzman's document, attachment to Humboldt Co. Interoffice Memo) "Once the trust fund is established, fundraising plans could include calls and letters to environmentally involved celebrities, and to organizations such as the Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League. Full page ads in the Los Angeles Times and the San Francisco Chronicle could attract powerful allies to contribute significantly to the cause. Although local radio, television and newspaper releases might serve to clarify the DA's position on the lawsuit, and perhaps win some measure of support, a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area."
The plan also allows Gallegos to thwart the Board of Supervisor's decision to deny Assistant District Attorney Tim Stoen's request to hire an outside law firm to "assist" in the prosecution of Pacific Lumber Company. (Section III, pg 1 of 7 of attachment to Humboldt Co. Interoffice Memo) "...Whether a District Attorney's acceptance of pro bono legal assistance tendered by attorneys, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District attorney in the instant matter of the PL lawsuit? "
This plan, apparently procured on behalf of Paul Gallegos and Tim Stoen by Richard Salzman as head of the "Alliance for Ethical Business," has been in the works for over a year, and is now before you in the form of a "Request for opinion" by Paul Gallegos.
Evidence will show that this "Trust Fund" will serve to further the actions and agenda of Gallegos' campaign backers and contributors who have been involved in a decade or more long effort to destroy Pacific Lumber Company. With this District Attorney now acting on their behalf, and at their behest, this long-standing agenda will be fulfilled.
To compare this case to Borland is deceptive and inadequate.
III. SOLICITATION: In paragraph 2 of the request before you, it is stated that "we anticipate that some members of the public will be making gifts earmarked for the district attorney to use in the prosecution of particular cases, including both criminal actions and Unfair Competition Law civil actions"
This statement is deceptive, designed to hide the fact the the District Attorney and his Assistant District Attorney, with the assistance of Gallegos' campaign backers, plan to SOLICIT these "gifts" (call it what it is, special interest money) to fund ONE case, and one case only, not, as they imply "particular cases," plural. From paragraph 3 Pg 7 of attachment to Humboldt Co. Interoffice Memo "...It is concluded that the District Attorney of Humboldt County may lawfully accept contributions for the public purpose of budget supplementation to proceed with the PL lawsuit."
What's more, the District Attorney (the chief law enforcement officer of Humboldt County) intends to go out of his way to solicit these "gifts" by placing "full page ads in the Los Angeles Times and San Francisco Chronicle."
(Note that while the cost of a full page ad in the Los Angeles Times, at open rate is $103,200.00. ($800.00 per inch) $129,000.00 if the ad runs on Sunday ($1,000.00 per inch) and the cost of a full page ad in the San Francisco Chronicle, at open rate is $73,788.00. ($572.00 per inch) $77,529.00 if the ad runs on Sunday ($601.00 per inch), the cost of an ad in the local paper, The Times Standard is $30.50 per inch, or $3,934.50.
But an ad in the local paper would not "attract powerful allies to contribute significantly to the cause." To pretend that "significant monetary donations" would be coming in from members of the "general public" is therefore false and misleading.
IV. UNDUE INFLUENCE: Pg 2 section II paragraph 1 of the request in front of you states "In our situation, it appears there would be even less possibility of undue influence when the financial assistance comes from members of the general public who will not be direct victims in the earmarked case." (Note that this remark appears to have abandoned the pretense of several cases benefiting from the "Trust Fund")
What's more, Pg 2 section II paragraph 1 of the request in front of you mentions the test as whether the financial assistance is of "...a nature and magnitude likely to put the prosecutor's discretionary decision making within the influence or control of an interested party..." as being an important part of the question before you.
Again, this is deceptive and seeks to hide the true source and magnitude of the funds Gallegos intends to solicit accept and use. In their own words, (paragraph 4, pg 7 of attachment to Humboldt Co. Interoffice Memo) citing "... a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area."
In fact, though some degree of small "donations" from the "general public" will be solicited and accepted, the intent of this "Trust Fund" is outlined in Salzman's document. The intent is to solicit large "gifts" from "environmentally involved celebrities" such as Woody Harrelson and Bonnie Raitt. The potential also exists for "significant budgetary supplementation" to come from the likes of George Soros, as Gallegos' lead campaign consultant (see Exhibit C, below), besides being intensely involved in anti-Pacific Lumber Company activities for an extended period of time has links to Soros. Salzman's document also mentions "significant budgetary supplementation" to come from outside sources such as "Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League."
Even Salzman's document is deceptive in that it chooses the "respectable" members of the environmental activist community in order to elevate the nature of their intent. Left out are Earth First!, E.P.I.C., Salmon Forever and Humboldt Watershed Council, less respectable, more controversial, and significantly more vested in the ongoing attack on Pacific Lumber Company, and, in at least one case, specifically instrumental in the filing of the specific case in question.
The "financial assistance" or "significant budgetary supplementation" in this case can be expected to run into the millions. And it most definitely is of "a nature and magnitude likely to put the prosecutor's discretionary decision making within the influence or control of an interested party"
Based on the statement that the planned full page ads would be designed to "...attract powerful allies to contribute significantly to the cause." I believe the facts and an investigation will prove that this District Attorney and his Assistant District Attorney are already acting under "undue influence." acting on behalf campaign backers and contributors representing the extreme arm of the environmental activist community - interested parties with a political agenda, who have secured in Paul Gallegos and Tim Stoen a vehicle allowing them to pursue their specific goals.
Specifically, interested parties are represented by Ken Miller of Humboldt Watershed Council, Salmon Forever, and BACH (Bay Area Coalition for Headwaters) who, evidence will show, helped Stoen draft the Pacific Lumber Company lawsuit; Michael Shellenberger of Lumina Strategies, Gallegos' lead campaign consultant, and public relations activist (see exhibit C below for his many a.k.a.'s, links to Earth First!, Salmon Forever, Ken Miller, and Richard Salzman and the "Alliance for Ethical Business").
The extent to which these and other politically motivated special interest groups are involved should be the subject of a full-scale investigation by the Attorney General's Office. The longevity and extent of the ongoing attack on Pacific Lumber Company by these interested parties should be part of this investigation and should be considered when rendering an opinion in this matter.
V. INTERESTED PARTIES: In the Conclusion of the Request before you, the District Attorney stipulates that "... To make sure there could be no possible "interested party" issue, we would propose that such an ordinance prohibit earmarked gifts from any direct competitors of the persons being prosecuted."
In other words, in an attempt to pretend that this office will not be corrupted by these "donations" they will not accept money from other timber companies (The District Attorney sees competitors as "interested parties"), but they are free to solicit "significant budgetary supplementation" from interested parties he chooses not to mention; Earth First! E.P.I.C. Humboldt Watershed Council, Sierra Club, political entities with a political agenda, the very entities who have been hell-bent on destroying the company, and overturning the Headwaters Agreement. These are the "interested parties" which must be considered in the context of this Request and that Gallegos hopes you will not be aware of as you formulate your Opinion.
Do not be deceived. It is not the competitors of Pacific Lumber Company who are to fear, for they are next on the activists' agenda, and allowing this "Trust Fund" to be established will set legal precedent.
To grant this request - or to register an Opinion in the affirmative - has the effect of turning the District Attorney's office over to the special interest groups which have increasingly come to use the Court system as a weapon, through numerous civil lawsuits that they themselves have instigated. Now, they're seeking to add an even more powerful weapon to their arsenal, the ability to use the public prosecutorial system when they are successful in placing their sympathizers in publicly elected positions.
This situation is somewhat unique. At this time, no other industry is under such dedicated and concerted attack as the timber industry. Gallegos' backers have been involved in the ongoing efforts against Pacific Lumber Company as well as Boise Cascade, and other timber interests. Yet other politically motivated activist groups stand waiting in the wings, hoping to see legal precedent set in this case. Groups such as ELF (Earth Liberation Front), ALF, (Animal Liberation Front) and others, probably including many of Michael Shellenberger's groups, Rainforest Action Network for example.
VI. CONFLICT OF INTEREST: A full investigation of the gross conflict of interest between the "Alliance for Ethical Business" and District Attorney Paul Gallegos and Assistant District Attorney Tim Stoen is necessary to fully determine the extent of corruption this request represents. Specifically, examining the money trail between the "Alliance for Ethical Business" and Public Relations activist/lead campaign consultant Michael Shellenberger and his firm Lumina Strategies, and the many entities he manages and under which he co-exists, and the relationship with Gallegos and Stoen should be very revealing. (see exhibit B and C below)
VII. IN CLOSING: While there is no doubt that a Board of Supervisors can establish a Trust Fund to allow people to contribute funds to build a neighborhood playground, or improve a road, for example, there can also be no doubt that this Request cannot and should not be equated with that.
Nor should the Board of Supervisors be put in a position whereby they are forced to allow Gallegos to establish this "Trust Fund," when it is designed to contradict and circumvent their expressed wishes.
Paul Gallegos stated numerous times in the course of the recent 'Recall Paul' campaign that the District Attorney's office belongs to the people, and that the District Attorney's office is not for sale - in fact, the memo below, the request before you, and the facts indicate that he does not understand what those statements mean - and does not care.
The District Attorney's Office must treat all people, and all entities equally. If this request is approved, and this "Trust Fund" is established there will no longer be equitable treatment for all; undue resources and energy will be spent on one case above all others. This "Trust Fund" violates Equal protection statutes, and should be considered unconstitutional.
Allowing politically motivated activist groups to hijack the public judicial system, using similarly inclined public officials to act on their behalf in pursuit of their political agendas should never be permitted. Allowing a District Attorney to pursue a specific case above all others, funded by special interest groups, in pursuit of fulfillment of campaign backer's political agendas should never be permitted. The detrimental effects on society and on the public judicial system are immeasurable.
I thank you for your time and consideration. I have included supporting documents and relevant supportive information. Hopefully, this will aid you in making your determination, and in your investigations.
****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
Sunday, April 16, 2006
UNTOLD STORIES: What was Ken Miller's role in the drafting of the PL Lawsuit?
Part of the answer is found here.
The filing of the PL lawsuit has been the hallmark of Gallegos' tenure as DA. He claimed to have "discovered" evidence of fraud. Based on this story in the North Coast Journal, it appears to me that the case sat in a box because it lacked merit, much to Ken Miller's frustration. In Paul Gallegos and Tim Stoen, it appears he found someone who was willing to resurrect it, and pursue it.
During the Recall a furor erupted over e-mails alternately described as "leaked" or "stolen"* from the DA's office. The e-mails dealt with Ken Miller's involvement in the PL lawsuit and though the papers reported the existence of the e-mails, none reported on the significant content.
Specifically,
1.) That others in the DA's office had questioned Ken Miller's presence in the office, with regard to the PL lawsuit... that it is quite clear Ken Miller was actively involved in the drafting of the Palco suit... stating that " We (WE - emphasis added) have the docs if you want to include this kind of thing in your complaint..." ...the same Ken Miller who professed to be stunned that the lawsuit was filed, and later had to fess up and admit his involvement.
2.) That Tim Stoen at one point says that he is going to have to give Ken Miller the bad news, that there is no way the suit will fly, and that
3.) A few days later, Stoen comes back and says that he has found a way to make it fly.
That is only part of the untold story of Paul Gallegos and the Recall. For those who are interested, the text of those e-mails are included below.
It is important to understand that in the 90s, Ken Miller was a co-founder of BACH, (Bay Area Coalition for Headwaters), and that his efforts to "get Palco" encompass a decade long effort. ( http://www.treesfoundation.org/affiliates/update-77 ) BACH claims that "More recently, we have generated media interest in the tree-sits and litigation against Maxxam/Pacific Lumber."
Other significant documents include Richard Salzman, Gallegos' chief fundraiser turned Campaign Manager's procuring a paralegal's read as to how Gallegos and Stoen can establish a "Trust Fund" to solicit, accept and use special interest money to fund the PL lawsuit. ( see Read First: Salzman's Plan post on this blog.
This is followed by Gallegos' taking that proposal to the Attorney General's office, stating that they will not be "influenced" by such funding, and further contending that, since they would not accept donations from any competitors of Pacific Lumber, it would not be corruption.
But they were free to accept "donations" from EPIC, Earth First!, and Ken Miller's Humboldt Watershed Council, Ken Miller's BACH (Bay Area Coalition for Headwaters), Ken Miller's Salmon Forever, and other organizations who are part of an ongoing and longstanding effort to destroy Pacific Lumber Company.
The private funding of a public lawsuit, special interest groups using the public judicial system to further their agenda, turning the DA's office over to the activists - that's what is really wrong with the DA's office.
And it's not what people who voted against the Recall thought they were getting.
Richard "R Trent Williams" Salzman calling it a conspiracy theory does not negate the facts.
Note: * Many people believe it was Tim Stoen himself who "leaked" these documents, and a reading of his history in the People's Temple certainly backs up this theory. I find it difficult to believe he would do so based on the fact that the content here that so clearly shows his and Ken Miller's actions, but perhaps from his perspective it shows him gallantly pursuing the demon, charging ahead "for the cause." And in his zeal, perhaps he couldn't perceive it as being a negative, couldn't imagine that anyone would see it as wrongdoing. It certainly provided for a distraction from the issues, and garnered sympathy for his beleaguered Paul.
***
From: Stoen, Tim
Sent: Monday February 10, 2003 7:33 AM
To: 'Ken Miller'
Subject: RE: PL rate of harvest
Yes, Ken, I want it.
Thanks,
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 7:32 AM
To: Stoen, Tim
Subject: PL rate of harvest
Hello, Tim,
I am relieved that you are still on this, it is more important than ever, as PL struggles to defeat the only agency which has had the guts and integrity to try and protect our community from the nuisances related to PL's liquidation logging agenda.
I have a document that might be useful to your argument that the 176 is a big deal. It's PL's appeal to the State Water Board of the Regional Water Board's attempt to impose restrictions in freshwater. It is a 50 page petition. The central argument is the breach of contract. PL argues, ad nauseum, that the 176mmbf/yr is central to the Headwaters Agreement, that PL would never have entered into this agreement absent this assurance, etc.
"... the central purpose of the Headwaters Agreement for PALCO was to provide regulatory certainty that it would be able to harvest a minimum of 176.2mmbf/yr in the first 10 years of the Agreement." PL added minimum to the assurance, I believe the actual arrangement was =/- 10%.
PL has argued this repeatedly.
Fraud vitiates contractual assurances, I am told.
I can bring it by if you want it. Ken
___________
-------------------
From: Stoen, Tim
Sent: Tuesday February 18, 2003 8:40 AM
To: 'Ken Miller'
Cc: Gallegos, Paul; Vadas, Nandor; Wade, Robert
Subject: RE: meeting re PL suit
Ken,
Paul Gallegos and I can meet with you Thursday, February 20th (this week) at 11 a.m. in our office.
I have the majority of a complaint prepared, and will be working on it all week. I do this to force myself to think out the implications of the elements we must prove for fraudulent concealment, including proximate causation. I still have not made a decision to file, but because of the importance of the case, want to make sure I have considered the proof problems as fully as possible before making a final decision.
Please advise if Thursday at 11 works for you.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 15, 2003 9:10 AM
To: Stoen, Tim
Subject: meeting
Hi Tim, I wd like to meet with you to go over the potential filing, in case I can help with any questions. I am pretty available, let me know a good time, Ken.
--
Ken Miller
(home address deleted)
(note: phone numbers will not be included in this post )
___________
-------------------
From: Stoen, Tim
Sent: Tuesday February 18, 2003 5:23 PM
To: 'Ken Miller'
Subject: meeting
Ken,
Paul Gallegos is going to have Worth Dikeman also review the complaint from a very conservative point of view.
I have almost reached the cause of action section. As you can see from the introduction, there are only two causes we can allege at this late date" (1) fraudulent non disclosure for the purpose of avoiding EIR recirculation. (2) fraudulent concealment to FWS and others in lobbying for Option 25.
Please look over all of the factual materials and make corrections or suggestions. I have probably made a number of factual errors because I have not yet gone back to check references.
As you can see I have used alot of your work verbatim.
Tomorrow I will add the recirculation and lobbying elements, and then the three causes of action and send them to you.
Please know we have not yet made a final decision.
Thanks for your great help.
Tim
PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, RESTITUTION vs
this is page one of a multi page email. the other pages are not included here
___________
-------------------
From: Stoen, Tim
Sent: Wednesday February 19, 2003 4:19 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth; Dawson, James
Subject: Palco Jordan Creek suit
Paul,
I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.
A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)
That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.
I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.
I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.
Tim
___________
-------------------
From: Stoen, Tim
Sent: Wednesday February 19, 2003 8:05 AM
To: 'Ken Miller'
Subject: Re: SoLs
Ken,
Here is my memo to Paul Gallegos spelling out the reasons. There is one last minute gambit I am pursuing. If it develops, I will advise you immediately.
MEMO TO PAUL GALLEGOS
Paul,
I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.
A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)
That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.
I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.
I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 11:29 AM
To: Stoen, Tim
Subject: SoLs
Tim, If you would spell out for me the reasons why this case cannot be brought, I would very much appreciate it. I do not yet understand.
I was excited about the prospects of the $250,000,000, which would sure help the County, even tho it is a small fraction of what Hurwitz has extracted, and an even smaller fraction of the costs of the damages he has left in his wake.
Your proto-petition is succinct and impressive.
Thanks, Ken
--
Ken Miller
(end of this page)
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 20, 2003 1:57 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth
Subject: Re: Revival of Palco Jordan Creek suit - meeting Friday at 3 p,m,
Gentlemen,
I think we can save the PALCO suit by suing for "unfair" business practice rather than "fraudulent." for there is no competing statute of limitations for unfair. I have asked Ken Miller to come to the office tomorrow to discuss it. I will have a draft complaint ready to be reviewed beforehand. Would appreciate all of your showing up - Paul's office - if you are free.
Tim Stoen
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 20, 2003 6:22 PM
To: "Ken Miller"
Subject: Re: New draft, new meeting time of 2:30 p,m,
Ken,
Here is the revised draft. Still have not finished. Please, if you have time, double check all the facts I have lifted from your work, including verbatim quotes and exact dates.
Tomorrow, I will e-mail to you the remainder before 11 a.m.
PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff NO. CV-
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, AND RESTITUTION vs
(Business & Professions Code)
THE PACIFIC LUMBER COMPANY Section 17200, in re: Headwaters Forest Project
and DOES 1 through 10
Defendants
Unfair Business Acts
this is page one of a multi page email. the other pages are not included here.
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 21, 2003 11:43 AM
To: 'Ken Miller'
Subject: Re: Intimidation
Ken,
YES. GET ME AS MANY FACTS AND DATES OF THE INTIMIDATION ASP.
I will create a separate cause of action entitled Unfair Personal Attack on Opposing Scientist.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 21, 2003 9:49 AM
To: Stoen, Tim
Subject: intimidation
PL orchestrated a campaign to intimidate and impeach Dr. Reid, including calling her "almost irresponsible" in the Times Standard, fueling a sign-on letter by extremist Congresspeople including Richard Pombo, Dooley, Helen Chennoweth, one of the Alaska boyz, et al to her than boss at the USFS in DC trying to get her hands off private lands, a letter from Jared carter to Directors of CDF and DFG admonished them to avoid "creating a paper trail" in their deliberations and to abide by the "Mutual Defense Pact" of the Headwaters Agreement (para 7) related to rate of cut in Freshwater and Elk, an outgrowth (sic) of the Jordan scam...
We have the docs if you want to include this kind of thing in your complaint...Ken
--
Ken Miller
(home address deleted)
(phone number deleted)
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 25, 2003 11:22 PM
To: Dawson, James
Cc: Gallegos, Paul
Subject: Re: Use of consultants/percipient witnesses
Jim,
Paul indicated that you were wondering about Ken Miller being in the office yesterday reading the complaint.
Ken was reading the complaint for the purpose of making sure the documentary information he had provided me was accurately summarized in the complaint.
I also used him as an eyewitness on what William Weaver's responses had been to accusations of a scam. Had I not had this benefit, I would have been forced, having circumstantial evidence only, to charge Weaver with intentional misrepresentation, not reckless misrepresentation. So justice towards Mr. Weaver was, hopefully, accomplished.
Ken Miller had nothing to do with my decision to file, my choice of theories, or such other aspects of the complaint.
The only way environmental torts can be litigated is to rely on both eyewitnesses and consultants in the private sector, all of who obviously have some ax to grind. My job is to separate the chaff from the wheat.
The duty of restricting disclosure of our investigation still applies, but only with respect to people who do not have a legitimate interest. Consultants helping us to understand the administrative data do have a legitimate interest.
Please advise if you have questions or wish to discuss this further.
Tim
The filing of the PL lawsuit has been the hallmark of Gallegos' tenure as DA. He claimed to have "discovered" evidence of fraud. Based on this story in the North Coast Journal, it appears to me that the case sat in a box because it lacked merit, much to Ken Miller's frustration. In Paul Gallegos and Tim Stoen, it appears he found someone who was willing to resurrect it, and pursue it.
During the Recall a furor erupted over e-mails alternately described as "leaked" or "stolen"* from the DA's office. The e-mails dealt with Ken Miller's involvement in the PL lawsuit and though the papers reported the existence of the e-mails, none reported on the significant content.
Specifically,
1.) That others in the DA's office had questioned Ken Miller's presence in the office, with regard to the PL lawsuit... that it is quite clear Ken Miller was actively involved in the drafting of the Palco suit... stating that " We (WE - emphasis added) have the docs if you want to include this kind of thing in your complaint..." ...the same Ken Miller who professed to be stunned that the lawsuit was filed, and later had to fess up and admit his involvement.
2.) That Tim Stoen at one point says that he is going to have to give Ken Miller the bad news, that there is no way the suit will fly, and that
3.) A few days later, Stoen comes back and says that he has found a way to make it fly.
That is only part of the untold story of Paul Gallegos and the Recall. For those who are interested, the text of those e-mails are included below.
It is important to understand that in the 90s, Ken Miller was a co-founder of BACH, (Bay Area Coalition for Headwaters), and that his efforts to "get Palco" encompass a decade long effort. ( http://www.treesfoundation.org/affiliates/update-77 ) BACH claims that "More recently, we have generated media interest in the tree-sits and litigation against Maxxam/Pacific Lumber."
Other significant documents include Richard Salzman, Gallegos' chief fundraiser turned Campaign Manager's procuring a paralegal's read as to how Gallegos and Stoen can establish a "Trust Fund" to solicit, accept and use special interest money to fund the PL lawsuit. ( see Read First: Salzman's Plan post on this blog.
This is followed by Gallegos' taking that proposal to the Attorney General's office, stating that they will not be "influenced" by such funding, and further contending that, since they would not accept donations from any competitors of Pacific Lumber, it would not be corruption.
But they were free to accept "donations" from EPIC, Earth First!, and Ken Miller's Humboldt Watershed Council, Ken Miller's BACH (Bay Area Coalition for Headwaters), Ken Miller's Salmon Forever, and other organizations who are part of an ongoing and longstanding effort to destroy Pacific Lumber Company.
The private funding of a public lawsuit, special interest groups using the public judicial system to further their agenda, turning the DA's office over to the activists - that's what is really wrong with the DA's office.
And it's not what people who voted against the Recall thought they were getting.
Richard "R Trent Williams" Salzman calling it a conspiracy theory does not negate the facts.
Note: * Many people believe it was Tim Stoen himself who "leaked" these documents, and a reading of his history in the People's Temple certainly backs up this theory. I find it difficult to believe he would do so based on the fact that the content here that so clearly shows his and Ken Miller's actions, but perhaps from his perspective it shows him gallantly pursuing the demon, charging ahead "for the cause." And in his zeal, perhaps he couldn't perceive it as being a negative, couldn't imagine that anyone would see it as wrongdoing. It certainly provided for a distraction from the issues, and garnered sympathy for his beleaguered Paul.
***
From: Stoen, Tim
Sent: Monday February 10, 2003 7:33 AM
To: 'Ken Miller'
Subject: RE: PL rate of harvest
Yes, Ken, I want it.
Thanks,
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 7:32 AM
To: Stoen, Tim
Subject: PL rate of harvest
Hello, Tim,
I am relieved that you are still on this, it is more important than ever, as PL struggles to defeat the only agency which has had the guts and integrity to try and protect our community from the nuisances related to PL's liquidation logging agenda.
I have a document that might be useful to your argument that the 176 is a big deal. It's PL's appeal to the State Water Board of the Regional Water Board's attempt to impose restrictions in freshwater. It is a 50 page petition. The central argument is the breach of contract. PL argues, ad nauseum, that the 176mmbf/yr is central to the Headwaters Agreement, that PL would never have entered into this agreement absent this assurance, etc.
"... the central purpose of the Headwaters Agreement for PALCO was to provide regulatory certainty that it would be able to harvest a minimum of 176.2mmbf/yr in the first 10 years of the Agreement." PL added minimum to the assurance, I believe the actual arrangement was =/- 10%.
PL has argued this repeatedly.
Fraud vitiates contractual assurances, I am told.
I can bring it by if you want it. Ken
___________
-------------------
From: Stoen, Tim
Sent: Tuesday February 18, 2003 8:40 AM
To: 'Ken Miller'
Cc: Gallegos, Paul; Vadas, Nandor; Wade, Robert
Subject: RE: meeting re PL suit
Ken,
Paul Gallegos and I can meet with you Thursday, February 20th (this week) at 11 a.m. in our office.
I have the majority of a complaint prepared, and will be working on it all week. I do this to force myself to think out the implications of the elements we must prove for fraudulent concealment, including proximate causation. I still have not made a decision to file, but because of the importance of the case, want to make sure I have considered the proof problems as fully as possible before making a final decision.
Please advise if Thursday at 11 works for you.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 15, 2003 9:10 AM
To: Stoen, Tim
Subject: meeting
Hi Tim, I wd like to meet with you to go over the potential filing, in case I can help with any questions. I am pretty available, let me know a good time, Ken.
--
Ken Miller
(home address deleted)
(note: phone numbers will not be included in this post )
___________
-------------------
From: Stoen, Tim
Sent: Tuesday February 18, 2003 5:23 PM
To: 'Ken Miller'
Subject: meeting
Ken,
Paul Gallegos is going to have Worth Dikeman also review the complaint from a very conservative point of view.
I have almost reached the cause of action section. As you can see from the introduction, there are only two causes we can allege at this late date" (1) fraudulent non disclosure for the purpose of avoiding EIR recirculation. (2) fraudulent concealment to FWS and others in lobbying for Option 25.
Please look over all of the factual materials and make corrections or suggestions. I have probably made a number of factual errors because I have not yet gone back to check references.
As you can see I have used alot of your work verbatim.
Tomorrow I will add the recirculation and lobbying elements, and then the three causes of action and send them to you.
Please know we have not yet made a final decision.
Thanks for your great help.
Tim
PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, RESTITUTION vs
this is page one of a multi page email. the other pages are not included here
___________
-------------------
From: Stoen, Tim
Sent: Wednesday February 19, 2003 4:19 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth; Dawson, James
Subject: Palco Jordan Creek suit
Paul,
I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.
A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)
That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.
I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.
I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.
Tim
___________
-------------------
From: Stoen, Tim
Sent: Wednesday February 19, 2003 8:05 AM
To: 'Ken Miller'
Subject: Re: SoLs
Ken,
Here is my memo to Paul Gallegos spelling out the reasons. There is one last minute gambit I am pursuing. If it develops, I will advise you immediately.
MEMO TO PAUL GALLEGOS
Paul,
I regret to inform you that after researching every angle, there is no way we can avoid the statute of limitations defense on the PALCO Jordan Creek scam. CCP 338 gives a 3-year period for fraud. The only way to get around this is to charge conspiracy with a crime and an overt act occurring within four years.
A corporation cannot be in conspiracy with its own employees or subsidiaries. Therefore the only possible co-conspirator is the consultant, William Weaver. But we have to show he conspired to do the specific violation that occurred within the 4 year statute (and is also an overt act within the statute.)
That violation was getting Richard Wilson, Head of CDF, not to recirculate the EIR under 14 CCR 15088.5, which was violated February 25, 1999. We have absolutely no evidence Weaver personally so conspired, or that he even had knowledge of that EIR recirculation. As a matter of ethics, therefore, we cannot proceed.
I have given Ken Miller the bad news, and I have canceled out appointment for tomorrow at 11.
I encouraged him to send us every other case he comes across so we have the opportunity to act in a timely manner. He is very happy with your willingness to prosecute let the chips fall where they may.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Sunday, February 09, 2003 11:29 AM
To: Stoen, Tim
Subject: SoLs
Tim, If you would spell out for me the reasons why this case cannot be brought, I would very much appreciate it. I do not yet understand.
I was excited about the prospects of the $250,000,000, which would sure help the County, even tho it is a small fraction of what Hurwitz has extracted, and an even smaller fraction of the costs of the damages he has left in his wake.
Your proto-petition is succinct and impressive.
Thanks, Ken
--
Ken Miller
(end of this page)
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 20, 2003 1:57 PM
To: Gallegos, Paul
Cc: Vadas, Nandor; Dikeman, Worth
Subject: Re: Revival of Palco Jordan Creek suit - meeting Friday at 3 p,m,
Gentlemen,
I think we can save the PALCO suit by suing for "unfair" business practice rather than "fraudulent." for there is no competing statute of limitations for unfair. I have asked Ken Miller to come to the office tomorrow to discuss it. I will have a draft complaint ready to be reviewed beforehand. Would appreciate all of your showing up - Paul's office - if you are free.
Tim Stoen
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 20, 2003 6:22 PM
To: "Ken Miller"
Subject: Re: New draft, new meeting time of 2:30 p,m,
Ken,
Here is the revised draft. Still have not finished. Please, if you have time, double check all the facts I have lifted from your work, including verbatim quotes and exact dates.
Tomorrow, I will e-mail to you the remainder before 11 a.m.
PAUL V. GALLEGOS
District Attorney of Humboldt County
TIMOTHY O. STOEN
Assistant District Attorney
NANDOR VADAS
Deputy District Attorney
825 Fifth Street, 4th Floor
Eureka, CA 95501
707 445-7416
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF HUMBOLDT
______
THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff NO. CV-
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION, AND RESTITUTION vs
(Business & Professions Code)
THE PACIFIC LUMBER COMPANY Section 17200, in re: Headwaters Forest Project
and DOES 1 through 10
Defendants
Unfair Business Acts
this is page one of a multi page email. the other pages are not included here.
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 21, 2003 11:43 AM
To: 'Ken Miller'
Subject: Re: Intimidation
Ken,
YES. GET ME AS MANY FACTS AND DATES OF THE INTIMIDATION ASP.
I will create a separate cause of action entitled Unfair Personal Attack on Opposing Scientist.
Tim
-----Original message-----
From: Ken Miller (mail to salmonhood@redwoods.quik.com)
Sent: Saturday, February 21, 2003 9:49 AM
To: Stoen, Tim
Subject: intimidation
PL orchestrated a campaign to intimidate and impeach Dr. Reid, including calling her "almost irresponsible" in the Times Standard, fueling a sign-on letter by extremist Congresspeople including Richard Pombo, Dooley, Helen Chennoweth, one of the Alaska boyz, et al to her than boss at the USFS in DC trying to get her hands off private lands, a letter from Jared carter to Directors of CDF and DFG admonished them to avoid "creating a paper trail" in their deliberations and to abide by the "Mutual Defense Pact" of the Headwaters Agreement (para 7) related to rate of cut in Freshwater and Elk, an outgrowth (sic) of the Jordan scam...
We have the docs if you want to include this kind of thing in your complaint...Ken
--
Ken Miller
(home address deleted)
(phone number deleted)
___________
-------------------
From: Stoen, Tim
Sent: Thursday February 25, 2003 11:22 PM
To: Dawson, James
Cc: Gallegos, Paul
Subject: Re: Use of consultants/percipient witnesses
Jim,
Paul indicated that you were wondering about Ken Miller being in the office yesterday reading the complaint.
Ken was reading the complaint for the purpose of making sure the documentary information he had provided me was accurately summarized in the complaint.
I also used him as an eyewitness on what William Weaver's responses had been to accusations of a scam. Had I not had this benefit, I would have been forced, having circumstantial evidence only, to charge Weaver with intentional misrepresentation, not reckless misrepresentation. So justice towards Mr. Weaver was, hopefully, accomplished.
Ken Miller had nothing to do with my decision to file, my choice of theories, or such other aspects of the complaint.
The only way environmental torts can be litigated is to rely on both eyewitnesses and consultants in the private sector, all of who obviously have some ax to grind. My job is to separate the chaff from the wheat.
The duty of restricting disclosure of our investigation still applies, but only with respect to people who do not have a legitimate interest. Consultants helping us to understand the administrative data do have a legitimate interest.
Please advise if you have questions or wish to discuss this further.
Tim
Friday, April 07, 2006
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company." is included here as the first comment on this post.
While you read this, and the other posts detailing Gallegos and Stoen's efforts to fund the PL lawsuit, think about the important programs in Gallegos' office that have gone begging. Think about the services that have been lost. Think about the people who have lost their jobs in the Victim Witness Unit. Think about the jobs that could have been saved if one iota of this effort went into seeking grant funding for those positions and programs.
Think about Gallegos' claim to be "doing more with less."
Think about that as you see Gallegos planning concerts to raise funds to go after one business, see Stoen asking if he can contribute personally to fund a lawsuit he is prosecuting.
Maybe you'll agree with me that Gallegos claims of impartiality are patently false.
*****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
While you read this, and the other posts detailing Gallegos and Stoen's efforts to fund the PL lawsuit, think about the important programs in Gallegos' office that have gone begging. Think about the services that have been lost. Think about the people who have lost their jobs in the Victim Witness Unit. Think about the jobs that could have been saved if one iota of this effort went into seeking grant funding for those positions and programs.
Think about Gallegos' claim to be "doing more with less."
Think about that as you see Gallegos planning concerts to raise funds to go after one business, see Stoen asking if he can contribute personally to fund a lawsuit he is prosecuting.
Maybe you'll agree with me that Gallegos claims of impartiality are patently false.
*****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
In this letter to the FPPC regarding Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company, Stoen actually asks:
"5. If necessary, could I make a contribution from my personal funds to pay for deposition costs even though I am the attorney prosecuting the case?"
The full text of that letter will be posted as the first comment in this post.
The next post is the FPPC's response.
Do you think it is OK for the prosecuting attorney to be so vested in the lawsuit he is prosecuting against you that he will put his own money in to fund it?
What else will Stoen and Gallegos do "for the cause"?
*****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
In this letter to the FPPC regarding Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company, Stoen actually asks:
"5. If necessary, could I make a contribution from my personal funds to pay for deposition costs even though I am the attorney prosecuting the case?"
The full text of that letter will be posted as the first comment in this post.
The next post is the FPPC's response.
Do you think it is OK for the prosecuting attorney to be so vested in the lawsuit he is prosecuting against you that he will put his own money in to fund it?
What else will Stoen and Gallegos do "for the cause"?
*****************
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office, is included below
As you read it, consider this: THE REAL QUESTION. No matter how carefully couched in legalese, the real question is whether or not the Humboldt County District Attorney can SOLICIT and accept SPECIAL INTEREST MONEY to fund the public prosecution of Pacific Lumber Company.
It is my contention that allowing politically motivated activist groups to hijack the public judicial system, using similarly inclined public officials to act on their behalf in pursuit of their political agendas should never be permitted. Allowing a District Attorney to pursue a specific case above all others, funded by special interest groups, in pursuit of fulfillment of campaign backer's political agendas should never be permitted. The detrimental effects on society and on the public judicial system are immeasurable.
Note: While Gallegos withdrew his Request on September 23, 2004. I am told that this may be because he was given a heads up that the Opinion to be rendered would not be in his favor. Nevertheless, if you read Salzman's Plan (complete text on previous post) you will see that Gallegos continued to set about implementing portions of that plan, specifically the plan to bring in "pro-bono" attorneys to work on the PL case.
****************************************
The Request for Opinion:
Off ice of the District Attorney of Humboldt County letterhead
pg. 1 of 3
To:
Honorable Bill Lockyer Date: March 29, 2004
Attorney General of California
P.O. Box 944255
Sacramento, CA 94244-2550
Re: Request for Formal Opinion - Authority of a board of supervisors to establish a trust fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular cases.
Dear Mr. Attorney general:
Our office is considering the making of a request to the Humboldt County Board of Supervisors to establish a Trust Fund under Government Code section 23555 for the purpose of receiving donations from the public to subsidize district attorney operations. In addition to general gifts, that section authorizes a board to dispose of such property "for those lawful uses and purposes as are prescribed in the terms of the gift, bequest, or devise."
Because we anticipate that some members of the public will be making gifts earmarked for the district attorney to use in the prosecution of particular cases, including both criminal actions and Unfair Competition Law civil actions, we are requesting a formal opinion from you as to whether this is acceptable.
I.
Question presented
Does a board of supervisors have the authority to establish a Trust Fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular criminal and civil cases?
pg.2 of 3
Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 2
II.
Discussion
Our reading of the law is that such earmarked gifts would be upheld under the leading case of Hambarian v. Superior Court (2002) 27 Cal.4th 826. In that case the California Supreme Court refused to recuse a district attorney from a case where it received $450,000 worth of forensic accounting services from a victim city. In our situation, it appears there would be even less possibility of undue influence when the financial assistance comes from members of the general public who will not be direct victims in the earmarked case.
In Hambarian the Supreme Court adopted, as the test for recual, the same as it had used in People v. Eubanks (1996) 14 Cal.4th 580: whether the financial assistance if of "a nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party" (Hambarian, at p. 835) In doing so, it distinguished its holding from Eubanks, in which it had ordered recusal:
Our decision in Eubanks did not purport to fix a limit on the financial assistance that may be provided by an aggrieved victim. Rather we stated that the trial court would have been within its discretion to find a likelihood of unfairness where the crime victim, Borland International (Borland), was asked to pay for substantial investigative expenses already incurred by the prosecutor. The problem was not the 'fact' of the investigatory assistance itself, but the 'potential bias arising out of the district attorney's sense of obligation to Borland...."
***
"In discussing the existence of the disabling conflict, we did not rely merely on 'the fact of investigatory assistance itself" and consequently declined to hold that a victim's financial assistance of any amount 'necessarily subjects the defendant to unfair prosecutorial treatment.' [Citation] We required the defendant instead to show that the financial assistance is of a "nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party." [Citation] That likelihood existed in Eubanks from 'the...
pg. 3 of 3
Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 3
... possible sense of obligation the district attorney would feel for Borland's payment of a debt owed by the district attorney's office,' an obligation derived from the fact that the district attorney had asked Borland to discharged a sizable debt the office had already incurred. [Citation]
***
In Eubanks, the victim, Borland, was a competitor of the Symantec Corporation, whose president and chief executive officer was one of the defendants in the criminal prosecution. [Citation] One risk of Borland's involvement in the district attorney's prosecution was that the prosecution itself could be used as a strategic weapon to disrupt and distract competitor fro reasons wholly unrelated to the public administration of justice."
(Hambarian, 27 Cal4th at pp. 834, 835, 837, italics as in the opinion.)
III.
Conclusion
Based on Hambarian, it appears that our board of supervisors could establish a trust account able to accept earmarked funds for particular cases from members of the general public, who would not, either under that case or Eubanks, be deemed "an interested party," To make sure there could be no possible "interested party" issue, we would propose that such an ordinance prohibit earmarked gifts from any direct competitors of the persons being prosecuted.
We would greatly appreciate your being willing to provide us a formal opinion at your earliest convenience.
Very truly yours,
Paul V. Gallegos
District Attorney
*******
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
As you read it, consider this: THE REAL QUESTION. No matter how carefully couched in legalese, the real question is whether or not the Humboldt County District Attorney can SOLICIT and accept SPECIAL INTEREST MONEY to fund the public prosecution of Pacific Lumber Company.
It is my contention that allowing politically motivated activist groups to hijack the public judicial system, using similarly inclined public officials to act on their behalf in pursuit of their political agendas should never be permitted. Allowing a District Attorney to pursue a specific case above all others, funded by special interest groups, in pursuit of fulfillment of campaign backer's political agendas should never be permitted. The detrimental effects on society and on the public judicial system are immeasurable.
Note: While Gallegos withdrew his Request on September 23, 2004. I am told that this may be because he was given a heads up that the Opinion to be rendered would not be in his favor. Nevertheless, if you read Salzman's Plan (complete text on previous post) you will see that Gallegos continued to set about implementing portions of that plan, specifically the plan to bring in "pro-bono" attorneys to work on the PL case.
****************************************
The Request for Opinion:
Off ice of the District Attorney of Humboldt County letterhead
pg. 1 of 3
To:
Honorable Bill Lockyer Date: March 29, 2004
Attorney General of California
P.O. Box 944255
Sacramento, CA 94244-2550
Re: Request for Formal Opinion - Authority of a board of supervisors to establish a trust fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular cases.
Dear Mr. Attorney general:
Our office is considering the making of a request to the Humboldt County Board of Supervisors to establish a Trust Fund under Government Code section 23555 for the purpose of receiving donations from the public to subsidize district attorney operations. In addition to general gifts, that section authorizes a board to dispose of such property "for those lawful uses and purposes as are prescribed in the terms of the gift, bequest, or devise."
Because we anticipate that some members of the public will be making gifts earmarked for the district attorney to use in the prosecution of particular cases, including both criminal actions and Unfair Competition Law civil actions, we are requesting a formal opinion from you as to whether this is acceptable.
I.
Question presented
Does a board of supervisors have the authority to establish a Trust Fund to receive gifts from the public earmarked for the district attorney to use in the prosecution of particular criminal and civil cases?
pg.2 of 3
Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 2
II.
Discussion
Our reading of the law is that such earmarked gifts would be upheld under the leading case of Hambarian v. Superior Court (2002) 27 Cal.4th 826. In that case the California Supreme Court refused to recuse a district attorney from a case where it received $450,000 worth of forensic accounting services from a victim city. In our situation, it appears there would be even less possibility of undue influence when the financial assistance comes from members of the general public who will not be direct victims in the earmarked case.
In Hambarian the Supreme Court adopted, as the test for recual, the same as it had used in People v. Eubanks (1996) 14 Cal.4th 580: whether the financial assistance if of "a nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party" (Hambarian, at p. 835) In doing so, it distinguished its holding from Eubanks, in which it had ordered recusal:
Our decision in Eubanks did not purport to fix a limit on the financial assistance that may be provided by an aggrieved victim. Rather we stated that the trial court would have been within its discretion to find a likelihood of unfairness where the crime victim, Borland International (Borland), was asked to pay for substantial investigative expenses already incurred by the prosecutor. The problem was not the 'fact' of the investigatory assistance itself, but the 'potential bias arising out of the district attorney's sense of obligation to Borland...."
***
"In discussing the existence of the disabling conflict, we did not rely merely on 'the fact of investigatory assistance itself" and consequently declined to hold that a victim's financial assistance of any amount 'necessarily subjects the defendant to unfair prosecutorial treatment.' [Citation] We required the defendant instead to show that the financial assistance is of a "nature and magnitude likely to put the prosecutor's discretionary decisionmaking within the influence or control of an interested party." [Citation] That likelihood existed in Eubanks from 'the...
pg. 3 of 3
Honorable Bill Lockyer
March 29, 2004
Re: Trust Fund
Page 3
... possible sense of obligation the district attorney would feel for Borland's payment of a debt owed by the district attorney's office,' an obligation derived from the fact that the district attorney had asked Borland to discharged a sizable debt the office had already incurred. [Citation]
***
In Eubanks, the victim, Borland, was a competitor of the Symantec Corporation, whose president and chief executive officer was one of the defendants in the criminal prosecution. [Citation] One risk of Borland's involvement in the district attorney's prosecution was that the prosecution itself could be used as a strategic weapon to disrupt and distract competitor fro reasons wholly unrelated to the public administration of justice."
(Hambarian, 27 Cal4th at pp. 834, 835, 837, italics as in the opinion.)
III.
Conclusion
Based on Hambarian, it appears that our board of supervisors could establish a trust account able to accept earmarked funds for particular cases from members of the general public, who would not, either under that case or Eubanks, be deemed "an interested party," To make sure there could be no possible "interested party" issue, we would propose that such an ordinance prohibit earmarked gifts from any direct competitors of the persons being prosecuted.
We would greatly appreciate your being willing to provide us a formal opinion at your earliest convenience.
Very truly yours,
Paul V. Gallegos
District Attorney
*******
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
READ FIRST: SALZMAN'S PLAN
Do you think it is ok to PRIVATELY fund a PUBLIC prosecution? More than that - to SOLICIT, accept and use SPECIAL INTEREST MONEY to privately fund a public prosecution?
"There have been rumors Gallegos supporters are launching a community fund-raising effort to fund the Palco suit. Gallegos and his staff say while they are open to such a proposal, they're not aware such a fund exists." ..."Salzman says he's heard some talk of a community fund, but he's not involved in that effort." April 30, 2004 Times Standard Front page story by James Tressler
Rumors? Open to such a proposal? How about orchestrating such a Fund.
On March 29, 2004, exactly one month before he made that statement, Paul Gallegos submitted a formal 'Request for Opinion' to the Attorney General's office to pave the way for Richard Salzman and Tim Stoen's plan to solicit special interest money to privately fund a public prosecution.
That plan is shown below.
Before you read it, ask yourself this question: If Stoen and Gallegos were prosecuting Kobe Bryant, and Gallegos' backers and handlers were the Aryan Brotherhood, who were contributing money to fund the prosecution of Kobe Bryant - to "get that black man" - would that be ok? I contend that no same person would say yes.
And should District Attorney Paul Gallegos be acting at the behest of his Campaign Manager to use his public office in the name of a cause?
**************************************
The memo included below, dated April 14, 2003, references an attached document given to County CAO Loretta Nickolaus by Tim Stoen. The document, included here is a Memorandum to Richard Salzman dated March 31, 2003. It is available as a public records act request.
In this document RICHARD SALZMAN, GALLEGOS' CHIEF CAMPAIGN FUNDRAISER (March primary 2002) and then CAMPAIGN MANAGER (Recall election, March 2004) and acting head of the so-called "Alliance for Ethical Business" (one of many groups targeting Pacific Lumber Company) is soliciting an opinion for Stoen/Gallegos.
****
Cover page:
Interoffice Memo
Date: April 14, 2003
To: Tim Stoen, Assistant District Attorney
CC: Paul Gallegos, District Attorney
Board of Supervisors
Tammy Falor, County Counsel
From: Loretta Nickolaus, CAO
Re: Request for establishment of a Trust Fund expenditure anticipated in the Pacific Lumber Company (Palco) lawsuit.
Last week you stopped by my office to give a "heads up" stating that you were planning to prepare an item for Board approval. You referred to a memo (copy attached) that outlined a proposal. The proposal would include a recommendation to establish a trust fund that would supplement the DAs budget for costs associated with the fraud case you have recently filed against Palco. The memo suggests calling the new trust the Headwaters Litigation Fund.
The memo also points out that the Board has established other trust funds for special purposes and needs. Examples would include a trust fund to widen the Buckhorn Grade or the DAs environmental trust fund used to clean up contaminated properties. The Board has also accepted private donations to cover the cost of buying library books and a gift of funds to study the housing needs in the community.
I am not in a position to weigh in on the Palco case and cannot support establishing this trust fund any more than I could recommend that the Board accept Donations from Palco for the sole purpose of prosecuting tree sitters (for example). However, given these tough budget times and the probability that it is going to get a lot worse before it gets better, why don't you explore (with the assistance of the Attorney General's Office and County Counsel) the creation of a more flexible fund called the DAs Prosecution Fund to be used to supplement the DAs budget not only for fraud cases but also drug, abuse and homicide cases.
I hope this feedback is helpful.
***********************
ATTACHED DOCUMENT
***********************
Page 1 of 7:
MEMORANDUM
To: Richard Salzman "Alliance for Ethical Business"
From: Gail Holder
Re: Legal guidelines for possible fundraising to supplement the District
Attorney's budget for anticipated costs involved in the PL lawsuit
Date: March 31, 2003
QUESTIONS PRESENTED
I. Whether a District Attorney, as a sitting elected official can solicit for, and accept donations to supplement his Agency's budget for anticipated costs associated with the public purpose of prosecution, and if so, what legal guidelines regulate the solicitation, acceptance, and disbursement of such contributions?
II. Whether the Fair Political Practices Commission (FPPC) created by the Political Reform Act of 1974 (Proposition 9) exerts authority or jurisdiction over fundraising not associated with pre-election candidate, campaign fundraising, but rather for expenditures for public purposes, as designated by a sitting public official in executing his legal duties?
III. Whether a District Attorney's acceptance of pro bono legal assistance tendered by attorneys, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District attorney in the instant matter of the PL lawsuit?
BRIEF ANSWERS
I. Yes. Contributions designated for the public purpose of proceeding with the PL lawsuit may be accepted by the District Attorney's office, via establishment of an Agency-fun approved by the Humboldt County Board of Supervisors, which Board is empowered to approve or deny the District Attorney's proposal. If denied, an alternative plan for acceptance of contributions will be the formulation of an Agency fund held in trust through an Escrow account.
II. Probably not. The FPPC is a bipartisan, independent body which administers and enforces the Political Reform Act's rules on conflicts of interest, campaign contributions and expenditures, and lobbying disclosure, while the commission exerts...
Pg. 2 of 7:
...jurisdiction over *Conflicts of interests *Mass mailing violations *Campaign disclosure violations *State lobbying violations *Personal use campaign funds and *Money laundering, all but the latter have relevance exclusively to issues related to candidates for office, and campaign fundraising issues. California Government Code _82015 addressing payments made "at the behest " of an elected official to be used for legislative or governmental purposes may be an FPPC issue and will be discussed below.
III. No. Pro bono assistance presents no conflicts of interest, as such assistance constitutes a benefit to the county, and to the people, rather than to the elected official personally. Pro bono assistance does not constitiute a "gift," "bequest," or "devise," within the meaning of FPPC rules.
STATEMENT OF FACTS:
On February 24, 2003, Paul V. Gallegos, District Attorney of Humboldt County (DA) acting to protect the general public from unfair business practices, filed a complaint for civil penalties, injunction and restitution against THE PACIFIC LUMBER COMPANY (PL), and its subsidiaries, in the Superior Court of California, County of Humboldt. Complaint: People v. Pacific Lumber Company on behalf of The PEOPLE OF THE STATE OF CALIFORNIA, pursuant to sections 17204 and 17206 of the Business and Professions Code.
District Attorney Gallegos and Assistant District Attorney Tim Stoen subsequently appeared before the Humboldt County Board of Supervisors (March 12, 2003) for the purpose of requesting permission of the Board for the DA's office to retain outside counsel to assist with the PL litigation. The Board opposed the allocation of any County monies to the PL lawsuit. Standing alone, Third District Supervisor, John Wooley put forth a motion to allow the District Attorney to present a finalized proposal supporting his request, but the rest of the Board voted the motion down. Although the Board rejected the DA's request for special counsel, Mr. Gallegos stands by his decsion to proceed with the lawsuit, and now seeks to supplement his budget for anticipated costs of the suit, inclusive of witness fees, travel expenditures, depositions, et cetera. Presently, the District Attorney's office is engaged in pursuing a lawful course by which to solicit, accept, and utilize contributions so crucial to supplementation to the Agency's budget, and to the success of the PL litigation. The District Attorney's office seeks now to delineate and resolve all of the issues involved in establishing a lawful procedure for accepting, reporting, depositing, and disbursing monetary contributions to support the PL lawsuit.
pg 3 of 7:
DISCUSSION:
I. Whether a District Attorney, as a sitting elected official can solicit for, and accept donations to supplement his Agency's budget for anticipated costs associated with the public purpose of prosecution, and if so, what legal guidelines regulate the solicitation, acceptance and disbursement of such contributions?
As an elected official, acting within the scope of his official duties, and to satisfy a public purpose such as proceeding with the Pacific Lumber Company Lawsuit, the District Attorney may accept contributions from both individual and organizational donors. the preferred method is the establishment of a Trust Fund through the Humboldt County Board of Supervisors.
AUTHORITY FOR LEGAL GUIDELINES:
AUTHORITY: SUBJECT:
Government Code Section 25355 Acceptance of gifts by the Board
Government Code Section 25356 Treatment of specified and unspecified donations
California Government Code Section 25355, West 2003,
"The Board may accept or reject any gift, bequest, or devise made to or in favor of the County, or to or in favor of the Board in trust for any public purpose. The Board may delegate to any County officer or employee the power to accept any gift, bequest, or devise made to or in favor of the County. The officer or employee shall file with the Board each quarter a report that describes the source and value of each gift valued in excess of ten thousand dollars ($10,000) or any other amount as determined by the Board. The Board may hold and dispose of the property and the income and increase thereof for those lawful uses and purposes as are prescribed in the terms of the gift, bequest or devise. In accounting for or inventorying gifts, bequests, or devises, the officer or employee shall follow the appropriate procedures contained in the State Controller's manual entitled "Accounting Standards and Procedures for Counties.:
California Government Code Section 25356, West 2003,
"If any gift, bequest or devise is unaccompanied by any provision prescribing or limiting the uses and purposes to which the property is received, or the income or increase
pg 4 of 7:
Page four is missing. No one seems to have a copy of this except perhaps Tim Stoen, Salzman or Holder
pg 5 of 7
...first step to be undertaken by the DA's office is to formalize a request to the Board of Supervisors for the establishment of a Trust Fund for expenditures anticipated in the PL lawsuit.
PROCEDURE TO BE USED BY DISTRICT ATTORNEY IN REQUESTING TRUST FUND.
As per instructions of County Treasurer, Steve Stawn (sp) offered via phone conference March 20, 2003, the following process must be followed: Initially, three (3) weeks before the proposal is made before the Board, the Clerk of the Board of Supervisors must be notified of intent of DA's office to present a proposal for establishment of agency/trust fund to be used for the PL lawsuit. the clerk will make this request a future Agenda Item.
Secondly, the DA appears before the Board with a formalized, written proposal delineating the necessity of a Trust Fund to supplement anticipated costs associated with the Pl lawsuit. A working title of the Trust Fund might be Headwaters Litigation Fund (HLF). The DA requests approval of the Board for the proposed HLF.
Thirdly, after consideration of the proposal, the Board will do a status report which is a recommendation for approval or denial of the proposal; (see attached documents (A) Agenda Item No. E-5; and (B) Agenda Item No. C-3) In both cases, the Board approved. Also see Times Standard article, Trust Fund to Widen Buckhorn Grade Backed March 26, 2003 for clarification of Trust Funds.
Lastly, after approval (1) the Trust Fund is set up, and (2) the Agency is oriented on how funds will be accessed. Mr Strawn stated that the Auditor/Controller's office oversees the disbursement of all County monies, and as such, will monitor the disbursement of the HLF. (3) the DA's office will be advised on budgeting matters, and of how to access the HLF Funds. Generally, after approval and establishment of the Trust Fund, expenditures are accessed via presentation of a budget.
In the event that the Board of supervisors denies the District Attorney's proposal for a trust fund to be established as per Government Code _ 25355, for the public purpose of the PL litigation, the alternative plan will be a trust fund set up as an Escrow account. Escrow law is contained in Division California Finance Code commencing with the regulations, are contained in Subchapter 9, title 10 of the California Code of Regulations with section 1700 (10 C.C.R. _1700 et seq).
!!. Whether the Fair Political Practices Commission (FPPC) created by the Political Reform Act of 1974 (Proposition 9) exerts authority or jurisdiction over fundraising not associated with pre-election candidate, campaign fundraising, but rather for expenditures for public purposes, as designated by a sitting public official in executing his official duties?
According to FPPC spokesperson and researcher, "Trish," via phone conference on April 1, 2003, the FPPC, the FPPC almost exclusively oversees fundraising issues associated with candidates, and pre-election fundraising. Trish's response to an inquiry regarding...
pg 6 of 7
...Government Code _ 82015 (B) (iii), was that this section is a "relatively new" and "gray area" of the law, which "should not be a problem or an issue in the instant matter."
Government Code _ 82015 (B) (iii), reads
"A payment not covered by clause (i), made principally for legislative, governmental or charitable purposes, in which case it is neither a gift nor a contribution. However, payments of this type that are made at the behest of a candidate who is an elected officer shall be reported within 30 days following the date on which the payment or payments equal or exceed five thousand dollars ($5,000) in the aggregate from the same source in the calendar year in which they are made..." (see attached document marked "C" to review section 82015.)
FPPC spokesperson Trish conjectures that if the HLF is set up through the County' Government Code 82015 regulations may be negated by the stringent County trust fund regulations. This further research on Government Code 82015 (B) (iii) is forthcoming. Trish will determine whether or not, once the HLF is set up, the District Attorney himself, may lawfully solicit for funding via phone calls and personal letters to perspective (sp) donors. According to the FPPC representative, however, it si established that others in the Agency may solicit for funding on behalf of a public purpose (HLF), which solicitation is outside the scope of the FPPC authority.
III. Whether a District Attorney''s acceptance of pro bono legal assistance tendered by attorney's, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District Attorney in the instant matter of the Pl lawsuit?
A phone conference with FPPC representative Adrian on March 28, 2003 revealed that pro bono assistance offered to a sitting elected official for a public purpose, benefit the County and the people of the County, but not the official personally. Such assistance does not constitute a "gift" or "bequest" within the meaning of FPPC regulations, and may, therefore, be accepted without reservation, by the sitting District Attorney in the instant matter. Adrian stated that such acceptance by the Da of pro bono assistance does not constitute a "conflict of interest" within the meaning of FPPC regulations.
CONCLUSION:
Although the District Attorney's prior bid for County approval for the hiring of outside counsel to assist in the PL lawsuit, was rejected by the Board of Supervisors it is herein suggested that the Da go before the Board with a proposal which constitutes an offer the...
pg 7 of 7
...Board 'cannot refuse.' Emphasis should be placed upon the fact that the District Attorney's Office seeks no money, either directly, or indirectly, from the General Fund, but rather requests the establishment of a trust fund whose coffers will abound with contributions from individuals and organizations some of whom have already come forward with spontaneous offers of monetary donations.
It is prudent to make the HLF proposal clear, and comprehensible to the Board, and to render the process of approving and setting up the trust fund as simple as possible. In the improbable event that the Board denies the proposal, the backup plan of the Escrow account should be implemented.
It is concluded that the District Attorney of Humboldt County may lawfully accept contributions for the public purpose of budget supplementation to proceed with the PL lawsuit. The rule of law is California Government Code Sections 25355 and 23556 addressing acceptance of gifts by the Board of Supervisors and treatment of specified and unspecified donations. FPPC Regulations, California Government Code 82015 addressing "behested payments" in excess of five thousand dollars ($5,000) from a single source, are satisfied by simply filling out a form and filing that form with the County Clerk. Applying the relevant rules of law to the facts contained therein, the District Attorney, after lawfully establishing the trust fund, may solicit, accept and utilize unlimited contributions for the public purpose of the PL litigation.
Once the trust fund is established, fundraising plans could include calls and letters to environmentally involved celebrities, and to organizations such as the Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League. Full page ads in the Los Angeles Times and the San Francisco Chronicle could attract powerful allies to contribute significantly to the cause. Although local radio, television and newspaper releases might serve to clarify the DA's position on the lawsuit, and perhaps win some measure of support, a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area.
Gail Holder
****
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan
"There have been rumors Gallegos supporters are launching a community fund-raising effort to fund the Palco suit. Gallegos and his staff say while they are open to such a proposal, they're not aware such a fund exists." ..."Salzman says he's heard some talk of a community fund, but he's not involved in that effort." April 30, 2004 Times Standard Front page story by James Tressler
Rumors? Open to such a proposal? How about orchestrating such a Fund.
On March 29, 2004, exactly one month before he made that statement, Paul Gallegos submitted a formal 'Request for Opinion' to the Attorney General's office to pave the way for Richard Salzman and Tim Stoen's plan to solicit special interest money to privately fund a public prosecution.
That plan is shown below.
Before you read it, ask yourself this question: If Stoen and Gallegos were prosecuting Kobe Bryant, and Gallegos' backers and handlers were the Aryan Brotherhood, who were contributing money to fund the prosecution of Kobe Bryant - to "get that black man" - would that be ok? I contend that no same person would say yes.
And should District Attorney Paul Gallegos be acting at the behest of his Campaign Manager to use his public office in the name of a cause?
**************************************
The memo included below, dated April 14, 2003, references an attached document given to County CAO Loretta Nickolaus by Tim Stoen. The document, included here is a Memorandum to Richard Salzman dated March 31, 2003. It is available as a public records act request.
In this document RICHARD SALZMAN, GALLEGOS' CHIEF CAMPAIGN FUNDRAISER (March primary 2002) and then CAMPAIGN MANAGER (Recall election, March 2004) and acting head of the so-called "Alliance for Ethical Business" (one of many groups targeting Pacific Lumber Company) is soliciting an opinion for Stoen/Gallegos.
****
Cover page:
Interoffice Memo
Date: April 14, 2003
To: Tim Stoen, Assistant District Attorney
CC: Paul Gallegos, District Attorney
Board of Supervisors
Tammy Falor, County Counsel
From: Loretta Nickolaus, CAO
Re: Request for establishment of a Trust Fund expenditure anticipated in the Pacific Lumber Company (Palco) lawsuit.
Last week you stopped by my office to give a "heads up" stating that you were planning to prepare an item for Board approval. You referred to a memo (copy attached) that outlined a proposal. The proposal would include a recommendation to establish a trust fund that would supplement the DAs budget for costs associated with the fraud case you have recently filed against Palco. The memo suggests calling the new trust the Headwaters Litigation Fund.
The memo also points out that the Board has established other trust funds for special purposes and needs. Examples would include a trust fund to widen the Buckhorn Grade or the DAs environmental trust fund used to clean up contaminated properties. The Board has also accepted private donations to cover the cost of buying library books and a gift of funds to study the housing needs in the community.
I am not in a position to weigh in on the Palco case and cannot support establishing this trust fund any more than I could recommend that the Board accept Donations from Palco for the sole purpose of prosecuting tree sitters (for example). However, given these tough budget times and the probability that it is going to get a lot worse before it gets better, why don't you explore (with the assistance of the Attorney General's Office and County Counsel) the creation of a more flexible fund called the DAs Prosecution Fund to be used to supplement the DAs budget not only for fraud cases but also drug, abuse and homicide cases.
I hope this feedback is helpful.
***********************
ATTACHED DOCUMENT
***********************
Page 1 of 7:
MEMORANDUM
To: Richard Salzman "Alliance for Ethical Business"
From: Gail Holder
Re: Legal guidelines for possible fundraising to supplement the District
Attorney's budget for anticipated costs involved in the PL lawsuit
Date: March 31, 2003
QUESTIONS PRESENTED
I. Whether a District Attorney, as a sitting elected official can solicit for, and accept donations to supplement his Agency's budget for anticipated costs associated with the public purpose of prosecution, and if so, what legal guidelines regulate the solicitation, acceptance, and disbursement of such contributions?
II. Whether the Fair Political Practices Commission (FPPC) created by the Political Reform Act of 1974 (Proposition 9) exerts authority or jurisdiction over fundraising not associated with pre-election candidate, campaign fundraising, but rather for expenditures for public purposes, as designated by a sitting public official in executing his legal duties?
III. Whether a District Attorney's acceptance of pro bono legal assistance tendered by attorneys, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District attorney in the instant matter of the PL lawsuit?
BRIEF ANSWERS
I. Yes. Contributions designated for the public purpose of proceeding with the PL lawsuit may be accepted by the District Attorney's office, via establishment of an Agency-fun approved by the Humboldt County Board of Supervisors, which Board is empowered to approve or deny the District Attorney's proposal. If denied, an alternative plan for acceptance of contributions will be the formulation of an Agency fund held in trust through an Escrow account.
II. Probably not. The FPPC is a bipartisan, independent body which administers and enforces the Political Reform Act's rules on conflicts of interest, campaign contributions and expenditures, and lobbying disclosure, while the commission exerts...
Pg. 2 of 7:
...jurisdiction over *Conflicts of interests *Mass mailing violations *Campaign disclosure violations *State lobbying violations *Personal use campaign funds and *Money laundering, all but the latter have relevance exclusively to issues related to candidates for office, and campaign fundraising issues. California Government Code _82015 addressing payments made "at the behest " of an elected official to be used for legislative or governmental purposes may be an FPPC issue and will be discussed below.
III. No. Pro bono assistance presents no conflicts of interest, as such assistance constitutes a benefit to the county, and to the people, rather than to the elected official personally. Pro bono assistance does not constitiute a "gift," "bequest," or "devise," within the meaning of FPPC rules.
STATEMENT OF FACTS:
On February 24, 2003, Paul V. Gallegos, District Attorney of Humboldt County (DA) acting to protect the general public from unfair business practices, filed a complaint for civil penalties, injunction and restitution against THE PACIFIC LUMBER COMPANY (PL), and its subsidiaries, in the Superior Court of California, County of Humboldt. Complaint: People v. Pacific Lumber Company on behalf of The PEOPLE OF THE STATE OF CALIFORNIA, pursuant to sections 17204 and 17206 of the Business and Professions Code.
District Attorney Gallegos and Assistant District Attorney Tim Stoen subsequently appeared before the Humboldt County Board of Supervisors (March 12, 2003) for the purpose of requesting permission of the Board for the DA's office to retain outside counsel to assist with the PL litigation. The Board opposed the allocation of any County monies to the PL lawsuit. Standing alone, Third District Supervisor, John Wooley put forth a motion to allow the District Attorney to present a finalized proposal supporting his request, but the rest of the Board voted the motion down. Although the Board rejected the DA's request for special counsel, Mr. Gallegos stands by his decsion to proceed with the lawsuit, and now seeks to supplement his budget for anticipated costs of the suit, inclusive of witness fees, travel expenditures, depositions, et cetera. Presently, the District Attorney's office is engaged in pursuing a lawful course by which to solicit, accept, and utilize contributions so crucial to supplementation to the Agency's budget, and to the success of the PL litigation. The District Attorney's office seeks now to delineate and resolve all of the issues involved in establishing a lawful procedure for accepting, reporting, depositing, and disbursing monetary contributions to support the PL lawsuit.
pg 3 of 7:
DISCUSSION:
I. Whether a District Attorney, as a sitting elected official can solicit for, and accept donations to supplement his Agency's budget for anticipated costs associated with the public purpose of prosecution, and if so, what legal guidelines regulate the solicitation, acceptance and disbursement of such contributions?
As an elected official, acting within the scope of his official duties, and to satisfy a public purpose such as proceeding with the Pacific Lumber Company Lawsuit, the District Attorney may accept contributions from both individual and organizational donors. the preferred method is the establishment of a Trust Fund through the Humboldt County Board of Supervisors.
AUTHORITY FOR LEGAL GUIDELINES:
AUTHORITY: SUBJECT:
Government Code Section 25355 Acceptance of gifts by the Board
Government Code Section 25356 Treatment of specified and unspecified donations
California Government Code Section 25355, West 2003,
"The Board may accept or reject any gift, bequest, or devise made to or in favor of the County, or to or in favor of the Board in trust for any public purpose. The Board may delegate to any County officer or employee the power to accept any gift, bequest, or devise made to or in favor of the County. The officer or employee shall file with the Board each quarter a report that describes the source and value of each gift valued in excess of ten thousand dollars ($10,000) or any other amount as determined by the Board. The Board may hold and dispose of the property and the income and increase thereof for those lawful uses and purposes as are prescribed in the terms of the gift, bequest or devise. In accounting for or inventorying gifts, bequests, or devises, the officer or employee shall follow the appropriate procedures contained in the State Controller's manual entitled "Accounting Standards and Procedures for Counties.:
California Government Code Section 25356, West 2003,
"If any gift, bequest or devise is unaccompanied by any provision prescribing or limiting the uses and purposes to which the property is received, or the income or increase
pg 4 of 7:
Page four is missing. No one seems to have a copy of this except perhaps Tim Stoen, Salzman or Holder
pg 5 of 7
...first step to be undertaken by the DA's office is to formalize a request to the Board of Supervisors for the establishment of a Trust Fund for expenditures anticipated in the PL lawsuit.
PROCEDURE TO BE USED BY DISTRICT ATTORNEY IN REQUESTING TRUST FUND.
As per instructions of County Treasurer, Steve Stawn (sp) offered via phone conference March 20, 2003, the following process must be followed: Initially, three (3) weeks before the proposal is made before the Board, the Clerk of the Board of Supervisors must be notified of intent of DA's office to present a proposal for establishment of agency/trust fund to be used for the PL lawsuit. the clerk will make this request a future Agenda Item.
Secondly, the DA appears before the Board with a formalized, written proposal delineating the necessity of a Trust Fund to supplement anticipated costs associated with the Pl lawsuit. A working title of the Trust Fund might be Headwaters Litigation Fund (HLF). The DA requests approval of the Board for the proposed HLF.
Thirdly, after consideration of the proposal, the Board will do a status report which is a recommendation for approval or denial of the proposal; (see attached documents (A) Agenda Item No. E-5; and (B) Agenda Item No. C-3) In both cases, the Board approved. Also see Times Standard article, Trust Fund to Widen Buckhorn Grade Backed March 26, 2003 for clarification of Trust Funds.
Lastly, after approval (1) the Trust Fund is set up, and (2) the Agency is oriented on how funds will be accessed. Mr Strawn stated that the Auditor/Controller's office oversees the disbursement of all County monies, and as such, will monitor the disbursement of the HLF. (3) the DA's office will be advised on budgeting matters, and of how to access the HLF Funds. Generally, after approval and establishment of the Trust Fund, expenditures are accessed via presentation of a budget.
In the event that the Board of supervisors denies the District Attorney's proposal for a trust fund to be established as per Government Code _ 25355, for the public purpose of the PL litigation, the alternative plan will be a trust fund set up as an Escrow account. Escrow law is contained in Division California Finance Code commencing with the regulations, are contained in Subchapter 9, title 10 of the California Code of Regulations with section 1700 (10 C.C.R. _1700 et seq).
!!. Whether the Fair Political Practices Commission (FPPC) created by the Political Reform Act of 1974 (Proposition 9) exerts authority or jurisdiction over fundraising not associated with pre-election candidate, campaign fundraising, but rather for expenditures for public purposes, as designated by a sitting public official in executing his official duties?
According to FPPC spokesperson and researcher, "Trish," via phone conference on April 1, 2003, the FPPC, the FPPC almost exclusively oversees fundraising issues associated with candidates, and pre-election fundraising. Trish's response to an inquiry regarding...
pg 6 of 7
...Government Code _ 82015 (B) (iii), was that this section is a "relatively new" and "gray area" of the law, which "should not be a problem or an issue in the instant matter."
Government Code _ 82015 (B) (iii), reads
"A payment not covered by clause (i), made principally for legislative, governmental or charitable purposes, in which case it is neither a gift nor a contribution. However, payments of this type that are made at the behest of a candidate who is an elected officer shall be reported within 30 days following the date on which the payment or payments equal or exceed five thousand dollars ($5,000) in the aggregate from the same source in the calendar year in which they are made..." (see attached document marked "C" to review section 82015.)
FPPC spokesperson Trish conjectures that if the HLF is set up through the County' Government Code 82015 regulations may be negated by the stringent County trust fund regulations. This further research on Government Code 82015 (B) (iii) is forthcoming. Trish will determine whether or not, once the HLF is set up, the District Attorney himself, may lawfully solicit for funding via phone calls and personal letters to perspective (sp) donors. According to the FPPC representative, however, it si established that others in the Agency may solicit for funding on behalf of a public purpose (HLF), which solicitation is outside the scope of the FPPC authority.
III. Whether a District Attorney''s acceptance of pro bono legal assistance tendered by attorney's, law firms, or paralegals constitutes the acceptance of "gifts" or "bequests" by a sitting elected official and if so, what legal authority, if any may regulate, limit, or prohibit acceptance of such pro bono assistance by the District Attorney in the instant matter of the Pl lawsuit?
A phone conference with FPPC representative Adrian on March 28, 2003 revealed that pro bono assistance offered to a sitting elected official for a public purpose, benefit the County and the people of the County, but not the official personally. Such assistance does not constitute a "gift" or "bequest" within the meaning of FPPC regulations, and may, therefore, be accepted without reservation, by the sitting District Attorney in the instant matter. Adrian stated that such acceptance by the Da of pro bono assistance does not constitute a "conflict of interest" within the meaning of FPPC regulations.
CONCLUSION:
Although the District Attorney's prior bid for County approval for the hiring of outside counsel to assist in the PL lawsuit, was rejected by the Board of Supervisors it is herein suggested that the Da go before the Board with a proposal which constitutes an offer the...
pg 7 of 7
...Board 'cannot refuse.' Emphasis should be placed upon the fact that the District Attorney's Office seeks no money, either directly, or indirectly, from the General Fund, but rather requests the establishment of a trust fund whose coffers will abound with contributions from individuals and organizations some of whom have already come forward with spontaneous offers of monetary donations.
It is prudent to make the HLF proposal clear, and comprehensible to the Board, and to render the process of approving and setting up the trust fund as simple as possible. In the improbable event that the Board denies the proposal, the backup plan of the Escrow account should be implemented.
It is concluded that the District Attorney of Humboldt County may lawfully accept contributions for the public purpose of budget supplementation to proceed with the PL lawsuit. The rule of law is California Government Code Sections 25355 and 23556 addressing acceptance of gifts by the Board of Supervisors and treatment of specified and unspecified donations. FPPC Regulations, California Government Code 82015 addressing "behested payments" in excess of five thousand dollars ($5,000) from a single source, are satisfied by simply filling out a form and filing that form with the County Clerk. Applying the relevant rules of law to the facts contained therein, the District Attorney, after lawfully establishing the trust fund, may solicit, accept and utilize unlimited contributions for the public purpose of the PL litigation.
Once the trust fund is established, fundraising plans could include calls and letters to environmentally involved celebrities, and to organizations such as the Sierra Club, Greenpeace, and the Wilderness Society Planning and Conservation League. Full page ads in the Los Angeles Times and the San Francisco Chronicle could attract powerful allies to contribute significantly to the cause. Although local radio, television and newspaper releases might serve to clarify the DA's position on the lawsuit, and perhaps win some measure of support, a controversial, even hostile local environment and the facts appear to indicate that significant budgetary supplementation will likely come from out of the immediate area.
Gail Holder
****
RELATED:
Read second - GALLEGOS' REQUEST FOR OPINION
The complete text of Paul Gallegos' REQUEST FOR OPINION, which he submitted to the Attorney General's Office
TIM STOEN'S LETTER TO THE FPPC
Paul Gallegos' and Tim Stoen's efforts to privately fund the PL lawsuit took many forms.
THE FPPC RESPONSE TO STOEN
The full text of the FPPC's response to Tim Stoen's letter regarding "Raising Funds for prosecution of District Attorney Lawsuit Against Pacific Lumber Company."
SUBMISSION TO THE ATTORNEY GENERAL'S OPINIONS DEPARTMENT regarding Gallegos' Request for Opinion and Salzman's Plan