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.
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