Matthew G. Jacobs is a former federal prosecutor who now co-chairs the white-collar and government investigations practice group at the international law firm of DLA Piper LLP from his office in Sacramento.

Viewpoints: Money shouldn't be motive for prosecutions

Published: Thursday, Feb. 7, 2013 - 12:00 am | Page 9A
Last Modified: Thursday, Feb. 7, 2013 - 7:39 am

In the last few months, The Bee and other newspapers have exposed several instances of state agencies maintaining special funds outside normal budgetary oversight. Since 2005, according to the Los Angeles Times and Wall Street Journal, Cal Fire has directed a share of settlements from businesses facing allegations that they were to blame for wildfires into an off-budget fund maintained by the California District Attorneys Association.

Cal Fire used the money to pay for conferences on the California coast and in wine country, among other things. Meanwhile, according to a investigation by The Bee, the state Department of Parks and Recreation hid millions of dollars from state finance officials for years. The department used the money for an undisclosed leave buyback program.

While these hidden funds are disturbing – they permit bureaucrats to spend money on personal priorities without normal budgetary constraints or oversight – what tends to get overlooked are the agencies' ethical and constitutional violations that bring in the money in the first place.

Another example is the Sacramento district attorney's recent announcement that her $6.5 million settlement of two environmental cases would allow her to rescind prosecutor and other employee layoff notices she had issued a few months earlier. The settlement money saved 18 prosecutors and seven clerical staff members whose jobs would otherwise have been lost.

Some $3.5 million of the settlement went to fund the very same unit of the DA's office that prosecuted the cases. Since that is the annual cost of running that unit, the settlement freed up the DA's general fund money to pay for other of its divisions, according to the DA's office and as reported by The Bee.

The concern these cases raise is that the prosecutors pursuing them could be motivated at least in part not by the cases' merits, but by the prosecutors' personal and bureaucratic need for the funds they bring in.

In the DA's cases, for example, the DA would have lost at least 25 jobs without the funds those cases generated, including some jobs in the very same unit that was prosecuting the cases. In short, the DA's and her prosecutors' personal and bureaucratic interests in prosecuting the cases was substantial.

Back to Cal Fire. The funds it was hiding also came from its settlement of its own allegations that various businesses were to blame for certain wildfires. In light of The Bee's disclosure of what Cal Fire was doing with those funds, it is no stretch to think that a Cal Fire enforcer could have been motivated to pursue a particular case by his or her desire to attend a several-day training session on the California coast.

This channeling of settlement monies into enforcement agencies' operating budgets violates a bedrock principle of prosecutorial ethics – that the prosecutor must be neutral in his or her pursuit of justice. Prosecutors should not be – and should not appear to be – motivated in their pursuit of cases by personal financial interest.

Just two years ago, the California Supreme Court reaffirmed the fundamental importance of prosecutorial neutrality, stating that "it is generally accepted that any type of arrangement conditioning a public prosecutor's remuneration upon the outcome of a case is widely condemned," since it raises serious ethical and perhaps constitutional problems. In a 1980 case, the U.S. Supreme Court similarly explained that "a scheme injecting personal interests, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions."

Justice loses when prosecutors are motivated to bring cases not based purely on their merits, but based even in part on the hope of some personal economic benefit. And while the general public surely loses from the misuse of its funds and its loss of confidence in its prosecutors, perhaps the biggest losers are the companies forced to pay the hidden tax that comes from defending and settling these claims.

And if one were thinking that this is a business-only issue, think again.

Agencies lacking neutrality can just as easily pursue cases against individuals as they can against businesses. The days of state troopers being required to reach their quotas of speeding tickets or lose their jobs live on. Said a trooper when a particular quota requirement was exposed last November, "We were told in meetings … that it's requested by the county auditor and the commissioner in order to get 160 (tickets) a month to retain our positions or they would put us on civil as punishment."

That kind of pressure will surely get the troopers out there. The question is what kind of justice they will pursue.

© Copyright The Sacramento Bee. All rights reserved.

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