April 24, 2008

Denham files criminal complaint against Perata

Upping the ante in their ongoing recall battle, Sen. Jeff Denham's campaign announced filing two criminal complaints against Senate President Pro Tem Don Perata on Thursday.

Denham is the target of a Perata-backed recall on the June 3 ballot.

The first complaint targets the letter Perata, D-Oakland, sent to several Democratic senators demanding their chiefs of staff contact a Perata aide about political campaigning. "This is not an optional activity," read the Perata letter.

The second complaint targets Perata's political consultant contacting a state Senate staff member to translate a political transcript.

Both complaints were sent to the Sacramento County District Attorney and the California Attorney General.

"This is the latest abuse of office - and power - by Don Perata," said Denham's campaign manager John Franklin, who filed the complaints, in a written statement.

Perata helped qualify the recall of Denham for the June 3 ballot, giving hundreds of thousands of dollars through a ballot committee he has close ties to.

A spokesman for Perata could not immediately be reached for comment. But Jason Kinney, a Perata spokesman, told The Bee on Sunday that "any insinuation" Perata violated state law "is wrong and, frankly, sounds like the last desperate plea of a political dead man."

Regarding the request of a state employee to translate a political document, Kinney said, "This was a one-time, inadvertent mistake by a well-intentioned campaign staffer who thought she was contacting someone in their capacity as a part-time volunteer."

That is not the way the Denham campaign sees it. "There is clearly a systematic effort by Don Perata and his political operation to coerce state legislative employees into campaign work on the recall effort against Jeff Denham," said Franklin.

The two complaints are reprinted below, in their entirety:

First Complaint:
April 24, 2007

George Anderson, Director
Attorney General's Office, Division of Law Enforcement
1102 Q Street, 6th Floor
Sacramento, CA 95814

RE: Complaint - Coerced Political Activities by Employer (Labor Code §§ 1101, 1102); Bribery (Penal Code § 86)

Director Anderson:

A recent letter obtained by the undersigned offers irrefutable evidence that State Senator Don Perata has attempted to encourage State Senators to require their staff employees to engage in political activities in violation of Labor Code §§ 1101 and 1102. This same letter also offers evidence that State Senator Don Perata has likely linked the State Senators' compliance with his request with his official decisions as to their committee memberships and chairmanships in violation of Penal Code § 86.


FACTUAL BACKGROUND

The undersigned has obtained a copy of an April 17, 2008 letter sent by State Senate President Pro Tempore Don Perata to an undisclosed State Senator. A copy of said letter is attached to this complaint. The April 17th letter states, in full:

April 17, 2008

Dear Senator [REDACTED]

Your Chief of Staff was a no-show at yesterdays [sic] off-campus meeting.

The campaign staff reviewed the "demand list" of services needed between now and June 3rd.

Please ask your Chief of Staff to contact Shanda Chaudhry at XXXXXXXXXXXXXX@gmail.com ASAP. This is not an optional activity. Thank you.

DON PERATA

According to press accounts, letters similar to that quoted above were sent by State Senator Perata to several State Senators, including Gloria Negrete McLeod (D-Chino), Louis Correa (D-Santa Ana) and Ron Calderon (D-Montebello). Jason Kinney, a spokesman for State Senator Perata, has admitted that State Senator Perata did in fact send these letters to State Senators.

LEGAL BACKGROUND

California Labor Code § 1101 explicitly provides:

No employer shall make, adopt, or enforce any rule, regulation, or policy - (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

Similarly, California Labor Code § 1102 prohibits the following:

No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

To this end, state employees are explicitly covered by California Labor Code §§ 1101 and 1102. (See Labor Code § 1106.) Furthermore, an employer is liable not only for his own actions, but also of those directly supervising the employees, and the acts of the employees themselves. (See Labor Code § 1004.)
Any individual who violates Labor Code §§ 1101 and/or 1102 is guilty of a misdemeanor punishable by imprisonment not to exceed one year and/or a fine not to exceed $1000. (California Labor Code § 1103.)
Finally, any person who aids, abets, advises, or encourages a person covered by the statute to engage in activity violating Labor Code §§ 1101 and/or 1102 is equally criminally liable. (California Penal Code § 31.)

ALLEGATION #1

The April 17, 2008 letter quoted above reprimanded the recipient State Senator for his or her government office Chief of Staff not attending a meeting conducted for the purpose of organizing political activities in connection with the upcoming June 3, 2008 statewide election. Additionally, the letter demands that it "is not an optional activity" that the recipient State Senator require his or her Chief of Staff - an employee of the State Senator - to contact Ms. Chaudhry for the purpose of receiving a "demand list" of political services that the State Senator, the Chief of Staff, and/or other employees of the State Senator are to perform during the interim period prior to the election.

Labor Code §§ 1101 and 1102 prohibit an employer from requiring employees to partake in political activities. Accordingly, if a State Senator required his or her Chief of Staff to attend a meeting conducted for the purpose of organizing political activities in connection with the upcoming June 3, 2008 statewide election, that State Senator would be in violation of Labor Code §§ 1101 and/or 1102. Similarly, if a State Senator required his or her Chief of Staff to contact an individual for the purpose of receiving a document related to campaign activity, that State Senator would be in violation of Labor Code §§ 1101 and/or 1102. Finally, if a State Senator required his or her Chief of Staff (or other staff employee) to provide political services, that State Senator would be in violation of Labor Code §§ 1101 and/or 1102.

Moreover, pursuant to Penal Code § 31, any person who encouraged a State Senator to engage in such illegal activity would also be in violation of Labor Code §§ 1101 and/or 1102.

In regards to the April 17, 2008 letter, without question State Senator Perata "encourages" (i.e. "[t]his is not an optional activity") the recipient State Senator to direct his or her Chief of Staff to obtain a copy of the "demand list" of political services "needed between now and June 3rd."

Additionally, based upon information and knowledge, the "demand list" "encourages" the recipient State Senator to require his or her Chief of Staff and other staff employees of the State Senator to engage in political activities for the benefit of other candidates and/or ballot measure campaigns.

Finally, the fact that State Senator Perata reprimands the recipient State Senator for the absence of his or her Chief of Staff from April 16, 2008 meeting, indicates that at some point prior to said meeting State Senator Perata had "encouraged" the recipient State Senator to direct his or her Chief of Staff to attend the political meeting.

For these reasons, the undersigned files the instant complaint alleging that State Senator Perata has committed a misdemeanor by encouraging State Senators to require their government staff employees to engage in political activities in violation of Labor Code §§ 1101 and 1102, and Penal Code § 31.

ALLEGATION #2

California Penal Code § 86 provides in pertinent part:

Every Member of either house of the Legislature - who asks - any bribe, upon any understanding that his or her official - action shall be influenced thereby, or shall give, in any particular manner, or upon any particular side of any question or matter upon which he or she may be required to act in his or her official capacity - is punishable by imprisonment in the state prison for two, three, or four years and, in cases in which no bribe has been actually received

In turn, California Penal Code § 7 defines the term "bribe" in pertinent part as "anything of value or advantage, present or prospective - with a corrupt intent to influence, unlawfully, the person to whom it is given, in his or her action - in any public or official capacity.

Finally, pursuant to State Senate rule 11, an official act of the State Senate President Pro Tempore is voting upon the appointment of State Senate committee chairmanships and State Senate committee memberships.

Unquestionably, a State Senate Pro Tempore threatening a State Senator with removal from committee chairmanship or membership unless said State Senator provides the State Senate Pro Tempore with a bribe is a violation of California Penal Code § 86. Equally clear, the provision of non-compensated services in connection with a political campaign is a thing "of value." In fact, California Code of Regulations § 18215(b)(3), specifically provides that non-compensated services received in connection with a political campaign are considered "contributions" (i.e. things of value) to the recipient. Accordingly, a State Senate Pro Tempore who threatens a State Senator with removal of committee chairmanships and memberships unless the State Senator provides uncompensated political services is guilty of Penal Code § 86.

State Senator Perata has a history of stripping State Senators of their committee chairmanships and memberships when they act in defiance of his orders. For example, in February of this year, State Senator Joe Simitian (D-Palo Alto) was stripped of his chairmanship from the Senate environment committee and his membership from the Senate budget committee when he spoke in opposition to a education funding cut proposed by State Senator Perata.

The tone of the April 17, 2008 letters - set by the command that the recipient State Senators were to obtain a copy of State Senator Perata's "demand list," and that service of those demands "is not an optional activity" - clearly indicates that State Senator Perata was threatening the recipient State Senators with removal from committee chairmanships and memberships (or other official action) if they did not provide him the requested bribe of political campaign services.

For these reasons, the undersigned files the instant complaint alleging that State Senator Perata has committed a felony by threatening State Senators with removal from committee chairmanships and memberships (or other official action) if they did not provide him the requested bribe of political campaign services.

If you have any questions, feel free to contact the undersigned.

John B. Franklin
Campaign Manager
Friends of Jeff Denham Against the Recall
1231 8th Street, Suite 300
Modesto, CA 95354

Second Complaint:

April 24, 2007

George Anderson, Director
Attorney General's Office, Division of Law Enforcement
1102 Q Street, 6th Floor
Sacramento, CA 95814

RE: Complaint - Misuse of Public Funds by a State Government Official (Penal Code § 424)

Director Anderson:

On June 3, 2008, a recall election will be held to determine whether to remove State Senator Jeff Denham from office as the elected representative of the 12th Senate District in the California State Legislature. A recent email discovered by the undersigned offers irrefutable evidence that one or more persons have attempted to encourage state government employees to use public moneys in support of the recall campaign against State Senator Jeff Denham in violation of Penal Code §§ 31 and 424.

FACTUAL BACKGROUND

Attached to this complaint is a copy of an email string which begins with an email sent from Renee Sankus to Fortuna Clark on Friday, April 18, 2008, at 2:23 PM. The sender, Ms. Sankus, is an account executive of Polka Consulting - a political analysis and communications firm hired by the California Democratic Party to conduct telephone advocacy in support of the recall. The recipient, Ms. Clark, is a Spanish-language translator employed by the California State Senate. Based upon knowledge and information, the email was sent to Ms. Clark's official State Senate email account - not a personal, private email account. Enclosed with the email sent by Ms. Sankus to Ms. Clark was a telephone transcript advocating the recall of State Senator Denham. This telephone transcript is also attached to this complaint letter. The email string obtained by the undersigned indicates that this first email did not include any subject heading nor text other than Ms. Sankus's full name (apparently employed as an electronic signature).

The second email included within the email string was an email sent by Ms. Fortuna to Emily Towner on Friday, April 18, 2008, at 4:50 PM. Ms. Towner is a Scheduler in the Capitol office of State Senator Denham. Also "CC'd" to the email was Enedina Hidalgo. Ms. Hidalgo is the Director of Personnel for the California State Senate. Enclosed with the email sent by Ms. Fortuna to Ms. Towner and Ms. Hidalgo was the same telephone transcript advocating the recall of State Senator Denham. This second email also did not include any subject heading (other than FW:), but did include the following text:

Emily, here is the script to be translated. Requested by Renee Sankus from Polka consulting. She mentioned that someone in your office gave her my email. You know, I can't make any translations dealing with campaign since it may constitute a conflict of interest. Thank you for your understanding.

Ms. Towner is willing to testify under oath that she did not provide Ms. Sankus, or anyone else, the contact information of Ms. Fortuna as a resource for the Spanish-language translation of any material to be used in support of the recall against State Senator Denham - or for any other non-official government matter. Such an allegation on Ms. Sankus' part lacks all semblance of credibility and logic as it suggests Ms. Towner aided and abetted the removal from office of her own employer.

Finally, the third email included within the email string was an email sent by Ms. Towner to Jim Kjol. Mr. Kjol is State Senator Jeff Denham's Chief of Staff. Again, enclosed with the email sent by Ms. Towner to Mr. Kjol was the same telephone transcript advocating the recall of State Senator Denham. This third email included the subject heading "IMPORTANT" and the following text:

Jim please notice this is from Polka Consulting! Not us.

LEGAL BACKGROUND

Penal Code § 424 provides in pertinent part:

§ 424. Embezzlement and falsification of accounts by public officers; misappropriation; unauthorized loan, use or private profit; failure to pay over or transfer public moneys; punishment
(a) Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who - 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another; or - 3. Knowingly keeps any false account, or makes any false entry or erasure in any account of or relating to the same - [i]s punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state.
Penal Code § 424(a)(3) has been found to encompass the conviction of public employees, in addition to public officers, who falsify their own timesheets - even if the employee has no authority to receive or disburse public moneys other than the receipt of their own paycheck. (See People v. Peeples (2004) 2004 WL 2189176.)
Additionally, any person who aids, abets, advises, or encourages a person covered by the statute to engage in activity violating Penal Code § 424 is equally criminally liable. (People v. Little (1940) 41 Cal.App.2d 797, 806; Penal Code § 31.)
Finally, Penal Code § 424 does not require the specific intent that the person knows they are commiting a crime. Rather the person need only knowingly commit the act - regardless of whether they know the act is a crime or not. (People v. Battin(1978) 77 Cal.App.3d 635, 659 [superceded by statute on other grounds]; People v. Dillon (1926)199 Cal. 1, 7.)

ALLEGATION #1

In People v. Peeples (2004) 2004 WL 2189176, the Second Appellate District Court upheld the conviction of a public employee who falsified the number of hours he worked on his timesheet under Penal Code § 424(a)(3). Despite the fact that the employee was not authorized to receive or appropriate any public moneys, the court found that by falsifying his timesheets to show he worked his full slate of hours, and was subsequently paid for a full set of hours where he may otherwise have been docked full pay, the employee had violated the criminal statute. Similarly, in the instant complaint, Ms. Sankus encouraged Ms. Fortuna to falsify the number of hours worked on her timesheet by taking credit for that time in which she would have spent in the private act of translating the telephone script. Ms. Sankus sent the original email to Ms. Fortuna with the express purpose of encouraging Ms. Fortuna to translate the transcript in connection with her duties as a Spanish-language translator of the California State Senate. Ms. Sankus did not request Ms. Fortuna to translate the transcript as a personal favor to occur on Ms. Fortuna's personal time, nor as a private transaction to occur on Ms. Fortuna's private time. Rather, as acknowledged by Ms. Fortuna in her reply, the email was sent to Ms. Fortuna's official State Senate email account with the intent that Ms. Fortuna translate the transcript during and as part of her public employment.

While Ms. Sankus may or may not have understood that what she was asking of Ms. Fortuna was a criminal act, again Penal Code § 424 is a general intent crime in which the specific intent to commit a crime is not a necessary element.

Accordingly, we encourage your office to conduct an investigation to determine if Ms. Sankus sent the first email in question. If so, Ms. Sankus and whoever encouraged Ms. Sankus to contact Ms. Fortuna are guilty of encouraging a public employee to falsify timesheet records in violation of Penal Code §§ 31 and 424.


ALLEGATION #2

It is public knowledge that State Senate President Pro Tempor Don Perata has spearheaded the recall campaign against State Senator Denham. In addition, Polka Consulting - the consulting firm who has been hired by the California Democratic Party to aid the recall effort against State Senator Denham, and who contacted Ms. Clark to illegally translate the telephone transcript - is also employed as a political consultant by State Senator Perata.

Accordingly, whereas State Senator Perata is the person who has spearheaded the recall effort, and whereas it was State Senator Perata's political consultant who contacted Ms. Clark to illegally translate the telephone transcript supporting the recall effort, and whereas Ms. Clark is an official translator of the State Senate - the very public body of which State Senate President Pro Tempore Don Perata now heads, it is likely - if not probable - that it was State Senator Perata, either personally or through an agent, who encouraged Polka Consulting to contact Ms. Clark requesting the illegal translation.

While State Senator Perata may or may not have understood that what he was asking of Ms. Fortuna was a criminal act, again Penal Code § 424 is a general intent crime in which the specific intent to commit a crime is not a necessary element.

Accordingly, we encourage your office to conduct an investigation to determine if State Senator Perata encouraged Ms. Sankus to contact Ms. Fortuna. If so, State Senator Perata is guilty of encouraging a public employee to falsify timesheet records in violation of Penal Code §§ 31 and 424.

If you have any questions, feel free to contact the undersigned.

John B. Franklin
Campaign Manager
Friends of Jeff Denham Against the Recall
1231 8th Street, Suite 300
Modesto, CA 95354

Posted by Shane Goldmacher on April 24, 2008 11:07 AM