Family Court
Reform
Citizens Judiciary
Review Board
Next meeting of Marin County Judges and District Attorney
Recall Effort will be at the Marin Community Foundation Building Sunday
3:P.M. 4th, 2000
Larkspur California
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The Coastal Post - June 2000
Why A "Free
Pass" In Supervisors' Credit Card Scandal?
By Fielding Greaves
Marin County Supervisors
Annette Rose and John Kress have each admitted to media and public that on more
than one occasion each has used an official county credit card to make purchases
for personal purposes, though subsequently reimbursing the county for the
expenditures.
California Attorney
General Bill Lockyer said that their actions were illegal. Marin County
District Attorney Paula Kamena, however, declined to prosecute them for two
reasons. First, according to the IJ, the D.A. said her prosecutors had no
grounds for the "criminal intent" that she claimed was necessary in
order to press charges against either Rose or Kress. Second, "sloppy
county policy" on official credit card use had allowed such use in the
past, provided reimbursement was made, suggesting the delinquent supes had some
sort of tacit "authorization" for the illegal use of county credit
cards.
District Attorney Kamena
should have read her law books. No kind of tacit county
"authorization" can supplant state law. Section 424 of the California
Penal Code makes it clear that such alleged credit card use is a felony,
explicitly stating, inter alia, that:
"Each officer of
this state or of any county...of this state,''' charged with the receipt,
safekeeping, transfer, or disbursement of public monies, who either:
1. Without authority of
law, appropriates the same, or any portion thereof, to his own use, or to the
use of another;
or,
2. Loans the same or any
portion thereof; makes any profit out of, or uses the same for any purpose not
authorized by law... Is punishable by imprisonment in the state prison for two,
three, or four years, and is disqualified from holding any public office in
this state."
In having custody of
official county credit cards, both supervisors met the test of Section 424 of
being "charged with" both "safekeeping" and
"disbursement" of public funds as represented by, and available
through, those credit cards, for purposes of official county business. Thus
they both meet the test of being subject to the language of Penal Code Section
424.
A reasonable person would
conclude that people who violate Section 424's subsection 1 ("without
authority of law appropriates any portion" of public funds for his own
use) would be subject to one of the listed felony-level penalties. So would
persons violating subsection 2's prohibition against "loans" of such
funds to themselves. As would persons (subsection 2 again) who "use the
same for any purpose not authorized by law." Violation of any one such
provision could merit such felony penalty.
Yet Marin District
Attorney Paula Kamena said the Rose and Kress violations of county policy were
not criminal acts. How can she suggest that "sloppy county policy" or
county "authorization" has power to negate state law?
The D.A. contends that
prosecution depends upon "criminal intent," but California case law
makes it clear actual "possession" of public funds is not needed for
embezzlement to occur, and that "intent" is not required for
conviction.
¥ In People v. Knott (15
C2d 628, 104 P2d, 128 ALR 1367) (1940) the court ruled that Section 424 applies
to money over which the defendant may have control, although it may not be in
his possession. Public "money" was not in the "possession"
of Rose or Kress, but both had "control" over some, and both used
some for personal purposes, through their credit cards.
¥ In People v. Dillon
(199 C1, 248 P.230) (1926) the court ruled that the Legislature has the power
to provide that embezzlement is committed when a person uses public funds in a
manner forbidden by law, even though he may have no fraudulent intent.
¥ In People v. Battin (77
CA 3d 365, 143 Cal Rptr 731, 95 ALR 3d 248) (1978) the court ruled that a
conviction under Penal Code 424, subsection 2, prohibiting use of public funds
for purposes not authorized by law is a felony, and that it "does not
require proof of specific intent, and no instruction on specific intent is
required."
In view of Section 424
and the above court rulings, Marin United Taxpayers Association has serious
reservations about the district attorney's failure to prosecute.
¥ Why did she give a
"free pass" to Supervisors Rose and Kress in a matter Section 424
calls a felony?
¥ Is it "party
loyalty"-registered Democrat Kamena protecting registered Democrats Rose
and Kress?
¥ Why is she-in our
view-not doing her sworn duty, duty for which Marin taxpayers pay her salary?
P.S. This is another organization that is starting to see
the light of our wisdom!
Peter Romanowsky