TS - Three of four counts dismissed in August case

Three of four counts dismissed in August case
Councilwoman still faces removal from office
By Kimberly Wear The Times-Standard
Thursday, May 19, 2005 - 6:12:11 AM PST

EUREKA -- In a ruling released Wednesday, a Superior Court judge dismissed three of the four counts in the accusation proceeding against Fortuna City Councilwoman Debi August, who still faces removal from office on a remaining conflict of interest count.

One of August's attorneys, William Bragg, said he is asking the 1st District Court of Appeal in San Francisco in a writ filed today to direct the trial court to dismiss that last count. Bragg said he is also seeking a stay of the trial, scheduled to begin Monday, until the appellate court can rule.

August, who is also a real estate agent, is accused of conflict of interest for personally advocating for a subdivision plan before the Fortuna Planning Commission on a friend's behalf. The District Attorney's Office is prosecuting the case.

Attorneys for August had sought to have all of the counts dismissed and each side filed legal papers outlining their positions before presenting oral arguments to Judge John H. Feeney on May 9.

In a four-page decision, the judge overruled August's objection to the conflict count, finding there was enough evidence presented to the grand jury, that pursuing the count did not violate the state constitution's Separation of Powers doctrine and that the grand jury proceeding did not violate August's due process rights.

But Feeney also ruled that the people did not meet the threshold needed to show August should face losing her seat for allegedly failing to correctly fill out Statements of Economic Interest documents when she was an appointed member of the Fortuna Planning Commission.

"It would be contrary to law to now subject Ms. August to removal from her elected position on the Fortuna City Council for filing errors, which were not only merely negligent, but also committed outside the scope of duties imposed by the office in question -- member of the City Council," Feeney wrote.

On the final dismissed count of failing to follow a grand jury secrecy admonition, Feeney made a similar finding, writing there was insufficient evidence to establish "serious misconduct or a purposeful failure" to carry out her duties of office.

One year has passed since the District Attorney's Office filed the accusation case against August following a grand jury investigation. If a jury were to find there was a conflict of interest, August would be removed from office for the remainder of her term, which ends in April 2006.

"I have no problem with the ruling," said Deputy District Attorney Tim Stoen, after hearing about the judge's decision. Stoen is prosecuting the case.

"Based on the importance of the charges, this is a 95 percent win for the people," he said.

August's attorneys had argued the conflict of interest count should be dismissed based in part on a 4th District Court of Appeal ruling in another accusation proceeding. There, the judges found the alleged wrongdoing must meet a minimum threshold.

The Steiner v. Superior Court case involved a accusation proceeding brought against Orange County supervisors after that county fell into bankruptcy.

"The procedure must be reserved for serious misconduct ... misconduct that involves criminal behavior or, at least, a purposeful failure to carry out mandatory duties of office," according to the appellate court.

Feeney agreed that three of the four counts against August did not meet that threshold.

August's attorneys are bringing the Steiner argument and issues regarding Stoen's alleged misstatement of the conflict of interest law to the grand jury to the San Francisco appellate court in a bid to have the last count dismissed.