Metropolitan News-Enterprise

Tuesday, March 28, 2006


Page 1


C.A. Rejects Holden Challenge to Ethics Commission Fines


By KENNETH OFGANG, Staff Writer/Appellate Courts


A challenge by former Los Angeles City Councilman Nate Holden and his campaign treasurer to findings they violated the city’s campaign finance laws was untimely, this district’s Court of Appeal ruled yesterday.

Div. Four, in an opinion by Justice Thomas Willhite, said the 90-day period in which to seek judicial review of an Ethics Commission decision runs from the date of the commission’s findings and order. Because the city’s law does not provide for reconsideration or written findings, the possibility of “further proceedings” in the case does not toll the 90-day period, the justice concluded.

The case stems from an audit of Holden’s 1999 re-election campaign, the last of his tenure on the city’s legislative body. He was forced to leave office in 2003 due to term limits, after 15 years on the council.

Holden and Froehlich were charged with 31 violations, including accepting $5,150 in contributions that exceeded the $500 per-donor city limit. The commission also alleged that the pair submitted 20 additional matching fund claims for contributions that had already been matched with public money, resulting in an award of $2,720 in excess matching funds.

Computer Errors Claimed

The law authorizes penalties of up to $5,000 per violation. Holden and Froehlich blamed their acceptance of the excess contributions and the duplicate claims on computer programming errors. The excess contributions were returned after the election, but the law requires that any such donations be returned within 14 days after they are made.

Holden, who had previously paid fines for violations in connection with his 1995 re-election campaign, also said the commission discriminated against elected officials who represent poorer areas of town while merely glancing at the records of officials who rake in millions of dollars in contributions.

"Because I am part of a small group of elected officials who represent low-income and immigrant constituencies, my campaigns have been audited with a vengeance," Holden said in a press release sent out during the hearing.

Commission Executive Director LeeAnn Pelham rejected the accusations.

"I think it's unfortunate that Mr. Holden needs to characterize our process in this light," Pelham said.

By a vote of 3-2, the commission ordered Holden and Froehlich to pay the city a total of $4,500 in restitution and $2,000 in penalties. The dissenters argued that the penalties should be substantially larger.

Hearing and Order

The commission approved the penalties at the conclusion of an April 2002 hearing. After giving Holden and Froehlich an opportunity to review written findings prepared by the commission’s executive director, and after amending certain details, the commission adopted a final order and served it on June 28, 2002.

A petition for writ of mandate was filed 90 days later, on Sept. 27, naming Pelham as respondent. After the city attorney objected that Pelham was not the proper party, an amended petition, naming the commission as respondent and Pelham as real party in interest, was filed.

Los Angeles Superior Court Judge David P. Yaffe denied the petition, ruling that the decision became final, and the 90 days began to run, on April 30, the date the commission concluded the administrative hearing and voted on the action.

Willhite, writing for the Court of Appeal, disagreed with the trial judge as to when the 90 days started to run but agreed that time expired before the petition was filed.

Under Code of Civil Procedure Sec. 1094.6(b), he explained, an administrative decision is final when it is “announced.” The plain meaning of that term, Willhite wrote, requires that the decision be “made known to the public.”

The justice elaborated:

“The Commission’s decision was not ‘announced’ on April 30 because it was not complete on that date.  Under the charter and statutory provisions governing enforcement proceedings, if the Commission determines that a violation has occurred it must issue an order and make findings supporting its determination....As of April 30, the Commission had done neither.  Indeed, at that hearing, which was open to the public, the Commission directed Commission staff to draft the findings, and ‘announced’ that it would consider the proposed findings at its next public meeting.”

Since the findings were not considered and adopted until June 18, the justice continued, that is the date that the decision became final. But because the petition was not filed until 100 days later, it was still untimely, the jurist wrote.

Willhite rejected the argument that the administrative proceedings were never formally concluded.

“[T]he Commission made its completed decision known to the public — that is, it ‘announced’ its decision — at the June 18 meeting.  And it complied with the requirement of Code of Civil Procedure section 1094.6 to ‘announce’ at the close of the administrative hearing ‘the date, time, and place of the announcement of the decision’ because it made known to the public when it intended to vote to adopt the findings and order.”

Attorneys on appeal were Mark Geragos and Vicken Sonentz-Papazian of Geragos & Geragos for Holden and Froehlich and Senior Assistant City Attorney Claudia McGee Henry for the commission.

The case is Holden v. Los Angeles City Ethics Commission, B170359.


Copyright 2006, Metropolitan News Company