Metropolitan News-Enterprise


Friday, February 9, 2007


Page 1


S.C. Rejects ‘Estoppel by Entrapment’ Defense for Former Official




A public official charged with violating conflict of interest laws cannot assert a defense based on claims her agency’s legal counsel advised that no conflict existed, the California Supreme Court unanimously ruled yesterday.

The justices said Maria S. Chacon must face trial on felony charges that, while serving on the Bell Gardens City Council, she participated in an arrangement resulting in her appointment as city manager, and that the trial judge cannot charge the jury on “entrapment by estoppel.”

The high court’s decision upholds a Court of Appeal ruling in favor of District Attorney Steve Cooley, who charged Chacon under Government Code Sec. 1090, which makes it a crime for a public official to participate in the making of a contract in which the official has or expects a financial interest.

Prosecutors abandoned the charges after Los Angeles Superior Court Judge Michael M. Johnson said that at a trial he would, if the evidence warranted it, instruct jurors Chacon could not be convicted if she acted in reliance on advice from then-City Attorney Arnoldo Beltran.

City Manager Post

Chacon is charged with conspiring with other council members to repeal an ordinance barring council members from accepting the post of city manager until they had been off the council for a year.

The ordinance was repealed in October of 2000, with Chacon joining her colleagues in voting in favor of the repeal, and Chacon accepted the city manager job in December of that year.

She held the job for just a few months, having been placed on administrative leave after the charges were filed and eventually fired by the council.

Her lawyers said she would present testimony that Beltran proposed eliminating the existing ordinance, drafted the repeal, and drafted the contract hiring her as city manager. Her due process rights under the U.S. Constitution would be violated if she could be prosecuted for relying on Beltran’s advice, she contended.

Johnson agreed, saying he was bound to follow Cox v. Louisiana (1965) 379 U.S. 559. Cox held that demonstrators could not be prosecuted for picketing “near” a courthouse after the police chief and city officials told them it would be legal to do so across the street.

But Justice Carol Corrigan, writing for the Supreme Court, distinguished the cases.

“Unlike those charged in Cox...defendant was not an ordinary citizen confronting the power of the state,” she wrote. “Defendant was a member of the executive branch of government.  A public office is a position held for the benefit of the people; defendant was obligated to discharge her responsibilities with integrity and fidelity.”

Public Policy

Allowing public officials to assert a defense to conflict of interest charges “by claiming reliance on the advice of public attorneys charged with counseling them and advocating on their behalf,” the justice wrote, “is antithetical to the strong public policy of strict enforcement of conflict of interest statutes and the attendant personal responsibility demanded of our officials.”

That reasoning is particularly strong in general law cities, where the city attorney is appointed by and is subordinate to the city council. “An official cannot escape liability for conflict of interest violations by claiming to have been misinformed by an employee serving at her pleasure,” Corrigan wrote, as this would put the city attorney in the untenable position of having to choose between loyalty to the official and public duty.

Corrigan also noted that the city attorney has no authority to enforce criminal laws, unlike the police officials in Cox.

The high court also rejected Chacon’s argument that prosecutors were not entitled to appeal the dismissal of the case against her.

Previous cases involving the exclusion of evidence, Corrigan explained, have allowed prosecutors to abandon a case and then argue the evidentiary issue on appeal from the resulting dismissal. The rationale of those decisions, that if the prosecutors had to go forward without their evidence and lost they could not appeal an acquittal, applies equally to the situation where the trial judge rules in favor of allowing the presentation of a defense the prosecution contends is legally untenable.

The case was argued on appeal by Michael D. Nasatir of Santa Monica’s Nasatir, Hirsch, Podberesky & Genego for Chacon and by Deputy District Attorney Phyllis C. Asayama.

The case is People v. Chacon, 07 S.O.S. 723.


Copyright 2007, Metropolitan News Company