Metropolitan News-Enterprise


Thursday, October 23, 2008


Page 1


C.A. Sets Aside Orange County Public Official’s Indictment


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District California Court of Appeal yesterday granted a writ of prohibition barring the Orange County District Attorney from prosecuting a criminal action against City of Placentia administrator Robert D’Amato.

Holding that the Legislature did not intend to criminalize legislative acts taken by public officials who held no personal financial interest in a contract made while acting in an official capacity, Div. Three ruled that D’Amato could not be held liable for aiding and abetting another official who had a personal interest in a contract D’Amato’s legislative activities brought to fruition.

As administrator, D’Amato recommended the city council form a joint powers authority to try and obtain federal monies to finance a city project to lower the grade of railroad crossings to improve traffic flow and safety.

The city council then formed the Orange North-American Trade Rail Access Corridor, known as ONTRAC. D’Amato served as one of the three ONTRAC board members, and voted with the other ONTRAC board members to elect Christopher Becker, the city’s director of public works, as the executive director of the ONTRAC project.

A grand jury later indicted Becker for having a financial interest in a contract he made while acting in his official capacity in violation of Government Code Sec. 1090, and indicted D’Amato for two counts of aiding and abetting Becker.

Count one of the indictment concerned D’Amato’s role in forming the contract establishing ONTRAC and count two involved his involvement in the contract between ONTRAC and Becker.

After Orange Superior Court Judge Frank F. Fasel denied D’Amato’s motion to set aside the indictment, D’Amato petitioned for writ relief.

Writing for the appellate court, Justice Richard M. Aronson explained for D’Amato to be criminally liable as an aider and abettor, he must have acted with the knowledge of the criminal purpose of the perpetrator and with the intent or purpose of committing or facilitating commission of the offense.

When a prosecution is based on a public officials legislative acts aiding and abetting another in violating Sec. 1090, Aronson reasoned, the assessing criminal liability would necessarily require an inquiry into the public official’s subjective motivation for the legislative acts.

But, the jurist noted, an “important corollary of the separation of powers doctrine is courts cannot inquire into the impetus or motive behind legislative action,” because such an inquiry would directly contravene the principles of the separation of powers doctrine.

 The legislature’s wording also evinced an intent to exclude aider and abetter liability, Aronson said, because it was “worded to focus its proscription on the holding of a financial interest in the contract rather than the making of the contract.”

Such narrowing of the scope of liability is consistent with a legislative intent to exclude from punishment members of a legislative body who do not have a financial interest in the contract at issue, he wrote.

As D’Amato never had any personal financial interest in either the ONTRAC agreement or the professional services contract between ONTRAC and Becker, Aronson concluded, he could not be held liable for aiding and abetting Becker’s violation of Sec. 1090.

Justices Richard D. Fybel and Raymond J. Ikola joined Aronson in his opinion.

The case is D’Amato v. Superior Court (People), 08 S.O.S. 5783.


Copyright 2008, Metropolitan News Company