Wednesday, December 22, 2010
C.A. Tosses Criminal Charges Over Official’s ‘Enemies List’
By STEVEN M. ELLIS, Staff Writer
The Fourth District Court of Appeal yesterday threw out charges that a former San Juan Capistrano Unified School District superintendent used public funds to create an “enemies list” and sway elections.
Div. Three said that James Fleming committed no crime when he authorized subordinates to compile lists of individuals who supported a 2005 effort to recall the district’s board because he had authority to research discontent and unrest in the 50,000-student district.
The court also affirmed an Orange Superior Court judge’s ruling tossing charges that Fleming improperly used district funds to support or defeat a ballot measure, and conspired with then-Assistant Superintendent Susan McGill to compile the lists for an illegitimate purpose.
According to prosecutors, Fleming—who retired in 2007 after 15 years as superintendent–ordered subordinates to use a student database system to identify the names and addresses of recipients of an e-mail advocating for the recall of all of the board’s seven members. A staffer testified that the list was developed so that Fleming could “educate” people who were unhappy with the district, but Fleming apparently never used that list.
The recall effort failed when supporters, circulating petitions for each seat on the board, violated the Elections Code by filling in signers’ addresses after each signer wrote it on the first form in order to avoid troubling them with having to write in their address on each form.
Fleming, prosecutors said, then developed a second list after the Orange County Voter Registrar’s Office improperly allowed his subordinates to view the names of the petitions’ circulators.
A grand jury indicted Fleming for willfully and unlawfully appropriating public moneys for his own use, using district funds to support or defeat a ballot measure, and conspiring with McGill to access student records without authorization.
In October 2009, Fleming moved to set aside the indictments as without probable cause, and Orange Superior Court Judge William R. Froeberg dismissed the second two counts. He found that there was no evidence that Fleming ever “urged the resistance” to the recall effort or “attempted to persuade or influence any vote in that aborted recall.”
Froeberg declined to dismiss the first count, however, because Fleming had used “company time to investigate political things.”
Fleming sought a writ to reverse the order on the first count, while the Orange County District Attorney’s Office filed a petition for a writ to reverse the order on the second two counts, but the Court of Appeal sided with Fleming in an opinion by Presiding Justice David G. Sills.
Sills explained that the court was expressing no opinions on the recall effort or Fleming’s administration of the district, or about any civil suits that might have arisen out of the lists. He also said that the court did not countenance any actual political use of the list as part of a campaign opposing recall, or use of it to intimidate or disadvantage recall supporters’ children.
“But let us also make clear what we do say,” the justice wrote. “The district attorney’s office has presented no evidence whatsoever that the lists were used in any political campaign, or that they were used to intimate anybody, or that any child in the District was in any way affected by those lists or their preparation. Their compilation was not criminal.”
Justices William F. Rylaarsdam and Eileen C. Moore joined Sills in his opinion.
The case is Fleming v. Superior Court (People), G043395.
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