Metropolitan News-Enterprise


Tuesday, September 4, 2018


Page 1


Court of Appeal:

Man Who Spent More Than $260,000 in Fighting $5,000 FPPC Fine Acted for ‘Public Benefit’


By a MetNews Staff Writer


A man who paid more than $260,000 in attorney fees in successfully fighting off a $5,000 fine imposed by the Fair Political Practices Commission was not seeking merely to vindicate personal interests and was entitled to attorney fees under the private attorney general statute, the Fourth District Court of Appeal has held.

The unpublished opinion by Justice Richard T. Fields of Div. Two was filed Thursday and affirms the issuance of writ by Riverside Superior Court Judge Craig G. Riemer.

The plaintiff, Frank Burgess of Banning, was fined by the FPPC after it found him to have violated Government Code §87100, which states:

“No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest.”

Burgess, a prominent businessman in Banning, sits on the board of directors of a local non-profit hospital. At a board meeting, he encouraged the board not to stop doing business with his moving company, Burgess North American Van Lines.

Commission Findings

The commission applied a 1977 opinion it had issued in the case of In re Siegel, which set forth factors for determining if an entity is a local government agency. Under those factors, it found that the hospital was such an agency and that Burgess was a public official.

Riemer agreed with Burgess’s contention that he had been denied due process because he had no forewarning that he was a public official.

In addition to granting a writ ordering the FPPC to lift the fine and granting declaratory relief, the judge, in postjudgment proceedings, awarded Burgess $221,166 of the $268,170 he had been expended on attorney fees. Riemer acted pursuant to Code of Civil Procedure §1021.5 which authorizes such an award to the prevailing party in an action that “has resulted in the enforcement of an important right affecting the public interest.”

Burgess’s Objective

The judge remarked that “no one spends the kind of attorney’s fees that he’s incurred merely to avoid a $5,000 fine,” observing that Burgess “not only wanted vindication or relief from that penalty, but he wanted, clearly, to correct what he viewed as being an improper course of action by the commission.”

He declared:

“I’m not going to be issuing any injunction, but I think it is proper to issue declaratory relief saying that it would be a violation of due process to punish someone for conduct on a non-profit corporation when there had been no preexisting determination by the [Commission] that that non-profit corporation should be deemed to be a local governmental agency.”

Counsel for Burgess responded:

“As you correctly stated, this is more—about more than just this case to Mr. Burgess. He has spent four years dealing with this. He’s 80 years old. There are few issues that are more important to our Constitution than the concept of due process. This is not a traffic ticket. This is due process that we all swore to uphold. And it means something to my client to prevent this from happening to anybody else.”

The commission contended on appeal that Burgess had not shown that “a significant benefit…has been conferred on the general public or a large class of persons.” Fields rejected the contention, explaining:

“Here, the judgment effectuates a fundamental constitutional policy—the right to due process of law. Moreover, while the trial court did not issue an injunction, the court declared it a violation of due process for the commission to punish ‘anyone else’ in the same manner it punished Burgess….This enforcement of a fundamental constitutional right against a public agency confers a significant benefit on the general public. The benefit to the general public flows from the nature of the right at issue and the nature of the court’s broad declaration.”

The case is Burgess v. Fair Political Practices Commission, E068433.


Copyright 2018, Metropolitan News Company