Tuesday, March 20, 2018
Unemployed Judicial Candidate: Ballot Designation Is Proper
Cole Asserts in Writ Petition She Lacks Any Occupation or Profession, Entitling Her To Allude to Former Job; Diamond Contests Police Chief’s Assertions
By a MetNews Staff Writer
A candidate for election to the Los Angeles Superior Court who was fired Jan 3 as a deputy Los Angeles city attorney yesterday filed a writ petition claiming that because she is unemployed, she has no present occupation or profession and should be able to use a three-word description describing her activities in her former job.
Meanwhile, a candidate whose ballot designation of “Police Commissioner/Attorney is undergoing a court challenge, has said the Burbank chief of police, who executed a declaration disputing the accuracy of that description, is unknowledgeable of the matter. The candidate, criminal defense attorney David D. Diamond, insisted that his designation “is accurate and properly informs the voters as to what I do professionally.”
Onica Valle Cole, who is competing with two others for Office No. 67 on the June 5 ballot, argued in her petition that the Office of Recorder should accept her designation as “Consumer Protection Prosecutor,” adding, “or if that is too confusing, to minimize the confusion and not mislead the public, Consumer Prosecutor/Attorney or even more basic, Los Angeles Prosecutor/Attorney.”
No Profession, Occupation
She maintained in the petition:
“Because Onica Valle Cole had no profession or occupation on March 9, 2018 when she filed her nomination documents, the only requirement for her is that she use three words that are not misleading.”
Cole is relying on Elections Code §13107 which permits a candidate to list “[n]o more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”
However, California Code of Regulations §20714 says that a person who is an active member of the State Bar does have a profession—that of “attorney.” It provides:
“If a candidate is licensed by the State of California to engage in a profession, vocation or occupation, the candidate is entitled to consider it one of his or her “principal” professions, vocations or occupations if (i) the candidate has maintained his or her license current as of the date he or she filed his or nomination documents by complying with all applicable requirements of the respective licensure, including the payment of all applicable license fees and (ii) the status of the candidate’s license is active at the time he or she filed his or her nomination documents.”
Requested ‘Inactive’ Status
While acknowledging that when she filed her nomination documents on March 9 she was an active member of the State Bar, Cole noted that “on or about February 26, 2018 I sent a request to the California State Bar to become inactive.”
(Had the State Bar taken immediate cognizance of Cole’s desire to go on inactive status, this could have resulted in any reference in her designation to law practice being precluded. Under §20714, an attorney “may not claim such profession…as one of his or her ‘principal’ professions…if…the candidate’s licensure status is ‘inactive’ at the time the candidate files his or her nomination document.”)
Although the Office of City Attorney took the action on Jan. 3 of discharging Cole, the candidate has taken the position that she was constructively discharged before then.
Conflict With City
Her petition sets forth:
“Petitioner explained that she had left the Los Angeles City Attorney’s Office due to Sexual harassment, Workplace Violence and Retaliation. A complaint was initiated in June of 2017 and is still being investigated by the City.
“In August of 2017, Petitioner was advised by the Los Angeles City Attorney’s Office that they could not accommodate her workplace injuries in ANY assignment in the City family. A complaint for failure to accommodate and retaliation is currently being investigated by the Federal Department of Fair Employment and Housing and an intake interview is set for April 12, 2018.”
Cole contends that “her set of circumstances places her in a unique position, and only seeks to use the title that she has used for years, Consumer Protection Prosecutor….”
Challenges Rival’s Designation
Cole is also challenging the designation of one of her competitors in the race. Maria Lucy Armendariz is listed as “Judge of the State Bar Court, State Bar of California.”
(Prior to Jan. 1, only holders of elective offices were entitled to use their full office titles, while those in appointed positions were limited to three words. Under legislation passed last year, it is now permissible to use “[w]ords designating the city, county, district, state, or federal office held by the candidate at the time of filing the nomination documents” without a word limitation.)
Cole said Friday, in an email, that she contends that the appropriate designation for Armendariz is “Hearing Judge, San Francisco.” However, her petition and memorandum of points and authorities challenging Armendariz’s designation are identical to those relating to her own ballot designation and do not mention Armendariz.
The attachments, however, are different.
One is a print-out from the State Bar website identifying the judges of the State Bar Court. Differentiating those in the Hearing Department from those in the Review Department, it lists, among them, “Lucy Armendariz, Hearing Judge, San Francisco,”
Another exhibit shows this listing:
“Judge: Hon. Lucy M. Armendariz
“Department: Hearing Dept.”
Cole also provides an opinion by Armendariz with the heading, “Hearing Department.” However, under her signature are the words, “Judge of the State Bar Court.”
Under California Rules of Court, rule 9-11, “judge of the State Bar Court” is a term that includes “hearing judge, presiding judge, and review department judge.” Other provisions of rules, including the Canons of Judicial Ethics, make reference to “judges of the State Bar Court” or “State Bar Court judges.”
Cole’s other opponent is Deputy Los Angeles District Attorney Dennis P. Vincent.
On Friday, Deputy Los Angeles District Attorney Troy Davis, who is running for Office No. 118, filed a writ petition challenging the designation of his sole opponent, Diamond. It includes the words “Police Commissioner.”
Attached to the petition is a declaration by Burbank Police Chief Scott LaChasse, who said:
“1. I have been listed in the Ballot Designation Worksheet filed by David D. Diamond Esq. as a contact who can verify the information he presented in support of his Ballot Designation ‘Police Commissioner/Attorney.’
“2. Mr. Diamond did not request my permission or otherwise inform me that he would use my name as a person who could verify his information. If he had I would have declined.
“3. Mr. Diamond is currently the Chair of the seven member advisory board—the Burbank Police Commission.
“4. Mr. Diamond is not paid for his participation on this voluntary, advisory board.
“5. The Police Commissioners are not government employees.
“6. The Police Commission has no power or authority over the Burbank Police Department.
“7. The Police Commission meets once a month, except for December, for approximately an hour or two; and on rare occasions. Commissioners may review materials in preparation for the meetings.
“8. I applaud the unpaid volunteers who serve on our Police Commission but cannot verify that service on the commission is a time consuming activity; it is not an occupation or job.”
“Chief LaChasse’s declaration sheds very little, if any, light on the issue of the permissibility of my ballot designation. I respect the Chief a great deal, which is why I sought and obtained his endorsement.
“However, while the Chief remains a highly decorated and admired peace officer, I do not serve under him, and he has no way of knowing how much time I devote to my position as Chair of Burbank’s Police Commission.
“In addition, I do not believe that the Chief is in a position to opine on the meaning of Elections Code section 13107, the Secretary of State’s Ballot Designation Regulations, applicable case law, or whether the term “Police Commissioner” qualifies as one of my current principal professions, vocations or occupations.
“With regard to my ballot designation worksheet, I merely included (as required by the worksheet) the Chief’s name as a “person who can verify” that I serve as a Police Commissioner. In his declaration, the Chief has done exactly that.”
In the points and authorities accompanying the writ petition, Davis’s attorney, Brentford J. Ferreira, noted that Diamond is proceeding under the portion of §13107, predating the recent amendments, which calls for up to three words describing the candidate’s “principal professions, vocations, or occupations.
He charged that Diamond “attempts to puff up his participation as Chair of an unpaid, voluntary, advisory board into a principal occupation or vocation,” in derogation of the statute, as interpreted in a the 1994 Court of Appeal decision in Andal v. Miller.
Although there are two candidates in the race and a certainty of it being resolved in the primary, Ferreira wrote:
“[I]issuance of the requested writ will not interfere with the conduct of the election because the primary election occurs on June 5, 2018 and the general election will not be held until November 6, 2018 Thus, sufficient time exists for the Court to issue a ruling on Mr. Diamond’s ballot designation without interfering with the conduct of the election.”
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