Steiner v. Superior Court (50 Cal. App. 4th 1771, 1996)

Opinion

WALLIN, J.

William Steiner and Roger Stanton petition for writs of mandate/prohibition, contending the trial court erroneously overruled their objections to the accusations filed against them pursuant to Government Code section 3060. We grant the writs.

The district attorney seeks to unseat Steiner and Stanton as Orange County supervisors. He took this action under section 3060 after another elected official, County Treasurer Robert Citron, made speculative high-stakes financial investments, which suffered a precipitous downturn and plummeted the county into bankruptcy.

The district attorney instituted proceedings before the grand jury, which issued substantially identical accusations against Steiner and Stanton, alleging, in essence, they failed to adequately carry out their duties to supervise Citron and other county officials. The accusations are divided into four sections, lettered “A” to “D.”

Section A alleges Steiner and Stanton jeopardized the county’s financial health by violating their duties to protect county finances under sections 23005, 25207, and 25303. It alleges they voted in 1993 and 1994 to issue short-term notes of approximately one and a half and two times the amount of discretionary revenue for those years respectively without adequate inquiry as to the necessity of borrowing, utilization of the proceeds, safety of the investment, ability of the county to repay the debt, and reliability of the pledged revenue stream.

Section B alleges Steiner and Stanton violated their duties under section 25303 by failing to adequately supervise Citron and his successor, Matthew Raabe, and to see that they faithfully performed their duties. It alleges Steiner and Stanton failed to read and analyze the treasurer’s monthly investment reports under section 53607, to adequately monitor the treasurer’s activities and to communicate regarding investments, inquire into interested third parties’ accusations concerning risk and the possibility of loss, actively and adequately investigate the treasurer’s investment practices, offer assistance to county staff in analyzing or solving problems in the treasury and investment pool, adequately investigate problems with the pool, and take action to enable Raabe and other staff members to attempt solutions to the financial crisis in the pool.

Section C alleges Steiner and Stanton violated their duties under section 25303 by failing to adequately supervise Auditor-Controller Steve Lewis, and to see he faithfully performed his duties. It alleges that although they had the authority under section 26883, they failed to require Lewis to perform audits and prepare and file reports on the treasurer’s accounts and records to assure he was performing his duties to preserve and safeguard public moneys under section 53649.

Section D alleges Steiner and Stanton violated their duties under section 25303 by failing to require reports from county administrative officer Ernie Schneider necessary to adequately supervise Citron, Lewis, and Schneider, and to see they faithfully performed their duties. It alleges Steiner and Stanton failed to ensure that Schneider controlled and screened board agendas to ensure important matters regarding the safekeeping, management and disbursement of public funds were brought to the board’s attention for public and open discussion on the board’s discussion calendar.

In a nutshell, the accusations assert Steiner and Stanton did a shoddy job of minding the store while Citron committed acts which plunged the county into bankruptcy. Steiner and Stanton filed objections to the accusations, and the trial court granted them as to section A, but denied them as to the other sections. In this proceeding they contend the accusations: (1) do not state facts constituting willful misconduct; (2) violate the constitutional principles of separation of powers and legislative immunity; (3) assert a nonexistent duty to act individually; and (4) are impermissibly vague and nonspecific. We find the first two contentions have merit, so we do not address the others.

I

Steiner and Stanton contend the alleged acts do not constitute the “willful misconduct” required to trigger removal from office under section 3060 et seq. We agree.

Cases construing section 3060 consistently reiterate the proposition “willful misconduct” only requires a volitional act or failure to act. (See, e.g., People v. Hawes (1982) 129 Cal.App.3d 930, 938 [181 Cal.Rptr. 456]; Mazzola v. City and County of San Francisco (1980) 112 Cal.App.3d 141, 149-150 [169 Cal.Rptr. 127]; People v. Hale, supra, 232 Cal.App.2d at pp. 118-119; People v. Mullin (1961) 197 Cal.App.2d 479, 486 [17 Cal.Rptr. 516]; People v. Elliott (1953) 115 Cal.App.2d 410, 419-420 [252 P.2d 661].) This construction of section 3060 goes back to Coffey v. Superior Court (1905) 147 Cal. 525 [82 P. 75], where the court observed the phrase “ ‘misconduct in office’ is broad enough to include any willful malfeasance, misfeasance, or nonfeasance in office[,] . . . “ even if it is not accompanied by any “criminal intention.” (Id. at p. 529.)

But despite these pronouncements, the cases require more serious misconduct. The late eminent scholar Bernard Witkin recognized as much. We set forth his cogent analysis at length: “Since the punishment is only removal from office, it has been said that the ‘misconduct’ need not constitute a violation of any specific criminal statute. [Citations.] [^ It is, however, difficult to conceive of an act constituting ‘wilful or corrupt misconduct in office’ which does not violate one of the long list of crimes of public officers ... or the many prohibitions in local ordinances. And the cases, though few and not helpful in their discussions of this point, almost invariably deal with acts which are prohibited by statute or ordinance. [Citations.] [