A split Newport Beach City Council decided Tuesday night to go ahead with its own investigation of potential fraud in the recent unsuccessful attempt to recall Councilman Scott Peotter, despite concerns that the council's probe would duplicate efforts by Orange County prosecutors or impinge on constitutionally protected communications among activists.
In January, the county district attorney's office seized the recall petitions from the county registrar of voters office in Santa Ana over concerns about "potential irregularities."
The search warrant affidavit is sealed, so specific allegations are unavailable. However, recall organizers have said they believe an outside petition circulator may have forged signatures.
The City Council wants to follow up under a section of the city charter that gives members of the council the power to subpoena witnesses and question them under oath "in any investigation or proceeding pending before the City Council."
Mayor Pro Tem Will O'Neill, who first pitched the idea of a probe last month, said the subpoenas would be narrowly tailored to seek information only about alleged fraud.
"Getting to the bottom of fraud is a governmental interest," O'Neill said. "It always has been, it always will be, and under no scenario has committing fraud ever been protected by the First Amendment."
The council voted 5-2, with members Diane Dixon and Jeff Herdman voting no, to move ahead with the probe. The mayor, city attorney, city manager or city clerk are authorized to issue the subpoenas, though when they would do so was unclear.
Peotter voted in favor of the investigation but promised to be uninvolved otherwise.
"I will have nothing to do with the subpoenas and I will stay out of it, because I don't want anybody to even think that I'm driving this or that it's any kind of retribution whatsoever," he said.
Dixon wanted to table the item and reconsider it if the DA's office completes its investigation with no finding of fraud or hasn't finished within six months.
She said she supports protecting the election process and desire to root out causes of potential fraud but differs on the approach, preferring to form a working group to review the citizen initiative process. She said the city's probe would cost money and time.
"The City Council, the city of Newport Beach, is not a court of law. We are not a prosecutorial agency," Dixon said. "I support letting the district attorney do its job to protect the integrity of our election process."
Herdman said there is no need or purpose for a city investigation right now.
"I think it's our responsibility as a council to support the district attorney in conducting his investigation," he said.
Attorneys representing people who might be subpoenaed were more pointed in their objections.
Mark Rosen, who represents campaign consultant Desnoo & Desnoo, said in a letter that the DA's office has legally established safeguards, "including procedures for interrogation of witnesses within legal standards, privacy and protection from disclosure through leaks and supervision by a Superior Court judge. Your ad hoc would-be 'investigation' has no such legal safeguards and no assurance that it will not turn into an effort to persecute Councilmember Peotter's political enemies."
Rosen cited case law arguing that communications about political activity, such as that between Desnoo & Desnoo and the Committee to Recall Scott Peotter, are privileged under the First Amendment.
Phil Greer, who represents the recall committee, petition circulator PCI Consultants and Campaign Compliance Group, which helps candidates, political committees and donors comply with campaign reporting requirements, said the process would come at a cost to the city because his clients would take the city to court.
"So you're going to lose and then you're going to pay attorney's fees and then some of you up there are going to do something you really don't want to do, and that's write me a check," said Greer, who in 2016 ran for the City Council seat won by O'Neill.
A few weeks before the DA's office seized the petitions, the registrar's office announced that it had validated only 8,339 of the 10,696 recall signatures submitted. That was 106 shy of the 8,445 — representing 15% of the city's registered voters — needed to force a special recall election.
Greer said the recall committee has cooperated with the county's investigation.
Recall organizer Susan Skinner told the council that its decision to investigate "is transparently vindictive and clearly intended to intimidate others from ever daring to challenge your authority again."
She said the DA's investigation legally trumps the city's and will be thorough and unbiased, which she said the city's would not be.
"You clearly have skin in the game, and most of you were openly supportive of Mr. Peotter while we were collecting signatures," Skinner said.
O'Neill and Councilman Kevin Muldoon, however, said they don't believe anybody on the recall committee did anything illegal.
"The city of Newport Beach is not a prosecutorial agency, but as representatives of the people, we have an obligation to discover whether electoral improprieties may have occurred so we can take steps to prevent them from happening again," Muldoon said. "I can think of very few things more important than safeguarding the democratic process locally."