Audit of District Attorney’s Office Appears Likely

Orange County officials are likely to proceed with an audit of the district attorney’s office following Board of Supervisors Chairman Roger R. Stanton’s biting criticism last week of Dist. Atty. Michael R. Capizzi’s handling of cases stemming from the county bankruptcy.

Most supervisors expressed support for some type of audit, hoping it will result in improved office operations and shed light on the amount of money Capizzi has spent on the bankruptcy prosecutions.

County Chief Executive Officer Jan Mittermeier is considering the scope of the study and will report back to the board.

Stanton, one of six county officials facing bankruptcy-related civil or criminal charges, blasted Capizzi during last Tuesday’s board meeting, urging him to drop two of the cases. He also suggested that the board conduct a financial audit of the district attorney’s office and appoint a commission to study the office’s decision-making process.

The proposals raise constitutional questions about balancing the district attorney’s power to prosecute cases independently and as he sees fit against the supervisors’ responsibility to exercise financial oversight of the office.

County Counsel Laurence M. Watson said his office is studying whether the audit and other Stanton proposals would in any way infringe on Capizzi’s prosecutorial powers.

George Zervas, a constitutional law professor at Southwestern University Law School, said the audit in itself probably would not stymie Capizzi’s constitutionally vested authority.

“It does seem to be a politically motivated action,” Zervas said. “But each branch of government appears to be acting independently [and] within its authority,”

The situation would become more troubling, he warned, if the board took punitive action against Capizzi. “Now, if the supervisors were to cut his budget or frustrate his efforts to do his job, that would raise a lot of questions,” Zervas said.

Just such a power struggle rocked Orange County in the mid-1970s, when the Board of Supervisors attempted to transfer 22 criminal investigators from the district attorney’s office to the Sheriff’s Department. The board’s action was widely viewed as retribution against Dist. Atty. Cecil Hicks, who was pursuing political corruption charges against several supervisors and other public officials.

Hicks sued the board in an attempt to block the transfers. In 1977, an appeals court ruled in Hicks’ favor, finding that the board’s action went beyond its budgetary authority and that supervisors have “no power to control the district attorney in the performance of his . . . prosecutorial functions.”

The current conflict is less severe. Stanton insists that his proposals are designed not to limit Capizzi’s power but to “bring some financial accountability” to his office.

“Certainly, the board would never presume to tell the D.A. which cases to file and which not to file,” he added. “What I do have is a legitimate concern about the expenditure of taxpayer dollars.”

At last week’s supervisors meeting, Stanton said the primary purpose of the audit was to determine how much prosecutors have spent on their 21-month bankruptcy investigation and on individual cases.

His comments came less than a week after the first criminal trial related to the bankruptcy ended in a mistrial, with jurors deadlocked 9-3 in favor of acquitting former county Budget Director Ronald S. Rubino on the two felony counts he faced. Stanton described the trial as an “incredible expenditure and drain on public funds [that] can lead to only one conclusion.”

He also called on Capizzi not to retry Rubino and to drop charges against Supervisor William G. Steiner, who also along with Stanton and Auditor-Controller Steve E. Lewis faces civil trial for failing to prevent the bankruptcy.

Capizzi had already said he might not be able to take Stanton’s case to trial before the veteran supervisor leaves office in December, which would preclude the only possible punishment: removal from office.

Responding to Stanton’s charges, Capizzi questioned the motives of the audit proposal, adding that “the debate would better take place in a situation where there isn’t that self-interest.”

Other prosecutors noted that Mittermeier’s staff already scrutinizes the district attorney’s office budget each year. The 1996-97 office budget does break down spending in general areas like criminal prosecutions, narcotics forfeitures and family support.

But Assistant Dist. Atty. Wallace J. Wade said it is difficult to determine how much has been spent on individual prosecutions because the overall bankruptcy investigation has been so vast.

Often, prosecutors gathered evidence relating to several defendants as well as people who were investigated but never charged, he said.

“The nature of a large investigation like this is that it goes into many aspects. It’s difficult to determine how much time you’ve spent on one [defendant] versus gathering background for the overall case,” Wade said. “If you talk to an expert on bonds at UC Irvine, how do you break that down?”

Not everyone is satisfied with the explanation. Steiner said he considered voting against a proposed $5-million budget augmentation to the district attorney’s office in this year’s budget, but agreed to withhold action until the audit is completed.

“I think we all need reassurances that this money is going to be well spent,” Steiner said. “I have reservations, but I’m willing to wait.”

Supervisor Marian Bergeson said she supports management audits not just for the district attorney’s office but for all other county departments, saying such studies often identify ways of improving operations.

“I think it makes good business sense to understand how all departments expend their funds.” Bergeson said. “You can’t make a complete evaluation unless you have good information.”