Supervisors’ Hands Tied in D.A. Case

The Board of Supervisors doesn’t have the authority to take action against Orange County Dist. Atty. Tony Rackauckas despite a grand jury report accusing him of political favoritism and intervening on behalf of campaign contributors, a report released Tuesday said.

An outside legal review, commissioned by the board, found that county supervisors cannot intervene because Rackauckas is an independently elected official with separate powers under the state Constitution. Only the state attorney general can supervise his office, the review concluded.

“For this reason, we are forwarding a copy of the grand jury report and our response to the attorney general, so that his office may address any issues that he feels warrant his attention,” the report said.

Nathan Barankin, a spokesman for Atty. Gen. Bill Lockyer’s office, said he knows of no current investigation involving Rackauckas.

The county report backs up the view of several legal and public policy experts who have said the Board of Supervisors would have difficulty acting on the grand jury’s findings. The board approves the office’s annual budget, but the district attorney answers to voters and not to the supervisors.

The board could pass a resolution criticizing or censuring the district attorney, but the move would have only symbolic significance.

The grand jury report, prepared with assistance from Lockyer’s office, accused Rackauckas of intervening in criminal cases at the request of political supporters, hiring family members of friends over more-qualified candidates and using public resources for personal business.

One of the panel’s recommendations is to bar the district attorney from hiring decisions.

Rackauckas has defended his record, saying the grand jury was misled by disgruntled employees who backed his political foes. In his own 153-page response, Rackauckas said the grand jury presented a “one-sided” view of his office.

The board-ordered review was prepared by the San Leandro law firm of Meyers, Nave, Riback, Silver & Wilson. It will be discussed by supervisors at next Tuesday’s meeting.

Supervisors were reviewing the findings Tuesday. Todd Spitzer, who has been outspoken in his concerns over the grand jury report, declined to comment.

Supervisors hired the firm in July to respond to the grand jury, which detailed 92 findings and made 42 recommendations after interviewing 68 witnesses and viewing 400 exhibits.

Most responses conclude that the district attorney has sole authority and broad discretion to run his office, hire employees and determine the means of prosecuting crimes. Many of his employees are “at-will” and don’t have the same protections as regular county employees.

The district attorney’s authority was confirmed, the review said, by a 1975 lawsuit filed against Orange County by then-Dist. Atty. Cecil Hicks, who successfully challenged a plan by the Board of Supervisors to reorganize his office.

The county review could not respond to some of the grand jury’s findings because the conclusions were subjective, such as whether certain hiring decisions were fair or certain prosecutorial decisions were appropriate.

The county wasn’t given copies of the grand jury testimony, the review said, and had no independent knowledge of the alleged misdeeds.

“Such [responses] should not suggest that we condone conduct which is contrary to good public administration or that we pass judgment on the work of the grand jury,” the review said.

The review concurred with a finding by the grand jury that a plan to give wallet badges to contributors to a foundation established by Rackauckas “exhibited poor judgment.”

That plan was ill-advised “to the extent that the use of such badges could confuse the public,” the board review said. The badge idea was considered but never pursued, Rackauckas said in his response.

Earlier this month, attorneys for Rackauckas filed a lawsuit asking a judge to provide him with the grand jury’s investigative files. Specifically, he asked for evidence provided by a former top deputy and two other employees who went to state prosecutors with allegations of wrongdoing.

Rackauckas said he needed the information to defend himself against a wrongful-termination suit filed by former prosecutor Mike Jacobs.

Jacobs was dismissed after he and two other employees provided letters and documents to Lockyer’s office that accused Rackauckas of giving favorable treatment to campaign contributors.