Argument Against D.A. Is No Longer a Brief Case

The recent termination of Michelle Emard as media director for the Orange County district attorney’s office is a reminder of the mounting mismanagement and misconduct by Dist. Atty. Tony Rackauckas. In spite of Rackauckas’ promises of improvement, the grievance memo written by Emard shows that the problems are serious and getting worse.

The performance of the district attorney is of no small consequence. He determines against whom punishment should be sought, and the level of that punishment. He then seeks to impose that punishment on behalf of the community. It is an immense power and an important responsibility. When politicians go bad, they usually squander public resources and money, but Rackauckas’ wrongdoing jeopardizes public safety.

In July 2002, the Orange County Grand Jury issued a highly critical report on Rackauckas. The grand jury, after months of sworn testimony, found that Rackauckas had misused public resources, inappropriately intervened in cases on behalf of friends, and improperly based hiring and promotions on politics and personal loyalty.

State Atty. Gen. Bill Lockyer then investigated allegations of criminal wrongdoing by Rackauckas. Lockyer declined to file criminal charges but found that Rackauckas had engaged in “substantial” and “legitimate” abuses of office. Lockyer concluded the criminal investigation by saying that Rackauckas has held the “district attorney’s office and all of law enforcement up to ridicule.” Curiously, Rackauckas and his supporters found solace in Lockyer’s investigation insofar as it didn’t prove his actions were illegal, just unethical.

Rackauckas’ election led to an exodus of talented and experienced prosecutors. Rackauckas has fired seven senior prosecutors. He also transferred seven attorneys solely because they supported his opponent in the last election. Among the 14 lawyers, the office lost 265 staff-years of experience. Twelve more lawyers left in disgust. As one would suspect, this massive “brain drain” has affected prosecutions. For the first year in more than a decade, the district attorney’s office did not send a single defendant to death row in 2002, failing in four cases. In the previous 10 years, the office had sent 47 murderers to death row.

This loss of capable, veteran prosecutors not only has compromised effective law enforcement, but also has damaged the careers of people who had dedicated themselves to public safety and public service. Their collective sin: loyalty to the public and not to Rackauckas.

Emard’s termination highlights two other common themes of the Rackauckas administration: waste of taxpayer money and misuse of public resources. Rackauckas has been over budget in each of the last three years. Recently the Board of Supervisors found that Rackauckas had suspended employees for reasons unrelated to performance for a total of 1,602 days, with full pay and benefits, at a cost to taxpayers of close to $1 million. Many of the fired employees have filed wrongful-termination suits, which have resulted in awards totaling $1.34 million with more lawsuits pending. Both the grand jury and the attorney general reported multiple instances of misuse of public resources.

Rackauckas’ most spectacular misdeed has yet to be fully exposed and understood. In January, Rackauckas once again personally intervened in a high-profile case by settling a lawsuit against Arco. The district attorney’s office had brought suit against the oil giant for improperly discharging the highly toxic fuel additive MTBE into the groundwater in Orange County. Seventy percent of Orange County’s drinking water comes from groundwater, and evidence showed that Arco’s actions led to contamination of groundwater.

Though Arco’s settlement of $8 million may seem substantial, it is a pittance. The settlement negotiated by Rackauckas represents such a substantial risk to public health that the Orange County Water District has brought suit against Arco and other oil companies in an attempt to circumvent the horrific settlement entered into by Rackauckas.

Emard’s primary grievance is that her sole directive was “to make Tony Rackauckas look good.” Setting aside the impossibility of achieving that goal, the media director’s job is not solely to generate positive press for the district attorney, but to communicate with the news media. Rackauckas further reinforced his opinion that the district attorney’s office was his personal domain when once-trusted Emard was instructed not to speak to reporters for the OC Weekly and the Los Angeles Times, which have reported on his misconduct.

Each exposure to Rackauckas’ conduct has shown the same picture: bad judgment, twisted ethics, compulsive self-interest and pervasive abuse of power. After reelection, Rackauckas promised changes, but it seems that this leopard will never change his spots.

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William R. Mitchell, former chairman of Orange County Common Cause, is a business lawyer practicing in Newport Beach. He lives in Coto de Caza.