HOLDEN v. ETHICS COMMISSION,

Filed 3/27/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court for Los Angeles County, David P. Yaffe, Judge. Affirmed.

Geragos & Geragos, Mark Geragos and Vicken Sonentz-Papazian for Plaintiffs and Appellants.

Rockard J. Delgadillo, City Attorney, Katherine J. Hamilton, Assistant City Attorney, and Claudia McGee Henry, Senior Assistant City Attorney, for Defendant and Respondent.

In this case, we are asked to determine when a decision of the Los Angeles City Ethics Commission finding violations of campaign financing law becomes final for the purposes of the statute of limitations set forth in Code of Civil Procedure section 1094.6. We hold that the decision is final when, at a public meeting, the Commission adopts findings and an order supporting its decision. Because in this case appellants Nate Holden and Anne Froehlich filed their petition for writ of mandate more than 90 days after the Commission adopted the findings and order they sought to challenge, we affirm the trial court's judgment denying the petition on the ground that it was time-barred.

BACKGROUND

Holden ran for re-election to City Council in 1999. Froehlich was treasurer for his 1999 campaign, and had been Holden's treasurer on many of his previous campaigns. Holden was challenged in the primary in April 1999, and won the general election in June 1999.

Following Holden's re-election in 1999, the Los Angeles City Ethics Commission conducted an audit of his campaign.[1] It discovered 31 violations of the City campaign financing laws. Some of those violations involved excess campaign contributions, in which Holden's campaign accepted more than $500 from a single contributor. The remaining violations involved excess matching funds, in which Holden's campaign requested and received more matching funds that it was entitled to. Under the matching funds law, a participating candidate is entitled to receive matching funds for each contribution, up to $250 per contributor. In some instances, Holden's campaign submitted requests for matching funds for contributions for which it had already received matching funds. In other instances, Holden's campaign had received two checks from a single contributor, for a total of $500. The campaign then submitted each check separately and failed to disclose when it submitted the second check that it had already received $250 in matching funds for that contributor. As a result, in those instances the campaign was paid $500 in matching funds for a single contributor.

Holden's campaign conducted its own audit after the election and discovered some of the excess campaign contributions. Although the campaign returned some of those contributions, the campaign finance law requires that the campaign return the excess within 14 days. Because the excess contributions were not returned until much later, the Commission deemed all of the instances to be violations, regardless of whether they were returned. The campaign's audit apparently did not discover the excess matching funds.

The Executive Director of the Commission[2] filed an Accusation in December 2001, charging Holden and Froehlich with 31counts of campaign finance law violations.[3] The first 11 counts allege violations of Los Angeles City Charter section 470(c)(3) (the excess contribution counts). The remaining 20 counts allege violations of Los Angeles Municipal Code section 49.7.20 (the excess matching funds counts).

An administrative hearing before the five Commissioners took place over three days in April 2002. Holden and Froehlich did not contest the fact that excess contributions were received or that the campaign requested and received excess matching funds. Instead, they contended that these instances were innocent mistakes and that they returned most of the excess contributions after they conducted their own post-election audit. They also argued that the Holden campaign was subject to selective prosecution by the Commission.

The Commissioners found that the evidence established violations as to each count of the Accusation, with two of the Commissioners stating that they were technical violations. Three of the Commissioners voted in favor of a motion to order repayment of $4,500 and to fine Holden and Froehlich $2,000. The other two Commissioners voted against the motion on the ground that they believed the fine should be in the range of $25,000 to $30,000. The President of the Commission directed counsel for the Executive Director to draft findings and submit them to the City Attorney for review, and then submit them to Holden and Froehlich for comment. She stated that the findings would be presented to the Commission for adoption at its next meeting, on May 21, 2002.

Holden and Froehlich both attended the May 21, 2002 Commission meeting. Holden asked that the matter be continued because he wanted to get an opinion from the City Attorney regarding a possible charging deficiency in the Accusation. Although the President of the Commission told Holden that the Commission would not reconsider its determination that violations occurred, the Commission continued the matter until its next meeting, on June 18, 2002, because it determined that the proposed findings and order needed to be revised to more accurately reflect their decision.

An attorney attended the June 18, 2002 Commission meeting on behalf of both Holden and Froehlich, and argued that the Commission's decision was improper because there was a charging deficiency in the Accusation. The President of the Commission told him that the Commission's decision as to the violations was final and that the Commission would not reconsider it. The Commission then voted to adopt the findings and order, after amending it to provide, among other things, a deadline for payment of the penalty. The final findings and order were served on Holden and Froehlich on June 28, 2002.

On September 27, 2002 -- exactly 90 days after the findings and order were served -- Holden and Froehlich filed a petition for writ of mandate in the Superior Court. The petition refers to the actions that the Commission took (including â€