FLEMING v. SUPERIOR COURT OF ORANGE COUNTY










Filed 12/21/10




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMES FLEMING, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.	G043395 (Super. Ct. No. 07ZF0013) O P I N I O N
THE PEOPLE, Plaintiff and Appellant, v. JAMES FLEMING, Defendant and Respondent.	G043577

Original proceeding and appeal; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, and appeal from orders of the Superior Court of Orange County, William R. Froeberg, Judge. Petition granted; orders affirmed.
Law Office of John D. Barnett, John D. Barnett and Albert A. Newton for Petitioner and Respondent James Fleming.
Tony Rackauckas, District Attorney and Stephen Sauer, Deputy District Attorney, for Real Party in Interest and Appellant People of the State of California.
* * *
I. INTRODUCTION
Penal Code section 424 provides that each officer of any school district in this state who is charged with the “receipt, safekeeping, transfer, or disbursement of public moneys,” and who, without authority of law, appropriates such moneys to his or her own use, may be punished by a prison term of either two, three or four years.[1] In this case, criminal charges have been brought via a grand jury indictment against the former superintendent of the San Juan Capistrano Unified School District (the District), petitioner James Fleming, for authorizing subordinates to compile two lists of individuals who strongly supported a recall of the District’s school board back in 2005.
In response to the superintendent’s petition for writ of mandate attacking the indictment, this court issued an order to show cause and scheduled oral argument in order to consider the legal question of whether the superintendent’s authorization fell within the purview of his lawful duties as District superintendent. In sum, we now hold that because Fleming was within his lawful authority to authorize his subordinates to compile the two lists, his authorizations were not criminal under section 424. Briefly, Fleming was within the proper scope of his authority as superintendant to research the nature of the discontent and unrest in the District at the time. (See Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1431 (Morrow) [school superintendent “had an official duty to communicate with the press about matters of public concern” and what district would do about incidents of student violence].)
We also consider the district attorney’s office’s own appeal from the trial court’s dismissal of two other counts against Fleming. One of those counts is based on an allegedly criminal violation of Education Code section 7054, the other is based on a conspiracy with his assistant superintendent to, in the language of Penal Code section 182, subdivision (a)(5), “commit any act . . . to pervert or obstruct justice, or the due administration of the laws.” The case against Fleming based on Education Code section 7054 collapses in light of the fact that neither of the two lists, under California Supreme Court cases, comes anywhere near to constituting the “urging support or defeat” of a candidate or ballot measure as is required for violation of that statute. And the conspiracy allegation under Penal Code section 182, subdivision (a)(5) fails because Fleming and his assistant superintendent agreed to do nothing more than acts which (1) they had the legal right to do in the first place, (2) they had no criminal objective in doing, and (3) did not come anywhere near to obstructing justice or the due administration of law in the first place.
II. BACKGROUND
A. The First List
It would be safe to say that in the spring of 2005 there was a fair amount of discontent among many parents and citizens in the District. One sore point that received media attention was a new District headquarters building, often referred to as the “Taj Mahal.” As recall supporters saw it, District bureaucrats got an expensive new building while students continued to make do with portable classrooms.[2] But there were other issues too, such as the location of a new high school and new attendance boundaries.
And so, in the spring of 2005, an e-mail was brought to the attention of the District’s superintendant, James Fleming. The e-mail had the subject line “Let’s show up for the Recall” and it had a large list of e-mail addresses in the “to” column.[3] Some of the addresses, of course, were of simple names, and others were obviously aliases. According to Fleming, he wanted to know the degree of dissatisfaction with the location of a new high school (he would refer to opponents of that location as “Nimbys”[4]), and with recent changes in school attendance boundaries. Fleming would later say that he wanted to “inform” these nascent recall supporters of the reasons for the location of the new high school and the recent changes in attendance boundaries. One of his staffers, Kate McIntyre, testified before the grand jury that the list was developed so that people who were unhappy with the District could be “educated” about District issues.
We stress that in this opinion we accept the district attorney’s office’s version of the facts, i.e., the version of the facts most disfavorable to Fleming. Under this version of the facts, he directly asked his assistant superintendant or a secretary to compile a list of the names from the addressees of the e-mail proposing the recall. That person in turn developed a series of spreadsheets that converted the “to” addresses in the original e-mail into a spreadsheet that had columns of the real people’s names. Next to the names were corresponding e-mail addresses. Then, in the same line (but only in some cases) names of the relevant high school, middle school and elementary school attendance area. The spreadsheets could not have been compiled without access to a student information database system known as Aeries.
In any event, the actual work involved on this list was minimal: The secretary who did the typing testified that the preparation of the spreadsheets would have taken no more than a half an hour.
We have no evidence that Fleming actually did anything with this first list, other than to “maintain” it over the course of the ensuing months.
B. The Second List
The recall effort failed in December 2005, and, as noted, there is no evidence that the failure could be in any way tied to the first list because Fleming (literally) did nothing with it. The reason for the failure was, however, not any general lack of support for the recall, but because supporters were in too much of a hurry and thus ran afoul of election law. As explained in Capo for Better Representation v. Kelley (2008) 158 Cal.App.4th 1455 (Capo for Better Representation), recall petition circulators were so eager to recall the entire seven-person board of the District that they literally filled in the signers’ addresses for them after each signer signed the first recall form, so as to avoid troubling signers with the task of making them write in their addresses on the six additional recall forms. That “shortcut,” however, violated the Elections Code. (Id. at pp. 1459-1460.)
While Fleming would later deny authorizing the second list, the prosecution’s case is that he sent his assistant superintendent, Susan McGill, and the District communications director, David Smollar, to the office of the county Registrar of Voters, during regular school hours in the period January 1 through January 12, 2006, to view the actual petitions that had been turned in.[5] Registrar Neal Kelly then (improperly, as everyone now seems to acknowledge) allowed McGill and Smollar to view the actual petitions and copy down names of recall petition circulators.[6] McGill, in turn, instructed her secretary Barbara Thacker to create a spreadsheet of these signature gatherers using information from the Aeries database. Thacker created two new lists: One of the hard-core gatherers who were responsible for 90 percent of the signatures, the other for the rest. McGill then sent Fleming a cover sheet for the lists with the words, “Per your request, attached are the lists of individuals who were listed as petition signature-gatherers along with the information on whether they have children in CUSD and which schools those children attend.”[7]
C. And the Subsequent Indictment
Word of the two lists eventually leaked out[8] and the district attorney’s office initiated grand jury proceedings. The grand jury returned an indictment in May 2007 against Fleming and McGill. The indictment sets forth three counts against Fleming, all centering on misuse of public funds, with the fourth against McGill, for perjury based on allegedly false statements made to the grand jury. (We deal with the fourth count against McGill in a separate opinion.)
The three counts against Fleming are:
-- Count 1 for violation of Penal Code section 424 based on the willful and unlawful appropriation of public moneys for his own use in ordering the creation of the two lists.
-- Count 2 for violation of Education Code section 7054 based on the use of District funds to urge support or defeat of a ballot measure (i.e., the recall of the District’s board). Count 2 is based exclusively on the first list.
-- Count 3 for conspiracy, along with his assistant superintendent McGill, to violate Education Code section 49076 based on the use of the Aeries computer program with its confidential information about pupil records, plus conspiracy to commit acts “injurious to the public” by creating the two lists.
D. The Litigation
In October 2009, Fleming brought a motion, pursuant to section 995 of the Penal Code,[9] to set aside the indictment as without probable cause. At a hearing in late February 2010, the trial court granted the motion as regards counts 2 and 3, finding that there was no evidence that Fleming ever “urged the resistance” to the recall effort or “attempted to persuade or influence any vote in that aborted recall.”
Count 1, however, was not dismissed because, in Judge Froeberg’s words, Fleming had used “company time to investigate political things.” On March 15, 2010, Fleming filed a writ petition (G043395) to reverse the order as to count 1. Two weeks later, on March 29, the Orange County District Attorney’s Office filed a writ petition (G043464) to overturn the order as to counts 2 and 3. This court denied that petition, but scheduled an order to show cause as to Fleming’s challenge to count 1.
Meanwhile, the district attorney’s office filed an appeal from the trial court’s order dismissing counts 2 and 3. This court then consolidated Fleming’s writ proceeding on count 1 with the appeal on counts 2 and 3.
III. DISCUSSION
This combined writ proceeding and appeal focus on the proper interpretation of three statutes. The first is Penal Code section 424, which deals with misappropriation of public funds generally. The second is Education Code section 7054, which is a much more focused statute, prohibiting the use of school funds for political campaign purposes. The third is Penal Code section 182, subdivision (a)(5), which is part of the Penal Code addressing conspiracies, and which makes any conspiracy to “commit an act . . . to pervert or obstruct justice, or the due administration of the laws” illegal.[10]
A few points of comparison among the statutes should be noted at the outset. First, as we mentioned earlier, Penal Code section 424 requires that, to be unlawful, the misappropriation must be made “Without authority of law.” The exact language, from subdivision (a)1. of the statute is: “Each officer of this state, or any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys, who either: [¶] 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use, or to the use of another . . . [i]s punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any office in this state.” (Italics added.)
One should note that, under the actual language of the statute, an officer’s appropriation to his or her “own use” or “use of another” is lawful if done with “authority of law.” To mention two obvious and noncontroversial examples: a football coach’s requisition of sleds for the high school football team, or a history teacher’s requisition of legal pads to make notes for lectures.
It is also worth noting that the statute contains an explicit “incidental and minimal use of public resources” exception. The exact language, from subdivision (c) of the statute, is: “This section does not apply to the incidental and minimal use of public resources authorized by Section 8314 of the Government Code.”
Second, Education Code section 7054, unlike Penal Code section 424, does not make the absence of “authority of law” an element of the crime. Nor does Education Code section 7054, in contrast to Penal Code section 424, set forth an “incidental and minimal use” exception. However, the crime delineated in section 7054 is itself defined much more narrowly. The crime is the specific use of school moneys for the specific purpose of “urging the support or defeat”’ of a ballot measure. The exact language, from subdivision (a) of the statute, is: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.” (Italics added.)
Given its school-specific and election-specific focus, it is perhaps to be expected that -- at least up to now -- there has been no appellate case, published or unpublished, where an alleged violation of section 7054 was the basis for a criminal prosecution, though the statute certainly does provide for criminal penalties.
Third, the language used in Penal Code section 182, subdivision (a)(5) is extremely broad. Here it is: “If two or more persons conspire: [¶] . . . . (5) To commit any act injurious to the public health, to public morals, or to pervert or obstruct justice, or the due administration of the laws. [¶] . . . . They are punishable as follows: . . . .” The district attorney’s office correctly notes that, as a matter of statutory construction, the literal language of section 182 would allow for the prosecution of conspiracies to do legal acts, if only because another part of the statute, subdivision (a)(1), makes conspiring to commit any crime itself a crime. (The language from that other part: “If two or more persons conspire: [¶] 1. To commit any crime.” . . . . [¶] They are punishable as follows: . . . .” That is, to avoid redundancy (conspiracies to commit crimes are already illegal), the language of the statute allows for conspiracies to do acts which are not illegal.
However, the California Supreme Court has held: “The meaning of the words ‘to pervert or obstruct justice, or the due administration of the laws’ is easily ascertained by reference either to the common law or to the more specific crimes enumerated in part I, title VII.” (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 59-60 (Lorenson), italics added; accord Skilling v. United States (2010) ___ U.S. ___ [130 S.Ct. 2896, 2929] [limiting federal “honest-services” statute to actual bribery or kickback schemes to avoid unconstitutionality for vagueness].) Of course, a conspiracy to obstruct justice certainly qualifies as an illegal conspiracy.
With these general observations in mind, we now examine each of the three counts brought against Fleming.
A. Fleming’s Writ Challenge to Count 1
1. The Scope of a Superintendent’s Lawful Authority
As noted, section 424 requires some sort of appropriation of public funds to the public official’s own use “without authority of law.”[11] The question thus arises as to whether Fleming’s authorization of staff time to prepare the two lists was inside, or outside, of Fleming’s lawful authority as District Superintendent.
Education Code section 35035 delineates the powers and duties of school superintendents. Those powers and duties include being the CEO (chief executive officer) of the governing board of the district, preparing the budget, being responsible for the transfer of teachers within the district, and ascertaining proper certifications for the relevant district employees.[12]
Since superintendents are the CEOs of the governing boards of their districts, and since boards may delegate their powers to their superintendents, board powers are also relevant to the superintendent’s duties. (See Ed. Code, § 35020 [“The governing board of each district shall fix and prescribe the duties to be performed by all persons in public school service in the school district.”].) Most significant to this case is Education Code section 35172 subdivision (a), which gives governing boards explicit authority to: “Conduct studies through research and investigation as are determined by it to be required in connection with the present and future management, conditions, needs, and financial support of the schools; or join with other school district governing boards in the conduct of such studies.” (Italics added.) And in that regard, section 42130 of the Education Code requires school superintendents to submit two semi-annual reports to the governing board of each district on the financial and budgetary status of the district.
Additionally, Education Code section 35172, subdivision (c) provides that the governing board may: “Inform and make known to the citizens of the district, the educational programs and activities of the schools therein.”
Boards of education are also under a statutory duty to try to keep all the schools in their districts as equal as possible: “The governing board of any school district shall maintain all of the elementary day schools established by it, and all of the day high schools established by it with equal rights and privileges as far as possible.” (Ed. Code, § 35293.) Thus, it is surely within the legitimate purview of a district superintendent to investigate whether any discontent in a district is limited to particular schools or whether it is evenly spread throughout a district.
Morrow, supra, 149 Cal.App.4th 1424 is illustrative of the informational duties of superintendents. The case centered on the alleged defamation of a high school principal by a district superintendent. In statements made to the Los Angeles Times, the superintendent said the principal should have shown “‘stronger leadership’” in the wake of violence at the school. The Court of Appeal got the case when the principal’s suit was dismissed under the anti-SLAPP statute. In the course of upholding the dismissal of the suit against the superintendent, the Morrow court said that the statements were not “unrelated to a legitimate policymaking function” of the superintendent; indeed, one of his official duties was to publicly explain the district’s response to the spate of violence at the principal’s high school. (Id. at pp. 1442-1443; see also id. at p. 1431 [noting superintendent’s argument that he had “an official duty to communicate with the press about matters of public concern”].)
2. Application
In the instant case, Fleming, as superintendent, had a legitimate interest in ascertaining if there was a pattern to the discontent represented by the “nascent” recall movement. A comparison of school attendance zones with recall leadership would show if the discontent was correlated with areas in the District affected by recent attendance boundary changes, or the controversial location of the new high school. Studying geographical and school attendance zone discrepancies among recall supporters was also relevant (as we allude to above) to the possibility that the constituencies of some school attendance areas in the District might have been more dissatisfied than others. And, as a matter of empirical research, the lists could reveal whether the discontent that generated the recall was statistically associated with Fleming’s policies qua his stewardship as CEO generally, or localized to particular pockets within the District.
Moreover, the lists could serve the valuable and lawful purpose of allowing superintendent Fleming to actually meet with his critics, learn their grievances, and explain his position to them. After all, we may ask, since when it is criminal for a school superintendent to meet with his critics‌
Interestingly enough, on this very point, the district attorney’s office has advanced contradictory positions. At the trial level, the trial deputy handling Fleming’s case told the trial court that the compilation of the lists so that Fleming might meet with his critics and explain his positions to them was itself the illegal “own use” to which he had put public resources. As part of his initial set of comments to the trial judge, the prosecutor said: “Was there ever an urging in the sense of the word‌ Was any voter or any person who has influence ever urged not to support the recall‌ Perhaps not. But what was the purpose of it‌ The purpose was to eventually have sway -- to kill the recall, if they could, which it was killed. So the evidence supports that.”[13]
A few moments later, the trial judge asked: “Where is the evidence, then, that this information was gathered to try to influence the election‌”
To that question the trial prosecutor replied, “Well, the evidence comes from Ms. McIntyre [Fleming’s secretary] that they were gathering this information so they could go and influence the recall proponents themselves.” (Italics added.)
At oral argument in this appellate court, however, the appellate deputy handling the writ and appeal (rather sensibly) appeared to concede the common sense proposition that the superintendent had every legal right to meet with his critics. Here is the colloquy that took place in this court:
Justice Rylaarsdam: “He was conducting his investigation in order to determine what -- who was dissatisfied with the services offered by the school, by the services offered by the school administration, so that he could remedy that situation; if that was his purpose it would be okay, right‌
Appellate deputy: “If that were the purpose.”
As shown by the Morrow case, and for that matter by the petition clause of the First Amendment, Fleming would have been perfectly within his lawful authority as superintendent to have used the lists to actually contact recall proponents and ask them to meet with him so he could learn firsthand what their grievances were. But how else, after all, could that be done unless Fleming first had a list of people who had grievances‌ (And correlating those people with any children they might have in any specific school would at least give Fleming some indication as to whether any grievances were specific to a certain school or area of the District.) Fleming meeting with his critics would be no more a personal appropriation of public resources than the superintendent in Morrow explaining the problems with violence at a particular high school.
The district attorney’s office has two responses to the idea that Fleming had legitimate, lawful reasons to order the lists compiled -- one very specific, one more general.
The specific response is to point to the grand jury testimony of Marlene Draper, president of the school board, who testified before the grand jury that she told Fleming that the recall was a board issue and the Fleming should not let district staff get involved. (Draper also testified, albeit with the benefit of hindsight, that compiling any list of recall proponents would be against her policy.)
But Draper’s cautioning of Fleming not to get involved in “the recall” does not establish that Fleming was not within his lawful authority to research the possibility of some geographic pattern in the recall movement, or even meet with recall supporters for an exchange of views. Fleming could readily interpret “the recall” to mean the process of gathering petitions, or any subsequent election. It would not necessarily mean not meeting with people who were obviously dissatisfied in some way with him and the District.
The appellate deputy, in this regard, said something very revealing at oral argument about the premises underlying the prosecution’s legal theory. He said, just a few moments before the colloquy quoted above, that “Under 424, the purpose has to be enumerated; in other words, you are not allowed to do something using government funds unless it’s spelled out.”
The appellate deputy’s statement suggests an interpretation of section 424 that the statute’s actual text does not support. The statute does not make criminal an appropriation of public funds that is not specifically “spelled out.” The words it uses are: “Without lawful authority.” Those words convey a considerably broader (and more workable) concept than “spelled out.”
We have already noted the relatively broad authority of district superintendents given them by the Legislature. They are the “CEO” of their districts. They may conduct “research and investigation” into the “present management” and “conditions” of their district. Research and investigation surely includes the compiling of data that might shed light on patterns of dissatisfaction within a district.
The more general response of the district’s attorney’s office is premised on a reading of section 424 that never quite dares speak its name, so we will speak it now: It is the idea of a contaminating motivation. The idea is that even though a school official is within his or her “authority of law” to do a given act using public resources, if there is some wrongful motivation for the act -- even if there is a good motivation as well -- the act is criminal.
There are several reasons why this postulated reading of Penal Code section 424 is incorrect. First and foremost, it inserts something into the words that the Legislature wrote that isn’t there: The idea of motivation. Section 424 says nothing about motivation. The lynchpin is whether there is “authority of law” for the appropriating act, or not. Let us quote the salient words of the statute again: “Each officer of . . . any . . . district of this state . . . who either: [¶] 1. Without authority of law, appropriates the same, or any portion thereof, to his or her own use or [commits any of the other acts prohibited by the statute, which are not at issue in this case, is ] punishable . . . .” The concept of a contaminating motivation simply isn’t there. Code of Civil Procedure section 1858 states a general rule applicable to the interpretation of all statutes: “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is in the terms or substance contained therein, not to insert what has been omitted, or to omit what has been inserted . . . .”
The second reason the reading is incorrect is that it would readily devolve into absurdity: A dedicated public servant, trying to do a really good job while working for an elected boss, would be subject to criminal prosecution because one of his or her motivations for doing so -- maybe even his or her sole motivation for doing so -- might be to make the boss the look good so the boss would be reelected.
Finally, we reject the “contaminating motivation” theory of section 424 in the context of this case because such a reading generally clashes with the statutes in the Education Code that provide for a superintendent’s lawful powers. To be the “CEO” of the governing board of the district and keep on top of conditions in the district and the management of the schools requires a reasonable amount of discretion. The model one derives from Education Code section 35035 is one of a fairly broad grant of authority with a few specific off-limits provisions. It is not a case where a superintendent must be afraid to act unless he has the most minute of authorizations.[14]
Here, Fleming was in charge of policy for the District, intimately involved in attendance and new school locations. Research and investigation into the question of whether District policy in those areas had generated such ill-feeling that it sparked a recall was a legitimate concern within his discretion. The fact that a possible election might ultimately have been involved somewhere down the line does not obviate the legitimacy of the concern or area of investigation. Thus the district attorney’s office’s argument that the grand jury “saw things differently” in terms of Fleming’s subjective motive is irrelevant to the question of whether Fleming had the lawful authority to make the authorizations in the first place. To repeat: The words of the statute itself is framed in terms of lawful authority, not motivation.
B. The District Attorney’s Office’s
Appeal on Count 2
We now turn to the district attorney’s office’s appeal from the trial court’s dismissal of count 2, which is the criminal charge for violation of Educational Code section 7054.




TO BE CONTINUED AS PART II….

Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line Lawyers.
San Diego Case Information provided by www.fearnotlaw.com

---