The Coastal Post

© June 2000

Why A "Free Pass" In Supervisors' Credit Card Scandal?

By Fielding Greaves

    Marin County Supervisors Annette Rose and John Kress have each admitted to media and public that on more than one occasion each has used an official county credit card to make purchases for personal purposes, though subsequently reimbursing the county for the expenditures.

    California Attorney General Bill Lockyer said that their actions were illegal. Marin County District Attorney Paula Kamena, however, declined to prosecute them for two reasons. First, according to the IJ, the D.A. said her prosecutors had no grounds for the "criminal intent" that she claimed was necessary in order to press charges against either Rose or Kress. Second, "sloppy county policy" on official credit card use had allowed such use in the past, provided reimbursement was made, suggesting the delinquent supes had some sort of tacit "authorization" for the illegal use of county credit cards. 

    District Attorney Kamena should have read her law books. No kind of tacit county "authorization" can supplant state law. Section 424 of the California Penal Code makes it clear that such alleged credit card use is a felony, explicitly stating, inter alia, that: 

    "Each officer of this state or of any county...of this state,''' charged with the receipt, safekeeping, transfer, or disbursement of public monies, who either: 

1. Without authority of law, appropriates the same, or any portion thereof, to his own use, or to the use of another;

2. Loans the same or any portion thereof; makes any profit out of, or uses the same for any purpose not authorized by law... Is punishable by imprisonment in the state prison for two, three, or four years, and is disqualified from holding any public office in this state."

    In having custody of official county credit cards, both supervisors met the test of Section 424 of being "charged with" both "safekeeping" and "disbursement" of public funds as represented by, and available through, those credit cards, for purposes of official county business. Thus they both meet the test of being subject to the language of Penal Code Section 424.

A reasonable person would conclude that people who violate Section 424's subsection 1 ("without authority of law appropriates any portion" of public funds for his own use) would be subject to one of the listed felony-level penalties. So would persons violating subsection 2's prohibition against "loans" of such funds to themselves. As would persons (subsection 2 again) who "use the same for any purpose not authorized by law." Violation of any one such provision could merit such felony penalty. 

    Yet Marin District Attorney Paula Kamena said the Rose and Kress violations of county policy were not criminal acts. How can she suggest that "sloppy county policy" or county "authorization" has power to negate state law? 

    The D.A. contends that prosecution depends upon "criminal intent," but California case law makes it clear actual "possession" of public funds is not needed for embezzlement to occur, and that "intent" is not required for conviction.  

    In People v. Knott (15 C2d 628, 104 P2d, 128 ALR 1367) (1940) the court ruled that Section 424 applies to money over which the defendant may have control, although it may not be in his possession. Public "money" was not in the "possession" of Rose or Kress, but both had "control" over some, and both used some for personal purposes, through their credit cards. 

    In People v. Dillon (199 C1, 248 P.230) (1926) the court ruled that the Legislature has the power to provide that embezzlement is committed when a person uses public funds in a manner forbidden by law, even though he may have no fraudulent intent. 

    In People v. Battin (77 CA 3d 365, 143 Cal Rptr 731, 95 ALR 3d 248) (1978) the court ruled that a conviction under Penal Code 424, subsection 2, prohibiting use of public funds for purposes not authorized by law is a felony, and that it "does not require proof of specific intent, and no instruction on specific intent is required." 

    In view of Section 424 and the above court rulings, Marin United Taxpayers Association has serious reservations about the district attorney's failure to prosecute. 

    Why did she give a "free pass" to Supervisors Rose and Kress in a matter Section 424 calls a felony? 

    Is it "party loyalty"-registered Democrat Kamena protecting registered Democrats Rose and Kress? 

    Why is she -in our view- not doing her sworn duty, duty for which Marin taxpayers pay her salary? 

The End.