1 GARY S. WINUK (SBN 190313) Chief of Enforcement 2 NEAL P. BUCKNELL (SBN 190327) Senior Commission Counsel 3 FAIR POLITICAL PRACTICES COMMISSION 428 J Street, Suite 620 4 Sacramento, CA 95814 Telephone: (916) 322-5660 5 Facsimile: (916) 322-1932 6 Attorneys for Complainant 7 8 BEFORE THE FAIR POLITICAL PRACTICES COMMISSION 9 OF THE STATE OF CALIFORNIA 10 11 In the Matter of: OAH No. 2011050957 12 FPPC No. 09/773 13 CHRIS NORBY, NORBY FOR OPENING BRIEF OF THE ENFORCEMENT SUPERVISOR, and BETTY PRESLEY, DIVISION OF THE FAIR POLITICAL 14 PRACTICES COMMISSION RE: PROPOSED DECISION OF ADMINISTRATIVE LAW 15 JUDGE RALPH DASH Respondents. 16 17 I. INTRODUCTION 18 On December 8, 2011, Administrative Law Judge (―ALJ‖) Ralph Dash (of the Los Angeles 19 Office of Administrative Hearings) presided over the hearing of this matter. 20 Luisa Menchaca, Senior Commission Counsel, and Milad Dalju, Commission Counsel, 21 represented Complainant. 22 Attorney Darryl Wold represented Respondents Chris Norby, Norby for Supervisor, and Betty 23 Presley. 24 On February 14, 2012, the ALJ issued a proposed decision in favor of the Respondents. 25 On February 22, 2012, the Legal Division of the Fair Political Practices Commission 26 (―Commission‖ or ―FPPC‖), caused a copy of the proposed decision to be served on the Enforcement 27 Division and Respondents. (The proposed decision is attached hereto as Exhibit A.) 28 /// 1 30 OPENING BRIEF OF THE ENFORCEMENT DIVISION RE: PROPOSED DECISION OF ALJ FPPC Case No. 09/773 31 32 1 Pursuant to California Code of Regulations, title 2, section 18361.9, the Enforcement Division 2 submits this opening brief to set forth its position with respect to the proposed decision of the ALJ. 3 Based upon the evidence introduced at the hearing, the Enforcement Division does not take issue with the 4 proposed decision to the extent that it exonerates the committee and the committee treasurer. However, 5 to the extent that the proposed decision exonerates the candidate for his personal use of campaign funds, 6 the Enforcement Division respectfully recommends that the Commission reject the proposed decision and 7 decide the case on the record for the reasons discussed below. 8 Accordingly, since it appears to the Enforcement Division that Respondent Chris Norby, alone, 9 was responsible for the personal use violation in this case, Respondents Norby for Supervisor and Betty 10 Presley (the committee treasurer) are hereby dismissed, and the remainder of this brief addresses the 11 proposed decision of the ALJ only insofar as it concerns Respondent Chris Norby. 12 II. DISCUSSION 13 A. Summary of the Case 14 Currently, Respondent Chris Norby is a member of the California State Assembly for the 72nd 15 district, but in 2007, at the time of the events giving rise to this case, he was a member of the Orange 16 County Board of Supervisors. Respondent Norby for Supervisor was his controlled committee, and 17 Respondent Betty Presley was the committee treasurer. 18 At the administrative hearing of this matter, Respondents were charged with the following 19 violation of the Political Reform Act (the ―Act‖):1 20 COUNT 1: On or about August 14, 2007, Respondents Chris Norby, Norby for Supervisor, and Betty Presley, used campaign funds for purposes not 21 directly related to political, legislative or governmental purposes where there was a substantial personal benefit to Respondent Chris Norby, in 22 violation of Sections 89511.5, 89512, and 89513, subdivision (a). 23 The following facts were established at the hearing. 24 On August 1, 2007, Respondent Norby separated from his third wife and paid $340, in advance, 25 for one week of lodging at the Fullerton A Inn in Fullerton, California. Relative to this incident, a 26 1 The Act is contained in Government Code sections 81000 through 91014. All statutory references are to the 27 Government Code, unless otherwise indicated. The regulations of the Commission are contained in Sections 18110 through 18997 of Title 2 of the California Code of Regulations. All regulatory references are to Title 2, Division 6 of the California 28 Code of Regulations, unless otherwise indicated. 2 30 OPENING BRIEF OF THE ENFORCEMENT DIVISION RE: PROPOSED DECISION OF ALJ FPPC Case No. 09/773 31 32 1 reporter for the Los Angeles Times later would quote Respondent Norby as saying, ―Ever heard of the 2 term the doghouse?‖ 3 On February 11, 2008, Respondents filed a semi-annual campaign statement for the period 4 covering July 1 through December 31, 2007. The statement reflected that Respondent Norby was 5 reimbursed $340 for his stay at the Fullerton A Inn with campaign funds from his controlled committee, 6 Norby for Supervisor. Schedule G of the campaign statement described the expense as: ―1 Week Stay in 7 Motel – Study Homeless & Motel Families.‖2 8 On March 7, 2008 (25 days after Respondent Norby‘s lodging reimbursement became a matter of 9 public record), Tami Abdollah, the above-mentioned reporter for the Los Angeles Times, interviewed 10 Respondent Norby about the relationship between his marital problems and his expense for lodging at the 11 Fullerton A Inn. 12 The next day, Ms. Abdollah‘s article was published in the Los Angeles Times. The article is set 13 forth in its entirety, as follows: 14 O.C. supervisor reimburses campaign for ‘study’ expense 15 Chris Norby had said his personal stay at a hotel was for research on the homeless. He admits the error. 16 March 08, 2008 | Tami Abdollah | Times Staff Writer 17 Orange County Supervisor Chris Norby acknowledged Friday that he spent campaign 18 funds to pay for a one-week stay at a Fullerton hotel last August because of marital problems, an expense he labeled a "study of homeless and motel families" on financial 19 disclosure forms. 20 "I'm surprised it was on the campaign [account]; it should not have been," Norby said. "And I'm going to reimburse the campaign because I was there for personal stay." 21 Rumors have abounded about the colorful supervisor of the 4th District for the last several 22 months as his marriage to his third wife, Marsha, came to an end. He spent a few days sleeping in his office, then one well-remarked-upon episode in a park, before checking 23 into the Fullerton A Inn. He paid $340 for the room at the bed and breakfast, according to his disclosure forms. 24 "Ever heard of the term the doghouse?" Norby said. "I mean, sometimes people need to 25 reassess and look at things a different way. So that was a resident motel; they charge by the week." 26 27 2 Schedule E reflects that Respondent Norby was paid $361.48 for office expenses. This included the lodging 28 expense in the amount of $340 (which is identified in Schedule G) as well as miscellaneous expenses in the amount of $21.48. 3 30 OPENING BRIEF OF THE ENFORCEMENT DIVISION RE: PROPOSED DECISION OF ALJ FPPC Case No. 09/773 31 32 1 He stayed from Aug. 1 to Aug. 7. On Aug. 6, Norby, whose personal life had already generated a fair amount of gossip, took a rest on a bed of grass in front of the Old Orange 2 County Courthouse in Santa Ana and was roused by deputies. Rumors circulated that he had spent the night in a park because he had no place else to go. 3 Marsha Norby, who said she never told her husband to leave, expressed surprise Friday at 4 his use of campaign funds for the hotel stay. "For as much as I've been through, he's not one to mismanage funds and do something inappropriate," she said. 5 About an hour after he talked to The Times, Norby delivered a check to his treasurer, Betty Presley, to reimburse the campaign. 6 "It was a mistake, but it was hardly a junket to Paris," he said. 7 "But it was personal, and the campaign should not have been involved in it. 8 "I take full responsibility for this snafu, and [the campaign] has been reimbursed," Norby 9 said. "People make mistakes and these things happen, and it's been taken care of." 10 But local government watchdog Shirley Grindle said Norby's misuse of campaign funds showed "incredibly poor judgment." 11 "He even tried to cover this up by claiming it was studying homeless people," Grindle 12 said. "I mean it's only $340; he should have never tried this." 13 Norby said that though the use of the funds was "mostly personal" he had also learned a lot about the homeless and motel families during his "informal study." 14 Norby has been a supervisor for five years and will finish his term in 2010. Previously, he 15 was on the Fullerton City Council for 18 years. 16 Of his fellow supervisors, only Janet Nguyen could be reached for comment late Friday. 17 "This is the first time I've heard of this," she said. "I'm glad that he's decided to return the funds, but that's between him and his campaign treasurer." 18 This is not the first time Norby has run into trouble for violating campaign laws. In the 19 fall of 2005 he and his campaign's then-treasurer, Michael DiCostanzo, were fined $10,000 for violating four counts of the government code. 20 His most recent disclosure forms for the last half of 2007, however, were still missing 21 information. His treasurer, Presley, said the "oversight" would be fixed and an amended disclosure filed. 22 23 Consistent with the article, on March 7, 2008, after Respondent Norby‘s interview was over, he 24 set up a meeting with his treasurer and reimbursed his committee in the amount of $340 for the lodging 25 expense.