The URL can be used to link to this page

Home My WebLink About08 - Subpoenas to Investigate Alleged Voter FraudP0 CITY OF zNEWPORT BEACH cA�,FORN'" City Council Staff Report February 13, 2018 Agenda Item No. 8 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager — 949-644-3001 dkiff(a newportbeachca.gov Aaron Harp, City Attorney — 949-644-3131 aharp(o-)newportbeachca.gov TITLE: Issuance of City Council Subpoenas to Investigate Alleged Voter Fraud in the Unsuccessful Recall Signature Gathering Effort ABSTRACT: The Orange County District Attorney's Office ("District Attorney") served a sealed Search Warrant and Affidavit ("Search Warrant") on the Orange County Registrar's Office authorizing the seizure of recall petitions. Recall leaders have stated publicly that "paid professional circulators" have "allegedly forged signatures" on recall petitions. City of Newport Beach ("City") Charter Section 410 authorizes the City Council to conduct its own investigation into this alleged criminal activity through the issuance of subpoenas to compel the attendance of witnesses and the production of evidence. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2018-8, A Resolution of the City Council of the City of Newport Beach, California, Authorizing the Issuance of Subpoenas Pursuant to City Charter Section 410, Compelling the Appearance and Testimony of Witnesses and Production of Documents Related to the City Council's Investigation of Alleged Voter Fraud in the Unsuccessful Recall Signature Gathering Effort. FUNDING REQUIREMENTS: There is no fiscal impact related to this item. DISCUSSION: This item is brought forward to the City Council at the request of Mayor Duffield (per his authority under Council Policy A-1, "Open Meeting Policies," Section C) and in part in recognition of Mayor Pro Tem O'Neill's request at the January 23, 2018 City Council meeting to have the City Council take steps to consider this issue. 8-1 Issuance of City Council Subpoenas to Investigate Alleged Voter Fraud in the Unsuccessful Recall Signature Gathering Effort February 13, 2018 Page 2 On October 27, 2017, recall proponents submitted 10,696 signatures to the City Clerk. The City Clerk forwarded the signatures to the County's Registrar of Voters ("Registrar") for verification. The Registrar reviewed the signatures at a cost of $41,871 to the City. Following the Registrar's review, 8,339 signatures were determined to be valid, which was 106 signatures short of the required signature threshold of 8,445 representing 15% of the City's registered voters. On January 4, 2018, a judge serving on the Orange County Superior Court issued a sealed Search Warrant authorizing the District Attorney to seize the recall petitions from the Registrar. According to the Daily Pilot, a "recall organizer" "said she believed a paid... petition circulator contracted by the Committee to Recall Scott Peotter may have forged signatures." The same person told the Orange County Register, "this is a big, bad violation of election law and not a smart thing to do." In an online NextDoor posting a recall proponent stated: "as far as I know, one of the paid signature gatherers submitted forged signatures. It's actually reassuring to me that the Registrar... is this thorough and that the District Attorney takes it this seriously." The City Charter authorizes the City Council to conduct its own investigation into this alleged voter fraud. Specifically, City Charter Section 410 provides, in part: "Each member of the City Council shall have the power to administer oaths and affirmations in any investigation or proceeding pending before the City Council. The City Council shall have the power and authority to compel the attendance of witnesses, to examine them under oath and to compel the production of evidence before it. Subpoenas shall be issued in the name of the City and be attested by the City Clerk. Disobedience of such subpoenas, or the refusal to testify (upon other than constitutional grounds), shall constitute a misdemeanor, and shall be punishable in the same manner as violations of this Charter are punishable." Based upon a review of the recall supporters' Form 460 Schedule E, which lists the payments made in support of the unsuccessful recall effort, the following persons/entities were identified as having potential information relative to the alleged voter fraud: Jen Slater, Treasurer Committee to Recall Scott Peotter 9070 Irvine Center Drive, #150 Irvine. CA 92618 PCI Consultants, Inc. 26500 West Agoura Road, #102-146 Calabasas, CA 91302 Desnoo & Desnoo 9971 Briley Way Villa Park, CA 92861 Campaign Compliance Group 9070 Irvine Center Drive, #150 Irvine, CA 92618 8-2 Issuance of City Council Subpoenas to Investigate Alleged Voter Fraud in the Unsuccessful Recall Signature Gathering Effort February 13, 2018 Page 3 Consistent with the request made by Mayor Pro Tem O'Neill, staff recommends that the scope of the requested testimony and documents be limited to the alleged criminal act of signature forgery. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item was noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Resolution No. 2018-8 8-3 ATTACHMENT A RESOLUTION NO. 2018- 8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE ISSUANCE OF SUBPOENAS PURSUANT TO CITY CHARTER SECTION 410, COMPELLING THE APPEARANCE AND TESTIMONY OF WITNESSES AND PRODUCTION OF DOCUMENTS RELATED TO THE CITY COUNCIL'S INVESTIGATION OF ALLEGED VOTER FRAUD IN THE UNSUCCESSFUL RECALL SIGNATURE GATHERING EFFORT WHEREAS, on October 27, 2017, the recall proponents submitted 10,696 signatures to the City Clerk, which were forwarded to the Orange County Registrar of Voters ("Registrar") for verification; WHEREAS, the Registrar reviewed the signatures at a cost of $41,871 to the City and found that only 8,339 were valid, which was 106 signatures short of the required signature threshold of 8,445; WHEREAS, on January 4, 2018, a judge serving on the Orange County Superior Court issued a sealed Search Warrant and Affidavit ("Search Warrant") authorizing the Orange County District Attorney ("District Attorney") to seize the recall petitions from the Registrar; WHEREAS, a recall organizer and a recall proponent have stated that the District Attorney is investigating potential voter fraud used to gather signatures in support of the recall effort; WHEREAS, those same people have expressed their support of an investigation into this alleged criminal activity; WHEREAS, the City of Newport Beach ("City") Charter authorizes the City Council to conduct its own investigation into this alleged voter fraud; WHEREAS, City Charter Section 410 specifically authorizes the City Council to issue subpoenas compelling the attendance of witnesses, and the production of evidence; WHEREAS, the City Council finds and determines that probable cause exists that Jen Slater, Desnoo & Desnoo, PCI Consultants, Inc., Campaign Compliance Group and other witnesses may be in possession of information and/or documents relevant to the City's investigation necessitating the issuance of subpoenas to compel the attendance of witnesses, the production of relevant testimony, information and documentation that may lead to the discovery of evidence relevant to the City's investigation; and WHEREAS, the subpoenas authorized by this resolution serve a lawful purpose as they allow the City Council to investigate alleged voter fraud resulting from an unsuccessful recall effort, and provide information and assurances to the community regarding the integrity of the City's election processes. Resolution No. 2018 - Page 2 of 3 NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby authorize the Mayor with the attestation of the City Clerk to issue subpoenas regarding the alleged voter fraud committed during the unsuccessful recall effort. Section 2: The City Council does hereby order that the subpoenas issued by this resolution shall be in a form approved by the City Attorney that is similar to the proposed form attached hereto. Section 3: The City Council does hereby declare that failure to comply with the subpoenas issued pursuant to this resolution shall subject the subpoenaed parties to the remedies set forth in the City Charter, or as otherwise provided by law. Section 4: The City Council does hereby authorize the Mayor, City Manager, City Attorney, and the City Clerk to take all actions necessary to issue, serve and enforce subpoenas authorized pursuant to this resolution. Said authority includes, but is not limited to, the issuance of further subpoenas to new parties and to the subpoenaed parties and their officers, employees and agents in furtherance of obtaining documents, testimony and/or information that will assist the City, its staff and attorneys in their efforts to investigate potential false or forged petition signatures. Should a witness fail to appear, answer questions, testify and/or produce the subpoenaed documents and/or evidence, the Mayor is authorized to report the witnesses' failure to abide by the subpoena to the Superior Court and seek any and all lawful remedies including a ruling holding the subpoenaed witness in contempt. Section 5: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 6: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 7: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) 8-5 Resolution No. 2018 - Page 3 of 3 of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 8: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this day of , 20_. Marshall "Duffy" Duffield Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATT OFFICE C �- Aaron C. City Attorney Attachment: Subpoena Template :. 11►1va SUBPOENA (Newport Beach Charter Section 410) CITY OF NEWPORT BEACH: SUBPOENA FOR APPEARANCE Date: AND PRODUCTION OF Time: BUSINESS RECORDS Place: TO: FROM: N [Name] [Address] [Address] CITY OF NEWPORT BEACH [TBD] [TBD] Newport Beach City Hall Council Chambers 100 Civic Center Drive Newport Beach, CA 92660 On [Date], the Newport Beach City Council acting under the authority of Newport Beach Charter Section 410 adopted Resolution No. 2018- (incorporated by reference into this subpoena). [Select Option "a" or "b" below] a. YOU ARE ORDERED to appear in person and to produce true and correct copies of the records which you have in your possession described in Subsection 2(a) at the Newport Beach City Hall, Council Chambers, 100 Civic Center Drive, Newport Beach, California 92660, on [date TBD], at [time TBD] (or as soon thereafter as the matter may be heard). b. YOU ARE ORDERED to produce true and correct copies of the records which you have in your possession described in Subsection 2(a) in compliance with Subsection 2(b) below. The Records to be produced are as follows: a. from to the present. b. You are not required to appear at City Hall on the date and time set forth above if, prior to [date and time of appearance in subpoena], you produce true and correct copies of the Records to City Clerk Leilani I. Brown, City of Newport Beach, 100 Civic Center Drive, Newport Beach, CA 92660. c. All copies of documents shall be accompanied by a declaration or affidavit warranting to their accuracy and completeness. A declaration of affidavit meeting the requirements of Code of Civil Procedure Section 2020.430 shall be sufficient. The City of Newport Beach will pay all reasonable documented costs associated with copying the Records. If costs exceed $200.00, please contact City Attorney Aaron C. Harp at (949) 644-3131 before copying. 8-7 3. This subpoena is issued pursuant to Newport Beach Charter Section 410 and was authorized at a regularly noticed meeting of the City of Newport Beach City Council. 4. Disobedience of this subpoena may be referred to the Superior Court for enforcement and is subject to the criminal penalties and procedures set forth in the Newport Beach Charter and as otherwise provided by law. Should you have any questions regarding this subpoena, please contact: Aaron C. Harp City Attorney City of Newport Beach 100 Civic Center Drive, Bay 2E Newport Beach, CA 92660 (949) 644-3131 Date issued: [TBD] Marshall "Duffy" Duffield Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachment(s): [Insert attachments, if any]