San Diego ethics commission rejects call to recuse itself

How close is too close? was the question raised this week by a San Diego city attorney–hopeful pitted against a former member of and sometimes counsel to the city's ethics commission.

"You are well aware that Mr. Gil Cabrera is a candidate for City Attorney and that he served on the Board of the Commission for an extended period of time and that he also served as a past Chairman," wrote Rafael Castellanos to ethics commission executive director Stacey Fulhorst on October 1.

"In addition, Mr. Cabrera has been retained by the Commission as an outside consultant from time to time. Many of the staff members who worked under Mr. Cabrera are still with the Commission."

Continued Castellanos, "In order to eliminate even the possibility of unfairness and bias in the workings of the Commission it is imperative to remove the Commission from any oversight of the City Attorney’s campaign."

To cure the alleged conflict, Castellanos urged that the commission recuse itself from policing the city attorney campaign beat and turn over all investigations and enforcement actions regarding the race to the state's Fair Political Practices Commission.

"All campaigns would still be subject to the same reporting and campaign finance laws. However, the enforcement of those laws would be administered by another agency that is not subject to any conflict of interest or bias, whether actual, potential, or inadvertent."

In March 2013, Fulhorst threw a cloak of secrecy over Cabrera's work for the commission regarding the sensational political case of developer Fred Maas and his payment of $33,000 to a project employing local author and former U-T reporter Caitlin Rother to come up with dirt on 2012 mayoral candidate Carl DeMaio. The negative information was subsequently shopped to local media.

As first reported by U-T San Diego on March 24, 2013, Maas's effort was aided by Gerry Braun, a top aide to then-mayor Jerry Sanders and others linked to the mayoral campaign of Nathan Fletcher, the ex-GOP assemblyman who turned independent and later became a Democrat.

Cabrera was retained by the ethics commission as "outside counsel" to investigate the case, which was abruptly closed without penalty after Maas and his group Spotlight San Diego agreed to file a financial disclosure.

Cabrera told the paper "he remains confident that Spotlight San Diego violated campaign laws, but he had to weigh the diminishing returns of pursuing a fine in court given the complex nature of the case."

Cabrera was quoted as saying, “From my point of view, once I determined that this was a political purpose that was being done here, my primary goal was to make sure we got disclosure, and that’s what we got."

Asked via a public records request to provide documentation regarding the controversial decision to close the investigation, the commission's Fulhorst demurred.

"The release of investigative documents in a closed matter could affect the ability of other administrative or law enforcement agencies to investigate the same or similar allegations," she said in a March 25, 2013, letter, though no follow-up investigations in the case that involved a bevy of city hall insiders have since occurred.

Regarding documents involving Cabrera's role in the investigation and settlement with Maas, Fulhorst wrote, "I have withheld those documents that concern communications between the Commission (including Commission staff) and its legal counsel, pursuant to California Government Code section 6254(k), which exempts ‘records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.’”

Castellanos’s request to remove the commission from city attorney campaign matters was rejected by the commission at its November 6 meeting, according to program manager Stephen Ross, though Fulhorst has agreed to recuse herself and other staffers will fill in.

"Due to her service during Cabrera’s tenure on the Commission, the Executive Director has voluntarily recused herself from any participation in investigations or enforcement related to the City Attorney Race," says a November 2 memo from commission general counsel Christina Cameron.

"When an investigation becomes the subject of a Probable Cause or Administrative Hearing, there are procedures for the disqualification and recusal of individual Commissioners."