Dellinger not liable of charges

By From page A1 | May 26, 2014

DAN DELLINGER enters the courtroom on May 22. Democrat photo by Shelly Thorene

DAN DELLINGER enters the courtroom during his trial. Dellinger was found not liable of any charges by a unanimous vote in his civil case. Democrat photo by Shelly Thorene

A political consultant was found not liable of any charges by a unanimous vote less than an hour after deliberation started Thursday.

On Wednesday, the second day of the trial, the focus was on Dan Dellinger and Cris Alarcon. Before they were called, however, witnesses included Ripley Howe, a volunteer on the Pioneer Fire District Board of Directors in 2011.

Howe testified that he was the instigator of trying to get money for the near-bankrupt fire department, eventually hiring Dellinger and passing Measure F. He saw John Bliss of consulting firm SCI give a presentation and originally wanted SCI to help with Measure F, he said. But on the evening of May 9, 2011, he received a call from Supervisor Ray Nutting. On Nutting’s advice, Howe called Dellinger and eventually Dellinger was chosen as a consultant.

On early drafts of the contract, Howe said, the PFD board was “uncomfortable” with the language of a “win bonus” should the measure pass, he said. He was not sure if county Auditor-Controller Joe Harn was involved yet, but did say that SCI’s proposed contract had a similar clause with more neutral language.

A fourth and final contract was produced after Harn voiced concerns over the content and language, he said.

Howe said that Dellinger helped set up a campaign committee as per his contract, but Howe and Craig Cooper-Wyble, also on the board, did all the work. “I wouldn’t say he had no role in setting up (the campaign committee),” but instead advised how to set it up. Howe spoke with the Fair Political Practices Commission of California to ensure everything was correct.

He testified that at meetings, the campaign committee members would wear two hats. First, as members of the PFD board, they would give an informational presentation. Then, they would announce that they were acting as the campaign committee and have a campaign meeting. “It was the same people taking off one hat, putting on another hat,” he said.

For a mailer for the campaign, Dellinger assisted in the actual printing, but was reimbursed. The committee paid for the actual printing, layout and postage, done by the printer.

Howe said that, after Dellinger attended one or two campaign meetings, they asked him to stop so as to keep him separate from the board to the committee. The board had a contract with him; the committee did not.

Dellinger had no access to funds or services, Howe told defense attorney Anthony Palik. The contract with the board used district funds.

Cris Alarcon, a media consultant who partnered with Dellinger for the Measure F project, was also called to the stand. He said they had a 50/50 split of the money earned and his main job was researching. He spent about 100 hours researching and prepping for the information “white paper” for the measure.

He also created graphics for the white paper, he said. Otherwise, he would pick up materials printed at Minuteman Press and deliver them to the campaign committee as it was convenient. He was reimbursed for the materials but was not paid for the service. His only actual payment was from the board. His involvement with the committee, including graphics for a flyer, was “charity work; I don’t get paid for charity work,” he said. He worked about two hours for the committee and went to two events.

Deputy district attorneys James Clinchard and Brandon Erickson then called Dellinger himself to the stand.

Dellinger said this was his first time working on trying to pass a ballot initiative. He spent at least 50 hours working on the measure, he said. He wrote the white paper, including his recommendations as a consultant. He was present at all informational meetings to provide information on the white paper. He would only stay into the campaign meetings if people still had questions about the white paper and he was still talking to them, or if people asked personal questions — he knew many people attending the meetings.

He did nothing to create a flyer for the campaign committee, he said. He did give input and basic suggestions, but nothing more. In a deposition, however, he said he did do work on the flyer and that it was direct advocacy — which is not allowed for a consultant to do with taxpayer money. He also assisted in the layout of a mailer, but nothing else.

Although there were questions — including from Judge James Wagoner — that Dellinger could be practicing law without a license in giving advice to the board, Dellinger denied the action, saying he would consult with a lawyer when needed.

Ultimately, Dellinger was paid $10,000. He did not receive the payment for “additional work” — originally a win bonus, despite the passage of Measure F.

The two mailers that went out, he said, were paid for by fundraising by the campaign committee and had nothing to do with the funds he was paid with by the board. An admission prior to the trial stated that he did work on the mailer for “Yes on Measure F.”

The final witness of the day was Harn. He said he submitted a complaint to the civil Grand Jury after seeing the original contract — he worried about electioneering. “On its face, it did not appear illegal,” he said of the final contract, after seeking an informal opinion from the county counsel.

Harn was also the first witness of the next day. He said he believed it was unlawful to hire consultants to form a campaign committee, but noted he was not a lawyer.

Dellinger was recalled as a witness. He said he received a call from Harn, which led to changes seen on the final contract, mostly related to the original “win bonus” money.

A recalled Harn denied the call, but said he called to tell Dellinger that the initial $2,000 he was to be paid would not be paid yet.

The defense then rested its case.

The plaintiff’s closing argument focused on the charges. Clinchard said working on the flyers in any capacity was direct advocacy on Alarcon’s part, and because Alarcon was working for Dellinger, Dellinger was liable. The ballot argument was “paid for by taxpayer dollars,” Clinchard said. In the “Scope of Work” part of the contract, it said that Dellinger would do work for board and committee, which was improper. The recommendation part of the white paper was also improper.

Palik focused on the fairness of what had happened, as this was not a criminal trial. It was a “grassroots effort to save” the fire department, and the PFD hired Dellinger to consult. No one was deceived. Rules for “wearing different hats” from board to committee were followed. There was no electioneering. The county Elections Department accepted everything and saw nothing wrong. Strong wording in the white paper did not constitute direct advocacy.

Electioneering is also “foggy, mushy” as to when it starts. Palik argued that it would be after the ballot certification. And if Dellinger did not help set up the campaign committee, the board would be electioneering. To not set up the committee would be a “dereliction of duty” for Dellinger. “That’s how we know it’s not misconduct,” Palik said. “They were trying their best to observe the rules.”

Clinchard brought up the admissions, saying that they clearly showed that Dellinger was liable. The defense was trying to use a “red herring” with the concept of fairness, not looking at laws.

The jury deliberated for less than an hour, reaching a verdict around 4 p.m. Thursday. The unanimous decision by five women and seven men was that Dellinger was not liable for any of the charges against him.

After the trial, Dellinger said it comes down to a problem of policy.

“The legislature needs to come out with a bright line test,” he said. This would prevent other consultants from being “hauled into court.” He reiterated that he “thinks there is an underlying problem the legislature needs to address.” Otherwise, the “whole issue could be litigated to death” and law would essentially by made in courtrooms, rather than by the legislature. The true intention of the legislature needs to be clear; as it stands, it is not.

In one case, he said, a ballot measure was found not to technically exist before certification, thus what would constitute electioneering was not considered as such before certification. But then a Supreme Court case “sidestepped” the issue.

Dellinger also said he thinks “there is some personal motivation on the DA’s part,” and called the case a “political vendetta.”

Clinchard noted in an e-mail to the Mountain Democrat that in June 2012, the El Dorado County Civil Grand Jury made findings pursuant to penal code section 932 that Dellinger and Alarcon “unlawfully used state resources for campaign activity” and ordered the District Attorney’s Office to file a civil suit for the $10,000 Dellinger had received.

The previous month, the DA’s Office attempted to settle with Dellinger, with the Grand Jury’s authorization. It recommended not seeking the penal code section 932 order and instead “to recommend that the Civil Grand Jury note in their Grand Jury findings that Mr. Dellinger and his firm were cooperative in the investigation and voluntarily agreed to forgo any further claimed payments due from Pioneer Fire District. Mr. Dellinger rejected this offer. Mr. Alarcon never appeared on the case and an entry of default was issued.”

Before the trial began, Clinchard noted, the People agreed in waiving their right to a jury trial and to have a single-day court trial. “Mr. Dellinger rejected this proposal. We respect the recent decision made by the civil jury of not finding liability, as the jury system and process is the foundation of our great system of justice.  But, at the end of the day, the jury ultimately said to Mr. Dellinger — you can keep the $10,000, which is precisely what was offered to Mr. Dellinger two years ago before the case was filed.”

Contact Cole Mayer at 530-344-5068 or [email protected] Follow @CMayerMtDemo.

Cole Mayer

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