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Nutting Grand Jury transcript unsealed: Nutting takes the 5th

By From page A1 | July 05, 2013

Filing a false document, perjury by declaration, another filing of a false document and failure to recuse oneself from voting in a potential conflict of interest. These were the four counts handed down in a Grand Jury indictment to El Dorado County District Supervisor Ray Nutting on May 24 after a two-day hearing. The transcript of the hearing, dealing mostly with fire grants from the early 2000s and in 2009, was recently unsealed.

The witness list started with Jeffery Calvert, a Cal Fire stewardship forester who administers the California Forest Improvement Program, or CFIP, which uses Proposition 40 funds. He testified that the “zero” under cost of work done by the landowner was fairly typical.

“And as you look at it now and seeing that it’s the same signature as the landowner on the Prop 40 invoice as is on the Nutting Brush Clearing invoice, does the fact that there’s zero listed for my own labor cause you any concerns when the invoice is done by the same person?” asked deputy district attorney James Clinchard, who was joined by Peter Williams of the California Attorney General’s Office.

“Not really,” Calvert replied. “It’s not uncommon for landowners to also have a business and they employ their own company to do the work. So they may have employee costs, fuel costs, that sort of thing. It’s not — it’s rare, but it is not uncommon to have that done.

Later, however, Registered Professional Forester Mark Stewart said the zero was a mistake.

“And it should not have been a zero and I think that was (a) mistake where I had printed out — I had deleted the acres, date completed and actual costs from my first invoice, printed it out and then hand wrote the numbers in there when we prepared the second invoice. I didn’t catch that the zero was for my own labor on there.”

Nutting also told DA Investigator John Gaines that it was a mistake, that it “shouldn’t have been there,” Gaines testified. “It was a mistake. That he was only following the orders of his forester. He even said he had records that the forester didn’t want them.” However, Nutting also told Gaines that when they prepared the document, they didn’t believe anything in the field instead of zero was necessary — a change from it being a mistake or inadvertent.

The company that did the work, Nutting Brush Clearing Co., didn’t exist, Gaines said. “There was never a Nutting Brush Clearing. He said that several times in multiple interviews, there never has been a Nutting Brush Clearing Co. It was a description of a project, not an invoice, so to speak.” The forester had told Nutting to put that name down, Nutting had said.

As for the Form 700s, Nutting told Gaines that leaving out the income was a simple oversight. He told this to Gaines 12 times, he recalled.

James K. Mitrisin, a clerk for the Board of Supervisors, testified that Nutting made certain votes. The votes concerned giving money to the El Dorado Resource Conservation District and the Georgetown Resource Conservation District, about $80,400 each, on June 30, 2010.

“Did Mr. Nutting vote on that one?”

“Yes, he did,” Mitrisin replied.

In 2011, a total of about $149,000 was to go to the two RCDs. “And do you show what Ray Nutting’s marked vote on that was,” Clinchard asked.

“This was voted on the consent calendar and it was marked yes,” the clerk said. The same would happen for about $2,000 less the next year. Nutting, Mitrisin testified, made other votes concerning the RCDs, including on whom to appoint to various RCDs.

The money that is given to the RCDs is used as money for Prop 40 — including money Nutting received, according to multiple testimonies in the transcript.

Another point of contention with the District Attorney’s Office is that the documents Nutting filed showed he completed all of the work on his property on time, qualifying for the Prop 40 money, but did work later, the DA contends.

Nutting had to file paperwork with the county Department of Agriculture to spray herbicides on his property. He was required to finish work on the property by April 15, 2009, to receive money for that year.

But, said Leanne Mila of the Agriculture Department, he sprayed later.

“And what were the dates that that was indicated the pesticide was used?”

“May 26, May 27 and May 28 of 2009,” she said. The document showing the dates was stamped on May 29 by the Ag Department.

Stewart, when he signed off on the Prop 40 forms, was unaware of the pesticide spraying, he said. He had marked the work completed on April 15, the final day Nutting had to complete the work. He was also unsure why Nutting would sign the work as done when he still had pesticide to spray. He was also unaware that Cal Fire’s Chris Anthony had seen between 30 and 50 burn piles in early May that were supposed to have been burned in April.

Lynda Cassidy of the California Fair Political Practices Board, a watchdog group, noted under questioning that Nutting’s Form 700, which shows income, lacked $20,000 in income that he would later amend. Rental income of $10,000 in 2000 was also left out of a Form 700, also later amended earlier this year.

In looking at money Nutting did receive from Prop 40 grants, DA Investigator Marilyn Meixner testified that about 20 percent of the county’s Prop 40 money went to Nutting or the Happy Valley Trust, of which Nutting is a trustee, between 2009 and 2012.

Cal Fire Forester Patrick McDaniel gives the final sign-off in the field on Cal Fire’s end. He was unsure of when he went to check Nutting’s property, but signed off on May 28 of 2009.

Williams asked why, if the contract ends in April, it isn’t also his responsibility, as the last check for Cal Fire, to make sure the work is completed on time. “I don’t know,” answered McDaniel. Clinchard followed up by asking if anyone other than the RPF that Nutting had hired, Stewart, ensures that the project is done on time. “I don’t know,” was again the reply.

McDaniel said he keeps a spreadsheet of the dates the contracts expire, but his explanation for not determining when the work was actually done was “I don’t recall. But I would have been in contact with the (RFP) about the expiration date.”

The matter of the herbicides was pressed. “Why would you sign this document giving Ray Nutting $22,000 if the pesticides had been applied on the 26th, 27th and 28th, outside the contract time period where he was not allowed to get money,” Williams asked. “Why would you sign off and allow — and give him money?”

“I’m not aware of that,” McDaniel said. “I’m not — I did not see this form.” He had no knowledge of the form, he reiterated, and he could not recall if he had seen signs of spraying. He had the forester with him, he said, who made no mention of recent spraying, which could be hazardous to their health, walking around Nutting’s property. “I rely on the (RPF) to do his job properly,” he said, and that determining if the documents submitted to him are true are not are “outside the scope of my responsibilities.” He added, “If I knew it was false, I wouldn’t sign off on it.”

When asked again, he said the same thing. “My question,” Williams asked, “is do you know how you would sign off and approve an invoice, said it was completed within the time period when it appears the slash disposal had not yet been completed until after the contract expired?”

McDaniel replied, “I relied on the consulting (RPF) to provide me with an accurate invoice.” He repeated the sentiment several more times over the course of his testimony, saying he relied on the landowner and RPF to provide accurate documents and that he would not pay out the money if he knew they were not accurate.

The penultimate witness, before Gaines, was Nutting himself. However, after some initial confusion over whether his attorney, David Weiner, could be present, Nutting decided to take the Fifth — his constitutional right to not self-incriminate — and left the stand.

At 5:30 p.m. on the second day of proceedings, the Grand Jury returned the indictment of four counts.

Nutting sent a letter to the Board of Supervisors, dated June 21, and said the following in regards to his charges: “I will be vindicated of the malicious charges that have been made against me. I want to resume fulfilling all of the duties I was elected to perform. However, I want to ensure that the charges do not affect the county’s ability to obtain or use state and federal funds.”

He wrote that he had recused himself on any matter related to state or federal funding.

“I have been told that failure to adhere to this recusal could put at risk the funding of programs and projects receiving monies from any federal source. I believe that asking an elected official to recuse himself from representing his constituents on items he was duly elected to vote on, before he has had his right to a trial violates many important constitutional principles, including the principle that a man is innocent until proven guilty; however, I do not want to take any risk of putting the county’s federal money at risk, so I will continue to voluntarily recuse myself from items involving funding.”

He goes on to write that “I fully intend to be acquitted in a court of law as quickly as possible and then return to perform all of the duties for which I was elected.”

Nutting’s case is awaiting reassignment by El Dorado County Superior Court Presiding Judge Suzanne Kingsbury.

Click on the links below to view the Grand Jury transcript from the two-day Ray Nutting hearing.

Ray Nutting Grand Jury transcript part 1
Ray Nutting Grand Jury transcript part 2
Ray Nutting Grand Jury transcript part 3
Ray Nutting Grand Jury transcript part 4

Cole Mayer

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