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Bribery Charge Raises Legal Eyebrows: DEPUTY DA QUOTES HIGH COURT RULING; BUT SOME EXPERTS SAY IT's A STRETCH

Posted on: Saturday, 24 June 2006, 09:00 CDT

By Barry Witt, San Jose Mercury News, Calif.

Jun. 24--There was no cash in a paper bag. No monies wired to foreign bank accounts. No secret campaign contributions or jobs for close relatives.

The bribe that a Santa Clara County Grand Jury alleged this week was Norcal Waste Systems' agreement to let the Teamsters union represent about 60 workers at higher wages than Norcal had expected to pay. In exchange, the mayor promised that city ratepayers would cover the additional costs.

It's an action that has been well-documented for more than a year, but never before characterized as illegal.

The bribery charge was the most stunning contention in the seven-count indictment filed against Mayor Ron Gonzales, Norcal and Gonzales aide Joe Guerra. But it's not what most people think of as a bribe because it involved no direct benefit to the mayor. And Gonzales has long argued that seeking higher wages for the workers was consistent with longstanding city policy.

Prosecutors said Friday that they can make the charge stick because the law says a bribe does not have to personally benefit the public official; it can benefit someone else, if the public official requested that the bribe be paid in return for an official action. In this case, the beneficiaries allegedly were employees of Norcal recycling subcontractor California Waste Solutions, who won wage increases, thanks to the mayor's actions.

Attorneys for Gonzales and Norcal say the charge is absurd, and several veteran lawyers not connected to the case said they found the prosecution's theory to be stretching the law.

The case itself appears to rest largely on whether the facts -- over which both sides mostly agree -- constitute crimes.

"This may not have been good government, it may have been unethical, and I express no opinion on those things, but I guarantee you it's not criminal," said James McManis, an attorney for Norcal President Michael Sangiacomo.

Allen Ruby, the mayor's attorney, called the prosecution theory "absolutely preposterous."

"What the DA is trying to do is create a new crime, which is if someone in public office uses his or her judgments to advocate for a group or an individual, that somehow can be characterized as a bribe," Ruby said.

Julius Finkelstein, the deputy district attorney who presented the case to the grand jury, did not detail his entire case at a Friday news conference. But he alluded to a 1982 California Supreme Court case that he said supports the notion "that a bribe does not have to personally benefit the public official" and that "a public official cannot use his official position to make a secret deal to benefit either him or his political supporters."

In this case, the supporters would be the Teamsters union, which had longstanding ties to Gonzales. The recycling company initially had planned to recognize an Oakland-based International Longshoremen's Workers Union local that lacked San Jose ties. The Longshoremen had agreed to terms that would have paid the workers less than they received under a Teamsters pact with San Jose's prior contractor.

Prosecutors also point to the jury instruction on bribery in California, which says a person can be found guilty if "he or she acts to wrongfully gain a financial or other advantage for himself, herself or someone else."

But "it's a long stretch" to say a benefit to a political supporter is legally sufficient, said Matthew Jacobs, a Sacramento attorney and former federal prosecutor who handled many political corruption cases. "If you charge this as bribery, how is it distinguished from a lot of what goes on in Sacramento every day?"

Stanford law professor Robert Weisberg said Gonzales can raise a strong argument that he thought he was pursuing a legitimate public policy goal in seeking higher wages for the workers.

"I don't think it gets past reasonable doubt for a jury," he said.

Besides the bribery charge, the case against Gonzales includes an allegation that he falsified two public records when he sent memos to the city council that contained false information. Defense attorneys disputed the notion that the mayor could be charged with a crime for writing the memos -- even if they weren't true. They argued the statute is intended to apply to records that have in some way been forged or altered.

Outside experts also questioned that charge.

"You could imagine the number of prosecutions if politicians could be busted for making false statements in jawboning some legislation," said Stanford's Weisberg.

But Finkelstein argued that the creation of the false document is a crime and it contributed to the mayor's attempts to mislead the city council, resulting in the council's approval of payments that covered the higher wages paid to the Teamsters.

The prosecutor indicated that even though most of the facts of the case have been known publicly for at least a year, after a civil grand jury detailed them in June 2005, his office delayed pursuing the matter as a crime until after the city council decided to drop the matter in December.

Mercury News Staff Writers Brandon Bailey and Deborah Lohse contributed to this report. Contact Barry Witt at bwitt@mercurynews.com or (408) 920-5703.

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Copyright (c) 2006, San Jose Mercury News, Calif.

Distributed by Knight Ridder/Tribune Business News.

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Source: San Jose Mercury News

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