DA clears Nguyen of violating conflict of interest laws in CalOPTIMA votes

GotEthicsNewOrange County Supervisor Janet Nguyen has been cleared by county prosecutors of violating state conflict of interest laws when she voted on contracts valued at $300,000 awarded to a campaign contributor. One of the votes occurred days after she received an $1,800 campaign contribution.

The letter clearing Nguyen was issued by Senior Assistant District Attorney Mike Lubinski and released by the district attorney’s office on Friday. Lubinski wrote:

“In our review of the allegations, we concluded that no criminal conflict of interest laws were violated by Janet Nguyen in her position as a Cal Optima Board member.”

The letter went on to say that the Fair Political Practices Commission (FPPC) agreed with the findings that there is insufficient evidence to support a criminal violation of a state conflict of interest law, known as the Levine Act.

From Friday’s Voice of OC report on the letter:

Last August, Voice of OC reported that Nguyen, in her role as CalOptima board member, may have violated the Levine Act when she voted for $300,000 in contracts with Costa Mesa lawyer Todd Theodora, including one vote just days after Theodora contributed $1,800 to her re-election campaign.

Theodora’s firm was hired in 2011 by the CalOptima board to investigate allegations of malfeasance among its top management leveled by the agency’s chief in-house lawyer. The firm’s investigation concluded that the lawyer’s claims were unfounded.

The Levine Act’s author, former Assemblyman Mel Levine, D-Santa Monica, has said that the law was intended “precisely” to prevent the kinds of vote-and-contribute transactions that records indicate occurred between Nguyen and Theodora.

“That was clearly squarely within the intent of that law,” Levine said in an interview with Voice of OC.

A separate FPPC investigation of Nguyen, and her colleagues on the Board of Supervisors and CalOPTIMA board, over allegations of noncriminal violations state laws.

Lubinski’s letter concluded that Nguyen had not violated the letter of the law:

We concluded that this narrowly tailored law does not appear to have been violated because: (1) Section 84308 only restricts contributions received “from persons with pending applications for licenses, permits or other entitlements for use,” and none of the contributions in question come from persons with such pending applications; and, (2) the statute excludes “competitively bid, labor or personal employment contracts,” which separately exempts some of the contributions in question from the law.

Supervisor Janet Nguyen

Supervisor Janet Nguyen

Although the DA’s office has cleared Nguyen of violating a narrow interpretation of the law, Lubinski’s conclusions don’t clear Nguyen of violating generally accepted ethical principles. The problem with laws guiding conflicts of interest is that they are narrowly tailored to address specific actions, which carry criminal penalties. This can lead to a paradox where an action can be unethical, but legal.

There’s a big drawback in a legalistic approach towards ethical behavior. Generally, the more narrow a law, the easier it is to evade. Officials develop strategies and loopholes to walk the razor’s-edge of questionable conduct while not breaking the law.

Therefore it’s easy to see how it is possible for behavior to be legal, but not necessarily be ethical. This situation has been described as the “legal floor” versus the “ethical ceiling.” Ethics strive for a broad awareness of values and for a higher standard of conduct than mere legal compliance. Ethical standards ask the question of whether a decision or action is really “good” or “right,” rather than merely “legal.”

This situation is just another example of how Supervisor Nguyen seems to be adept at dancing on the edge of ethical standards. Whether it’s voting on contracts for campaign contributors, accepting political contributions from hospital interests days after restructuring the CalOPTIMA board to provide greater influence to those interests, or calling potential county contractors to introduce herself and offer assistance while they are in the midst of the selection process and subsequently sending them fundraising requests, Nguyen has thus far managed to avoid violating the letter of the laws.

But just because her actions are legal they are not necessarily ethical.

  1 comment for “DA clears Nguyen of violating conflict of interest laws in CalOPTIMA votes

  1. henry lipton
    February 10, 2014 at 5:23 pm

    Is anyone really surprised?

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