Sunday, March 13, 2011

Trutanich ACE Program Outed as Power-Grab and Cash-Stash

City Attorney Carmen Trutanich's "ACE" Program has been accused of being a "Power-Grab" and "Cash-Stash" by TRU is False, the blog that seems to exist solely to criticize the once popular City Attorney.

TRU is False routinely portrays Trutanich as a "Godfather" like megalomaniac
who works behind the scenes to gain power, control and influence
In what appears to be a heavily biased article, TRU is False suggests that Trutanich has "hidden" key components of his "ACE" Program from the City Council who are expected to vote in favor of the plan to make the imposition and collection of fines for violations of the Los Angeles Municipal Code more efficient and cost-effective.

A key component of Trutanich's ACE Program is that the traditional system of code enforcement, which uses the existing criminal courts system, will be bypassed and instead enforced through a system of administrative courts that Trutanich not only controls, but staffs with his own judges, called "administrative hearing officers."

Under the ACE Program, Trutanich's prosecutors will sit as judges and hear cases based on a wide variety of violations for the Los Angeles Municipal Code ranging from animal cruelty, building code violations, even noisy house parties - in fact any violation of the LAMC is covered by ACE.

After the prosecutor-judge hears the evidence presented by code enforcement officers, a fine or "administrative penalty" can be imposed and collected by Trutanich through a Code Compliance Fund that he also administers. Because Trutanich's ACE is basically a civil administrative hearing, there is no right for a person charged with a violation to have a public defender.

Another advantage of ACE is that Trutanich's courts are able to keep all the money collected, whereas under the traditional criminal courts route, most of the money ends up going to Sacramento. Under ACE, Trutanich keeps all the money and then gives whatever is left to the city department or the General Fund after he has paid himself for the costs of running the ACE and paying his prosecutor-judges.

"ACE" is Trutanich's acronym for the Administrative Citations Enforcement Program which is very loosely based on similar programs such as one used in the City of San Diego.

But the ACE Program is not actually Trutanich's idea. It was Councilmember Paul Koretz who in January 2010 proposed a simple plan for code enforcement. In the year since Koretz made that proposal, his plan seems to have been hijacked by Trutanich and morphed into something probably far beyond anything Koretz envisaged, and something highly likely to be criticized by those concerned with the preservation of civil liberties.

TRU is False points out that Section 11.2.09 of Trutanich's ACE gives him the power to create the system and staff it with his own judges. Section 11.2.09 in fact reads "The City Attomey shall develop written policies and procedures for the hearing and appeals process in addition to developing written policies and procedures for the selection and appointment of one or more independent Administrative Hearing Officers to hear and decide administrative citation appeals. The administrative hearing shall be conducted in accordance with the procedures promulgated by the City Attomey." It seems highly likely that there is an inherent conflict of interest in allowing the City's prosecutor to set up a court system, staff it with prosecutor-judges, and tell them what to do.

That conflict of interest would seem to be even more problematic because of Trutanich's ability to control the disposition of money collected by his prosecutor-judges. As TRU is False points out, under Section 5.121.11 of Trutanich's ACE, called the "Creation and Administration of Fund" sub-section "(a) There is hereby created and established in the Treasury of the City of Los Angeles a special fund to be known as the Code Compliance Fund (the "Fund"). All monies collected pursuant to Chapter 1, Article 1.2, Sections 11.2.1 and following, of the Los Angeles Municipal Code shall be deposited into the Fund. The fund shall be administered by the City Attorney's Office." So it does at least appear that Trutanich has a considerable financial interest in ACE.

TRU is False also identifies a third problem with Trutanich's ACE, under Section 11.2.09(B)(6) he has given himself Grand Jury-like subpoena powers. The Section allows Trutanich's prosecutor-judge to "subpoena witnesses, documents and other evidence in accordance with the policies and procedures established by the City Attorney." This power to order the production of documents, evidence that he otherwise has no power to obtain, presents a very real problem as there is virtually no limit as to what one of his prosecutor-judges can be ordered to force a resident or a corporation to disclose, provided that some violation of the LAMC is alleged.

Despite the apparent unconstitutionality of Trutanich's ACE, he has peppered his proposed ordinance with language claiming to be "consistent with due process principles." However, keen observers will recall that key portions of Trutanich's medical marijuana ordinance were recently found to be unconstitutional, suggesting that Trutanich may not be the best arbiter of constitutionality. That tends to be decided in real courts of law where Trutanich does not get to choose the judges, or tell them what to do.

All in all, Trutanich seems to be giving himself McCarthy type powers with J. Edgar Hoover type clandestine authority. Trutanich is likely banking on the fact that City Council's need to obtain new revenue sources will blind them to the reality of his ACE which not only siphons off that revenue to fund his office, but also may cost the City far more in litigating the constitutionality of his ACE.

Even if Trutanich can convince the City Council that his ACE is lawful, many may be fearful of trusting Trutanich with these enhanced powers. In July 2011, the Trutanich administration will have held power for two years. During that time Trutanich could be said to have played fast and loose with his legal authority. His ill-fated 'criminal aspects' investigation into the Michael Jackson memorial, bullying threats to arrest a City Councilmember and city department workers over AEG's billboards, his failure draft a constitutional medical marijuana ordinance and his recent "aggressive stance" handling of student political protesters, must all raise serious question marks as to how Trutanich will conduct himself with new far-reaching powers.

Perhaps the City Council will have the good sense to realize that the ACE program itself is not the problem, placing it in the hands of Trutanich is. The solution? Create an independent department similar to the City Ethics Commission where judges can be independently selected, and the Municipal Code can be enforced fairly. All that needs to be done is a little "Cut and Paste." Cut references to "City Attorney" out of ACE, and paste in the name of an independent body to administer the program.

1 comment:

Anonymous said...

I prefer your version of this to the Trutanich is False blog. You make a very good point, which is that the Council could and should keep the ACE program, but let an independent body run the program. I think all Los Angeles residents would approve the program that way.