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According to Steven Churchwell, a public official seeking legal-defense money should be able to participate in a hearing, make their case and be present for the vote, but abstain from voting. Courtesy photo
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Board member votes to grant herself $10K reimbursement

ESCONDIDO — At a Nov. 13 Palomar College Governing Board meeting, trustee Nina Deerfield voted as part of a unanimous bloc to grant herself $10,000 worth of reimbursement money in an ongoing lawsuit brought against the board.

Nina Deerfield

Deerfield is the top campaign adviser to newly-elected Escondido Mayor and Palomar College board president, Paul “Mac” McNamara.

The lawsuit, filed by the faculty labor union, alleges the Palomar College board violated the Brown Act after failing to follow proper transparency protocols when awarding Palomar College President Joi Lin Blake a 27-percent raise.

Paul “Mac” McNamara

Deerfield can be reimbursed for any legal fees incurred between now and June 30, 2019, the date after which she will receive payment.

Under California’s Political Reform Act, members of a governing body must recuse themselves in situations in which that public official “has a disqualifying conflict of interest in a governmental decision (which) is foreseeable that the decision will have a financial impact on his or her personal finances or other financial interests,” according to the Fair Political Practices Commission’s website.

“In such cases, there is a risk of biased decision-making that could sacrifice the public’s interest in favor of the official’s private financial interests,” the commission further explains. “To avoid actual bias or the appearance of possible improprieties, the public official is prohibited from participating in the decision.”

In 1998, the commission issued the Cronin Letter, a memo written to Fresno County legal counsel Philip Cronin explaining how to handle conflict-of-interest situations involving public officials.

“A public official may make, participate in making, and influence a governmental decision about whether he or she will be provided with a defense or indemnification for damages where the agency is obligated to provide the defense and indemnification if the public official was acting within the scope of his or her employment.” 

Cronin Letter

Steven Churchwell, a partner at the Sacramento-based law firm Churchwell White LLP and a former member of the commission, wrote the original letter to Cronin.

“A public official may also take part in this threshold decision about whether he or she was acting within the scope of his or her employment. However, (public officials) will not be able to take part in decisions about whether he will be provided a defense and indemnification for punitive damages claims because the (governmental body) is not obligated to provide them even if he was acting within the scope of his employment.”

Cronin Letter

Similar to the scenario outlined above, Deerfield was not sued on punitive grounds (a public official who acts with malice in a manner that inflicts harm on a citizen).

Churchwell said he now believes that his letter — the current law guiding California political ethics — deserves some reconsideration after 20 years.

According to Churchwell, a public official seeking legal-defense money should be able to participate in a hearing, make their case and be present for the vote, but abstain from voting.

“And so that’s the distinction, between influencing at the podium and making the decision by voting on the dais,” Churchwell said. “And I think most citizens would have a problem with the public official actually voting. Like, say it were 2-2 and that person playing a role in breaking that tie (in a vote). That would look to most people like that would be a little too much.”

Churchwell pointed out that some legal advocates believe that a public official in this type of scenario should do a full-on recusal.

The Brown Act complaint brought against the Palomar College Governing Board, McNamara and Deerfield took center stage during the Escondido mayoral campaign.

As first reported by The Coast News, the complaint was cited in campaign literature published by the Abed campaign.

Palomar College spokeswoman Laura Gropen also said she could not comment beyond pointing to the Nov. 13 public meeting minutes.

Gropen did not clarify whether legal counsel had written a memorandum clearing Deerfield to vote on her own reimbursement.

The Governing Board’s attorney was present at the meeting and cleared the maneuver, according to the meeting minutes.

“Trustee Deerfield commented on the matter and asked to have the District pay her attorney fees related to this matter. Trustees requested that the District’s attorney present in the audience respond. She commented that there is no basis for asserting a conflict of interest. Discussion ensued.”

Palomar College Governing Board Nov. 13 meeting minutes 

Deerfield and McNamara both told The Coast News they could not comment for the story due to it centering on ongoing litigation.