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The San Diego Ethics Commission is taking Nancy Graham to court to compel her to comply with a subpoena seeking records about her financial relationships with two developers that had business pending downtown.
Graham, the former Centre City Development Corp. president, has refused to turn over the records, according to an Ethics Commission complaint filed in San Diego Superior Court on Thursday. A letter that her attorney, Paul Pfingst, sent the commission says Graham will not provide the records.
“[W]e … assert all privileges and rights under the Fifth Amendment to the U.S. Constitution,” Pfingst wrote.
The commission’s complaint claims that reasoning is bunk. Graham has the burden of proving that disclosure of the records could lead to criminal prosecution, it says. And it is “well established” that corporate records can’t be withheld by citing the Fifth Amendment, the complaint argues.
“There is no legitimate basis for [Graham] to withhold documents responsive to the Commission’s subpoena,” it says.
Pfingst said in an interview that Graham doesn’t have any documents about the deal to provide anyways.
“They are not and have not been in her possession,” he said. “So regardless of the outcome of the subpoena, she doesn’t have the documents to provide, and we’re going to tell a court that. We have told that to the Ethics Commission.”
The commission initiated an investigation of Graham in August 2008, looking at whether she violated a city law that prohibits public officials from influencing decisions that can benefit their business partners. Stacey Fulhorst, the commission’s executive director, declined comment.
The commission’s staff has subpoenaed copies of all the checks that Graham received from a Florida business deal she did with two developers: The Related Group and the Lennar Corp. Graham admitted receiving $125,000 in 2007 from the deal. Though she worked at CCDC then, she did not disclose that income on her annual conflict-of-interest disclosure forms.
While working at CCDC, the city’s downtown redevelopment agency, Graham sat in on negotiations about a publicly subsidized $409-million skyscraper proposed by a development company that owns a minority stake in The Related Group. (CCDC’s board subsequently scrapped the project, saying that her conflict-of-interest had tainted the selection of the developer, The Related Cos.)
A CCDC investigation also found that Graham had influenced numerous aspects of the Ballpark Village development, a $1.4-billion downtown office-and-hotel project proposed adjacent to Petco Park. Lennar is part owner of the land upon which Ballpark Village is proposed. CCDC subsequently terminated negotiations on the project, allowing the developers to start a permitting process anew.
The Ethics Commission subpoenaed Graham in April, requiring the documents it sought to be turned over by May 12. Within a week of getting the subpoena, the complaint states, Pfingst told the commission that he didn’t want to turn over the documents while the criminal case brought by former City Attorney Mike Aguirre was still pending, citing Fifth Amendment concerns.
On May 1, Graham pleaded no contest to one criminal charge of failing to properly disclose her economic interests.
According to the complaint, after the no-contest plea, the commission’s attorney, Alison Adema, again reminded Pfingst she wanted the documents she’d subpoenaed. Pfingst told the commission that Graham was having trouble getting the responsive documents from her ex-husband, Kevin Lawler. That was June 1. Pfingst promised to let the commission know whether Graham could get the records by June 3, the complaint says, but didn’t follow up.
A person who fails to comply with a subpoena can be held in contempt of court.