Rules of Law and Hero Worship–My take on the Delgaudio fiasco

I’ve mentioned a few times in recent blogs about how I was going to address some of the larger issues behind the non-indictment/BoS censure of Supervisor Eugene Delgaudio of Sterling. Things have been a bit busy around HoodaThunk? manor for a while and this topic isn’t one that should be handled in a “fly off the handle” fashion. For those reasons, this post has been both delayed and growing. This isn’t a topic that’s handled in 2 paragraphs so if you’re not interested in the local politics or long posts you should skip this one.

As a quick background, Supervisor Eugene Delgaudio of Sterling was accused by a former employee, one Donna Mateer, of using his official office and resources for campaign fundraising. Mateer made her allegations to the Washington Post and that story kicked off an investigation. Loudoun’s Commonwealth Attorney Jim Plowman contacted Arlington County’s CA, Theophani Stamos, to conduct the investigation to avoid any appearance of impropriety. (Good move, Mr. Plowman.) Ms. Stamos convened a Grand Jury to look into the facts of the case. After 6 months of going over all the material and asking their questions, the findings of the Grand Jury led Ms. Stamos to conclude that there was insufficient evidence to support pressing any charges. Now, that’s a legalese way of saying that they found that Supervisor Delgaudio hadn’t done anything illegal. And that, ladies and gentlemen, is the fact of the matter: for all that his political opponents might be howling for blood, Supervisor Delgaudio didn’t do anything illegal, plain and simple.

What happened next is, frankly, a moral and ethical outrage to me. The Grand Jury, looking at evidence they reported to the Commonwealth Attorney running the investigation and seeing that the CA didn’t consider it to be evidence of a crime, made the decision that it should have been a crime and decided to publish a report (PDF) detailing what they had uncovered in their investigation that was offending them. The report, unsigned and unattributed, is published into the public domain and held in the Commonwealth’s records with not a single iota of rebuttal available. Absolutely no accountability is made available, accusations are made in spite of the admission that what evidence was uncovered was unable to support any charge whatsoever, and there is no ability in any way, shape, or form to address the authors of these accusations. The Commonwealth has provided a platform of state-wide scope to make accusations against an officer of Loudoun’s government and they have not made the same platform available for a balancing response. I would propose that they cannot do so, legally, but that’s a proposal that applies equally to the report itself.

The Special Grand Jury is impanelled for a specific purpose. We don’t fire them up because we’re bored; they have a specific task to perform. As described in this document, “The Circuit Court,” housed at the Virginia’s Judicial System site:

A special grand jury is composed of seven to eleven citizens and is summoned by the circuit court. The qualifications for members of a special grand jury are the same as for a regular grand jury. A special grand jury may be impanelled by the circuit court (1) at any time upon the court’s own motion, (2) upon the recommendation of the members of a regular grand jury, or (3) upon the request of the attorney for the Commonwealth to investigate and report on any condition involving criminal activity and to consider bills of indictment.

In other words, the Special Grand Jury is to investigate a matter to determine whether there has been a violation of law and, possibly, to return a recommendation of indictment for any such violation if asked to so consider. There is no explanation, no matter how charitable, that can reconcile this purpose with the publication of that report. The report is little more than a litany of assumption, innuendo, and political agenda and it’s being proffered under the auspices of a judicial system that is supposed to be fair and held above the use as a political bludgeon. As you’ll see in the report, the authors are clearly miffed that their desire to return an indictment on Delgaudio was – they believe – hampered by the small detail that the law doesn’t prohibit Delgaudio from doing anything they found any evidence he did. Witness the expressed reason for the publication of the report as stated in the order entered: (see the report PDF)

“…the issuance of such a report is not precluded by statute;…”, “…and that the Special Grand Jury is desirous of writing and issuing such a report.”

Do I detect a bit of bristled spite, here? They found that any actions they were offended by weren’t precluded by statute so they decided to get vindictive and use that as their own excuse? And how often does this happen, that the Special Grand Jury writes a report detailing their findings when they are unable to come up with sufficient evidence of a crime to actually indict someone? Honestly, I’ve never heard of such a  thing and I would be willing to place a wager that such an event is exceeding rare. Of course, the report’s authors claim that the publication of the report is to “document our findings.” If that were true, then the findings would be what’s in the report. It’s not. The report is an editorialized series of the conclusions of the Grand Jury, not the findings they allegedly used to arrive at those conclusions. There’s a reason for that, of course, and I’ll get to it but let’s just examine the first bit of admission by  these authors that they’re shooting in the dark. From the Exec summary:

While the Jury cannot speak for the CA, we believe that at least one significant reason the Jury was not asked to return an indictment is a result of limitations imposed by the Code of Virginia. This report summarizes evidence that suggests the misuse of public assets may have occurred within Supervisor Delgaudio’s office between Fall 2011 and Spring 2012 and explains why such misuse may not be criminal in this instance. The report further summarizes evidence and testimony of other related and questionable activities, and the report concludes with several recommendations aimed at the Virginia General Assembly, Loudoun County and the voting public.

So, taken right of the top, these authors do not actually know the reasons why they weren’t asked to return indictments. They believe. And what, specifically, do they believe? That they would be able to return an indictment were it not for the fact that the Code of Virginia – the body of laws they were supposed to be using as a measure of whether a crime had been committed – didn’t permit them to. In other words, as mentioned by Senator Dick Black of VA-13, they could have charged Delgaudio if only the law were different. Well, that’s what being a member of a law-abiding society requires: that citizens aren’t charged with crimes against laws that don’t exist! They contend this report “summarizes evidence.” If by “summarizing” you mean that they get to casually mention that such evidence might exist and that it would probably indicate a misuse of public assets occurred without actually documenting the evidence, then sure, this is a summary. The whole phrasing of that sentence drips with accusation and innuendo without offering a shred of reasonable proof. Evidence suggests – but does not actually conclude – that misuse may have occurred. It only may have occurred but we’re gonna tell you why it wasn’t a crime in this case.

The report categorizes the various actions – excuse me, alleged actions – that offended the authors and some of those are so dramatically unsupported that it would be humorous were it not such a blatant abuse of an official judicial function. The section on “Atmosphere of the Office” speaks of a “hostile work environment” and invokes the Board of Supervisors Code of Conduct. The Code might be the guideline for behavior for the BoS but I’ll tell you what it’s not. It’s not the Code of Virginia, which means it’s a set of rules but it most assuredly isn’t the law of the Commonwealth. Why is the Jury even looking into that? It is not up to our judicial system to hold forth on whether or not a citizen is obeying the rules of an organization to which they belong but rather whether they are adhering to the laws of our state.  This section ends with an explicit statement: “However, the Jury found no criminal acts related to this behavior.” If that’s true, then why is it any business of the Jury at all, let alone something they should be using their judicial position to expound upon? It shouldn’t be considered any of their business and if any members of the Jury wish to voice an opinion on the matter, they should write a letter to the editor like any other citizen. Or start a blog, perhaps.

The next section, “Potential Misuse of County Resources” is aptly named. In spite of “suspicions” the witnesses were unable to come up with any “absolute proof of wrongdoing.” Which, of course, is another way of saying there’s no evidence of a crime, here. The report then turns to an analysis of why the Code of Virginia wouldn’t apply, here. Our Supervisors are part-time officers, they are not paid full-time by the County. This, so the report says, means that Delgaudio isn’t governed by the laws addressing the misuse of County resources. This, they say, is the reason no indictment was requested. Now, earlier in the report, they say they can’t speak for CA Stamos, but they believed this was what kept her from asking for an indictment. Are they now repeating the assessment of a member of the CA’s staff or a legitimate lawyer who has researched this law and came to the conclusion they state, or is this just another layman’s opinion on official Virginia judicial letterhead? They don’t say, which makes me suspect it’s the latter and not the former.

The “Potential Unreported Campaign Funds” is little more than a weak joke. If the report is to be taken accurately, then Jury was able to uncover a couple of envelopes with handwriting on them that reference dollar figures. They studiously avoid saying that anyone found any evidence that Supervisor Delgaudio took money he didn’t report. Again, just unsupported suspicions and, frankly, evidence that the Jury is exceptionally bad at framing questions. They raise up the so-called “Herring Law” (and boy doesn’t that look like a breach of the Constitutional “Equal Justice” clause) but, once again, there’s no there, there. In summation of this section:

In the end, while there is some circumstantial evidence that Supervisor Delgaudio collected money for his campaign (or other private use), there is no solid evidence that would be required to pursue criminal charges.

Which, yet again, is another way of saying there no evidence of a crime, here.

The section titled, “Lack of Focus on Constituent Services” is an insulting bit of petulant bleating wherein the Jury inserts itself into the matter of the job performance of a Supervisor, something that should be reasonably considered to be far, far outside of the scope of a Special Grand Jury. It is not up to any member, arm, or organ of the judiciary to consider itself an authority on the job performance of a member of the Board. That falls to the constituents of the Supervisor in question and I would contend that it represents in unconstitutional interference upon the executive branch of our local government that the judicial is attempting to sway the opinions of the voters of a specific district.

The last of these categorizations deals with a so-called “Indistinct Association” between Delgaudio’s Public Advocate organization and the Loudoun BoS. The dark implication being, of course, that Delgaudio is doing something sinister, here, but once again let’s cut to the chase in the report:

While some individuals may be concerned about the degree to which Supervisor Delgaudio permitted these two diverse entities to intermingle, the Jury did not find sufficient evidence that would support criminal charges.

Occam’s Razor holds that the simplest explanation is usually the right one. The simple explanation as to why the Jury kept coming up with “insufficient evidence” to support criminal charges is that nothing was done that was criminal.

Now, you want to discuss activity that should be criminal, how about we start with the abuse of power and position animating the publication of this report? The last section of the report details recommendations made by these faceless, nameless authors to the General Assembly, the Loudoun BoS, and to the voters. They are recommendations advocating the passage or amendment of laws. There’s a word that kind of advocacy: politics. And this is where I believe firmly that this Jury committed gross abuse of their power. In the guise of an arm of our judicial system, they have published what is clearly a political manifesto with the express purposes of passing laws that would have allowed them to level criminal charges at Eugene Delgaudio. Like him or don’t like him, he committed no action prohibited by law and should, like the rest of us, be safe from public accusation by an official organ of the Commonwealth government to which he is unable mount an equal response. I have a recommendation of my own for the General Assembly. A law should be passed completely banning such “reports” being published by a Grand Jury. If they have sufficient evidence to indict, let them indict. If not, the report should say they found insufficient evidence of criminal activity to support an indictment and that none, therefore, will be issued. Period. End of report. Any member of that Jury that wishes to voice his opinion can do so like every other citizen and they can be held responsible in kind.

As to the matter of censure, I’ve already stated that the Board is completely within their rights to enact a code of conduct and to censure members who have violated that code, criminal activity existent or not. The decision of the Board to remove funding from Delgaudio’s office and to remove staff support is a punishment that will fall upon the citizens of the Sterling District, their dismissals of that concern notwithstanding. How can it not? They have deliberately placed the Sterling Supervisor at a disadvantage in terms of available time when compared with other districts. I do not approve of this and I call upon the members of the Board to rescind that part of the censure.

Lastly, there’s an uncomfortable air of a cult of personality, here. I’m not writing in support of Supervisor Delgaudio, here, at least not specifically. I’m writing that this bogus report is an injustice and that people relying on it and on it alone to inform their actions are riding on that injustice to commit additional injustice. But there’s been a cascade of vehement reprisal against anyone who even sounds like they might question some of the things brought up in this case and I really, really can’t abide that, either. I don’t see any saints in this whole endeavor and I caution people to think a little before throwing mud around.

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One comment

  1. And there you have it. Rick I think we agree, let this whole thing be aired out in public. Bring all 31 witness before a public hearing and let’s get down to all the details. We should also see all the supporting documentation. This will be a fascinating exercise. All for the benefit of Eugene. Let’s go, get the GOP BOS, all nine of them, to vote for this public airing of the details. Overturn the censure and let’s hear the whole story. It will be fascinating theater, something Eugene relishes.

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