By Ken Stone
Mayor Brian Maryott of San Juan Capistrano allegedly used personal email for city business, let an aide in his Congress race “control” his mayoral schedule and “leveraged” his old Wells Fargo Bank ties to help a constituent.
The critique of Maryott emails obtained by Times of San Diego was the result of a Dec. 19, 2019, California Public Records Act request by a staffer with the Democratic Congressional Campaign Committee, or DCCC.
It cites the south Orange County city’s Code of Ethics and electronic communications policies, which bar public officials from the “appearance of conflict of interest” and use of “personal accounts for the creation, transmission or storage of electronic communications regarding city business.”
And it calls out Maryott’s former campaign political director – Sherry Hodges — for asking in July 2019 if there was “someone on city staff who can meet with residents on behalf of Mayor Maryott” — seen as her attempt to intervene in city business.
Maryott and his city manager deny wrongdoing, and an ethics expert contacted by Times of San Diego saw no substantive offenses.
“I had a chance to review the document you provided and discuss it with the city attorney,” said City Manager Ben Siegel. “No violations of city policy were identified in the document that warrant further investigation or action by the city.”
Maryott, who also ran for Congress in 2018, rebutted specific allegations but conceded that Hodges had overstepped her bounds on one scheduling email.
“Sherry’s email is the only thing that (legitimately) reflects poorly on us,” he said. “I have always prided myself on great constituent services and I was not pleased when I saw Sherry’s email. I remember it very well. That is why I responded so quickly and firmly. I was very disappointed.”
Not mentioned in the 22-page critique was Maryott’s email response, in which he wrote Hodges and the city’s Matisse Reischl that “anyone requesting a ‘meeting’ with me will hear from me by phone and we will go from there. … I am first and foremost the mayor of my city.”
Maryott, 57, said of the compiled allegations: “They shopped this spaghetti around hoping something would stick — or at least some writer would consider it stick-able.”
No doubt his opponent’s campaign hopes to capitalize on it.
“These appear to be serious conflict of interest allegations, and the abuse of a position of public trust,” said Levin campaign manager Adam Berkowitz. “Residents of San Juan Capistrano deserve to have them fully and independently investigated.”
Perhaps the most serious accusation is that Maryott, who retired as a Wells Fargo regional manager in 2018, unethically exploited his bank connections in an effort to help a nonprofit.
Maryott says he was contacted in April 2019 by Tom Scott and Beverly Blake of El Camino Real Playhouse, what he called the 36,000-population town’s historic nonprofit playhouse.
“They are a treasure in our city — and seemingly always on the brink of financial despair,” Maryott said.
He said Scott was aware that Maryott had retired from Wells Fargo and “thought I might be able to guide him on how to apply for an arts grant that might help our playhouse. I was happy to oblige.”
Maryott performed what he called a “courtesy inquiry for a constituent/acquaintance” and merely informed Scott that he had to visit a local branch and apply online.
“I later learned he was denied and I was disappointed,” he said. “I asked for a copy of the denial letter so I could see what I might learn from it and the process for future reference. I am always interested in helping our nonprofits.”
Beyond his first inquiry about the process, Maryott says he spoke to no one at the bank.
“I fail to see any conflicts or appearance of conflict,” he said. “Mr. Scott has never been a political donor, Wells Fargo has nothing of any consequence at stake in San Juan Capistrano government, and the one conversation I had with a WF employee was with my local banker who I have regular contact with.”
In a recent phone interview from New Hampshire — where she was using a generator to provide power in the aftermath of Hurricane Isaias — Harrington said the Wells Fargo matter didn’t rise to the level of impropriety.
“He did what what he normally would do as a mayor,” she said, assuming he described the case accurately. “If he reached out to another bank, we would not call this an ethical violation and when he called he didn’t ask … for special attention or using the relationship in a special way.”
Regarding the alleged effort by Hodges to “control” the mayor’s schedule, Harrington said that — in the abstract — she was treading a line potentially damaging to the public.
“You can say this is unethical because she was acting in a way that created an appearance of impropriety and created the possibility that she was controlling access to him — and she shouldn’t have had anything to do with that,” Harrington said of Hodges, who moved “back East” in October.
But having read the emails and Maryott’s response, the lawyer/ethicist said it didn’t sound as if Hodges did anything that limited his ability to connect with the public.
“The one email that I thought was disturbing was her saying ‘let’s limit his time with constituents’ and he wrote back immediately, and said, ‘No, Sherry, I don’t want to limit my time with constituents.'”
Harrington saw irony in the accusation about Maryott’s use of personal email to conduct city business.
The reason governments insist on employees using their official email is so the public can access such records.
But like Ivanka Trump and Hillary Clinton, Maryott often combined official emails with personal accounts, Harrington noted.
“So that’s where I’m not seeing a problem — because … it’s not hidden from us,” she said. The public record is thus “transparent.” She struggled to think how this “damages the public.”
But Harrington dings Maryott for being “a little cavalier” about having Hodges handle his schedule.
Though it might have made his life easier to have Hodges coordinate with city staff on meetings, “that was naive to do — because … it could go awry,” she said.
The practice had the potential to cause harm, she said, but she didn’t see a district attorney pursuing charges.
“It didn’t cause harm,” she said a DA would think. “Why would we take action against that?”
The critique also noted emails showing Maryott appeared to miss a deadline to complete state-mandated ethics training.
When asked about that, Maryott said he thinks he is current on all ethics training requirements.
“However, it is likely I missed a deadline on the one referenced in that email,” he said.
It appears no formal complaint has been made against Maryott on the ethics issues.
In any case, Federal Election Commission spokesman Christian Hilland said: “A federal statutory provision requires confidentiality on enforcement cases that are before the agency. For this reason, we do not comment on open matters or on those that have the potential to reach the agency in an enforcement capacity.”
Government ethics consultant Mark L. Davies, an adjunct professor at Fordham University School of Law, said he had no idea whether San Juan Capistrano laws had been broken.
But he set out some general principles:
- No ethics law prohibits “outside influence” on a public servant. “High level public servants should be subject to outside influences, especially constituents,” Davies said. “That’s their job: to listen to various, often competing interests, and respond.”
- “Appearance of impropriety is a useless and misleading standard in any ethics law because it doesn’t mean anything unless it is spelled out by a list of specific prohibitions,” he said.
- And he cited a common prohibition on using government resources — equipment, supplies, personnel — for a nongovernmental purpose, including for a political purpose. But “use of personal resources for government purposes (including personal email) is not an ethics violation although it may violate freedom of information laws, IT restrictions, etc.,” he said.
Stanford graduate Harrington of the Markkula Center says the Wells Fargo issue looked ominous at first glance.
“When I read that [in the 22-page report], I was like: Holy cow. You can’t do that. You worked there, so he reached in [and did a] special favor for one nonprofit. … [But] when I read [Maryott’s] response, I thought: Oh, wait, they have really overplayed this.”
Still, she has no problem with oppo research involving public records.
“You need people looking,” Harrington said. “It’s a little too charged right now in America. But it’s not a bad thing to have people inquiring about the ethics and the behavior of political officials.”
But Harrington wanter to know whether Maryott had ceased use of personal email for city purposes. And she also was curious whether a campaign aide was still involved in scheduling mayoral duties.
So Times of San Diego last Wednesday asked Maryott and City Manager Siegel those questions.
On Tuesday, Maryott responded: “After Sherry left the campaign, I never had another campaign staffer involved in prioritizing or handling inquiries on city responsibilities. It is also my sense that for about a year now, having had some time to get accustomed to the new policy, all of our city staff, myself and most likely (I say ‘most likely’ because I am speculating a bit) my colleagues have been diligent about not using personal email for city business.”
Updated at 5:10 p.m. Aug. 11, 2020
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