After the deadliest and most destructive four-year stretch of wildfires in modern California history, Gov. Gavin Newsom took office in January determined to escalate state efforts to limit fire threats and to adopt safer building and fire maintenance practices. Within days, he promised $305 million in additional funding and tasked the state Department of Forestry and Fire Protection, known as Cal Fire, with identifying the populated areas most at risk and in need of state attention.

Cal Fire responded in March with a 28-page report that identified 35 priority sites. Many were in Northern California in elevated, forested areas. Several were part of the Bay Area, including in Orinda and Woodside. The agency has already begun work on removing flammable brush, building fire breaks to slow the spread of blazes and improving escape routes.

“California needs an all-of-the-above approach,” declared Cal Fire Director Thom Porter.

But Cal Fire officials also told the San Francisco Chronicle that while the additional resources the state was providing were welcome, they still weren’t enough given the fire risks that California faced. Citing the “massive backlog of forest management work,” Cal Fire said a long-term commitment was crucial.

Cal Fire far short of 33 percent home inspection goal

Three months later, a new report has underscored Cal Fire’s warning of the inadequacy of state efforts at a time in which as many as 3 million homes in the Golden State are in areas with elevated fire risks. KQED, the Northern California Public Broadcasting Service news agency, reports that Cal Fire isn’t coming close to meeting its goals of helping homeowners build “defensible spaces” around their structures that limit fire risks. The report found that Cal Fire did far worse in helping homeowners in unincorporated areas at high risk in Northern and Central California than local governments did helping homeowners in Southern California.

Lake County in the state’s Wine Country was devastated by 2018’s Mendocino Complex blaze, which scorched a record 459,000 acres. Lake County officials say 45 percent of its land was burned. But Cal Fire said it was only able to inspect 12 percent of homes last year in Lake, Sonoma and Napa Counties to ensure that flammable brush and other materials were removed. The agency’s goal is 33 percent.

Hundreds of miles to the southeast in the Sierra Nevada region – home to tens of millions of dead and very flammable trees – Cal Fire was able to inspect only 6 percent of homes in 2018.

Cal Fire officials have said with fire season lasting 50 days longer or more than it used to in the Golden State, they have no choice but to prioritize their limited resources by placing fighting active wildfires ahead of fire safety efforts.

But the agency is trying to do more to promote defensible space. It has hired six fire crews this year and plans to add four more by summer 2020 which focus only on reducing flammable vegetation and waste.

Newsom has already declared fire emergency

For his part, Newsom on March 22 took a step that would have seemed bizarre in past decades. Though no serious fires were then reported in California, he declared an ongoing formal state of emergency over wildfire risks.

California’s perilous experiences with massive wildfires reached an all-time peak in 2017, as the state suffered through its worst blaze in recorded history – the Thomas Fire – and five of its 17 worst fires ever. State officials estimated that about 9,000 wildfires from northern San Diego County to the Oregon border killed at least 46 people and burned about 11,000 structures.

With drought conditions returning in much of the state – and with millions of dead trees in forests ready to serve as an accelerant for new wildfires – 2018 is shaping up as another deadly, dangerous year for the Golden State. But it’s also shaping up as another year of constant second-guessing over state and federal efforts that critics say focus too much on fire suppression instead of fire prevention.

Cal Fire and the U.S. Forest Service – responsible for dealing with fires in more than half of California’s total land mass – have historically devoted more of their resources to being able to mobilize quickly to respond to fires than to acting beforehand to limit the likelihood, scope and intensity of the blazes. This is driven, critics say, by the antipathy of environmentalists to forest thinning efforts by logging companies, and by the perception that suppression is a more glamorous and eye-catching approach than encouraging property owners to clear dead trees and brush and to maintain defensible spaces around structures.

Cal Fire officials say they are aware of the value of forest thinning – including using “controlled burns” – and have long encouraged property owners to protect themselves by removing potential fire fuel.

But fire ecology experts say the current approach in the Golden State isn’t up to the challenge posed by years of dry, hot conditions in the 21st century with little if any historical precedent in the modern era.

“We will need some very new approaches to deal with both the increasing hazard of fire and our increasing exposure to it,” Max Moritz, a professor at UC Berkeley’s College of Natural Resources, told The San Diego Union-Tribune last year. “The situation we have created is dangerous, and without a major shift in perspective it will only get worse.”

Has state’s official fire strategy been ignored?

But there isn’t just a gap between what experts say should be done and how state and national fire agencies use their resources. With Cal Fire, an argument can be made that there has been a lack of follow-through on a key internal mission statement.

In 2010, the state Board of Forestry and Fire Protection approved a new Strategic Fire Plan for California that the Office of the State Fire Marshal’s website billed as reflecting significant new changes from the previous plan put forth in 1995. It embraced a basic approach that put a heavy emphasis on prevention.

“The California Fire Plan is the state’s road map for reducing the risk of wildfire. The Fire Plan is a cooperative effort between the State Board of Forestry and Fire Protection and the California Department of Forestry and Fire Protection,” the website explained. “By placing the emphasis on what needs to be done long before a fire starts, the Fire Plan looks to reduce fire fighting costs and property losses, increase firefighter safety and to contribute to ecosystem health.”

The intent of the plan was on display in successful efforts to persuade the state Legislature in 2011 to enact a $117 fee assessed on more than 800,000 rural property owners to pay for fire prevention efforts. State fire officials depicted the fee as crucial to efforts to minimize blazes on nearly 23 million acres of state land deemed to be in high fire risk regions.

But in October 2015 – after a series of destructive wildfires in Northern California – the Sacramento Bee reported that state officials had sat on $43 million in unspent funds generated by the fee despite warnings going into that fall fire season of extreme risks in many rural areas.

State officials said they were being prudent. But the Bee compared the fire prevention special fund with other designated state accounts and found it had set aside about more than half of annual receipts, more than double the average of 25 percent in other similar specialized funds.

The fire prevention fee was suspended by the Legislature last summer at the behest of a handful of Republican lawmakers who voted with Democrats to extend the state’s cap-and-trade program. Going forward, revenue from cap-and-trade auctions is supposed to fund fire prevention efforts on state lands previously funded by the fee.

“In October 2003, the Cedar Fire … broke out in the Cleveland National Forest, started accidentally by a lost hunter trying to signal rescuers. It burned more than 2,800 structures and caused 15 deaths, almost entirely in East County. …

“In October 2007, the Witch-Creek fire broke out east of Ramona, triggered by a power line buffeted by Santa Anas. Before it was contained, the blaze destroyed more than 1,650 structures — with more than 300 in Rancho Bernardo, within San Diego city limits. Ten people were killed in the Witch-Creek blaze and other county wildfires that fall.”

Local, state, military and federal officials have been preparing for the next California fire apocalypse ever since. U.S Interior Secretary Sally Jewell even came to San Diego County last week to talk about wildfire preparedness and tout what the feds have done to help out, prompted by the state’s extreme drought.

Confidence in the face of chaos

What are these officials saying? There’s lots of grousing about homeowners who haven’t done enough to reduce fire risk by clearing their property of flammables. But by and large, they say they’ve been gearing up for years to prevent encores of 2003 and 2007, and that they think they’re up to the task. They cite additional personnel, big upgrades in technology and equipment, and a healthy emphasis on interagency cooperation.

This official confidence was evident in San Diego County on Wednesday even after a wild day in which at least seven separate wildfires brought out:

“[Officials] stressed that far more resources — both firefighters and equipment — were available than in 2003 and 2007, and that agencies were working well together.

“’This region is the best-prepared it’s ever been,’ said Dianne Jacob, the chairwoman of the county Board of Supervisors.

“’We’ve come a long way in the last 11 years,’ said county Sheriff Bill Gore.”

We shall see. In San Diego, the specter of multiple out-of-control wildfires is so scary that it’s tough to think from a broader perspective. But when you do think from that broader perspective, you start with the fact that there are only a few responsibilities that just about everybody thinks government should do and do well. The most obvious is public safety.

This year in parched California, millions of people with reason to worry about their safety have to hope that the local, state and federal governments rise to the challenge.

]]> https://calwatchdog.com/2014/05/15/ca-2014-fire-season-a-test-of-government-competence/feed/ 16 63651 https://calwatchdog.com/2014/02/19/judge-blasts-corrupt-cal-fire-in-wildfire-lawsuit/ https://calwatchdog.com/2014/02/19/judge-blasts-corrupt-cal-fire-in-wildfire-lawsuit/#comments Wed, 19 Feb 2014 19:41:20 +0000 http://calwatchdog.com/?p=59525  

Superior Court Judge Leslie Nichols this month ruled that the California Department of Forestry and Fire Protection repeatedly deceived and withheld evidence in a lawsuit seeking $8.1 million from a company and several landowners for a wildfire that the company did not cause. The judge further found that $400,000 of that money was slated for an illegal Cal Fire slush fund. Cal Fire was represented by Attorney General Kamala Harris’ office.

Specifically, Nichols ruled: 

“This Court finds that Cal Fire has engaged in misconduct during the course of the litigation that is deliberate, that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial.”

He cited “many acts of evasion, misdirection, and other wrongful acts and omissions,” including withholding thousands of pages of evidence. Because of that, Nichols’ ruling requires Cal Fire to reimburse the defendants’ court costs, plus a punitive 20 percent additional compensation. The award totals $32 million, with $24 million going to Sierra Pacific Industries and the remainder to the landowners and a logging company.

“This is a significant victory for SPI and the other defendants in the case” said SPI spokesman Mark Pawlicki in a statement. “Although the vast majority of Cal Fire employees conduct themselves with professional integrity, the investigators on this fire did not live up to that high standard.”

SPI’s lead attorney William Warne said, “After four years of litigation, we are relieved and thankful that justice has finally been done.”

But Cal Fire remains defiant. Spokeswoman Janet Upton told Law360, “We vigorously dispute many of the factual and legal findings included in this order,” adding that there may be an appeal. The attorney general’s office did not respond to requests by Law360 or the Sacramento Bee for comment.

Moonlight Fire

The litigation stemmed from the Moonlight Fire, which ignited on Labor Day 2007 in Lassen County, burning 65,000 acres over the next two weeks. Federal and state officials blamed the fire on a bulldozer for an SPI-contracted logging company hitting a rock and causing sparks on a red-flag, high-fire-danger day.

SPI settled the federal case for $47 million and 22,500 acres of land, according to Fordaq, a timber network news site. But the company, which owns nearly 1.9 million acres of timberland in California and Washington state, making it the second largest lumber producer in the country, fought the Cal Fire suit.

Much of the case focused on the investigation of the origin of the fire. Investigators Joshua White and Dave Reynolds located the origin of the fire at two points on or near a trail, placing white flags to mark the spots and taking photos. But that location apparently didn’t fit the bulldozer scenario, so Cal Fire sought to cover up the initial investigation.

Under oath, White denied placing white flags at those points and denied taking photos of them, according to the judge’s sanctions order. But five photos — not included in the official investigation report — were discovered showing the flags. White then admitted taking the photos, but initially denied that they showed a white flag, instead saying it “looked like a chipped rock.”

Reynolds also denied having anything to do with the white flags before eventually acknowledging them. In contrast with that sworn testimony, however, in an earlier meeting with Cal Fire’s lead attorney at the U.S. attorney’s office, Reynolds said he could see the white flags in the photos. Despite that contradiction, the attorneys allowed Reynolds to falsely testify about it in court, according to the ruling.

Wrote Nichols:

“This Court is deeply troubled by two things on this front: that one of the primary Moonlight investigators would admit one thing to a table of ‘friends’ and then refuse to admit the same thing once put under oath. The Court is perhaps even more troubled that Cal Fire’s lead counsel would be present at the meeting with Reynolds and still sit idly by as Reynolds, a person Cal Fire hired as a consultant, denied in his deposition what he had conceded in Cal Fire’s counsel’s presence several weeks earlier.”

Litigation

That kind of judicial misconduct and obfuscation turned what would have been a simple matter of throwing Cal Fire’s unfounded case out of court into a four-year litigation nightmare for the defendants.

Nichols wrote:

“The fact that Defendants’ counsel were forced to depose these investigators under conditions where the investigators continually attempted to steamroll the truth by simply denying or expressing ignorance of the obvious greatly increased the expense of this litigation. Had they testified truthfully from the start, as required, Defendants would have likely spent nothing, or very little, as the case most likely could not have advanced.

“Unfortunately, Cal Fire’s lead counsel, officers of this Court, who should be ‘operating under a heightened standard of neutrality,’ greatly exacerbated the problem by failing to intercede and put a stop to what their witnesses were doing under oath. Doing nothing, permitting such testimony to take place, creates a tremendous burden on this Court by allowing a meritless matter to go forward when the lead attorneys in charge of its prosecution should be exercising their responsibility throughout to only advance just actions.”

The unethical conduct by Kamala Harris’ staff attorneys, Tracy Winsor and Daniel Fuchs, was unprecedented, according to Nichols. He wrote:

“The sense of disappointment and distress conveyed by the Court is so palpable, because it recalls no instance in experience over 47 years as an advocate and as a judge in which the conduct of the Attorney General so thoroughly departed from the high standard it represents and, in every other instance, has exemplified.”

No sanction

Consequently, the defendants asked Nichols to sanction Winsor and Fuchs.

But Nichols declined to do so, saying:

“[T]he record does not clearly establish that said attorneys directed or advised the egregious and reprehensible conduct of California Department of Forestry and Fire Protection. Although there is plenty of evidence to support a strong suspicion, the evidence does not preponderate. This determination in no way speaks to issues of legal ethics or compliance with the requirements of the State Bar Act….”

The judge also criticized Cal Fire’s withholding of 7,000 pages of evidence (with potentially 40,000 more pages still being withheld) that concerned Cal Fire’s Wildland Fire and Investigation Training and Equipment Fund. “Cal Fire persistently attempted to cover up” the “illegal” fund, he ruled. That slush fund was also the focus of a critical state audit last year.

Cal Fire’s documentation on the fund was relevant because the agency was demanding that the defendants pay $400,000 into it. The court ordered Cal Fire to produce all of its documents on the fund by April 30, 2013. But after the audit was released in October, Sierra Pacific saw that a critical email referenced in the audit about the fund’s formation had been withheld by Cal Fire.

Cal Fire then admitted that it had “inadvertently” failed to produce that document along with more than 5,000 additional pages on the fund. After providing those documents on Oct. 31, 2013, Cal Fire’s lawyers assured the judge that that was “everything.” But on Nov. 22, Cal Fire produced more than 2,000 additional pages.

A number of those documents “reveal information that is inconsistent with the testimony of Cal Fire’s witnesses and with Cal Fire’s representations to this Court regarding Cal Fire’s own understandings regarding WiFITER and whether it was legal,” Nichols wrote. He called Cal Fire’s failure to produce the documents in time for them to be used in cross-examination during depositions “inexcusable.”

Bias

Some of the belatedly released documents support the defendants’ contention that Cal Fire officials had a bias toward affixing the blame for the fire on a company with deep pockets like SPI. They “were fixated on the cash flowing in and out of the illegal WiFITER account,” the ruling states. One email revealed that a Cal Fire official, Alan Carlson, “was seeking out ‘high % recoveries’ to keep WiFITER from ‘being in the red.’”

Other officials were worried about calling too much attention to the slush fund, because by law all of the money should have been deposited into the state’s General Fund.

Carlson “was rebuffed by his supervisor because Cal Fire’s general counsel had informed him that ‘the point is to keep a low profile,’ and if they take too large ‘a cut off the top of a recovery’ it might ‘look fishy,’” the ruling states, citing Cal Fire emails. The judge concluded, “This is the essence of scienter [knowledge of wrongdoing], and it certainly reveals that Cal Fire knew that its actions were improper, a fact which Cal Fire and its counsel failed to reveal ….”

Nichols summed up his assessment of Cal Fire and its lawyers’ conduct in the litigation, writing:

“The Court finds that Cal Fire’s actions initiating, maintaining, and prosecuting this action, to the present time, is corrupt and tainted. Cal Fire failed to comply with discovery obligations, and its repeated failure was willful. … Cal Fire’s conduct reeked of bad faith.”

Other highlights from the new audit of Cal Fire by the Office of State Audits and Evaluations of the Department of Finance:

* Cal Fire “did not have specific statutory authority to establish the Fund and did not request or obtain Finance authorization to establish this account outside” the Centralized Treasury system.

* Of the $3.66 million collected in the slush fund, “$2.4 million was expended.”

* Cal Fire’s “decentralized process for the Civil Cost Recovery Program increases the risk of lost or stolen goods.”

* Established state procurement and inventory processes were not followed”; and neither the California District Attorneys Association nor Cal Fire claims “ownership of $1.7 million of equipment and software items purchased with the fund.”

Slush funds are becoming a trend in state government. The Cal Fire audit was published a little more than a year after the discovery of the $54 million State Parks hidden fund last year. In that scandal, the State Parks Department claimed budget cutbacks justified increases in park entrance fees and monetary help from volunteer groups.

Uncovering the dirt

Cal Fire has the authority under the California Health and Safety Code to recover costs for fighting fires and providing rescue or emergency medical services — despite the fees and taxes, and the new fire tax California residents already pay. This money was supposed to be deposited in the state’s general fund.

“Cal Fire Director Ken Pimlott told The Bee he never knew the $3.66 million fund was cloaked from state leaders and the Department of Finance,” the Sacramento Bee reported in January. “Cal Fire froze the account last year and scheduled it for dissolution in February at the request of the prosecutors’ group.”

When news of fund first were reported, Pimlott claimed media coverage was “incomplete and sensational, and over time, truth would prevail,” the Los Angeles Times reported in January. He even went out on a limb and said those who attacked the fund would have their motives exposed.

The new state audit contradicts his earlier statements.

Pimlott now claims that Cal Fire officials believed they had the authority to set up the fund account. But according to the Times story, documents from 2008 show Cal Fire officials were aware of problems with the fund and were concerned that, if the fund were discovered, the Department of Finance would demand that Cal Fire place the money with the state treasury.

When the Department of Finance auditor asked for the legal reasoning for establishing the off-the-books fund, Cal Fire officials referred the question to the office of Attorney General Kamala Harris. However, the Attorney General’s office legally represents Cal Fire.

The Audit

The Department of Finance audit also condemned Cal Fire’s failure to even track the settlement monies. According to the audit, managers of the Cal Fire program did not even know how many settlement cases were involved, nor did they know how much money the agency received from the settlements. Auditors concluded that there was a heightened “risk of money being either lost, stolen or both.”

“A California fire account hidden from state lawmakers paid for $22,000 in metal detectors, $30,000 in GPS units — and $33,000 for a conference at a Pismo Beach resort, according to a spreadsheet released Tuesday showing expenses dating back to 2011,” the Bee reported.

The $3.6 million dollars in the Cal Fire fund was spent as follows:

* $766,000 for training;

* Nearly $374,000 to the District Attorneys Association in management fees;

* $1.7 million on equipment for which, as noted above, no inventory was kept.

Sen. Ted Gaines, R-Rocklin, called for an investigation last January into the state officials behind the slush fund account, but his request fell on deaf ears.

By Dave Roberts

The $89 million annual fire prevention fee imposed on rural Californians for the first time last year could, ironically, increase the chance that their houses will burn down in the event of a fire. The $135-$150 per home annual assessment, which critics believe is a tax, is having the perverse effect of making it more difficult for local fire districts to increase revenue in order to provide adequate fire protection.

That’s what has happened in the Placer Hills Fire Protection District, which covers 35 square miles in rural Placer County in the Auburn area. Ten years ago, the district placed a tax hike on the ballot, which passed easily with 73 percent of the vote. But when the district went back to the voters last November seeking an additional $83 per home annually to keep both of its fire stations open, it garnered only 53 percent of the vote, well short of the two-thirds needed to pass.

The voters who rejected it gave two reasons: 1) They had already paid $135 to the California Department of Forestry and Fire Protection, not realizing that Cal Fire is a separate entity from the Placer Hills fire department and that it’s possible that none of that money would directly result in increased safety for their home. 2) They felt they couldn’t afford to pay the total of $218 for two fire tax hikes in the same year.

That was the bad news from Placer Hills Fire Chief Ian Gow, speaking to the Senate Natural Resources and Water Committee on Tuesday in support of SB 17 by Sen. Ted Gaines, R-Rocklin, which seeks to repeal the fire fee.

Fire fee ‘decimates’ local protection

“All of us [California fire districts] are struggling financially,” said Gow. “That’s not a secret. My department has lost 12 to 15 percent of its budget over the last five years. That equates to two full-time fire positions. I only staff two fire stations. The likelihood of closing a station is very high. The problem there is that it could double our response times. As you may imagine, for fire departments the quicker we can get there is everything. If I have to close a station due to budget losses, I’m in deep trouble and my constituents are. So the inadvertent effect of this fire fee is to decimate local government’s ability to protect itself.

“The other two problems with the fee is that it doesn’t improve fire protection at all in my fire district. It does nothing to help us. Our citizens see it as double taxation. And, frankly, maybe a smaller effect, but I think it damages all of our reputations. It looks like we don’t know what we are doing from my level, with respect, up to yours. So we have real problems with this fee and we’d love to see it go away.”

Despite Gow’s testimony, SB 17 failed, gaining only three aye votes from the nine-member committee.

“I am extremely disappointed that the committee failed to pass this bill,” said Gaines in a press release. “It was an opportunity to make things right with the 825,000 Californians stuck paying the illegal tax. I would like to thank all of the constituents who came from across the state to testify in support of the bill. Their messages and testimony were impactful and made a difference. I vow to continue fighting this in every way possible and encourage those who have gotten stuck paying this phony fee to get in the arena and fight it too.”

The California Fire Chiefs Association has endorsed SB 17. Also on hand to support SB 17 were a half-dozen fire chiefs and officials from Camp Pendleton, Laytonville, Vacaville, and San Diego and Sacramento counties, along with scores of taxpayers wearing t-shirts with the slogan “Burned by the Fire Tax!”

The Howard Jarvis Taxpayers Association has filed a lawsuit seeking to overturn the fire assessment. HJTA representative David Wolfe told the committee that the fee is actually a tax because it does not provide a direct benefit to those paying it. If the court decides it is in fact a tax, then it would have required two-thirds to pass in the Legislature, which the enabling legislation, AB X1 29, did not receive due to strong Republican opposition.

Desert, condo examples show unfairness of tax

“We believe it can’t possibly be a legitimate fee because there is no direct benefit,” said Wolfe. “Just a couple of examples of plaintiffs in our lawsuit. There’s one individual who lives in a mobile home park in the middle of the desert with no landscaping around the mobile home park. And yet he has to pay the tax. There’s another individual, a property owner who lives next door to a casino. The homeowner has to pay the tax, but the casino does not. How is that fair?”

Also decrying the unfairness of the fee was Skip Daum, representing the Community Associations Institute, which represents homeowners associations throughout the state. He said that condominium owners are being hit with the $150 fee (the $135 fee is for those who are also paying a local fire tax), but that fee is only supposed to be assessed against the owner of a habitable structure.

“Condominium owners only own the air space inside the wallpaper, they don’t own the structure,” said Daum. “The homeowners association owns that structure.”

Condo owners are among the 87,000 property owners who have filed appeals of the fire assessment since it went into effect last August. Most of the appeals are based on the contention that it is an illegal tax. Those appeals are being automatically rejected, according to a Cal Fire spokesman.

The illegality of the tax is also Gaines’ main justification for repealing the assessment.

“If it’s illegal, we shouldn’t be collecting it,” he told the committee. “That will be sorted out in the courts. All of us as taxpayers pay state taxes for Cal Fire. It has always been their responsibility in these state responsibility areas to pick up that obligation. Now if you have got communities that are stepping forward and wanting to pay for their own fire departments, we have put a huge damper on that opportunity now because people are paying a [Cal Fire] tax.”

Where are the benefits?

Gaines’ other justification for SB 17 is that rural residents are not seeing the benefits for their money.

“We’ve had no evidence that there’s been any increase in manpower or fire engines from Cal Fire,” he said. “The discussion and debate we are having would be very different if this was a fee and we knew exactly what we would be getting for the fee. It might be defensible. Clearly we need more manpower and equipment around Lake Tahoe. I’m very concerned about that. We are having another dry year. If we were clear on what we are getting for that fee, we might not be here. We would be having a different discussion on whether it was worthy or not. I have supported fees historically in this body.”

According to AB X1 29 and regulations adopted by the Cal Fire board, the fee will fund a variety of fire prevention services, including defensible space inspections around structures, fuel breaks for staging firefighting equipment, brush clearance around communities and improving forest health to improve resiliency to wildfires.

But, as previously reported by CalWatchdog.com, the funds can pretty much be used for any projects or activities that the board labels “fire prevention.” That leaves open the possibility of the money being abused, as occurred with a $3.66 million slush fund that the Los Angeles Times revealed earlier this year to Cal Fire’s embarrassment.

Cal Fire did not send a representative to the committee meeting to defend the fee or explain how it is spending the $73 million that has come in so far.

That concerned Sen. Hannah-Beth Jackson, D-Santa Barbara, who told Gaines, “You have raised some concerns, and I do think they need to be addressed. [There] are very legitimate questions and concerns that people have about how they are conducting and using these funds.”

But Jackson voted against SB 17, arguing that it’s premature to legislate the issue before the court has ruled on the legitimacy of the fire assessment. She’s also concerned about leaving Cal Fire short of funds to provide adequate fire suppression.

“I come from a district that tends to burn down pretty regularly, Santa Barbara, Ventura counties,” she said. “I’ve been evacuated [from my home] twice in the last six to eight years. Obviously this [fee] has some serious problems. People are paying all this money and not understanding what the tax is. I’m not sure I do either. But … how are we going to keep funding the services we so desperately need, clearing defensible space and making sure we are doing everything in advance of a fire to make sure we don’t have fires, or at least their impact is minimized?”

Her concerns were shared by several other senators, leading to the bill’s defeat.

Other legislation targets fire assessment

But two other bills seeking to kill the fire prevention assessment are due to be heard in committees this legislative session: AB 23 and AB 124. In addition, Gaines has two other bills limiting the assessment. SB 147 would exempt certain low-income residents from having to pay the assessment. SB 125 would exempt property owners who are also paying for local fire services, which includes more than 95 percent of the fee payers.

And AB 468 by Assemblyman Wesley Chesbro, D-North Coast, would replace the fire fee with a 4.8 percent surcharge on all property insurance in California that would be used by Cal Fire, the California Emergency Management Agency and the California Military Department.

By Dave Roberts

It hasn’t been a great year for the California Department of Forestry and Fire Protection. In January, the Los Angeles Times revealed that for seven years Cal Fire has been hoarding a slush fund that grew to $3.66 million. In February, the Sacramento Bee reported that Cal Fire fees that were supposed to be used for fire prevention measures had instead been used to investigate wildfires, according to the legislative counsel.

And earlier this month, the Howard Jarvis Taxpayers Association served Cal Fire and the state Board of Equalization with a lawsuit seeking to nullify Cal Fire’s $150 annual fee (or tax) on homeowners in mostly rural California for fire prevention. In addition, three bills have been introduced by Republicans in the Legislature seeking to do likewise.

The slush fund was a major black eye for Cal Fire. Instead of following the law by depositing money from legal settlements into the state General Fund, fire officials put it into the care of the California District Attorneys Association. In addition to paying CDAA a fee to hold the money, fire officials spent it on digital cameras, evidence sheds, GPS equipment, metal detectors and a conference at a Pismo Beach resort, among other expenditures.

Cal Fire faces bipartisan fire over slush fund

Coming on the heels of the revelation of the state Department of Parks and Recreation’s secret $54 million slush fund, Cal Fire was pilloried on editorial pages up and down the state:

— “Once again, California residents have been asked to pay higher taxes to help revenue-challenged state agencies fund important services — only to learn that those agencies had hidden large sums of money in secret accounts to keep it away from public scrutiny,” editorialized the Orange County Register.

— “Its arrogance underscores the larger issue: The money doesn’t belong to some bureaucrat with a badge. It belongs to the people,” lectured the Sacramento Bee.

Gov. Jerry Brown was quoted in the Bee calling the slush fund “a relatively boring story, to tell you the truth.” But the governor added that he would look into it. Senate Republican Leader Bob Huff, R-Diamond Bar, responded that “’boring’ is the last word I would use to describe these very disturbing revelations of hidden funds.”

Cal Fire spokesman Dennis Mathisen said in an interview that there was no effort to conceal the fund.

“The reality is that the fund had been publicly known,” he said. “We initiated our own audit of the fund a few years ago. The audit tried to determine the appropriate way of administering the fund. We are going through the process of re-evaluating it and determining the correct method of administering the fund.”

Scathing audit was three years old

Apparently that re-evaluation process has been going on for more than three years. The 26-page audit report, which was issued in November 2009, contains numerous criticisms of the way Cal Fire was handling the money:

— The funds collected from legal settlements were not reported to the Cal Fire Departmental Accounting Office or the Law Enforcement Program, and did not become part of the state’s accounting system.

— The money was dubbed a “Fire Investigation Trust Fund” — but was never placed in a trust account — in order to ensure it wouldn’t go into the state’s General Fund. “It is not clear what authority Cal Fire has to separate the Fund money from State money,” the audit states.

— There was no documentation of how the fund committee made its decisions on spending the money.

— State purchasing guidelines were not followed for hundreds of thousands of dollars spent on equipment.

— Travel expenses for training conferences were improperly documented, including numerous overcharges for lodging and unapproved travel to conferences in other states.

Slush fund depicted in benign light

Mathisen defended the expenditures, saying, “The sole purpose of that fund is to help support fire investigation-related things such as equipment and training. That involves Cal Fire investigators, local agency investigators, district attorneys.” The Pismo Beach conference focused on fire investigation training, he said, adding that “the hotel charged the typical government rate, which is lower than the standard rate.”

Mathisen also disputed the Bee’s report that fire prevention fees were not supposed to be spent on wildfire investigations.

“One of the fire prevention activities that’s mentioned in the law, it’s very clear that it includes the activities involved in fire investigations,” he said. “We look at the act of investigating fires and determining the cause, whether negligence or a crime such as arson. [If arson is suspected] we go through case development and district attorneys to prosecute. In the case of accidents, [investigation] helps us educate the public on how to prevent those things from happening in the future.”

The enabling legislation for the fire prevention fee, ABX1 29, does not specifically cite wildfire investigation as one of the uses for the funds. Money can be spent on public education, fire prevention projects and activities as well as fire severity and hazard mapping.

But there is no definition for what constitutes a “fire prevention project.” The legislation leaves it up to the Cal Fire board to determine that. In essence, the fire prevention fee, which was projected to total as much as $89 million annually, is potentially another slush fund for Cal Fire officials to use as they see fit as long as they can call it a fire prevention project or activity.

The goals of the Howard Jarvis lawsuit

And that’s what concerns the HJTA, which filed its class-action suit in Superior Court in Sacramento in October.

“This tax was dreamed up by politicians in Sacramento who are so desperate for revenue that they were willing to ram this through the Legislature without the proper two-thirds vote,” said HJTA President Jon Coupal in a press release. “The fire tax is a direct violation of Prop. 13. It is our goal to overturn this tax, prevent the politicians from taking more money from hardworking people for a program they were already paying for, and help taxpayers to get a refund from the government.”

The suit argues that the fire prevention assessment does not fall under the state constitutional definition of a “fee.” Therefore, it’s a tax requiring two-thirds approval in the Legislature, which it did not receive due to strong Republican opposition.

Article 13 A, section 3, subdivision (b) of the California Constitution defines a tax as “any levy, charge, or exaction of any kind imposed by the state” unless it’s imposed for a specific benefit, privilege, service or product provided directly to the payer that is not provided to those not charged, and which does not exceed the reasonable costs to the state of providing the benefit, privilege, service or product.

It’s likely that state attorneys will argue that fire prevention fits the definition of a fee instead of a tax, because it’s: 1) a specific service provided directly to people living in the mostly rural 31 million acres of California that are in Cal Fire’s State Responsibility Area, 2) that it is not provided to people outside of that area who are not charged a fee, and 3) it does not exceed the cost of providing that service.

A version of that argument was made by the author of ABX1 29, Assemblyman Bob Blumenfield, D-Los Angeles, on the Assembly floor just before the bill was approved on June 15, 2011.

“This approach has long been supported by the LAO [Legislative Analyst’s Office],” he said. “It reduces the financial exposure of the state to fight fires in the State Responsibility Areas, especially at a time when local governments continue to approve developments that increase fire risk. … We worked very closely when the Senate sent this over with leg[islative] counsel. And the key distinction here [making this a fee instead of a tax] is that it deals with prevention rather than protection. And so it’s not replacing existing services. But there’s a direct nexus. And that’s why this is an acceptable bill.”

Prediction of fire tax’s demise

Blumenfield was responding to then-Assemblyman Kevin Jeffries, R-Lake Elsinore, who predicted the fire assessment would soon be doused.

“We’ve seen this bill before,” he said. “At least I have over previous terms here. A funny thing happened: it failed in previous versions. When it was a $50 tax — you can call it a fee — but when it was a $50 tax it required a two-thirds vote. Now that it has moved to a $150 tax, somehow it’s been changed to a majority vote. I’m wondering if the leg[islative] counsel has issued a new opinion reversing their previous opinions that said this was a tax. It clearly violates Proposition 26 [requiring two-thirds support for tax hikes], and will last maybe a week at best until any number of interest groups, property rights proponents, any group out there who just happens to have a spare moment, and this bill will be dead. This tax will die a fast, quick death.”

Despite Jeffries’ assurance, the assessment is very much alive and well nearly two years later. The first billing for about 750,000 habitable structures was sent out from August through mid-December last year (in alphabetical order by county). A little over $73 million has been collected so far.

That’s short of the estimated revenue because 20 percent of respondents have declined to mail back their payments. More than 87,000 have filed an appeal. About 71 percent of the appeals, which were based on the fee being an illegally passed tax, were denied, according to Mathisen. More than 12,000 appeals were granted, however, as those assessments were based on misinformation from incorrect records.

“When this law was created there was no database in existence that identified all habitable structures in the SRA,” said Mathisen. “That was a significant task to put together that database. So we knew that there were going to be some inaccuracies. We are making those corrections as we move along.”

Fighting fire tax: The big picture and at individual level

The second round of billing for the current fiscal year was due to start in April. But it will be delayed, according to the Associated Press, to allow more time to sort through the thousands of complaints stemming from the initial billing.

In the meantime, three bills seeking to kill the fire prevention assessment are due to be heard in committees this legislative session: AB 23, AB 124 and SB 17. Click here for more information on the assessment from Cal Fire’s perspective. For the HJTA’s take, including instructions on filing an appeal, click here.

By Chris Reed

Sacramento is still buzzing over a bizarre and obnoxious scandal in which state parks officials hid $54 million while pressing to close 70 parks, and along comes another scandal in which Cal Fire hides millions of dollars while successfully pushing for a new fire-protection “fee,” and what does Gov. Jerry Brown do?

Put the scoop down. “I find it a relatively boring story, to tell you the truth,” Brown told reporters Tuesday.

Brown has been described as brilliant, eccentric,  unique, worldly, weird, etc. But here’s what he’s been since winning passage of Prop. 30 in November: as arrogant as any California politician in a long, long, long time.

The governor dismisses people with sensible criticism of the problem-plagued bullet train project as “defeatists.” Yo, Jerry, does your putdown also hold for the Washington Post editorial page and The Economist, which think the project is nuts?

The governor acts as if temporary sales and income tax hikes have transformed California into a strapping model of robust governance. He completely ignores CalPERS and CalSTRS underfunding, the $10 billion plus the state owes the federal government for borrowing to pay unemployment benefits when the state program went broke, and the fact that another retirement benefit for state employees — health care — is $60 billion-plus underfunded.

Bullying those who don’t parrot his happy talk

California is not on firm ground. Jerry Brown has created a narrative that holds that it is, and he’s gotten journalists from the East Coast to buy the myth. The numbers, however, just don’t add up.

But challenge his narrative of the state being in a new, golden era, and he’ll mock you at a press conference, as he did with Brian Joseph of The Orange County Register. Raise questions about whether the state is as well-governed as he pretends, and he’ll belittle you, as he did the reporters on the Cal Fire scandal by calling their findings “boring.”

He used to be Gov. Moonbeam. Now he’s Gov. Insufferable Know-It-All.

Great, just great.