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SUP. MOLINA: UNDER THE STATUTE AS WRITTEN WHEN IT SAYS THAT THEY ARE PERSONALLY LIABLE, I MEAN WHO WOULD BE? I KNOW THAT YOU WOULD HAVE A DEFENSE FOR IT, BUT WHO WOULD YOU SAY WOULD BE PERSONALLY LIABLE UNDER THE STATUTE?


RAY FORTNER: I DON'T BELIEVE THAT THAT IS CLEARLY ANSWERED.


SUP. MOLINA: IT ISN'T CLEARLY ANSWERED AT ALL? SO IT DOESN'T SAY WHO WOULD BE-- IT'S INTERESTING THAT THE STATUTE SAYS THAT THOSE THAT MAKE THE DECISION WOULD BE PERSONALLY LIABLE. I MEAN, THAT'S ALSO AN INTERESTING LEGAL TERM, AS WELL. IT ISN'T JUST LIABLE. IT DOESN'T MAKE THE ENTITY LIABLE. IT MAKES YOU PERSONALLY LIABLE.


RAY FORTNER: THAT'S CORRECT.


SUP. MOLINA: SO YOU DIDN'T REVIEW THAT ASPECT OF IT?


RAY FORTNER: I HAVEN'T HAD THE REASON TO LOOK VERY FAR INTO THAT QUESTION OTHER THAN THAT THAT IS THE GENERAL LEGAL PRINCIPLE. AND IT WOULD DEPEND UPON THE NATURE OF THE PERSON'S AUTHORITY AND WHETHER THERE WERE OTHER INDIVIDUALS OR BOARDS INVOLVED MAKING THE DECISION, WHETHER IT WAS BASED UPON ADVICE FROM COUNSEL. THERE ARE A NUMBER OF ELEMENTS THAT ARE TO BE LOOKED AT.


SUP. MOLINA: SO MR. FORTNER, YOU WOULD SAY THAT YOU WERE MAKING A RECOMMENDATION TO THE M.T.A. BOARD OF DIRECTORS WITHOUT REVIEWING AT ALL WHAT KIND OF PERSONAL LIABILITY ANY OF THEM WOULD HAVE, IS THAT CORRECT?


RAY FORTNER: NOT EXACTLY, SUPERVISOR. IT IS A SIGNIFICANT ENOUGH LEGAL ISSUE THAT I FELT THAT IT NEEDED TO BE BROUGHT TO THE SURFACE.


SUP. MOLINA: WHAT NEEDED TO BE BROUGHT TO THE SURFACE?


RAY FORTNER: THAT THERE WAS A POTENTIAL, IN SOME CIRCUMSTANCES, FOR PERSONAL LIABILITY TO ATTACH TO AN INDIVIDUAL.


SUP. MOLINA: I UNDERSTAND. THAT'S WHAT I'M TRYING TO UNDERSTAND. FOR EXAMPLE, I'LL GIVE YOU AN EXAMPLE. I DID NOT SUPPORT IT. BUT THOSE MEMBERS THAT DID SUPPORT IT, WOULD THEY BE PERSONALLY LIABLE IF THERE WERE FILED A LAWSUIT?


RAY FORTNER: WELL IT WOULD DEPEND ON WHETHER OR NOT THEY PERSONALLY WERE AWARE OF THE INFORMATION, WHETHER OR NOT IT WAS BASED ON THE ADVICE OF COUNSEL, WHETHER OR NOT IT WAS CLEARLY OVER THE LINE, SAY IN VIOLATION OF SPECIFIC WORDS IN STANSON VERSUS MOCK, VERSUS THIS IS A QUESTION OF SUBJECTIVE JUDGMENT THAT WAS EXERCISED.


SUP. MOLINA: MR. FORTNER, THIS IS A COPY OF THE PUBLIC INFORMATION CAMPAIGN THAT COVINA DID ON A VERY SIMILAR INITIATIVE AND PROPOSITION. IT'S THREE PAGES, XEROXED, OF FACTS AND INFORMATION. THIS IS THE INFORMATION THAT WAS PROVIDED TO OVER HALF A MILLION DOLLARS. NOW, WOULD YOU SAY THERE IS A DIFFERENCE BETWEEN THESE TWO?


RAY FORTNER: WELL, I'M ONLY GENERALLY AWARE OF THE COVINA, DID YOU SAY? I BELIEVE I HAVE GENERAL BACKGROUND ABOUT THAT BUT I DON'T KNOW WHAT'S IN THERE. SO WITHOUT REVIEWING IT, I COULDN'T TELL YOU IF I THOUGHT THAT THAT WAS LAWFUL OR NOT. BUT WHETHER OR NOT IT'S IN THREE TYPEWRITTEN PAGES OR IN A BROCHURE--


SUP. MOLINA: SO THIS AGAIN, THIS IS ALL PUBLIC INFORMATION. SO NOW IF WE WANTED TO SPEND THE $12 MILLION, AS MY MOTION HAS THERE, TO BUY ADS IN EVERY SINGLE PAPER THAT WOULD HAVE THIS KIND OR TO PRINT OUT GLOSSIES LIKE THIS, OF PUBLIC FUNDS, YOU THINK THAT UNDER THE STATUTE WE WOULD NOT BE PERSONALLY LIABLE AT ALL?


RAY FORTNER: I WOULD QUESTION WHETHER OR NOT THAT A FULL PAGE NEWSPAPER AD CONSTITUTED A PROPER EXPENDITURE UNDER THE STATUTE OF THE CASE LAW.


SUP. MOLINA: YOU'RE SAYING THAT THIS POTENTIALLY VIOLATES THAT?


RAY FORTNER: I WOULD SAY THERE IS A QUESTION.


SUP. MOLINA: SO NOW LET'S SAY IF THE BOARD OF DIRECTORS IS FOUND PERSONALLY LIABLE FOR THIS AND THEY HAVE TO PAY FOR IT, DOES THAT MEAN OUT OF THEIR OWN POCKET? NOT OUT OF TAXPAYER FUNDS?


RAY FORTNER: I BELIEVE SO.


SUP. MOLINA: WILL I BE PROTECTED BECAUSE I DIDN'T VOTE FOR IT?


RAY FORTNER: I WOULD BELIEVE SO.


SUP. MOLINA: THAT'S GOOD TO KNOW. I BET THE OTHER MEMBERS OF THE BOARD OF DIRECTORS WOULD HAVE ENJOYED KNOWING THAT, AS WELL. SO RIGHT NOW, IF I WERE TO DO, FOR PROPOSITION U, THIS KIND OF THING, I WOULD POTENTIALLY HARM MY COLLEAGUES AS WELL AS THIS COUNTY BECAUSE IT REALLY ISN'T AN APPROPRIATE EXPENDITURE AS COMPARISON TO THESE THREE PAGES THAT ARE XEROXED BY COVINA THAT SEEMED TO PASS THE TEST, CORRECT?


RAY FORTNER: I HAVE NO IDEA WHETHER IT WAS SUBJECTED TO ANY TEST IN THE COVINA SITUATION.


SUP. MOLINA: BUT YOU DO THINK THAT THIS CLEARLY IS WITHIN THE FRAMEWORK OF THE LAW?


RAY FORTNER: I DON'T KNOW THAT I WOULD USE THE WORD CLEARLY. BUT I FELT IT WAS AS ULTIMATELY PRINTED--


SUP. MOLINA: ENOUGH TO PROTECT THE MEMBERS? YOU FEEL CLEARLY?


RAY FORTNER: THAT'S MY LEGAL OPINION.


SUP. MOLINA: TO PROTECT THE MEMBERS FROM NO PERSONAL LIABILITY AT THE M.T.A.?


RAY FORTNER: THAT'S MY LEGAL OPINION.


SUP. KNABE: IS THE REASON FOR THAT BECAUSE IT'S GENERIC IN NATURE AND SORT OF COUNTY-WIDE? JUST SORT OF A GENERAL INFORMATIONAL PIECE VERSUS THIS PIECE HERE, WHICH IS LIKE GLORIA, I DON'T KNOW WHICH ONE GLORIA HAS, BUT THE ONE I HAVE IS SPECIFIC TO LONG BEACH AND THE GATEWAYS CITIES AREA, A VERY SPECIFIC PROJECT. I MEAN IT'S MUCH MORE SPECIFIC THAN A GENERAL INFORMATION. IT'S HOW IT HELPS YOU IN YOUR PARTICULAR LOCAL AREA.


RAY FORTNER: SUPERVISOR KNABE, I COULDN'T TELL WHICH ONE SUPERVISOR MOLINA WAS HOLDING UP. THERE WAS ONE THAT AS FAR AS I KNOW WAS A GENERIC, COUNTY-WIDE PIECE WHICH I HAVE QUESTIONS ABOUT. BUT AT THE REGIONAL--


SUP. MOLINA: WHICH IS YOURS?


SUP. KNABE: MINE IS THE "PRESS- TELEGRAM."


RAY FORTNER: BUT THE REGIONAL ONES I HAVE LOOKED AT, I FELT, WERE CLOSER TO THE LINE, IF NOT OVER THE LINE, THAN EVEN THE GENERIC PIECE. BUT EITHER PIECE WERE VERY TROUBLING TO ME. I'M TRYING TO GUARD MY WORDS HERE A BIT. BUT THEY WERE TROUBLING TO ME. THE MORE FOCUSED IT BECAME, THE LESS--


SUP. MOLINA: GO AHEAD, I'M SORRY, DON.


SUP. KNABE: NO, I'M JUST CURIOUS, BECAUSE I UNDERSTAND THAT, EXCEPT THAT WE GET ALL THIS PIECES OF INFORMATION FROM TIME TO TIME DURING CERTAIN TIMES OF YEAR, YOU CAN ONLY CONTACT 200 PEOPLE, DO ALL THESE KINDS OF THINGS, YET I STILL CANNOT UNDERSTAND-- I HAVE YET TO EVER SEE A PUBLIC ENTITY RATIONALIZE SPENDING PUBLIC DOLLARS. WE'RE ALWAYS TOLD WE CAN'T DO THAT. THERE'S ALWAYS A FINE LINE. IT MAY BE GENERIC, BUT IT'S CERTAINLY A MAIL PIECE.


RAY FORTNER: YES, IT IS. BUT THAT DOES NOT, IN AND OF ITSELF, MAKE IT IMPROPER EXPENDITURE. MY CONCLUSION WAS, THERE IS ENOUGH FACTUAL INFORMATION IN IT TO MEET THE TEST AND DOES NOT GO-- DOES NOT CROSS THE LINE.


SUP. MOLINA: ALL RIGHT. SO WHAT YOU'RE BASICALLY TELLING US, THOUGH, IS THAT UNDER YOUR LEGAL OPINION TODAY, WE ARE AUTHORIZED, WE HAVE THE CAPABILITY OF SPENDING TAXPAYER FUNDS TO CREATE A PUBLIC INFORMATION CAMPAIGN. AND THE STANDARD WILL BE-- WELL I GUESS I SHOULD USE YOUR OWN STANDARD. THIS WOULD BE YOUR STANDARD. THIS KIND OF GLOSSY, HALF A MILLION DOLLARS MAILED TO EVERY SINGLE VOTER? I MEAN, THAT'S YOUR STANDARD?


RAY FORTNER: I THINK THAT'S AN EXAMPLE SOMETHING, THAT GIVEN THE TEXT, IS A PROPER EXPENDITURE, YES.


SUP. MOLINA: AND LET ME UNDERSTAND. SO BASED ON THIS ADVICE, AND WE ARE SUED AS A FIVE-INDIVIDUAL BOARD MEMBERS OR THREE OF US THAT MIGHT VOTE FOR IT, WE WOULD BE PERSONALLY LIABLE ON THIS, IS THAT CORRECT?


RAY FORTNER: I WON'T REACH THAT CONCLUSION, GIVEN--


SUP. MOLINA: BUT UNDER THE STATUTE, THE STATUTE CLEARLY SAYS THAT WE, PUBLIC OFFICIALS WHO HAVE AUTHORIZED IMPROPER EXPENDITURE OF PUBLIC FUNDS WITHOUT DUE CARE, EVEN IF SUCH AUTHORIZATION IS DONE IN GOOD FAITH, ARE PERSONALLY LIABLE FOR SAID EXPENDITURES.


RAY FORTNER: WELL, IT SAYS WITHOUT DUE CARE. IF YOU BASED YOUR ACTIONS ON ADVICE FROM COUNSEL--


SUP. MOLINA: DUE CARE MEANS REASONABLE DILIGENCE.


RAY FORTNER: THAT'S CORRECT.


SUP. MOLINA: SO YOU'RE SAYING THAT UNDER OUR REASONABLE DUE DILIGENCE, WHICH IS YOUR ADVICE, I WOULD NOT BE PERSONALLY LIABLE.


RAY FORTNER: WELL, I THINK PART OF THE TEST IS ALSO WHETHER OR NOT MY ADVICE HAD ANY LEGAL BASIS TO IT OR WHETHER IT WAS CLEARLY OVER THE LINE AND VIOLATED THE WORDS OF STANSON AND SO ON.


SUP. MOLINA: YOU CLEARLY STATE ON THIS ONE THAT YOU DID NOT AUTHORIZE THIS ONE. YOU DID NOT READ THIS ONE.


RAY FORTNER: THAT IS CORRECT. IS THAT THE GENERAL ONE, SUPERVISOR?


SUP. MOLINA: RIGHT. SO THIS IS AGAIN THE ONE THAT, AGAIN, WHEN IT'S BEEN AUTHORIZED BY THE BOARD, THEY COULD BE PERSONALLY LIABLE FOR THIS EXPENDITURE?


RAY FORTNER: IT MAY BE VERY UNLIKELY IN THIS SCHEME OF THINGS, BUT THAT POTENTIAL WOULD BE THERE, YES.


SUP. MOLINA: LET ME ASK YOU ONE OTHER QUESTION. SO IF I AM HELD PERSONALLY LIABLE FOR THIS OUTCOME, AM I ENTITLED TO A LAWYER FROM COUNTY COUNSEL?


RAY FORTNER: I BELIEVE THAT IF AN ACTION WERE BROUGHT THAT MY OFFICE WOULD BE ABLE TO REPRESENT YOU. THE ACTS WERE DONE IN YOUR OFFICIAL CAPACITY. BUT WHETHER THE COUNTY COULD PAY THAT, INDEMNIFY YOU, WOULD BE DIFFERENT THAN PROVIDING A DEFENSE. I JUST FRANKLY DON'T KNOW THE ANSWER TO THAT. I DON'T KNOW THAT IT'S BEEN ANSWERED.


SUP. MOLINA: WE DON'T KNOW THE ANSWER TO IT?


RAY FORTNER: I DON'T BELIEVE THAT IT'S BEEN ANSWERED BY ANYONE.


SUP. MOLINA: I DON'T THINK LEGALLY THE COUNTY OR THE M.T.A. WOULD BE ABLE TO PROVIDE ME A LAWYER TO DEFEND MYSELF IF THERE IS A LAWSUIT.


RAY FORTNER: WELL, I WOULD CERTAINLY WANT TO LOOK INTO THAT.


SUP. MOLINA: YOU KNOW, MR. FORTNER, ONE OF THE ISSUES THAT'S VERY IMPORTANT AS WE MAKE DECISIONS-- AND WE MAKE A LOT OF DECISIONS-- YOU SAW OVER 100 THAT WE'RE MAKING TODAY-- ARE BASED UPON INFORMATION. AND SOMETIMES WE ASK QUESTIONS ABOUT THIS INFORMATION. AND AS I WAS REMINDED THE OTHER DAY, THAT THE ONLY WAY I WAS GOING TO GET ANYTHING DONE IS THAT I HAD TO HAVE SEVEN VOTES AT THE M.T.A., EVEN WHEN MY LAWYER WAS INCORRECT IN GATHERING ALL OF THAT INFORMATION. BUT I THINK IT IS CRITICALLY IMPORTANT, CRITICALLY IMPORTANT THAT OUR LAWYER GET IT RIGHT ALL OF THE TIME. NOT JUST BECAUSE OF MY OWN PERSONAL NEEDS AND MY OWN POTENTIAL PERSONAL LIABILITY. BUT THE KIND OF LIABILITY THAT IT SETS UP FOR THE INSTITUTIONS THAT IT IS HIRED TO PROTECT.


RAY FORTNER: I COULDN'T AGREE WITH YOU MORE, SUPERVISOR.


SUP. MOLINA: I KNOW YOU COULDN'T AGREE WITH ME MORE, BUT THE POINT IS I THINK YOU MADE A DRASTIC MISTAKE, A VERY DRASTIC MISTAKE, IN PROVIDING LEGAL ADVICE TO THE M.T.A. TO HAVE OVER 4-1/2 MILLION DOLLARS SPENT OF PUBLIC FUNDS FOR THIS LEVEL OF BROCHURE AND THIS LEVEL OF ADVERTISING, THAT THEY MAY BE EVENTUALLY BE HELD PERSONALLY LIABLE FOR SHOULD SOMEONE SUE US. AND IT SHOULD MAKE SOME PEOPLE VERY NERVOUS ABOUT IT. BUT I WANT TO MAKE SURE THAT I'M GOING TO BE PROTECTED BECAUSE I VOTED AGAINST IT. EVEN THOUGH THE LAWYER WAS INSISTING THAT HE WAS ABSOLUTELY AND ABUNDANTLY CORRECT. I ALSO ASKED IF I COULD USE TAXPAYER FUNDS TO STATE MY OPPOSITION TO THIS MEASURE. AND THEY SAID I COULD NOT. AND THEY SAID I COULDN'T BECAUSE I DIDN'T HAVE SEVEN VOTES. IS THAT ALSO TRUE?


RAY FORTNER: I DON'T KNOW WHETHER THERE IS A WAY TO ACCESS M.T.A. FUNDS TO-- OTHER THAN WITH A VOTE OF THE BOARD. THERE MAY WELL BE. WE HAVE CONTRACTING ABILITY HERE. BUT A MESSAGE IN OPPOSITION AS OPPOSED TO A MESSAGE OF INFORMATION WOULD HAVE TO BE VIEWED FROM THAT STANDPOINT.


SUP. MOLINA: WELL, MR. FORTNER, I'M NOT GOING TO ASK YOU TO DO A CORRECTIVE MEASURE AS YET ON THIS ITEM BECAUSE I THINK IT REMAINS TO BE SEEN AS TO WHAT'S GOING TO HAPPEN; BUT THERE ARE SOME PEOPLE THAT ARE VERY CONCERNED ABOUT THESE EXPENDITURES. AND I DON'T KNOW IF THERE'S GOING TO BE A LAWSUIT AT THE END OF THE DAY. BUT I AM VERY, VERY CONCERNED WHEN OUR LAWYERS ARE CARRYING POLITICAL WATER OVER LEGAL WATER. AND THAT ISN'T A CHOICE THAT YOU HAVE.


RAY FORTNER: ABSOLUTELY NOT, SUPERVISOR.


SUP. MOLINA: WELL, YOU WOULDN'T BE ABLE TO TELL BY ME, WHO LOOKS AT IT AS RATHER BEING A BIASED DECISION, A RUSH TO JUDGMENT WITHOUT AN EVALUATION OF ALL ASPECTS OF IT, EVALUATING OTHER WHAT, QUOTE, PUBLIC INFORMATION CAMPAIGNS, A PROCESS OF EVALUATING OR AT LEAST GETTING TO THE BOTTOM OF WHAT PERSONAL LIABILITY WOULD BE. AND SO I THINK IT'S THE KIND OF LEGAL ADVICE THAT SHOULD WORRY A LOT OF PEOPLE. IT CERTAINLY WORRIES ME.


RAY FORTNER: I UNDERSTAND YOU DON'T ACCEPT MY LEGAL ADVICE IN THIS INSTANCE, SUPERVISOR.


SUP. MOLINA: NOT IN THIS INSTANCE, I WON'T.


RAY FORTNER: I ASSURE YOU IT IS MY LEGAL ADVICE AND NOT DRIVEN BY URGENCY OR POLITICAL EXPEDIENCY AT ALL. I AND MY STAFF AND I WORK VERY HARD TO TRY AND GET THE ANSWERS RIGHT. I THINK WE DO THE LION'S SHARE OF THE TIME.


SUP. MOLINA: WELL, YOU KNOW, WITH A LAWYER AND PERSONAL LIABILITY, YOU KNOW, YOU CAN'T BET 50/50. IT USUALLY SHOULD BE 100 PERCENT ALL OF THE TIME.


SUP. KNABE: BASED UPON THAT, I CAN'T SUPPORT YOUR MOTION.


SUP. MOLINA: THANK YOU. NEITHER CAN I. NEITHER CAN I. I CANNOT SUPPORT A MOTION THAT DOESN'T HAVE THE APPROPRIATE LEGAL STANDING. I'M NOT GOING TO. WHILE I SUPPORT PROP U, AND AS A PROPONENT, I WILL RAISE DOLLARS FOR IT, I'M NOT GOING TO ASK TAXPAYERS TO USE THEIR FUNDS AS I WOULD NOT FOR THE M.T.A. BUT IT IS REALLY UNFORTUNATE WHAT'S BEEN DONE HERE AND THE MISLEADING INFORMATION THAT WE HAVE HAD. SO I WITHDRAW MY MOTION, MADAME SPEAKER.


SUP. BURKE, CHAIR: WITHOUT OBJECTION, 95-A IS WITHDRAWN. HOWEVER, THERE ARE PEOPLE WHO WANTED TO SPEAK ON IT.


SUP. YAROSLAVSKY: I WANTED TO SAY ONE WORD IF I CAN. NOT TO ADD A FLY IN THE OINTMENT BUT I JUST WANTED TO MENTION SOMETHING. YOUR PREDECESSOR ADVISED ME THAT-- AND YOU'LL RECALL, THE BOARD WILL RECALL THIS-- WHEN THE BOARD IN CLOSED SESSION REFUSED TO PLACE AN INITIATIVE ON THE BALLOT. AND I WAS THE ONLY NO VOTE ON THAT. AND I THOUGHT I WAS FREE FROM EXPOSURE TO PERSONAL LIABILITY BECAUSE IT WAS A PERSONAL LIABILITY ISSUE WITH CONNECTION WITH A POTENTIAL LAWSUIT IN THAT CASE. AND I WAS ADVISED THAT WHETHER OR NOT I WAS ON THE PREVAILING SIDE OF THE BOARD'S ACTION, THAT BECAUSE I WAS A MEMBER OF THE BOARD, I WAS PERSONALLY LIABLE. YES, SIR. NOW MAYBE I WON'T CAST ANY ASPERSIONS, BUT THAT WAS THE ADVICE THAT I RECEIVED FROM MR. PELLMAN. AND IT WAS ANOTHER MOMENT IN MY LIFE WHEN I SAID IT'S A DAMN GOOD THING I DIDN'T GO TO LAW SCHOOL. PEOPLE SAY YOU SHOULD GO TO LAW SCHOOL BECAUSE YOU NEED TO LEARN HOW TO THINK. I DON'T WANT TO LEARN HOW TO THINK THAT WAY. I THINK THAT'S A QUESTION NOT NECESSARILY IN THIS CASE AS MISS MOLINA IS WITHDRAWING HER MOTION. BUT IN THE FUTURE, I'M CURIOUS WHETHER A MEMBER OF THE BOARD WHO WAS ON THE DISSENTING SIDE OF AN ILLEGAL ACTION THAT EXPOSES US TO PERSONAL LIABILITY IS EXEMPT OR IS IMMUNE FROM THAT PERSONAL LIABILITY.


RAY FORTNER: IT IS MY UNDERSTANDING THAT THAT IS NOT THE CASE.


SUP. YAROSLAVSKY: WHAT IS NOT THE CASE?


RAY FORTNER: THAT YOU WOULD NOT BE EXPOSED TO PERSONAL LIABILITY.


SUP. YAROSLAVSKY: WHY DON'T YOU CHECK IT OUT?


RAY FORTNER: THAT IS A QUESTION THAT I BELIEVE HAS AN ANSWER TO IT THAT WE CAN GIVE YOU. IT WON'T BE HOPEFULLY MY OPINION; IT'LL BE THE OPINION OF SOME NUMBER OF APPELLANT JUSTICES.

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