What can Fani Willis teach us about California Govt. Code section 1090, which prohibits public officials from being involved in contracts that might benefit them?

29 Mar What can Fani Willis teach us about California Govt. Code section 1090, which prohibits public officials from being involved in contracts that might benefit them?

Posted at 00:12h in Criminal Defense by

Recently the trial judge in Donald Trump’s Georgia criminal case ruled that Fani Willis could stay on the case, but only if Nathan Wade left.  As a recap,  Willis and Wade used to date, and she hired him to lead the prosecution against Trump.  The two claimed that the relationship started after Willis hired Wade, but before Willis decided to renew his prosecution contract.  Wade made several hundred thousand dollars from the contract over the course of a few years.  Willis and Wade claimed that he did not give her money.  Still, the two said they roughly split expenses associated with their relationship (e.g., dinner dates and trips), though they explained that they did so informally and didn’t keep records.  Under their accounting, it is possible that Willis might have come out ahead financially, but only to the tune of several hundred dollars.

Willis and Wade are under no obligation to follow California law—they don’t live here, aren’t barred here, and don’t work here.  But their public notoriety makes them perfect for a hypothetical: Assuming Willis and Wade’s account as true, what would have happened to Willis under California Government Code section 1090, which provides that California’s elected and appointed public officials and public employees may not be “financially interested” in “any contract made by them in their official capacity.”? 

Here, a district attorney is a public official and contract renewals fall under section 1090.  The only real question for our hypothetical is whether Willis had a financial interest.  We’re not aware of any case that addresses the salient facts of Willis’s and Wade’s accounting of events: a dating relationship where the official who made the contract with her romantic partner may have netted a small amount of money because of the contract.  But the broad application of section 1090 would probably be keeping Willis — and her lawyers — up at night if she were a California DA.

Cases have explained that section 1090 “should be construed broadly to close loopholes,” is designed to be “strictly enforced,” and is meant “not only to strike at actual impropriety, but also to strike at the appearance of impropriety.”  As such, an official violates section 1090 even when there is only the “contingent possibility of monetary or proprietary benefits.” 

Note to non-lawyers: any time a court says a “contingent possibility” will suffice, you know you are dealing with a statute that is as broad as they come. 

There doesn’t even need to be a particularly tight nexus to the public official and the contingent-possibility of gain.  As one court summarized the rule, “however devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection made, the contract is void.”

Given how broadly section 1090 is interpreted, Willis would have been in serious jeopardy had she been a California official.  That jeopardy would include not only potentially facing a lawsuit, but also possible criminal prosecution.  Violating section 1090 is a felony, and a public official can be found guilty even if they did not know they were doing anything illegal. In fact they can be found guilty even if they were advised that it was legal! If an official is aware that they may financially benefit from a contract, they can be convicted without the prosecutor offering any proof that they knew the benefit was illegal.

If you’re a government official or employee who is involved in contracting, or if you contract with the government, section 1090 really should put the fear of God in you.  Having legal counsel vet government contracts is critical, and if you suspect that a contract you were involved with may have violated section 1090, get in front of the problem, and contact a skilled criminal defense attorney.

Greg Nolan

Greg Nolan

Greg Nolan is Senior Counsel with Brown White & Osborn. He is a former federal and state prosecutor, whose practice focuses on white collar criminal defense, investigations of all types, and business litigation. He has been interviewed by national media on criminal cases and investigations.
Greg Nolan

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