The Grand Jury transcript detailing interviews that led to the indictment of El Dorado County Supervisor Ray Nutting were recently unsealed.
Nutting faces four felony charges related to his participation in the Proposition 40 Fuels Reduction Program. Charges include filing a false documents, perjury by declaration, and failure to recuse himself from Board of Supervisors votes that could be a conflict of interest. The Grand Jury handed down the indictment on May 24 after a two-day hearing.
The witness list started with Jeffery Calvert, a Cal Fire stewardship forester who administers the California Forest Improvement Program, or CFIP, which uses Proposition 40 funds. His testimony centered around invoices Nutting submitted for Prop. 40 reimbursement. In documents, Nutting claimed no personal labor costs associated with a 2009 project but he also submitted an invoice under the name Nutting Brush Clearing that claimed $27,395 in expenses eligible for reimbursement.
“And as you look at it now and seeing that it’s the same signature as the landowner on the Prop. 40 invoice as is on the Nutting Brush Clearing invoice, does the fact that there’s zero listed for my own labor cause you any concerns when the invoice is done by the same person?” asked deputy district attorney James Clinchard, who was joined by Peter Williams of the California Attorney General’s Office.
“Not really,” Calvert replied. “It’s not uncommon for landowners to also have a business and they employ their own company to do the work. So they may have employee costs, fuel costs, that sort of thing. It’s not — it’s rare, but it is not uncommon to have that done.”
Later, however, Registered Professional Forester Mark Stewart, who assisted Nutting during the 2009 project, said the zero was a mistake.
“And it should not have been a zero and I think that was (a) mistake where I had printed out — I had deleted the acres, date completed and actual costs from my first invoice, printed it out and then hand wrote the numbers in there when we prepared the second invoice,” Stewart told the Grand Jury. “I didn’t catch that the zero was for my own labor on there.”
Nutting also told DA investigator John Gaines that it was a mistake and “shouldn’t have been there,” Gaines testified. “It was a mistake. That he was only following the orders of his forester. He even said he had records that the forester didn’t want them.”
However, Gaines also said Nutting later told him that when Nutting and Steward prepared the document, they didn’t believe anything in the field instead of zero was necessary.
The company listed on the invoice, Nutting Brush Clearing, didn’t exist, Gaines continued. “There was never a Nutting Brush Clearing. He said that several times in multiple interviews,” he said. “There never has been a Nutting Brush Clearing company. It was a description of a project, not an invoice, so to speak.”
Nutting previously told Village Life, as well as investigators, that his forester created the document with Nutting Brush Clearing on the top line.
As for the Form 700s — the income declarations that all elected officials must submit — Nutting told Gaines that leaving out the Prop. 40 income was a simple oversight. He told this to Gaines 12 times, the investigator recalled.
Lynda Cassidy of the California Fair Political Practices Board, a watchdog group, noted under questioning that Nutting’s Form 700 was amended earlier this year to include$20,000 in additional income. Nutting also added $10,000 in rental income to his form.
Looking at money Nutting did receive from Prop 40 grants, DA Investigator Marilyn Meixner testified that about 20 percent of the county’s Prop. 40 money went to Nutting or the Happy Valley Trust, of which Nutting is a trustee, between 2009 and 2012.
James K. Mitrisin, a clerk for the Board of Supervisors, testified that Nutting joined fellow supervisors in the vote that gave the El Dorado Resource Conservation District and the Georgetown Resource Conservation District about $80,400 each, on June 30, 2010. That money is used to reimburse Prop. 40 claims — including claims filed by Nutting , according to multiple testimonies in the transcript.
“Did Mr. Nutting vote on that one?”
“Yes, he did,” Mitrisin replied.
In 2011, a total of about $149,000 was to go to the two RCDs. “And do you show what Ray Nutting’s marked vote on that was,” Clinchard asked.
“This was voted on the consent calendar and it was marked yes,” the clerk said. The same would happen for about $2,000 less the next year. Nutting, Mitrisin testified, made other votes concerning the RCDs, including whom to appoint to various RCDs.
Past the deadline
Another point of contention with the District Attorney’s Office is that the documents Nutting filed showed he completed all of the work on his property on time, qualifying for the Prop. 40 money; however, the investigation has determined those claims aren’t’ accurate.
Nutting had to file paperwork with the El Dorado County Department of Agriculture, Weights and Measures to spray herbicides on his property. During his 2009 project, he was required to finish Prop. 40 work on the property by April 15 to receive they money.
But Leanne Mila with the Department of Agriculture testified that Nutting sprayed after the deadline.
“And what were the dates that was indicated the pesticide was used?”
“May 26, May 27 and May 28 of 2009,” she said. The document showing the dates was stamped on May 29 by the Ag Department.
Stewart signed off on the Prop. 40 forms but said he was unaware of the pesticide spraying and marked the work completed on April 15. He testified that was unsure why Nutting would sign the work as done when he still had pesticide to spray. He also said he was unaware that Cal Fire’s Chris Anthony had seen between 30 and 50 burn piles on Nutting’s Happy Valley property in early May that were supposed to have been burned the month before.
The final sign off for Prop. 40 projects comes from Cal Fire Forester Patrick McDaniel, who testified that he was unsure of when he went to check Nutting’s property, but signed off on May 28, 2009.
Williams asked, if the contract ends in April, it isn’t also McDaniel’s responsibility to make sure the work is completed on time. “I don’t know,” answered McDaniel. Clinchard followed up by asking if anyone other than the registered professional forester that Nutting had hired ensures that the project is done on time. “I don’t know,” was again the reply.
McDaniel said he keeps a spreadsheet of the dates the contracts expire, but his explanation for not determining when the work was actually done was, “I don’t recall. But I would have been in contact with the (RFP) about the expiration date.”
The matter of the herbicides was pressed. “Why would you sign this document giving Ray Nutting $22,000 if the pesticides had been applied on the 26th, 27th and 28th, outside the contract time period where he was not allowed to get money,” Williams asked. “Why would you sign off and allow — and give him money?”
“I’m not aware of that,” McDaniel said. “I’m not — I did not see this form,” referring to the paperwork Stewart approved.
“I rely on the (RPF) to do his job properly,” he continued, adding that determining if documents submitted to him are true or not are “outside the scope of my responsibilities.” McDaniel added, “If I knew it was false, I wouldn’t sign off on it.”
Taking the Fifth
Nutting was also asked to testify; however, after some initial confusion over whether his attorney David Weiner could be present, Nutting decided to take the Fifth — his constitutional right to not self-incriminate — and left the stand.
At 5:30 p.m. on the second day of proceedings, the Grand Jury returned the indictment of four counts. Nutting was booked into the El Dorado County Jail on May 28, 2013. He posted bail later the same day — an action that has resulted in additional charges related to who gave Nutting money.
Nutting, still and active and voting member of the Board of Supervisors, later recused himself on any matter related to state or federal funding.
In a letter to his fellow supervisors dated June 21, Nutting states: “I will be vindicated of the malicious charges that have been made against me. I want to resume fulfilling all of the duties I was elected to perform. However, I want to ensure that the charges do not affect the county’s ability to obtain or use state and federal funds. I have been told that failure to adhere to this recusal could put at risk the funding of programs and projects receiving monies from any federal source. I believe that asking an elected official to recuse himself from representing his constituents on items he was duly elected to vote on, before he has had his right to a trial violates many important constitutional principles, including the principle that a man is innocent until proven guilty; however, I do not want to take any risk of putting the county’s federal money at risk, so I will continue to voluntarily recuse myself from items involving funding.”
He goes on to write, “I fully intend to be acquitted in a court of law as quickly as possible and then return to perform all of the duties for which I was elected.”
Nutting’s case is awaiting reassignment by El Dorado County Superior Court Presiding Judge Suzanne Kingsbury.
Click on the links below to view the Grand Jury transcript from the two-day Ray Nutting hearing.