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In or out? The complex rules of political residency

Sen. Rod Wright, Los Angeles City Councilman Richard Alarcon, Assemblyman Jim Nielsen and candidate Andy Pugno. All four have been charged by political opponents with not living in the district where they are running for office.

But Wright and Alarcon potentially face prison time and the end of their once-illustrious political careers.

Nielsen, on the other hand, was cleared by the office of Attorney General Jerry Brown and the Tehama County District Attorney.  Accusations against Pugno have so far gathered little traction.

So what’s the difference between the four?

Maybe not much, according to Charlie Schaupp, who lost a primary challenge in June against Assemblyman Nielsen, R-Biggs. Schaupp alleges that Nielsen does not live in the Gerber home he claims as his permanent residence – an allegation that’s been aired at length and rejected by state and local authorities.

But Schaupp, a longtime Nielsen foe, and his fellow conservative activists announced they will be filing complaints this week against Nielsen with the grand juries in at least four counties — Yolo,  Sutter, Siskiyou and Shasta  –  in the 2nd Assembly District, claiming that Nielsen is ineligible to run and should face criminal charges.

Nielsen, meanwhile, is expected to coast to an easy reelection victory Tuesday.

Schaupp got 44 percent of the vote challenging Nielsen in his primary in June. The only candidate in the Democratic primary was Ray Hennemann, a Redding-area real estate appraiser and political consultant who garnered 833 votes as a write-in candidate — about half the number of votes he needed to get on the general election ballot.

Over 60,000 people cast votes in the Republican primary. Republicans hold a 46 percent to 30 percent registration advantage.

Nielsen’s staff say they have documentation showing his residency claims are legitimate, despite the fact Nielsen’s wife and some of his five children live in a gated community in Woodland, outside the district, over 100 miles to the south. The home sits just over a mile outside the district.

“I just got off the phone with him from his Gerber home, and I was there working yesterday,” said David Reade, Nielsen chief of staff, who has been taking time off to work on his campaign. He added, “They’ve been out there since Mr. Nielsen ran for the Assembly, and they’re trying again. It’s a false accusation.”

Justin Levitt, associate professor at the Loyola Law School in Los Angeles, said that there is a lot of potential ambiguity in the enforcement of residency laws when it comes to running for office. Levitt declined to comment on any particular cases. But he did say that there is a great deal of discretion given to local DAs about whether they want to pursue a case, as there is with most kinds of criminal prosecutions.

“The standard itself is pretty multifactor,” Levitt said. “It has to do with what your permanent residence is. People can move around as long as they intend to return to their permanent residence.”

When a complaint is brought, Levitt said, a prosecutor will likely look at factors such as where the person spends the majority of their time, where their car is registered, where their mail is delivered and what address they use when they file their taxes. And, he added, it is certainly possible that two politicians could be doing essentially the same thing, with one getting in serious hot water while another doesn’t hit any problems.

Schaupp and his allies have been hitting Nielsen on the issue for nearly three years.

The Shasta Herald and The Daily Democrat out of Woodland have looked into the issue. The Pioneer Press ran a piece in April, 2008, with the headline “Is Jim Nielsen a Fraud?”  It was written by Barry Clausen and Daniel Webster, who are also among the people filing grand jury requests against Nielsen this week. In the story, they claim to have visited the property and encountered a woman living there who denied being related to Nielsen and said he was rarely there.

Clausen filed a complaint against Nielsen with the Secretary of State’s office in the fall of 2008. He received a letter in reply on Oct. 21 of that year, stating, “Our office has concluded its investigation against the subject referenced above and referred the case for prosecution to the office of the California Attorney General. Thank you for bringing this matter to our attention.”

A spokesperson for the Secretary of State declined to comment on the matter, or whether there was a particular burden of proof that needed to be met before the matter was referred to the attorney general.

What is clear is that the A.G. said that Nielsen had done nothing wrong. On Dec. 22, Deputy Attorney General Cliff Zall wrote back to the Secretary of State’s Election Fraud Investigation Unit: “We have completed our review of the above matter and have concluded that there is insufficient evidence of criminal wrongdoing to warrant any further action by our office.”

“The AG’s office found no evidence to support the allegations that Nielsen did not live in his district,” said Becca MacLaren, a spokeswoman for Attorney General Jerry Brown. “The matter was closed in February 2009.”

Of course, the matter wasn’t closed for Clausen and several others, including Don Bird, a well-known gadfly in the area. Bird came down to Sacramento last week to state a protest outside Brown’s office, holding a sign that stated “Jerry Brown Supports A Felon, Assembly Man Jim Nielsen [sic].”

Shaupp claimed that the Tehama County D.A., Gregg Cohen, is a Nielsen supporter who wrote back to the attorney general’s office that everything was fine, but never actually looked into the matter. Cohen did not return a call as of press time.

Claussen and others also said they had seen utility bills showing the property was hardly used. A call to the local waste management district, however, found that their policy is not to share a resident’s utility bills with anyone barring a court order.

Wright and Alarcon, meanwhile, are being pressed by an ambitious Los Angeles District Attorney, Steve Cooley, who is also the Republican nominee for attorney general.

Wright, a Democratic state Senator representing Inglewood, was hit with eight counts of voter fraud, perjury and other charges. The L.A. County Grand Jury indictment against him claims that he lied about living in a room in a house he owns in the district. Alarcon, a former state legislator, got hit with 24 felony counts in August for allegedly not living in the L.A. City Council District he represents.

Another factor that may be working in Nielsen’s favor is the proximity of his wife’s home to Sacramento. From Congress to state legislatures, elected officials regularly keep residences near their elected jobs, where they may spend far more time than their official residence in the district.

Schaupp said he didn’t even oppose Nielsen until he learned of the residency issue. But he said the law is clear – and that Nielsen has tipped his hand by taking a homeowners tax exemption at the Woodland home.

“You can’t say you’re going to move there,” Schaupp said. “That doesn’t make you a resident. You can have many residences but only one domicile. Your domicile is where you take your homeowners exception.”

Not necessarily, said Levitt: “People with multiple residences can have tax deductions that aren’t necessarily pegged to permanent residence.”

Pugno, meanwhile, also appears to have taken a homeowners exempti
on this year for a house outside the district where he’s running, but Pugno provided documents showing he gave up the exemption when he moved. Democratic nominee Richard Pan’s campaign so far has not filed an official complaint — and it is unclear whether this would actually be an issue. Sacramento County D.A. Jan Scully, incidentally, is a Republican. 

Pugno is facing a razor-close race with Richard Pan for the AD 5 seat being vacated by the termed-out Roger Niello, R-Fair Oaks. Pugno and his family were living in a home in the 10th Assembly District, currently represented by Alyson Huber, D-Lodi. He said he moved his family to an apartment in Folsom in order to be eligible in AD 5.

Amid allegations that he and his family were not living at the house, we drove out to the Folsom apartment in September in the middle of a weekday and left a card on the door. Pugno called back at 5:45 that evening.

“We’ve been here since February,” Pugno said at the time. “The rumor is not true.”  


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