The prosecutor reviewing Capitola, California Councilman Kirby Nicol's March 26 call to 911 asking police to give a drunken friend a ride home said Tuesday that public resources were "abused."
A Capitola police officer responded to the 3 a.m. call at Nicol's home and drove Nicol's friend home. Nicol had organized a barbecue and served wine, and neither he nor his friend were in shape to drive.
Assistant District Attorney Andrew Isaac said Tuesday his review is not yet complete, but he has made several findings. He said California Government Code 8314 "clearly applies."
This section states: "It is unlawful for any elected state or local officer, including any state or local appointee employee, or consultant, to use or permit others to use public resources for a campaign activity, or personal or other purposes which are not authorized by law."
The same section of the law states that "incidental and minimal use of public resources" by an elected official "shall not be subject to prosecution." Isaac called Nicol's 911 call more than incidental because it involved the 911 emergency system, the use of a police car and the time of a police officer.
Civil penalties, not criminal, apply, according to Isaac, quoting the code: "Any person who intentionally or negligently violates this section is liable for a civil penalty not to exceed $1,000 for each day on which a violation occurs, plus three times the value of the unlawful use of public resources." Isaac said no decision has been made on whether there was criminal action.
He noted that during the call, Nicol identified himself as the mayor, a position he relinquished in December, but did not claim there was an emergency.
If the district attorney were to prosecute, Isaac said his office would work with city officials to put a value on the public resources expended. A payment would resolve the situation, but if there were a dispute, it could go to court, he added.
Nicol apologized last week when a recording of the 911 call was made public. At Thursday's City Council meeting, he apologized again and said he would reimburse the city. "Everybody know I have admitted to a mistake, and I've apologized for that," said Nicol, declining to comment until the review is complete. "I'm very contrite. I want to do what's right." (info from San Jose Mercury News)