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Critics Unhappy With Kamala Harris' Approach To San Onofre Probe

California Public Utilities Commission President Michael Peevey is pictured listening to public comments during a meeting of the five-member commission in San Francisco, Dec. 18, 2014.
Associated Press / Jeff Chiu
California Public Utilities Commission President Michael Peevey is pictured listening to public comments during a meeting of the five-member commission in San Francisco, Dec. 18, 2014.

Her office's criminal investigation of the nuclear plant's closure has drawn scrutiny as she runs for U.S. Senate

Critics Unhappy With Kamala Harris' Approach To San Onofre Probe

When criminal investigators with the California Attorney General's Office searched the home of a former top utility regulator early last year, they uncovered evidence that upended a story state officials and a major electric utility had been telling consumers about the deal to pay for the shutdown of the San Onofre Nuclear Generating Station.

This was big. And Attorney General Kamala Harris, now a candidate for U.S. Senate, was hailed by consumer activists for her aggressive investigation.

California Counts is a collaboration of KPBS, KPCC, KQED and Capital Public Radio to report on the 2016 election. The coverage focuses on major issues and solicits diverse voices on what's important to the future of California.

The California Public Utilities Commission and Southern California Edison had claimed a settlement that left ratepayers with the $3.3 billion bill for the San Onofre Nuclear Generating Station’s closure was the product of hard-fought negotiations between ratepayer advocates and the power company.

But when Harris' investigators went through the La Cañada Flintridge home of former CPUC President Michael Peevey after obtaining a search warrant, a different story emerged.

Investigators found handwritten notes that showed Peevey had met secretly with an Edison executive in Poland after the nuclear power plant sprang a radioactive leak and had to be closed. There, they came up with a framework for a San Onofre settlement that closely resembled the final public deal.

“That was the most remarkable piece of investigative work that I’ve ever seen in the last 40 years,” said San Diego consumer attorney Mike Aguirre.

It was the kind of work, Aguirre said, that makes people fall in love with their leaders. But now he contends Harris is jilting her constituents.

“There was no follow up,” he said.

Aguirre and other consumer activists contend Harris is failing to police state regulators and Edison. While her office's criminal probe launched with a punch when Peevey’s home was searched, the investigation is now dragging on without result, they said.

Harris declined to be interviewed for this story. Her office also declined to answer any questions about the inquiry into the San Onofre settlement. A statement released by her spokesman said, "Criminal investigations are very serious. To protect the integrity of our investigations, we can’t comment on potential ongoing investigations."

More search warrants issued

Six months after Harris’ investigators searched Peevey’s house, the attorney general obtained more search warrants. This time they were for the centers of power in the San Onofre case — Edison and the offices of state regulators.

But the attorney general's investigators never went in, according to court documents. Instead, they served the search warrants to Edison and the CPUC and asked them to turn over all documents and communications related to the San Onofre settlement.

“You don’t drop it off at the front door and say, ‘Hey, gee, send me your records,’" said Aguirre, a former federal prosecutor and San Diego city attorney. “That’s the whole point of a search warrant. ... You go in and you execute the search warrant and you seize the records, because you’re concerned they’re going to disappear.”

He said using the full power of the search warrant is essential if the public is ever to get the truth from state regulators and Edison over how the San Onofre settlement was reached.

“There’s so much momentum behind the unlawful conduct, the search warrant is the only device you can use, unless you can have some sort of wiretap,” Aguirre said.

CPUC slow to turn over records

Edison has turned over some records to the Attorney General's Office. The CPUC, however, has withheld many of the documents on grounds they don’t have enough resources to work on producing the documents. The agency also is claiming some of the records are privileged.

Harris hasn’t challenged the CPUC’s privilege assertion. Jason Forge, a former San Diego federal prosecutor, said the attorney general would likely prevail if she did.

“The PUC is the state, and so if the PUC is the state and the state is the client, that’s who controls the privilege. The person at the top of the state is Gov. (Jerry) Brown, and he could waive the privilege,” Forge said.

Brown’s own office has exchanged emails about San Onofre with the CPUC. The CPUC is refusing to release those emails as well.

Former San Diego City Attorney Mike Aguirre talks about his fight to overturn the San Onofre Nuclear Generating Station settlement, March 13, 2015.
Katie Schoolov
Former San Diego City Attorney Mike Aguirre talks about his fight to overturn the San Onofre Nuclear Generating Station settlement, March 13, 2015.

Only Aguirre has demanded the CPUC make the communications public, not Harris.

He also successfully sought the removal of appeals court Justice J. Anthony Kline from the case because Kline had gone to law school with Brown.

Aguirre said it’s puzzling that Harris hasn’t made the same efforts he has.

“She has no presence,” Aguirre said. “She has no involvement. She has no leadership. You have no sense of her being out there on the front saying we’re charging forward to do what’s right.”

Harris has also remained silent on another part of the case. The CPUC’s law firm, DLA Piper, is representing the agency and its employees. Forge said the practice is frowned upon by prosecutors because it intimidates potential whistle-blowers.

“What happens is the individual employees do not have anyone to whom they can truly turn for legal advice, because they know the same person who is representing them is representing their supervisor, and their supervisor’s supervisor,” Forge said.

Harris could ask a court to require the CPUC to retain separate counsel. So far, she hasn’t.

Democratic politics could be at play

Consumer advocate Charles Langley said Harris may not want to pursue the San Onofre investigation to its end because the state’s Democratic hierarchy could be touched by it and that could affect her U.S. Senate bid.

“This is a scandal that will very likely implicate Gov. Jerry Brown, a powerful Democrat, and Michael Peevey, a powerful Democrat, and his wife, an elected powerful Democrat,” Langley said. “I think it’s very distressing to her when she’s running for U.S. Senate and going up against the Democratic Party structure.”

California Attorney General Kamala Harris speaks at a meet and greet at Building and Construction Trades Council in Los Angeles, Jan 10, 2016.
Associated Press
California Attorney General Kamala Harris speaks at a meet and greet at Building and Construction Trades Council in Los Angeles, Jan 10, 2016.

Peevey’s wife is state Sen. Carol Liu.

As attorney general, Harris has established a record for fighting white-collar crime. She set up a mortgage fraud task force, and she obtained $18 billion from the nation’s biggest banks for their role in the foreclosure crisis.

She is also investigating whether Exxon Mobil misled the public and shareholders on what it knew about climate change and whether that amounts to securities fraud.

So far, the questions surrounding Harris' handling of the San Onofre settlement investigation have not affected her standing with voters expected to cast ballots in the June primary. Harris has been the front-runner since she announced in January 2015 that she would run to replace Democratic Sen. Barbara Boxer, who is retiring.

In last month's USC Dornsife/Los Angeles Times poll, Harris was leading her closest rival, Orange County Congresswoman Loretta Sanchez, 28 percent to 19 percent. Both are Democrats. The top two vote-getters in June will compete in the November election, regardless of party. The poll showed about a third of those surveyed have yet to decide who they will vote for.

Critics Unhappy With Kamala Harris’ Approach To San Onofre Probe
Some consumer activists worry that California Attorney General Kamala Harris’ Democratic Party loyalties are influencing her office's criminal investigation into the 2013 closure of the San Onofre Nuclear Generating Station.
Critics Unhappy With Kamala Harris' Approach To San Onofre Probe
Critics Unhappy With Kamala Harris' Approach To San Onofre Probe

This week we have been taking a closer look at California's U.S. Senate race. As California, representative Camilla harassed while replace the current candidate. They are conducting a criminal probe. Harris is investigating how customers got left with the cost of the closure of the San Onofre nuclear plant. As part of our California Counts coverage, KPBS reporter found that Harris launched the probe with a punch. Ratepayer advocates say since then it has gone nowhere. With one searched last year, Camilla Harris up ended the Public Utilities Commission and they had claimed a deal that left ratepayers with they 50 point -- $50 million bill. This was the product of hard-fought negotiations tween ratepayer advocates in the power company. But when Harris secured a search warrant, at the La Cañada Flintridge home of Michael Peevey a different story emerged. Investigators found handwritten notes that showed Peevey had met with a executive in Poland. To come up with a settlement that closely resembled the final agreements. That was one of the most remarkable pieces of investigative work I have seen the last 40 years. It was the kind of work that Michael Gary says it makes people fall in love with their leaders. He contend Harris is jilting her constituents. There was no follow up. Six months afterwards, the attorney general obtained another search warrant. This time it was for the centers of power in the Senate no free case in the offices of state regulars. The investigators never went in and inexplicably they handed the warrant to both Edison and the PUC asking them to turn over all documents and communications regarding the San Onofre settlement. A former federal prosecutor call that approach halfhearted. You don't drop it off in the front door and say send me your records. That's the point of the search warrant. You execute the search warrant and you seize the records because you are concerned they will disappear. He argues using the full power of the search warrant is necessary to get justice. There's so much behind the unlawful conduct, the search warrant is only the only device you can use unless you have some sort of wiretap capability. Edison has turned over some records to the Attorney General. But they have withheld many documents alleging limited resources and claiming they are privilege. Harris has not challenge the assertion. Former federal prosecutor says the Attorney General will likely prevail if she did. The PUC is the state. The state is the client. That's who controls the privilege. That it's who is capable of waving it. The person at the top of the state is Governor Brown and he can waive the privilege. Governor Brown's office has exchanged emails discussing San Onofre. The PUC is refusing to release those emails. The only person who has pushed to make communications public is a Gary, not Harris. He also asked for a judge to be removed from the case because he had gone to law school with Governor Brown. It's puzzling that Attorney General has not made such efforts. She has no presence and no leadership. Have no sense of her being out front and saying we're charging forward to do what's right. She has also remained silent on another part of the case. The PUC's law firm is representing the agency and its employees. The practice is frowned upon by prosecutors because it in -- it intimidates whistleblowers. They know the same person representing them is Representative permit -- representing their supervisors. Harris could require the PUC to retain separate counsel. Charles Langley believes the politics of her Senate bid is influencing her investigation into San Onofre. This is a scandal the very likely implicate Governor Jerry Brown a powerful Democrat, Michael key be who is also accused, a powerful Democrat and his wife as an elected, powerful Democrat. Amita Sharma joined us in studio. What does Kamala Harris have to say? Her office would not answer any questions they said that the Attorney General does not comment on ongoing investigations. Do you think this is going to become an issue with Harris is bid to replace Barbara Boxer? I don't know that Camilla Harrises criminal investigation into how the San Onofre agreement was hatched is on the radar of Democratic or Republican rivals in the US Senate race. I don't know it is on the radar of the public. And I don't know that people really care. Ironically, Harris is seeking to replace the center for, over boxer who is retiring after four terms. Senator boxer really was aggressive in getting to the bottom -- or trying to get to the bottom of why the steam janitor -- generators at the power plant broke down in early 2012. In 2013, she called on the US Justice Department to open a criminal inquiry into Southern California Edison and the deployment of the steam generators. Now Harris is running against Congresswoman Loretta Sanchez from orange County. Tell us about their politics. How do you compare Harris to Sanchez? There doesn't seem to be too big a contrast if any. Between the two. Harris supports President Barack Obama's is free tuition at community colleges. They both back a boost in the minimum ways. They both favor immigration reform. There is contrast in their styles. Harris is cautious and careful in a speech is. Sanchez can be brass. December, she said five 220% of Muslims appear -- support terrorism. She got criticism for that. As attorney general, Harris has more statewide name recognition than Sanchez. His congressional district is confined to orange County. Demographics however -- may give Sanchez, a Latina, and edge. 18% of likely voters this year will be Latina and 60% are expected to be white, 12% Asian, 6% black. Harris, as you know is up Jamaican and Indian percent. Before we talk about Republicans in the race, how are Harris and Sanchez polling? The latest poll from USC durance five and Los Angeles times was released last month. It shows Harris leading Sanchez 19% among registered voters. What about What about the Republicans? Is there a challenger that stand a chance? There are three challengers, the realities seem to ensure the seat will remain in the hands of Kratz. Democrats outnumber by 15 percentage points. The poll I recited, it showed that Republicans -- Tom [ name unknown ] comes in with 18%, followed by Art Sondheim with 6%, and run [ name unknown ] was not included because he had just entered the race. The primary is June 7. That won't be the end of it. The two top vote getters in that June primary will face off in the November election regardless of party affiliation. We could easily have a Democrat versus a Democrat in the general election. That is more than likely. Amita Sharma as an investigative reporter for KPBS . This story is part of our California Counts election coverage.

Copyright 2016 KPBS. To see more election coverage, visit www.kpbs.org.