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Flap arises over clerk candidate statement

The already contentious race for Nevada County clerk-recorder became more intense Wednesday, with challenger Barry Pruett questioning the integrity of appointed incumbent Gregory Diaz and a top staff member.

Pruett filed for the office March 12 and presented his candidate statement to be included in voter information pamphlets that are mailed to registered voters. After Pruett turned in the statement, Assistant Clerk-Recorder Gail Smith decided to eliminate three sentences from it, because she said they violate state election laws.

The sentences said:



“Over the past years, the Nevada County clerk-recorder’s office became an embarrassment. We need new management. Let’s stop the drama and put professional management in charge.”

Those sentences violate the law because they have to be limited to background and qualifications, Smith said.




The candidate statement law reads that statements printed in the voter material “shall not in any way make reference to other candidates for that office or to another candidate’s qualifications, character, or activities.”

California Elections Code also says elections officials can’t issue pamphlets with statements that don’t fit the rules.

“I was making a blanket statement about the office. I never mentioned him,” Pruett said. “I believe it complies with the statute.

“That office has been an embarrassment since 2003,” Pruett said. “We’ve had four clerks in seven years, if you count Fran Freedle.”

The other clerk-recorders were Lorraine Jewett-Burdick and Kathleen Smith. Smith left office after it was discovered she was moonlighting at another city.

Gail Smith (no relation to Kathleen Smith) informed The Union in an e-mail that she told Diaz about the problem, “and I requested to handle the situation without him, and Mr. Diaz agreed.

“At no point was Mr. Diaz involved in the deliberation process; I alone have worked closely with the county counsel’s office to make this decision.”

Pruett had a different take.

“It appears someone is using that office for political gain,” Pruett said. “I find it hard to believe that Gregory Diaz recused himself from this. I don’t believe any of it.”

Pruett said he had discussed the matter with Smith in a telephone call, but alleged the e-mail explaining her position was issued to the media before she spoke with him.

“If that doesn’t scream politics, I don’t know what does,” Pruett said.

Smith disagreed.

“It was sent after I spoke with him,” Smith said. “I’m not running for office now or anywhere in the near future.”

The assistant clerk said she sent the e-mail to the media because “our office is always transparent for every aspect of the election.”

Diaz said he did recuse himself, “because it was an obvious conflict of interest.

“I can’t handle Barry Pruett’s submissions and I won’t handle Barry’s submissions,” he said. Diaz also indicated Smith spoke with the county counsel alone.

In a related matter, a lawsuit is pending against Diaz, Nevada County and Aptitude Solutions, the Florida firm that contracts to provide the county with software to handle recorded documents.

Aptitude won the contract after Auburn firm AtPac Inc. had provided the service for 10 years. In the suit, AtPac alleges Diaz improperly gave information to Aptitude Solutions after winning the work.

Pruett, a lawyer who formerly represented AtPac, has criticized Diaz for the award. Diaz has said AtPac’s software was out of date, needed costly third-party vendors to function properly and failed to meet California certification standards.

To contact Senior Staff Writer Dave Moller, e-mail dmoller@theunion.com or call (530) 477-4237.

“On March 12, the last day of candidate filing, Barry Pruett, a candidate for the office of Nevada County Clerk-Recorder came in to the office to finish his filing paperwork, and at that time he filed his Candidate Statement of Qualifications.

“Per California Elections Code, Section 13307, staff is instructed to accept statements, and may not make suggestions for changes to the content of the statement; the content of the statement is created solely by the candidate, and as such, the statement was accepted by our staff at the time of filing.

“Elections Code Section 13313 requires the Elections Office to prepare for public viewing the content appearing in the Voter Information Pamphlet. I was responsible for preparing this file, and I am the final reviewer of the documents submitted by candidates for office to ensure that all documents are complete and that all content complies with Elections Code.

“During my review of Mr. Pruett’s statement, I discovered several sentences that appeared to violate Elections Code Section 13308, which states:

“‘In addition to the restrictions set forth in Section 13307, any candidate’s statement submitted pursuant to Section 13307 shall be limited to a recitation of the candidate’s own personal background and qualifications, and shall not in any way make reference to other candidates for that office or to another candidate’s qualifications, character, or activities. The elections official shall not cause to be printed or circulated any statement that the elections official determines is not so limited or that includes any reference prohibited by this section.’

“I immediately informed Mr. Diaz, the clerk-recorder, that I believed there to be a problem with Mr. Pruett’s statement, and I requested to handle the situation without him, and Mr. Diaz agreed.

“At no point was Mr. Diaz involved in the deliberation process; I alone have worked closely with the County Counsel’s office to make this decision.

“After consulting with our county counsel and the California Secretary of State’s Office to confirm the violations, and in accordance with Elections Code Section 13308 referenced above, I am striking the following sentences from Mr. Pruett’s Candidate Statement of Qualifications:

“‘Over the past years, the Nevada County Clerk-Recorder’s office became an embarrassment. We need new management.Let’s stop the drama and put professional management in charge.’

“As stated above, Elections Code prohibits a reference to a candidate’s opponent, or the opponent’s qualification, character, or activities; these sentences fall into one or more of these categories.

“The options available to our office to amend this violation of Elections Code are:

1) to strike the offensive language from the statement,

2) disallow the printing of the entire statement, or 3) for the Clerk-Recorder’s Office to file a writ of mandate or injunction “requiring any or all of the material in the candidates statement to be amended or deleted” (EC 13313, (b)1).

“In the best interests of the taxpayers of Nevada County, and to save the County from the burden of paying attorney fees for something easily resolved outside of court, I have decided that the disallowable content in Mr. Pruett’s statement shall be stricken, and that the remainder of the statement that complies with Elections Code will be printed as written, and have discussed with Mr. Pruett my decision regarding this matter.”


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