Since 1989 the Municipal Water District of Orange County (MWDOC) has paid Foley as one of two appointed (non-elected) public officials who represent it on the MWD board. In turn, in Jan. 2011 MWD elected him as its chairperson for the second time.
As chairman, Foley runs MWD board meetings and appoints all members of all committees. He also attends some MWDOC meetings for discussion but not for voting.
The complaint, submitted by Merle Moshiri, president of Residents for Responsible Desal, alleges a spate of violations by Foley, including multiple failures to report income—totaling at least $640,000—that he received through his wife’s consulting business and another $15,000 earned from his own consulting business.
His wife, Mary Jane Foley, consults for government water agencies and companies to help them navigate through environmental regulations and obtain permits for water management projects, like ocean desalination.
Under California law, spousal income is considered a 50/50 split unless property is legally separated by a prenuptial agreement.
The complaint also alleges Foley cast four votes since 2005 that were illegal because they indirectly related to his wife’s consulting contracts with MWD, MWDOC and other water agencies.
State law requires public officials to disclose all reportable income on financial disclosure (700) forms that are open for public viewing. Those officials must recuse themselves from votes that could result in financial benefit for them or their spouses.
Fines of up to a $5,000 can be levied for each violation.
In an op-ed column published by the Surf City Voice, Moshiri says that her complaint follows a “frustrating process that started 10 years ago” with a city proposal to allow a large ocean desalination plant to be built in southeast Huntington Beach. That process has been marked by a “lack of accountability and transparency,” she wrote.
But Moshiri’s complaint also follows recent disclosures in the Surf City Voice and the Voice of OC (not a related publication) about Foley’s apparent failures to comply with various state conflict of interest laws.
The Surf City Voice first reported that Foley failed to report well over $200,000 of income from his wife’s consulting work (for public agencies only) and subsequently reported that Foley also failed to report $15,000 from his own consulting work.
Last September, Foley told the Surf City Voice that he didn’t know he had to report his wife’s income, stating that that “I never felt it was required. You know, I don’t have no problem with it.”
A month later, however, Foley updated his 700 forms back to 2004 by including his wife’s income. But he did not include his own consulting income in the updates.
On two subsequent occasions in January the Surf City Voice asked Foley by email what specifically had led him to believe that he didn’t have to report his wife’s income. Foley did not respond. During a phone interview on Feb. 7 he said that he still didn’t think he had to report his wife’s income because he had no access to it. He had updated his disclosure forms only for appearance’s sake, he said.
If Foley and his wife had signed a valid prenuptial agreement stipulating the separation of their property, there would have been no conflict of interest or requirement to report the income. He had never mentioned such an agreement before, and when asked the next day if such an agreement existed, he said no.
Then on Feb. 27 the Voice of OC reported that from 2007 to 2010 Foley had voted to approve three contracts—over $9 million worth—with engineering firms that had paid his wife over $20,000 for consulting.
The Voice of OC report also estimated that – including income from his wife’s consulting work for private firms – Foley had failed to report at least $640,000 of income prior to revising his 700 forms.
In that report, Foley reversed course and asserted that he and his wife did have a prenuptial agreement to keep their income separate.
But the Voice of OC noted that Foley had revised his 700 forms as if he had a share his wife’s income, indicated by filling in the part of the form that asks to “Identify … your pro rata share of the gross income to the entity (trust).”
In the same Voice of OC report Foley claimed that his prenuptial agreement also freed him to vote on the contracts.
The next day Foley made a public statement while chairing the MWD’s Executive Committee in Los Angeles, far from the view of the MWDOC ratepayers he represents. He and his wife have an agreement, he said again, which led them to believe that her income wasn’t reportable.
“It was further our understanding,” he added, “that Mary Jane would never work for any agency that had any connection with Metropolitan (MWD). I now realize that it would have been better for me to have abstained from votes pertaining to contracts between Metropolitan and firms that Mary Jane may have consulted with and I plan to do so in the future.”
Foley did not make a statement to the MWDOC board despite an invitation by Chairman Jeffrey Thomas to do so.
And, so far, Foley hasn’t responded to requests by the Voice of OC and the Surf City Voice to see the prenuptial agreement; but, if the FPPC investigates, he will be asked to show proof of it.
But even though a public official’s suspected actions turn out to be legal they aren’t necessarily ethical—a consideration that is big in the MWD’s ethics manual, which Foley and all the other MWD directors presumably have read.
MWDOC doesn’t have an ethics manual, but Chairman Thomas has invited the FPPC and legal experts to put on a workshop titled Ethics & Conflict of Interest Disclosure today (Monday, March 19) from 1:30 – 4:00 p.m. Invited public officials, not just from MWDOC, will learn how to fill out 700 forms.
Thomas explained his reasons for the workshop at a joint meeting of MWD and MWDOC directors that included Foley.
“Given a lot of us having questions on ethics and filing 700 forms and all the nonsense that goes into having to try to remember what you did and what you should report, what is reportable and non reportable, I thought what we would do is have a little mini seminar here.”
Thomas, who has since revoked his “nonsense” remark, invited members of the public to attend as well. The workshop will be held in MWDOC’s meeting room from 1:30 p.m. to 4:00 p.m.
At another meeting held last week, MWDOC Director Brett Barbre proposed that 700 forms for all MWDOC’s directors, its appointed MWD directors, and its employees, be vetted by the board to weed out any potential conflicts of interest. “I just think it’s smart for us to be proactive and as transparent as possible,” he said.
The idea will be discussed at April’s general board meeting and voted on at a subsequent meeting, the committee agreed.
Public citizens like Moshiri wish that MWDOC and the MWD would have been more proactive long ago, but they will probably appreciate even small steps in the right direction.
As Moshiri notes in her commentary, “Those endowed with the public trust have an obligation to give their constituents no cause for doubt.”
John Earl is the publisher and editor for the Surf City Voice and Poseidon Town. In the late 1980s, he covered local politics for the Huntington Beach News. In 2005, he was a founding member and first president of Residents for Responsible Desal, which he left in 2006 to become editor of the print newspaper, OC Voice.