FEDS PROBE SYMINGTON FIRMA GRAND JURY INVESTIGATES THE GOVERNOR'S DEVELOPMENT COMPANY AND ITS NUMEROUS FAILED REAL ESTATE DEALS
A federal grand jury is conducting an investigation of Governor Fife Symington's development company that apparently extends beyond previously known probes into the governor's business activities, documents reviewed by New Times reveal.
The grand jury, impaneled in Phoenix, recently sought financial records on 17 Symington Company projects in Arizona, the documents show.
It was revealed in December 1991 that the FBI had begun a criminal investigation into Symington's links with the financially troubled Camelback Esplanade project and a source of that project's funding, the failed Southwest Savings and Loan.
A subpoena reviewed by New Times, however, shows that a federal grand jury sought documents last July on virtually every major project undertaken by the Symington Company in the Phoenix area. The subpoena seeks records dating back to 1980. The governor has been listed as majority owner of the Symington Company.
The subpoena does not indicate the purpose for seeking such wide-ranging information about the governor's firm. Taking information to a grand jury is a necessary step if federal authorities wish to seek a criminal indictment. There is no indication at present, however, that any criminal charge is imminent.
The subpoena shows that the investigation of Symington's firm is headed by Assistant U.S. Attorney John Walsh, chief of the major frauds division for the U.S. Attorney's Office in Los Angeles. Oversight of the FBI investigation into the Camelback Esplanade transaction was transferred from the U.S. Attorney's Office in Phoenix to the one in Los Angeles in February 1992.
Walsh said last Monday he could not "confirm or deny anything to do with the grand jury or with an investigation."
Symington, who is planning a major fund-raising event on October 8 for his 1994 reelection campaign, declined to comment Monday on the grand jury proceedings. John Dowd, a Washington, D.C., attorney hired by Symington to handle the FBI's criminal probe, said Monday he didn't know anything about the grand jury.
"I'm not aware of a grand jury sitting in Phoenix, Arizona, being led by a guy named Walsh," Dowd said.
It is unclear whether the grand jury investigation includes examination of Symington's relationship with Southwest Savings. Several sources familiar with Symington's role as director of Southwest Savings from 1972 to 1984--particularly the thrift's 1983 investment in the governor's Camelback Esplanade project--say they have not been asked to appear before the grand jury.
"No one has contacted me about anything," says Tom Fannin, a Mesa realtor. Fannin served on the board of directors of Southwest Savings with Symington, and has been named, along with the governor and other former thrift officials, in a $197 million federal lawsuit stemming from the 1989 failure of the thrift.
The grand jury subpoena reviewed by New Times does not state the reasons that records relating to the Symington Company were being sought. A Phoenix attorney said last week that federal authorities have asked his client for records concerning, among other things, the value of real estate held by Symington's firm.
Public records and documents obtained by New Times show the governor has valued real estate investments at a greater amount when applying for at least one loan than when filing valuation statements for property-tax purposes.
For example, in 1987, the governor received a $975,000 loan from the state retirement system for his Ten Mo real estate project on East Missouri, based on a $1.25 million appraisal. The same month the loan was granted, Symington told the Maricopa County Property Tax Office the building was worth only $432,357. In the end, the governor walked away from the note, leaving the state with a half-empty office building and a $350,000 shortfall on the loan.
It is not known whether such discrepancies are a focus of the grand jury. The grand jury subpoena, however, makes clear that information on numerous large projects undertaken by the Symington Company is being sought. The projects named in the subpoena include Scottsdale Centre, Scottsdale Seville, the 5080 North 40th Street Building, the Mercado and the Camelback Esplanade.
To date, most discussion of Symington's business troubles has focused on the Esplanade.
Southwest Savings lost at least $38 million on the Esplanade, a federal lawsuit alleges. Symington's development company, meanwhile, was paid $2.2 million by the thrift to build the office-and-hotel complex at 24th Street and Camelback, according to a civil suit filed by the Resolution Trust Corporation in December 1991.
In November 1991, the RTC asked the FBI to conduct a criminal investigation into Southwest's investment in the Esplanade. The criminal referral came three months after an internal RTC document, which accused Symington of "blatant self-dealing" in connection with Southwest Savings' $30 million investment in the Esplanade project, was leaked to the press.
The RTC memo was obtained by the Washington Post shortly after the top RTC attorney reviewing the case, Al Byrne, ordered RTC staff attorneys to weaken the charges against the governor in the civil suit the agency was preparing against Symington and other Southwest Savings officials.
When the RTC filed its civil suit, the "blatant self-dealing" charge was not included. The agency did, however, accuse the governor of receiving "millions of dollars of unwarranted revenue" from Southwest's investment in the Esplanade.
The RTC stepped up the charges in February 1992, when it filed an amended suit, this time accusing Symington of breaching his "duties of candor and loyalty" to Southwest Savings in connection with the Esplanade investment.
The suit alleges that Symington estimated the predevelopment costs for the project would total $2 million, including developers' fees of $300,000. But between November 1983 and September 1986, predevelopment costs totaled $13 million, with Symington's company receiving $2.2 million, according to the suit.
The governor has claimed that the fees he received were largely spent during an expensive and contentious zoning battle and for planning and design. An internal Southwest Savings audit, however, showed Symington's fee was separate from additional outlays made by the thrift, including $4.3 million for architects and $3.2 million for zoning consultants.
The RTC also alleges the Esplanade investment violated two federal regulations--failure to receive approval from bank regulators before entering a transaction with a fellow board member, and failure to obtain an appraisal before buying the land.
A Phoenix appraiser who conducted a preliminary review of the property for Symington in July 1983 has publicly stated that he never conducted a formal appraisal of the land before it was purchased. The former president of the thrift, Donald Lewis, has also stated that no formal appraisal was conducted.
The RTC alleges that Symington and Lewis failed to disclose to federal thrift regulators that Southwest Savings had already purchased the land for the Esplanade when the two men traveled to San Francisco in December 1983, seeking permission to do the deal.
Another factor playing an increasingly important role in the civil suit is whether the Southwest Savings directors, including Symington, illegally paid dividends to the thrift's owner, late billionaire Daniel Ludwig.
In 1983, the last full year Symington was on the board, the thrift reported earnings of $708,000 and forwarded $706,000 to Ludwig through preferred stock dividends.
"The RTC contends that based on Southwest's reported income and earned surplus," state law "did not authorize payment of any preferred stock dividends in 1983," U.S. District Court Judge Earl Carroll wrote in a July ruling rejecting Symington's motion to be dismissed from the case.
Between 1983 and 1987, the thrift reported profits of $40.9 million and forwarded $17.2 million in dividends to Ludwig. Regulators contend the profits were overstated and misleading. The thrift reported losses of $196 million in 1988.
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