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By PAUL GULLIXSON
One day last July, two reporters walked into the City Hall of a small Los Angeles County community and made a simple request. They wanted to know how much the highest-ranking city officials were making.
The city manager refused to tell them. So the reporters filed a California Public Records Act request, a legally binding document that protects the public’s right to access such records.
The rest of the story concerning the city of Bell is now legendary. After some foot-dragging, the city manager turned over the documents which showed he was being paid twice as much as the president of the United States — nearly $800,000 a year, or about $1.5 million including benefits. The police chief was getting $450,000 a year while an assistant city manager was raking in $350,00 plus — all this in a community smaller than Rohnert Park.
What ensued was public outrage, criminal investigations and a series of stories that, on Monday, earned the L.A. Times a Pulitzer Prize for public service. The prize is well-deserved and has rekindled important discussions about the still-vital role of newspapers and investigative reporting.
But what shouldn’t be forgotten is that all of this began with a law — the Public Records Act. Without it, this story may never have come to light. And with it, truth be told, anyone could have uncovered the story, not just newspaper reporters.
But the Public Records Act, as with newspapers, faces its own threats, some of which have been on display here in Sonoma County concerning the stories about the embattled former agriculture commissioner.
This story also began in July, when Amy Cooper was suddenly fired from her job as head of Sonoma County’s Animal Care and Control division, just two days before the end of her yearlong probationary period.
Last week, Cooper returned to work after being rehired, while the person responsible for her dismissal, former Agricultural Commissioner Cathy Neville, is now gone and is locked in a legal battle with the county.
But for all the coverage of this revolving-door situation, the public is still in the dark about what happened. We still don’t now why either Cooper or Neville was let go — or why Cooper was hired back.
On behalf of the newspaper, Staff Writer Derek Moore has submitted a Public Records Act request for documents related to the dismissal of Neville. In particular, he asked for the investigation report concerning allegations against Neville, who was placed on paid leave on Jan. 12 and finally fired on March 22. We have since learned the investigation report is 35 pages long and includes 53 exhibits and interviews with 21 employees.
But the response has been unusual to say the least. The county last week said no, arguing that it is a private, personnel matter. In denying our request, County Counsel Bruce Goldstein also argued it was a matter of attorney-client privilege, given that the person who conducted the investigation is a Sacramento attorney.
Here is where the threats to the Public Records Act come in.
First, courts have determined that the public’s right to know does not always outweigh a public employee’s right to privacy. Fair enough. But courts have found that where there are allegations of serious misconduct by an employee — particularly a high-ranking official — and where those allegations have been found to be valid, there is no presumption of privacy.
Such was the case of a school superintendent in Dunsmuir who was investigated in 2004 for allegations of being verbally abusive to students. The superintendent cut a deal with the school board to resign as long as the district kept the case against him a secret. But the courts ordered the release of the investigator’s report on grounds the public had a legitimate interest in knowing what happened.
Meanwhile, it has become a common tactic among cities to keep internal investigations secret by involving attorneys as much as possible. That way, they can claim the attorney-client privilege. But courts have not always found this to be iron-clad protection. The key question is whether the investigation could reasonably have been done by someone other than an attorney. We may not know that answer until a judge has a look at the documents.
However, what makes the county’s response most unusual is that while Sonoma County attorneys have rejected our request, they’re arguing, as part of Neville’s termination lawsuit, that these same documents should be made public.
The county notes in a legal brief that given that Neville is a high-ranking official and, given the validation of the allegations against her, “the public’s right to transparency outweighs an individual’s privacy interests.”
We couldn’t have said it better ourselves.
So why the double message? It’s not clear. But from all of this, I gather two things:, one, the county feels it has a good case against Neville and probably would like to see the documents released so the public can draw its own conclusions.
But, two, the county is so afraid of being sued — or jeopardizing its chances of winning the lawsuit already filed — that it lacks the conviction to abide by its obligations under the state Public Records Act without being compelled to do so by a judge in the civil case.
It would be surprising if Sonoma County Judge Patrick Broderick, who has set a May 10 date to hear the case, doesn’t release the documents, particularly given that Neville is claiming her termination was politically motivated and arbitrary. If, however, he doesn’t, it could set a dangerous precedent — that PRA requests will somehow be relegated to second-class status behind any civil proceedings involving the termination of the public employee, whether misconduct was involved or not.
I fear the day when reporters, or bloggers, are stopped in their attempt to break the next municipal scandal because the employees caught with their hand in the cookie jar are able to keep the information secret merely by threatening legal action.
Cities and counties can’t allow fear of civil litigation to erode the public’s fundamental right to access. If they do, we deserve all the Bells we have coming.
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Excellent article, Paul.
I would just like to know how to get rid of that insanely obnoxious Comcast ad at the top of the page!
Mr. Gullixson: I think the more interesting story of late is that of the Jenkel/Hobbs feud.
What is most interesting, is that Jenkel is being pillaged in public by his greedy neighbor with the help of the court, which set up a bogus, one-buyer auction to transfer a couple of million dollars of land to the greedy Hobbs for several thousand dollars.
There are a lot of people with land and farms in Sonoma County. Shouldn’t the paper take a position on this heinous “taking” of land?
I think they’re standing this attorney/client thing on it’s ear. Maybe I’m mistaken, but I think the privilege belongs to the client (the County in this case), who is free to divulge the substance of the conversation or not. The attorney is of course duty bound not to divulge the conversation and the privilege keeps others from forcing the attorney to do so (such as on the witness stand). But there is nothing about the privilege that prevents the client/County from sharing what was said.
It’s time to open up the truth about SCACC where almost 2,000 healthy animals are killed per year, where over 500 animals went missing and cannot be accounted for, and open up the truth about why this is so year after year, regardless of who runs it. Now that would be a story, Mr. Gullixon. How come there’s persistent mania over a stupid feud over one government job, and zero concern for what goes on in that shelter for the animals?
Employees on probation may according to case law be dismissed for “good reason, bad reason, or no reason at all.” Employers therefore seldom give a reason when dismissing probationary employees. However, there is nothing to say that the decision to terminate a probationary employee is not poor judgment on the part of the manager making that decision. And where there is one instance of poor judgement, there often are others as well.
And certainly an Ag Commissioner spending her spare time playing beer rodeo with the CHP does not cover her or her employer, the County of Sonoma, in glory.