Judge Harry Tobias has ruled that the full report of an
investigation into the district attorney stemming from a harassment
complaint is confidential, but he stated the pre-mediation brief
summarizing the report is a public record.
Hollister – Judge Harry Tobias has ruled that the full report of an investigation into the district attorney stemming from a harassment complaint is confidential, but he stated the pre-mediation brief summarizing the report is a public record.
In a recent ruling, Tobias stated the right of the public to have access to the information included in a summary of the full report, which Board of Supervisor members used to settle a harassment suit against District Attorney John Sarsfield and was leaked to the Free Lance, outweighed any public employee’s right of privacy.
“The investigation revealed allegations of a substantial nature concerning Mr. Sarsfield’s conduct, and pursuant to the Bakersfield City School case cited by petitioners, public disclosure is justified,” Tobias stated in the ruling.
However, he ruled that the full investigative report, generated by the San Benito County Board of Supervisors in response to a sexual harassment lawsuit filed by Victim Witness Department employees Katie Fancher and Julie Roybal, is protected by attorney-client privilege.
Because the women’s attorney, Bill Marder, never asked for the full report while the lawsuit was pending, Tobias ruled the report’s contents are no longer relevant to his client’s case and should not be made public. Fancher and Roybal settled with Sarsfield and the county for $35,000 in January.
Marder, who argued before Tobias in April to have the full report released because he believes it is in the public’s interest to read the findings, said he considers Tobias’ ruling a win. Although he originally said he would appeal Tobias’ decision if denied his Public Records Act request for the full investigation, Marder said Tuesday that he may not pursue the matter further.
“The mediation brief is unequivocal that Sarsfield did mistreat Katie and Julie and engaged in serious misconduct. But no one could talk about it because Sarsfield kept threatening to sue, so now it can be openly discussed and openly disseminated,” Marder said. “Only a few people had seen it and I heard some public dispute that it was ‘cherry picked.’ It’s good to show the whole brief to show (the Free Lance) did characterize it in a fair manner.”
Sarsfield and his attorney, Jon Giffen, did not return phone calls Tuesday. However, the district attorney has said he plans to sue the county, Marder and the women for a breach of confidentiality because a copy of the summary brief was leaked to the Free Lance in February.
In the mediation brief, an investigator from the San Francisco law firm Leibert Cassidy Whitmore sustained several of the allegations in Fancher and Roybal’s complaint and later their lawsuit. The investigator concluded that Sarsfield retaliated against some of his own employees because he believed they were aligned with the previous administration, according to the mediation brief. However, it concluded that the allegations “did not establish liability for sexual harassment or gender discrimination.”
After the summary’s findings were printed in the Free Lance, the Board of Supervisors initiated an investigation into the source of the leak.
Supervisor Pat Loe was upset about the summary being made public because she, along with members of the former Board of Supervisors, agreed to keep the information private. Although Sheriff Curtis Hill, who’s department is heading the investigation into the leak, was unsure whether the judge’s decision will render his investigation moot, Loe said she believes the investigation should go forward because she wants to know if a county employee released the information.
“As far as I’m concerned, if one of our employees released it I would like to know,” Loe said.
Hill deferred questions of the investigation’s status to County Counsel Claude Biddle, who did not return phone calls Tuesday.
But Supervisor Anthony Botelho said he doesn’t see a need for the investigation to go any further, and that it has already exceeded its scope. He believed the investigation was initiated to determine if there was a leak from the board’s closed session meetings concerning the summary’s contents.
“It was not to see how the Free Lance obtained the report, but rather if there was some sort of misconduct by the board itself. I think the investigation went beyond its intended scope when they interviewed other folks outside the Board of Supervisors,” Botelho said. “It goes back to whether or not a board member released the report. I’m sure the investigators concluded that portion of their investigation, so I don’t see it going any further.”
Although Tobias turned Marder’s request down for the full report, he ruled the county will have to pay Marder for his time in obtaining a judge’s ruling on the issue. Marder was unsure how many hours he will bill the county for, but said he will charge $350 an hour for this case.
“It was a lot of time, I can tell you that much,” Marder said.
Erin Musgrave covers public safety for the Free Lance. Reach her at 637-5566, ext. 336 or [email protected].
