In order to decide whether an investigative report into the
district attorney’s office should be made public, Judge Harry
Tobias said Wednesday he needs to review the report himself to
determine if the information concerns confidential personnel
matters.
Hollister – In order to decide whether an investigative report into the district attorney’s office should be made public, Judge Harry Tobias said Wednesday he needs to review the report himself to determine if the information concerns confidential personnel matters.
Bill Marder, who represented the Victim Witness Department employees Katie Fancher and Julie Roybal in their harassment lawsuit against District Attorney John Sarsfield, filed a motion to have Tobias release the report under the California Public Records Act after the county denied his public records request. Tobias listened to Marder’s arguments, which were rebuffed by Deputy County Counsel Darren Bogie and Sarsfield’s attorney Jon Giffen, in front of a court room filled with three county supervisors and other political looky-loos. Supervisors Anthony Botelho, Pat Loe and Jaime De La Cruz, along with Ignacio Velazquez, who is spearheading a recall effort against the prosecutor, were all in attendance for the afternoon hearing. Fancher and Roybal also attended.
While Tobias didn’t make a decision on the report’s status, he said he may request additional information from the attorneys or read the investigative report himself to determine whether it is a public record, a protected personnel document or if it is shielded by attorney-client privilege. Tobias said he will issue a decision on the report sometime in the near future, but didn’t specify when.
Tobias’ main concerns centered around whether or not the report, which was commissioned by the Board of Supervisors using taxpayer dollars, is a personnel document and therefore confidential.
“It was prepared at the county’s request for the county’s benefit, which leads me to believe it was a public record,” Tobias said.
However, Tobias said he will need to review public record law before making a decision. But California Newspaper Publisher’s Association lawyer Jim Ewert, who specializes in Freedom of Information law, has said because Sarsfield is an elected official the county has a duty to release the report with names other than Sarsfield’s blacked out.
Bogie disputed Tobias’ statement saying that just because the county used taxpayer dollars to pay for the investigation doesn’t automatically make it a public document.
“The mediation brief has been made public – the findings are already out there,” said Bogie, referring to the leak of the mediation brief to the Free Lance. “Release of the investigative report would only be prurient details of what exactly went on, vendettas against people and possible grudges out in the paper. It would merely harm other employees in the office.”
But Marder argued that because his clients have been prohibited from talking about the settlement and the brief due to the confidentiality clause and the report was leaked to the Free Lance, the public has not been able to draw undeniable conclusions about the report’s contents. He also said that because Sarsfield is suing the county over the report, the public should have a right to know what the report’s contents hold.
“People don’t feel they can show it to whoever they want… My clients can’t use it, can’t discuss it,” Marder said. “It’s very important the public sees how investigations are undertaken to make sure they’re fair.”
The Board of Supervisors commissioned the investigation after Fancher and Roybal filed a complaint against Sarsfield. While the mediation brief leaked to the Free Lance sustained several of the women’s allegations in their complaint and later their lawsuit, including that Sarsfield retaliated against some of his own employees because he believed they were aligned with the previous administration, it also concluded that the allegations “did not establish liability for sexual harassment or gender discrimination.”
Sarsfield filed a statement with the court last week – points that Giffen reiterated Wednesday – that the report should remain confidential because it contains sensitive information about personnel matters and criminal proceedings. Sarsfield also plans to sue the county, Marder and the women for a breach of confidentiality because a copy of a summary of the report was leaked to the Free Lance in February. When he will file suit hasn’t been decided yet, Sarsfield said Wednesday.
While Tobias said Sarsfield’s arguments that the report would compromise criminal cases and pending litigation were flimsy, he also lambasted Marder for agreeing to a confidentiality clause Marder argued was invalid in the first place.
Marder said the confidentiality agreement all parties signed in order to settle the lawsuit for $35,000 is moot because elected officials are prohibited from entering into confidential agreements.
“Why agree to something if you don’t think it’s enforceable? Why not ask for the court’s supervision?” Tobias asked Marder. “You settle the case, you take the money, then when things get stirred up you want to talk about it? It seems odd you spent all this time and energy in agreeing to a contract that’s unenforceable.”
Although Marder contended he agreed to the contract in order to make the deal happen, Tobias still expressed concern that the issue hadn’t been brought up in greater detail in all of the attorneys’ arguments.
Sarsfield, who did not attend the hearing, said Tobias’ concerns are valid and that most important argument is the issue of privacy for personnel in his office. He also expressed concern about the county’s dependability will be compromised in future investigations if information his employees gave believing it was confidential is made public.
“I have basically no privacy left at all. There’s nothing in that report that hasn’t been already said,” Sarsfield said. “My concern is for the privacy of my employees. If Mr. Marder is successful the ability of the county to conduct investigations into personnel matters will be completely invalid.”
Erin Musgrave covers public safety for the Free Lance. Reach her at 637-5566, ext. 336 or [email protected]
