Editorial: Lawsuit challenges PA on utilities secrecy Editorial: Lawsuit challenges PA on utilities secrecy (September 28, 2005)

Refusal to disclose details of investigation into utilities scandal prompts Weekly's second recent lawsuit against City of Palo Alto
A fundamental right of the public to know about negligence or wrongdoing by public employees will be tested in a lawsuit filed by the Weekly Sept. 21 against the City of Palo Alto.

The lawsuit challenges the city's decision to withhold details of a six-month, $300,000 investigation into the Utilities Department -- including names of employees fired or disciplined -- under the shield of "personnel matters" and "privacy."

But when public employees and officials (paid by taxpayer dollars) willfully or negligently fail to do their duties or, worse, purposely steal public funds by falsifying time cards or other means there is a vitally important right of citizens to know what's going on.

The lawsuit brings into focus two important yet often-at-odds legal traditions: the public's right to know versus personnel rights/privacy of individuals. (See story on page 3 for details.)

It also renews the question over what role the City Council should play in establishing or reviewing such a fundamental policy issue.

In this case, none, apparently. Mayor Jim Burch disclosed that the council was caught by surprise by the Weekly's lawsuit, and City Attorney Gary Baum confirmed that the council was not informed of the numerous requests the Weekly had made prior to filing the suit last week.

Weekly reporters and editors sought for weeks to obtain information about the disciplinary actions and a copy of the report of an outside investigator hired by the city. Nineteen Utilities Department employees reportedly had been either terminated, "allowed to resign" in lieu of termination (retaining benefits) or otherwise disciplined.

The 19 did not include Utilities Director John Ulrich, who earlier had faced disciplinary action up to and including termination, city officials had announced.

After repeated denials by Baum and Assistant City Manager Emily Harrison to release information, the Weekly submitted a formal demand letter July 21.

Subsequently city officials declined to release any further information about anyone, up to and including Ulrich -- whose departmental budget rivals the entire rest of the city budget combined. How high up does a public official have to be before the public gets to know the extent or culpability of failures or wrongdoing?

The revelation that City Council was never even informed of the potential legal clash -- which will cost additional money to defend or settle -- raises further questions about the council's oversight of City Attorney Baum and its policy regarding the handling of threatened litigation.

Failing to keep a client -- in this case the council -- fully apprised of circumstances building toward a potential lawsuit is a serious breach of the attorney's responsibility.

But there may be a more serious breach: the council's apparent inability to take charge of setting firm, clear open-government policies on behalf of the citizens and taxpayers it is supposed to represent -- especially their right to know about negligence or wrongdoing on the part of public employees.

Moreover, why didn't the council itself demand to know the outcome of the utilities investigation instead of leaving it to city management to clean it up?

A similar inability to establish a policy of openness led to the Weekly's lawsuit nearly three years ago, relating to secret e-mails sent from certain council members to staff members. Staff responses -- some of which took hours to prepare -- were kept secret from everyone else, even other council members. In a settlement, the Weekly won on all points, and all council/staff e-mails relating to council business are now made public.

Perhaps during a council election campaign is a good time for this to come up.

The intensive six-month probe of the Utilities Department turned up deeply disturbing breaches of oversight, sexual harassment, threats of physical harm and time-card fraud within the utilities operations -- echoing allegations more than a decade before in a "time-card scandal" in which two managers served time in jail.

The public deserves to know more than a generic statement about what this probe uncovered, and precisely what the city is doing to assure it won't recur a few years hence.

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