Publication Date: Wednesday, September 28, 2005
Weekly sues city for documents in utilities scandal
Weekly sues city for documents in utilities scandal
(September 28, 2005) by Bill D'Agostino
The Palo Alto Weekly sued the City of Palo Alto Wednesday for documents relating to a Utilities Department scandal that ended with 19 employees being disciplined or fired.
The newspaper's lawsuit, filed in Santa Clara County Superior Court, argues the public's right to know trumps the city employees' right to privacy due to the "egregious nature of the misconduct at issue."
In late 2004, the city began investigating allegations that a few utility workers used city equipment and then charged the city overtime for non-city work. The probe later expanded to more allegations, including lack of managerial oversight, sexual harassment and physical intimidation.
The six-month investigation cost the city approximately $300,000.
On July 21, the Weekly requested, under the California Public Records Act, a plethora of documentation, including the report of an outside investigator, and records of interviews and memos outlining the disciplinary actions taken against the employees. The city denied the request on Aug. 2.
"The city's refusal to release the investigative reports on the utility department scandal runs counter to both state law and legal precedent and it prevents the public from understanding the details of how such improprieties occurred and the actions taken by the city to ensure they will not occur again," Weekly Publisher Bill Johnson said.
In the Aug. 2 letter, City Attorney Gary Baum argued the documents were protected for a variety of legal reasons, including that some were confidential employee files and others were prepared by an independent contractor and therefore protected by attorney-client privileges.
"We need to protect our employees' rights and what's being asked for is almost all personnel records or its police records," Baum said Thursday. "We take protecting those employees' rights and personnel rights very seriously. That's why we haven't given out these documents to date."
In the lawsuit, the newspaper pointed out it is not seeking records prepared "for law enforcement purposes." No criminal charges were filed against any of the employees.
The city attorney did not notify City Council members about the newspaper's potential lawsuit or its request for the documents prior to the lawsuit being filed on Wednesday.
In the July 21 letter, the Weekly formally requested the documents and stated that the request was "an attempt to avert litigation over this matter."
Baum said he felt that the city's Aug. 2 letter refusing to hand over the documents "was the end of it and if there was a lawsuit they'd call first."
"I don't think I realized that it was going this far," Baum added.
Mayor Jim Burch confirmed he didn't learn of the newspaper's July 21 request until the lawsuit was served. He gave conflicting answers about his view on the lawsuits central legal question -- where the privacy rights of city employees end and the public's right to know begins.
On one hand, Burch said information about disciplined employees should be public, but added he "wouldn't second guess" the city attorney's decision "at this point."
The city's investigation began in late 2004 when a Menlo Park police officer noticed a Palo Alto utility truck working at a Menlo Park home.
The Weekly made the investigation public in January. Despite confirming the investigation and releasing a few details about the alleged wrongdoing, top city officials refused to release the exact titles or names of the employees disciplined.
In a brief summary report released to the public in June, the city stated that 19 employees -- including nine managers -- received discipline. Six of those employees were terminated or chose to retire.
In June, the fate of Utilities Department Director John Ulrich was said to be up to City Manager Frank Benest, who has since refused to state what -- if any -- disciplinary action was taken against the director.
The one-and-a-half-page summary report also explained organizational changes made as a result of the investigation. Baum argued the report is "more than another city has provided in any incident like this."
"We regret the need to sue the city, but the city attorney's insistence that all records pertaining to the malfeasance of its employees are secret from the public cannot go unchallenged," Johnson said.
This is the second lawsuit the newspaper has filed against the city.
In early 2003, the Weekly sued to obtain copies of e-mails, which the city was withholding, between council members and city staff regarding issues to be discussed at public council meeting.
The city settled, releasing those e-mails and promising to make such documents public in the future. As a result, there is now a Web site (www.city.palo-alto.ca.us/council) where the city posts such e-mails on the day of council meetings. The settlement was called a "breakthrough" in open government.
Staff Writer Bill D'Agostino can be e-mailed at bdagostino@paweekly.com.
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