Contra Costa Times, Walnut Creek

12/23/03

Workings of department bureaucracy will always be open to public scrutiny

By Thomas Peele

Few subjects cause state bureaucrats to dive under their desks more quickly than questions about personnel and discipline.

Ask about a state employee. Ask for a disciplinary record. Inquire why a department handled a disciplinary matter in a certain way. Ask why the State Personnel Board voted the way it did on a disciplinary appeal.

There is uniformity to the pause on the phone, the blank stare from across the counter, the nervous fidgeting on the other side of the conference table.

All you're asking is how well employees do their tax-paid jobs. The typical response: It's none of your business.

But it is the public's business, says government watchdog Terry Francke.

Because the public pays for it, employee performance "is going to be open to general public scrutiny ... in a way that it would not be in the private sector," said Francke, general counsel of the California First Amendment Coalition.

Try telling that to the people who control the paperwork.

As part of a 21-month investigation of the state disciplinary system, the Times filed written requests for State Personnel Board records.

In response, personnel board lawyer Elizabeth Stein asked in an e-mail if the intent of the petitions was to "harass the board or its employees."

When the Times asked about the pension eligibility of a fired government worker, a pension system spokeswoman said the newspaper was "picking on" state employees.

Bureaucrats routinely use such answers to ward off scrutiny and exposure, Francke said in an interview.

"The normal interaction is that someone either in the press or otherwise asks for a record and is told, 'Oh, that's confidential, it is personnel,'" he said. "The mantra is 'personnel, personnel, personnel' and 'we can't give that to you.' ... I mean 99.9 percent of the time, that is the end of the story."

The officials legally can disclose many records. They just don't want to.

State employee unions, Francke said, have created "an environment (where bureaucrats) have a genuine anxiety that if (they) just hand something out, that they will be sued on it, and it will cause a very bitter situation with labor."

The government virtually demands a lawsuit to release public records, he said. The thinking is that when a judge orders the records released, government bosses can tell employees it wasn't their doing.

PUBLIC RIGHT TO KNOW

On April 9, 2002, the Contra Costa Times reported that investigators found thousands of pornographic photographs, including some of children, stored in the work computer of a top California Department of Health Services supervisor, Gilbert A. Martinez.

The same day, the newspaper filed a California Public Records Act petition with the health department seeking five years of disciplinary records of its employees.

Martinez, who ran the department's East Bay office of health facilities inspections, already was under state investigation for a conflict of interest that the Times first reported in June 2001. (The department fired him in September 2002.)

If Martinez could surf pornographic Web sites at work, then the public had a legitimate right to know "what other bad apples were in the ... barrel" in a department that serves an important public function, the newspaper's lawyer, Karl Olson, later wrote in legal papers.

Health department lawyers said they would release the records but asked for several lengthy extensions, saying they needed time to gather and review the documents. During the delays, the department notified the affected employees, who promptly called their unions.

In fall 2002, five unions asked a Sacramento judge to stop the department from releasing the records. The California Association of Professional Scientists, California State Employees Association, Association of California State Supervisors, Professional Engineers in California Government and the California Union of Safety Employees all represented health department workers.

The Times joined the lawsuit on the side of the health department, arguing that the records were public and had to be released.

The newspaper cited a 1978 appellate ruling that states when disciplinary "charges are found true, or discipline is imposed ... a member of the public is entitled to the information about the complaint, the discipline and information upon which it is based."

The appellate court said its decision clarified a basic tenet of the state public records law: "Access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state."

That right clearly extends to information about the misconduct of public employees and the discipline they face because of it, Olson said.

Employee unions argued otherwise.

J.J. Jelincic, president of the California State Employees Association, said in an interview he believes the intention of discipline is to change behavior, not punish employees.

Releasing details of why discipline occurred embarrasses the employee, he said.

In at least 10 cases, the health department had entered into confidentiality agreements with employees as part of a disciplinary settlement.

The department's chief lawyer, Barbara Yonemura, refused in an interview to discuss the agreements or the decisions that went into them, other than to say that the individual merits of each case led to them.

The unions argued that the confidentiality agreements forbade the department from making the disciplinary cases public.

Judge Talmadge R. Jones disagreed.

Privacy agreements with public employees cannot trump the public's right to know about the inner workings of government, Jones ruled.

"That was huge," said Olson, the Times' lawyer. Without a clear decision on confidentiality agreements, they likely would have become commonplace in disciplinary settlements, he said.

In all, Jones ordered the release of records of more than 250 employees.

Thousands of pages of documents answered the "bad apple" question that Olson had posed in legal papers.

The records showed that just months before the department found the pornography on Martinez's computer, it had allegedly uncovered two other employees who downloaded pornography at work.

The department fired Richard Cea and suspended David E. Loftis for 15 days. It failed to take any broader action to block its workers' Internet access.

The records also show people harassing each other, damaging colleagues' property, occasionally throwing punches -- and, in one case, a chair -- at their bosses.

Over the strong objections of the unions, Jones also ordered the release of the information state investigators gather to justify discipline. Those records track investigations from the beginning, detailing accusations. They often include witness statements, salary information of the employee and investigators' notes.

Jelincic and Jim Hard, the state employee association's director of civil service, said the information sometimes includes accusations of wrongdoing for which the employee was not charged.

Jelincic said that the unions' primary goal in the lawsuit was to make sure that any records released didn't include the home address, Social Security numbers and medical information of employees. Such data are routinely redacted from public records.

Olson said it was clear to him that the unions' legal thrust was to block the release of supporting documentation. The judge agreed. He ordered the unions to pay 85 percent of the newspaper's legal bills and the state to pay to remainder.

'800-POUND GORILLA'

There was one issue on which the Times lost: The disciplinary records of the health department's law enforcement officers remain confidential, due primarily to a state law commonly known as "the Peace Officers Bill of Rights." The law blocks public access to the records of police, correctional officers and other law enforcement personnel.

The law keeps secret the records of government employees about whom people have an important interest in knowing more, Francke said.

"We're talking about the only employees who have the power of violence as part of their normal tool kit and the power of arrest," Francke said. "The employees who, if they go wrong ... are those whose potential danger to the public is the most concealed."

Lance Corcoran, executive director of the California Correctional Peace Officers Association, said his members and other officers need the protections.

The files, he said, can contain trivial and unsubstantiated complaints, and because of the nature of their work, officers need greater protections for their personal safety.

Any reform would run into a solid blue wall, said Tom Newton, general counsel to the California Newspaper Publishers Association.

The prison guards union is the "800-pound gorilla" of state politics and quickly would render any reforms "dead on arrival," Newton said at a First Amendment Coalition meeting last month.

Paul Curry, a retired San Bernardino County deputy sheriff who is now a Sacramento lobbyist, agreed.

He said restrictions sometimes can frustrate law enforcement managers who would like to see the misconduct of officers made public as a way of increasing credibility.

Once California gave officers the protections of the Peace Officers Bill of Rights, "every cop in the country wanted them," Curry said.

Prison unions across the country "wield a political clout that no other union in the public sector wields," said Jonathan Walters, who has written extensively about public employee discipline. "They are tough, very tightly organized and politically sophisticated."

Don Specter, director of the Prison Law Group in San Quentin, which represents inmates, said the restrictions on access to records make little sense for the public.

"They are public employees," he said. "What they are doing, they are doing with our money, so I don't understand why they are not more accountable for their actions. I don't understand why it has to be ... such a secret."