Six deputy district attorneys vying to succeed retiring Los Angeles D.A. Steve Cooley next year have shown three different responses to a newspaper's request for any records of discipline by either their departmental bosses or the State Bar. Three have waived any confidentiality and show no incidents in their records. One has partially disclosed a facetious comment that drew a complaint from an intern. But two have stayed silent so far. Roger M. Grace, editor and publisher of the courthouse newspaper Metropolitan News-Enterprise—and himself a lawyer—calls their unresponsive stance "audacious" and says they probably can't keep any discipline records secret.
Three of the six candidates for the post of Los Angeles County district attorney have waived all confidentiality as to their records of departmental and State Bar discipline; one has consented to partial disclosure; and the other two—Deputy District Attorneys Steve Ipsen and Danette Meyers—won’t respond.
Chief Deputy District Attorney Jackie Lacey and Deputy District Attorneys Bobby Grace, Alan Jackson, and Mario Trujillo have no record of public or private discipline from the State Bar, I was told by Jill Sperber, special assistant to Chief Trial Counsel James Towery.
Lacey, Jackson and Trujillo have clean records in the DA’s Office, Assistant District Attorney Sharon Matsumoto said yesterday.
Then there’s the matter of Grace (no relationship). He initially assented to a release of all records, then changed his mind. An e-mail he sent Monday explains:
“In regards to the waiver form I am reminded by the Personnel office of the District Attorney that there are rules of confidentiality that extend to the holder of the file and other parties.
“There is a letter in my file that can be interpreted as discipline. Because the letter involves third parties who would have to waive confidentiality I cannot and the District Attorney’s office will not release the letter.
“I can tell you that the matter did not result in any suspension, demotion or transfer.”
I met with Grace yesterday. He showed me a copy of a July 5, 2007 “Letter of Reprimand” signed by Richard Doyle, a division director. Grace had redacted the name of a woman who had been an intern under his supervision with whom he had communicated by e-mail. She complained of sexual harassment. There was nothing of an explicit sexual nature. She had expressed the supposition that she was hired by him based on her “brains, great wit, and humanitarian spirit,” and he responded: “No, you got hired for your smile, shape and great hips.”
A District Attorney’s Office spokesperson confirmed late yesterday that the letter of reprimand is the only discipline Grace has incurred.
The focus is on Ipsen and Meyers.
Ipsen and Meyerscertainly can’t be forced to assent to a release of their records. On the other hand, each is a deputy in the Office of District Attorney and is aspiring to head that office. It strikes me—and should strike voters—as audacious for them to withhold consent to a public release of records reflecting on their past conduct, and thus on their fitness for the post they are now seeking.
It’s sort of like a job applicant telling an employer “It’s none of your business” when asked about past employment.
But do Ipsen and Meyers actually possess the power to block public disclosure of discipline they’ve incurred (if any)? I don’t think so. A writ proceeding might be necessary to find out.
A person who announces candidacy in effect tells the public, as the song lyrics go, “Hey, look me over.” The aspirant for public office should not then be able to block the public from doing just that.
The public’s need to know of misconduct by the candidate decidedly outweighs the candidate’s interest in privacy. In calling upon the public to examine his or her credentials, the candidate impliedly has waived any privacy interests in records which are of direct relevance to fitness for the public office being sought.
With these factors in mind, and in light of a state constitutional provision inserted through an initiative which blares out a command for openness, and relevant case law, there should be no doubt as to the public’s right to see the disciplinary record of a candidate for DA.
- · Departmental Discipline
As Acting Presiding Justice George Nicholson noted in his Sept. 29, 2006 opinion for the Third District in BRV, Inc. v. Superior Court (which ordered disclosure of information concerning a superintendent of schools who scatted from office following an investigation of misconduct allegations):
“In 2004, California voters approved Proposition 59, which enshrined in our state Constitution the public’s right to access records of public agencies. (Cal. Const., art. I, § 3, subd. (b).)….The amendment requires the Public Records Act to ‘be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.’ ”
Nicholson’s opinion says “the amendment has little impact on our construction of the Public Records Act as that statute applies to this case” because it did not change the law as it already existed. Maybe not, but it did provide an underscoring of the existing law with a broad-point marker.
The key provision ofthe Public Records Act is Government Code §6253, which says, in part:
“Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as hereafter provided.”
Sec. 6254 contains exceptions, including this:
“Personnel…files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”
How could it possibly be “unwarranted” for disclosure to be ordered of bad conduct (if there has been any) on the part of Ipsen or Meyers while serving in the District Attorney’s Office?
The Third District opinion says there must be a “weighing [of] the competing interests” of the public and the individual invoking privacy rights. Here, it is not even a close question. The candidates have voluntarily placed in issue their records as members of the DA’s office, and their records include those tucked in their personnel files.
Sec. 6255 permits nondisclosure where, “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” Nonapplicability of that provision is manifest.
Performance evaluations of the six candidates for the past three years, also sought from them by the MetNews, likewise would seemingly be subject to forced disclosure if not voluntarily made…well, except for the request to Lacey. So far, Jackson has pledged to provide his while Lacey has noted that there are no such evaluations for persons, such as she, in management, but volunteers that she’d be happy to supply those from the 1990s.
- · State Bar Discipline
►It’s known that neither Meyers nor Ipsen has incurred public discipline, and neither has been hit with a private reproval after the institution of formal disciplinary proceedings. If either penalty had been imposed, it would appear on their records on the State Bar website.
There is the possibility, however, that either or both has received a private reproval based on a plea bargain, staving off formal proceedings. State Bar Procedure Rule 5.127(C) says:
“A private reproval imposed before a State Bar Court proceeding begins is part of the member’s official State Bar membership records, but is not disclosed in response to public inquiries and is not reported on the State Bar’s web page.
►It’s no secret that Ipsen has faced a State Bar disciplinary inquiry. The California Supreme Court on March 3, 2005, in a 6-1 opinion in In re Sakarias, took Ipsen to task in connection with his prosecution of two murder defendants, alleged coconspirators, who were tried separately. In each case, Ipsen portrayed to jurors that the immediate defendant was the one who struck the fatal blow. Justice Kathryn Werdegar wrote for the majority in granting a writ of habeas corpus to one of the two, Peter Sakarias, saying:
“We agree with Sakarias that the prosecutor violated his due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person.”
The fact of an impending disciplinary proceeding was publicly bared on April 12, 2005, when the Board of Supervisors mulled (and did not immediately act upon) a request by District Attorney Steve Cooley that the county pay for any defense.
What became of the matter is not known.
But shouldn’t it be known, as Ipsen heads for his second effort to convince voters to elect him DA?
Shouldn’t it have been known three years ago when he challenged Cooley for reelection?
Shouldn’t the State Bar disciplinary record, if any, of Meyers be known?
Case law points to an answer in the affirmative.
►The Public Records Act does not apply to the State Bar.
However, on June 10, the Court of Appeal ruled that the State Bar is subject to “[t]he common law right of access to public documents [which] is broader than the First Amendment right of access to adjudicatory court documents.” It said that in ruling on a writ petition to force disclosure of non-public information, the trial court must weigh competing interests.
The State Bar has no apparent interest, whatsoever, in shielding deputy district attorneys who are running for DA from public scrutiny of their disciplinary records. The candidates have no interest in nondisclosure if, in fact, they have not sustained private reprovals. And if they have, the public’s interest in that information is obviously heavy and theirs weightless…indeed, nonexistent, having been waived.
Waiver of confidentiality is discussed in a 1960 California Supreme Court opinion. At issue was whether the defendant in a libel action brought by an attorney had a right to discovery of any complaints the State Bar had received concerning the attorney. The high court ruled in Chronicle Publishing Co. v. Superior Court that complaints not leading to discipline were confidential—but private reprovals and complaints giving rise to them were subject to discovery.
Let me put that in context. Nowadays, once the State Bar files a formal complaint against an attorney, the proceedings are open to the public, and the only difference between a “private” reproval and a “public” one is that the former is not included in press releases or otherwise publicized; anyone can learn of post-complaint private reprovals by telephoning the State Bar or by checking the lawyer’s record on its website. Back then, openness in disciplinary proceedings did not exist and a private reproval was, in fact, private.
But, the 1960 case says, privacy had been waived by the lawyer. This reasoning appears:
“So far as the attorney’s privilege is concerned, he waives it when, as in this case, he places his reputation as an attorney in issue.”
Indisputably, an attorney who seeks the office of city attorney, district attorney, or attorney general, or runs for a judgeship places his or her reputation as an attorney in issue.
The opinion goes on to say:
“A private reproval is an official act of the board, as much as a public reproval. It means either that some charge brought against the member has been determined to be well founded, or that some conduct warranting reproval has been disclosed. If the information is relevant there is no reason that in a proper case such information should not be available by discovery. In such case the public interest when weighed against the interest of the one desiring discovery would not suffer. An attorney who has so conducted himself as to merit a private reproval must expect that in a proper situation the facts upon which the reproval was based may be brought to light.”
On her website, Meyers draws major attention to the endorsement of her by former DA Gil Garcetti who lauds “her strength of character and integrity.”
Ipsen’s website, which does not list any endorsers, contends: “His dynamic leadership will inspire public confidence and restore our belief in the integrity and character of the Office of the District Attorney.”
Both candidates should reasonably expect that information as to private reprovals of them, if any, will be subject to public disclosure given that they are, themselves, courting a public examination of their commitment to ethics.
One other case should be noted: Mack v. State Bar of California decided by this district’s Court of Appeal in 2001. Weeding out the citations, it says:
“Under the California Public Records Act…, there is a strong public policy favoring the disclosure of public records….The Legislature has declared that access to public records is a ‘fundamental and necessary right....’ Since the State Bar is a constitutional entity that serves as an administrative arm of the Supreme Court, the [California Public Records Act] apparently does not apply to it….Even if we were to treat State Bar disciplinary records as ordinary court records, both decisional law and state and federal constitutional principles have established a powerful public right of access to those records.”
In light of that “powerful right,” Ipsen and Meyers would do well to give further thought to their refusals to assent to the public release of their disciplinary records.
Any candidate for any public office should be deemed to have waived privacy rights as to any normally non-public governmental records directly bearing on his or her suitability for the office being sought.
Back when voters, statewide, chose a superintendent of public instruction, should not the full disciplinary record of a school principal seeking the post have been subject to disclosure?
How can it possibly be justified to keep from the public any information in government files that might be key to an informed determination as to the office-seeker’s credentials?