D.A.: Press Aide's Taping Phone Interviews Was OK

FREE PRESS — The Alameda County District Attorney has agreed with Attorney General Jerry Brown's staff that the secret taping by Brown's press spokesman of phone interviews by a reporter was not unlawful, given that the results were going to be on the record in any case.

As reported by Jack Chang in the Sacramento Bee,

Brown's office had asked District Attorney Nancy O'Malley to conduct
the independent investigation into the repeated recordings made by
communications director Scott Gerber, who resigned in November after
news broke about his actions.

With Brown expected to announce his
Democratic candidacy for governor, his handling of the case became a
target of media criticism and political attacks.
O'Malley found that Gerber had disobeyed the instructions of Chief
Deputy Attorney General James Humes not to record interviews with Brown
and other members of the attorney general's office.

But
Gerber had not violated state penal code section 632, which prohibits
the intentional recording or eavesdropping of conversations without
consent, because the interviews were "meant for publication and
airing," O'Malley found.

Gerber recorded interviews conducted by
reporters from the San Francisco Chronicle, the Associated Press and
other media organizations.

"The investigation concluded,
therefore, that the recorded conversations were not confidential and
there is insufficient evidence to support any conclusion that they were
meant to be confidential," says a press release from the District
Attorney's Office.

The attorney general's office had reached a
similar conclusion in its own investigation but asked for the second
inquiry after critics accused Brown of trying to whitewash the matter.
The Alameda County district attorney took the case because Gerber made
the recordings in the attorney general's Oakland office.

In a
written statement, the attorney general's office responded Thursday,
"The Alameda County District Attorney's independent conclusion
validates the Department of Justice's earlier finding that Scott Gerber
only taped conversations intended for the public, which was well within
the provisions of law. All of the recordings were on-the-record
discussions intended for public consumption."