How public bodies keep investigations into misconduct secret

Two months ago, the Poway Unified School Board fired its seven-year superintendent, Marian Kim Phelps, amid a months-long controversy surrounding her daughter’s softball team at Del Norte High School.

The district, however, would not say exactly why she was fired or what she allegedly did. An investigation commissioned by the district found she was guilty of misconduct, but the district refused to release the investigation’s report.

The controversy has since spiraled into a legal tangle, with Phelps claiming in court papers that she was wrongfully fired. The San Diego Union-Tribune recently reported that the school district fired her because the investigation found she interfered in a school investigation into a student accused of bullying her daughter. Phelps has denied the allegations.

But Poway Unified is far from the only public agency in California that has taken disciplinary action against an employee following a high-profile investigation without informing the public of the results of the investigation – or even the individuals who were the subject of the investigation.

For example, the Grossmont Union High School district invoked attorney-client privilege to keep secret a personnel investigation that led to a controversial demotion of school administrators in January.

The San Diego Unified School Board recently hired an outside attorney to investigate its superintendent, Lamont Jackson, for reasons it declined to disclose. It’s not yet clear how much the district plans to release about the investigation’s findings once the investigation is complete.

The secrecy of investigative findings under the attorney-client privilege is a trend that has some transparency advocates concerned that it will deprive the public of important information that they would otherwise have a right to know.

Under the California Public Records Act, the public has a right to receive records of substantiated allegations of misconduct by public employees and of disciplinary actions against public employees.

There is an exception to this rule, however: If the agency hires a lawyer to investigate the misconduct, it can keep the results secret from the public by invoking attorney-client privilege. This can relieve it of the obligation to disclose the records under the Public Records Act.

It is common for public agencies to hire outside lawyers – at taxpayer expense, often in the six-figure range – to conduct investigations into alleged misconduct by senior employees. Hiring outside lawyers is intended to increase neutrality, and agencies often need the legal expertise of lawyers when litigation is likely.

But this decision often results in the public – and sometimes the employees themselves – being left in the dark as to why these agencies make important personnel decisions, such as firing their heads.

“Whether it’s intentional or not, it certainly has an impact,” said David Loy, legal director for the First Amendment Coalition. “It definitely has the potential to impact transparency.”

Legal services vs. consulting

The fact that public authorities can invoke attorney-client privilege to keep the results of such investigations secret is largely due to a 2016 appeals court ruling in the case City of Petaluma v. Superior Court of Sonoma County.

In that case, a Petaluma firefighter filed a complaint alleging sexual harassment and retaliation. Anticipating that the firefighter would file a lawsuit against the city, the city hired an outside attorney to investigate her allegations. However, the final report was not made available to the public or to the firefighter, who requested it during evidence in her trial.

A court granted their efforts to obtain the report, ruling that the lawyer they retained was acting in a fact-finding capacity and was not actually providing legal services or advice.

But an appeals court later ruled in favor of the city, saying that the attorney’s investigation constituted legal services to the city in advance of a lawsuit. The attorney did not have to have given legal advice for attorney-client privilege to apply, the appeals court ruled.

Loy said public bodies have the right to confidential legal advice like everyone else, but they should not be allowed to hide the facts of what happened.

“I don’t know why the public shouldn’t have a right to those parts of the legal investigation that deal only with the facts of what happened,” he said.

There is precedent for demanding disclosure of investigative reports despite attorney-client privilege, Loy said. In 2018, California passed a law saying public agencies cannot invoke attorney-client privilege to avoid disclosing findings of fact about certain cases of police officer conduct, such as officer-involved shootings or deadly force.

“It would be inappropriate”

When the Union-Tribune requested a copy of Poway’s investigation report in early May, the district denied the request the following week, citing attorney-client privilege.

The attorneys prepared the investigative report “to use their legal expertise to determine relevant facts, summarize evidence, draw conclusions about what actually happened, and determine whether the actions of those involved in Del Norte’s softball program, including Superintendent Phelps, were consistent with applicable laws and policies,” the district wrote in its denial letter to the Union-Tribune.

The district kept the report secret because it was not possible to remove potentially identifiable information about students and employees from the report, Poway School Board Chair Michelle O’Connor-Ratcliff said in an email to the Union-Tribune.

She said the district is also keeping the file secret because there is a pending lawsuit related to the investigation, another exception California authorities can invoke to avoid disclosing records. In addition to the Phelps records, the district was sued in November by a former softball player who claimed Phelps bullied her.

“However, just because the committee has not yet released the report does not mean that it will never release it,” O’Connor-Ratcliff wrote.

The board is not required by law or Phelps’ contract to provide her with the investigation report, O’Connor-Ratcliff added.

“It would be inappropriate for the board to provide its former superintendent with a confidential report containing information she has no right to know,” she wrote.

She said Phelps’ contract only required the district to send her a letter before she quit explaining why the board was willing to fire her.

The board delivered the letter to her but declined to disclose it when asked by the Union-Tribune. Phelps’ attorney has since disclosed the letter in a lawsuit he filed against the district seeking damages.

“You cannot fully defend yourself”

In January, the Grossmont Union High School District relied on the results of a secret personnel investigation to demote several administrators to their classroom teaching positions, a move that drew strong reactions from several members of the district community.

The investigation was conducted for the district by the law firm JW Howard Attorneys. The Grossmont board chose outside counsel, an “experienced investigator,” to conduct a confidential, independent investigation, district spokesman Collin McGlashen said in an email.

The Union-Tribune requested a copy of the district’s investigation report in March. The district denied the request in April, citing attorney-client privilege.

The district has declined to release details of the investigation, but an attorney for two administrators said they were told it involved an incident at Santana High School nearly four years ago that led to a lawsuit by a student’s family. The district has reached a settlement with the family.

Those two administrators, Santana High School Principal Timothy Schwuchow and Monte Vista High School Assistant Principal Larry Oedewaldt, sued the school district in May, claiming it violated state transparency laws and infringed on their due process rights.

The two said they never received a copy of the investigative report, which they said contained allegations against them, and they said they were not informed before their demotions that the board was considering allegations against them, their lawsuit states. They still do not know why the board disciplined and demoted them or what they are accused of, said their attorney, Cory Briggs.

“The people being investigated are not told the full extent of the allegations against them, so they are unable to fully defend themselves,” Briggs said.

McGlashen wrote in an email: “Because this is a pending litigation, the district will not comment other than to express our confidence that all Brown Act requirements have been met with respect to this matter and that the court will ultimately agree.”

A senior official investigated

Also in April, the San Diego Unified School Board hired an attorney from the law firm Sanchez and Amador to investigate its principal, Jackson.

“Consistent with best practices implemented by districts locally and across the country, hiring independent investigators promotes objectivity and expands often limited internal capacity when the investigation involves a high-level official or employee of an organization,” School Board Chair Shana Hazan said in an email.

She also said that the law firm has the necessary expertise, training and experience in conducting such investigations.

Hazan said the board was “committed to a thorough and transparent investigation process for all involved.”

Once the investigation is complete, the board will decide how to communicate the results to the public, she said.