MODESTO — Whatever led Modesto Irrigation District leaders to investigate their top man last fall will remain under wraps because they hired a lawyer to conduct the investigation, the utility's attorney says.
Other legal experts specializing in open government law say the MID could voluntarily release the probe of former General Manager Allen Short.
The Bee's requests to know more about the separate probes of high-ranking officials, submitted under the California Public Records Act, were nearly identical but produced very different results.
The MID said no, while City Hall issued a redacted version of a recent investigation of Modesto City Attorney Susana Alcala Wood.
The MID "is committed to transparency," general counsel Joy Warren wrote, but invoked attorney-client privilege to deny the request. She was promoted after the MID board hired a Sacramento attorney specializing in personnel matters to investigate Short and ultimately paid the firm $14,563.
An undisclosed complaint turned up no wrongdoing but figured in Short's decision to leave at the end of the year, then-board Chairman Tom Van Groningen has said.
"Public agencies wanting to hide the facts gathered in an investigation into alleged employee misconduct often assign the investigation to an attorney so they can argue that any findings are privileged," said Terry Francke, founder of Californians Aware.
Presumption of disclosure
Francke and Jim Ewert, general counsel of the California Newspaper Publishers Association, cited several court cases in which similar probes were deemed open to the public.
"If the employee is fairly high ranking, there is almost a presumption that the report is publicly disclosable," Ewert said. "It's important for the public to understand not only the charges and complaints but how the agency responded to those, even when there is complete exoneration.
"The public has an interest in knowing how they made the determination. That is the standard."
The MID board, on a 3-2 split decision, approved an unprecedented retirement agreement with Short that prevents either side from suing the other. Board members voting against the deal noted that Short demanded legal protection and confidentiality, including terms prohibiting participants from "reveal(ing) the existence or terms of this agreement except as required by law."
The deal also allowed Short to cash out 2,284 hours of unused vacation, sick time and administrative leave, worth an estimated $180,380 based on his $240,507 salary.
He now draws up to $120,000 in part-time work with the San Joaquin Tributaries Authority, a consortium of water agencies he helped create before his retirement that is partly funded by the MID, in addition to a $149,000 annual pension. That's a yearly total of $269,000, not including the retirement payout.
Ewert said: "It's important for readers to know that the irrigation district has the ability to make a decision to disclose it; they can't say they're prohibited. They can make a determination to waive the privilege and allow constituents to understand what happened."
Bee staff writer Garth Stapley can be reached at email@example.com or (209) 578-2390.