Modesto won’t release report on fired manager

12/16/2013 6:25 PM

12/16/2013 6:26 PM

The public won’t know why Modesto terminated a high-ranking public works official, why he was the subject of a city investigation or learn the conclusions of that investigation.

For a second time, the city attorney’s office has denied The Bee’s California Public Records Act request for all records related to the Sept. 23 termination of Deputy Public Works Director Jim Burch. The newspaper sought any allegations, claims and complaints made against Burch, as well as any records relating to an investigation and its outcome.

Modesto hired Burch in June 2012 as the public works street manager. He was promoted to deputy director for water in February. His salary was $100,516. He was one of two deputy directors in public works, which has an operating budget of about $96 million and about 300 employees.

Burch has said he does not know why he was let go, and public works employees have said he was an excellent manager.

Modesto denied The Bee’s request in early October while Susana Alcala Wood was the city attorney. Interim City Attorney Adam Lindgren took a second look at the request but recently denied it as well.

California law protects the personnel records of public employees from disclosure, but there are exceptions, such as records related to complaints and investigations of wrongdoing by public employees. Those records are public.

Open-government advocates say disclosure is important because taxpayers need to know what public agencies are up to and how they handle allegations made against their employees. Do they conduct thorough investigations respecting the rights of everyone or are the investigations biased and incomplete?

“I”m stunned that the city did not turn over this information,” Bee Editor Joseph Kieta said. “The public deserves to know how city officials handled this matter involving a high-ranking public official who managed a large staff. I can’t see how the public’s interest is served by nondisclosure.”

The city cited several reasons for not releasing details of the investigation:

•  The investigation was conducted by the city attorney’s office and is exempt from disclosure because it falls under the attorney-client privilege. California states that communications between an attorney and his client are privileged and do not have to be disclosed. Additionally, the attorney’s work on behalf of his client is generally protected.
•  Only city employees were involved in the incident, and the laws requiring disclosure have focused on cases involving public employees who have a particular relationship with the public. Additionally, Burch was not at a high enough level to warrant disclosure.
•  Not disclosing serves a governmental interest in ensuring that the city’s human resources department maintains an open relationship with city employees.

The city maintains that even releasing a copy of the report in which the names of purported victims or witnesses have been blacked out does not protect workers. A news story would have other details from the report that would allow city employees to identify those employees whose names had been blacked out, the city said. That would discourage other employees from coming forward with allegations if they believed they would be identified in media accounts, the city said.

According to the city, releasing the report also harms the positive relationship the city is fostering between human resources and city workers, in which workers feel free to share their concerns, suggestions and ideas to improve the city.

“We need to maintain employees’ confidence and keep their morale so they feel they can voluntarily come to human resources with their positive suggestions,” Human Resources Director Joe Lopez said. “And they need to have the trust that if they have concerns we will keep their confidences.”

Jim Ewert – the California Newspaper Publishers Association’s general counsel – said he understands the city’s concerns. But he said the only reason city officials cite that passes muster with the open records act is the attorney-client privilege. He added that the complaint or allegation made against Burch is not subject to the attorney-client privilege and should have been released.

“The city still has a duty to the people it serves – the public,” he said.

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