Kevin Valine

October 10, 2013

City Beat: Modesto denies Bee’s request for records related to employee’s termination

Modesto has denied The Bee’s California Public Records Act request for its investigation of a top official fired by the city, even though it and a neighboring city have released similar records in previous incidents involving public employees.

Modesto News

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Modesto officials continue to keep quiet on why they fired a public works deputy director last month.

The city attorney’s office has denied The Bee’s California Public Records Act request for copies of all records related to the Sept. 23 dismissal of Jim Burch. The newspaper sought any allegations, claims and complaints made against Burch, as well as any investigation and its outcome.

In denying the request, Deputy City Attorney Tara Davis wrote that the documents were exempt from disclosure because they were personnel records and the public interest served by nondisclosure was greater than the public interest served by disclosure.

The Bee filed a similar public records request several months ago regarding allegations of misconduct involving City Attorney Susana Alcala Wood over one of her employees’ requests to change a time card. The city complied with the request and released the investigation. Wood was faulted for her handling of the matter, but there was no evidence of fraud.

And Riverbank complied with a Bee public records request two years ago and released its investigation of former City Manager Rich Holmer, who was dismissed after being accused of harassment, which he denied.

The Bee is not dropping the matter involving Burch.

Sacramento attorney Steve Burns is representing The Bee and wrote to the city attorney’s office Wednesday that “clear precedent establishes that records related to misconduct by a public official, including documents related to investigations into wrongdoing, are public documents (that) must be disclosed. ... I am asking that you produce the documents immediately so that The Bee does not have to pursue this matter further.”

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.

“We strongly believe that these records should be available for public inspection,” Bee Editor Joseph Kieta said. “The public deserves to know how city officials handled this matter. I can’t see how the public’s interest is served by nondisclosure.”

Davis did not reply to an email seeking comment. Wood was not in the office Thursday.

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 was not aware of any complaints or allegations against him. Several public works employees said they were shocked by his dismissal, saying that he had been an excellent manager.

This was Burch’s third government job since 2010.

The previous two were in Oregon. He left one city in 2010 after a female employee filed a harassment lawsuit against the city. The complaint was later amended to include the allegation that Burch had hacked into the employee’s personal email account, which he denied. The city eventually settled the lawsuit for $119,250.

Burch went to work for a second city, which let him go in 2011 after prosecutors filed misdemeanor charges against Burch. He was charged with a computer crime and official misconduct based on the allegations from the first city. But in January 2012, a judge dismissed the charges, saying there was insufficient evidence for a reasonable jury to find Burch guilty.

Modesto officials have said Burch disclosed his past and they fully vetted him before hiring him.

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