How California agencies are keeping misconduct investigations secret despite transparency laws

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

But the district wouldn’t say exactly why she was being fired or what she allegedly did. An investigation commissioned by the district found that she had committed misconduct, but the district has refused to release the investigation report.

The controversy has now ballooned into legal turmoil, with Phelps alleging in court filings that she was unfairly fired. The San Diego Union-Tribune recently reported that the district had fired her because its probe found she interfered in a school investigation of a student accused of bullying her daughter; Phelps has denied the allegations.

But Poway Unified is far from the only California public agency that has disciplined an employee based on a high-profile investigation without disclosing the results of that probe to the public — or even to the subjects of the investigation themselves.

For example, Grossmont Union High School District cited attorney-client privilege in keeping secret a personnel investigation that led to a controversial demotion of school administrators in January.

More recently, the San Diego Unified school board hired an outside attorney to investigate its superintendent, Lamont Jackson, for reasons it has refused to disclose. It’s not yet clear how much the district plans to reveal about the investigation findings once the probe is completed.

Keeping investigation findings secret by citing attorney-client privilege is a trend that some transparency advocates worry is obscuring important information from the public that they would otherwise have the right to know.

The public is entitled to records about substantiated public employee misconduct allegations, as well as discipline of public employees under the California Public Records Act.

But there’s an exception to that rule: If the public agency chooses an attorney to conduct the misconduct investigation, it can keep the findings secret from the public by claiming attorney-client privilege, which can exempt them from having to disclose the records under the Public Records Act.

It’s common for public agencies to hire outside attorneys — at taxpayers’ expense, often costing six-figure sums — to conduct investigations of alleged misconduct by high-profile employees. Hiring from outside is often believed to help increase neutrality, and agencies frequently want attorneys’ legal expertise when litigation is likely.

But a frequent result of that choice is that the public — and sometimes the employees themselves — are left in the dark about why exactly these agencies are making big personnel decisions, like firing their superintendent.

“Whether or not this is the intent, it certainly has the effect,” said David Loy, legal director of the First Amendment Coalition. “It definitely has the potential to compromise transparency.”

Legal services vs. advice

Public agencies are able to claim attorney-client privilege as a reason to keep such investigation findings secret largely thanks to a 2016 appeals court decision, City of Petaluma v. Superior Court of Sonoma County.

In that case, a female firefighter in Petaluma had filed a state complaint alleging sexual harassment and retaliation. Anticipating that the firefighter was preparing to sue the city, the city hired an outside attorney to conduct a fact-finding investigation into her allegations. But it wouldn’t release the final report publicly, nor to the firefighter as she was seeking it during discovery in her lawsuit.

A trial court ruled in her favor in her effort to obtain the report, saying that the hired attorney was acting as a fact-finder and not an attorney providing strictly legal services or legal advice.

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

Loy said public agencies are entitled to confidential legal advice like anyone else, but they shouldn’t be allowed to hide the facts of what actually happened.

“I don’t know why the public shouldn’t have a right to those portions of an attorney’s investigation that are just about the facts of what happened,” he said.

There is precedent for requiring disclosure of fact-finding reports despite attorney-client privilege, Loy said. In 2018 California passed a law that said that public agencies cannot avoid disclosing factual findings of certain cases of police officer conduct, such as officer-involved shootings or fatal force, by citing attorney-client privilege.

‘It would be inappropriate’

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

Attorneys had produced the investigation report “for the purposes of using their legal expertise to identify pertinent facts, synthesize evidence, come to conclusions as to what actually happened, and determine whether the actions of those involved in the Del Norte softball program matter, including Superintendent Phelps, were in accordance with applicable law and policy,” the district wrote in its denial letter to the Union-Tribune.

The district has kept the report secret because it’s not possible to redact the report of potentially identifiable student and employee information, Poway school board President Michelle O’Connor-Ratcliff said in an email to the Union-Tribune.

She said the district is also keeping it secret because of pending litigation related to the investigation, another exemption California agencies are legally allowed to cite to avoid disclosing records. In addition to the filings from Phelps, the district was sued in November by a former softball player who said Phelps harassed her.

“That said, just because the Board has not released the report yet, doesn’t mean it never will,” O’Connor-Ratcliff wrote.

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

“It would be inappropriate for the Board to provide its former Superintendent with a privileged report that included information that she was not entitled to know,” she wrote.

She said the district was only obligated by Phelps’ contract to provide her a letter before her termination explaining why the board was prepared to fire her.

The board did provide her that letter but would not disclose that letter in response to a record request by the Union-Tribune. Phelps’ attorney has since disclosed that letter in a tort claim he filed against the district.

‘They can’t fully defend themselves’

In January, Grossmont Union High School District relied on the results of a secret personnel investigation to demote multiple administrators to classroom teaching positions in a move that generated backlash from several district community members.

The investigation was conducted for the district by the law firm JW Howard Attorneys. The Grossmont board chose an outside attorney who is an “experienced investigator” for the purpose of conducting a confidential independent investigation, district spokesperson Collin McGlashen said in an email.

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

The district has refused to provide details on what the investigation was about, but an attorney for two administrators said they were told it was about an incident related to Santana High School almost four years ago that prompted a lawsuit by a student’s family. The district had settled with the family.

Those two administrators, Santana High Principal Timothy Schwuchow and Monte Vista High Assistant Principal Larry Oedewaldt, sued the school district in May, alleging violations of state transparency laws and their due process rights.

The two said they never received a copy of the investigation report that they believe included allegations about them, and they said they weren’t told before their demotions that the board was considering allegations against them, according to their lawsuit. They still don’t know why the board disciplined and demoted them or what they are accused of doing, said their attorney Cory Briggs.

“The people who are investigated are not told the full extent of what they’re being investigated for, so they can’t fully defend themselves,” Briggs said.

McGlashen wrote in an email that “as this is pending litigation, the District will not comment except to express our confidence that all Brown Act requirements related to this matter have been followed and that the court will ultimately agree.”

A top official investigated

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

“Consistent with best practices implemented by districts locally and nationwide, when the subject of an inquiry is a high-ranking official or employee of an organization, hiring independent investigators promotes objectivity and expands often limited internal capacity,” school board President Shana Hazan said in an email.

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

Hazan said the board is “committed to a thorough investigation process that is transparent to all parties involved.”

When the investigation is complete, the board will decide how to share the results with the public, she said.