Metropolitan News-Enterprise


Friday, May 21, 2004


Page 1


Newspaper Wins Release of School Official’s Records


By DAVID WATSON, Staff Writer


A judge’s order releasing discipline records of a school administrator charged with murder to the Bakersfield Californian was upheld yesterday by the Fifth District Court of Appeal.

The court rejected an argument by the Bakersfield City School District that Kern Superior Court Judge Kenneth C. Twisselman II applied an incorrect standard in ordering release of a redacted version of records about a February 1996 incident which did not lead to discipline of Vincent Brothers, then vice principal at Bakersfield’s Emerson Middle School. Brothers was charged last month in the June 2003 shooting deaths of his wife, three children and mother-in-law.

The school district contended that under the California Public Records Act, Twisselman should have ordered the documents released only if he found either that discipline was imposed or that there was reasonable cause to believe the complaint or charge of misconduct was true.

After reviewing the discipline file in camera, Twisselman ruled the documents regarding the 1996 complaint should be make public, since there was reasonable cause to believe it was “well founded.” The judge described the complaint only as alleging “[s]exual type conduct, threats of violence and violence,” and the appeals court did not provide any further details in the opinion by Justice Betty L. Dawson.

Dawson said Twisselman correctly applied the standard articulated in American Federation of State, County and Municipal Employees v. Regents of University of California (1978) 80 Cal.App.3d 913 for weighing the public’s right to know of alleged wrongdoing against an individual’s right to privacy. That case, she noted, held that where allegations are of a substantial nature and there is reasonable cause to believe the complaint is well-founded, public employee privacy must give way to the public’s right to know.

The school district’s reliance on AFSCME, City of Hemet v. Superior Court (1995) 37 Cal.App.4th 1411, and Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548 for the proposition that a charge or complaint is well-founded only if it is found to be true or the public employee has been disciplined based on the complaint was misplaced, Dawson explained. Those cases support “the premise that there is strong policy for disclosure of true charges,” not “the premise that either a finding of the truth of the complaint contained in the personnel records or the imposition of employee discipline is a prerequisite to disclosure,” the justice declared.

The standard advocated by the district would be unworkable, Dawson said.

She elaborated:

“In evaluating whether a complaint against an employee is well-founded within the context of [the CPRA], both trial and appellate courts, working with little or nothing more than written records, are ill-equipped to determine the veracity of the complaint. The courts instead, both originally and upon review, are required to examine the documents presented to determine whether they reveal sufficient indicia of reliability to support a reasonable conclusion that the complaint was well-founded. The courts must consider such indicia of reliability in performing their ultimate task of balancing the competing concerns of a public employee’s right to privacy and the public interest served by disclosure.”

Dawson said that after a de novo review of the of the Brothers file, the appellate court agreed with Twisselman that the records should be disclosed.

In an unpublished portion of its ruling, the court also rejected the school district’s contention that a public interest in nondisclosure outweighed the interest in disclosure. Dawson noted that Twisselman redacted portions of the records identifying the alleged victim and witnesses.

Justice Steven M. Vartabedian and Presiding Justice James A Ardaiz concurred in the opinion authored by Dawson.

San Francisco attorney Thomas R. Burke of Davis Wright Tremaine, who represented the newspaper, said the district had been “quite adamant” about not producing the records, noting it even appealed to the newspaper to drop its bid to obtain them on the ground that the district could not afford to litigate the issue. The newspaper responded by explaining that litigation would be unnecessary if the district complied with the requirements of the CPRA by releasing the records, Burke said.

He noted that the district initially denied that it had any documents responsive to the newspaper’s request. Litigating the case proved frustrating, Burke said, since he never saw the records the newspaper was seeking and discovered only when the case was orally argued last month that the record before the Court of Appeal did not included the full disciplinary file reviewed by Twisselman.

The appeals court subsequently demanded and received the missing portions of the file.

Urrea C. Jones Jr. of Jones & Matson in Pasadena, who represented the district, was not available for comment.

The case is Bakersfield City School District v. Superior Court (The Bakersfield Californian), F043967.


Copyright 2004, Metropolitan News Company