North San Diego County officials, while claiming that an internal investigation rejects a whistleblower’s claims of ethics abuses, refuse to release the report of the investigation. An article in the North County Times says the county asserts the report is covered by the attorney-client privilege.-PS
North County Times
January 13, 2009
By EDWARD SIFUENTES
The county reprimanded several employees and revised its ethics policies on accepting gifts after investigating a complaint from a whistleblower filed more than a year ago, according to a county spokesman and documents obtained under a public records request.
Officials declined to release the results of the yearlong inquiry or details of the complaint, saying the final report is protected under attorney-client privilege. The nature of the complaint also is unclear, but a spokesman for the county said the investigation found no major violations.
Supervisors Dianne Jacob, Pam Slater-Price and Bill Horn declined to comment on the matter and referred questions to county attorneys.
The complaint involved the California Children’s Services program, which provides medical devices to children with physical disabilities, said Michael Workman, a spokesman for the county.
“A person came forward and made wide-sweeping allegations of wrongdoing in the unit,” Workman said. “After an exhaustive investigation … there were some minor disciplinary actions.”
The county released some documents last week related to the inquiry, including e-mails and meeting minutes, as a result of a California Public Records Act request from the North County Times. But the final report was not released because county officials said it was protected under attorney-client privilege.
“The county’s consistent and appropriate policy is not to waive the attorney-client privilege,” Workman wrote in response to the request. “That report therefore is not available for public inspection.”
Open-government advocates say the county should make the content of the report public to prevent future transgressions.
Governments can and should waive attorney-client privilege whenever possible, said Robert Stern, president of the Center for Governmental Studies, a Los Angeles-based government research organization.
“It seems to me that the county should err on the side of openness in this case and release the records,” Stern said.
The county could release the facts of the investigation without releasing the names of the person who made the complaint or the people who were reprimanded, said Terry Francke, general counsel with the open-government group Californians Aware.
Without the information, the public cannot verify what the government officials say they found, Francke said.
Otherwise, “it’s quite easy for them to come out and say it was no big deal,” he said.
The California Children’s Services program is a state-funded program managed by the county’s Health and Human Services Agency. It provides money for medical devices, including wheelchairs and prosthetics for children.
Under the program, county employees provide parents whose children qualify for benefits with a list of medical vendors where they can purchase the equipment, Workman said. Employees are prohibited by ethics rules from telling parents which vendor to use.
A spokeswoman for the Health and Human Services Agency referred questions on the matter to Workman.
The ethical questions appear to revolve around lottery tickets and a baseball game, according to staff discussions outlined in the minutes of the meetings for the county’s medical therapy unit. Those are the employees responsible for overseeing the program that provides the medical devices.
County attorneys redacted the names of the employees involved in the discussions described in the meeting documents. And it is not clear from the documents who said what, but those involved were evidently concerned with the investigation.
According to minutes of a meeting dated June 6, 2008:
“d. Many of the initial findings were dropped.”
“e. The one that stuck is those who received lottery tickets from a certain vendor.”
“i. Even though it was only a dollar, it had monetary value.”
Later in the discussion, the minutes read:
“Q. What happened to the baseball game?
“i. In short, we were told to cease and desist.
“ii. The investigators decided it looked bad.”
After the investigation, county regulations were revised to stress that receiving gifts from vendors was not allowed. They also prohibited training of county employees by vendors, according to county documents.
“We strengthened the policy,” Workman said. “We didn’t change the policy.”
The county’s regulations say that “staff members must not accept gifts from patients or families, vendors or manufacturers.”
If a gift is given to a staff member, “it must be reported to the program chief and returned or discarded.”
The investigation was conducted by compliance officers who were overseen by the Office of the County Counsel, Workman said.
The California Public Records Act requires that governments disclose documents, including reports and audits, unless there is a specific exemption under the law. Attorney-client communications is one of those exemptions.
Workman added that because the inquiry did not reveal any widespread wrongdoing, the report would remain confidential. By doing so, county counsel also was protecting the county from a potential lawsuit from the person who made the complaint or other employees, he said.
Copyright North County Times 2009