A&A: The public should know if school employee embezzled $2m

Q: I have some information and documentation that a school district employee in Administrative Services was dismissed from her job for embezzling at least $2 million in district funds.  The employee was allowed to retire with benefits. Without Federal stimulus funds the district would be facing an $11 million deficit this year.

I believe this warrants further investigation and possible submission to our local district attorney for prosecution. I would like to gather more detailed information but am unsure how to proceed. I’d like to make a public records request but am unsure if I can even gain access to the documentation as a member of the public.

A:Under Public Records Act (“PRA”), public records (which include “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics,” Govt. Code Section 6252(e)), are open to the public unless a specific provision of the PRA or other law exempts them from disclosure.  The exemption that might apply — depending on the outcome of the disciplinary investigation (explained below) — is the so-called “privacy” exemption under Government Code § 6254(c).  This section exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”  Gov’t Code § 6254(c).  With respect to disciplinary records of public employees, California courts have held that there is a strong public policy against disclosure of such records if the investigation revealed that the charges were groundless. (American Federation of State, County and Municipal Employees v. Regents of the University of California, 80 Cal. App. 3d 913, 918 (1978)) However, “where the charges are found true, or discipline is imposed, the strong public policy against disclosure vanishes. . . .” (Id.).  “Where complaints of a public employee’s wrongdoing and resulting disciplinary investigation reveal allegations of a substantial nature, as distinct from baseless or trivial, 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.” (Bakersfield City School District v. Superior Court of Kern County, 118 Cal. App. 4th 1041, 1045 (2004)).  From the information in your submission, it sounds like this employee was dismissed because of the embezzling.  If so, you should have an argument, under the Bakersfield reasoning, that the charges of embezzling were well-founded and even resulted in a dismissal.

If you have not already done so, I would suggest that you submit a PRA request for the records you seek. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days.  (Gov’t Code § 6253).  If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek.  (Gov’t code § 6255).  A sample PRA request letter can be found on the FAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.

The ultimate recourse under the PRA in the event of an improper denial is to initiate litigation.  Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).