Opinion: Secrecy shrouded harassment case

OPINION

BY DAVE PRICE
Daily Post Editor

When a public agency spends your money, you’re entitled to know how it was spent.

The California Public Records Act, or CPRA, allows any citizen to request documents from public agencies that show how they spent public funds.

But when the Post discovered two years ago that Silicon Valley Clean Water, the Redwood City sewage processing agency, had paid its former general manager, Dan Child, $875,000, we couldn’t get anyone to explain it.

Reporter Emily Mibach filed public records requests with SVCW that would produce documents that would explain why he was paid so much money upon his firing.
Such information is public record in California. SVCW recognized that fact and was willing to turn over the requested information to the Post.

But SVCW decided to let Child know that the Post would be getting these documents.
That caused Child to hire a lawyer and sue SVCW to stop the release of the documents.

A Reverse CPRAThe type of lawsuit he filed is called a “Reverse CPRA” — a suit intended to keep secret information the plaintiff feels should not be released publicly.

Reverse CPRAs are rare. A search of court records turned up only a handful of such cases statewide.
The Post intervened in the lawsuit, fearing that SVCW would lose to Child and the information wouldn’t be released. Or that SVCW would decide that it was too much trouble to defend the suit and cave to Child.
By intervening, the Post became a party to the case, allowing us to appear in court, file briefs and seek a ruling in our favor.

Obviously this comes at considerable cost. Lawyers usually don’t work for free.

The average citizen probably wouldn’t hire a lawyer to pursue this case. They shouldn’t have to. Child shouldn’t have been able to interfere with the operation of a law, in this case the public records act.

I was worried that if Reverse CPRA cases become commonplace, the amount of information the public gets about local and state government would be greatly reduced.

For example, what if police unions stop the release of reports about the misconduct of officers by filing Reverse CPRAs? Bad cops will be able to use Reverse CPRAs to keep their misdeeds secret from the public.

Justice delayedAnother issue we faced was the length of this case —27 months. Yes, part of that was due to the pandemic. But this still shouldn’t have taken long. This is a case in which the court would have to decide one question — are the records public or not?

SVCW thought the records were public. We thought so too. State law and court precedents supported our view.

But the San Mateo County Superior Court takes a one-size-fits-all approach to civil suits. All suits have to go through mediation before they’re seen by a judge. As responsible litigants, we paid the mediation fee and sat down with a court mediator. The problem, though, was that this wasn’t an issue where there was a compromise available. It was yes-or-no question. Are the documents public or not?

While mediation is often a good way to reduce the court backlog, it wasn’t useful for this case. The courts need a fast-lane for straight-forward questions.

Staying powerAs the months went by, and the case inched along, I wondered if we were in a battle of attrition with Child and Jane Doe, who also intervened in the case. I’ll bet they thought we would just give up.

Then, Jane Doe dropped out of the case. I don’t know why, but it might be that she learned the Post doesn’t print the names of victims in cases like this unless they ask to be known publicly.

After that, Child wanted to drop his case, meaning we could get the documents.

But before we would agree to let Child walk away, we wanted our legal fees reimbursed.

With an ordinary public records case, plaintiffs are generally entitled to the reimbursement of their fees if they prevail in court. But the law isn’t as clear about Reverse CPRAs. The Legislature ought to fix that and require that if the plaintiff loses, he has to pay everyone’s legal fees. That would go a long way toward discouraging Reverse CPRAs.

Before allowing Child to dismiss the case, we reached an agreement that he would pay $10,000 and SVCW would reimburse us for $15,000.

Suit could have been preventedThis legal battle wouldn’t have been necessary if SVCW’s board had been transparent with the public from the beginning. When the SVCW board decided to pay Child $875,000 and $1 million to Jane Doe, it should have appeared on a public agenda. That’s a lot of money to spend in secret. Especially for an agency with a $45 million annual budget.

Instead SVCW’s board decided to operate in the shadows, keeping Child’s outlandish conduct secret. They even approved a contract with Jane Doe that required her to keep secret about the harassment she received or she would be subject to a $5,000 fine for each time she mentioned it. And she’s the victim here!

SVCW is a joint powers agency consisting of the cities of Belmont, San Carlos, Redwood City and the Menlo Park-based West Bay Sanitary District. Elected officials from each of those four entities serve on the SVCW board. They should be held to account for this $1.8 million fiasco.

It’s your money. You’re entitled to know how it’s spent.

Finally, it’s important to point out that this story only saw the light of day because of the hard work of reporter Emily Mibach and the excellent representation the Post received from attorney Steve Gerrish of Thoits Law.

Editor Dave Price’s column appears on Mondays. His email address is [email protected].