The Morning Report
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Sunday, Jan. 4, 2009 | At some point in 2007, a whistleblower at California Children’s Services, a program run by the county of San Diego that provides wheelchairs and other medical devices to children with physical disabilities, filed a complaint with the county alleging improprieties within the program.
The county launched a widespread investigation into the allegations that continued for at least 13 months in 2007 and 2008, records show. The investigation led to disciplinary action against county employees and changes to the county’s ethics policies, but the report the investigators produced, and all the information it contains, is being kept a secret.
County documents, released in response to a California Public Records Act request, help sketch out some of the details of the investigation, however. Minutes from meetings show staff discussed allegations that therapists at the CCS program received gifts from vendors in violation of county ethics rules and may have favored certain vendors over others because of those gifts.
But exactly what was alleged, who was investigated and how deep any problems at the program went, are all things the county’s top officials have decided shouldn’t be released to the public.
County attorneys claim that the investigative report is protected by attorney-client privilege because it was overseen by lawyers, and that it therefore shouldn’t be seen by taxpayers despite the potential revelations it contains about the publicly funded program.
One public records expert said attorney-client privilege is consistently used by public agencies to avoid releasing embarrassing documents, and pointed out that the county could choose to waive its privilege and make the document public.
The county has also refused to provide a copy of the report to the state of California, which provides the bulk of the $20 million budget for the CCS program. A spokesman for the California Department of Health Care Services, which oversees the CCS program, said county officials told the state that the investigation only concerned “personnel issues” and that they had not found any evidence that the program had been negatively impacted by the individuals investigated.
Nick Macchione, director of the county’s Health and Human Services Agency, said he takes any allegations about his staff extremely seriously. He said the investigation did not turn up any misuse of public funds, but wouldn’t comment about what the investigators found or what disciplinary action was taken against county staff.
“We do very, very thorough investigations,” Macchione said. “We make sure that if there’s any group or any entity that’s not following county directives, we get it fixed.”
The CCS program provides funding for medical devices such as wheelchairs and prosthetics for physically handicapped children in San Diego County. Parents of children with disabilities can apply to the county for funding to buy their children medical devices. County officials determine whether the child is eligible for CCS or other funding and therapists at the medical therapy units evaluate the equipment that each child needs.
A county spokeswoman said in an e-mail that the medical therapists work with the family’s physician to provide the best piece of equipment available to the child from a list of possible vendors.
The selection of vendors, and the possible undue influence placed on county therapists by vendors who gave gifts to county staff, appear from documents to have been the subject of the internal investigation sparked by the whistleblower.
Minutes from program meetings over the last year show staff discussed the county investigation numerous times and that it was a concern to several employees. The minutes make specific references to staff receiving lottery tickets and other gifts from vendors whose products they provide to patients. In one meeting, the minutes show staff discussed a baseball game.
The minutes read:
“Q. What happened to the baseball game?
i. In short, we were told to cease and desist
ii. The investigators decided that it looked bad.”
The minutes show that staff members were concerned about the investigation, but because the county won’t release the final report, it’s difficult to fully flesh out what happened or who was involved.
The California Public Records Act mandates that public agencies must provide public documents such as reports and audits unless the documents are exempt from disclosure under a specific exemption listed in the act. In San Diego, public bodies regularly hand over such reports and documents.
But, in response to a request from voiceofsandiego.org media partner NBC 7/39 for the investigative report, County Counsel John Sansone claimed that the document fell within one of the law’s exemptions and therefore did not have to be provided.
Sansone argued that the investigation in question didn’t have to be handed over because it was a confidential communication between the county and its attorneys. Confidential communication between lawyers and clients is exempt from disclosure under the California Evidence Code, a rule that’s known as attorney-client privilege.
But Terry Francke, an expert in public records law who runs the nonprofit Californians Aware, said public agencies in California frequently claim that documents are protected by attorney client privilege simply because that’s a convenient way for an agency to avoid making its embarrassing secrets public.
The CCS investigation was not carried out by attorneys but was overseen by the Office of the County Counsel. From the start of the investigation, county lawyers informed the compliance officers working on the investigation that they should consider their work confidential.
“Please mark any and all drafts, copies and the final report as a Confidential Attorney Client Communication,” a county lawyer wrote to a compliance officer in a January 2008 e-mail.
By involving attorneys in the investigation and the creation of an internal report, Francke said, a public agency can argue that whatever the investigation turns up can be kept secret because it’s covered by attorney-client privilege.
But Francke also pointed out that a public agency can easily choose to waive its attorney client privilege in the interest of open government.
“That can be a tall order for politicians — asking them to waive that attorney-client privilege — but it’s a good way to test the sincerity of a public agency’s desire for transparency,” Francke said.
Macchione said he had decided not to make the document public on the advice of Sansone and other county attorneys.
Sansone offered a host of reasons why the county shouldn’t provide the document. He said the county never makes such documents public and that counsel decided not to set a precedent with the CCS investigation. Because the investigation didn’t turn up any serious misconduct, it was not necessary to reveal the names of those investigated, he said. And he said counsel did not want to open the county up to potentially damaging lawsuits.
“Just as we have a fiduciary duty to serve the residents of San Diego, we have a duty to protect taxpayer dollars from frivolous lawsuits,” Sansone said.
In San Diego, public agencies have often released reports or investigations that are potentially damaging or embarrassing, despite having had the option to claim the documents are privileged and therefore secret.
For example, the city of San Diego recently released a damning audit of the Southeastern Economic Development Corp. that, among other things, stated that the agency’s budgetary practices rose “to the level of fraud.” In that instance, the city chose not to involve its attorneys in the investigation, opting instead to conduct an audit that would be releasable to the public.
Another city of San Diego example is the famous 2006 Kroll report, which detailed a wide-ranging investigation into the city’s retirement fund and its financial disclosures to potential investors. The city made the report public immediately upon its publication, despite findings that staff likely engaged in securities fraud and that some elected officials acted negligently.
The choice to waive attorney-client privilege is one for the client, not the attorney. Macchione acknowledged that he could have released the report on the investigation into the alleged improprieties at CCS, but said he was advised by county counsel not to make the results of the investigation public.