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Over the past eight months, the city of San Diego has hired two outside law firms, held numerous closed-door meetings and spent more than $120,000 to investigate complaints of harassment and retaliation against City Auditor Eduardo Luna and his top deputy, Chris Constantin.
Sworn statements from employees interviewed during the investigation and reviewed by Voice of San Diego say Luna and Constantin created a hostile work environment, intimidated people participating in the inquiries and repeatedly tried to unmask the department’s whistleblowers.
The two investigations are complete, and reports on each have been produced. The first was done in September, according to a memo sent to participants. The second was finished six weeks later, according to a top city official. But the city has refused to release the reports, saying the case is ongoing. And the city’s Audit Committee, in whose hands the matter now rests, has neither publicly cleared nor reprimanded Luna and Constantin. They continue to perform their regular duties.
Because the allegations against Luna and Constantin are publicly known, serious and involve high-level employees, the city could be breaking the law by not releasing the reports, according to attorneys who specialize in public records issues.
“The city is wrong not to turn over these documents,” said Felix Tinkov, a partner at Lounsbery Ferguson Altona & Peak.
The city says it needs more time. The Audit Committee, founded in the wake of San Diego’s fiscal crisis and consisting of two council members and three financial experts, is still making inquiries on the matter, a deputy city attorney said.
Both City Councilman Kevin Faulconer, who heads the Audit Committee, and the city attorney’s office say the committee hasn’t had both reports long enough to make a decision. The committee has had both reports for more than three months.
“We agree that there is a public interest in disclosure,” Deputy City Attorney Bill Gersten said. “It is, however, the timing of the disclosure that concerns us. It is in the public’s interest to have the investigatory process completed and decisions made without ‘trying’ a matter in the press.”
Neither Faulconer nor Gersten said when they expected the committee to decide on the fates of Luna and Constantin.
Luna and Constantin want the reports released, too, said their attorney, Michael Aguirre. Both have consistently denied the allegations, and Aguirre said Faulconer and others have indicated that his clients have been cleared, at least of the most serious charges. But Aguirre said neither he nor his clients has seen either investigation.
“I would love to read them,” Aguirre said.
It began with a slip.
An audit employee fractured her left elbow after falling off a colleague’s exercise equipment during her lunch break in the lobby of the auditor’s office last April, according to an incident report from the state’s Division of Occupational Safety and Health.
Constantin reported the injury two and a half hours later, and a state investigator looked into the case. The state found no wrongdoing.
But a sworn statement from one of the city investigations alleges that Luna and Constantin instructed employees not to tell state investigators about previous workplace injuries. Employees complained to the city’s Human Resources Department.
Then, last June, Chief Operating Officer Jay Goldstone told Faulconer about the complaint and others alleging a hostile work environment in a confidential memo reviewed by VOSD. Typically, Goldstone wrote, the Human Resources Department or the auditor’s office would handle such complaints. But because they involved the auditor, Goldstone recommended a third-party investigation.
Less than two weeks later, the city hired law firm Liebert Cassidy Whitmore. The Human Resources Department’s written request to hire the firm called the allegations of employee misconduct “serious.”
Once the investigation by Liebert Cassidy Whitmore began, the sworn statements allege that Luna and Constantin frequently disparaged the inquiry to audit employees and became obsessed with finding out the source of the grievances. The statements say Constantin pressured numerous employees to reveal who had complained, and that both he and Luna started criticizing the work of those they believed were part of the investigation.
After employees claimed interference and retaliation, the city hired a second law firm, Solomon Ward Seidenwurm & Smith, to look into the additional complaints.
In September, the city’s Human Resources Department told those who participated in the first investigation that it had ended. The second investigator, Solomon Ward, finished its report in early November, said Andrea Tevlin, the city’s independent budget analyst, whose office managed the law firm’s contract.
“The report is completed and was provided to the Audit Committee,” Tevlin said in an interview earlier this month.
The committee, she said, has since held several closed-door meetings to discuss the situation.
But those discussions have yet to resolve the issue, Faulconer and Gersten said, which is why the city still refuses to release the reports.
Faulconer indicated that Luna’s unique role — he began a 10-year term as an independent auditor in 2009 — is complicating any decision.
“The independence granted to the city auditor position by the City Charter puts the city in unprecedented territory when it comes to personnel issues,” Faulconer said through a spokesman.
Most of the allegations against Luna and Constantin aren’t a secret. Neither are their defenses.
U-T San Diego wrote about the complaints in the fall. Former auditor Ed Moreno said many of the same things in a lawsuit he filed against the city in December, though he didn’t name Luna or Constantin as defendants. (Moreno also alleged he was harassed because he is gay.)
Aguirre, a former city attorney who has represented Luna and Constantin during the probe, has claimed that the charges are trumped up because of disputes between Luna and former Mayor Jerry Sanders over audits that portrayed key city departments and mayoral initiatives negatively.
Answers to the merit of the employees’ claims should be in the reports, which cost taxpayers more than $120,000, according to invoices from the two law firms.
State appeals courts have ruled that investigative reports involving serious, well-founded allegations against high-level public officials should be disclosed regardless of whether there’s discipline taken.
“There is little doubt that the public’s interest in disclosure (of the reports) outweighs the individual’s interest in privacy based upon the existing case law,” Tinkov said.
Terry Francke, who heads open government watchdog Californians Aware, said the Audit Committee’s lack of public action should have nothing to do with the city turning over the reports. After all, there’s no criminal proceeding with an impressionable jury at stake.
“The city attorney’s statement is inadequate to explain why public disclosure (of the reports) equates to ‘trying the matter in the press,’” Francke said.
Indeed, the logical extreme of the city’s argument would allow for the reports to be kept secret forever if the Audit Committee never took conclusive action.
Gersten, the deputy city attorney, said he didn’t expect that to happen.
“But, clearly, if there is simply no decision made without further action, the process would be completed and the records should be disclosed,” he said. “We are not in that situation.”
Liam Dillon is a news reporter for Voice of San Diego. He covers how regular people interact with local government. What should he write about next?
Please contact him directly at firstname.lastname@example.org or 619.550.5663.
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