County officials went to Orange County Superior Court Monday asking that a judge seal all public records associated with the county’s internal investigation of former county Public Works executive Carlos Bustamante.
Bustamante, also a former Santa Ana city councilman and at one time a rising star in the local Repuiblican Party, was charged by District Attorney Tony Rackauckas last July with a dozen felony sex crimes after serving since 2003 at the highest levels of county government.
In the wake of his criminal complaint against Bustamante, Rackauckas openly questioned how Bustamante was protected for so long inside the county bureaucracy, given the nature of sexual harassment allegations against him.
County officials argue in court documents that to allow the media to explore that question by reviewing source documents would jeopardize Bustamante’s right to a fair trial as well as the rights of his alleged victims and violate attorney-client privilege for county supervisors and senior managers who examined the Bustamante affair.
Yet many questions about how county officials handled the crisis can’t be effectively answered because county supervisors have handled the entire crisis with an eye toward limiting public review.
Besides three high-level removals — County CEO Tom Mauk, Deputy CEO Alisa Drakodaidis and Public Works Director Jess Carbajal — there’s been little open discussion of the matter or of the implications for employees on the county’s reporting mechanisms for sexual harassment.
One area especially restricted has been the various internal investigations that led to Bustmante’s quiet resignation in October 2011. Documents that could explain the six months delay in a referral to the district attorney also have been withheld from public review. The DA's complaint was based largely on the county's report.
“The entire series of events raised concerns about the investigation, and many people questioned whether the County’s top executives knew of Bustamante’s activities,” wrote attorney Kelly Aviles, who is litigating a case against the county on behalf of Voice of OC and Californians’ Aware, the First Amendment advocacy group. Aviles filed a brief opposing the county request for heightened secrecy on the Bustamante affair.
So far, county officials have refused to release even basic county claim documents, such as the July letter filed by Deputy CEO Alisa Drakodaidis.
In addition, officials have instituted a new procedure under which an undisclosed law firm examines allegations of wrongdoing against top executives and elected officials, the same officials moving to shield the investigative work from public review by declaring it all covered by attorney-client privilege.
County officials on Monday asked Superior Court Judge Greg Pickett to formally endorse that process.
County officials are seeking a protective order in response to a lawsuit filed by Voice of OC last year seeking to review key documents related to the Bustamante affair.
Pickett on Monday said he would issue a ruling in the near future after looking over legal briefs on both sides.
Another judge issued a protective order on July 5, 2012, for all the usual investigation documents — police interviews and notes as well as those of social workers looking into sexual abuse. County officials now want to expand that definition to nearly t everything county officials touched related to the Bustamante affair.
According to court documents filed by the county counsel, the county wants the court to redefine an “investigatory file” as a file that includes "all records created by the County, its employees, attorneys, and/or agents, relating to the County’s investigation of Carlos Bustamante, including but not limited to complaints, complaint investigations, witness interviews and statements, victim interviews and statements, investigatory reports, and memoranda, notes, and impressions of County staff and attorneys investigating the complaints.”
County officials contend the documents “contain confidential victim information in violation of the Penal Code as well as the right to privacy under the California Constitution, and threaten the constitutional protections of Marsy’s Law.”
The entire Bustamante affair is fraught with a systemic failure of internal complaint procedures to ferret out wrongdoing and protect whistleblowers.
After county Human Resources officials cleared Bustamante of any wrongdoing from internal harassment complaints in early 2011, workers inside the agency relied on sending anonymous letters to the media and county supervisors to spur action.
Those public complaints eventually triggered the hiring of a private law firm to investigate the allegations.
There are questions about how the October 2011 internal report filed by the law firm was distributed and who saw it. What is clear is that Bustamante immediately agreed to a 90-day severance after being confronted with the report by Mauk.
Yet after Bustamante resigned the same month that the report was issued, the report remained locked away in a Human Resources cabinet until March 2012.
That month, county supervisors referred the law firm’s report to the district attorney immediately after county attorneys presented its contents in closed session responding to an internal audit that was critical of the county’s response.
What isn’t clear is why County Counsel Nick Chrisos didn’t refer the matter to the district attorney in October when Bustamante was first confronted with its contents and given a severance package that was reviewed by the county counsel.
Since the criminal case against Bustamante was unveiled in July 2012, numerous top officials — Mauk, Drakodaidis and Carbajal — have been forced out. Others, such as Performance Audit Director Steve Danley and Waste & Recycling Director Mike Giancola, have moved up — Danley to Human Resources director and Giancola to CEO.
Because many of the key documents related to the handling of the Bustamante affair have been kept secret, accountability has been affected at a critical time when major decisions are being made that affect taxpayers.
In its civil court action, Voice of OC is asking Superior Court to release the law firm’s investigation into Bustamante’s actions because the California Public Records Act declares them discloseable.
Under the act, public records are meant to 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.”
And according to the California Constitution, “The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
In their filing in criminal court, Orange County officials argue that releasing those kinds of records would negatively influence Bustamante’s trial, “because it is in the public’s interest to ensure a fair trial for both the People and the Defendant in the criminal case.”
According to documents filed with the court, county attorneys argue, “Here, the public’s interest is in ensuring that both the People and the Defendant receive a fair trial, which the court must weigh against a news organization’s interest in obtaining the investigatory file and disseminating the information to the public before the criminal trial has concluded.”
Clarification: A previous version of this story incorrectly spelled County Counsel Nick Chrisos' name.