Voice of OC and open-government advocate Californians Aware have petitioned the state Supreme Court to overturn an Orange County gag order, arguing the county is trying “an end run” to hide what executives may have known about alleged sexual abuse of female workers.
Earlier this year, county officials, including the Board of Supervisors, took the unusual step of seeking the order in criminal court so they wouldn’t have to make information public in the case of former county Public Works executive Carlos Bustamante.
Last year, Orange County District Attorney Tony Rackauckas charged Bustamante with a dozen felony sex crimes after an investigation into multiple sexual harassment claims by women who worked for him. Bustamante was also a Santa Ana city councilman and rising star in the Orange County Republican party.
In the aftermath of Bustamante's arrest, Voice of OC requested under the California Public Records Act documents showing what top county officials knew when they allowed Bustamante to quietly resign in October 2011, months before he was arrested.
The county withheld the records and then obtained the gag order during a hearing in Bustamante's criminal case. Justices in a state district court of appeal chose not to overrule the criminal court's decision.
“As long as this gag order persists, we can’t even get into court” to fight for access to public records, said Terry Francke, general counsel of Californians Aware. The underlying issue, he said, is to obtain information for the public about “the inner workings of a county government allowing, allegedly, a continuing number of county workers to be sexually assaulted on the job by a supervisor.”
Voice of OC attorney Kelly A. Aviles said that if the state Supreme Court allows Orange County to evade the California Public Records Act by using the criminal courts to bar release of documents, it could become a statewide trend with government officials hiding records and avoiding accountability.
What the county obtained from the criminal courts was “even more dangerous” than a standard gag order, she said, “because it restrains the press from ever getting the information in the first place.”
“The county asked for itself to be gagged,” saying, in effect, " 'We don’t want to have to release these documents.’ ” Aviles said. “The situation is really quite appalling. While collusion between a county and a district attorney to maintain secrecy is concerning, the fact these shenanigans were endorsed by the criminal court is alarming.
“The result,” she said, “is that the criminal court has effectively told the county that it does not have to comply with the California Public Records Act, which cannot be allowed to stand.”
It is this possibility that made the decision to go to the Supreme Court easy for Voice of OC editors.
"We strongly believe the public has a right to know how county supervisors and senior executives handled such a serious situation," said Norberto Santana Jr., editor-in-chief of Voice of OC. "So far, Orange County courts have allowed these officials to shield themselves from independent public oversight. We hope California's Supreme Court justices see things differently."
Peter Scheer, executive director of the First Amendment Coalition, said Orange County used “the criminal court as a way to bypass and abort the ongoing public records lawsuit. That was improper. It’s unfortunate the criminal court allowed itself to be used in that way.”
The state Supreme Court has until late December to make a decision on the appeal, which was filed last month.
How the Battle Began
Bustamante, a county executive since 2003, was arrested on July 2, 2012, and charged with 12 felonies and four misdemeanors, including assault with intent to commit a sexual act, false imprisonment and sexual battery.
He had resigned from his county post the previous fall with three months pay and has consistently maintained he is innocent of the accusations.
But delays by top county officials in referring the case to the district attorney, as well as an internal investigation and another from the county grand jury, indicate more might have been known about complaints against Bustamante than county officials have publicly acknowledged.
Several high-ranking county executives retired or resigned, including former CEO Tom Mauk and Human Resources Director Carl Crown. Public Works Director Jess Carbajal was fired.
Voice of OC filed its Public Records Act request as clues about Bustamante's activities began to leak from county offices but before Bustamante was arrested. The county balked at releasing several documents, and in July 2012, shortly after Bustamante’s arrest, Voice of OC filed its suit in the Superior Court’s civil division to gain access.
Normally, the county would argue as part of its case the reasons records, if any, should remain private, said Aviles.
Instead, the county waited nearly a year until the civil case, assigned to Judge David McEachen, was about to go to trial. Then in an unusual move, the county turned to the criminal courts and Judge Gregg Prickett, who was presiding over the Bustamante sexual assault case.
The county asked Prickett for an order that would bar the county from making the records public. The district attorney’s office already had a separate order keeping its criminal case documents confidential, but the county’s request went even further. The DA’s office and Bustamante’s lawyer, James D. Riddet, joined the county’s request, and, over the objections of Voice of OC’s lawyers, Prickett, a former deputy district attorney, agreed.
Back in civil court, the county argued McEachen didn’t have the power to release the documents because of Prickett’s order. McEachen agreed, and justices at the state's 4th District Court of Appeal refused to get involved.
One of the three justices, Raymond J. Ikola, wrote that he would have vacated the criminal court ruling and ordered the civil court to decide the case. He also would have ordered the county to pay Voice of OC’s costs. But he was out-voted by the other justices.
In her petition to the state Supreme Court, Aviles argued that while Bustamante “has a constitutional right to a fair trial, those rights cannot be viewed in a vacuum. Petitioners [Voice of OC] have a constitutional right of access to all ‘information concerning the conduct of the people’s business.’ ”
And, she said, “the criminal court’s interference” wasn’t permissible, because the state Supreme Court has already ruled that if a case has been assigned to one superior court department, another department in the same court has no authority to interfere.
Most of all, she wrote, in 2000 the state Supreme Court ruled in Filarsky v. Superior Court that public agencies may not go to civil court to get an order to withhold public records. Only the person asking for the records can go to court when records are withheld.
Aviles argued that even though the Filarsky case occurred in civil court, the ruling should apply to public agencies seeking help from the criminal courts.
At issue, she said, is “whether a criminal court has the power to thwart compliance with the CPRA [California Public Records Act] through an overbroad and unnecessary protective order over parties not properly before the Court.”