County Supervisors Vote to Pay Voice of OC $121,396 in Legal Costs After Losing Public Records Case

Supervisor Todd Spitzer at an Orange County Board of Supervisors meeting. (Photo by: Nick Gerda)

County Supervisors Tuesday unanimously voted to pay Voice of OC $121,396 in legal fees after losing a Superior Court lawsuit over their refusal to release public records about Supervisor Todd Spitzer’s handcuffing a preacher at a Wahoo's restaurant.

Voice of OC sued the county in March 2016, after officials refused to release records concerning a public statement Spitzer wanted to issue about the 2015 Wahoo's Fish Taco incident.

After more than a year in court, Superior Court Judge Walter Schwarm ruled in May the Wahoo records are public and ordered the county to release them. The ruling became final in June. He allowed the county to keep from the public a separate set of emails related to a county contract with the preacher's employer.

Under California law, when a court rules that a local government improperly withheld public records, the government agency must pay the legal bills of the person or group that sued.

The county claimed victory Tuesday because it didn't have to release the second set of records.

Voice of OC Chief Litigator Kelly Aviles noted only the winners of a lawsuit can collect damages. Voice of OC Publisher Norberto Santana Jr. called the county's claim "laughable."

In its statement the county said "On County Counsel [Leon Page]’s recommendation, the County litigated this Public Records Act lawsuit to protect an important right known as the deliberative process privilege. This privilege exists to protect creative debate and candid consideration of policy alternatives within an agency.

“The Superior Court upheld the County’s claim of privilege on the policy memoranda and calendaring information the Voice of OC was requesting, and upheld the County’s privilege on 22 of the 26 items. The Voice of OC chose not to appeal its defeat on this legal issue.

“Still, the County respects and appreciates the fact that, under the Public Records Act, a prevailing party is entitled to recover its attorney’s fees even when the Superior Court chooses to order the release of only a small portion of the documents originally demanded.”

Aviles replied "The Public Records Act requires that attorneys fees and costs be paid to the prevailing party. The County obviously understands that Voice of OC was the prevailing party, as they have agreed to pay all costs and fees incurred in this matter, in full. We are pleased that they have agreed to do so without expending additional taxpayer dollars further litigating this issue."

Said Santana, “The county’s statement is as laughable as their legal strategy over these past years.

"County supervisors shamefully fought public disclosure of basic public documents for nearly two years, and they lost," he said. "The unfortunate part of all of this is that now the taxpayer has to cover their political hides, as usual.”

During their closed session Tuesday, supervisors unanimously approved an agreement to pay Voice of OC a total of $121,396, which includes $120,220 for the news agency’s attorney fees and $1,176 in other lawsuit costs.

The records released by the court showed Spitzer repeatedly tried to issue a public statement suggesting he would have been justified using “deadly force” against the preacher, who Spitzer handcuffed on Good Friday 2015 for allegedly staring suspiciously at the supervisor and a nearby table knife.

The records also showed that the county’s then-spokeswoman urged Spitzer not to issue his statement – which was titled “I WILL NEVER TURN MY BACK ON THE PUBLIC OR ITS SAFETY” – saying it could expose the county to a lawsuit. Spitzer, who is running for District Attorney, ultimately backed off.

Voice of OC’s original lawsuit sought the statement Spitzer wanted sent out and related emails. The lawsuit was later amended to include records related to Spitzer postponing the approval of a county contract with the preacher’s employer immediately after the incident. The preacher later was fired by the county contractor, Boys Town.

After reviewing the records and hearing legal arguments from both sides, Schwarm ruled the Boys Town emails are not public, but that all of Spitzer's Wahoo’s statement and emails are public and must be disclosed – aside from one paragraph in an email.

In addition to Voice of OC’s legal bills, it's unclear how much the county spent to fight the lawsuit. County spokeswoman Carrie Braun said she asked for those figures Tuesday in response to a question from Voice of OC.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.