Carmel >> The Monterey
County civil grand jury and the city of Carmel are butting heads over documents
the jury is seeking for its investigation of the city.
At a special meeting Tuesday
afternoon, the council unanimously agreed the city would not turn over city
employees’ personnel files to the grand jury as requested. It also agreed that
it would not immediately waive documents related to closed-session privilege
and attorney-client privilege.
While the city will cooperate
with the grand jury to the extent that it can in terms of city documents, it
will not willingly turn over personnel files, which are privileged. However, an
employee could turn over their file if he or she chooses.
The City Council instructed
attorney Don Freeman to seek an independent legal opinion on the issue. If the
grand jury persists in attempting to obtain personnel files, the council
directed Freeman to request the grand jury to subpoena them. If that happens,
Freeman will go to court and file a motion to quash the subpoena and seek a
court order regarding the city’s response to the grand jury’s requests. Freeman
said the city would abide by a judge’s decision on the matter.
“It’s up to a court to weigh
the balance between the public’s right to know and personal privacy,” he said.
The grand jury is conducting
its investigation at the request of the City Council and the Carmel Citizens
Association. The two organizations want the grand jury to look into possible
wrongdoing during the tenure of former City Administrator Jason Stilwell.
Freeman said no city employee
has agreed to let the city give the grand jury their personnel file and none
has given their file to the jury.
Attorney Michael Stamp, who
represents city building department employee John Hanson, who was fired and
later reinstated to his position, said the grand jury appears to have
overstepped its authority in requesting personnel files. That opinion was
echoed by Carolyn Hardy who formerly served as civil grand jury foreperson.
Freeman said there is not a lot
of case law on the grand jury issue. However, he said, he has spoken to a lot
of attorneys who have said the action he will take is appropriate.
Stamp said that documents the
grand jury requests must be tied to something specific. What the grand jury is
requesting, he said, goes back to the employee’s first day of hire.
“Get it right and this thing
may go away,” Stamp said.
Retired building department
employee Tim Meroney said he received a letter from the grand jury demanding
documents, one of which never existed. Meroney retired in 2007, long before
Stilwell’s tenure as city administrator.
“I can’t figure out why they’d want to go
through my file when I left in 07,” Meroney said. “They’re fishing.”
Stilwell resigned from his
position last fall as did city executive Sue Paul.
Freeman suggested the city meet
informally with the presiding judge of the Monterey County Superior Court to
try to iron out its differences with the grand jury. That may or may not
assuage the city’s concerns.
While a city employee has a
right to information in his or her personnel file along with city officials,
the City Council does not have authority to look at the files. And Freeman
pointed out that the city has the authority not to give personnel files to a
grand jury without a court order.
Private information in a
personnel file includes Social Security numbers, addresses, health records and
performance reviews.
Freeman said some employees
whose files the grand jury is seeking to review have said no to the request.
They also want to be notified if the grand jury serves them with subpoenas.
The grand jury, Freeman
explained, has the right to books and records of a public agency to investigate
the agency along with records of the agency’s officers. But the employees whose
personnel files have been requested are not officers of the city.
The sitting civil grand jury
must issue its report by the end of June. The city must respond to the report
but does not have to take any action.
February
10, 2015
Monterey
Herald
By Tom Leyde
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