District attorney admits defeat in attempt to trace civil grand jury leak

Richard Halstead
Posted: 04/13/2010 06:28:22 PM PDT
Updated: 04/14/2010 09:37:01 AM PDT

District Attorney Edward Berberian announced Tuesday he was unable to determine how a Marin civil grand jury report slamming the Marin Clean Energy initiative got into the hands of Pacific Gas and Electric Co. and other critics before its official release in December.

Berberian launched an investigation at the request of Supervisor Charles McGlashan, director of the Marin Energy Authority's board. McGlashan said he acted after Chuck Utzman of Mill Valley, a critic of the Marin Clean Energy initiative, informed him that David Rubin, PG&E's director of service analysis, had e-mailed him a copy of the report on Dec. 5 - two days before its public release date.

The authority is utilizing a state law that allows it to compete with PG&E as a retailer of electricity in an effort to boost renewable energy use in Marin.

Berberian said there is no question that the report was distributed publicly before its intended release date. He said his investigators questioned several people who said they obtained copies before the release date of Dec. 7. These were people other than those authorized to read the report in advance - grand jury members and council members whose municipalities belong to the Marin Energy Authority.

But Berberian said his investigators were unable to trace the leaks back to their source.

"We ran into a blank wall," he said.

Berberian said the people who obtained the report before they were supposed to told investigators who they received it from, but those people denied giving it to them.

"These are all non-public officials," Berberian said. "You never get a link that shows that something came from a public official."

Under state law it is a misdemeanor for a grand jury member to disclose privileged information. State law also requires grand juries to provide agencies affected by their reports with a copy of the document at least two working days before its public release. The law prohibits agency members from distributing such reports before their public release but provides no sanction for violations, Berberian said.

In the case of the Marin Clean Energy report, the grand jury sent out 49 copies - one to every council member whose city or town belongs to the Marin Energy Authority. A cover letter instructing recipients that they were required to keep the reports confidential until Dec. 7 was attached to each report, Berberian said.

But Berberian said it's possible the letter could have become separated from the advanced copy, "either accidentally or deliberately. You can come up with all kinds of theories."

McGlashan said, "I'm very satisfied that the district attorney did a very thorough analysis and concurred with the fact that the law was broken. We just can't figure out how and why."

Contact Richard Halstead via e-mail at rhalstead@marinij.com

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