Do Investigations Always Have to Be Released When Public Entities are Involved?

 

According to this article, a Laguna Beach (California) former City Manager made allegations of bullying and a hostile work environment against a current City Council member. The allegations led the City to launch an independent investigation into the claims. However, before the investigation was finalized, a settlement was reached that paid the former City Manager nine (9) months of severance plus over $220,000. Once complete, the report was given to the city council members. The City Council voted 3-2 to keep the report confidential.

Interestingly, the City Council member accused of bullying and creating a hostile work environment voted to release the report to the public. In my view, that means one of only two likely possibilities: 1) the report cleared the accused from wrongdoing; or 2) he knew that the other council members would vote to keep the report confidential and he knew how his vote would appear. It's possible that he simply wanted to be transparent but I find this possibility to be much less likely as explained in the next paragraph. In any event, it was a brilliant political move.

The question that remains - if the report would have cleared the accused council member, why settle for such a large sum? Or why not wait until the exculpatory evidence was set out? It is for these reasons that I suspect that the council members read the "tea leaves" that the report wouldn't find the allegations unfounded and may have felt that it would be better to settle before the final report was released. If this is correct, this was not a bad plan of action by the City Council.

Public Information?

Generally speaking, investigations are private matters, even for public entities. However, there is an intersection of certain laws that may apply. Many states, such as California (or Texas, where we do business), have "open meetings" laws, meaning that most municipal, state and federal meetings must be open to the public and subject to Freedom of Information Act ("FOIA") requests. A smaller subset of states have "open records" laws. This means that any non-confidential records are subject to FOIA requests. What qualifies is typically dependent upon state law (unless federal records are requested, in which event federal law guides).

In this situation, how was the report able to remain confidential? Well, without delving into a treatise on the matter, California's open records laws must not require that such reports be made public. As such, its City Council could decide whether to release the information, provided that they did not discuss the findings of the report itself in any public council meetings, which would trigger the open meetings laws.

Quick Aside

The ability for cities to make its own laws, rules, or codes can get complicated quickly but suffice it to say that there are "home rule" and "Dillon's Rule" states, which (generally) determines whether cities only have power given to them by the state or whether they have all powers except the ones given to the state. California has both types of cities that appear to depend on the foundation of the city in question. This is a simplification, but it gives the general idea. In this situation, Laguna Beach could take any action not explicitly forbidden by state law. Thus, it could choose not to release the report.

Takeaways

• No, public entities do not always have to release the results of any investigation.
• Similarly, there are typically no ban on the release of investigation into public entities. Some portions may be redacted, however, such as personally identifying information.
• Care must be taken by public entities if anything other than complete transparency is desired in order to avoid accidentally triggering open meetings or open records laws. 

 

This is a cross-post with LinkedIn.