Former Fire Chief Sues to Block Release of Fire Report Critical of Her Conduct

It was just last year that the city of Davis released a less-redacted version of Bob Aaronson’s investigative report into the fire department, that followed a 2008 Grand Jury report with findings that included a hostile work environment and retaliation against dissenters within the department.

Following the Grand Jury’s report, the city commissioned then-police ombudsman (now Police Auditor) Bob Aaronson to conduct an investigation.  In December of 2008, the city council majority of Mayor Ruth Asmundson, Mayor Pro Tem Don Saylor and Councilmember Stephen Souza voted 3-2 not only to keep the report from the public, but not to read it themselves.

The Vanguard filed a series of requests over the last four and a half years, and slowly more of the report has been released to the public.  This spring, when the Woodland Record followed up by filing a request, the city of Davis agreed to release the report in full, unredacted.

Barring intervention from a third party, the city would have released the full report today (Thursday May 23, 2013).  However, former Fire Chief Rose Conroy and attorney Steven Kaiser from Kaiser and Chew Law Firm in Sacramento filed a last minute complaint for a temporary restraining order that was heard by Judge Dan Maguire in court on Wednesday.

Judge Maguire granted the TRO, noting that it was the action that would preserve the status quo until there could be a hearing on the facts.  Mr. Kaiser had originally requested the judge put out the next hearing for three months.

“That ain’t happening,” Judge Maguire told Mr. Kaiser, noting that while the matter might not be considered urgent, there are statutory considerations contained within the California Public Records Act that necessitate a more timely disposition of this matter.  He set the next hearing for June 12.

At issue are the extent to which former Chief Conroy was promised confidentiality as a condition of her speaking.

Mr. Kaiser writes in his motion, “In the course of the investigation Aaronson reviewed, among other things, the confidential personnel records of many of the employees in the Fire Department and conducted interviews with them, among them the Plaintiff, and the Report states that the content of the interviews were privileged from disclosure because they revealed confidential personnel matters.”

“A promise that the proceedings would remain confidential was expressly made to the Plaintiff,” Mr. Kaiser wrote.  “The City Manager reiterated that promise of confidentiality to the Plaintiff, who participated openly in the interview and spoke freely with Mr. Aaronson relying on those promises of confidentiality.”

Paul Boylan, the attorney acting on behalf of the Woodland Record in this case, argued that the city has agreed to release the unredacted version at this time because the public interest warrants the release.

He said even if the plaintiff were promised confidentiality, that does not provide a waiver for the city from their obligations to release matters of public record.

In his filing, Mr. Kaiser argues, “The City Manager prepared a summary of the report for the Davis City Council and the public that fully discussed most of the Grand Jury’s allegations, but did not disclose confidential personnel information.”

However, Mr. Kaiser fails to note that at the same public meeting, Mr. Aaronson acknowledged to the council that the summary of the report by the city manager at that time, Bill Emlen, was inconsistent with the tone and findings of Mr. Aaronson.

Mr. Kaiser adds, “Plaintiff has never been given an actual or meaningful opportunity by the City to respond to the allegations, assertions and conc1usions made in Aaronson’s confidential report.”

According to Mr. Kaiser’s filing, in April of 2013, a PRA request was made to the city by the Woodland Record for an un-redacted report.

Mr. Kaiser writes about former Chief Conroy that “Plaintiff was told that the City had decided to disclose the entire report, un-redacted, on May 9, 2013.”  Mr. Kaiser alleges, “Once again, neither the retired Fire Chief nor, based on information and belief, the employees referred to in the Report were notified or consulted prior to that decision being made.”

Mr. Kaiser requested an additional two-week extension in order to review the case, and Mr. Boylan and the city both agreed.

Mr. Kaiser notes that Rose Conroy had never seen the un-redacted report and requested a copy.  She received that from the City Attorney on April 26, 2013.  “This was the first time she had seen the un-redacted report,” he writes.

During the court hearing, this issue actually became of crucial importance.

Paul Boylan told the court, upon learning of the release, “This simplifies the issue in the long run.”

Judge Maguire noted that this would indeed be a complicating factor, to which Mr. Kaiser responded, “This puts my client in a difficult position.”

Under provisions of the Public Records Act, the act of releasing the report could very well waive any future claims of privilege.

Rose Conroy contends her interest here is that the “disclosure of the report to the public will inevitably have a powerful negative effect on Plaintiff’s reputation in the community and on future opportunities for her employment.”

Mr. Kaiser adds, “Because of the report’s age and the fact that she has been retired from service with the City for three years, she has no effective way of addressing the fallacies and inaccuracies of the Report, in any of its versions.”

While Ms. Conroy cites future employment opportunities, it should be noted that according to the Pension Database, she is receiving $122,000 in post-employment wages in addition to whatever other income she is receiving.

Neither Paul Boylan nor the City of Davis provided additional comment to the Vanguard.

In the previous release in May 2012, the Vanguard learned that Bobby Weist, the long-time union president and arguably one of the most powerful public figures in city government, received preferential treatment in his 2007 promotion to fire captain.

In April of 2007, then-Chief Rose Conroy of the Davis Fire Department promoted Mr. Weist, over “at least one of the candidates [who] was demonstrably and significantly more qualified for and deserving of the promotion than [Bobby Weist] promoted by Chief Conroy.”

Investigator and City of Davis Ombudsman Robert Aaronson wrote that, while no one questions Mr. Weist’s skills or abilities, “a significant number of firefighters, including some who were not otherwise disgruntled, believed that one particular candidate was far more deserving than Bobby Weist – the individual who finished fourth and first and in the second tier (in the assessment center, the division chiefs’ interviews and the chiefs’ final ranking, respectively).”

In November, Judge Stephen Mock, in an unprecedented move, ordered the firefighters union, who briefly intervened in last year’s action, to pay the Vanguard’s attorney $23,000.

Judge Mock in his ruling wrote, “Petitioner succeeded in obtaining the relief he sued to obtain – the release of a less redacted copy of the Aaronson report. DPFA [Davis Professional Firefighters Association] cites no authority to support its contention that its success against petitioner, as opposed to respondent’s success, is the relevant inquiry for an award of fees against it under section 1021.5.”

He added, “DPFA asserted that all information that was redacted from the Aaronson report should be exempt from disclosure.”  He added, “Other than its objections to petitioner’s declarations, DPFA does not otherwise argue that the relief sought by petitioner fails to satisfy the three requirements in Code of Civil Procedure 1021.5.”

“This is an important result,” said Paul Nicholas Boylan, the Vanguard‘s attorney at the time.  “I am unaware of any other case that resulted in a fee award against a union that intervened in an action to obtain public information.”

On Wednesday, Mr. Boylan argued that Judge Mock’s ruling helps establish the rest of the Aaronson report as a crucial public document that the city had improperly been withholding from public scrutiny, for four and a half years now.

Ms. Conroy’s action has temporarily postponed the release of this vital information, but she cannot use the guise of confidentiality to prevent public disclosure from her own misdeeds.

—David M. Greenwald reporting