United in secrecy

Public-employee unions are fighting for their members’ privacy by opposing records disclosure in a wide range of controversies.

From the Summer 2005 issue of The News Media & The Law, page 27.

By Jennifer Myers

Jail officers in Wisconsin allegedly viewed porn on work computers. Two Montana teachers allegedly had sex on school property. And some Oakland, Calif., police and firefighters were allegedly earning six-figure salaries.

In all three cases, a local newspaper sought access to documents to help confirm and report the stories. And in each case, public-employee unions fought to keep the information secret.

These unions are going to court to battle for their members privacy, filing friend-of-court briefs and even suing cities, newspapers and courts. Recent state court decisions shed little light on what is and is not public record. Salary information has been ruled public in one California case, and private in another. After major union fights over disclosure of disciplinary records, courts have ruled that some are open in Wisconsin, while some are closed in Louisiana.

“It is very unfortunate that certain unions, principally government unions, which have historically been on the right side of public access and First Amendment issues, in recent times have positioned themselves on the wrong side,” said Peter Scheer, executive director of the California First Amendment Foundation. “And, they are really the only advocates on that side, dragging along municipalities and governments who resist disclosure unwillingly.”

Nearly two years ago, a California appeals court ruled that the privacy interests of employees trump the state’s open records laws.

The Teamsters Local 856 sued several California cities, the Palo Alto Daily News and the San Jose Mercury News, seeking to block a list of names and salaries from release. A San Mateo County trial court ruled the information could be released if the employees were not identifiable. The newspapers appealed, but the California Court of Appeal in San Francisco affirmed the lower court’s decision. Public employees, the court ruled, have a reasonable expectation of privacy, which outweighs public interest in disclosure. The court also ruled that salaries of individually identifiable employees are not subject to disclosure as “employment contracts” under the California open records law.

Writing for a three-judge panel, Justice James J. Marchiano acknowledged that “resolution of these equally valid, competing interests is not an easy task.”

“If the names are disclosed and that action is later determined to be error, the employees have no remedy,” he wrote.

Oakland officials cited the ruling in 2004 in refusing to release a detailed salary list to the Contra Costa Times. The Times had asked for the names and salaries of all employees earning more than $100,000 a year. The Sacramento Bee reported that attorneys for labor unions representing city workers, police and firefighters threatened to sue the city if it released names and salaries, information that historically had been disclosed.

Scheer said the lawsuits are not about open records principles.

“Basically, the problem is that the unions are not stating their view on the principle of disclosure, but there are cases now in which disclosure is embarrassing to union members, and not to just a handful of members but to a significant percentage of them,” he said.

Using the Oakland case as an example, Scheer noted that 30 to 40 percent of all police and firefighters are earning more than $100,000. “Both the union leadership and individual employees are embarrassed to release that, and they worry that kind of information could undercut public support for their bargaining position for future contract negotiations,” he said.

Police salaries are a hot topic in California, where some union members are scheduled to receive raises amounting to 37 percent over four years, according to various media reports.

The Times sued to obtain the salary information, calling Oakland a “lonely island of secrecy.” The trial court ruled in its favor, after allowing the Local 21 of the International Federation of Professional and Technical Engineers and the Oakland Police Officers Association to intervene.

The public’s interest in exposing “inefficiency, favoritism, nepotism and fraud” outweighed any possible privacy interest of the officials, the court ruled. It also found no legally protected privacy interest and wondered how disclosing salaries would “embarrass” employees.

The unions appealed the ruling, though the city did not, and the state Court of Appeal in San Francisco affirmed, ruling that “well-established” norms of California public records law and public employment do not extend to financial secrecy.

The unions, joined by 11 others, including law enforcement unions and state prison guards, continued their fight, filing a friend-of-the-court brief. The state Supreme Court recently agreed to hear the case.

In the friend-of-the-court brief urging the high court to take the case, attorney David E. Mastagni wrote that “significant conflicts of law” in previous judicial decisions on salary disclosure, cause “confusion [that] deprives public entities of clear guidelines for complying with the California Public Records Act.”

In a similar case last summer, Palo Alto Daily News Publisher Dave Price scaled down a request to the city for names, job titles and salaries to just salaries after the firefighter’s union threatened to sue him for invasion of privacy.

Price hopes the rulings in the Times case will ease disclosure in the future, especially for smaller papers like the Daily News that cannot afford the legal battle.

In Billings, Mont., a similar case arose in September after two teachers resigned their coaching positions and were suspended for several days after a student saw them at school allegedly having sex. The Billings Gazette filed an open records request with the Billings School District seeking documents in the investigation.

The Billings Education Association stepped in on behalf of the teachers, David Maier and Paulette Gerschmel, threatening to sue if the district released the records. The district instead handed the documents over to a judge to determine whether they were public.

District Court Judge Susan Watters determined they were public because “Maier and Gerschmel occupy positions of public trust” and “the alleged misconduct has a direct bearing on the teachers’ abilities to work in schools.”

“It is the finding of this Court that neither Gerschmel nor Maier have a reasonable expectation of privacy in the investigation of their conduct as public employees,” she concluded.

The union immediately appealed to the Montana Supreme Court. Originally, the union got involved to ensure the district adhered to policies protecting the teachers’ rights, but is taking the case to the high court to determine what privacy rights teachers can expect, said Richard Larson, an attorney for the Montana Education Association/Montana Federation of Teachers, which is representing Maier and Gerschmel.

“The ultimate issue is to what extent, by being a public school teacher, someone would leave their right to privacy at the door,” he said.

The lower court opinion jeopardizes the balancing test, he said. “That is to say it was unnecessary to balance the two rights at all, because if you start by saying they have no reasonable expectation of privacy due to their employment then there is nothing to balance,” Larson said. “Records are then open to everyone, not just the media, that is a concern.”

The Wisconsin Court of Appeals also recently ruled that misconduct involving a teacher is of heightened public importance. The court affirmed the decision of a Racine County trial court that declared public the personnel records of a teacher standing trial on charges of sexually assaulting three 11- and 12-year-old girls.

The (Racine) Journal Times requested Larry Robinson’s records in June 2004 after learning that he was being suspended until his criminal trial was resolved. The school district then notified Robinson of the newspaper’s request, as required by Wisconsin law.

The Racine Education Association stepped in on behalf of Robinson to ensure the paper got only what it was entitled to under the law, according to Executive Director Dennis Wiser.

“We are a union,” he said. “One of our functions is to make sure our members are treated appropriately under the provisions of the law.” The Journal Times received the documents it sought.

In another Wisconsin case, 13 Rock County Jail officers, who were either fired or disciplined for viewing Internet pornography at work, and their union sued the county, seeking to block the release of disciplinary records requested by The Janesville Gazette. A trial court ruled in favor of the county and the Gazette, and the officers and their union appealed.

Wisconsin’s District Court of Appeals in Madison affirmed the trial court decision in October and the documents were released to the Gazette.

Judge David G. Deininger, writing for the three-judge panel, disagreed with the officers’ argument that their disciplinary records were exempt from disclosure under Wisconsin open records law. The officers contended that the documents were exempt because they were under investigation by the union as a part of a grievance filing.

Public officials, the court said, should be held to a higher standard than others. “When individuals become public employees, they necessarily give up certain privacy rights and are subject to a degree of public scrutiny,” Deininger wrote. “This is especially true when they are employed in a law enforcement capacity.

The Court of Appeals of Louisiana, however, disagreed with that argument in a case involving a firefighters union. Rather than being held to a degree of scrutiny, an assistant fire chief had the right to “be free from unnecessary public scrutiny,” a three-judge panel ruled.

The case began when East Bank Consolidated Special Service Fired Protection District firefighter Mike Crossen attempted to access Assistant Fire Chief Edward Goldman’s personnel and disciplinary records in order to defend himself in a disciplinary action. Crossen contended Goldman’s records would show a pattern of abusive behavior towards firefighters.

The firefighters union intervened on Goldman’s behalf, and a local sheriff, the police chief and the city filed friend-of-the-court briefs arguing for privacy for public employees. The Reporters Committee for Freedom of the Press filed a friend-of-the-court-brief urging the state’s high court to take the case because of the strong public interest in access to disciplinary records.

The Louisiana Supreme Court refused to review the case.