The first rule of bureaucracy is CYA at all costs.

L.A. County refuses to yield youth records

The Board of Supervisors defies a subpoena for records involving the deaths of children being supervised by the troubled Department of Children and Family Services.

By Garrett Therolf, Los Angeles Times

August 1, 2011

Despite a warning from California's state auditor that they were committing a crime, Los Angeles County supervisors defied a subpoena for records involving the deaths of children who had been under the supervision of the troubled Department of Children and Family Services.

The inquiry was launched by the Legislature earlier this year after reports in The Times that more than 70 children had died since 2008 of abuse or neglect after coming to the attention of county social workers. Many of those deaths, county officials have confirmed, involved serious case management errors.

The audit is intended to be the most comprehensive probe in years seeking to identify whether systemic flaws contributed to fatalities in Los Angeles and other counties across the state. Lawmakers said it probably would result in legal reforms.

A lawyer at a special firm hired by the county to handle the matter said officials had provided dozens of boxes of records and allowed auditors to interview social workers but would not turn over documents that they believe are shielded by attorney-client privilege.

"In addition to the county's established right to protect its communications with its attorneys, the county seeks to preserve its ability to candidly evaluate its child protective services, and opportunities to improve those services, to further protect the children under the county's care," attorney Daniel P. Barer wrote in a response to questions from The Times.

The three other counties subject to the probe — Alameda, Fresno and Sacramento — have complied with similar subpoenas, but auditors said they were confronted by "only stalling tactics and unyielding refusal" in Los Angeles, according to records obtained by The Times.

As a result, state officials said they would be forced to issue an audit that addresses only the three other counties while they fight for access in Los Angeles.

"But make no mistake, we will not relent in accomplishing our mission of performing the audit that we were directed to perform by the Legislature," wrote Sharon Reilly, chief legal counsel for state auditor Elaine Howle, noting that her office now intends to investigate Los Angeles even more deeply and broadly. In order to do so, the state withdrew the subpoena for Los Angeles County documents in early July and is crafting a new one.

Assemblyman Henry Perea (D-Fresno), the lawmaker who first proposed the audit, said the state would take Los Angeles County to court to enforce its subpoena, and he expressed regret that the county had forced officials into a confrontation.

"This is not just about holding the county folks accountable. It's also the state," Perea said. "What role and responsibility do we play? Are we giving the counties the resources they need? We are looking at everyone. No one is getting off the hook."

The state and federal government fund 70% of the county's foster care system, and both entities are mandated to independently review and improve its operations. The county has suggested that the state give it control over significant decisions in the audit process. Reilly said that would "eviscerate the bureau's independence and potentially jeopardize billions of dollars in federal funding."

The county already reviews many child fatality cases in search of case management flaws, but the state audit seeks to add an independent voice and take a broader look at the shared state and county responsibility to license and oversee foster parents.

Los Angeles County officials have chafed especially at state officials' wishes to review reports written by the Children's Special Investigations Unit, a small team of lawyers who review child fatality cases and report directly to the Board of Supervisors.

"The county asserts that these reports are subject to the attorney work product/attorney client privilege," Reilly wrote. "My long-standing interpretation of the plain language of our governing statutes has been that my staff has the same … access possessed by any officer or employee of the auditee."

The state is also seeking internal affairs documents and other reports by Department of Children and Family Services officials. Those records are not written by lawyers, yet the county is also asserting attorney-client privilege for them because they were often reviewed by county lawyers.

County attorneys have privately told supervisors that a judge is not likely to agree that the documents can be withheld, according to two sources familiar with the deliberations. A majority of the board nevertheless urged lawyers to fight the disclosure because of fears that the material could be used in lawsuits accusing the county of failing to provide proper child welfare services.

Supervisor Zev Yaroslavsky said he had hoped the state and county could work out a compromise and had been disappointed by the interactions so far. "The attorney-client privilege is sacrosanct," he said, "but not every confidential document the state auditors wanted was necessarily privileged."

"Both sides took an all-or-nothing legal position. That was regrettable," he said, "because the documents would show how extensively the county investigates to ascertain the circumstances surrounding a child's death, and how to be more proactive in preventing such deaths in the future."

Supervisors Michael D. Antonovich, Don Knabe, Gloria Molina and Mark Ridley-Thomas did not respond to repeated requests for comment.

But aides to the supervisors said the elected leaders worried that auditors might publish all or some of the otherwise confidential documents in their resulting public report.

In communications with county officials, Reilly said that would not be a problem.

"In the course of our ongoing discussions, we have advised repeatedly that, just as it is a misdemeanor for county employees to refuse the bureau access to confidential information, it is a misdemeanor for any bureau employee to release it," Reilly said.

Reilly also accused the county of attempting to erode political support for the audit by contacting state lawmakers and mischaracterizing the auditor's efforts to obtain information. "Such conduct obviously undermines any good-faith meet-and-confer process," she said.

Los Angeles County has been repeatedly criticized in recent years for violating state law requiring it to release information regarding child fatality cases so that problems can be identified and remedied.

Under a law that went into effect in 2008, the department is required to release records to the press and other members of the public when a child dies after passing through the child welfare system. The county generally complied with the law initially, but after news reports about social worker error appeared in The Times, the release of records slowed.

In 2010, the county's Office of Independent Review found that child welfare officials asked law enforcement agencies if they had objections to the release of documents without giving them the chance to first review the records. The effect has been blanket objections to disclosure that resulted in "a virtual paralysis of the statute's intent," according to a report by the office's lead attorney, Michael Gennaco.