Santa Rosa officials continue to withhold a report into alleged misconduct by one of the city’s elected council members nearly two months since the city announced the completed investigation.

The city’s refusal flies in the face of court rulings that have previously found elected officials aren’t shielded by the same privacy laws afforded to government employees subject to personnel complaints. 

Santa Rosa on Friday, Jan. 30, released a half-dozen documents sought by The Press Democrat since December that shed some light into the claims made against Council member Dianna MacDonald and the scope of investigators’ work.

But the city continues to withhold from the public a taxpayer-funded, city-ordered report by outside attorneys, who determined MacDonald violated city policies when she engaged in reportedly “negative and offensive” behavior toward city employees.

The city, in withholding that report and other records, is citing attorney-client privilege and other exemptions under California law.

City spokesperson Misti Wood, in response to a request for comment by City Attorney Teresa Stricker, said the city would not be releasing the investigative report and related documents, pointing to the list of exemptions the city cited in its Jan. 30 response to The Press Democrat.

She added that personnel investigations are confidential to protect employee privacy and ensure employees are comfortable coming forward with concerns.

The city would not be discussing the matter further, she added.

David Loy, legal director with the First Amendment Coalition, a San Rafael-based nonprofit which advocates for government transparency and access to public records, said while rank-and-file staffers are afforded greater privacy, privacy expectations are “significantly diminished” in matters related to the conduct of high-ranking or elected officials.

As it pertains to MacDonald, he said, “I disagree with the city to the extent that it claims there’s any privacy rights.”

The City Council, having seen the investigative report and acting on information that has yet to be publicly detailed, on Dec. 16 endorsed the findings of the city probe and voted 6-1 to censure MacDonald for her behavior. The investigation was spurred by an employee complaint about MacDonald made in June tied to comments and conduct by MacDonald related to a known, romantic relationship she’s in with a city employee.

MacDonald, the lone opponent of the censure motion, apologized at the time for her conduct but said while she respected the investigative process, she didn’t agree with all the findings.

The extraordinary step marked only the second censure of a council member in recent Santa Rosa history.

The investigative report was among a number of records sought by The Press Democrat on Dec. 8 after city officials first announced the investigation. The city has withheld most of those records.

They include a copy of the initial employee complaint, as well as all communication between council members and executive staff related to both the complaint, the subsequent investigation, council discussions about admonishing one of its own and the censure vote.

In its Jan. 30 response, the city cited a blanket exemption that allows records to be concealed if the government believes the benefits of keeping a record private outweigh the public’s right to know. The city also cited personnel privacy exemptions and exemptions that protect deliberative materials and attorney work product.

The city closed the public records request after the latest release, indicating the response constituted the extent of what the city plans to make available.

The stance limits the public’s insight into exactly what spurred the misconduct claims against MacDonald and the scope, timing and impact of her reported workplace behavior.

“The government is supposed to work for its citizenry and be transparent and responsive. With the city’s handling of this issue, the Santa Rosa council risks violating that trust,” said Press Democrat Executive Editor Bruce Castleberry. “Council members are public servants and the community deserves to know the full findings about one of those members — in a report the city spent tens of thousands of taxpayer dollars to investigate.”

New records, few additional details

The few newly disclosed records include an August email from Human Resources Director Dominique Blanquie to MacDonald updating her on the investigative process as well as a letter sent from the city to MacDonald’s attorney after the investigation concluded.

The latest batch also included copies of the original and amended contract with Van Dermyden Makus Law Corporation, the independent attorney hired in July to look into the claims, which the city had previously provided to the newspaper, and an email sent from Mayor Mark Stapp to The Press Democrat with responses to questions related to the censure motion.

Beyond those emails, the city didn’t say whether it had any additional communication that fell within the newspaper’s records request. State law doesn’t require that agencies identify responsive records that weren’t disclosed, Wood said.

According to the Aug. 20 email from Blanquie, the city pressed MacDonald to participate in an interview with Nikki Hall, the outside investigator, as part of the probe.

“The city strongly recommends that you cooperate fully with Ms. Hall … and answer Ms. Hall’s questions in a complete and truthful manner,” she wrote.

MacDonald also was instructed to keep the nature of the investigation confidential to protect the process, and she was reminded that retaliation against someone who reported possible violations or who was participating in the investigation was prohibited.

“To ensure the integrity of the investigatory process, to prevent your recollection of events from being influenced and to protect against retaliation, we ask that you not discuss this investigation, its subject matter, the questions, or your answers to the questions with officials or employees of the city or anyone who could potentially be a complainant, witness, or respondent in this matter,” Blanquie wrote.

The email came about a month after the investigation started.

Records previously released by the city on Dec. 18 show Van Dermyden Makus was retained on July 24 to investigate the complaint. Stricker, the city attorney, authorized spending up to $100,000 on the investigation.

The firm’s investigator was expected to consult with designated city representatives and provide a plan outlining what allegations would be investigated, a list of witnesses, evidence that needed to be collected and a timeline.

The consultant’s scope was limited — the investigator wasn’t expected to determine if allegations violated criminal laws or state statute or recommend disciplinary action, according to the contract.

After the investigation concluded, Hall was expected to submit a final written report that included an analysis of the allegations and related city policies as well as copies of supporting documents, such as interview recordings or transcriptions.

The report as well as other communication and work product would “be protected from disclosure pursuant to the attorney-client privilege, unless waived by the city,” according to the contract.

Former city manager mentioned

Records released Friday also included an investigation closure notice summarizing the allegations and investigator’s findings.

The five-page redacted memorandum shows that Hall, the investigator, reviewed five allegations against MacDonald, including that MacDonald made certain statements and potentially threatened to or took “negative action” against an unidentified person.

She also was accused of making “sexual comments in the presence of city employees that made at least some of the employees uncomfortable” on at least one occasion. A distillation of that behavior was included in an email sent to city staffers and in a public announcement issued Dec. 4 and was previously reported by The Press Democrat.

Two allegations were related to MacDonald “improperly” pressuring then-City Manager Maraskeshia Smith to take some action that she believed would benefit her romantic partner.

One of the allegations was so heavily redacted that it was not clear what the claim referred to.

Hall’s investigation sustained four of the five allegations, finding that MacDonald’s conduct violated the city’s anti-harassment and retaliation policy, but the investigator determined one of the allegations that MacDonald tried to influence a city decision was unfounded.

Outside counsel Jenica Maldonado, brought on to support the city on the matter, sent the Nov. 10 letter to Phillip Mendelson, an attorney with Santa Rosa firm Smith Dollar that MacDonald hired to represent her in her private capacity.

Such closure reports are commonly provided to complainants and respondents once a probe is completed, Maldonado wrote in the letter.

Maldonado informed Mendelson the council planned to meet in closed session on Nov. 18 to discuss the findings.

Public’s right to know

The Jan. 30 release didn’t reveal information about when or where some of the alleged behavior occurred, who else was interviewed as part of the investigation or what MacDonald told investigators in her response to the allegations.

It also didn’t shed light on the extent of council members’ awareness of the allegations ahead of the November closed-door meeting about one of their own, or whether the proposed censure motion was brought forward by staff or requested by the council or one of its members.

While records pertaining to personnel complaints are often private, California courts have previously found elected officials aren’t considered government employees and aren’t shielded by those same privacy laws.

In a case involving The Press Democrat, an appellate court upheld that standard three years ago, finding then-Sonoma County Sheriff Mark Essick — the subject of a county-ordered investigation into alleged bullying — was not covered by the personnel privacy provisions that would weigh against public records being disclosed.

Wood, the Santa Rosa spokesperson — a former longtime Sheriff’s Office communications official who worked at that time for the department — said the city acknowledges MacDonald is not a city employee.

But she said the Essick case concerned the privacy rights of elected officials and not attorney-client privilege or employee privacy, the legal grounds relied on by the city to withhold the investigative report.

Loy, of the First Amendment Coalition, said without knowing the specifics of the city’s investigation, government agencies may withhold records prepared by an attorney if the city attorney or an outside attorney retained by the agency conducted an investigation for the purpose of helping provide legal advice to officials.

Government agencies are using that tactic more often, he said, shielding investigative materials behind attorney-client privilege, which “presents an obvious challenge for purposes of transparency.”

An investigation conducted by human resources staffers or another city executive, for example, would not fall under the same exemption, he said.

However, he said attorney-client privilege would likely not extend to the original complaint, and he argued the complaint and the investigative report would not be protected by broad employee privacy claims.

Privacy rights don’t exempt records related to investigations into officials from being released, even if complaints are unfounded, he said. If necessary, information that would identify third-party complainants or witnesses can be redacted, he added.

“As agencies do, they often link the kitchen sink to cover all hypothetical bases,” he said.