RESPONSE

JANUARY 10, 2001

MY WORD
By John Russo, City Attorney

In her recent column pertaining to the sexual harassment complaint against Jacques Barzaghi, Brenda Payton accuses City officials of wanting to "sweep this matter under the rug" by "stonewalling" release of information to the public. This is a curious assertion since all publicly discloseable details of the case, including information about Barzaghi's discipline, have been released by the City and reported in several local newspapers.

Her statement that sexual harassment was "tolerated by top City officials" flies in the face of these facts:

· Within 24 hours of receiving the claim, the Office of the City Attorney ordered an investigation and hired an outside legal expert in the field of workplace harassment to initiate an immediate inquiry.

· The investigation was thorough and timely. Within one month the investigation was complete and Mr. Barzaghi was disciplined. He was suspended for three weeks without pay, ordered to undergo attitudinal counseling, and strictly limited in his interactions with female staff.

· Remedial measures were put in place, including sexual harassment training for all staff in the offices of the Mayor and City Manager. These measures were not only legally prudent to protect the taxpayers in the event of future lawsuits, they were the right thing to do to provide a constructive, safe and productive work environment for City employees.

The fact that Mr. Barzaghi received swift discipline, and that information to which the public is entitled under the law, such as Mr. Barzaghi's time cards, was promptly produced to the public, reflect the responsiveness of this government, not an attempt to hide facts.

Nevertheless, the Tribune sued the City of Oakland, demanding that the City release three documents in which the employees asserted their privacy interests: Ms. Lopez-Bowden's claim alleging misconduct, Mr. Barzaghi's discipline letter, and the City Attorney's investigative report.

As a long-time advocate of open government, I ardently support the public's right to know. Yet in this instance, the City was caught in a double bind. On one side the Tribune was demanding records under the California Public Records Act, and on the other side two City employees-Mr. Barzaghi and Ms. Lopez-Bowden-were asserting their privacy rights guaranteed under state law. The only solution was to let a judge decide. Once the employees waived their respective privacy rights, the City released both the claim and the discipline letter.

At this point, the only document we are vigorously protecting is the investigative report. This report contains statements made by women who, at our request, came forward with sensitive information about situations that affected them both personally and professionally. They were promised confidentiality from the beginning, and it was precisely their candor and willingness to provide information that gave us the evidence necessary to take disciplinary action in the first place.

Since reading Ms. Payton's column, several of these brave women have called seeking my assurance that we would fight to preserve the confidentiality of the investigative report and not jeopardize their privacy.

The Oakland Tribune, waving a banner of the public's "right to know," is prepared to drag these whistleblowers through yet another difficult experience of having confidential, very delicate information made public. Even if their names were never published, having details revealed to the public that could easily be linked to them would be a violation of their privacy and would have a chilling effect on the willingness of employees to participate in such an investigation in the future-especially against politically powerful men. That is why I maintain that the Tribune's attempt to obtain the investigative report is more about the "right to leer" than about protecting the public's right to know.

Confidentiality and privacy protections are standard practice in the workplace. In fact, the Tribune's own lawyers demand confidentiality agreements in similar circumstances.

Releasing the investigative report would be an affront to the right of employees to report harassment, hostility and abuse of power in the workplace. Moreover, it will fatally weaken the City's zero tolerance/whistleblower program to root out sexual harassment.

The Tribune has argued repeatedly for the release of this document; each time the trial court has ruled against their position. No matter how the Tribune misrepresents the City's actions in this case to its readers, we will continue to fight to protect the confidentiality of our whistleblowers and the integrity of our fight against sexual harassment. I am confident we will prevail.