DA fights to keep report secret

County administrative officer Fleming and others frustrated with position of Keitz

Brian WilkinsonDecember 12, 2012 

Madera County District Attorney Michael Keitz had his request approved for a temporary restraining order to prevent the release of an investigative report about how Keitz interacted with his staff.

The request by Keitz and his attorney were in response to a request from the Madera Tribune to the Madera County Board of Supervisors to release the two-year-old report after supervisors voted in closed session to pay $1.4 million for legal fees and settlement of employee lawsuits against Keitz and the county.

The temporary restraining order was granted Nov. 27 by Madera County Superior Court Judge James E. Oakley. Keitz's attorney, Ryan Jones, told Oakley that releasing the report should be stopped because of the irreparable harm that would be caused to Keitz.

The author of the report is Fresno attorney Dan Rowley who was hired by the supervisors to determine why the county human resources department had so many complaints filed about Keitz by members of his staff. The report has become knows as the "Rowley Report."

As reported in the Nov. 29 Sierra Star, three lawsuits by employees of the DA's office have been settled for $750,000 after former deputy district attorneys George Fawcett and Karen Mitchell, along with legal secretary Toni Lindsey, accused Keitz of retaliation, discrimination and harassment. The charges stem from Keitz's promotion to district attorney in 2009 and his bid for reelection two years later.

With regard to the latest settlement involving Fawcett, Keitz said in a prepared statement that the county made a business decision to end expensive, distracting and time-consuming litigations, so the district attorney could focus prosecution resources on essential law enforcement priorities. At that time Keitz said personnel matters are confidential and that he was prohibited from giving any further information about the issue.

In a series of stories in The Madera Tribune by Bill Coate, the investigative report has been kept under wraps for two years even though the county paid just under $30,000 for the investigation and the report that followed. Rowley is known as an expert in workplace disputes and has performed about 175 investigations for private and public employers.

According to the Tribune, the Madera County Grand Jury requested to see the report in early 2010, but the request was denied by then-County Counsel David Prentice. Prentice said at the time if the Grand Jury wanted to see the report, they could sue the county to get it. Having no budget for legal fees, the Grand Jury did not pursue the matter.

On Nov. 20, supervisors ordered County Counsel Doug Nelson to turn a copy of the report over to the Tribune, but Nelson told the paper he would not comply with the request having been notified of the pending restraining order being sought by Keitz.

Last week Nelson chose to recuse himself and his office from the situation, forcing the supervisors to obtain the services of outside attorney Matthew Fletcher of McCormick Barstow.

The next court hearing is scheduled for Dec. 19 where Fletcher is expected to ask for an extension to prepare the case for the county.

Keitz's attorney, Martin Mayer of Jones & Mayer, a law firm in Orange County that specializes in legal issues involving public entities and law enforcement, said the issue has nothing to do with Michael Keitz, personally, but has everything to do with the law.

"It has to do with the sanctity of the attorney-client privilege," Mayer said. "Is is similar to the doctor-patient privilege or the priest-penitent privilege."

Mayer said Section 3-310 of the California Rules of Professional Conduct is clear about an attorney's duty to protect the client-attorney privilege.

Mayer said when Mitchell filed her suit in federal court against both Keitz and the county, the county counsel at the time, David Prentice, served as the attorney for both Mitchell and the county, and recognized that both Keitz and the county were protected by the client-attorney privilege.

According to Mayer, the "Rowley Report" was ordered by Prentice on behalf of the county and Keitz, in anticipation of litigation, and the report is privileged information. Mayer added that the county previously argued in federal court that the report was privileged.

Mayer said the only way the report can be released is if both parties -- Keitz and Madera County -- sign waivers agreeing to release the report.

"The county counsel has obligations to both clients and he can't breach that obligation because one or the other waives his or her rights," Mayer said.

It seems battle lines have been drawn deep in the sand, with Keitz and his attorney determined to keep the report from the public, based on client-attorney privilege, and other county officials determined to see what they paid nearly $30,000 for.

Fifth District Supervisor Tom Wheeler said he is frustrated that Keitz has cost the county a lot of money since he became the district attorney and that the report should be made available to the board.

"I think the report that was ordered and paid for by the county and the citizens of the county, should be made available to at least the people that are in control of spending the people's money -- the board of supervisors," Wheeler said. "I fully expect the courts to rule in the county's favor and to order the report to be released eventually. At that time the board will read and review the report and discuss what direction we should take at that time."

County Administrative Officer Eric Fleming said he is tired of not being able to see the "Rowley Report."

"I am frustrated by the ongoing position of the district attorney, county counsel and outside counsel that the report does not belong to the county," Fleming said. "I have aggressively challenged all three parties to change their positions on the report and release to myself and the board of supervisors but have had no success. Two of my highest level duties are to protect the employees and keep the supervisors informed and I strongly believe that my inability to obtain this report has hampered my ability to do both."

Fleming is also irritated that due to Nelson stepping away from the case, the county is now forced to hire outside counsel in its attempt to have the report released and says Keitz also wants the county to pay for his attorney.

"The DA is now demanding that the county pay for the outside attorney that he himself has hired to stop the county from releasing the Rowley Report," Fleming said. "I plan to do what I can to fight against having to use discretionary county general fund dollars for this purpose."

Fleming said to put it in perspective, the county currently has 12 vacant sheriff deputy positions to fill to protect people, but we simply cannot afford it at the moment.

"Now the DA wants the county to pay for his outside attorney which provides absolutely no protection or service to the public," Fleming said. "In my opinion , this is a complete waste of taxpayer dollars."

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