COUNTY OF SANTA BARBARA
July 31, 1998
The Honorable Frank J. Ochoa, Presiding Judge
Santa Barbara County Superior Court
1100 Anacapa St.
Santa Barbara, CA 93101
Re: County Counsel Response to Santa Barbara County Grand Jury
1997-98 Report on the Air Pollution Control District
Dear Judge Ochoa:
County Counsel thanks the Grand Jury for its work on this matter. We are an affected agency for Finding 3 and Recommendation 3 of the Report on the Air Pollution Control District. These involve our legal advice to the Grand Jury and the District, not the matters investigated. We respectfully submit the following response.
County Counsel advised both the Grand Jury and District staff with respect to the Jury’s obtaining personnel records and related District documents. (We are general counsel for the District and advise the Grand Jury on request; advice by county counsel to multiple agencies is allowed by law, particularly when the work is done by different attorneys through an "ethical wall.") Production of documents regarding specific employees is a sensitive matter, balancing the Grand Jury’s right to obtain information and the District’s duty as government agency to respect privacy rights of individuals. We regret that the Jury experienced frustration in obtaining records through the subpoena process. We will ensure that the new Jury understands how to do this consistent with law. At our August 6 meeting with the 1998-99 Grand Jury, we will provide the proper subpoena forms and train the Jury on their use. To assure that our agency clients continue to comply with law, we will provide them up-to-date information and offer training on record production. We look forward to future improvements in service and communications.
Our response to the specific comment, finding and recommendation follow.
Grand Jury Comment
The Grand Jury used the subpoena process to call witnesses and to obtain personnel records and District documents. The Grand Jury found this to be a frustrating and time consuming experience due to the conflicting advice from County Counsel’s office. Eventually documents were obtained from the District, but many areas were redacted (blacked out). Several witnesses eventually provided the Grand Jury with unredacted documents.
The advice from the County Counsel’s office regarding the subpoena process was not clear.
Disagree. The advice from County Counsel to the Grand Jury was clear and, when it was followed, the Grand Jury obtained the documents it sought from the District. There was no "conflicting advice from County Counsel’s office." County Counsel advised the District staff and the APCD through different attorneys on the law applicable to document production. The substance of this advice was the same, irrespective of which attorney gave it and which client received it. It was also consistent with our previous advice and opinions. Case law and statutes authorize county counsel to give advice to multiple agencies consistent with professional ethics.
Confusion occurred when the Grand Jury initially issued subpoenas without any legal advice and then later sought advice from the Research Attorney of the Superior Court. Twice, subpoenas were issued to the District without County Counsel review. These subpoenas did not conform to written County Counsel instructions previously provided to the Grand Jury on how to issue subpoenas for confidential personnel records. In particular, subpoenas for confidential personnel records that are served on the custodian of records must include a copy of the proof of service of the "notice to consumer" (to the current or former employee) pursuant to Code of Civil Procedure §§ 1985.3 and 2020. This requirement was not met for either of the first two sets of subpoenas.
After the first set of subpoenas was issued, Grand Jurors met with County Counsel and the Court Research Attorney in an effort to clarify the appropriate procedures to use. We regret that the Grand Jury experienced frustration and delay in obtaining the documents without further rework. The third set of subpoenas issued to APCD was prepared by County Counsel and conformed to all statutory requirements. Through these subpoenas, the Grand Jury obtained the documents sought.
The grand jury also expressed frustration at having received documents that were redacted. One document provided by the District to the Grand Jury was redacted. Prior to the District supplying this document, the Jury agreed to the deletion of the names of current and former District employees. By agreeing, the Grand Jury immediately obtained the document without the need to provide a notice to consumer to the affected individuals. The Jury later requested an unredacted copy of the document. This was provided after the affected individuals authorized release. This authorization is allowed under Code of Civil Procedure § 2020(d)(2) and was prepared by County Counsel.
Grand Jury Recommendation
County Counsel’s office should provide the Grand Jury with clear guidelines on the subpoena process.
The recommendation has been implemented. In 1997, County Counsel provided clear written guidance to the Grand Jury on the subpoena process. We have updated the information and will provide explanation of the proper procedures to the 1998-99 Grand Jury.
One person in that office should be named as the Grand Jury’s principal contact for consistent advice. . .
The recommendation has been implemented. County Counsel designated Chief Deputy Steve Underwood to act as the principal contact for the Grand Jury in 1997. In particularly sensitive matters, the Grand Jury has been advised to contact the County Counsel directly. Our memo to the grand jury is attached.
. . . [County Counsel] should brief the incoming Grand Jury on the use of subpoenas [Finding 3]
The recommendation will be implemented. County Counsel will include a briefing on the use of the subpoena process as part of its training program for future Grand Juries. On August 6, at our annual meeting with the new Grand Jury, we will brief the 1998-99 Grand Jury. We have included the correct forms in the materials package for that meeting.
Again, we thank the 1997-98 Grand Jury for its service.
Stephen Shane Stark
cc: Air Pollution Control Officer
Board of Supervisors