From: Marin Independent Journal
By Nels Johnson 10/16/15
A confidential report about an ex-sheriff’s deputy who has filed suit to get his patrol job back after shooting at a Marin City man 16 times will remain under wraps for now.
Marin Superior Court Judge Paul Haakenson agreed that before he releases any part of a 32-page Personnel Commission decision on the deputy’s controversial case, he will read the entire file, including 2,000 pages of commission hearing transcripts and related documents.
Haakenson on Friday reversed a tentative decision distributed a day earlier in which he declared that aside from passages about the disciplinary record of ex-deputy Evan Kubota, the public had a right to know. “Weighed against the petitioner’s right to privacy, the court concludes that the document cannot be sealed in its entirety,” Haakenson’s tentative ruling said.
Kubota, fired after emptying his revolver at an unarmed suspect in a car, was reinstated to an office job by the personnel panel in a 3-2 decision after a five-day closed-door hearing last spring. Officials refused to release the commission report, and Kubota, citing a law that makes police personnel records confidential documents, wants it to remain secret even though it is central to his effort to regain his patrol badge and back pay.
“The sealing of the record here would beg the ultimate question, whether the information in the sealed document may be publicly argued, or even stated in any judicial ruling,” the judge’s tentative ruling observed.
But Jonathan R. Murphy of Pleasant Hill, Kubota’s attorney, noted police officers have special privacy rights under the law, and should not have to relinquish them when appealing disciplinary actions. Releasing the report would open the door for release of other documents, further trampling Kubota’s privacy, he added.
“Confidentiality is not absolute,” Haakenson replied. “There are other considerations” as the court balances competing interests, the judge added.
County Counsel Steven Woodside, who represented the county at the session, pitched a compromise of sorts, suggesting the court read the entire case file before deciding what, if anything, merited public release.
“If I were in your shoes, I would not decide what should be disclosed at this point,” Woodside advised Judge Haakenson. Woodside was joined by two assistants, representing the sheriff’s office and the commission, and both indicated their clients had no problem with Kubota’s bid to keep the commission report secret.
Attorney Christopher Burdick, a personnel commissioner, urged the judge to release the report, noting the ex-deputy was trying to overturn the commission decision and get public pay as well as back pay but “doesn’t want the public to know one little thing about” what happened. “What’s not being talked about here is the public interest in its personnel system,” he added.
Burdick was joined in an unusual bid to make the commission report public by commission colleague Lawrence Kaplan, two of the three commissioners who voted to reinstate Kubota as a clerk. The two acted as citizens interested only in making the report public so that people can understand why the commission did what it did, according to Burdick.
RIGHT TO KNOW
Haakenson noted he had received a letter from the Independent Journal advocating the public’s right to know. The letter, from Editor Robert Sterling, argued that the commission’s report “is part of the judicial record that will be analyzed as the court considers Mr. Kubota’s petition, and as such is fundamental to the public’s understanding of this case.”
Haakenson said that while the Supreme Court has made clear police personnel records are private, other factors are relevant as well.
“My decision here is does the public have the right to know what goes on in my courtroom?” he said. He added he could not imagine making a decision “based on secret information,” and signaled a willingness to consider releasing portions of the report after reading the entire file. “Shouldn’t I read everything first and see what’s relevant?” Haakenson asked. “Sometimes the public has to wait.”
Murphy indicated that the disciplinary records the judge ordered redacted from the report in his tentative ruling may prove key to the case in light of Kubota’s argument that the commission overstepped its authority because he was demoted “based on prior conduct that was not at issue in the appeal hearing.” Murphy disclosed in court papers that the commission found that Kubota did not violate the sheriff’s use of force policy.
Although it was unclear when the judge will read the entire file or make a decision about what to release, another session in the case was scheduled for Nov. 20.