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Six months ago, the city of Oakland, Calif., paid $50,000 to resolve a sexual harassment complaint against a longtime adviser of Mayor Jerry Brown. Now the city is fighting to keep details of the investigation and other documents out of the press. In ANG Newspapers v. City of Oakland, 840229-3, attorneys for the Oakland Tribune have been trying to force the city to release several documents tied to its investigation of Brown adviser Jacques Barzaghi. A former trader officer for Oakland, Nereyda Lopez de Bowden, claimed that Barzaghi made inappropriate comments to her during a trip they and other city officials made to Mexico. “You can’t just hire outside counsel to keep things out of the public record,” said Duffy Carolan of Crosby, Heafey, Roach & May in Oakland, who represents the Tribune. After a city investigation, Barzaghi was suspended for 21 days without pay, told to refrain from contacting women employees individually, and ordered to undergo counseling. The city and the Tribune have been battling over the newspaper’s public records request since April, when Crosby Heafey attorneys Carolan and John Carne filed a petition in Alameda County Superior Court. Judge Judith Ford denied the Tribune access to the investigation report and other documents tied to it, based on attorney-client and privacy rules. She also denied the newspaper’s request for Lopez de Bowden’s original complaint to keep from violating the privacy of witnesses who were interviewed by investigators. The judge told the city to give the Tribune copies of the disciplinary letter that the city gave Barzaghi and time cards that it requested. In September the First District Court of Appeal sent the case back to the trial court, ruling that Ford had abused her discretion. Now Ford is reviewing the disputed documents to determine whether the contents were subject to privilege or privacy rules. On Nov. 26 Ford reviewed the report and denied the Tribune‘s request. Ford is continuing her in camera review of the remaining memos, attorneys say. The Tribune is weighing whether to trek back to the Court of Appeal, and will make a final decision after Ford rules on the remaining letters and other legal issues tied to the report, Carolan said. The court skirmish revolves around legal questions that balance the public’s right to know and attorney-client privilege and other privacy rights. The city of Oakland can’t release the sexual harassment report because attorney Janine Levine, of the Employment Law Partners in San Francisco, did the investigation. That means her work is shielded by attorney-client privilege, said Gary Lafayette of San Francisco’s Lafayette & Kumagai. Lafayette also points to a 1997 Second District Court of Appeal case in which Lafayette investigated a discrimination complaint on behalf of an employer. In Wellpoint Health Networks Inc. v. Superior Court, 59 Cal. App. 4th 110, the justices determined that Lafayette’s investigation was covered by attorney-client privilege, he said. “Any time a lawyer does something, it is legal work — and that applies before the litigation,” he said. The disciplinary letter that was released should satisfy the newspapers’ needs, he said. “It’s gossip that they are looking for,” Lafayette said. However, Carolan said the public has a right to know how the city is enforcing its sexual harassment policy. Lopez de Bowden has waived her privacy right, the attorney noted. In a similar case in Los Angeles — L.A. Times v. Three Valleys Municipal Water District, BS070547 — a court found that an attorney’s work in a sexual harassment investigation wasn’t covered by attorney-client privilege, said attorney Alonzo Wickers, who represented the Times. The ongoing legal battle is one of several scandals that have hit the city in the pocketbook. In March, Oakland settled the last lawsuit linked to former youth counselor and registered sex offender Clayton Collins. That litigation cost the city nearly $2 million in settlement costs. The city paid Lopez de Bowden $50,000, but it continues to pay legal bills for Lafayette & Kumagai. City Attorney John Russo said the city is trying to protect the “whistleblowers” who came forward about Barzaghi’s harassment. Russo said he was willing to take the case to the state supreme court, if necessary, to protect the employees. “This isn’t about the public’s right to know,” Russo said. “It’s about the public’s right to leer.” At this point, Russo said, the Tribune simply wants prurient details to second-guess the city of Oakland’s decision.

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