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City ethics commission won't release Maas investigation documents

Executive director turns down public records act request for emails and other material, saying, "Commission could decide to re-open a closed matter"

It's without a doubt San Diego's most sensational political story so far this year: yesterday's UT San Diego exclusive about developer Fred Maas and his efforts to dig up and publicize alleged dirt about then-GOP city councilman Carl DeMaio in the months leading up to last June's mayoral primary.

But, in a two-page response to a public records act request made yesterday, one of the principal players in the story, San Diego’s city Ethics Commission, is refusing to make key documents from its investigation public.

In addition to main evidence in the case, the commission is withholding other records regarding the matter, including communications with its outside counsel during the investigation, former ethics commissioner Gil Cabrera.

According to the UT account, Maas's group - which contracted with true crime author and ex-UT reporter Caitlin Rother - agreed last week to file a financial disclosure statement in order to settle a joint investigation of its funding and activities by the ethics commission and the state Fair Political Practices Commission:

Those agencies agreed to dismiss the case without a penalty or violation after the disclosure was filed. The FPPC issued a closure letter Wednesday to Maas stating that “the information uncovered in the investigation was not used for political purposes” under state law although the Ethics Commission contends it was.

We sought to see more documentation of the investigation, but in a letter emailed to us this afternoon, ethics commission executive director Stacey Fulhorst outlined the commission's grounds for not releasing its records, even though the case has reportedly been closed and many of its files provided to the UT:

In particular, the release of investigative documents in a closed matter could affect the ability of other administrative or law enforcement agencies to investigate the same or similar allegations.

Additionally, the Commission could decide to re-open a closed matter if new information regarding the underlying allegations were brought to its attention.

In this particular case, the statutes of limitation applicable to the Commission and to other law enforcement agencies have not yet expired.

Therefore, while the public has an interest in the disclosure of investigative records, we have performed the requisite balancing test and determined that the public's interest in non-disclosure clearly outweighs this interest.

In your request you suggest that the Ethics Commission produced documents to UT San Diego in response to a Public Records Act request, This is not the case. It is my understanding that UT San Diego obtained documents by submitting a Public Records Act request to the Fair Political Practices Commission.

According to yesterday's UT story, former ethics commissioner Gil Cabrera "served as outside counsel for the Ethics Commission on the case."

In response to our request, Fulhorst furnished six invoices from Cabrera to the agency, titled "Re: 527-01 - SDEC v. Maas, et al."

The first, dated October 2, 2012, shows a balance due of $725. The second, dated November 12, 2012, shows payment by the commission of the previous balance, along with a new balance due of $725. A December 4 invoice shows the prior balance of $725, along with new charges of $425, for a balance due of $1150.

An invoice dated January 1 of this year shows payment of $725, current charges of $500, and a balance due of $925. A February 2 invoice shows payment of $425, current charges of $675, and a balance due of $1175. The final document, dated March 6, shows payment of $1175, and new charges of $150.

Reached this afternoon by phone, Cabrera said he charged $250 an hour for his services, "a considerable discount [from] my regular rate." He added that the Maas investigation was his first legal assignment for the commission.

According to a January 2010 account posted by the Voice of San Diego online news site, Cabrera's term on the ethics commission was controversial in some quarters; then-mayor Jerry Sanders "refused to reappoint him."

Cabrera told UT San Diego that March: "I honestly don’t know why I was not reappointed while historically every other commissioner willing to serve a second term was allowed to do so."

He told us this afternoon: "I was never told why I was dismissed. I never found out."

Some of the material published by the UT regarding the Maas case has suggested the involvement of city hall figures, including Gerry Braun, a former aide to ex-mayor Sanders.

Reported the UT:

Those working on the project behind the scenes included a top aide to then-Mayor Jerry Sanders and at least three other people with ties to the mayoral campaign of Nathan Fletcher, although Fletcher denies any involvement.

In her letter to us today, the ethics commission's Fulhorst asserted attorney-client privilege in withholding additional documents regarding Cabrera's role with the agency and its investigation of Maas:

I have withheld those documents that concern communications between the Commission (including Commission staff) and its legal counsel, pursuant to California Government Code section 6254(k), which exempts "records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege."

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It's without a doubt San Diego's most sensational political story so far this year: yesterday's UT San Diego exclusive about developer Fred Maas and his efforts to dig up and publicize alleged dirt about then-GOP city councilman Carl DeMaio in the months leading up to last June's mayoral primary.

But, in a two-page response to a public records act request made yesterday, one of the principal players in the story, San Diego’s city Ethics Commission, is refusing to make key documents from its investigation public.

In addition to main evidence in the case, the commission is withholding other records regarding the matter, including communications with its outside counsel during the investigation, former ethics commissioner Gil Cabrera.

According to the UT account, Maas's group - which contracted with true crime author and ex-UT reporter Caitlin Rother - agreed last week to file a financial disclosure statement in order to settle a joint investigation of its funding and activities by the ethics commission and the state Fair Political Practices Commission:

Those agencies agreed to dismiss the case without a penalty or violation after the disclosure was filed. The FPPC issued a closure letter Wednesday to Maas stating that “the information uncovered in the investigation was not used for political purposes” under state law although the Ethics Commission contends it was.

We sought to see more documentation of the investigation, but in a letter emailed to us this afternoon, ethics commission executive director Stacey Fulhorst outlined the commission's grounds for not releasing its records, even though the case has reportedly been closed and many of its files provided to the UT:

In particular, the release of investigative documents in a closed matter could affect the ability of other administrative or law enforcement agencies to investigate the same or similar allegations.

Additionally, the Commission could decide to re-open a closed matter if new information regarding the underlying allegations were brought to its attention.

In this particular case, the statutes of limitation applicable to the Commission and to other law enforcement agencies have not yet expired.

Therefore, while the public has an interest in the disclosure of investigative records, we have performed the requisite balancing test and determined that the public's interest in non-disclosure clearly outweighs this interest.

In your request you suggest that the Ethics Commission produced documents to UT San Diego in response to a Public Records Act request, This is not the case. It is my understanding that UT San Diego obtained documents by submitting a Public Records Act request to the Fair Political Practices Commission.

According to yesterday's UT story, former ethics commissioner Gil Cabrera "served as outside counsel for the Ethics Commission on the case."

In response to our request, Fulhorst furnished six invoices from Cabrera to the agency, titled "Re: 527-01 - SDEC v. Maas, et al."

The first, dated October 2, 2012, shows a balance due of $725. The second, dated November 12, 2012, shows payment by the commission of the previous balance, along with a new balance due of $725. A December 4 invoice shows the prior balance of $725, along with new charges of $425, for a balance due of $1150.

An invoice dated January 1 of this year shows payment of $725, current charges of $500, and a balance due of $925. A February 2 invoice shows payment of $425, current charges of $675, and a balance due of $1175. The final document, dated March 6, shows payment of $1175, and new charges of $150.

Reached this afternoon by phone, Cabrera said he charged $250 an hour for his services, "a considerable discount [from] my regular rate." He added that the Maas investigation was his first legal assignment for the commission.

According to a January 2010 account posted by the Voice of San Diego online news site, Cabrera's term on the ethics commission was controversial in some quarters; then-mayor Jerry Sanders "refused to reappoint him."

Cabrera told UT San Diego that March: "I honestly don’t know why I was not reappointed while historically every other commissioner willing to serve a second term was allowed to do so."

He told us this afternoon: "I was never told why I was dismissed. I never found out."

Some of the material published by the UT regarding the Maas case has suggested the involvement of city hall figures, including Gerry Braun, a former aide to ex-mayor Sanders.

Reported the UT:

Those working on the project behind the scenes included a top aide to then-Mayor Jerry Sanders and at least three other people with ties to the mayoral campaign of Nathan Fletcher, although Fletcher denies any involvement.

In her letter to us today, the ethics commission's Fulhorst asserted attorney-client privilege in withholding additional documents regarding Cabrera's role with the agency and its investigation of Maas:

I have withheld those documents that concern communications between the Commission (including Commission staff) and its legal counsel, pursuant to California Government Code section 6254(k), which exempts "records the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege."

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Comments
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Thanks for digging this out. Amazing story. More to come I am sure.

March 25, 2013

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