Records Destroyed in Hush-Money Probe : City Hall: Lawyers for the suing employees condemn action, which investigating attorney says he took to prevent a leak.
The attorney appointed to investigate a San Diego City Hall sex-and-hush-money scandal destroyed all notes and documents used in compiling his report, hampering the efforts of former city Planning Director Robert Spaulding and planner Susan Bray to win lawsuits over the handling of the case, according to their attorneys.
Attorneys for the two former city employees, each of whom is suing the city, contend that Josiah Neeper’s actions are highly irregular and will be raised in upcoming trials. Legal experts agreed that Neeper’s actions were unusual, but said they are not necessarily unethical.
“What started off as an effort to cover something up has turned into a web of out-of-control distortions and misrepresentations and efforts to conceal and block the (legal) efforts to get at the truth,†said Michael Aguirre, Spaulding’s lawyer.
“To me, it’s very important when you know that your records will be subject to (legal) discovery and you destroy your records,†said Frank Rogozienski, Bray’s attorney. “I think that’s highly unusual. It surprised me to find out that was the case.â€
Both lawyers said they cannot verify the information portrayed as fact in Neeper’s lengthy investigation report and do not know if information valuable to their clients’ lawsuits was left out of the report.
Neeper, a prominent local attorney, informed two city officials, City Manager Jack McGrory and Asst. City Atty. Curtis Fitzpatrick, that he intended to destroy the records, according to Neeper’s testimony in depositions for the two lawsuits. In interviews, both officials said they do not recall being notified by Neeper. But Fitizpatrick said he believes Neeper’s version.
Neeper declined to comment, but the attorney defending the city in both cases said that destroying the documents after completion of an investigation is an acceptable practice.
Attorney Michael Weaver said Aguirre and Rogozienski are attempting to bolster weak legal cases against the city by raising suspicions over the records destruction.
All the information compiled by Neeper is in the reports, and opposing lawyers can verify it by taking depositions under oath from the participants, he said.
“They’re going to make a big deal out of it, but it is not what is important to the merits of either one of these cases,†Weaver said.
Top city officials, led by former City Manager John Lockwood, secretly agreed in 1991 to pay Bray, a planning department employee, nearly $100,000 to settle a sexual harassment claim against Spaulding stemming from a sexual relationship between the two.
Top officials then deliberately kept the deal secret from the City Council. But it was revealed in news reports in May, 1991, sparking a major scandal that cost Spaulding his job and produced the two lawsuits. Lockwood had retired before the deal was exposed.
Spaulding’s lawsuit has been narrowed to focus on City Atty. John Witt, whom he accuses of legal malpractice for failing to inform Spaulding that he needed a private attorney to represent his interests. Spaulding is trying to prove that Witt agreed to represent him at the same time he represented the city.
Bray is suing the city over the breach of the confidentiality agreement she obtained as part of the settlement, as well as her original claims of sexual harassment and discrimination. She continues to live solely on the long-term disability payments the city agreed to pay her as part of the agreement, Rogozienski said.
Neeper’s deposition in the Bray case has been sealed by agreement of both sides because it contains references to Bray’s private medical records, but both agreed to allow a Times reporter to read the sections pertaining to Neeper’s destruction of records. In sworn statements for both cases, Neeper acknowledges that he destroyed handwritten notes of interviews he personally conducted with officials involved in the matter, as well as a telefaxed letter from Lockwood, legal research conducted by an assistant, copies of city policies and outlines of earlier drafts of his report.
He said he was concerned that some of the information would leak out, breaching the confidentiality agreement and defaming Bray. He also said he did not consider retention of the records necessary.
Neeper said he took the unusual step of having virtually no assistance in preparing the report. He personally gathered all the information--except for some legal research by another lawyer--kept it in his possession at all times, and typed the report himself on his personal computer.
“I disposed of (the records) in part to minimize the chance of those materials becoming the basis for a claim of breach of the obligation of confidentiality and to not disparage and defame Ms. Bray under the settlement agreement,†Neeper told Aguirre.
In the deposition for the Bray case, Neeper indicated that he destroyed the background materials in two phases, the latter of which came immediately after he presented recommendations for policy changes to the City Council on June 4, 1991.
The city released the Neeper report and other materials two days later in response to media requests, but Neeper’s notes were not given out. The San Diego Union and Tribune, then separate newspapers, dropped their lawsuit against the city as a result of negotiations leading to the release of the information.
Robert Fellmeth, director of the Center for Public Interest Law at the University of San Diego, said that, “if you have material that is legitimately discoverable and you destroy it with the intention of avoiding its discovery, then I think you have a breach of ethics. You’re not supposed to be destroying documents with intent of avoiding legitimate discovery rights.
“If you don’t have proof of intent and don’t have pre-existing lawsuits, then it’s a lot murkier,†he said.
Spaulding and Bray had not filed suit at the time Neeper’s notes were destroyed, but Neeper’s own report forecasts the probability of such lawsuits.
James Wagstaffe, a San Francisco attorney and expert in the rules of legal discovery, said he doesn’t “see anything unethical about (Neeper’s actions), but obviously it raises potential inferences that each side may be able to capitalize on.â€
“It’s somewhat counter to the grain of the normal anal-retentive quality of lawyers, which is to keep track of everything,†he said.
Both attorneys said the destruction of the data could be questioned by members of the media who asked for them in public records act requests. In a request filed June 3, The Times, the Union and the Tribune jointly asked the city for “notes, documents, tape recordings or other supporting materials†that went into Neeper’s report.
Rogozienski said Neeper could have protected Bray’s privacy simply by sealing his files in his office, and that a judge should have determined what Bray and Spaulding could obtain from Neeper.
“If the notes are produced in the context of his lawsuit, and there is some protectable right to privacy, then courts can deal with that,†he said.
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