Finding the Facts - Disciplinary and Harassment Investigation

Cases on Point: In a recent decision 147 , PERB adopted an ALJ’s proposed finding that the City was required to give the Union a redacted copy of a harassment investigation report. A customer service representative employee for the Redding Electric Utility filed a harassment complaint, and the City hired an outside investigator to investigate the complaint. During the investigation, some witnesses who were also customer service representatives raised general workplace concern. Consequently, the City expanded the scope of the investigation to include the employees’ other concerns. As a result of the investigation, the City proposed various changes to the supervision of the customer service representatives. PERB found that the investigation report was relevant and necessary for the Union to represent its members in being free from a hostile work environment, and to work in a safe workplace. Consequently, the City was required to

produce the investigation report and witness statements, subject to redaction/deletion of all employee names and other identifying information in such documents.

IMPORTANT: Confer with legal counsel before producing the written report and/or any other materials gathered during the investigation!

3. D ISCOVERABILITY OF THE R EPORT

Although an investigation concerns an employee’s personnel matters, under certain circumstances, the investigation report may be subject to disclosure under the California Public Records Act (PRA). In Bakersfield City School District v. Superior Court , a school district challenged a newspaper’s request for the disciplinary records of a district administrator. 148 The investigation concerned an alleged incident of a sexual and violent nature, but no discipline resulted from the allegations. 149 The Court of Appeal found that the disciplinary records were subject to disclosure under the PRA because the employee’s right to privacy in employment records did not outweigh the public’s right to know of the alleged wrongdoing. 150 The Court reasoned that it must find in favor of disclosure where records reflect allegations of a substantial nature and there is reasonable cause to believe the complaint was “well-founded.” 151 But neither a finding that the allegations were true, nor evidence that discipline was imposed, is necessary to determine that a complaint is “well-founded” justifying disclosure. 152 Similarly, in BRV, Inc. v. Superior Court , the school district’s board of trustees received numerous complaints regarding the superintendent/principal of the high school verbally abusing and sexually harassing students. 153 The Board hired an investigator who prepared a confidential report. 154 After receiving the report, the Board entered into an agreement with the superintendent in which it accepted the superintendent’s resignation in exchange for certain payments and a promise to keep the report confidential. 155 A local newspaper and the public suspected a “sweetheart deal” and demanded access to the report. 156 The Court of Appeal ordered release of the full report, finding that the public’s interest in disclosure outweighed the superintendent’s privacy interest in the report, especially because the superintendent was a high ranking official. 157 The Court also noted that the public had a substantial interest in knowing how the

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