SONOMA COUNTY GRAND JURY v. BOARD OF SUPERVISORS OF COUNTY OF SONOMA (1984)

The Sonoma County Board of Supervisors (County) and the County Administrator, Leonard Whorton, appeal from an order directing them to deliver to respondent, the County's 1981 Grand Jury, a portion of a county personnel file.   We affirm.

The affidavit in support of the order alleged that, pursuant to its civil functions as the “watchdog” over county government (Pen.Code, § 925) the 1981 grand jury was investigating whether appellants had performed their duties following the arrest of the County Planning Director for driving under the influence of alcohol, to which charge a plea of nolo contendere had been entered.   At the time of his arrest, the planning director was in a County vehicle being driven outside the scope of his employment.   The purpose of the grand jury's investigation was to ascertain whether appellants had followed appropriate disciplinary procedures in dealing with the unlawful conduct of the planning director.   Appellants on advice of the county counsel refused to comply with the subpoena duces tecum on grounds of the confidential nature of the personnel file, the right of privacy (Cal. Const., art. I, § 1), the Public Records Act (Gov.Code, §§ 6250 et seq.), and the fact the public interest in maintaining the confidentiality of personnel records outweighed the interest served by disclosure.¹

The County Administrator's declaration explained that:  1) Section 12–A of the County Civil Service Ordinance, like the State Civil Service Enabling Law (Gov.Code, §§ 31000 et seq.) requires that major discipline be a matter of public record.   Lesser disciplinary actions by implication, may be, and are kept confidential.   County policy is to keep lesser disciplinary actions confidential in the interests of proper personnel administration.   The court's order directed production of that portion of the Planning Director's personnel file pertaining to the administrative action taken following his arrest.

The unique civil function of the California Grand Jury as a “watchdog” over the operations of a variety of local governmental functions, has a long and well respected heritage.  (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 436–437, 119 Cal.Rptr. 193, 531 P.2d 761.)  Penal Code section 925 ² provides so far as pertinent:  “The grand jury shall investigate and report on the operations ․ and records of the officers, departments or functions of the county ․”  Section 928 provides so far as pertinent:  “Every grand jury may investigate and report upon the needs of all county officers ․ including ․ the method or system of performing the duties of, the several offices.”   The civil report is not privileged (§ 930) and must be based on its own investigation.  (§ 939.1.)

The statutory provisions pertaining to the general powers and duties of the grand jury, provide for “․ the examination, without charge, of all public records within the county.”  (§ 921)  Both parties focus on this provision:  appellants to argue that it is limited to public records;  respondent, that it is entitled to “all public records” including the portion of the personnel file sought.   Here, of course, the minor discipline imposed upon the County Planning Director was not a matter of public record.

Appellants argue that Board of Trustees v. Leach (1968) 258 Cal.App.2d 281, 286–287, 65 Cal.Rptr. 588, is dispositive.   While the case held that in its “watchdog” capacity (§§ 925, 928, 933.5), the grand jury did not have statutory access to school personnel records, the decision was predicated on the court's analysis that:  1) the statutes were limited to county officials;  2) school district officials were not county officers but state officials.   (Leach, supra, at p. 287, 65 Cal.Rptr. 588.)   Equally inapposite is the respondent's reliance on People v. Sperl (1976) 54 Cal.App.3d 640, 126 Cal.Rptr. 907, which held that while inquiring into the wilful or corrupt misconduct of public officers (§ 919 subd. (c)) the grand jury was not required to subpoena monthly personnel time sheets, time books, payroll cards and other evidence related to the charged offenses of keeping false accounts as to public moneys.   Respondent was here acting in its general “watchdog” capacity and not investigating the misconduct of either the County Administrator or the Planning Director.

We agree that disclosure to the grand jury is not disclosure to the public.   Although the language of section 924.1,³ unlike section 924 ⁴ does not by its own terms so indicate, this court (Div. II) intimated that read in context, section 924.1 applies only to the indicting function of the grand jury.  (Gillett-Harris-Duranceau & Associates, Inc. v. Kemple (1978) 83 Cal.App.3d 214, 222, 147 Cal.Rptr. 616.)   As to the grand jury's “watchdog” functions, no statutory provision similar to Penal Code section 995, provides for a challenge to the sufficiency of the evidence, or rules for controlling the type of information presented or a forum in which an individual unfavorably mentioned may present his version of the facts.   Further, section 930 provides that “watchdog” reports are not privileged.  (Ibid., p. 223, 147 Cal.Rptr. 616.)

 While the grand jury is convened by, and is a part of the superior court, in the exercise of its distinctive statutory civil function, the power of the superior court is more limited.  (People v. Superior Court (1973 Grand Jury), supra, 13 Cal.3d 438, 440, 119 Cal.Rptr. 193, 531 P.2d 761.)   The grand jury's function of investigating and reporting on local government is not inherently a part of the judicial system.  (Gillett-Harris-Duranceau & Associates, Inc. v. Kemple, supra, 83 Cal.App.3d 214, 222, 147 Cal.Rptr. 616.)   Rather, in its “watchdog” capacity the grand jury functions as an agent of the board of supervisors which finances the investigative activities (Pen.Code, § 915) and receives the findings and recommendations of the grand jury.  (Pen.Code, §§ 928, 933.)   The grand jury's function is analogous to that of the citizens' assistance which this court (Div. One) described in Parrott v. Rogers (1980) 103 Cal.App.3d 377, 383, 163 Cal.Rptr. 75, in language equally pertinent here:  “We are advised of no law or other authority which precludes investigation or inquiry, into any aspect of the acts or records of a city's government, by a city official or employee otherwise authorized by law to do so for the purpose, as noted, of reporting or commenting to the city council or other department ‘upon the functioning of city government and recommending appropriate policies or changes in policy.’   Such a disclosure by one official or department to another is not a ‘public disclosure’ as contended by defendants.   In the exercise of his functions the citizens' assistant, like all other of the City's officials and employees, is subject to the provisions of any law forbidding public, or private, disclosure of designated records or information to ‘citizens' (under Charter § 47) or others.”  (Emphasis added.)   Similarly here disclosure by one part of the County to another does not constitute “public disclosure,” and the respondent's access to the requested portion of the County personnel file is not limited by Evidence Code section 1040.

 Appellants also contend that disclosure is prevented by the Public Records Act (PRA) (Gov.Code, §§ 6250 et seq.) because Government Code section 6254, subdivision (c) specifically exempts from disclosure, “personnel” or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”   However, the effect of section 6254 is limited to proceedings under the PRA (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123–124, 130 Cal.Rptr. 257, 550 P.2d 161), and thus has no application here.

Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 7 Cal.Rptr. 109, 354 P.2d 637, is germane and helpful here.   In that case, the rules of the State Bar provided that public reproval of an attorney was a matter of public record, while private reproval was not.   In upholding the Chronicle's discovery rights to the fact of private reproval and the information on which it was based, the court commented at page 574, 7 Cal.Rptr. 109, 354 P.2d 637, that the public interest does not require the complete confidentiality when the conduct of an attorney merits condemnation, even though minor.   We think the same reasoning applies when the grand jury seeks to ascertain whether the right of the public to honest and impartial government has been had.   In view of the above we need not reach the appellants' constitutional contentions.

The judgment is affirmed.⁵

FOOTNOTES

FOOTNOTE.  

1.   It is to be noted that the County did, by letter, advise the grand jury that “the Board of Supervisors considered the incident at length in an Executive Session ․ and took appropriate disciplinary action.”

2.   All further references are to the Penal Code unless otherwise indicated.

3.   Section 924.1 provides:  “Every grand juror who, except when required by a court, willfully discloses any evidence adduced before the grand jury, or anything which he himself or any other member of the grand jury has said, or in what manner he or any other grand juror has voted on a matter before them, is guilty of a misdemeanor.”

4.   Section 924 provides:  “Every grand juror who willfully discloses the fact of an information or indictment having been made for a felony, until the defendant has been arrested, is guilty of a misdemeanor.”

5.   In affirming, we emphasize that we do not hold that a grand jury has a roving commission to peruse the personnel files of county employees.   All that we hold is that the grand jury here had a right to see what action the board took as reflected in the personnel file of the County Planning Director.

FEINBERG, Associate Justice.* FN* Assigned by the Chairperson of the Judicial Council.

SCOTT, Acting P.J., and BARRY–DEAL, J., concur.