The consumer advocacy group at the center of the flap about Jerry Brown’s ex-spokesman secretly recording phone calls has sent a formal demand to the Attorney General’s office, seeking all internal documents that could shed light on the matter.
The Public Records Act request, filed by Consumer Watchdog, is one of at least three separate efforts to dig deeper into the controversy, which began with the disclosure last week that Scott Gerber, Brown’s former press secretary, recorded conversations with reporters without informing them or asking their consent. Gerber resigned on Monday.
Brown shrugged off the controversy Tuesday, during a scrum with reporters before delivering a speech in San Francisco. His new press officer has not only insisted that no one in the Attorney General’s office besides Gerber had knowledge of his actions, but also argued that, in any case, his actions did not violate legal restrictions on when a recording can be made without the consent of both parties.
That may well be true, as a legal matter. As a political matter, however, the dispute over the recordings is the first bump in the road for Brown’s back-to-the-future campaign for governor. While he cleared the Democratic field with the withdrawal of Gavin Newsom, the controversy could provide ammunition to Republicans, as well as prove a drip-drip-drip distraction if he does not deal with it fully and forcefully.
“This isn’t going away,” said Harvey Rosenfield, Consumer Watchdog’s founder.
His organization’s demand, dated Oct. 30, seeks “copies of all transcripts of phone calls recorded by (Brown) or any employee of the Department of Justice.”
“If there are recordings of phone conversations that have not been transcribed, we request a list of the recorded conversations, including the time and date of the call and the names of all people on the call,” the letter says.
In addition to Consumer Watchdog, the Bay Area News Group, which owns and operates a chain of daily papers including the Contra Costa Times , reported that it has submitted two Public Records Act requests to the AG, seeking copies of recorded conversations with its reporters, along with other documents.
And the Chronicle, whose reporter Carla Marinucci conducted the interview with Gerber which first revealed the taping, has called on the Attorney General in an editorial to “fully clear the air about this breach of the law on his watch…and make public his findings.” (Update 1230 p.m. We just learned that the Chronicle also has filed a PRA seeking documents in the case).
At the same time, two Republican legislators have written to Brown, demanding he appoint an independent prosecutor to investigate alleged “crimes” arising from the matter.
Christine Gasparac, Brown’s new press secretary, issued a statement in response to the demand, by Assemblyman Ted Gaines, R-Roseville, and Senator George Runner, R-Lancaster. She said that “the Department’s highest-ranking criminal lawyer” looked into it and concluded “the evidence that has surfaced thus far does not constitute a crime.”
Well and good, but her assertion is all but guaranteed not to put the matter to rest. The practice of having high-ranking law enforcement officials investigate themselves has been pretty problematic since the good old days of John Mitchell.
What it’s all about: The political Sturm und Drang about the recordings (several news organizations have referred to Gerber “taping” conversations, but we understand he used a digital device) has largely obscured the substantive issue underlying the political controversy.
(Weed whacker alert!) Here’s the background:
Since 1988, auto insurance rates and companies in California have been governed by Prop. 103, an initiative written by Harvey Rosenfield, who led a coalition of consumer and other grassroots groups that passed it. Under 103, insurance companies are allowed to use three basic criteria for determining the customer premiums: driving safety record, miles driven per year and years of driving experience.
One factor they are greatly restricted in using they are not authorized to use is a driver’s history of insurance coverage. Prior to Prop. 103, insurance companies would sometimes submit drivers to a Catch-22, denying them coverage because they never had coverage before (California has required auto insurance since 1984). It was also not unheard of for insurers to add a surcharge on a policy for a driver without previous coverage, or one who had missed a payment, or had interrupted coverage for other reasons.
Some insurers, including Mercury Insurance, have fought that restriction. In 2003, while larding up Sacramento with campaign contributions, they got a bill passed through the Legislature and signed by Gov. Gray Davis which permitted companies to use prior coverage as an element in determining rates. But the state Court of Appeal Supreme Court invalidated the law in 2005, saying it violated Prop. 103.
Fast forward to 2009: Now comes Mercury and its allies with a new initiative, aimed at the 2010 ballot, to allow insurers to consider a driver’s history of coverage in determining rates.
As all good Calbuzzers know, the process of getting approval for an initiative petition to circulate for signature gathering includes getting the Attorney General to issue a “Title and Summary” that boils down the effect of the proposal, and is located at the top of the petition.
On August 13, Brown’s office approved a Title and Summary that said the Mercury measure:
Allows insurance companies to increase or decrease the cost of auto insurance based on a driver’s coverage history…Allows insurance companies to raise the cost of auto insurance based on the absence of prior automobile insurance coverage. Allows insurance companies to lower the cost of auto insurance for drivers who have continuously maintained auto insurance coverage, even if they change insurance companies.
But in short order, the initiative was withdrawn and Mercury submitted a second, similar measure. On Oct. 27, Brown’s office gave it this Title and Summary:
“Allows auto insurance companies to base their prices in part on a driver’s history of insurance coverage…Changes current law to permit insurance companies to offer a discount to drivers who have continuously maintained their auto insurance coverage, even if they change their company, and notwithstanding the ban on using the absence of prior insurance for purposes of pricing.”
At which point Harvey Rosenfield’s head exploded.
Rosenfield immediately took to his Consumer Watchdog blog to blast Brown for issuing a different Title and Summary on the second initiative, which he said “accommodated the company by obscuring the premium increases” that would occur.
“I have rarely seen political cowardice on this level from a seasoned public official,” he howled.
Rosenfield’s blog caught the attention of the resourceful Carla Marinucci. She interviewed Rosenfield, then interviewed Gerber and top attorneys in the AG’s office, and then proceeded to write a newspaper story about the dispute, which was posted on the Chronicle’s web site at 5:57 p.m. on October 28.
Upon reading the story, Gerber and his colleagues in the AG’s office felt that it did not fully reflect their position. In their view, the second initiative submitted by Mercury was substantially different than the first, and therefore received a substantially different Title and Summary (*Rosenfield disputes this assertion and says the second initiative made only minor changes from the first; Consumer Watchdog has filed a separate Public Records Act request with the AG regarding the issue).
So Gerber phoned up Marinucci’s editor to complain; her posted story mysteriously disappeared from SFGate, the Chron’s news site, somewhere around 6:30. At 9:44 p.m., a second version of Marinucci’s story popped back up on SFGate. It had several changes:
— A sentence reporting that Rosenfield was angry with the AG’s office for “rewriting the measure” was corrected to say he was upset with Brown for “approving a new summary for the ballot measure.”
— A comment by Gerber, calling Rosenfield’s charges “utterly ridiculous,” was extended to include a new paraphrase, expanding on the AG’s position: “The summary was rewritten, he said, because sponsors of the measure made substantial changes to it. The new summary is a fair and accurate description of the measure, Gerber said.”
— A new paraphrased comment by Rosenfield, denying the AG’s statement that there were substantive changes between the first and second intiatives, was added; his quote about Brown’s alleged “political cowardice” was moved down, from the fourth graf in the first version, to the 9th graf in the second version; another Rosenfield quote attacking Brown for a “flip flop” was deleted in the new story.
So Gerber basically earned his money that day by pushing back on Marinucci’s story. Except for one small problem: While going over her head to complain to her editor, Gerber had buttressed his argument by using a portion of a written transcript of the interview Marinucci conducted with him and the office attorneys.
Which led to a key question: Um, WTF did he get a transcript?
Which led in turn to a key conclusion: Uh, he taped the damn interview.
The Chronicle reported on the incident on Oct. 30. That story included Gerber’s acknowledgement that he had recorded calls with reporters somewhat routinely. This led to a fair amount of outrage by some media advocates, among other critics, including Calbuzz, which said that Brown had no alternative but to fire Gerber; he resigned with class a few days later, accepting complete responsibility for his actions, and basically clearing everyone else in the office.
And there the matter stands. For the moment.
Bottom line: It remains to be seen how well Brown’s all’s-well-that-ends-well declaration stands up to challenge from Rosenfield and assorted media organizations. Not to mention Republicans sniffing for blood.
*Weed Whacker Alert II: Kathy Fairbanks of Californians for Fair Auto Insurance Rates, which supports the disputed initiative, checked in to take issue with Rosenfield’s statement that the two versions of the initiative have only “minor differences.” She said the second measure submitted to the AG contains “major changes” from the first, preventing insurers from raising rates because of the expanded use of a driver’s insurance history that the measure would permit. Fairbanks also noted that insurers are currently allowed to use coverage history in a limited way, through so-called “loyalty discounts” offered drivers who stay with the same company for a significant period of time; the disputed initiative would give the insurance industry greater latitude in this area. The Rosenfield-Fairbanks disagreement on this point is the crux of a key future campaign argument if the measure makes the ballot. (Update 4:45 p.m. Rosenfield fires the first shot here).