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3 Amy J. Lepine, Esq. (SBN 203073)
Charles L. Pratt, Esq. (SBN 246673)
4 LEPINE LAW GROUP
444 West “C” Street, Suite 140
5 San Diego CA 92101
tel: 619.231.1337
6 fax:619.231.1330
7
Attorneys for Plaintiff Melvin Shapiro
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN DIEGO - CENTRAL DIVISION
11 HALL OF JUSTICE
12
13 MELVIN SHAPIRO, an individual, ) Case No.
)
14 Plaintiff, ) VERIFIED COMPLAINT
) CALIFORNIA PUBLIC RECORDS ACT
15 v ) ENFORCEMENT; AND
) DECLARATORY AND INJUNCTIVE
16 CITY OF SAN DIEGO, a City and DOES 1 ) RELIEF
through 100, inclusive, )
17 ) [Cal. Gov’t. Code §§ 6258, 6259)]
Defendants. )
18 )
19 I.
20 PRELIMINARY STATEMENT
21 This suit seeks Declaratory and Injunctive relief under Government Code sections 6258 and
22 6259, subdivision (a) of the California Public Records Act for disclosure of 66 complaints identified as
23 “closed” in the City Auditor’s Quarterly Fraud Hotline Report - Qtr 2 Fiscal Year 2009 report, published
24 by Defendant January 23, 2009, briefly summarizing complaints submitted to the San Diego
25 “Whistleblower Hotline.” A true and accurate copy of said “Auditor’s Report” is attached as Exhibit 1.
26 Despite further requests, the City refuses to disclose a record of these reports to Plaintiff.
27 ///
28 ///
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 1 II.
2 PARTIES
3 1. MELVIN SHAPIRO [“SHAPIRO”] is an individual residing in the County of San Diego.
4 2. CITY OF SAN DIEGO [“CITY”] is a Charter City in the County of San Diego
5 (California Constitution Article XI, § 3) incorporated in the state of California in 1850.
6 3. The true names and capacities of Defendants, DOES one through 100, whether
7 individual, corporate, associate or otherwise, are unknown to Plaintiff at the time of filing this complaint
8 and Plaintiff, therefore, sues said Defendants by such fictitious names and will ask leave of court to
9 amend this complaint to show their true names or capacities when the same have been ascertained.
10 Plaintiff is informed and believes, and therefore alleges, that each of the DOE Defendants is, in some
11 manner, responsible for the events and happenings herein set forth, and directly and proximately caused
12 injury and damages to the Plaintiff as herein alleged.
13 III.
14 JURISDICTION AND VENUE
15 4. This Court has jurisdiction over all causes of action asserted herein pursuant to the
16 California Constitution, Article VI, § 10, because this case asserts claims not given by statute to other
17 trial courts.
18 5. Venue is proper in this Court because Defendant is located in and maintains its principal
19 place of business in San Diego County, and because the conduct complained of herein occurred in San
20 Diego County.
21 IV.
22 CALIFORNIA PUBLIC RECORDS ACT
23 6. The California Public Record Act [“CPRA”] makes “access to information concerning
24 the conduct of people’s business a fundamental and necessary right of every person in this state.” (Cal.
25 Gov’t. Code § 6253 (a)).
26 7. The CPRA requires a local agency to disclose any requested records unless: (1) they are
27 exempt from disclosure under a specific exemption (Cal. Gov’t Code § 6254 (a) - (z); or (2) they are
28 exempt from disclosure pursuant to a public interest balancing test in which the public interest in non-
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 1 disclosure “clearly outweighs” that in disclosure (Cal. Gov’t. Code § 6255). These two exceptions to
2 CPRA mandated disclosure are referred to herein as “Prong 1" and “Prong 2,” respectively.
3 V.
4 WHISTLEBLOWER LAWS
5 8. California also promoted enhanced openness in government by enacting laws to protect
6 the identity of whistleblower hotline users. Whistleblower statutes were first implemented statewide
7 (Cal. Gov’t Code §§ 8547.4, et seq.), then extended to municipalities on January 1, 2009. (Cal. Gov’t.
8 Code § 53087.6).
9 9. In 2009, the CITY responded to this latter statute’s enactment by implementing a
10 “Whistleblower Hotline” to provide a way for employees of the CITY and its residents to confidentially
11 report: (1) any activity or conduct in which he or she suspects instances of fraud, waste, or abuse; or (2)
12 perceived violations of certain federal or state laws and regulations. (Office of the City Auditor: Fraud
13 Hotline Procedures Manual § 1 (July 20, 2009)). A true and accurate copy of the “Procedures Manual” is
14 attached as Exhibit 2.
15 10. The City Auditor must investigate all complaints relating to fraud, waste and abuse. The
16 Auditor generally sends the non-fraud-related complaints to the subject departments for action. The
17 whistleblower law also mandates that the City Auditor post reports on the city website: (1) to issue a
18 report on any investigation that has been substantiated or closed; or (2) to release any findings resulting
19 from a conducted investigation deemed necessary to serve the interests of the public. The working files
20 of an investigation may not be publicly disclosed, and the identities of the persons involved in the
21 complaint must also be kept confidential. Cal. Gov’t Code §53087.6. Nowhere in the enabling
22 legislation, besides the implicit requirement to redact the names of the person complaining or the
23 person(s) complained about, is there any mandate to keep the hotline complaints themselves
24 confidential.
25 11. Approximately 90% of hotline complaints are non-fraud related. (Memorandum from The
26 Office of the City Attorney, the City of San Diego on Referrals of Hotline Complaints to City
27 Departments and Whistleblower Protections to the Audit Committee (April 24, 2009)). A true and
28 accurate copy of the “City Attorney Memorandum” is attached as Exhibit 3. In most cases, non-fraud-
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 1 related complaints will be referred to the Departments for further review and investigation. (Exhibit 2,
2 Procedures Manual, § II.) In theory, the City Auditor should also issue reports on these Department
3 investigations that have been substantiated or closed, or release findings from these investigations
4 judged necessary to serve the interests of the public.
5 VI.
PLAINTIFF’S REQUESTS UNDER THE CPRA AND DEFENDANT’S DENIAL OF
6 INFORMATION PERTAINING TO HOTLINE COMPLAINT HANDLING IN SAN DIEGO
7 12. On March 1, 2009 a SHAPIRO email asserted his right under the CPRA, to inspect the
8 files on 66 complaints identified as “closed” in the CITY’s Q2 FY 2009 report. A true and accurate copy
9 of the “Email from Mel Shapiro” to Steve McNally, dated March 1, 2009, is attached as Exhibit 4.
10 13. On March 11, 2009 the CITY denied SHAPIRO’s entire March 1 request claiming that
11 Cal. Gov’t. Code § 53087.6 “precludes disclosure of any documents related to investigative audit.” A
12 true and accurate copy of the “Email from Budget Analyst Sylvia Calderon,” to Mel Shapiro dated
13 March 11, 2009, and the attached “Letter from City Auditor Eduardo Luna” to Mel Shapiro, are
14 collectively attached as Exhibit 5. On March 11, 2009, SHAPIRO limited his request to only the files on
15 the 21 complaints identified as “substantiated” in the CITY’s Q2 FY 2009 report, citing section 53087.6
16 subdivision (e) (2). After the CITY again refused to comply with his request, SHAPIRO sought legal
17 support.
18 14. In a letter dated from Attorney Charles Wolfinger to the City Auditor, SHAPIRO
19 replaced his previous request with the following list of requests:
20 (1) “A summary of all closed incident reports” received by the City Auditor from the
Hotline or any other source;
21
(2) “A summary report for all open incident reports” received by the City Auditor from
22 the Hotline or any other source;
23 (3) All records relating to complaints received by the City Auditor from the Hotline or
from any other source and investigated by that office...and any memorandum about the
24 results of the investigation if a hotline report about the complaint is not published on the
City Auditors Website;
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(4) All records relating to complaints received by the City Auditor from the Hotline or
26 from any other source and referred for investigation to any department or other unit of
government...such records include the memorandum and incident report;
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(5) All records relating to complaints received by the City Auditor from the Hotline or
28 from any other source not covered in Request Nos. 1.3 and 1.4, including complaints not
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 1 referred for further investigation. Such records include the incident report;
2 (6) To the extent not covered in Request Nos. 1.3 through 1.5 any records showing which
complaints were about (1) Senior Management referred to the Audit Committee
3 Chairperson, (2) elected officials and their staff referred to the Ethics Commission and (3)
unclassified employees referred to the Ethics Commission.
4
5 A true and accurate copy of the “Letter from Attorney Wolfinger to Eduardo Luna” dated May 14, 2009,
6 is attached as Exhibit 6.
7 FIRST CAUSE OF ACTION:
Violation of the California Public Records Act
8 (Against All Defendants)
9 15. Paragraphs 1 through 14 are fully incorporated into this paragraph.
10 16. In response to the Wolfinger letter, Chief Deputy City Attorney Catherine Bradley’s letter
11 denied SHAPIRO’S entire May 14, 2009 request, claiming the files were “protected from disclosure
12 under privacy protections and other exemptions in the CPRA (Cal. Gov’t. Code §§ 6254 (c), 6254 (k),
13 and 6255). A true and accurate copy of “Deputy Bradley’s Letter dated May 14, 2009, is attached as
14 Exhibit 7. Bradley also stated that section 6254 (k) incorporates Cal. Evid. Code § 1040 which creates a
15 privilege for “official information” received in confidence. The CITY’S denial also cited section
16 53087.6 (e) (2), claiming that this law requires the City Auditor “to keep the actual complaints and
17 other related documents confidential.” The Auditor is permitted by law to issue a report of a
18 substantiated investigation or release findings from an investigation when deemed necessary to serve the
19 public interest.
20 17. A major public policy reflected in the CPRA is to make the workings of government
21 appropriately transparent to the citizenry so that they may be able to hold their government accountable
22 for its actions. The CITY acknowledges that the whistleblower law allows reporting on closed and
23 substantiated cases, and of investigative findings pertinent to the public interest. The City Auditor has
24 reported the investigations with which the Auditor is directly involved, posting on the CITY website
25 records of his Department’s fraud investigations of closed and substantiated cases. The reports are
26 several pages in length, detailed enough to give one a sense of the issues, and making it possible to
27 weigh the relative merits of disclosure and non-disclosure for a given issue. However, the
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 1 approximately 90% of the cases sent to the subject departments for investigation, even those cases
2 substantiated and/or closed, are not reported on, except for succinct phrases presented in summary
3 tables. Memorandum from City Auditor Eduardo Luna to Honorable Members of the Audit Committee
4 (January 23, 2009). A true and accurate copy of the January 23, 2009, “Memorandum from Auditor
5 Luna” to the Audit Committee is attached as Exhibit 7. The CITY Departments do not report on any
6 findings although this is called for by the law. Because San Diego is not properly implementing the
7 whistleblower law, the code cannot be cited to satisfy the CPRA Prong one (exceptions to the CPRA
8 created by other codes), to justify the CITY’s non-disclosure of about 90% of the complaints that are
9 routed to the subject departments.
10 18. One example of the CITY’s faulty interpretation of the code is revealed when the CITY
11 asserts that it has an obligation to keep the actual hotline complaints permanently confidential, although
12 this is not called for anywhere in the whistleblower law after the initial intake review. Furthermore, the
13 sparse summary reports pertaining to the hotline complaints presumably addressed by the subject
14 departments that are presented by the City Auditor, are insufficiently detailed to make it possible for the
15 public to assess whether findings should be reported or alternatively not disclosed, in the public interest,
16 as required by Prong 2 of the CPRA exemptions. The lack of disclosure about substantiated and/orclosed
17 complaints pertaining to the subject departments, misapplies the whistleblower law, and violates the
18 spirit and letter of the CPRA.
19 19. Furthermore, the CITY exaggerates the confidentiality requirements of the whistleblower
20 law to in effort to further insulate it from disclosure. In several instances the language of the statue
21 asserts the need to maintain confidentiality of the “people involved.” The statute also mandates that
22 details of the investigations remain confidential. Nowhere in the whistleblower law is it stated that the
23 hotline complaints themselves must remain confidential after an initial review, though the clear
24 inference from the law’s language is that the identities of the complainer, and the complained about,
25 should remain confidential. Therefore, there is no statutory basis for non-disclosure of redacted hotline
26 complaints. The CITY’s willful assertion of a non-existent mandate for the confidentiality of hotline
27 complaints violates the CPRA.
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 1 20. The CITY’s laissez-faire approach to holding departments accountable, also facilitates
2 violation of the CPRA by creating informational “black holes.” There is an inevitable potential conflict
3 of interest when the Department investigates behavior complained about in those very departments. This
4 is particularly true, when the complaints are about department heads and other people with
5 administrative authority in the subject department that handle their own hotline complaints. One possible
6 way that the departments may, in protecting themselves, undermine the CPRA, is by conducting cursory
7 investigations with predetermined outcomes that protect individuals in the subject department from
8 being held accountable. The succinct summaries of closed and/or substantiated complaints do not
9 provide the public the ability to assess the specific problems or potential solutions. The lack of detail in
10 these reports also precludes publishing of investigative findings. There is also nothing to prevent a
11 Department from holding onto the complaint forever, effectively killing it like a “tabled” bill in
12 Congress. In this fashion, the subject department becomes a “black hole” for complaints that may enter,
13 but never return to the Auditor or public. In Los Angeles, in contrast, a neutral body conducts hotline
14 complaint investigations.1
15 21. The several categories of hotline-related information iterated in Paragraph 14 above
16 withheld by the CITY are public records under the CPRA. Although the CITY cites the whistleblower
17 law in attempts to justify as an exception to the CPRA its wide ranging non-disclosure of documents
18 requested by SHAPIRO, they misstate and misapply the language of the whistleblower act. They rely on
19 this exception to justify their withholding. In doing so, they violate the CPRA.
20 22. Except for reports offered by the City Auditor describing investigations by that
21 department, the reports on hotline complaints from the subject departments is so lacking in detail, that
22 Plaintiff must look to litigation to produce the necessary details, and look to the Court to determine
23 whether the balance of public interest considerations tips to public disclosure or non-disclosure.
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26 1
Although L.A. like San Diego keeps complaints and investigations/actions taken confidential, it does avoid
potential laissez-faire inaction on complaints at the Department level. In L.A. an independent entity, Office of County
27
Investigation (part of the Auditor-Controller Department) investigates hotline complaints.
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 1 23. The failure of Defendants to produce the withheld public records is unlawful under the
2 CPRA. As a result of Defendants’ actions complained of herein, the public is not able to obtain
3 sufficient information to understand how the CITY handles hotline complaints. In fact, the public is kept
4 ignorant about the substance of most hotline complaints. The public is not able to hold department
5 management accountable for their processing(or non-processing) of hotline complaints. This non-
6 disclosure also discourages the public and CITY employees from using these hotlines, and increases the
7 cynicism about local government and public access to public sector information in general.
8 24. SHAPIRO has been damaged as a result of the unlawful failure of Defendants to produce
9 the withheld public records.
10 25. Plaintiff has no administrative remedies, and no adequate remedy at law for the
11 Defendants illegal withholding under the CPRA.
12
13 SECOND CAUSE OF ACTION
Declaratory Relief under the Code of Civil Procedure Section 1060, et seq.
14 (Against All Defendants)
15 26. Paragraphs 1 through 24 are fully incorporated into this paragraph.
16 27. SHAPIRO is informed and believes and on that basis alleges that an actual controversy
17 exists between SHAPIRO, on the one hand, and Defendants, on the other hand, concerning their
18 respective rights and duties under the CPRA. As alleged in this pleading, SHAPIRO contends that the
19 withheld information is a public record that is not exempt from disclosure under the Act and that
20 Defendants are required by law to produce the withheld public record. Defendants dispute this contention.
21 28. SHAPIRO desires a judicial determination and declaration as to whether the withheld
22 public records are public records not exempt from disclosure under the Act, and as to whether Defendants
23 are required by law to produce the withheld public records.
24 PRAYER
25 FOR ALL THESE REASONS, SHAPIRO respectfully prays for the following relief against
26 Respondents and any Real Parties in Interest jointly and severally:
27 A. On the First Cause of Action:
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 1 1. Preliminary and permanent injunctive relief directing Defendants to permit
2 SHAPIRO to inspect and obtain copies of the with held public records; and
3 2. An order determining and declaring that the refusal of Defendants to permit
4 SHAPIRO to inspect and obtain copies of the withheld public records does not
5 comply with the CPRA;
6 3. Attorney fees and other legal expenses incurred by SHAPIRO in connection with
7 this proceeding pursuant to Government Code section 6259(d); and
8 4. Any further relief that this court may deem appropriate.
9 B. On the Second Cause of Action:
10 1. An order determining and declaring that the refusal of Defendants to permit
11 SHAPIRO to inspect and obtain copies of the withheld public records does not
12 comply with the CPRA;
13 2. An order providing for the Court’s continuing jurisdiction over this proceeding in
14 order to ensure that Defendants comply with the CPRA and all other applicable
15 laws;
16 3. All attorney fees and other legal expenses incurred by SHAPIRO in connection
17 with this proceeding pursuant to all applicable law, including Government Code
18 section 6259(d); and
19 4. Any further relief that this court may deem appropriate.
20
21
Respectfully submitted,
22
23 Date: June 14, 2010 LEPINE LAW GROUP
24
____________________________
25 By: Amy J. Lepine, Esq.
Charles L. Pratt, Esq.
26 Attorneys for Plaintiff MELVIN SHAPIRO
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 1
VERIFICATION
2
I, MELVIN SHAPIRO, have read the foregoing complaint and the same is true of my own
3
knowledge, except as to those matters alleged on information and belief, and as for those facts, I have
4
reason to believe them to be true.
5
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Executed this ___ day of June 2010, at San Diego, California.
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_______________________________
8 MELVIN SHAPIRO, Plaintiff
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