Probe into secret recordings clears Brown's office

Chris Rizo Feb. 5, 2010, 2:18pm

Jerry Brown (D)

Nancy O'Malley

OAKLAND, Calif. (Legal Newsline)-California Attorney General Jerry Brown's office did not break any laws when a former spokesman surreptitiously recorded phone conversations with journalists, an investigation found.

An independent investigation into the recordings made by Brown's former communications director, Scott Gerber, was handled by Alameda County District Attorney Nancy O'Malley.

Gerber resigned in November after news that Gerber had recorded calls with reporters from The Associated Press, the San Francisco Chronicle and the Los Angeles Times.

In her investigation, O'Malley said she found that Gerber had flouted instructions by Brown's chief deputy, James Humes, not to record interviews with the attorney general and members of his office.

California is one of 12 states that require notification of all parties before a phone call is taped. The law is outlined in California Penal Code Section 632.

Even so, Gerber did not break state privacy laws against eavesdropping because the on-the-record interviews were meant for publication and airing, O'Malley said.

"The investigation concluded, therefore, that the recorded conversations were not confidential and there is insufficient evidence to support any conclusion that they were meant to be confidential," a statement from O'Malley's office said.

Brown's office came to a similar conclusion in its internal investigation. In a statement, the office responded to the district attorney's report.

"The Alameda County District Attorney's independent conclusion validates the Department of Justice's earlier finding that Scott Gerber only taped conversations intended for the public, which was well within the provisions of law. All of the recordings were on-the-record discussions intended for public consumption."

The Alameda County district attorney handled the investigation because Gerber made the recordings in the attorney general's Oakland office.

News of the secret records came after Gerber admitted to recording an interview in October with the San Francisco Chronicle's seasoned political reporter Carla Marinucci, who interviewed Brown for a story about criticisms of revisions he made to the ballot summary of a proposed measure on car insurance rates.

After the story was published on the newspaper's Web site, the Chronicle reported that Gerber contacted an editor at the newspaper to complain and e-mailed the editor a transcript of the conversation.

From Legal Newsline: Reach staff reporter Chris Rizo at

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