Law firm faults OC DA Spitzer for releasing harassment investigation report

By PAUL ANDERSON

Orange County District Attorney Todd Spitzer’s office committed a “hostile and offensive” act by disseminating an internal investigation on sexual harassment allegations against a retired senior prosecutor — and best man at Spitzer’s wedding — to everyone in the office, according to an outside law firm’s report obtained Wednesday.

The firm’s report, prepared by attorney Elisabeth A. Frater, was completed Aug. 2 but obtained Wednesday through a City News Service public records act request. Frater prepared the document as a follow-up to her initial investigation that was released May 7 into allegations of sexual harassment against retired senior prosecutor Gary LoGalbo.

The county requested the follow-up report from Frater in response to complaints by attorneys for several female prosecutors who made the harassment allegations, contending that Spitzer and the county improperly released the original investigation.

In the follow-up report, Frater concluded that county officials did nothing wrong by releasing the original investigative report in response to public records requests from City News Service and other media outlets.

But Frater determined that Spitzer’s subsequent release of the report to every employee of his office, as well as his subsequent comments about the document to a reporter, violated county policies.

Frater noted that the accusers were forced to participate in the original internal investigation under threat of discipline.

“Thus, the evidence supports a finding based on the preponderance of evidence that Mr. Spitzer’s dissemination of information the witnesses were compelled to give under threat of administrative discipline or termination, was an abuse or misuse of the power Mr. Spitzer held, and a reasonable person would find under these circumstances that the dissemination of the report office-wide was hostile and offensive,” Frater wrote.

Spitzer declined to participate in the follow-up investigation, as did his office’s spokeswoman, Kimberly Edds, and Spitzer’s top assistant, Shawn Nelson.

The original investigative report by Frater, completed April 28, substantiated the claims of sexual harassment against LoGalbo, who was accused of making inappropriate racial and sexual remarks to subordinates while bragging he was immune to consequences because he was Spitzer’s best friend.

A more serious allegation was made by a supervisor who said Spitzer pressured him to discipline one of LoGalbo’s accusers. Frater in the April report did not find Spitzer retaliated against the woman, because he did not follow through with the threat of disciplining her and also signed off on her moving from a probationary to permanent employee.

But Frater concluded that Spitzer and Edds were not credible in their accounts of Spitzer’s interaction with the supervisor about the employee.

When the original investigative report was released to media on May 7, Spitzer issued a statement contending the investigation concluded that his office “responded promptly, appropriately and no employee was subjected to retaliation.”

Edds issued the following statement Wednesday:

“The first investigation came with what we now know was a blatantly false promise of confidentiality, provided both in writing and verbally to everyone interviewed by the county’s independent investigator. Many of the employees who candidly participated in the first investigation understandably felt violated when the investigator’s report was first released by the county and not the District Attorney.

“The decision not to participate in the second investigation was made because it was clear there would be no confidentiality the second time around. The District Attorney felt this was unfair to the victims. The Orange County District Attorney’s Office has and continues to fully support the victims of harassment by Mr. LoGalbo. The behavior he engaged in at the workplace is nothing short of vile.

“… The independent investigation cleared everyone of any wrongdoing with the exception of Mr. LoGalbo. The initial independent investigation flatly rejected any allegation of retaliation by the District Attorney or any of his executive managers. Any allegation to the contrary is simply not true.

“Any allegation of harassment or retaliation in the workplace — irrespective of the timing, potential motive, or interpersonal relationships — has and will continue to be thoroughly investigated.”

According to Frater’s follow-up report obtained Wednesday, in a meeting with his office’s executives on May 2, Spitzer said he had a copy of Frater’s confidential report and that he was under the impression it would be released on May 7.

The supervisor of one of LoGalbo’s accusers checked with an administrator in the office to determine if he had any responsibility to tell the employee, Frater wrote. The administrator said the supervisor should tell the employee.

The woman asked if she would get a copy of the investigative report and was growing more anxious as the release approached, Frater wrote. When Spitzer issued his statement on May 7, the employee was “shaking,” the woman’s supervisor told Frater.

“Because the OCDA supervisor was concerned about the employee, the OCDA supervisor tried calling Mr. Spitzer, who did not pick up the call,” Frater wrote.

The supervisor went to Edds and said the female prosecutor wanted to see the report, Frater said. Edds said she had a copy and when the supervisor asked for it she said, “OK, let me see what I can do,” Frater said. About 15 to 20 minutes later, Edds emailed the report to all of the employees in the office, Frater said.

“The OCDA supervisor said that when he or she saw the employee, that person was ‘absolutely shaken up by this … physically shaken up by this … because it went out office-wide to everybody before (the person) as a victim had an opportunity to read it,'” Frater wrote.

Frater interviewed seven accusers involved in the initial review who expressed shock at the report’s internal release. One of the accusers said the report was written in a way that could easily identify all of the involved prosecutors to their co-workers.

One of the accusers said the news reports generated by the county’s release of the report in response to public record requests, meanwhile, were written in a way that did not identify them.

“None of them (media stories) named any of us or came close to giving the amount of information that the report gave,” one of the accusers told Frater.

The accusers said they felt the investigation would keep their identities confidential. One of the accusers said they felt the release of the report “has had a chilling effect on others who might file complaints with the DA’s office,” Frater said.

Some of the accusers said they cried when the report was released via mass email and continued to battle anxiety, Frater said.

A woman who has alleged Spitzer called her a “liar” and wanted her disciplined said she has lost her appetite, lost weight and had to be “forced to eat, and lost sleep,” Frater said. That prosecutor said she has heard that judges have read the report and commented on it, Frater said.

She said she is “extremely fearful of making mistakes at work because it could lead to termination,” so she finds herself doing “quadruple” checks on her work, Frater said.

The woman said she does not believe she could “leave this office even if I wanted to because who would hire me if I wanted to go to another DA’s office knowing all this about me and knowing the situation that I’m in, and the fact that the elected DA literally gave an interview to … a news reporter about how I’m a liar and quoting something regarding my probationary status that was … actually supposed to be kept confidential,” according to Frater.

Spitzer told a reporter his allegation of untruthfulness related to something outside of the LoGalbo investigation, Frater said.

Frater said county officials could have alerted the accusers that they had the right to file a “reverse” public records act request to block the dissemination of the report to the media, but they were not obligated to do so. Otherwise, county officials were correct in their legal analysis that the report should be released to the media, Frater determined.

Frater said she could make no finding on whether the internal release of the report was retaliation, saying the evidence was “inconclusive.”

She wrote, however, that emailing the report to all of the employees in the office allowed for it to be forwarded to defense attorneys and judges and others to expose the accusers to “gawking and humiliation, and had the effect of gratuitous sabotage or undermining of those attorneys’ work performance.”

Spitzer was under no obligation to send the entire investigative document to all of his employees, and the county’s honoring of the public records act requests by the media did nothing to affect Spitzer’s obligations, Frater wrote in her report.