D.A.: Press Aide's Taping Phone Interviews Was OK

FREE PRESS -- The Alameda County District Attorney has agreed with Attorney General Jerry Brown's staff that the secret taping by Brown's press spokesman of phone interviews by a reporter was not unlawful, given that the results were going to be on the record in any case.

As reported by Jack Chang in the Sacramento Bee,

Brown's office had asked District Attorney Nancy O'Malley to conduct the independent investigation into the repeated recordings made by communications director Scott Gerber, who resigned in November after news broke about his actions.

With Brown expected to announce his Democratic candidacy for governor, his handling of the case became a target of media criticism and political attacks. O'Malley found that Gerber had disobeyed the instructions of Chief Deputy Attorney General James Humes not to record interviews with Brown and other members of the attorney general's office.

But Gerber had not violated state penal code section 632, which prohibits the intentional recording or eavesdropping of conversations without consent, because the interviews were "meant for publication and airing," O'Malley found.

Gerber recorded interviews conducted by reporters from the San Francisco Chronicle, the Associated Press and other media organizations.

"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," says a press release from the District Attorney's Office.

The attorney general's office had reached a similar conclusion in its own investigation but asked for the second inquiry after critics accused Brown of trying to whitewash the matter. The Alameda County district attorney took the case because Gerber made the recordings in the attorney general's Oakland office.

In a written statement, the attorney general's office responded Thursday, "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."