The state Supreme Court has refused to review an appeals court’s decision that found Ventura County officials illegally disclosed personnel records of fired investigative commander Tracy Towner.
The high court’s denial Wednesday came four months after the 2nd District Court of Appeal faulted county officials for releasing disciplinary notices and an excerpt from a consultant’s investigation related to Towner’s disputed firing.
The county faced a high bar for state Supreme Court review. Generally, the justices must find they need to act to secure uniformity of decision among the appellate courts or settle an important question of law.
County attorneys could not be reached last week to see if they are weighing any other options or how close they are to settling litigation stemming from Towner’s firing by the District Attorney’s Office for alleged dishonesty in 2018.
Towner’s attorney, Mark Pachowicz, praised the high court’s decision not to review the appeals court’s ruling.
“We are very pleased that the decision by the appeals court finding the county’s conduct illegal as a matter of law and punishable as a misdemeanor has been upheld,” he said.
The appeals court reversed a decision from now retired county Superior Court Judge Vincent O’ Neill Jr. He found county officials could release the records under a state law passed to protect free speech and the right to petition.
Justices in the appeals court found no such protection existed because the defendants’ “willful disclosure” of the records without following mandatory procedures was “punishable as a misdemeanor” under a law governing public employees’ actions.
Named as defendants in their opinion were the county government, the District Attorney’s Office, former District Attorney Greg Totten, former top Totten aide Michael Schwartz and Edward Zappia, the private attorney representing the county in the case.
In his petition to the state Supreme Court filed in June, Zappia argued the appeals court’s opinion conflicted with the positions of the state Legislature, the state Supreme Court and all other appellate districts in the state.
He said the records could be disclosed for several reasons, including the public interest along with broad protections of the First Amendment and a law empowering courts to dismiss legal complaints brought to silence criticism on public issues.
Zappia also asked the high court to remove the appeals court’s classification of its opinion in the Towner case as “published.” The classification allows lawyers and judges to cite the opinion in other cases, Pachowicz said. The state Supreme Court denied that request as well.
Neither Zappia nor the county government’s chief legal counsel, Tiffany North, could be reached for comment. The lawyer who succeeded Totten as district attorney in January, Erik Nasarenko, said only that the high court had spoken and “we respect their decision.”
Towner’s objections to the disclosure of his records are contained in a lawsuit that he filed against the county in 2019, a year after his dismissal from the investigative unit in the DA’s Office. He claims the DA’s Office retaliated against him for telling the truth in other personnel cases in the agency where he had worked for 20 years before his firing.
Zappia has said that lawsuit was placed on an inactive status pending a final decision by the 2nd District appeals court on whether he can go back to work. The county reinstated Towner as a county employee eight months ago at full pay, but he was placed on paid leave without being returned to his old job.
Pachowicz predicted that the lawsuit will be reactivated with the records claims restored and that he will be able to start deposing witnesses and defendants.
The county’s legal costs for Towner’s firing and defense of the retaliation lawsuit that Towner filed reached nearly $950,000 in mid-May. The request for review by the state Supreme Court was expected to cost less than $10,000, county officials have said.
Kathleen Wilson covers the Ventura County government, including the county health system, politics and social services. Reach her at firstname.lastname@example.org or 805-437-0271.