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TABLE OF CONTENTS

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! VERIFIED PETITION!

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INTRODUCTION!

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JURISDICTION AND VENUE!

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PARTIES!

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GENERAL ALLEGATIONS!

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CAUSES OF ACTION!

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PRAYER!

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VERIFICATION!

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! MEMORANDUM OF LAW IN SUPPORT OF PETITION !

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I.! !

17 18 19 20 21 22 23

INTRODUCTION!

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Page 1

THE IDENTIFIED RECORDS MANIFEST AN EMPLOYMENT CONTRACT AND ARE THEREFORE SUBJECT TO DISCLOSURE!

II.! DISCLOSURE OF THE REQUESTED RECORDS ! WOULD NOT CONSTITUTE AN UNWARRANTED ! INVASION OF PERSONAL PRIVACY.! ! III.! THE PUBLIC INTEREST IN THE RECORDS SOUGHT IS ! MANIFEST AND SUBSTANTIAL AND CLEARLY OUTWEIGHS ! ANY POTENTIAL HARM TO PRIVACY INTERESTS.! ! ! CONCLUSION! !

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! EXHIBITS

26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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TABLE OF AUTHORITIES ! ! !

Memorandum of Law Page:

Cases Braun v. City of Taft (1984) 154 Cal.App.3d 332! .......................................................... 5, 6 New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97 .................................. 12

7 8

Ripskis v. Dept. of Housing and Urban Development (D.C. Cir. 1984) 746 F.2d 1 ......... 12

9

Sims v. Central Intelligence Agency (D.C.Cir.1980) 642 F.2d 562!.................................... 6

10

Versaci v. Superior Court (2005) 127 Cal.App.4th 805! ........................................... 2-6, 12

11 12

Constitutions Cal. Const. art I, §1! ............................................................................................................ 1

13 14

Statutes

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5 U.S.C. § 522(b)(6) .......................................................................................................... 2

16

Government Code § 6250! .............................................................................................. 1, 2

17

Government Code §6253, Subd (b)! ................................................................................... 2

18 19 20 21 22 23 24 25 26 27

Government Code §6254, Subd (c)! ......................................................... 2, 3, 4, 6, 7, 8, 12 Government Code §6254.8! ...................................................................................... 3-7, 12 Government Code §6255, Subd (a)! ............................................................... 2, 3, 6, 8, 12 Other Authorities 68 Ops.Cal.Atty.Gen. 73 (1985) .................................................................................. 4, 6 Hearings California State Senate Rules Committee, April 9, 2014. California Senate video archive: http://calchannel.granicus.com/MediaPlayer.php?view_id=7&clip_id=2020 ... 7, 8, 10, 11

28 VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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1 2 3 4 5 6 7

Publications and Other Documents Engineering dean on leave of absence. The Sacramento State Hornet, 12-11-2013. ...... 9 Sacramento State Dean On Leave Accused of Retaliation Against Whistleblower. CBSLocal Sacramento, 13 KOVR, 12-11-2013. .............................................................. 9 Sacramento State sheds little light on high-profile dean’s absence. The Sacramento Bee, 12-13-2013. .................................................................................... 9 Sacramento State engineering dean replaced. The Sacramento Bee, 02-03-2014. ......... 10

8 9

Sacramento State must clear the air to students about decorated engineering dean Macari’s leave of absence. The Sacramento State Hornet, 02-11-2014. ................ 10

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Former engineering dean says he resigned from position. The Sacramento State Hornet, 04-16-2014. .................................................................... 10

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CSUS told engineering dean to leave post in January. The Sacramento Bee, 05-01-2014. ................................................................................... 11

14 15

Former engineering dean asked Sacramento State to reconsider removal. The Sacramento State Hornet, 05-07-2014. ..................................................................... 11

16 17

Memo from CSUS interim Provost Charles Gossett, To: ECS Department Chairs and Dean’s Staff, Re: Emir Macari, 12-03-2013 ............. 5, 9

18 19

Letters of appointment and signed acceptance, from CSUS Provost Ric Brown to Emir Jose Macari, Ph.D., 04-26-2006 (rev. 06-26-2006) ............................ 6

20 21 22 23 24 25 26 27 28 VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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1 2 3 4 5

Paul G. Mattiuzzi P.O. Box 255841 Sacramento, CA 95865 Telephone: 916-485-0285 Fax: 916-487-6303 Email: [email protected] in propria persona

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SACRAMENTO

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PAUL G. MATTIUZZI,! )! ! ! ) ! Petitioner, ! )! ! ! )! ! vs.!! )! ! ! ! )! CALIFORNIA STATE UNIVERSITY,! )! ! SACRAMENTO, ! )! ! ! ! )! ! ! Respondent.! )! ! ! ! )! ____________________________________)! ! !

CASE NO: VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS; MEMORANDUM OF LAW IN SUPPORT OF PETITION California Constitution Article I §3; Govt. Code §6258; Cal. Code of Civil Proc. §1085

22

VERIFIED PETITION

23

INTRODUCTION

24

1.!

25

Procedure §1085, Government Code §6258, and Article I, §3 of the California State Constitution,

26

for a Writ of Mandate directed to California State University, Sacramento (“CSUS,” hereinafter

27

Respondent), to compel the production of public records in compliance with California

28

Petitioner Paul G. Mattiuzzi respectfully petitions this Court, pursuant to Code of Civil

Government Code 6250 et. seq., the California Public Records Act (“CPRA”). VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

1

1

2.!

2

relating to the removal of CSUS executive employee Emir Macari from the position of Dean of

3

the College of Engineering and Computer Science.

This case involves a request by Petitioner, pursuant to the CPRA, for identifiable records

4

JURISDICTION AND VENUE

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3.!

This Court has jurisdiction under Government Code §6258, Code of Civil Procedure

§1085, and Article VI section 10 of the California Constitution. 4.!

Venue is proper in this Court: the acts and omissions complained of herein occurred in

this County. Code of Civil Proc. §393. Defendant is situated in this County. Id. §394(a). The records in question are situated in this County. Govt. Code §6259(a).

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PARTIES

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5.!

Petitioner Paul G. Mattiuzzi is a member of the public. Govt. Code §6252(c), (g).

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6.!

Respondent California State University, Sacramento is a “State agency” (Govt. Code

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§6252(a)) and is responsible for producing public records for inspection and copying in

15

compliance with the California Public Records Act.

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GENERAL ALLEGATIONS

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I. Records Were Requested

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7.!

20

public records in the possession of the Respondent, pursuant to Govt. Code §6250 et. seq.

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8.!

22

On or about February 13, 2015, Petitioner duly requested in writing, access to identifiable The request was for: “the 01-23-2014 level two, non-retention decision rendered by presidential designee Ming-Tung (Mike) Lee under the ‘Sacramento State Reconsideration Procedure,’ relieving employee Emir Macari of his management personnel plan position as a college dean, and the information upon which it was based;” and

23 24 25

“the"non-retention memo sent to Emir Macari on 11-25-2013.”

26 27

9.!

28

incorporated herein by reference.

A copy of the request dated February 13, 2015 is attached hereto as “Exhibit A” and is

VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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1

II. The Records Were Identifiable

2 3 4 5 6 7

10.!

by CSUS Human Resources Vice President Christine D. Lovely to then Dean of the College of Engineering and Computer Science Emir Macari on January 23, 2014, with the subject reference: “Non-Retention Letter.” 11.!

III. The Records Were Not Disclosed

9

11 12

A copy of the letter dated January 23, 2014 is attached hereto as “Exhibit B” and is

incorporated herein by reference.

8

10

The two documents requested were properly identified by the Petitioner from a letter sent

12.!

On or about February 23, 2015, Respondent duly acknowledged receipt of the public

record request, informed the Petitioner that a search for the identified records had been undertaken, and informed the Petitioner that the “two documents” recovered were not subject to disclosure for the following reasons:

13

“(1) they are confidential personnel records exempt from disclosure under Gov’t Code §6254(c), Gov’t Code §6254(k) and Cal. Const., Art.I, §1 (See also, Versaci v. Superior Court (2005) 127 Cal.App.4th 805);” and

14 15 16

“(2) under Gov’t Code §6255 the pubic interest served by not disclosing the records clearly outweighs the public interest served by disclosure.”

17 18 19 20

13.!

is incorporated herein by reference. IV.

21 22

A copy of the refusal letter dated February 23, 2015 is attached hereto as “Exhibit C” and

The Records Are Not Exempt From Disclosure 14. !

The requested records are elements and manifestations of an “employment contract” and

23

therefore, the exemptions cited by the respondent are not applicable. Govt. Code §6254.8.

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15.!

25

claims), the records must be produced because their disclosure would not constitute an

26

unwarranted invasion of personal privacy. Govt. Code §6254(c).

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16.!

28

provision of the Act and has not justified the withholding by demonstrating that on the facts of

Even if deemed to be “personnel” rather than “contract” documents (as respondent

The respondent has not claimed that the records may be withheld under any express

VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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1

this particular case, the public interest served by nondisclosure outweighs the public interest

2

served by disclosure. Govt. Code §6255(a).

3

V.

4

Petitioner Is Authorized And Compelled To Seek Legal Remedy

5 6 7 8 9 10

17.!

The Petitioner is a person authorized to institute proceedings for a Writ of Mandate to

enforce the necessary and fundamental right of every person in this state to access information concerning the people’s business. Govt. Code §6250, §6258. 18.!

The resolution of this matter involves questions of both law and fact. In the face of

respondent’s apparently arbitrary and unsupported assertion of an exemption under the CPRA, the Petitioner has no recourse other than to seek a review and a determination from a Court of competent jurisdiction. Govt. Code §6258.

11 12

FIRST CAUSE OF ACTION

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VIOLATION OF CALIFORNIA CONSTITUTION ARTICLE I, SECTION 3(b)

14

Failure to Produce Public Records for Inspection

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19.!

16

forth herein.

17 18 19 20

20.!

Petitioner incorporates the allegations of the preceding paragraphs as though fully set Respondent’s refusal to produce for inspection the identifiable public records requested

violates Article I, Section 3(b) of the California Constitution, providing, inter alia, that the people have a right of access to information concerning the conduct of the people’s business, and that therefore, the writings of public officials and agencies shall be open to public scrutiny.

21

SECOND CAUSE OF ACTION

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VIOLATION OF GOVERNMENT CODE SECTION 6250, et. seq.

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Failure to Produce Disclosable Public Records for Inspection

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21.!

25

forth herein.

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22.!

27

requested violates the California Public Records Act, which declares that “access to information

Petitioner incorporates the allegations of the preceding paragraphs as though fully set Respondent’s refusal to produce for inspection the disclosable, non-exempt records

28 VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS

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1 2 3 4 5

Paul G. Mattiuzzi P.O. Box 255841 Sacramento, CA 95865 Telephone: 916-485-0285 Fax: 916-487-6303 Email: [email protected] in propria persona

6 7

SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF SACRAMENTO

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PAUL G. MATTIUZZI,! )! ! ! ) ! Petitioner, ! )! ! ! )! ! vs.!! )! ! ! ! )! CALIFORNIA STATE UNIVERSITY,! )! ! SACRAMENTO, ! )! ! ! ! )! ! ! Respondent.! )! ! ! ! )! ____________________________________)!

CASE NO: VERIFIED PETITION FOR WRIT OF MANDATE TO COMPEL PRODUCTION OF PUBLIC RECORDS; MEMORANDUM OF LAW IN SUPPORT OF PETITION California Constitution Article I §3; Govt. Code §6258; Cal. Code of Civil Proc. §1085

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MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

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INTRODUCTION !

The California Public Records Act (Government Code 6250 et. seq. ) recognizes two

competing interests to be weighed: the right to individual privacy embodied in Article I, Section

26

1 of the California State Constitution and the right of the people to monitor the activities of

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public agencies:

28 MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

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1

§6250. In enacting this chapter, the Legislature, mindful of the right of individuals to

2

privacy, finds and declares that access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.

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Subdivision (b) of Section 6253 of the California Government Code provides that:

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§6253 (b). Except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person ...”

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!

Respondent, California State University, records described in a publicly disclosed University memo.1 The documents were identified from that memo as:

12

(1)! the 01-23-2014 level two, non-retention decision rendered by presidential designee Ming-Tung (Mike) Lee under the “Sacramento State Reconsideration Procedure,” relieving employee Emir Macari of his management personnel plan position as a college dean; and

13 14 15

(2) ! the"non-retention memo sent to Emir Macari on 11-25-2013.

16 17 18

In this case, the Petitioner properly requested access to records in the possession of the

!

In a letter from CSUS Counsel Jill Peterson to Paul G. Mattiuzzi dated 02-23-2015

(hereinafter, “Response”), the respondent refused production of any portion of the requested

19

documents. The response asserted that the records were exempt from disclosure under §6254(c),

20

the provision for “personnel, medical or similar files,” and supported that contention by citing

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Versaci v. Superior Court (2005) 127 Cal.App.4th 805 (hereinafter "Versaci").

22

!

23

provision, asserting that: “on the facts of the particular case the public interest served by not

24

disclosing the record clearly outweighs the public interest served by disclosure of the record.”

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Government Code §6255(a). 2

The response also claimed the records were exempt under §6255, the “catch all” privacy

26 27 28

1

Exhibit B.

2

Emphasized text was omitted in the Response. Exhibit C. MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

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1

The response did not cite any of the particular case facts that might describe a public

2

interest served by nondisclosure. The response did not identify any “express provisions” of the

3

law exempting the records from disclosure.

4

The case authority cited by the respondent (Versaci v. Superior Court, supra) favors the

5

Petitioner. In Versaci, the court applied a three-step analysis derived from case law surrounding

6

“FOIA’s Exemption 6” (5 U.S.C. § 522(b)(6)), which the court found to be “substantively

7

identical” to California’s §6254(c) personnel record exemption:

8

(1)

“As a threshold matter, the court must determine whether the records sought constitute a personnel file ...”

(2)

“If so, the court must determine whether disclosure of the information would compromise substantial privacy interests; if privacy interests in given information are de minimis, disclosure would not amount to a clearly unwarranted invasion of personal privacy ...”

(3)

“Lastly, the court must determine whether the potential harm to privacy interests from disclosure outweighs the public interest in disclosure.”

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Versaci, 127 Cal.App.4th at 818. In the present case, the records requested do not constitute a “personnel, medical or similar file” under §6254(c). Even if these records were deemed to be personnel files, the disclosure of the information would not compromise substantial privacy interests or amount to a clearly unwarranted invasion of personal privacy. The privacy interests are de minimis and the public interest in disclosure is substantial, based on the facts in this case.

I. THE IDENTIFIED RECORDS MANIFEST AN EMPLOYMENT CONTRACT AND ARE THEREFORE SUBJECT TO DISCLOSURE UNDER SECTION 6254.8 AND NOT SUBJECT TO THE PROVISIONS OF SECTIONS 6254 AND 6255.

26 27

In its entirety, Government Code Section 6254.8 states:

28 MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

§6254.8. Every employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255. In Versaci v. Superior Court, supra, the court considered whether disputed information should be categorized as personnel file data (§6254(c)), or instead, as an expression of the employment contract under §6254.8. The Act itself does not define "employment contract." Rocco Versaci sought disclosure of a list of “personal performance goals” that had been used by a community college board, meeting in closed sessions, to evaluate the overall compensation-related performance of the District’s Superintendent, Dr. Amador. Versaci, 127 Cal.App.4th at 810. In subsequent open session, the board announced their evaluation of Dr. Amador (“satisfactory”); reported that “in light of budgetary constraints she agreed to forego one-half of the raise to which she was entitled;” voted to increase her compensation by 2.5%; and also stated, “the Board cannot ignore the current situation that needs to be addressed ... the Board directs [Dr. Amador] to focus on building relationships and improving morale, with progress to be monitored on an ongoing basis.” Id. at 811. On appeal from the judgment of the Superior Court, Versaci contended that because the Superintendent’s contract referred to goal setting in the context of yearly evaluations, the

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personal performance goals documented in the closed session evaluations were “mutually

18

enforceable terms,” incorporated by reference into the employment and compensation contract.

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Id. at 814, 815.

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Versaci cited an Attorney General opinion to the effect that bonuses constitute wages and

21

“form part of the employment contract,” and that “any record specifying the amount of the bonus

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or the exceptional services for which (it) is paid manifests provisions of the executive’s

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employment contract within the scope of section 6254.8.” 68 Ops.Cal.Atty.Gen. 73 (1985).

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The court rejected Versaci’s argument. In ruling that the evaluative materials (the

25

personal performance goals) were personnel files and subject to privacy, the Versaci court noted

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that there had been “no secrecy” about the contract-related results of the board’s deliberations.

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In open session, the Board had announced the evaluation outcome (satisfactory), the action taken

28 MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

4

1

(2.5%), justification for the action, and the board’s future expectations and requirements under

2

the contract. Versaci, 127 Cal.App.4th at 815.

3

The Versaci court also distinguished the documentation of Dr. Amador’s personal

4

performance goals from contract documents deemed to be public under Govt. Code §6254.8 by

5

citing Braun v. City of Taft (1984) 154 Cal.App.3d 332 (hereinafter “Braun”). In Braun, a city councilman (Donald Braun) publicly disclosed records (two letters)

6 7

concerning the appointment of a city firefighter to a position as a transit administrator and the

8

subsequent rescission of the appointment. The City Manager had refused to publicly confirm or

9 10 11 12 13 14 15 16 17 18 19 20

deny the personnel actions, and Braun had access to the documents in his position as a council member. Braun was censured by the city council for disclosing the letters (and other, arguably personal information). Braun then petitioned the superior court for a writ of mandate commanding the city to set aside its censure. The Superior Court in Braun ruled that the appointment and rescission letters were subject to disclosure under §6254.8, but did not order the censure withdrawn. Braun appealed. The appellate court affirmed, ruling that the City could continue the censure for other or additional reasons (as it did), but that Braun could not be censured for disclosing records that were public in nature. The court rejected the City’s argument that the letters were part of the personnel file and that their disclosure would “embarrass” the employee and compromise substantial privacy interests. The appellate court affirmed that the appointment and rescission letters were subject to disclosure under §6254.8 because they “manifested (the) employment contract.” Braun v. City of Taft, supra, 154 Cal.App.3d at 344.

21 22 23 24

In the present case, the Petitioner seeks documents that were identified, to the respondent’s satisfaction, as a “non-retention memo” and a “level two non-retention decision.” Both documents affected and gave effect to terms and conditions in executive Emir Macari’s employment contract. By way of the November 25, 2013 non-retention memo, Dr. Macari was

25

administratively relieved of his position as Engineering College Dean. 3 By way of the January

26

23, 2014 non-retention decision, Dr. Macari was permanently removed from his executive

27 28

The action was announced on December 3, 2013 in a signed memo from interim Provost Charles Gossett (To: ECS Department Chairs and Dean’s Staff, Re: Dean Macari). 3

MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

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1

position and was positioned instead to exercise contract “retreat rights” to a post as a tenured

2

faculty. 4

3

!

4

Versaci court observed to be contract-related, and which, by virtue of having been properly

5 6 7 8 9 10

announced, was “no secret” to the public. Cited by the respondent, the Versaci case favors the Petitioner. !

13

With respect to the Attorney General opinion (1985), supra, a record specifying a

contract rescission (i.e., a “non-retention”) and the reasons for that action is no different from a “record specifying the amount of a bonus and the exceptional services for which (it) is paid.” The Attorney General opined that the latter would manifest provisions of the contract and fall within the scope of §6254.8.

11 12

The information requested in the present case is clearly similar in nature to that which the

The Attorney General opinion (1985) supra, noted that the federal statutory counterpart to §6254(c) “was developed to protect intimate details of personal and family life, not business judgments and relationships ... While public embarrassment may be a factor to be considered, the

14

‘personnel’ exception may not be invoked ‘to protect the concerns of a contractor who would be

15

embarrassed by disclosure of his responsibility for shoddy work’.” Sims v. Central Intelligence

16

Agency (D.C.Cir.1980) 642 F.2d 562, 575. The non-retention documents sought in this case are clearly similar in nature to the

17 18

appointment and rescission letters that were found to be expressions and manifestations of an

19

employment contract in Braun. Here, both documents served to define Dr. Macari’s continued

20

employment status under the terms of a mutually enforceable contract. The records in question here do not constitute a “personnel or similar file” under Govt.

21 22 23 24 25 26

Code §6254(c). Instead, the non-retention memorandum and non-retention decision manifest and exist as §6254.8-defined employment contract records. As elements serving to comprise and constitute an employment contract under Govt. Code §6254.8, the non-retention records in this case are not exempt from disclosure. Under the express provisions of Govt. Code §6254.8, the privacy analysis required by Sections 6254 and 6255 is inapplicable.

27 28

See Exhibit B. Dr. Macari’s signed contract consisted of an appointment letter and a letter appointing him as a faculty with “retreat rights” to a non-executive rank. 4

MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

6

1

II.

2

DISCLOSURE OF THE RECORDS REQUESTED WOULD NOT CONSTITUTE

3

AN UNWARRANTED INVASION OF PERSONAL PRIVACY.

4 5 6 7

Even if the Court finds that the records in this case are not an element of an employment contract under Govt. Code §6254.8, the records would still fall outside the personnel file exemption. Section 6254(c) exempts “Personnel, medical or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

8 9 10 11 12 13

In determining whether a disclosure would unduly invade privacy interests, the Versaci court considered the nature of the information requested (personal performance goals disclosed candidly in closed session), as well as a declaration from the subject, Dr. Amador. The evaluation itself was inarguably confidential, and in her declaration, Dr. Amador asserted that she had an expectation of privacy when she revealed her personal goals and objectives as part of the evaluation.

14 15

In the present case, Dr. Macari has testified publicly to the effect that he has no vested privacy interest with respect to the personnel action taken and the information at issue.

16

In June of 2013, prior to the non-retention actions, Dr. Macari was renamed by Governor

17

Jerry Brown to a second term as a member of the Alfred E. Alquist Seismic Safety Commission.5

18

At his re-confirmation hearing before the Senate Rules Committee on April 9, 2014,6 Dr. Macari

19

testified to his experience in the field of earthquake science and safety. Opposition testimony

20

revealed that his status in academia had changed. Chairing the Rules Committee, Senate

21

President Pro Tem Darrell Steinberg resolved to continue the hearing at a later date and offered

22

Dr. Macari an opportunity to discuss the matter in private with the Rules Committee staff, before

23

making any public statement. Dr. Macari volunteered that he wished to be heard on the matter by

24

the Senate Rules Committee and prefaced his comments by stating:

25

“Senator Steinberg, I have nothing to hide.”

26 27 28

Dr. Macari was appointed to the Seismic Safety Commission in 2010 by Governor Arnold Schwarzenegger. 5

6

Senate Hearing video referenced. MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

7

1

Responding to a direct question from Senator Steinberg about why he had been

2

“removed” as a college dean, Dr. Macari claimed that the action had been recorded as a

3

“voluntary change.” Dr. Macari explained:

4 5

“I'm at the pleasure of the president - it’s a position that is at the pleasure of the president - the president wanted me to do certain things that I didn't think were in my best interest, and I walked away from the position."

6 7 8 9 10 11 12 13 14 15 16 17 18

On Dr. Macari’s testimony, the Senate Rules Committee subsequently voted to confirm his appointment on April 21, 2014. When Dr. Macari tendered his credentials for voir dire in front of the Senate Rules Committee, he effectively waived any claim to a privacy interest with respect to his employment history at CSUS. Dr. Macari specifically addressed the subject matter contained in the records at issue here. The records are analogous to evidence admitted for rebuttal. Enabling the public to test the claims he made for the purpose of securing a position of public trust does not represent an unwarranted invasion of personal privacy. Dr. Macari indicated himself that the privacy interests in this information are de minimis by testifying publicly: “I have nothing to hide.” Dr. Macari’s testimony was to the effect that he took a principled stand in response to an executive fiat and that it was not a matter that would embarrass him or compromise his privacy. By testifying to the matter, while seeking to benefit from appointment to a position of

19

public trust, Dr. Macari waived any cognizable privacy interest. Dr. Macari specifically

20

disclaimed any interest in the privacy of these records by stating that he has nothing to hide.

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This is not a case where disclosure would amount to a clearly unwarranted invasion of personal privacy under Section 6254(c) or Section 6255 of the Government Code.

23 24

III.

25

THE PUBLIC INTEREST IN THE RECORDS SOUGHT IS

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MANIFEST AND SUBSTANTIAL AND CLEARLY OUTWEIGHS

27

ANY POTENTIAL HARM TO PRIVACY INTERESTS.

28 MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

8

Dr. Macari’s change in status was announced on December 3, 2013 in a signed memo

1 2

from interim Provost Charles Gossett, addressed only to the dean’s staff and the engineering

3

college department chairs.7 The announcement did not provide evidence that the mid-semester

4

change in leadership was planful and orderly, and suggested instead that it was exigent, unusual

5

and extraordinary. The Provost’s memo advised:

6

“[E]ffective immediately Dean Emir Macari is on leave and is not available to handle day to day operations in the College of Engineering and Computer Science (ECS). At the present time, I do not have an estimated time frame for his return. During his leave, he should not be contacted for work related matters, nor should any new issues be referred to him. While he is out, Laureen O’Hanlon has agreed to serve as Administrator in Charge in ECS and any items that would normally be handled by a manager should be directed to her.”

7 8 9 10 11 12 13

The “administrator in charge” was at that time an interim dean in the College of Continuing Education and before that, she was the Speech Pathology department chair. 8 The

14

College of Engineering and Computer Science was without an engineer or computer scientist to

15

serve in the college leadership role as dean or interim, and the college was instead suddenly and

16

effectively under administrative receivership. The status of the college leadership is a matter of

17

direct concern to faculty and students (e.g., with respect to accreditation and careers), as well as

18

to the public.

19

Articles manifesting the public interest appeared in the press and on television:

20

“Engineering dean on leave of absence” (“... for unknown reasons”), The Sacramento State Hornet, 12-11-2013;

21 22

“Sacramento State Dean On Leave Accused of Retaliation Against Whistleblower,” CBSLocal Sacramento, 13 KOVR, 12-11-2013;

23 24

“Sacramento State sheds little light on high-profile dean’s absence,” The Sacramento Bee, 12-13-2013.

25 26 27 28

7

See footnote 3 above.

8

The Sacramento Bee, 12-13-2013, infra. MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

9

On February 3, 2013, The Sacramento Bee published again (“Sacramento State

1 2

engineering dean replaced”) on the announcement that a professor of civil engineering had been

3

appointed as interim dean and that Dr. Macari would return as a faculty member. The story said

4

that “university officials had no comment.” On February 11, 2013, The State Hornet published an editorial: “Sacramento State must

5 6

clear the air to students about decorated engineering dean Macari’s leave of absence.” The

7

student newspaper editors wrote in part:

8

“The circumstances leading to his dismissal remain mysterious and unclear, raising both curiosity and confusion ... It raises questions as to how those in power, particularly at Sac State, remain accountable to their constituents. By remaining silent, questions arise as to whether the university is looking to protect its assets or Macari ... The students within the engineering college deserve to know why he is gone.”

9 10 11 12 13

“With all the emphasis on plagiarism and cheating, this is the true test of academic integrity - whether an educational institution can remain honest in the face of adversity.”

14 15 16 17 18

On April 16, 2014, The State Hornet reported on the April 9th Senate testimony in which Dr. Macari told the Rules Committee “his decision was voluntary.” The story was headlined: “Former engineering dean says he resigned from position.”

19 20 21 22

In May, after Dr. Macari’s confirmation to the Seismic Safety Commission, The Sacramento Bee reported (05-01-2014) that it had obtained a January 23, 2014 letter9 written by CSUS human resources vice president Christine D. Lovely. The headline in The Bee read: “CSUS told engineering dean to leave post in January.” The Bee story said in part:

23

“Macari was told in January to vacate his post as dean ... (his) departure has been cloaked in secrecy ever since he quietly went on administrative leave in December.”

24 25

“The letter revealed that Macari’s leave was paid and that he was asked to meet a campus representative at his office in February to remove his personal belongings ...”

26 27 28

9

Exhibit B. MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

10

1 2

“‘From this date forward you are not to represent yourself as a dean,’ Lovely wrote.”

3

The May 1st story in The Bee noted that Dr. Macari had “served as dean of one of the

4

university’s most prestigious programs since 2006” and that “in April, Macari told the Senate

5

Rules Committee that he left his position voluntarily.”

6

The State Hornet published an article on the same subject on May 7, 2014, headline:

7

“Former engineering dean asked Sacramento State to reconsider removal.” The Hornet took

8

note, as did The Bee, that Dr. Macari had informed the Senate that he resigned voluntarily.

9 10 11 12 13 14 15 16 17 18 19 20 21

As dean of the engineering college, Dr. Macari had decision making authority over millions in state budget funds and millions more in state and federal grants. A college dean makes personnel and curriculum decisions that can directly affect the lives of faculty and students. A dean serves as an advisor to students and a role model with respect to professional values, ethics and aspirations. A dean upholds the reputation of a college, a concern to the public generally, and of specific concern to alumni. To the extent that the information sought in this case might bear on the effectiveness with which these duties were discharged (whether in a responsible or a “shoddy” manner) it remains a matter of public interest. The public also has an interest in knowing whether a member of a state commission dedicated to advising the governor and the legislature on the important matter of seismic safety is to be trusted. In this case, a question emerged (in the press) regarding the quality of Dr. Macari’s confirmation testimony. The campus newspaper editorialized about the “confusion” caused by the dean’s departure and the question of institutional accountability. Dr. Macari said publicly that his

22

privacy is not of concern and allowed for the possibility that instead, actions on the part of the

23

university president bear examination. The Hornet asked if the institution might be seeking to

24

protect its own assets and described the question as a matter of academic integrity.

25

There is a manifest and substantial public interest in the information the respondent

26

refuses to disclose. The Petitioner is aware of no facts in this particular case or evidence that

27

would show that the public interest served by not disclosing the record outweighs the public

28 MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR WRIT OF MANDATE

11

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