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Salt Lake County Council rules DA's notebook is private

Published July 9, 2013 9:18 pm

GRAMA • Former prosecutor sought D.A.'s notes to prove she was fired for retribution.
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Michaela Andruzzi says a key to getting her job back as a Salt Lake County prosecutor lies in the pages of a notebook carried by county District Attorney Sim Gill.

So she filed a request to see the notebook under the Government Records Access and Management Act (GRAMA), believing she would find an entry in which Gill wrote something to the effect he was going to get rid of Andruzzi because he considered her a "political hack" for Lohra Miller, the former district attorney he defeated in a hotly contested 2010 election.

The district attorney's office rejected Andruzzi's request, contending Gill's notebook was not subject to GRAMA. Andruzzi appealed, but after lengthy debate last week, the County Council voted 5-3 to deny her request.

Andruzzi said she knew her chances of winning the GRAMA fight weren't good, and she still has not decided whether to appeal to 3rd District Court. But she remains adamant that "I don't want a million dollars. I want my job back" and is intent on letting county officials know she will not go down without a fight.

Her battleground at this point is before the county Career Service Council. She had appealed to that administrative body after her employment with the district attorney's office ended following Gill's defeat of Miller, who had made Andruzzi one of her leading supervisors.

The district attorney's office contends Andruzzi resigned. Andruzzi maintains she was denied a promotion, demoted and then fired. Her arguments to the Career Service Council ended in a draw, the two council members who heard the case reaching differing conclusions.

Appeal • She is appealing the ruling that went against her, in part citing sworn testimony in the earlier Career Service Council hearing from Doug Willmore, then former Mayor Peter Corroon's top deputy. She said Willmore admitted he and Gill had talked about Andruzzi's status, testifying Gill had said he "wouldn't have Lohra Miller's political hack working in his office."

Knowing Gill keeps a notebook, Andruzzi wants to see if entries reflect that attitude.

But deputy District Attorney T.J. Tsakalos argued that any notes Gill kept were protected from disclosure under GRAMA. The notes were for his personal use, Tsakalos added, to jog his memory about his many professional and personal dealings daily.

"These notes are not records," he told the council, contending a judge could order Gill to turn over his notebook as part of proceedings in a lawsuit, "but it's not a GRAMA issue."

Countered Andruzzi: "That is absurd. They were created by a public employee, in an official capacity, on taxpayer time, on things that impact taxpayers."

The attorney's comments and their legal underpinnings triggered a council debate, much of which revolved around an example raised by Councilman Randy Horiuchi.

What if, Horiuchi ventured, he was at a meeting and passed a note to fellow Councilman Jim Bradley, asking him "who is the woman in the third row?" Would that note be a public record?

Jason Rose, the council's attorney, said he did not think so. Meeting minutes are part of the record, personal notes are not.

But Councilman Michael Jensen said he could see where a note like Horiuchi's could be pertinent if a dispute involved sexual harassment. He expressed doubt that GRAMA's provisions are so broad as to protect all personal notes from being produced.

His fellow Republican, Richard Snelgrove, went even further, saying he believed openness and transparency trump privacy provisions in a case such as this.

"This [notebook] seems relevant to the operations of the D.A.'s Office," he said. "We need to err on the side of openness so justice is done or she gets her day in court and let the chips fall where they may."

Personal vs. public • The council's four Democrats and Republican David Wilde disagreed with his interpretation, however, expressing concerns about classifying personal notes as documents on the public record.

"Personal notes can range from a flow of consciousness to conflicting ideas that come to mind as you're listening to somebody," said Bradley. "I don't have a lot of faith in personal notes telling the true story."

Councilman Arlyn Bradshaw said that, in his mind, it is easy to distinguish between personal notes and communications that reflect a politician's intent to do something. Since neither council members nor Andruzzi know if Gill's notebook actually contains any remarks about dumping her, Bradshaw said "let a judge decide what's admissible."

Andruzzi said that was fine by her and cited a 2008 Utah Supreme Court decision that said the county council was wrong to reject a Deseret News GRAMA request for an investigative report into a sexual-harassment complaint without examining the report's contents.

That unanimous ruling said the council's judgment on the appeal "could be made only after the County reviewed the content of the requested investigative report and took into account the competing interests of public access versus restricted disclosure. A governmental entity's commitment to perform this important work of interest identification and balancing is essential if GRAMA's aims are to be realized."

Tsakalos maintained the Supreme Court ruling did not apply in this case because it involves notes, not a formal investigative report.

Jensen asked to delay the decision until the next council meeting July 16 so he and Rose could research other court rulings on how GRAMA applies to notes. But his motion failed on a 4-4 vote strictly along party lines, Republicans for a delay, Democrats against it (the council's ninth member, Republican Max Burdick, was absent following a death in his family).

Then, when Horiuchi made a motion to reject Andruzzi's GRAMA request, GOP Councilman David Wilde joined the Democrats in voting for denial. He had earlier expressed reservations about broadening the interpretation of GRAMA too much — "let's be careful of the precedent set," he said — and said a court could decide better because it "thinks in terms of legalities. Here, politics and emotions come into play."

mikeg@sltrib.comTwitter: @sltribmikeg —

How they voted

The Salt Lake County Council voted 5-3 on Tuesday to deny former prosecutor Michaela Andruzzi's request for County District Attorney Sim Gill's notebook under the Government Records Access and Management Act (GRAMA).

• Against the appeal: Jim Bradley, D; Arlyn Bradshaw, D; Sam Granato, D; Randy Horiuchi, D; and David Wilde, R.

• For the appeal: Steve DeBry, R; Michael Jensen, R; Richard Snelgrove, R.