Water Authority Prevails in Public Records Lawsuit Against Eastern Municipal Water District

Short Title
Water Authority Prevails in Public Records Lawsuit
Judge orders Eastern to conduct additional search for responsive records; says Water Authority is entitled to recovery of its attorney’s fees

A Superior Court judge on Tuesday ruled that a Public Records Act lawsuit brought by the San Diego County Water Authority against the Eastern Municipal Water District compelled the Riverside water agency to release records and that it must conduct an additional search for records responsive to the Water Authority’s request.  The judge’s ruling means the Water Authority is the prevailing party in the litigation and is entitled to recovery of its attorney’s fees. 

In his ruling on Tuesday, Los Angeles Superior Court Judge James Chalfant found that the Water Authority’s “lawsuit motivated EMWD to more carefully search its records and it is entitled to attorney’s fees.”  A hearing was set for April 15 to issue a final judgment in the case and rule on the award of attorney’s fees.

The Water Authority filed its lawsuit under the California Public Records Act in January 2013 after Eastern refused to turn over contracts and other documents regarding a covert public relations campaign on behalf of the Los Angeles-based Metropolitan Water District of Southern California and its member agencies designed to discredit the Water Authority among San Diego civic leaders and elected officials.  In June 2012, Eastern entered into a contract with the Sacramento-based firm of California Strategies, which has an office and personnel in San Diego County.

For more than a year, Eastern released fewer than 20 pages of documents that it asserted constituted all records responsive to the Water Authority’s Public Records Act request. 

Eastern and California Strategies were also assisted by Ron Gastelum, a former MWD general manager and before that, a member of MWD’s board representing the city of Los Angeles.  According to testimony given in this case by Eastern’s general manager, Paul Jones, Gastelum provided his services on the San Diego public relations strategy “pro bono.”  However, records obtained from other MWD member agencies show that at the same time Gastelum was reportedly donating his services to Eastern, he was a paid consultant to a group of MWD member agencies that, at least until June 2012, included Eastern. 

The California Constitution and state law require public agencies to promptly provide complete copies of documents, emails and other records relating to the conduct of the public’s business. 

On Nov. 27, 2013, Eastern released to the news media 84 pages of records. The agency then filed a petition with the court seeking to dismiss the case.  In arguing for dismissal during a Dec. 4 hearing, Eastern’s lawyers told the Court that all records had been produced.  The court denied the motion to dismiss.  Weeks later, on Dec. 20, 2013, Eastern released 1,033 more pages of records – more than 10 times the number of documents it had provided at the time when it told the court that all responsive records had been produced.

“This case makes clear that Eastern withheld more than 1,000 pages of documents for 13 months, and only turned them over to the Water Authority in response to this lawsuit,” said Kelly Aviles, special counsel for the Water Authority, with the Law Offices of Kelly Aviles, in La Verne, Calif.  “Eastern even filed a petition with the court to dismiss the case, which the court denied.”

Eastern’s initial document production included a copy of the $15,000-a-month contract with California Strategies, but agency officials refused to provide the document that detailed the scope of work for the campaign. Although the consulting agreement clearly describes the services Eastern retained as “government and community relations strategy relative to local, regional and statewide policy issues,” Eastern’s lawyers claimed that the public relations firm’s work was related to lawsuits filed by the Water Authority challenging MWD’s rates. (Note: On Feb. 25, a Superior Court judge in San Francisco issued a tentative ruling in the Water Authority’s favor. For details, go to www.sdcwa.org/mwdrate-challenge.) 

Aviles said Eastern’s claims of privilege “were wholly without merit.”

After initial pressure from the Water Authority, Eastern provided the scope of work for the California Strategies campaign, but redacted all the language about the services to be provided by the public relations firm. The Water Authority eventually compelled Eastern to remove the redactions, which revealed that the public relations campaign was, in fact, being conducted “on behalf of MWD and its member agencies.”

The records revealed that the public relations plan for MWD included setting up a San Diego office lead by a “high integrity individual from the San Diego community,” polling and focus groups, and “message development and tactical refinement.” One document provided by Eastern shows the plan involved placing MWD representatives on key local boards, conducting one-on-one outreach with elected officials in San Diego County and improving its local media presence. “The challenge we have is finding a way to subtly and effectively educate these leaders and other key organizations and individuals,” according to one of Eastern’s documents on Oct. 9, 2012.  “However doing this educating under the nose of the CWA presents a unique set of risks; hence our use of term subtly above.”

The records tout the money-is-no-object ability of MWD to offer lifetime health benefits and a “base salary close to $200 k per year” for a San Diego-based team leader who could “implement MWD’s big picture vision.”