Memo Leak Not Unlawful

A San Bernardino County supervisor’s besieged chief of staff, who is the focus of a separate investigation for possible violations of the county’s ethics policy, did not break the law when he leaked an internal memo to two local newspapers, prosecutors said Friday.

At the same time, the actions by Jim Foster, who works for Supervisor Dennis Hansberger, raised issues relating to the county’s ethics rules, which forbid employees from releasing confidential information, the district attorney’s office said.

As Foster claimed vindication in the criminal inquiry, Supervisor Paul Biane issued a statement calling for Foster’s immediate termination.

The investigation centered on a 2004 memo requested by Biane that asked county counsel how to fire a supervisor’s chief of staff. Although the document did not name a particular staffer, Foster said that it was directed at him because of bitter relations pitting him and Hansberger against Biane.

Foster has maintained that he did nothing wrong and is a political target.

The chief of staff told investigators that he faxed copies of the document to the San Bernardino County Sun and the Riverside Press-Enterprise, though the editor of Press-Enterprise said her reporters received the memo anonymously.

County lawyers contended that releasing the document violated attorney-client privilege and state law that prohibits an “officer” from removing, stealing, altering or falsifying public records.

Last month, Chief Administrative Officer Mark Uffer asked the district attorney’s Public Integrity Unit to investigate.

But the case failed to meet the standard for a criminal prosecution, said Frank Vanella, the unit’s supervisor. State law is untested regarding the removal of document copies, and only the release of a document that could be shown to harm the county or cost it money would make a case worth pursuing, he said.

“This was not the case we wanted to push,” he said.

This was the second investigation this summer involving a leaked memo in which prosecutors declined to file charges.

In June, the district attorney’s office checked into who leaked a memo from a closed session involving two board members. The memo described how Biane and board Chairman Bill Postmus negotiated a settlement with a developer that is suing the county.

The deal was ultimately rejected by county lawyers as too expensive.

Biane blamed Hansberger’s office for the leak, but investigators could not identify the culprit.

Foster’s troubles are not over. Last month the county asked an outside counsel to investigate whether Foster purchased county land in Redlands through an intermediary, a move that would violate the county’s ethics rules. The district attorney’s office also is reviewing the deal.

Foster is on paid administrative leave pending the outcome of the investigation.