SACRAMENTO — Republicans are calling for the appointment of an independent prosecutor to head a criminal investigation into the secret taping of phone conversations with news reporters by Scott Gerber, the newly resigned communications director for state Attorney General Jerry Brown.
Gerber resigned Monday after he admitted regularly taping conversations with reporters with whom he spoke from the Attorney General's Office. The practice of taping the conversations came to light when Gerber told a San Francisco Chronicle reporter he'd done so during an interview about Brown's role in writing a title and summary for a ballot measure that critics called favorable to the insurance industry.
Gerber said in his resignation letter that his superiors were not aware that he'd taped the conversations, a key point in what has the potential to become the first controversy of Brown's presumed candidacy for governor. California is one of 12 states that prohibit phone calls from being recorded without the knowledge of all parties.
"Given the disturbing nature of these crimes and the far-reaching implications, we urge you to act swiftly and judiciously to appoint a special prosecutor to look into the matter and clear your office of these crimes," said a letter signed by Assemblyman Ted Gaines, R-Roseville, and Sen. George Runner R-Lancaster, and sent out Tuesday by the California Republican Party.
The Attorney General's Office issued a statement
"According to the Department's highest-ranking criminal lawyer, the evidence that has surfaced thus far does not constitute a crime," according to the e-mailed statement, from press secretary Christine Gasparac. "Penal Code section 632 prohibits one from recording a confidential communication without consent. All of the recordings that have surfaced were on-the-record, not confidential, and involved multiple participants."
Gaines and Runner said they wanted an independent counsel to look into questions such as who else knew recordings were being made, what the tapes were used for, how they were recorded, and where they were stored. Referring to Gerber's comments that he had transcripts of the conversation with the Chronicle reporter, the lawmakers also wanted to know who transcribed the recordings, and if professionally done, who approved expenditures for the service.
They also asked whether Jonathan Renner, a senior assistant attorney general for government law, and James Humes, the chief deputy attorney general, were in the same room at the time of the recorded call with the Chronicle reporter; whether the attorney general would release a complete list of reporters and others who were recorded; and whether it would release all recordings, memos and other documents connected to those whose conversations were recorded without their consent.
"Since it is your office that has broken the law and is involved," the letter said, "we feel it appropriate that you (recuse) yourself and your office from the process and an independent prosecutor be appointed to look into the improprieties and determine who had knowledge and who was involved."
Bay Area News Group has submitted two Public Records Acts requests asking that all taped conversations with its reporters be turned over, and seeking copies of all e-mail communications between Brown, Humes and/or Gerber having to do with responses to media inquiries over the ballot measure controversy.
In the letter to Brown, GOP lawmakers noted that it was Gerber who explained a month ago that an investigation by the attorney general into a fake pimp and prostitute who had taped ACORN workers came about because the taping was done without ACORN workers' knowledge.
"This violation of the law was not an innocent mistake, but rather done with full knowledge of its criminal implications," the letter stated. "Scott Gerber knew that this practice was illegal and he was not deterred."
Republicans said Gerber had told a San Diego Union Tribune blogger that the attorney was investigating because it is illegal in California to tape someone's conversations without their knowledge.
Reach Steven Harmon at 916-441-2101.