Southwestern College’s president and governing board issued official apologies to The Sun and its faculty adviser following an illegal attempt to use the California Public Records Act (CPRA) to obtain a video shot by a student journalist.

Former Title IX Director Gloria Chavez signed a two-page letter drafted by an attorney at the Erickson Law Firm demanding The Sun turn over a video shot by a staff photographer of a contentious ASO meeting in May. Chavez told an SCEA faculty union investigator that college lawyers wrote the letter and that she was forced against her wishes to sign it by her supervisor, Vice President of Human Resources Rose DelGaudio.

Chavez also said DelGaudio ordered her to have the letter hand-served to Professor of Journalism Dr. Max Branscomb at his home. Branscomb was on medical leave at the time recovering from four surgeries for life-threatening oral cancer, and seven weeks of radiation treatments and chemotherapy. Chavez originally denied that an HR employee delivered the letter to Branscomb, then later said DelGaudio ordered her to have Branscomb served at his home. The letter reads “hand-delivery/Branscomb” in bold type across the top.

DelGaudio has denied both of these allegations. She also said that she was not in town at the time of the delivery and that it was handled by Chavez and her office.

DelGaudio did confirm she initiated the sending of the second letter.

The letter accused The Sun of unethical conduct for refusing to surrender the video.

“Because The Sun operates as an entity that is part of the larger Southwestern Community College District, it is thus subject to the California Public Records Act,” the letter read. “Your denial of a public record based on inapplicable authority is inconsistent with your obligations to ‘broadly construe’ the constitutional right to access, and instead attempts to subvert it. This subversion of the public’s right to access further appears to directly violate one of the Society of Professional Journalists Code of Ethics.”

Branscomb refused to comply with the directive, arguing that the college had no standing to use the CPRA to force a news organization to turn over its work product to the public agency. The Sun received an outpouring of support from national First Amendment rights organizations and the region’s news media. San Diego’s chapter of the Society of Professional Journalists issued a swift condemnation of the attempt to compel Branscomb to order his students to surrender their work.

“The Sun has not committed any violation of the SPJ Code of Ethics,” read a published statement by the SPJ board of directors. “Protecting unpublished material, which can be done for a variety of important reasons, is a basic tenet of journalism that we urge the school to honor in preparing its students for careers in the field.”

FIRE Issues
Warning

Adam Steinbaugh, a director at the Philadelphia-based Foundation for Individual Rights in Education, sent a six-page letter to Murillo condemning the college’s attempts to coerce Branscomb and The Sun. He ridiculed the college for attempting to use CPRA.

“The district’s use of a directive under the California Public Records Act is an astonishing affront to the rights of student journalists, betraying the institution’s obligations under the First Amendment and California law,” he wrote.

Rebutting Chavez’s argument, Steinbaugh explained that student newspapers are not subject to the CPRA, which was created to promote transparency in public agencies.

“(College newspapers) are unincorporated entities imbued with Constitutional rights of their own, even when their host institutions provided substantial support,” Steinbaugh wrote. “Southwestern’s use of a public records request to compel the production of records from its student newspaper is as puzzling as it is novel. Even assuming The Sun were a public agency under the CPRA, the newspaper could withhold the requested material because of the profound public interest in protecting journalist’s rights.”

Steinbaugh concluded his letter explaining that legal action by the college to force The Sun to surrender unpublished material would fail.

“Pursuit of its CPRA request will not only undermine its reputation, but risks both miring the District in litigation that offers it no possibility of success and exposing its administrators to personal liability,” he said.

California law forbids college administrators from censoring college journalists, punishing students and journalism faculty over publication content, and retaliation against student publication advisers. State statutes also holds administrators who break free press laws personally responsible for fines, damages, court costs and attorney fees.

Governing Board Member Roberto Alcantar said the board was taken aback by the CPRA filings by college administrators against The Sun.

“We were shocked by the situation,” he said. “It was something that immediately raised red flags because we know that there’s been a history of The Sun being attacked by the administration in the past. As a board member, if I had been told ahead of time that this was going to happen, and such a request was going to be made, I would not have authorized that because I truly stand for one of our values – one of my values – to protect the press and allow the freedom of the press.”

Murillo said she also disapproved of how Chavez and the Human Resources department handled the situation, though she did want access to The Sun video of the ASO meeting. Murillo refused to say specifically why she and HR staff wanted the video.

“(Chavez) was trying to do what I believe was the right thing to do,” Murillo said. “The way it happened I am not supportive of.”

Lawyers Offer
Support

At least six First Amendment attorneys in San Diego, Los Angeles and Virginia offered to represent The Sun should the college attempt litigation or retaliation against the student newspaper or its adviser. San Diego attorney Felix Tinkov, who works frequently with Voice of San Diego, offered to help The Sun obtain public records it has sought for as long as six years. Last month Tinkov successfully secured release of parts of the college investigation of former biology professor Dr. John Tolli for sexual misconduct, and misuse of his college office and computer. (See coverage in this issue.)

Tinkov is currently working on behalf of The Sun to secure the release of records in three other college investigations, according to Brittany Cruz-Fejeran, editor-in-chief of the newspaper.

State Bar
Complaints

Branscomb filed three complaints with the California State Bar Association over the CPRA matter. He filed Non-Attorney Unauthorized Practice of Law complaints against DelGaudio and Chavez as well as an Attorney Misconduct Complaint against the Erickson Law Firm. Murillo refused to provide Branscomb with the name of the individual Erickson attorney who wrote the Chavez letter.

“It was ignorant and unprofessional of (DelGaudio and Chavez) to write the first CPRA letter, but I could forgive that even though it is a stretch for me to believe that two highly-paid college administrators could really have thought something like that was allowable,” Branscomb told Murillo in an email notifying her of the State Bar Complaints. “Once they were informed of the laws protecting the work product of journalists, however, subsequent attempts to coerce the video were willful, malicious and illegal. You, the governing board and the college were ill-served and embarrassed by a law firm and administrators who intentionally attempted to misapply the CPRA law in a threatening and intimidating manner, and who attempted to compel a faculty member to commit an illegal act against his students.”

The State Bar Association is investigating the episode. Branscomb said he declined an invitation to file a Hostile Work Environment complaint against the college and Murillo for serving him a threatening letter at home while he was medical leave.

Contentious ASO
Meeting

College administrators began to pressure journalism students to surrender video of a contentious May 2 ASO meeting by approaching individual photographers and writers without the knowledge of the newspaper’s editor-in-chief Katy Stegall or acting adviser David Washburn. When the students declined to provide the video, a private investigator hired by the college asked Stegall for the video. She refused to comply.

College employees continued to ask individual members of the newspaper staff to turn over the video or describe its contents, even though at least 12 college employees attended the ASO meeting. Murillo appeared about an hour into the meeting and cancelled the 2019 ASO election.

On May 23 Stegall and Washburn received an email from HR employee Karen Harada on behalf of Chavez seeking the video that invoked the California Public Records Act. Washburn called Branscomb, who said he was “flabbergasted that the college would attempt to flip the intent of the CPRA and use it against a news organization.” He said the college had no standing to even make a request.

A First Amendment attorney working with Washburn confirmed that the college was not allowed to use CPRA against its student newspaper and assisted in providing language for a letter written by Washburn declining to turn over the video. Washburn’s June 4 letter cited California Gov. Code 6254 (k) as well as the California Shield Law, which protects the work product of journalists, including college journalists, who have the same rights as professionals.

Stegall, Washburn and Branscomb all said they thought that would end the matter. Instead, Branscomb was served by a district courier on June 14 while talking to his daughter and a neighbor in his driveway. The second letter from the college was nearly two pages long and threatened litigation if the video was not surrendered to the district.

Branscomb correctly surmised the letter was written by an attorney, though it was signed by Chavez. Copies were also sent to Washburn, the Investigations Editor at KPBS, and Stegall, who had just started an internship at Voice of San Diego. Stegall worked next to Society of Professional Journalists President Lisa Halverstadt, who shared it with the SPJ board.

SPJ and FIRE issued immediate condemnations of the college administration. The San Diego Union-Tribune ran a B-1 story about the letter on June 30. Voice of San Diego, KPBS, Newsweek, the Los Angeles Times and other news organizations followed up on the episode.

Murillo sent Branscomb a text on June 17 that said she had nothing to do with the letter, blaming the situation on “heavy handed” communication by Human Resources staff. She sent him an email the same evening stating that the district was backing off.

“The District is not going to litigate over this issue,” Murillo wrote. “While it would be most helpful to obtain video to the investigation, we are not going to pursue any further.”

Murillo wrote a letter of apology 10 days later on June 28.

“Freedom of the press is a founding tenet of our country, and we respect our student journalists’ efforts in pursuing their stories,” she wrote. “More so, we are grateful to the staff members of the Southwestern College Sun and the service they provide to Southwestern College. I apologize for our insensitivity and that our request infringed upon the efforts and rights of our student journalists.”

Murillo also assured students and faculty of The Sun that such a situation was not going to happen again.

“I have since had a real strong discussion with the Human Resources department about how we’re trying to create an environment of inclusion and respect here, and so from now on before these kinds of things happen (Human Resources) need(s) to confer with me,” she wrote.

HR, President
Not on Same Page

Branscomb said he accepted Murillo’s apology, but was concerned that Chavez and DelGaudio did not acknowledge wrongdoing and refused to say they would not go after The Sun again. Chavez, according to a faculty member who spoke to her after the incident, said DelGaudio forcefully declared “she would never apologize” to Branscomb or journalism students. Chavez, in a text obtained by The Sun, said she would not apologize unless Branscomb would pose for a photograph with her, DelGaudio and Murillo “for the front page of the sun and tribune that reads we have forged a deal that will protect the interest of all our our (sic) students.”

When the faculty member responded that Branscomb would never agree to such a thing, Chavez responded with another message.

“So you’re only okay to spout the negative?” Chavez wrote. “It has to be a win win. He doesn’t get to leave and gloat.”

The Sun learned that Chavez was “separated from the college” in mid-September, but Murillo and Gov. Board President Nora Vargas refused to say whether she was fired. Chavez had worked at the college for less than one year and was an at-will employee who could be fired without cause. Her departure has not been announced publicly.

SCEA President S. Rob Shaffer and Alcantar read statements in support of Branscomb and The Sun at the July meeting of the governing board.

“We would do whatever we can to ensure that your rights are protected as the press,” Alcantar said. “We fully back you because you do the good work which is the work of holding us accountable.”