In a move fit for airing on an episode of “America’s Dumbest Public Officials,” Gerber – who, one would think, should have known better – sent a transcript of one of his secretly recorded conversations with a reporter to an editor at the reporter’s newspaper. He did so, apparently, because he didn’t agree with some of the statements in an article posted on the paper’s website that included quotes from the conversation.
Then, in a refreshing display of candor, or perhaps just naiveté, Gerber acknowledged that he had recorded conversations with other reporters without obtaining their permission. “Sure, I’ve done it before,” he told the San Francisco Chronicle, which broke the story of the secretly recorded conversations on October 30, 2009.
California is one of only a dozen states that prohibit the taping of phone calls without the consent of all parties involved (Cal. Penal Code § 632). When asked why he had recorded the conversation with the Chronicle reporter, Gerber said, “To me, it’s useful to have a record.”
Stephen Proctor, managing editor of the Chronicle, had a different viewpoint. “Obviously, it’s troubling whenever someone is recording a phone call without your knowledge, particularly a person in that position — of being in the Attorney General’s office,” he said.
Gerber was placed on administrative leave after he candidly admitted to his misconduct. In a statement issued the same day that the Chronicle reported the secret recordings, Brown’s press secretary, Christina Gasparac, distanced the Attorney General from Gerber’s actions. She said Brown was unaware that phone calls with reporters had been recorded, and that Gerber had taped the calls “in direct violation of explicit directions regarding office policy.” Gerber resigned three days later.
It was later learned that Gerber had recorded five phone conversations between April and October 2009, including calls with reporters from the Associated Press, the Chronicle and the Los Angeles Times. He also recorded an in-person interview with the Times reporter. It was further discovered that Gerber had been instructed by his supervisor a year earlier not to record conversations.
On November 9, 2009, the Attorney General’s office issued a report which found that no criminal charges would be filed against Gerber, as his conduct did “not warrant further investigation as a violation of the law.” Although there was “no indication in any of the conversations that the reporter, the Attorney General, or any other [Department of Justice] participants were advised that Gerber was recording the call,” the report concluded the conversations were “on-the-record” and thus meant to be public.
Sources: Associated Press, San Francisco Chronicle
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