Atty. Gen. Brown suspends spokesman for secretly taping phone calls

A spokesman for Atty. Gen. Jerry Brown faces disciplinary action for surreptitiously recording telephone interviews with reporters, Brown’s office announced Friday.

Scott Gerber, Brown’s communications officer, was placed on administrative leave after the San Francisco Chronicle reported that he had taped a reporter’s telephone interview with him and two others without informing her.

“Mr. Gerber’s recording of certain telephone conversations was done without Atty. Gen. Brown’s knowledge and in direct violation of explicit directions regarding office policy,� the office said in a statement to the media. “These conversations were on the record and in no sense confidential. Nevertheless, the explicit agreement of all parties should have been obtained.�

A state law bars telephone recordings without consent if the conversations are considered confidential, said David Greene, executive director of the Oakland-based First Amendment Project, which provides legal service on free speech issues and free press issues. The law is violated if one of the parties reasonably believes the conversation is not being overheard or recorded.

Greene said communications between Brown’s office and a reporter who was conducting an interview probably would not be considered confidential under the law. At issue is whether one of the parties had a reasonable expectation of privacy, Greene said.

“I don’t know if it is illegal,� Greene said. “It is unseemly that they would not just inform the reporters they were recording the conversations.�

The taping was revealed after Chronicle reporter Carla Marinucci sought information about Brown’s summary of a ballot measure.

The paper said Gerber called her with a response and told her that two other high-ranking lawyers in the office were on the line to answer her questions.

When Marinucci’s story was published on the newspaper’s website, Gerber contacted an editor at the paper to complain about accuracy and e-mailed the editor a transcript of the conversation, the newspaper said.

The Chronicle said that one of Gerber’s superiors said he had taped other interviews “a few� times without consent and would not do it again.

The attorney general’s statement said “appropriate disciplinary actions� would be taken.

A spokeswoman declined to say whether Gerber was being paid while on leave or outline the kinds of discipline he might face. “Personnel matters are confidential,� she said.

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