SAN
FRANCISCO, CA — A spokesman for Attorney General Jerry Brown
acknowledged Thursday that he taped a phone conversation with a
reporter for The Chronicle this week without disclosing the fact or
asking permission – and admitted he has taped conversations with other
news reporters.

Scott Gerber, spokesman for Brown’s office, made the admission after
the publication of a story in the newspaper that detailed consumer
activist Harvey Rosenfield’s criticisms of revisions the attorney
general made to the summary of a ballot measure that deals with car
insurance rates.

California Penal Code Section 632 prohibits the recording of private
telephone conversations without consent, and the state is one of 12
states that require notification of all parties prior to taping.

Jim Humes, chief deputy attorney general, said in a statement to The
Chronicle Thursday: "In the future, Mr. Gerber will not tape any
conversation unless all parties agree." He added that Gerber has
recorded "a few other conversations" with reporters and will contact
them.

First Amendment advocates said Gerber’s actions, whether illegal or
not, reflect poorly on the office of the state’s top legal official,
Brown, who is the Democratic front-runner in the 2010 governor race.

‘Big political thing’

"Here’s
the implication: Reporters now have one hell of a story about a guy
who’s running for governor of California," said Lucy Dalglish,
executive director of the Reporters Committee for Freedom of the Press,
based in Virginia. "He’s just lit a fire under a real big political
thing."

David Greene, executive director of the First Amendment
Project in Oakland, said Brown’s office "could make a decent argument
that that’s not a confidential communication and (the reporter) didn’t
have reasonable expectation of privacy."

But Greene said the
action raises a question of whether it is a "spooky government thing to
do. I can’t think of any reason why they would record surreptitiously.
… There’s a gotcha quality to it."

The secretly recorded
conversation came to light after Chronicle senior political writer
Carla Marinucci contacted Gerber Wednesday for his response to
Rosenfield’s criticisms.

She sought comments from the attorney
general’s office on allegations from Rosenfield, the founder of
ConsumerWatchdog.org, who charged that Brown made changes in the ballot
measure’s summary because had caved in to pressure from the Mercury
General insurance firm. The company gave $13,000 to Brown’s campaign in
June.

Rosenfield said Brown’s revision omitted the possibility that the measure would increase insurance rates for some Californians.

Gerber
called Marinucci and said the summary was a fair reflection of changes
that the initiative’s sponsors, a coalition of consumer and insurance
groups, made to the initiative’s wording. He told her that Humes, and
Jonathan Renner, a senior assistant attorney general for government
law, were on the line to address her questions.

When the story
was published on The Chronicle’s Web site, SFGate.com, Wednesday
evening, Gerber contacted an editor at the paper and said Humes’
comments were not fairly reflected in the article. He e-mailed the
editor a transcript of the conversation between him, Marinucci and the
two attorneys.

Marinucci called Gerber Thursday and asked whether he had taped their conversation. "I did," he said.

Asked why he believed such an action was appropriate, Gerber responded, "To me, it’s useful to have a record."

"I think that’s all I should say right now," he added.

It’s routine

Gerber
was asked if he had recorded conversations with other news reporters.
"Sure, I’ve done it before," he said. "Reporters routinely record my
conversations."

Asked if the recording of news media
conversations was a practice of the attorney general’s office, Gerber
said, "I’m not going to say anything further at this time."

In
his statement Thursday, Humes said that "this was an on-the-record
conversation between four individuals – a reporter and three staff
members. We knew that every word said could end up in the next
morning’s Chronicle. Mr. Gerber taped the conversation, not to record
the reporter’s questions, but to have a record of what our own staff
members said."

But Dalglish said she believes the actions of Brown’s office are outrageous and probably illegal.

"California
law says all parties to a conversation must know they are being taped,"
she said. "So if one person didn’t (know), it’s a violation of the law,
and it doesn’t matter that it’s the AG’s office doing the taping."

First
Amendment Coalition executive director Peter Scheer said the incident
reminded him of former President Richard Nixon secretly recording
conversations with his staff and journalists.

"When Richard
Nixon was damned for recording conversations with his staff and members
of the press, people thought that was sleazy and unethical and immoral
– even if it was technically legal," Scheer said. "Because it was seen
as a violation of trust, a breach of people’s expectations of a certain
degree of confidentiality."

Scheer added that there was little
excuse not to obey the statute, especially by an employee of the state
office charged with enforcing the law, "when all you have to do is ask,
‘Is it OK with you if I record this conversation?’ "

Scheer said
recording such conversations without notification or consent is "not
something you should do – whether you’re a journalist on one hand or
someone who is talking to journalists on the other hand."

E-mail the writers at [email protected] and [email protected].