Brown Aide Recorded 6 Interviews

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A spokesman for state Attorney General Jerry Brown secretly recorded six interviews with five journalists since April despite being told by department officials not to do so a year ago, according to documents obtained Monday by The Chronicle.

Still, spokesman Scott Gerber e-mailed one of the officials on Oct. 28 saying he planned to record a call with Chronicle political writer Carla Marinucci.

Chief Deputy Attorney General James Humes opened the e-mail before the secretly recorded conversation but "does not recall noting the recording reference at that time," according to a report completed Monday by Chief Assistant Attorney General Dane Gillette.

The Chronicle received the report, along with transcripts of the recorded interviews and other documents, as part of a Public Records Act request.

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

Gerber resigned last week after The Chronicle reported he admitted secretly taping the Oct. 28 interview and other conversations with reporters.

The report from Brown’s office said Gerber recorded conversations with three nreporters from the Associated Press and two with a Los Angeles Times reporter. Three phone interviews and one in-person interview were with Brown.

"There is no indication in any of the conversations that the reporter, the Attorney General, or any other DOJ participants were advised that Gerber was recording the call," the report said.

Gerber’s actions "do not warrant a criminal investigation" because the conversations appeared to be "on-the-record," Gillette wrote, adding that "the very purpose of an ‘on-the-record’ interview is to provide the reporter with statements that can later be used in the public media."

Last November, Gerber told his co-workers he wanted to record all press contacts but Humes told him not to do it without permission from all participants, the report said. No other press staffers recorded interviews, the report said.

Gerber admitted to recording reporters after The Chronicle published a story about consumer activist Harvey Rosenfield’s criticisms of revisions the attorney general made to the summary of a ballot measure dealing with car insurance rates.

Rosenfield claimed that Brown changed the language of the measure’s summary under pressure from Mercury General, one of the state’s largest insurers. The company gave $13,000 to Brown’s campaign in June.

Brown’s revision did not mention that the measure could increase insurance rates for some Californians, Rosenfield said, but Gerber added that, in the view of Brown’s office, the new summary was a fair and accurate description of the measure after its authors revised the initiative.

The secret taping came to light when Gerber contacted an editor at The Chronicle after the story was posted on Gerber said the comments of Humes, one of two attorneys in the interview with Marinucci, were not fairly reflected. Gerber e-mailed a transcript of the conversation to an editor at the paper. Editors briefly removed the story from the paper’s Web site, added additional detail and posted the update on the site.

Rosenfield called Monday’s findings "disturbing" because the department was investigating its own staff. Political fallout from the case may continue for Brown, who has formed an exploratory committee to run for governor next year.

At the request of Gov. Arnold Schwarzenegger, Brown opened an investigation of the community activist group ACORN after undercover videos shot at two of the group’s state offices appeared to show staffers offering to help two purported clients break the law.

Brown is investigating whether the recordings by the undercover activists violated state law.

"This opens Brown’s office up to charges of hypocrisy if he finds something different in the ACORN case," said Mark Feldstein, a professor of journalism at George Washington University.

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