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Caught On Tape

California Attorney General Jerry Brown, the state’s once and, he hopes, future governor, concluded an investigation of his own office last week.

He discovered something rather unusual. His then communications director (i.e., press spokesman) Scott Gerber had secretly recorded conversations that Brown and staff members held with reporters.

The tapes came to light when Gerber emailed a transcript of an interview to the San Francisco Gate in order to substantiate his claim that the paper had misrepresented certain comments by Jim Humes, the chief deputy attorney general. Either Gerber had a truly prodigious memory or he had used an audio tape to create the transcript.

The latter proved to be the case. Gerber confessed to recording the interview and others without first seeking consent. In his letter of resignation, he admitted to “serious errors in judgment” and apologized for “failing to live up to the standards of the Office.”

In his letter, Gerber also included the requisite assurances that the attorney general had had nothing to do with the tapings. Brown’s office said that Gerber was a rogue lieutenant, ignoring explicitly established procedures.

Maybe we can swallow this, but it's going to require a large grain of salt. A press spokesman's job is to jump in front of a speeding bus, wait for his boss to pull him to safety, and then tell the world how his boss saved his life.

It seems a tad unlikely, therefore, that a press spokesman would deceive not only reporters, but also the man who gave him his job, solely because of his own commitment to keeping an accurate record.

But, if Brown was involved in making the recordings, he probably regrets it now, and not just because of the possible legal consequences. The Los Angeles Times reported that “the materials offered an unvarnished look at Brown's interactions with reporters as he jumped from bragging about his exploits in the 1970s to expressing insecurity about whether he would get enough ink in a story to lecturing a reporter about his questions on Brown's fundraising for schools serving disadvantaged students in Oakland.”

Brown’s political opponents are milking the mini-scandal for all it’s worth, claiming that it is reminiscent of the tapings in Richard Nixon's White House in the 1970s. James Fisfis, a spokesperson for Tom Campbell, who is a Republican candidate for governor, said, “I've never heard of nonconsensual recordings of press calls. Maybe when I worked in Eastern Europe." Although Brown has not yet officially announced that he will run, the mud-slinging phase of the gubernatorial race is well under way, and Brown is widely considered to be the Democratic front-runner.

Even if the attorney general could be tied to the tapings, it is hardly Watergate. In fact, it is not clear whether Gerber violated any laws.

California law requires that all parties give consent before any “confidential communication” can be recorded. The attorney general’s staff has assured the attorney general that on-the-record interviews with reporters gathering information for news stories are not confidential, though a reporter who mentions details of his or her own life to a source during an interview might disagree. Chief Assistant Attorney General Dane R. Gillette wrote in the office’s official report that, “An 'on the record' interview with a news reporter is the antithesis of a 'confidential communication.’”

Reporters frequently tape their own conversations with sources. It is quite possible that, if Gerber had asked, the journalists would have said yes. The contrite Gerber wrote in his resignation letter, “I suspect that the few reporters involved in the calls I taped would have readily said yes, but nonetheless it was wrong not to ask them first.”

Given all the truly dysfunctional goings-on in Sacramento, this is less scandal of the century and more just an interesting diversion.

The interesting part is that, this time, the politician left the press spokesman in front of the bus and then blamed him for the accident.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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