The Bee wins right to cover PG&E explosion trial Fresno County wanted closed

The Fresno Bee

July 26, 2018

A workers compensation trial probing a 2015 PG&E pipeline explosion at the Fresno County Sheriff’s Foundation shooting range that left one jail inmate dead and 12 others injured will be open to the public when it resumes on Aug. 16, a judge ruled this week in rejecting Fresno County’s motion to keep the proceedings confidential.

In June, Fresno attorneys David H. Parker and David Overstreet IV, who represent the county, made a motion to exclude all news organizations and the public, arguing that workers compensation trials are unlike civil and criminal proceedings which are open to the public.

In making the motion, Parker said California’s Labor Code and the Legislature give workers compensation judges — in this case Judge Thomas J. Heslin — the authority to close a trial to protect the privacy rights of employers and employees.

In his July 24 ruling, Heslin said the trial “will be open to the public and press except when it is necessary to conduct in camera review of sequestered documents to determine if those documents should be sealed.”

In denying the county’s motion, Heslin said it is not “supported by statute or case law.”

“The Bee is pleased with the decision, which is a victory for your right to know the testimony in this important case,” said Joe Kieta, executive editor of The Bee. “The county was dead wrong on this, and we’re happy Judge Heslin agreed with us.”

An email to the County Counsel asking for comment was not immediately returned.

The explosion happened on April 17, 2015, when a county worker driving a front loader accidentally hit a PG&E pipeline near Herndon Avenue and Highway 99, just south of the San Joaquin River. In the aftermath of explosion, Fresno County was sued for negligence by the inmates. They contend the Sheriff’s Office made them work at the Fresno County Sheriff’s Foundation shooting range against their will and without compensation.

In February 2016, the state Public Utilities Commission determined Fresno County was responsible for the explosion. The 27-page commission report found no wrongdoing on the part of PG&E, which owns the pipeline. Damage to the gas line and lost gas came to about $1.95 million, the report said.

But in a move to shield itself from the multimillion-dollar lawsuits, the county contended that the inmates fall under the state Workers’ Compensation program because they were compensated with additional family visits. If the county succeeds in getting the inmates declared county workers, the medical bills of the injured inmates will be paid through the state program, greatly reducing the county’s financial burden. In addition, the inmates wouldn’t be able to sue the county for general damages. But it would not preclude the inmates from suing PG&E., which owns and maintains the pipeline.

During a hearing in June, the inmates’ lawyers — Warren Paboojian, Ara Jabagchourian, Lazaro Salazar, Thomas Tusan and Nicholas “Butch” Wagner, said their clients were never county employees and that the county’s workers compensation maneuver is a sneaky way to avoid liability. Paboojian and Jabagchourian also said that after the explosion, sheriff’s detectives went to the hospital to get the injured inmates to sign workers compensation claims. Because the inmates were seriously injured, Paboojian said, they never filled out the claims, so detectives, at the county’s direction did it for them.

In the county’s argument, Parker said a vast majority of workers compensation trials are opened only to parties that are affected by the outcome, because of privacy concerns. But lawyers for the inmates said their clients waived their right to confidentiality.

In his ruling, Heslin said when Parker made his initial motion to close the trial to the public and press, the inmates’ lawyers did not object. But after a Bee reporter objected to closing the trial, Heslin decided to hold a hearing on the issue.

The county argued that the public needed to petition the court to attend the trial since they would be recording the proceedings. Heslin noted in his ruling that the county had argued that a reporter taking notes with a pencil or pen would be a violation of California Code of Regulations to record the proceedings without a judge’s approval.

But Heslin disagreed. “If the county’s argument was to be accepted, then no one, not even trial counsel could take notes during the trial,” the ruling says. “The parties would be at the total mercy of their memories as to what a witness said on direct when cross-examining that witness.”

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