Commentary: The Ball Gets Dropped on the Release of the Scott Report

The city came out with an announcement on Tuesday about the release of the Scott report. In announcing the appointment of Michael Gennaco as interim auditor (a good hire that normally we would focus on), the city announced he would audit the report and it would take about 30 days for him to complete.

That’s reasonable.  The problem is this: “The internal affairs investigation and report is a confidential personnel complaint report that cannot be released to the public under California law…”

The explanation given by Harriet Steiner was legally correct, but limited.  It was also clear as mud, triggering anger and frustration among many.

This was all very predictable.  In the days and weeks following the Picnic Day incident that occurred April 22, 2017, community members and activists pushed for there to be an independent investigation.  There was a clear expectation of the need to be able to release the findings to the community.  In order words, the public was not going to be satisfied that independent eyes were looking at the report, they wanted to be able to read and evaluate the conclusions of the investigator.

There were immediate missteps in this rollout.  The city’s first choice was a bad one – former Sacramento Sheriff John McGuinness.  When the Vanguard reported on his talk radio comments about blacks being better off before the 1964 Civil Rights Act, the council recoiled and Mr. McGuinness quickly stepped aside.

The decision to hire former Bush-era US Attorney McGregor Scott was more muted, although his recent appointment by President Trump to re-occupy that post raises some red flags that did not exist in June 2017.

Our concern at the time that he was hired was what the plan was to release the report.  The question we asked at that time is what plan was there for releasing the report.  Well, the answer we got was vague, and that there would be some sort of public release.

In December we asked City Manager Mike Webb, who was hired by the council with this investigation wrapping up, when the city planned to release the Scott report.  The answer he gave was the first week of January.  I asked if there was a possibility of further delay, and he responded that he did not foresee this.

What we learned on Tuesday was something else entirely.

“This was shocking,” William Kelly said during public comment.  “Apparently the answer to when this report is coming out is never.  I don’t know if this was something that could have been foreseen in December when the city manager’s office said it was forthcoming or over the six-month period, when many of us interpreted your silence as waiting on this report to get the facts.”

He added, “This is a blindside.  We have the right to see this report.”

He is not alone.

Francesca Wright with ACLU People Power noted that this was a contracted report, “that was contracted in order to respond to an outcry from the public.

“It’s baffling to me,” she said.  “Why isn’t the personnel issue put in a separate report that can be redacted?  Why can’t there be public recommendations in the report relating to policies and procedures – that was one of the purposes of that report and as far as I’m concerned they must have failed if there’s a fear of releasing it.

“That concerns me,” she said.

The council was clearly caught off guard.  The city manager was clearly caught off guard also and, once again, it appears that the biggest problem falls on the lap of the city attorney and previous City Manager Dirk Brazil.  This is the second major time that they dropped the ball here.

Back in May, they allowed John McGuinness to go forward as the investigator without doing reasonable due diligence.  The city manager, had he spent just ten minutes would have found, very quickly and easily, giant red flags on the hire of Mr. McGuinness.

As we said in May, the city attorney needs to face a lot of hard questions here. Harriet Steiner, the one person in the room back in 2006, fumbled the ball here.  The council has to rely on her legal advice and she let them down.  This is as much on her, the one who signed off on it, as anyone else.  She too failed the due diligence factor.

The city manager and police chief were asked back in May by the Vanguard what the plan was for release of the report.  Their answer was that there would be some sort of a public release of the findings so that people knew what happened and could reasonably evaluate the incident.  One would think that they would have a plan ready to go so that, when the report was done, they would be ready to roll.

But that’s not what happened.  What clearly happened is that the report got completed sometime in early December, and there was no plan on how to release it.  It went to the city attorney and she issued her legal advice – which satisfied no one.

She indicated that they would discuss additional policy and changes that might take place as a result of this report.

However, “as it concerns individual officers, California law prohibits us from releasing that information,” she said citing the Police Officer’s Bill of Rights (POBR).  Information about sustained complaints “are considered part of officer’s personnel records and are governed by California law which we are subject to.”

Councilmember Lucas Frerichs clarified, “Members of the city council have not received this report at all.”

Responding to a question about releasing redacted portions of the report, Ms. Steiner responded, “At this time, under the Police Officer Bill of Rights, we don’t believe we could release verbatim portions of this report.”

The council does not get access to the report either.  “Since the council does not have a direct role in police discipline… it doesn’t have a direct role so therefore it has for decades been the advice of my office and every other city attorney, that the council cannot see internal affairs investigations or any investigations where they are not directly involved in discipline.”

So not only does the public not get to see the report, but apparently neither does the council and, to a person, not one councilmember expected that to be the outcome.

It is all unnecessary.  One of our complaints about the release of the Fire Report in 2008 was not just the council vote in December 2008 to not read it, but also the fact there was never a plan for its release.

As a result the city manager scrambled and improvised and ultimately fumbled the ball.  It took us three lawsuits and five years to get the report out – and that was a fire report that could not hide behind the wall of POBR.

UC Davis actually did this correctly in 2011-12 when they separated the public Kroll Report from the internal investigation report.  That allowed them to release the report verbatim with redactions.  I pointed this out back in April and May, but the city manager failed to take heed.  Now they are stuck in a bad place and the heat is likely to grow.

Harriet Steiner’s response made it worse and there is actually a good deal the city can do.  But they have to stop relying on the poor tin-ear legal advice of the city attorney and look to what other cities in California have done to get vital information to the public in the wake of serious police incidents.

Members of the public were angry and frustrated on Tuesday night – and the truth is that we should all be angry and frustrated because this process broke down, and it did so in ways that should have been anticipated back in May and June and, quite frankly, was not.

—David M. Greenwald reporting



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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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33 thoughts on “Commentary: The Ball Gets Dropped on the Release of the Scott Report”

  1. Keith O

    In announcing the appointment of Michael Gennaco as interim auditor (a good hire that normally we would focus on)

    Please explain, why is he a good hire?

    The decision to hire former Bush-era US-Attorney McGregor Scott was more muted, although his recent appointment by President Trump to re-occupy that post raises some red flags that did not exist in June 2017.

    Please explain why that raises red flags?

    1. David Greenwald Post author

      What I would see as a good hire is likely different from what you would see as a good hire.

      Chief Attorney of the Office of Independent Review for Los Angeles County
      He’s the Independent Police Auditor for the city of Palo Alto and Anaheim

      Here is a story on his report about the killing of Kelly Thomas in Fullerton: https://www.nbclosangeles.com/news/local/Fullerton-Police-Department-Kelly-Thomas-Report-Beating-Suspects-Manuel-Ramos-Jay-Cicinelli-166979096.html

      If you actually read this article, you’ll see that it’s actually a pretty balanced report. He concluded that there was a culture of complacency but found there was no evidence of a conspiracy (see this as well: http://www.ocweekly.com/news/report-no-fullerton-cop-cover-up-in-wake-of-kelly-thomas-killing-6462483)

      Interesting that the Fullerton Police department is able to release three lengthy reports from the Office of Independent Review, but the city of Davis, can’t.

        1. David Greenwald Post author

          He was hired to be the interim auditor, he’s getting paid whatever the previous position was allotted, I think $60,000 a year, prorated to however long he stays. One of his jobs will be to audit the report. Why? Because the job of the auditor is to review internal police reports and even though McGregor Scott was an outside hired, his report is consider an IA report.

    2. Jeff M

      Please explain, why is he a good hire?

      Because he is more likely to please the anti-law enforcement activists by producing a report more critical of the police.

      Please explain why that raises red flags?

      Because he is more likely to not please the anti-law enforcement activists by producing a report more understanding and sympathetic to the job of policing.

        1. Tia Will

          Keith

          You’re right Jeff, we all know it,”

          No Keith, we do not “all know it”.  There can be genuine differences of opinion about what is objective assessment of police/civilian interactions. Everyone who disagrees with you is not either a hypocrite or brainwashed.

        2. Keith O

           Everyone who disagrees with you is not either a hypocrite or brainwashed.

          There you go again Tia, projecting on to someone else what they must feel or have said.  And you so hate that when people do that to you.

  2. Keith O

    David writes:

    In announcing the appointment of Michael Gennaco as interim auditor (a good hire that normally we would focus on)

    I think for many the fact that you think he’s a good hire raises red flags.

     

  3. John Hobbs

    “because this process broke down and it did so in ways that should have been anticipated back in May and June and quite frankly was not.”

    Perhaps you didn’t anticipate it, but that’s on you. There is such a history of cover-ups and abuse of process by the police that I think anyone expecting transparency from them is delusional.

      1. Howard P

        Good clarification… one I was going to seek… hadn’t gotten around to… only thing I’d add is that the current CM was likely not privy to any of that… not sure how much he was ‘briefed’/’read in’ before the reins were transferred… I suspect, “little”.

        Recall, the initial departure date for Brazil was to be early next week… happened sooner…

    1. Ken A

      I don’t think a single member of the “public” is upset that the Davis PD are cracking down on out of town thugs that block traffic and bring guns and ammo to town on to Picnic Day…

      1. Tia Will

        Ken A

        Well you would certainly be incorrect if you include the practices that were used on Picnic Day which led to changes in police unmarked vehicle and plain clothes policy. I am a member of the public and I found these tactics unacceptable.

        1. Howard P

          What if the report (documented facts) shows that the officers were car-pooling on their way to beginning their shift, but seeing a “problem”, reacted… no “tactical direction”?  We don’t know, but you have drawn conclusions… perhaps omniscience comes from getting certified as an MD?  Enjoy your prejudicial conclusions… most of us are awaiting redacted report, consistent with the law… I have drawn no conclusions, but I don’t have an advanced degree…

          Officers, even “off-shift” are still officers… they are obliged to act, if they believe there is a problem, whether ‘on the clock’ or not.

          I hope to see a rational report, with appropriate redactions, but it appears you don’t need to see it.   You appear to have reached a firm diagnosis.

  4. Wayne Hawkes

    Where did the City Staff’s backbones disappear to? Do they expect us to just accept their spineless capitulation to this cover-up? They say they “cannot” release the report because that would violate the POBR. So what? Release it anyway and take the consequences! If the City gets sued, then great – Davis can be the test case to start the unwinding of the secret police state in California. Let the cops who sue defend their actions in court – like they’d have to if the Picnic Day 5 hadn’t been intimidated into giving up their rights to sue.

  5. Wayne Hawkes

    Just an update to my earlier rant. I learned that the police unions managed to get whistleblowing on police misconduct criminalized in California (Penal Code sections 832.5, 832.7 and 832.8), so I can’t blame city staff for not wanting to go to jail over this. I don’t hate cops, but I do hate cover-ups and abuse of authority. If cops serve us with honor and integrity, why do they resist transparency? What are they hiding?

  6. Jeff M

    I wish that Davis liberals cared as much about cover-ups by the DNC, Clinton Campaign, Obama Justice Department and FBI as they do our local law enforcement.   But we know that their ideology runs thicker than does any true principles of morality.

      1. Jeff M

        No, I wish for consistency.

        I suppose you can make the argument in reverse… why would I care so much about the lack of transparency of the federal law enforcement arm (FBI is still resisting giving the House Intelligence Committee the requested documents), and not demand the same of the Davis PD.

        The claim against the stonewalling FBI is political malice with specific planned intent.

        The best you can hope for with the Davis PD is evidence that mistakes were made.  We already have the police department admitting that.

        So the moral arguments don’t hold up to your side.  They look more than hypocritical.   They look political/ideological from every angle… unless you are also on my side demanding that the FBI come clean on their involvement with this fake Trump dossier and the unmasking and leaking of names involved in the Trump campaign. And also, all the communication between the FBI and justice related to Hillary Clintons use of a private email server with classified information.

        1. David Greenwald

          You’re not going to get consistency in politics, on either side.  And some of it is not even inconsistency, but rather a matter of what issues are priorities.

        2. Jeff M

          Consistency in the demands and advocacy for transparency in law enforcement and judicial process.    I don’t see any of it as political, I look at it though a filter of morality.  That is a conservative thing.

    1. Dave Hart

      Jeff M:  Your comments about the DNC, Clintons, former administration is classic deflection, i.e., change direction of the post and attack the messenger, in this case Mr. Greenwald.  Also, your post is classic diversion, i.e., making this not about the subject of local law enforcement here in Davis, but about national political issues that nobody in Davis has any first hand information about.  Deflection and diversion are dishonest attempts to undermine a fruitful discussion.  That’s my ruling.

       

  7. Howard P

    Anyone want a “Trumpy Bear” so they can wrap themselves in a US flag ‘blanky’ (arguably a violation of the US Codes related to the US flag) and have something warm and cuddly?

    http://gettrumpybear.com/

    I’ll buy one for the first three folk that want one…

    Update… sent this to family also… two gone, one left on the offer…

    Seriously…

    1. Howard P

      Ok… someone has claimed the third… under promise of anonymity… offer period is over…

      Guess that there were at least three folk who really wanted to wrap themselves in the flag and cuddle Trumpy Bear…

      That reminds me of three others…

  8. Dave Hart

    The city staff management, and attorney, police chief and auditors played this out to allow the situation to cool.  Delay, obfuscate, point your finger in other directions recognizing that as time goes by, the anger will cool, the momentum dissipates.  Nothing significant needs to change…it mostly blows over.  “There’s nothing to see here folks, please move along.”

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