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