On Tuesday night, Mayor Joe Krovoza announced that the council had met in closed session and made a reportable action. By a 4-1 vote, the council had formally agreed to a settlement agreement with The People’s Vanguard of Davis, codifying the decision from late May to turn over a less-redacted version of the three and a half year old Davis Fire Report.
In essence, we won two Public Records Act victories in one day. These are victories for the public, for open government, for transparency, and for the accountability of public officials.
Judge Eveglio Grillo, citing case law, wrote, “There is a ‘strong public policy supporting transparency in government.’ ” He continued, “[T]he public’s interest in the … conduct of peace officers is substantial” because ” ‘[p]eace officers hold one of the most powerful positions in our society; our dependence on them is high and the potential for abuse of power is far from insignificant.’ “
Moreover, “There is a strong public policy that government information is to be disclosed promptly if it is not confidential.”
Indeed, those words with some small modifications apply to both cases. In the case of the Davis firefighters, we have a case where the city council conspired with the City Manager Bill Emlen, City Attorney Harriet Steiner and the firefighters union president Bobby Weist to attempt to prevent the disclosure of various acts of favoritism, nepotism, disparate treatment, retaliation and the creation of a hostile work environment by employees of the city, while on the taxpayer’s dime.
In my time on the Vanguard, the decision by the Davis City Council in December 2008 to hide the reading of the full report not only from the public but also from themselves marks one of the single lowest moments of a council that had many low points.
At the same time, the pepper-spray incident brought national scrutiny to Davis last November, and remains a stain on this community’s collective consciousness.
The University of California and UC Davis are to be commended to the extent that they were willing to submit to a real and potentially damaging inquiry. The Kroll and Reynoso Reports laid out with stark precision what went wrong, not only on the Quad that day of November 18, 2011, but the problems leading up to it that contributed to the confusion and the excessive use of force against otherwise peaceful and apparently law-abiding protesters.
It was the last-second intervention by the police officer’s union that cast a dark cloud over the report. The idea that police officers, who operate under the color of authority in public places with name tags, could attempt to conceal their deeds and identity from the public was frankly appalling.
It was this appalling arrogance and misuse of the police officer’s bill of rights, laws intended to protect law-abiding police officers from the malicious use of lawsuits and other means of intimidation, that struck the Vanguard as the antithesis of its values of transparency and open government.
The fact that the police thought they could hide in plain sight seemed not only wrong, but absurd.
When the Vanguard launched its investigation, it was this hypocrisy that motivated the stories that eventually uncovered the name Alexander Lee as the second police officer involved in the pepper spraying of protesters, and Lt. Barry Swartwood as the incident commander who, along with Lt. Pike, made the fateful decision to use pepper spray on that day.
It was our hope that this work would lead to the question of concealing the identities being a moot point. As it turns out, it became the seed by which the judge could ultimately rule to release the names.
“The LA Times does present evidence of internet postings after the Pike preliminary injunction order of March 28, 2012,” the judge wrote.
“In this action, the LA Times has presented evidence that the names of officers other than Lt. Pike who were involved in the Incident have been disclosed,” Judge Grillo wrote. “There is no evidence that those officers have been subject to intimidation or harassment since the disclosure of their names. There is also no evidence that Lt. Pike has been subject to intimidation or harassment in the past three months.”
Linda Lye of the ACLU, who filed the brief in support of the release of the document, said this was critical to Judge Grillo’s decision.
“[The Vanguard’s] investigative journalism had a lot to do with the result that was achieved today,” Ms. Lye told the Vanguard.
“There was just no evidence in this case that there was an ongoing risk of any harm,” Ms. Lye said. “Why this was particularly clear was because the Davis Vanguard had since the time of the Pike decision revealed the names of additional officers and the police presented no evidence that these additional officers that were involved in the pepper spray, and whose names are now out in the public, there’s no evidence that they’ve been subjected to any kind of harassment whatsoever.”
“So these claims of harassment and danger are highly speculative, they’re lacking in any evidentiary basis,” she said. “On the other side of the scale we have a very strong interest in the public knowing the identities of officers involved in a highly significant event involving misconduct.”
“The only evidence that they introduced in this matter was the same evidence they introduced in the last matter which they had previously done under seal,” Ms. Lye said.
“What’s significant is that two additional officers, thanks to the Davis Vanguard, have been identified as being involved in the incident – there was no evidence whatsoever that in the time that followed that they had been subjected to any kind of harassment,” she continued. “What the public record really shows is there is absolutely no basis to conclude that there is a present, ongoing threat to these officers in any way.”
We firmly believe in the public’s right to know, the right of the public to hold public officials accountable for their actions, and the duty for those who operate under the color of authority to face accountability and the full scrutiny for their actions.
Just as a perpetrator of a crime has no right to anonymity, so too the police operating under the color of authority and abusing their charge share no expectation of privacy.
While the pepper-spray fight was of relatively short duration, it took the Vanguard years to expose the corruption of the Davis Fire Department, their former Chief Rose Conroy and their Union President Bobby Weist.
The Vanguard‘s first request in February 2008 yielded a report that was more black than white – referencing the amount of redactions.
Over the next few years, the Vanguard fought inch by inch to get more of the fire report released, and it has only recently discovered that not only did City Manager Bill Emlen mislead council and the public as to the contents, but City attorney Harriet Steiner practiced what we might call selective redactions – most of which would not have been justified under the law, and many of which were actually misleading.
It is only under the new council that the truth has come out – or at least more of the truth, as the worst of the conduct is still safely under wraps.
It is with great irony that on the night of his final acts as a city councilmember of the City of Davis, Stephen Souza was the lone dissenting vote on the settlement agreement.
That vote reflects on eight years in which Mr. Souza remained a stalwart defender of the firefighters union.
In the audience on Tuesday night sat Union President Bobby Weist himself, his latest actions costing the city another $11,000 in a settlement agreement to the Vanguard‘s attorney, and a still untold amount that the city spent over the last several years keeping the report of Mr. Weist and Rose Conroy’s conduct under wraps and out of the public’s eye.
It is also ironic that it was on this night that the city council by a 5-0 vote passed a budget that would attempt to undue much of the damage that Mr. Weist and his fellow firefighters have done over the last decade and a half, through aggressive salary and benefits hikes that depleted instantaneously the city’s half-cent sales tax measure, and in the longer term depleted funds through their staunch advocacy of the city’s generous retirement and other benefits.
Indeed, it was the work of the firefighters, through their bundled cash donations and generous independent expenditure campaigns, that helped elect the council that would not only implement these generous benefits that we now struggle to undo, but also keep them in place.
It is ironic that this week an article in the Manteca Bulletin compared the City of Stockton, which is facing bankruptcy, to the City of Manteca, that took actions early on to avoid it.
More ironic is the fact that Steve Pinkerton told the Vanguard that he had warned officials in Stockton of the problems when he worked for the city’s redevelopment agency and, having his warning gone unheeded, he became city manager of Manteca.
The Bulletin notes:
Manteca has five things going for it:
• An early admission the city was in trouble and could no longer do business as usual.
• Transparency from the outset of the budget crisis that involved enlisting a 15-member citizens’ budget advisory committee comprised of people who weren’t all exactly happy with how the city had been operated.
• Employee bargaining groups that early on read the writing on the wall and made concessions instead of refusing to compromise.
• A redevelopment agency that was operated in a fiscally conservative manner and didn’t have a razor thin gap between debt payments and property tax revenue.
• Municipal investments that were also conservative in nature.
While Davis has inherent advantages over Manteca, it is worth noting that the City of Davis did not acknowledge early on that the city was in trouble, and the public officials, supported and propped up by the firefighters union, played a huge role in that.
Instead of dealing with these problems back in 2008 and 2009 when the crisis began, the City of Davis undertook relatively modest austerity measures, such as decreasing workforce due to attrition and a relatively modest goal of $850,000 in compensation cuts in 2009 – modest goals that were unmet.
The city met resistance in 2011 when the council proposed a more realistic $2.5 million in cuts and this year, that resistance has subsided as the city is undertaking more than $7 million in cuts, nearly 20% of its general fund.
Some mistakes, those of cover up, are mistakes that local government will continue to pay for. It has been our hope that such efforts to expose wrongdoing will lead to the harsh light of day shining on those who would attempt to keep things away from the public.
Tuesday was a great day moving forward, but unfortunately it is a long and sometimes uneven struggle.
—David M. Greenwald reporting