Vanguard Analysis: An Internal Investigation To Nowhere… by Strict Design

Pepper-sprayWhen UC President Mark Yudof named former LA Police Chief William Bratton to head up the public portion of the investigation into the pepper-spray incident that occurred November 18, 2011 at the UC Davis Quad, it was greeted by loud criticism both in the student as well as the academic community.  That criticism was blunted by the announcement of Cruz Reynoso, the former Supreme Court Justice to head up the task force comprised of UC Davis administrators, professors, students and community members.

It was further blunted by the extent of the report that came out finally in April, showing vast problems, mistakes and wrong-doing by the police and the UCD Administration.

Earlier this week, the public learned of the fate of the officers – Lt. John Pike and Office Alexander Lee were no longer employees of UC Davis.  That was all we thought we would learn about the process until someone leaked the internal report to the Sacramento Bee which showed that the internal investigation – in fact two of them – had cleared Lt. John Pike and found his use of the pepper spray appropriate.

It was Chief Matt Carmichael who quickly recognized that this could not occur.

The Bee reports that on April 27, Chief Carmichael informed Lt. Pike of his intention to fire him.

Writes the Bee: “Carmichael concluded that Pike had assumed the role of de facto commander of the operation ‘but performed it poorly’ and that the ‘manner in which you used the pepper spray showed poor judgment’ given the direction that minimal force was to be used.”

“The Operation caused damage to the campus and the Department,” the Bee reported that Chief Carmichael wrote. “It is my judgment that you bear significant responsibility for that outcome.”

One of the key factors is Lt. Pike’s insistence that he would have performed the same actions if faced again with the same circumstances.

Chief Carmichael wrote: “Knowing this information, you stated when interviewed that there is nothing you would do differently. Faced with the same circumstances, you would still have deployed the pepper spray.”

When the Vanguard interviewed Cruz Reynoso, he immediately stuck by his task force’s findings.

“Based on the newspaper accounts… it appears that the review was superficial and reached an incorrect conclusion that Lt. Pike had acted correctly under the circumstances,” Cruz Reynoso said.

In fact, the former Justice questioned the qualifications of the researchers.  Another source who spoke with the Vanguard under the condition that they not be identified said that the law firm hired by the university lacked the expertise of the Kroll Team to conduct an investigation into a complex matter such as the pepper-spray incident.

Further research and analysis by the Vanguard bears that out.

The internal investigation was in part conducted by the Van Dermyden Allison Law Corporation.  This is a firm that specializes in employment law and workplace investigations.

Back in 2011, Sue Ann Van Dermyden cleared UC Davis of wrongdoing in the investigation of cuts to ICA sports teams.  “The investigator concluded that the University did not violate PPM 280-05 in its determination to discontinue 4 of its 27 Intercollegiate Athletic (ICA) sports teams. The investigator specifically found that the University had a rational basis for its decision and that decision did not constitute an abuse of discretion.”

Acting on a tip at that time, the Vanguard found that between 2008 and the end of 2010, Ms. Van Dermyden had conducted at least eight investigations for UC Davis. The payments for the ICA sports investigation had not come in yet, but the previous seven equaled $154,000 of work.

These investigations never involved a police case and almost all involved discrimination, whistleblower retaliation, or sexual harassment-type issues in the workplace by employers.  Of those investigation, only the 2010 allegations of unprofessional conduct and sexual harassment against an employee were sustained.

At the time, in March of 2011, we questioned whether Ms. Van Dermyden could still be considered an independent investigator, given the sheer number of contracts.  Claudia Morain responded, “The university has retained her to investigate some of the more complicated and difficult cases due to her wealth of experience in conducting workplace investigations and her reputation for excellence in the legal community.”

She added, “I should note that the university has a compelling interest in learning about any misconduct that its employees may have engaged in, and any inappropriate treatment of its students, staff or faculty – not just because it’s the right thing to do, but because the university is legally required to address certain allegations, and because identifying and correcting any employee misconduct as soon as possible permits the university to limit its possible future liability. It is in the university’s best interest to fairly and thoroughly investigate allegations of misconduct.”

However, they hired someone who almost always cleared the university, despite the fact that the university would end up paying out settlements for a number of those cases.

The university actually hired former UC Davis Counsel Deborah Allison, who had joined Ms. Van Dermyden as a partner at Van Dermyden Allison Law Corporation, to do the IA.

At the time, the Davis Enterprise questioned the hiring and Cory Golden reported, “UCD spokesperson Claudia Morain said the attorneys’ past employment does not constitute a conflict of interest.”

“The university has retained the firm due to its wealth of experience in conducting workplace investigations and its reputation for excellence in the legal community,” Ms. Morain told the Davis Enterprise in an email message, adding, “Deborah Allison’s knowledge of how the university works is invaluable, and makes her uniquely qualified to conduct this review.”

However, the expertise of that firm is in employment law and workplace investigations, not police investigations.

To help with that aspect, the university brought in Ed McErlain, characterized as “a senior investigator for Norman A. Traub Associates, which specializes in employment investigations including complaints alleging the use of excessive force by police officers. Mr. McErlain formerly served as a California municipal police Captain, in which capacity he served as the Investigation Division Commander and the Commander of the division managing internal affairs investigations.”

The area of police investigations is fairly small and tight-knit.  The Vanguard asked about the reputation of the Norman Traub firm for carrying out investigations.

The Vanguard‘s source, speaking on conditions of anonymity, told us that while they were unfamiliar specifically with Mr. McErlain, the reputation of the Norman Traub firm is not a particularly strong one.  The impression in the industry is that they are brought in with the idea that they will clear the agency of wrongdoing.

The hiring of those such as the Van Dermyden Allison Law Corporation and the Norman Traub firm emphasizes the concerns from the start that most independent investigators are hired at the whim of local agencies, such as UC Davis.  Generally speaking, those agencies are looking to make the problems go away.

The Van Dermyden law firm has earned over $100,000 in repeat business precisely because they do not rock the boat.

Michael Risher of the ACLU told the Vanguard, “The idea that police departments adequately police themselves has been shown again and again to be a complete fallacy.  History has shown us that police departments do a horrible job of disciplining their own officers for their conduct.”

He argued that because these proceedings are secrets, the agency generally has the ability to make the problem go away.

This investigation however was different, because of the strong public finding by Kroll and the Reynoso task force.

Our source indicates that firms like the Van Dermyden Law firm act as risk management agencies for the university.  The purpose of that report is to help the university when it comes time to settle up litigation.  The university can pull out the internal report to dispute the public one, and mitigate some of the damages.

The university is still looking into who made the decision to hire these agencies to conduct the internal investigation.

So long as that report did not become public, the university had the opportunity to have its cake – look like it done the right thing publicly through the Kroll and Reynoso reports, and the firings of Lt. Pike and Officer Lee, but still protect themselves internally from litigation.

Most people the Vanguard spoke to, suspect, but do not know for sure, that Lt. Pike was behind the leaks.  He had the most to gain by clearing his name and making it look like Chief Carmichael bowed to public pressure for his firing.  Several sources believe this will help Lt. Pike in a wrongful termination suit against the university.

What does this all mean for a federal criminal investigation? It is hard to know.  Most did not expect DA Jeff Reisig to charge the police criminally, anyway.  This may have sealed that deal, but we shall see what they come up with.

Attorney Alexis Briggs is representing some of the students in their defense against charges of bank blocking.

She told the Vanguard: “Terminating Pike and Lee and the resignation of Spicuzza are scraps from the master’s table. The culture of bullying is endemic in the UCD police force.”

She added, “The officers should be facing criminal charges for the violent assault of students they committed on film while clothed in the color of law. The Yolo County DA appears to be protecting the financial interests of UCD instead of the students and civil liberty. The community deserves more from the taxes it pays to fund criminal prosecutions.”

Cruz Reynoso, meanwhile, stands by the report that his task force, made up of faculty, administrators, students and community members, unanimously agreed to back in April.

“The conclusion [of the internal affairs report] is 100% wrong,” Cruz Reynoso said.  “And I think the decision of the police chief to fire him was correct.”

—David M. Greenwald reporting

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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17 Comments

  1. 91 Octane

    vanguard: “Another source who spoke with the Vanguard under the condition that they not be identified

    Most people the Vanguard spoke to, suspect, but do not know for sure, that Lt. Pike was behind the leaks. “

    once again, the use of unnamed sources by Mr. Accountability, transparency, and openness.

  2. E Roberts Musser

    [quote]That was all we thought we would learn about the process until someone leaked the internal report to the Sacramento Bee which showed that the internal investigation – in fact two of them – had cleared Lt. John Pike and found his use of the pepper spray appropriate.[/quote]

    Not quite true. From an earlier Vanguard article about the internal investigation report:
    [quote]Notably, they find that Lt. Pike “had ‘multiple opportunities’ to minimize the escalation of tensions and that ‘serious errors of judgment and deficiencies of leadership’ required that he face discipline ranging from a demotion to a suspension of at least two weeks.”[/quote]

  3. Ryan Kelly

    The internal investigation was completed back in April. Chief Carmichael let it be known that he intended to fire Lt. Pike for the reasons he stated. I’m sure that Lt. Pike, along with Union representatives, fought it. Lt. Pike received 7 months of pay at over $9000 per month while on administrative leave. I’m sure that having him on the payroll, having to cover shifts for him, and not being able to hire someone to replace him was a burden for the department. Chief Carmichael’s comment, “The needs of the department do not justify your continued employment…” tells Lt. Pike that it is not about him. Lt. Pike can continue his fight if he chooses, but not while on the University’s payroll.

  4. Ryan Kelly

    [quote]The only investigation the Vanguard would’ve ever given approval is one that it agreed with. [/quote]

    Isn’t this always the case with everyone? I don’t give my approval when I disagree, do you?

  5. davisite2

    Firms/individuals offering consultative/expertise would not attract many well-heeled clients if their conclusions ran counter to the interest/desires of those who pay the bill. It is no surprise that they will most often finesse the facts and their conclusions to serve those who hire them. The consultative services that brought us the first iteration of the surface water project is also no stranger to this truism.

  6. Mr.Toad

    Suspended or demoted, that was my conclusion too. A reasonable conclusion as well. Firing Pike was politically expedient, but, concluding he should be fired is reasonable as well. It looks like UCD took the path of least resistance. The path that holds those responsible at the low end but insulates those at the top who make the policy and those that implement it too.

  7. Phil Coleman

    I know nothing about the law firm retained for this investigation. I’ve known Norm Traub for 25 years.

    “the reputation of the Norman Traub firm is not a particularly strong one.”

    This comes from from our old friend, “Mr. Anonymous,” that gutless weasel who not dare be named for fear of being vetted, measured against a standard of integrity, reliability, and possible bias. By hiding his/her identity the judgment rendered is unassailable. Then this hearsay source is promptly published and becomes gospel.

    By the way, can anybody clarify, “not particularly” in this context?

    I will speak openly and identifiably regarding Traub and his investigative firm because I know the man’s reputation well, though he is not a friend. Norm Traub is a person of the highest personal and professional integrity. He would not be a party to an investigation result that is altered, slanted, or influenced by any outside source (and that includes The Vanguard).

    Just because one does not like an investigative finding, that give nobody license–even for Mr. Anonymous–the legitimacy to fault a Traub report that nobody outside of the University leadership has even had a chance to read.

  8. E Roberts Musser

    [quote]This comes from from our old friend, “Mr. Anonymous,” that gutless weasel who not dare be named for fear of being vetted, measured against a standard of integrity, reliability, and possible bias. By hiding his/her identity the judgment rendered is unassailable. Then this hearsay source is promptly published and becomes gospel. [/quote]

    This is always my problem w an “anonymous source”. There is no way to test his/her credibility. But the Vanguard insists we trust its judgment that the “anonymous source” is completely reliable. Sorry, no dice…

  9. Alan Miller

    Anonymous sources are a necessity in journalism. Often, only those on the inside, who would suffer if quoted, know many key pieces of information. They would not come forward if there was a chance they would be outed. What would remain is persons on the outside, speculating.

  10. David M. Greenwald

    A few comments.

    First, I should let everyone know that we’re moving into our new place this weekend, so I’m pretty scarce in terms of responding to comments maybe into Monday and Tuesday depending on how much we get done.

    Second, Davisite2’s comments are dead on. That was the sense I got not only from my source but from the ACLU attorney. You don’t get hired back if you come up with an adverse finding. That’s why they hired from two firms they knew they wouldn’t get one from.

    Third, Phil, I respect your opinion, but my source actually works in the field and that’s the reputation of the firm.

    Fourth, “But the Vanguard insists we trust its judgment that the “anonymous source” is completely reliable. Sorry, no dice… ” Actually I don’t “insist” you trust my judgment, what I suggest is that if you don’t trust my judgment on an unnamed source, why would you trust my judgment on anything?

    Fifth, “my anonymous source told me that the firms hired to do the internal investigations did a very fair and righteous job.” I know you think you’re making a point, but you’re not. My source is in the field, but the field is too small for her to go on the record, so she has to remain unnamed. I followed our protocols for using unnamed sources here. But more importantly, the bulk of this report relies on named sources and public records.

  11. rusty49

    “Fifth, “my anonymous source told me that the firms hired to do the internal investigations did a very fair and righteous job.” I know you think you’re making a point, but you’re not. My source is in the field, but the field is too small for her to go on the record, so she has to remain unnamed.”

    So now you’re saying your anonymous source is better than mine. But of course we’ll never know because they both choose to remain anonymous.

  12. Phil Coleman

    The “anonymous source” is an unacceptable source of validity and argument without some ability to determine the validity of the source. Persons who quote anonymous sources may, and usually do, say that the source is credible, and we should accept that analysis on faith alone.

    Yes, anonymity is a hallmark of all blog discussions, which makes dialog fun but not particularly credible. The overwhelming majority of responders also refuse to identify themselves. I give full credit to David Greenwald to expose himself to censure and criticism by telling us who he actually is, and represents. Using anonymous sources to support your view, David, actually weakens your position.

    Vanguard’s biggest problem using anonymous sources on this site is this: I can’t recall a single instance where an anonymous source was cited by Vanguard who OPPOSED a Vanguard position.

    A writer of any argument can shop incessantly for a supporting anonymous comment and eventually fine one. A malcontent can be found somewhere on any topic.

  13. biddlin

    Tangential to the point of being off-topic, feel free to banish me, Don .
    “Yes, anonymity is a hallmark of all blog discussions, which makes dialog fun but not particularly credible.”
    ” A malcontent can be found somewhere on any topic.”
    Phil, do the same principles apply to confidential informants ?

  14. E Roberts Musser

    [quote]Fourth, “But the Vanguard insists we trust its judgment that the “anonymous source” is completely reliable. Sorry, no dice… ” Actually I don’t “insist” you trust my judgment, what I suggest is that if you don’t trust my judgment on an unnamed source, why would you trust my judgment on anything? [/quote]

    I don’t. That is not meant to sound flippant – but I tend to be a healthy skeptic, and don’t believe most of what I hear or read – so you shouldn’t feel slighted by my comment 😉

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