The city of Davis on Tuesday sent out a release indicating that it had hired Michael Gennaco as interim Police Auditor. He currently serves as the as the contract Police Auditor for the cities of Palo Alto and Anaheim, and comes highly recommended by the city police oversight consultant Kathryn Olson.
In a high profile case in Anaheim, he released a scathing report in the controversial death of homeless individual Kelly Thomas.
But this announcement was overshadowed by an announcement that that Mr. Gennaco will review the report from McGregor Scott on the Picnic Day incident.
“The City has received inquiries concerning the status of the internal affairs/personnel complaint investigation that Mr. McGregor Scott conducted into the incident at Picnic Day 2017. While serving as the City’s Interim Auditor, Mr. Gennaco will provide an independent review of the Scott investigation and report, focusing on the methods and means used to investigate and prepare the report,” City Manager Mike Webb read.
He added, “It is anticipated that the interim Police Auditor’s review of the Scott report will take approximately thirty days to complete.”
However, it was the following comment that raised the ire of a dozen or so activists and protesters: “The internal affairs investigation and report is a confidential personnel complaint report that
cannot be released to the public under California law, including Penal Code sections 832.5, 832.7 and 832.8, as it is part of police officers’ personnel files. After the interim police auditor has completed his review, and depending on any comments received from the interim police auditor, the city will provide additional information and take additional steps, including publication of any police department policy adjustments that may be deemed appropriate.”
“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.”
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.
Tensions nearly boiled over when Carole Standingelk spoke, her time elapsed, and she refused to yield.
“If we don’t have agreement on the rules of how we’re going to operate here, then we can’t have a meeting,” Mayor Robb Davis said. “I never had to turn off the microphone before,” he said as he killed the microphone and took a recess.
“Why don’t you have that fat guy come over and hit me with his baton or something,” she quipped.
“That’s not going to happen,” the mayor responded.
Following the recess, the mayor implored the public to follow the protocol of the room. “We have an understanding of one another that we don’t interrupt each other, I know there is disagreement on any number of issues here, but we can’t have people speaking over other people when they’re permitted their three minutes to speak and say what’s on their hearts and on their minds. You just can’t do that.”
Ron Glick said he was watching at home and came down when they took the recess. He said, “I support the police in Davis. I think they are trying to do a good job.
“There was a big screw up on Picnic Day,” he said. “Just release the thing, let the chips fall. Let’s try to learn from our mistakes and move forward. What’s the big secret? What are you all trying to hide?”
City Attorney Harriet Steiner explained to council that the city has the report, the interim auditor will review the report and report back to the city “as to whether the report was properly done with the proper procedures.” She said, “We don’t know what the auditor will say, but whatever the auditor says we’ll take under advisement.
“We then intend to issue a document that would outline the manner in which that report was done, what was done, how it was conducted, the roles of different parties, recap in many ways the activities that have been done since Picnic Day and the policies that we put in place,” she said.
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. 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.”
Harriet Steiner said there were criminal consequences for the improper intentional release of these types of report. It would be a misdemeanor.
Will Arnold asked her what if they as a body directed her to release the report.
“I would resign,” she said. “Under my obligations as an attorney, I cannot engage in criminal conduct.”
What is unclear from this discussion is what will be released, and what the public will learn when it is. As the city announced, “It is anticipated that the interim Police Auditor’s review of the Scott report will take approximately thirty days to complete.”
—David M. Greenwald reporting