In early January, following SB 1421 becoming law on January 1, William Kelly among 20 others filed a public records request under the new law. But he was denied. Under the law, one of the provisions requires a sustained finding of “dishonesty” in order to trigger the release of records. Mr. Kelly maintained that Mr. Gennaco’s report indicated “there was a sustained finding of dishonesty in the confidential report prepared by McGregor Scott requiring disclosure of additional records under SB 1421.”
As the city wrote on January 10, 2019: “The finding concerning the press release was that the initial press release issued by DPD following the Picnic Day incident was inaccurate but there was no finding of dishonesty. The Gennaco report similarly notes the inaccuracies in the press release but never describes it as dishonest. Rather, the finding was that DPD violated Policy 1.30-A because neither the involved officers nor the immediate supervisor to the incident reviewed the press release prior to it being released to ensure the accuracy of the events pursuant to Policy.”
On Tuesday, Mr. Kelly and a number of members of the public came forward during public comment to “demand” release of the records.
The following is a response letter dated February 15 from Mr. Kelly and a number of community members:
We received your January 10th letter and, for the reasons detailed below, we do not believe that the response sets forth a satisfactory basis for a decision to withhold the requested records. We therefore make this second request for the records described in our January 1st letter and once again seek a response within ten days.
As a preliminary matter, we found your characterization of Mr. Scott’s findings to be unclear. It is our understanding that Mr. Scott made a single sustained finding related to the Davis Police Department’s April 24, 2017 press release. However, in the third paragraph of your response this finding was characterized in two ways:
(1) “The finding concerning the press release was that the initial press release issued by DPD following the Picnic Day incident was inaccurate but there was no finding of dishonesty.”
(2) “Rather, the finding was that DPD violated Policy 1.30-A because neither the involved officers nor the immediate supervisor to the incident reviewed the press release prior to it being released to ensure the accuracy of the events pursuant to Policy.”
Statement (2) above describes a policy failure which is distinct from, and logically cannot be the sole cause of, the inaccuracy described in statement (1). Please provide clarification as to the relationship between the above two sentences and the actual finding.
As a substantive matter, irrespective of whether Mr. Scott found that the press release was inaccurate or that proper procedure was not followed (or both), we maintain that the finding does constitute a sustained finding of dishonesty. In the former case we note that California courts have maintained the requirement that “…a police officer must be held to a higher standard than other employees. A police officer is expected to tell the truth.” Ackerman v. State Personnel Board, 145 Cal. App. 3d 395 (1983). It strains credulity that the degree and nature of the misinformation in such a consequential police department press release would be described as anything other than dishonest. We elaborate more on this point below. In the latter case, Mr. Scott’s finding reveals that the Davis police department failed to follow a policy meant to ensure accuracy of public statements. This would demonstrate at best an unacceptable lack of concern about factual accuracy that falls well short of the high standard of honesty that law enforcement officers are legally required to maintain.
Also in the third paragraph of your response you state that “The Gennaco report similarly notes the inaccuracies in the press release but never describes it as dishonest.” We disagree. While Mr. Gennaco does not use the word “dishonesty” in his report he ascribed a motive to the inaccuracies in the press release (“…to justify the actions of the officers,” emphasis added), noted repeated missed opportunities to correct the inaccurate information, identified additional inaccurate statements made to the press, identified at least ten unique inaccurate or unproven statements, characterized at least three statements as “misleading,” identified at least one statement that misrepresented witness testimony which was available at the time, and recommended that DPD formally retract the press release and apologize to the public. Taken separately or together we believe these assertions exceed any reasonable standard of dishonesty.
You disagreed, stating that:
Such a finding regarding compliance with the press release policy does not meet the definition of a sustained dishonesty finding under Penal Code section 832.7(b)(1)(C).
We find this puzzling because 832.7(b)(1)(C) does not include any definition of dishonesty. Rather 832.7(b)(1)(C) gives a non-exhaustive list of conduct that can be considered dishonest. We are not aware of any statutory definition of “dishonesty” and therefore it is our understanding that dishonesty takes on its ordinary meaning. The DPD press release has been publicly characterized as dishonest numerous times by members of the public, local news media, and city officials. For example, at the April 10, 2018 Davis City Council meeting Chief Pytel publicly apologized “that inaccurate/misleading information was released…and not timely corrected,” and Councilmember Arnold made reference to “clear discrepancies,” “editorializing”, and at least one “egregious incongruity” in the press release. We feel that these characterizations alongside 0many others fall well within the boundaries of what a reasonable person would call dishonesty.
The third paragraph of your response concludes with a technical argument:
In addition, we would note that if there was a sustained finding of dishonesty against a specific officer, the City would have been required to provide that subject officer with an opportunity for an administrative appeal…No allegation of dishonesty was made and, therefore, there was no administrative appeal.
Setting aside Mr. Scott’s creative legal fiction of making a finding against a department rather than a human being, your argument here is circular. If in fact the city failed to take appropriate (or any) disciplinary action as a result of this particular finding that in no way absolves the city of its obligations under state law. In fact, we feel that this underscores the need for greater transparency and accountability that SB 1421 was explicitly intended to address. We therefore urge you to reverse your position.
M E Gladis
Wayne Chris Hawkes
Carole Standing Elk
The following statement is from People Power read by Nora Oldwin at the council meeting:
Speaking on behalf of People Power in support of the request to the Davis Police Department to reconsider its refusal to release material pursuant to a PRA in connection with SB 1421:
On January 1, when SB 1421 became law, we filed a request seeking, among others, the MacGregor Report, which I’ll refer to as the OHS report. Up until January of this year, Police personnel records of misconduct were kept hidden from the public. But Senate Bill 1421 changes that. To respond to issues of lack of community trust in its institutions, this law provides for the mandatory release, upon request, of records related to a sustained finding (after an internal investigation) of misconduct in 3 areas: dishonesty, sexual assault, or use of force. 1421 took effect January 1 of this year.
As will not fail to surprise, there has been some pushback from police departments across the state to the requirements of this law, and it’s our contention that the refusal to release the requested materials is part of this trend. The ACLU has filed 400 1421 requests to different departments, 70 of which claim to have none of these types of documents whatsoever. Only 75 of 400 have agreed to produce requested documents. And at least one – the city of Inglewood- immediately destroyed all their records upon the passage of this law. But our community finds itself facing a unique type of pushback. Our police auditor concluded that statements in the press release and other media to inform the public about the basis for the arrests and criminal charges were to use his words- “unfounded”, “clearly inaccurate” “never established”, “not proven” and “misleading” . Yet, despite community outcry about these statements when they were made, OHS failed to conduct any internal investigation of officer misconduct involving dishonesty. There therefore exists no finding, sustained or otherwise, regarding that clear misconduct. And as justification for its refusal to release records pursuant to 1421, the Davis Police Department points out that there is no “sustained finding of dishonesty”, therefore there is no requirement to comply with our request.
It’s a logical assumption that the press release setting forth facts about the Picnic Day incident was based at least in part on the officers version of what happened. While OHS undertook an internal investigation into racial profiling and excessive force, that’s all it did: it failed to follow up on the evidence of misconduct involving dishonesty although that evidence plainly merited further investigation and analysis. Without a clear explanation for what was explored and what was not, a conclusion that can be drawn that the investigation into racial profiling and use of force was, rather than a response to concerns of community safety and trust, more a concern with liability.
The question this particular situation presents is: where there is documented and acknowledged misconduct involving dishonesty in the press, which should trigger application of 1421, but where there exists no sustained finding on that specific issue, due to a faulty and incomplete investigation by the investigative body, should the department be compelled to turn over those records in compliance with what the law clearly contemplates?
Of the three officers who participated in the picnic day debacle- one officer has left the department, but two of the three officers are still on the force. As has been established, statements which could be attributed to those officers were found to be unfounded”, “clearly inaccurate” “never established”, “not proven” and “misleading” to justify the arrest of the PDS and provide a basis for charges against them. Although OHS failed in its responsibility to follow this up, we draw the conclusion from the withdrawal of the original press release and the criticisms and suggestions contained in the Gennaco Report, that a sustained finding of dishonesty would have resulted had such an investigation been performed.
To repeat, one of the reasons for writing and passing 1421 is to foster public trust in our institutions. Our community is already set on a course of building mutual trust with the police. The rejection of our request may serve to undermine that effort. This is in part because it appears to be based on the failure to characterize the statements at issue as “dishonest” rather than accept the plain meaning of the words used in the Gennaco report which we contend are synonymous and again which include: unfounded”, “clearly inaccurate” “never established”, “not proven” and “misleading.”
If the justification for refusing to produce records is based on a faulty investigation, or on a deliberate decision not to investigate a particular type of officer misconduct, it may be possible to avoid the requirements of 1421 altogether and the public will never know the truth about the officers who are charged with serving and protecting them. For reasons of the integrity of the process, and to continue building trust between the community and our Police, we urge the council to request that the Police Department reconsider its decision to withhold these requested materials from the public.