City Attorney Addresses City Council 5.1.2023

CITY ATTORNEY COMMENTS 5/1/2023

Thank you, Mayor Kate, members of the Council, and members of the community in the chambers tonight.

After San Rafael police officers conducted an arrest last July in the Canal neighborhood, the City hired an outside investigator to conduct an internal affairs investigation of the incident. That investigation has been completed.

It has been eight months since the City hired the investigator. Many members of our community have expressed their concerns about the incident and the amount of time it has taken for the investigation to be completed.

From the outset, I also have been deeply concerned about the conduct of the officers involved in the incident. And I agree with and share the frustration that others have expressed about the lengthy period of time it has taken to get to this point.

The City has received many many requests for a copy of the investigation report, which is a confidential personnel record. Although I would very much like to do so — and I know that my colleagues at City Hall feel the same — the City is prohibited by law from distributing copies of the report to anyone at this time, and likely will never be able to do so.

At this juncture, under the law, there is some information that the City can disclose, and there is other information that the City cannot disclose.

I want to take a few moments to explain the law that applies here.

It is my job as City Attorney to ensure that the City complies with the requirements of the Brown Act, the Public Records Act, and other laws governing disclosure of what is often called “the People’s business.” When anyone makes a request for material that is under the City’s control, the City is committed to providing all information that the City is legally permitted to disclose.

But the City is prohibited by law from disclosing certain types of information. Under state law, personnel records, in particular, police personnel records, are required to be kept confidential. There are certain exceptions, but the general rule prohibits disclosure of any information contained in an officer’s personnel file. Statutes and case law have applied this principle of confidentiality to police internal affairs investigations.

At this juncture, there are many things I would like to say, however, the law places a substantial constraint on what I am able to disclose. This is what I can legally able to disclose:

The investigation is complete. The investigator conducted numerous interviews and reviewed all other evidence available including bodycam videos. The investigator evaluated the officers’ conduct against police department policies and performed a comprehensive analysis which is reflected in his report. And as I said, the report is now complete. It has been given to the police chief for review. It is now up to the police chief to decide what action is appropriate, if any, in response to the report.

If you go to CityofSanRafael.org and click on “Policing in San Rafael” there is another link that goes to this chart which is a step-by-step flow chart of the police disciplinary process, I think the link on the website is the timeline of the police investigation process.  I’d like to comment on where we are in the flowchart tonight, and I should add that copies of the flowchart are also available tonight in the lobby with tonight’s agenda and staff reports.

In reference to the flow chart, we are now on step 8, except that the “Division Commander” is not involved in this matter, the report has been provided directly to the police chief. Thus, the next step is for the Police Chief to carry out as he deems necessary and appropriate. The first next step — step 9 — is for the chief to review the report to determine whether it lists findings that policies were violated by the involved officers. If the answer to that question is no, then the disciplinary process is complete, and the matter is closed. If the answer to that question is yes, then the chief must determine the appropriate level of discipline up to and including the potential of termination of employment. If the chief goes down the discipline path for any particular employee, then the employee will be provided a notice of discipline, which is step 11 on the flow chart. Any such employee would then be entitled to contest the notice of discipline in an internal appeal, called a Skelly appeal. Assuming that any discipline remains in effect after a Skelly appeal hearing, it is only after that hearing that any such discipline would become final. Any employee who is the subject of discipline has a right to further contest their discipline in a confidential binding arbitration conducted before a single arbitrator in which the City would have the burden to prove that the discipline imposed was not an abuse of discretion.

As I have said, we have received many requests for a copy of the investigator’s report. And Unfortunately, the City cannot legally provide a copy of the report to anyone. The report and its contents are exempt from public disclosure under Penal Code Section 832.7. The City will ask the involved employees whether they are willing to waive their right of privacy that applies to the report and its contents. If the employees agree to waive their right of privacy, then the City will produce copies of the report to anyone who requests it.

In the event that the police chief takes any action regarding any employee as a result of the investigation, the City will similarly be prohibited from disclosing any such decision by the police chief, unless the employee agrees to waive their right of privacy in that information. In other words, if the Chief were to impose discipline against any of the involved officers, the City will not be able to disclose any details about the discipline.

This legal principle was made clear in a federal case that was decided last year involving the Fresno police department. In that case, the court held that the City of Fresno violated the law by disclosing information from an internal affairs investigation of an officer, including the fact that there were findings made against the officer and that the officer had been terminated from employment. I am glad to provide the case citation if anyone would like to read the case.

For these same reasons, I request that the City Council avoid making any public remarks regarding this pending personnel matter.

In closing, I would like to offer this: The City must follow the law as it exists today. For those of you who are frustrated and disappointed by the constraints imposed on the City’s ability to disclose information about the investigation — and about any future potential discipline imposed on any officers — please know that I, and my fellow City colleagues, and I think I can also speak for the City Council, share your frustration and disappointment. We are, however, bound by the applicable law. My only suggestion for those who wish the law were different is to communicate those opinions to our State legislators who have the authority to change the law. Thank you, Mayor Kate, that concludes my remarks.

City Attorney

Robert Epstein