The Davis Enterprise last week reported that the internal investigators were paid over a quarter million dollars to conduct the internal review that was leaked to the Sacramento Bee a few weeks ago.Unlike the public reviews by Kroll Associates and the Task Force led by Former Supreme Court Justice Cruz Reynoso, the internal reports largely vindicated the actions of Lt. John Pike in his use of pepper spray on seated protesters during the infamous tent clearing operation at the UC Davis Quad on November 18, 2011.
Documents received by the Sacramento Bee showed that Chief Matt Carmichael overruled the internal investigation and subsequent internal review’s recommendations and terminated Lt. John Pike, and reported Officer Alexander Lee, as well.
The Davis Enterprise reported last week that UC Davis paid the Van Dermyden Allison Law Corporation $148,349 and Norman A. Traub Associates $81,907 in order to investigate the incident.
The Davis Enterprise article focuses primarily on the mounting costs of the investigation since November. In their article they quote Michael Lyman, a Columbia College of Missouri criminal justice professor. Said the Enterprise, “Though he said the number of the university investigations may have gone beyond what the incident warranted, Lyman credited UCD for turning to outside investigators and for sending a message to the department.”
“The administration has to take action or you risk ratification of conduct – the rank and file gets the message that not only will there not be punishment for this conduct, but that policies have no teeth,” the Professor told the Enterprise.
However, the Vanguard takes a different view. The costs of this investigation mean that UC Davis has paid the Van Dermyden firm over $300,000 since 2008 and that number does not take into account other investigations by that firm after 2010. And the payments for the ICA sports investigation were not included in the figures the Vanguard has, to date, meaning the actual number could be much higher.
The firm has therefore conducted at least nine known investigations of UC Davis practices. Of those investigation, only the 2010 allegations of unprofessional conduct and sexual harassment against an employee were sustained.
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.”
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 Vanguard learned two weeks ago that Vice Chancellor John Meyer, in conjunction with others, was responsible for the hiring of the firm.
“John Meyer retained the law firm. It’s a firm we’ve used in the past, with a lot of expertise in these area,” Claudia Morain told the Vanguard.
The university at last word was still looking into the source of the leak.
“An investigation of this disclosure has been initiated under our Whistleblower Policy,” Claudia Morain, from the UC Davis News Service told the Vanguard this morning via email. “If such confidential personnel documents are disclosed to the public by anyone other than the individual who is the subject of these documents, such a disclosure would be a violation of University policy and state privacy laws. “
“The Davis campus immediately initiated the review upon learning of the disclosure and referred the investigation to the UC Office of the President,” she added.
Claudia Morain told the Vanguard two weeks ago that under their practices, the subject of an Internal Investigation (IA) would be allowed to have a copy of the report. However, Ms. Morain could not tell the Vanguard if Lt. Pike had received the report, and obviously the university is uncertain at this point about whether he is the source of the leak.
However, Claudia Morain also told the Vanguard that Lt. Pike, as the subject of the IA, would have the right to disclose to a party of his choosing.
A source told the Vanguard that many departments, in fact, give officers copies of their IAs. It allows them to prepare for any disciplinary hearings and challenges.
The Bee reported that, on April 27, Chief Carmichael informed Lt. Pike of his intention to fire him.
Wrote 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.”
Cruz Reynoso, whose task force reviewed the report written by former LA Police Chief William Bratton and his firm, Kroll, strongly disputed the validity of the findings of the internal investigation.
“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.
He added, “As the Task Force concluded, the Pepper Spray never should have been utilized under those circumstances. There was absolutely no danger to the officers and they could have executed their duties in a completely legal proper way without using pepper spray.”
—David M. Greenwald reporting
It seems a bit strange to me that Vice Chancellor John Meyer would in any way have been involved in the selection and/or hiring of an independent agency to conduct an internal investigation of the actions of the police department
given that at the time of the actions in question, the police department reported to the vice chancellor for administrative and resource management namely, John Meyer.
[quote]Unlike the public reviews by Kroll Associates and the Task Force led by Former Supreme Court Justice Cruz Reynoso, the internal reports largely vindicated the actions of Lt. John Pike in his use of pepper spray on seated protesters during the infamous tent clearing operation at the UC Davis Quad on November 18, 2011.[/quote]
From the Davis Enterprise:
[quote]Based on the investigation, a UCD police captain and the campus chief compliance officer recommended to Carmichael an “exonerated finding” on use of force, but concluded that Pike’s “serious errors of judgment and deficiencies of leadership” warranted demotion or suspension…[/quote]
[quote]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.[/quote]
Again the use of anonymous sources. Another “anonymous source” (commenter on this blog) had a different opinion…
Cheap if it reduces claim payouts.
I’ve heard (through an anonymous source) that David’s anonymous source is none other than John Meyer.
David is very confidential and people trust him. Leave his data gathering choices alone
[quote]David is very confidential and people trust him. Leave his data gathering choices alone[/quote]
David is free to use anonymous sources. He is not free to expect all readers to believe those anonymous sources are credible…
“David is free to use anonymous sources. He is not free to expect all readers to believe those anonymous sources are credible…”
I’m fine with that.
“Another “anonymous source” (commenter on this blog) had a different opinion… “
Who are you referring to? The person who I recall expressing a different believe was Phil Coleman, a former police chief for the city of Davis. I respect Mr. Coleman’s view, but while he may know Norman Traub, my source actually works in the field and would be more familiar with the work and reputation of Norman Traub’s firm within the “industry” (I would call the field of police investigations a cottage industry – very small and close knit).
It is very easily understood the problem with anonymous sources. To write in an article, “I know ten people who agree with me and back me up”….. can be used by anyone at anytime without accountability.
The Enterprise article said:
> The cost of the internal affairs investigation brings
> the amount UCD has paid on consultants since the pepper
> spray incident to more than $686,000.
> In addition, Pike and Lee remained on paid leave for eight
> months after the pepper-spraying. Pike drew $81,120 in
> salary and Lee $38,040 while on suspension. Spicuzza was
> paid more than $61,500 while under investigation before
> she retired in April.
> Other costs for UC are still climbing:
> The draft of yet another report, this one on UC
> policies for dealing with protesters, cost more
> than $300,000 to produce,
> Carmichael, who has vowed to reform the department
> and make its operation more transparent…
> A price tag has not been announced.
> UC has not yet revealed a cost estimate for the legal
> fees it ran up in a court case it fought against a
> police officers’ union this spring over the release
> of names in the Reynoso report.
> The pepper-sprayed protesters have filed suit in federal
> court against UCD, its top officials, the department and
> officers on the scene.
I’m guessing that the total bill to UC/California Taxpayers for the pepper spray “incident” will be many millions. We are doomed if every time someone that works for the state or a company does something wrong it costs millions and millions of dollars.
Unless there is proof that the UC Regents and the UC Chancellor all met and said “acting in our capacity as the head of UC and UCD we are going to compel officer Pike to torture a bunch of kids with pepper spray the kids should only be able to sue officer Pike for his actions.
I don’t see why someone like Don should have to pay millions (or lose his business) if an employee sprays me with pepper spray because I offended him by asking for the plant I just bought to be put in a paper (or even worse plastic) bag.
The reason we are in this mess is that the attorneys want to be able to sue rich people (or organizations)so they can get even richer and the people (like officer Pike) get off without paying anything while next year’s freshman class it UCD will end up paying $500 each to cover the millions his poor decision cost UCD…
I don’t really agree with your assessment. First, both Reynoso and Kroll put a lot of blame on this directly on the administration.
The second problem is that the courts have really defined individual liability very narrowly. The issue of qualified immunity comes from the other direction. Not the desire to get rich people but rather the need to shield employees from liability while carrying out the ordinary performance of their duties. If a police officer could be personally sued every time he had to use force – he would stop using force or stop being a police officer.
This comes from Wikipedia which I hate quoting but it seems to be a reasonable explanation of the origins of qualified immunity…
[quote]Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Qualified immunity shields government officials from liability for the violation of an individual’s federal constitutional rights. This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate “clearly established law.” The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court’s inquiry into a defendant’s subjective state of mind with an inquiry into the objective reasonableness of the contested action. A government agent’s liability in a federal civil rights lawsuit now no longer turns upon whether the defendant acted with “malice,” but on whether a hypothetical reasonable person in the defendant’s position would have known that his/her actions violated clearly established law.
As outlined by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982),[1] qualified immunity is designed to shield government officials from actions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
In 2001, the Supreme Court in Saucier v. Katz established a rigid order in which courts must decide the merits of a defendant’s qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official’s conduct. The Court subsequently overruled Saucier in Pearson v. Callahan, holding that the two-step procedure was no longer mandatory.[/quote]
And I’ll add, in lawsuits, one of the big goals is puncture qualified immunity and be able to hold law enforcement officers personally accountable. So I think your analysis on this is completely wrong.
David wrote:
> So I think your analysis on this is completely wrong.
So you think that having customers, taxpayers and business owners pay when someone screws up is better than having the person that screws up pay (with money or jail time)?
The copysthat beat Rodney King should have had to pay him money “and” go to jail, but under our current system they did not go to jail and the taxpayers of LA got stuck with the bill.
In the private sector we had Whacovia Bank (now owned by Wells Fargo) execs. illegaly launder ~$300 Billion (yes Billion with a “B” an amount equal to about 1/3 the Mexican GNP) for Mexican drug cartels. No one went to jail and bank customers and stockholders ended up paying a $50 million fine.
If people that work for big companies and the government don’t need to worry about going to jail we are going to get a lot more bad behavior from the enployees of big companies and the government…
Your first question is a very complex one. In this case there is clear culpability by those running the university. They are ultimately responsible for the conduct of their employees.
Your depiction of how the process arose was completely inaccurate. I think an understanding that public employees, particularly police could not do their job if they had personal liability in every case is critical.
At the same time, I think too often police get off too lightly and so I think in egregious cases, that they should be held personally accountable under the law. But as a general matter, i think qualified immunity has its place.
“If people that work for big companies and the government don’t need to worry about going to jail we are going to get a lot more bad behavior from the enployees of big companies and the government… “
The state of the law does not protect employees from jail or liability if they make errors that go beyond their normal duties – did you read what I posted? There is a lot more to it than just that.
[quote]So you think that having customers, taxpayers and business owners pay when someone screws up is better than having the person that screws up pay (with money or jail time)?
The copysthat beat Rodney King should have had to pay him money “and” go to jail, but under our current system they did not go to jail and the taxpayers of LA got stuck with the bill.
In the private sector we had Whacovia Bank (now owned by Wells Fargo) execs. illegaly launder ~$300 Billion (yes Billion with a “B” an amount equal to about 1/3 the Mexican GNP) for Mexican drug cartels. No one went to jail and bank customers and stockholders ended up paying a $50 million fine. [/quote]
I think all of the examples you site are differnt. It is appropriate for the institution/employer to pay for the bad behavior of its agents, if the institution itself created the culture/didn’t supervise properly the wrongful agent/employee. However, these situations are usually very complex/can be nuanced and individual cases are very different. But there is one common thread that runs through all of them.
1. At UCD, some agents/employees were fired for wrongful behavior (Spicuzza, Pike, Lee), but punishment for the failures of the administration (Katehi, Meyer) were nonexistent. However, the wrongful behavior of the students themselves also contributed to the entire mess, and they are not likley to receive any punishment for that bad behavior (nor frankly should they – they were kids egged on by wrongful professors in the institution, who also may/may not get away w their bad behavior). Ultimately the institution will pay a price for all the investigations/wrongful behavior, which will fall on the shoulders of/be paid for by the taxpayer and future students. Life is rarely fair. But this was a very complicated situation, with wrongful actions/missteps on all sides IMO. And of course innocent students and taxpayers will pay the price.
2) In the Rodney King beating, clearly the police officers in charge at the scene were in the wrong, but so too was the entire police dept and the culture of racism/police brutality it encouraged. The police officers did not get charged criminally, but did receive civil judgments against them. If I remember rightly, at least some of them lost their jobs, and the head of the police dept lost his position (and rightly so). Many innocent people paid with their actual lives in the riots that followed the criminal trial, at the hands of some criminal members of an outraged public. The innocent taxpayers had to pick up the tab for all the damage caused by the mayhem of wrongful members of the public. Had the criminal trial brought about the proper verdicts, the public would have been better served, and justice would have probably prevailed. And innocent blood would not have been shed. Again, life isn’t fair.
3) Bank officials engaged in all sorts of illegal activities. To date, not a one seems to have been held accountable for their wrongful behavior. Meanwhile the economy has suffered tremendously, a young generation fresh out of college and high school cannot find work or are severely underemployed. The dream of home ownership is waning. Many mortgages are underwater. The taxpayers are getting hosed. The bank customer will pay higher bank fees; and shareholders also will get stuck paying for damages done by these wrongful bank officials. And the bank officials are still living like fat cats/high on the hog, because they pay huge campaign contributions to politicians or are in positions of power that largely make them unaccountable. Yet again, life isn’t fair.
The problem as I see it, is that the laws we have on the books which should have held wrongful actors accountable are often not enforced, because our institutions are frequently corrupt. Sometimes Murphy’s law works overtime, and the confluence of events brings about the worst possible outcome. Also, two wrongs do not a right make – it is not appropriate to break the law just because one is angry over injustice. And… life isn’t fair… 😉