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

When 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.

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

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