Monday Morning Thoughts: Transparency for the Sake of Transparency

Michael Gennaco gives his report in April 2018 as Chief Pytel looks on

I have to say I was disappointed in the council a few times last Tuesday.  I thought they played it too safe on the issue of the sales tax, and I thought they really lost sight of the importance of the SB 1421 request and the need for a new investigation into the Picnic Day incident.

Now I agree with Councilmember Lucas Frerichs and Will Arnold who articulated that we don’t need to do a third investigation into Picnic Day.  But I think there are ways under the law to accomplish the need for transparency without doing a third investigation.  (On Wednesday, the Vanguard filed a new request under SB 1421, as I explain shortly).

At the outset here, let me state that Will Arnold and Lucas Frerichs along with former Mayor Robb Davis deserve a lot of credit for pushing for improved police oversight from Picnic Day forward.  It was Councilmember Arnold who called out former Sacramento Sheriff Scott McGinness’ racism (he called the statement “very racist”) which led him to step down and be replacement by McGregor Scott – who, as we found out this past week, has his own problems.

However, I think they miss an incredibly important point here.

Obviously, I can’t speak for the DPAC (Davis Police Accountability Commission), but, at least to me, this was not about a third investigation. I think framing the issue as such lost a lot in translation. The DPAC saw the new investigation as a way forward to get the police auditor, Michael Gennaco to issue a finding of dishonesty on the part of the police department in releasing the Picnic Day papers.

But that is just a legal vehicle to the true end, which in my view isn’t necessarily learning about new things but rather about transparency itself.

SB 1421 was passed by the state legislature and signed by the governor. It gives the public the right to see “certain records relating to police misconduct and serious uses of force.”

Prior to the passage of SB 1421, as the LA Times put it: “California had the nation’s strictest protections on internal police files, barring even prosecutors from directly accessing them.”

California still is not great.  If you are a defense attorney, you are not automatically entitled to review a police officer’s personnel record to find out if they have sustained complaints or a record of misconduct.

Instead, you have to file a “Pitchess Motion” which, if granted by the judge, allows not the defense attorney but the judge to review the records “in camera” and determine if there are any facts that are disclosable.

And if the judge determines that they are disclosable, the defense still doesn’t get things like IA reports or personnel files; instead they get names and dates and are told to find the information themselves.

That is not transparency.  For the voters, we do not know anything about what happens in these cases.  Complaints get filed and we find out – sustained, not sustained or unfounded.  There are no details.  We hire people like Michael Gennaco in hopes that they have the access, experience and expertise to review the files that we can’t.

SB 1421 doesn’t fix all of that, but it fixes some of it.  Incidents involving shootings and use of force resulting in great bodily injury are disclosable under the law, as are sustained complaints of sexual misconduct and dishonesty.

That’s still a limited window, but it is does crack the window open a bit.

Council deserves credit – when thwarted by the city attorney and police chief on releasing the McGregor Scott investigation, they had Michael Gennaco review that investigation and write up his own report summarizing the findings.

But I think council here needs to take a step back to remember that, under the previous law, the council itself was not allowed to view the investigator by McGregor Scott. They had to have Michael Gennaco summarize the report in order for even the council to read it.

Now that changes a little bit under SB 1421, but as we have seen across the state, there is a fight over what police records can be released. Whether it was fighting retroactive releases or fighting over which records can be released now, this is a battle that has occurred across the state.

Do I believe that the city should have spent another $30,000 to $50,000 to fix this problem? Maybe. I’m sorry, Elaine Roberts Musser, that kind of money is not going to fix many potholes but it will ensure a level of transparency.

But I also think the city has other and better options at this point.

The Vanguard believes that the records should be disclosable under Penal Code section 832.7(A)(ii) and last week we filed a request to that effect.  If you read the letter of the law, you realize that it never specifies who must suffer great bodily injury in order to make the records releasable.

The council did not want to go here, but we will.  We will see what the city and probably ultimately the courts have to say about this.

But what matters here is not whether or not we learn anything new.  Rather it is that we need to have access to the records to see for ourselves that there isn’t anything new that the government or police were hiding.

Given the track record of Picnic Day, I am not willing to grant of benefit of the doubt.

This is an issue that is about transparency for its own sake.

—David M. Greenwald reporting

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