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Palo Alto to shield internal police conflicts from independent audits

New contract with independent auditor draws criticism for excluding certain cases of officer misconduct

The Palo Alto City Council agreed on Monday to explicitly exclude internal personnel conflicts within the Police Department from independent audits – a move that was blasted by a prominent police watchdog as an affront to transparency.

By a unanimous vote, the council approved a recommendation from City Manager Ed Shikada and Police Chief Robert Jonsen to approve a new three-year contract with OIR Group, a Los Angeles-based firm that for more than a decade has been providing biannual audits of the Police Department, which include reviews of every Taser employment and Internal Affairs investigation. But while Shikada characterized the new contract as essentially a continuation of the existing scope of services, the agreement does include one clause that the prior one did not: a determination that "complaints and investigations of internal personnel or human resources matters are not part of these Independent Police Auditor Services."

The change means that disputes that involve two officers — including a recent incident in which a police captain was accused of using a racial slur — will be shielded from external reviews. Instead, they will now be privately investigated by the Human Resources Department and screened from the public.

Shikada disputed reports that the proposed changes raise concerns about a lack of transparency and argued that, in fact, they reflect the city's commitment to being open and transparent. To reassure the council, he said that he and Jonsen plan to release a supplementary report in conjunction with the audits, summarizing any incidents that fall beyond the scope of the independent review. Given that it will be the city itself – and not an external auditor – who will be issuing that supplementary report, Shikada and Jonsen will have full discretion in deciding which incidents to include in that report.

The revised scope drew a sharp rebuke from retired Superior Court Judge LaDoris Cordell, a former city councilwoman who had previously served as an independent police auditor in San Jose. She noted that the decision of whether a given incident constitutes a "personnel matter" is often a subjective determination, made by the Human Resources Department itself. Unless the language is clarified, the department will be able to classify incidents of police misconduct as "personnel matters" and, in doing so, screen them from public scrutiny.

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She alluded to recent accusations against Capt. Zach Perron, who was alleged to have uttered a racial slur to another officer. Language in the new contract should make clear that such conduct must be properly classified as "misconduct" and investigated by internal affairs.

"The vague and loosey-goosey language in the contract would be a step backward in transparency and police disciplinary conduct," Cordell said.

Jonsen pushed back against the characterization. Rather than reducing transparency, the revised scope — when coupled with the new supplementary reports — seeks to address some "gaps" in the existing system, he said.

"I feel the process today that we're currently working under has some gaps and that's what we're trying to rectify — to make this fair, transparent, equitable and legitimate," Jonsen said.

City Attorney Molly Stump argued that the new clause is important because the city has "an overriding interest in protecting the privacy of sworn personnel so that these employees can do their work without concern about risk or intrusions into their personal and family affairs."

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"In addition, the City has an obligation to maintain a confidential human resources system, so that employees feel safe coming forward to make complaints or to provide information in an investigation that involves their co-workers or supervisors," a report from the City Attorney's Office states.

While the council agreed, some residents of the public took issue with this determination. Winter Dellenbach argued that under the new rules, Human Resources will "investigate in total secrecy, eroding transparency and accountability." Complaints generated by officers should be handled by an independent auditor, she said.

"At a time when the city needs to up its police accountability, the contract seems vague and wrong-headed, especially when the state grants greater privacy rights to sworn and in-uniform officers than it does to the public," Dellenbach said.

The council, however, sided with Shikada and Jonsen, with several members arguing that not every personnel issue warrants an independent review. Mayor Eric Filseth pointed to a hypothetical case in which an employee sees a co-worker watching cat videos on their computer. Is this really the kind of issue that an external audit should be exploring, he asked?

His colleagues agreed, even as they expressed some concerns about the fact that OIR Group has not released any audits since October 2018. While Jonsen attributed the delay to the auditor needing more time to get information from the city and reach a conclusion, Michael Gennaco of OIR Group told the Weekly in July that the firm was expecting to release an audit in the summer. Gennaco also said in September that the audit was delayed because his firm was awaiting direction from the city.

Gennaco also indicated in an email to the Weekly on Monday night that his firm's next report will address the issue of whether it's appropriate for the city's own Human Resources Department to handle internal personnel issues.

Despite some reservations, the council approved Shikada's plan. Councilwoman Liz Kniss said the city is walking a "fine line" in deciding between privacy and accountability. Vice Mayor Adrian Fine, who made the motion on Monday to approve Shikada's recommendation, agreed but nevertheless voted to approve the revised scope.

"There is an issue of diffusion of accountability and I think there's a fair argument that some incidents should absolutely be audited by an independent auditor and some should be handled by the regular channels in the HR Department," Fine said.

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Palo Alto to shield internal police conflicts from independent audits

New contract with independent auditor draws criticism for excluding certain cases of officer misconduct

by / Palo Alto Weekly

Uploaded: Tue, Dec 17, 2019, 9:08 am

The Palo Alto City Council agreed on Monday to explicitly exclude internal personnel conflicts within the Police Department from independent audits – a move that was blasted by a prominent police watchdog as an affront to transparency.

By a unanimous vote, the council approved a recommendation from City Manager Ed Shikada and Police Chief Robert Jonsen to approve a new three-year contract with OIR Group, a Los Angeles-based firm that for more than a decade has been providing biannual audits of the Police Department, which include reviews of every Taser employment and Internal Affairs investigation. But while Shikada characterized the new contract as essentially a continuation of the existing scope of services, the agreement does include one clause that the prior one did not: a determination that "complaints and investigations of internal personnel or human resources matters are not part of these Independent Police Auditor Services."

The change means that disputes that involve two officers — including a recent incident in which a police captain was accused of using a racial slur — will be shielded from external reviews. Instead, they will now be privately investigated by the Human Resources Department and screened from the public.

Shikada disputed reports that the proposed changes raise concerns about a lack of transparency and argued that, in fact, they reflect the city's commitment to being open and transparent. To reassure the council, he said that he and Jonsen plan to release a supplementary report in conjunction with the audits, summarizing any incidents that fall beyond the scope of the independent review. Given that it will be the city itself – and not an external auditor – who will be issuing that supplementary report, Shikada and Jonsen will have full discretion in deciding which incidents to include in that report.

The revised scope drew a sharp rebuke from retired Superior Court Judge LaDoris Cordell, a former city councilwoman who had previously served as an independent police auditor in San Jose. She noted that the decision of whether a given incident constitutes a "personnel matter" is often a subjective determination, made by the Human Resources Department itself. Unless the language is clarified, the department will be able to classify incidents of police misconduct as "personnel matters" and, in doing so, screen them from public scrutiny.

She alluded to recent accusations against Capt. Zach Perron, who was alleged to have uttered a racial slur to another officer. Language in the new contract should make clear that such conduct must be properly classified as "misconduct" and investigated by internal affairs.

"The vague and loosey-goosey language in the contract would be a step backward in transparency and police disciplinary conduct," Cordell said.

Jonsen pushed back against the characterization. Rather than reducing transparency, the revised scope — when coupled with the new supplementary reports — seeks to address some "gaps" in the existing system, he said.

"I feel the process today that we're currently working under has some gaps and that's what we're trying to rectify — to make this fair, transparent, equitable and legitimate," Jonsen said.

City Attorney Molly Stump argued that the new clause is important because the city has "an overriding interest in protecting the privacy of sworn personnel so that these employees can do their work without concern about risk or intrusions into their personal and family affairs."

"In addition, the City has an obligation to maintain a confidential human resources system, so that employees feel safe coming forward to make complaints or to provide information in an investigation that involves their co-workers or supervisors," a report from the City Attorney's Office states.

While the council agreed, some residents of the public took issue with this determination. Winter Dellenbach argued that under the new rules, Human Resources will "investigate in total secrecy, eroding transparency and accountability." Complaints generated by officers should be handled by an independent auditor, she said.

"At a time when the city needs to up its police accountability, the contract seems vague and wrong-headed, especially when the state grants greater privacy rights to sworn and in-uniform officers than it does to the public," Dellenbach said.

The council, however, sided with Shikada and Jonsen, with several members arguing that not every personnel issue warrants an independent review. Mayor Eric Filseth pointed to a hypothetical case in which an employee sees a co-worker watching cat videos on their computer. Is this really the kind of issue that an external audit should be exploring, he asked?

His colleagues agreed, even as they expressed some concerns about the fact that OIR Group has not released any audits since October 2018. While Jonsen attributed the delay to the auditor needing more time to get information from the city and reach a conclusion, Michael Gennaco of OIR Group told the Weekly in July that the firm was expecting to release an audit in the summer. Gennaco also said in September that the audit was delayed because his firm was awaiting direction from the city.

Gennaco also indicated in an email to the Weekly on Monday night that his firm's next report will address the issue of whether it's appropriate for the city's own Human Resources Department to handle internal personnel issues.

Despite some reservations, the council approved Shikada's plan. Councilwoman Liz Kniss said the city is walking a "fine line" in deciding between privacy and accountability. Vice Mayor Adrian Fine, who made the motion on Monday to approve Shikada's recommendation, agreed but nevertheless voted to approve the revised scope.

"There is an issue of diffusion of accountability and I think there's a fair argument that some incidents should absolutely be audited by an independent auditor and some should be handled by the regular channels in the HR Department," Fine said.

Comments

Mil
Old Palo Alto
on Dec 17, 2019 at 12:45 pm
Mil, Old Palo Alto
on Dec 17, 2019 at 12:45 pm
29 people like this

Unfortunately Councilman Fine failed to explain what incidents (sexual harrassement, thefts, homophobia,racism, corruption, abuses, and etc.)should absolutely be audited by an independent auditor and some should be handled by the regular channels in the HR Department.
Should the citizens of Palo Alto blindingly trust the Police Department in the absence of transparency? The answer should be a resounding no.


Online Name
Registered user
Embarcadero Oaks/Leland
on Dec 17, 2019 at 2:47 pm
Online Name, Embarcadero Oaks/Leland
Registered user
on Dec 17, 2019 at 2:47 pm
27 people like this

Absolutely no but it's so unfortunately consistent with the city's lack of accountability, lack of responsiveness and stonewalling.


Eric Filseth
Downtown North
on Dec 17, 2019 at 2:47 pm
Eric Filseth, Downtown North
on Dec 17, 2019 at 2:47 pm
8 people like this

To be clear: ALL incidents are investigated internally, and some are also referred to the outside investigator, OIR, for independent review.

There’s a basic disagreement on fact between this article and City staff. The Weekly asserts that under previous City policy, incidents not involving the public =were= still referred to the outside investigator, and therefore were publicly reported. The City disagrees, and says that under previous policy, incidents not involving the public were =not= normally referred to OIR, and the new contract simply states that.

The Weekly argues the new contract reduces transparency because under its premise, some previously-reported incidents now will not be. The City disputes the premise, and argues the action last night actually increases transparency, because it mandates that all incidents of any kind, even the hypothetical “cat video” example, will now be publicly reported.

Both arguments are logical; whether last night’s action decreases or increases transparency depends on what you believe previous City policy was. The Weekly says one thing, City Staff another.


Most of the public concern we heard revolved around Transparency (“police secrecy” per some newspapers): how would concern-worthy incidents ever be publicly disclosed, if they were never referred to OIR? Last night’s “disclose everything” action should resolve this; it decouples the “Transparency” issue from the “external review” issue.

There’s a second Policy issue here, not specifically about Transparency: assuming everything is reported, which if any incidents not involving the public should still get the second outside review? This issue really didn’t get taken up last night; the action was focused mostly on Transparency.


Anon
Another Palo Alto neighborhood
on Dec 17, 2019 at 4:00 pm
Anon, Another Palo Alto neighborhood
on Dec 17, 2019 at 4:00 pm
6 people like this

Posted by Eric Filseth, a resident of Downtown North

Thank you for your response and clarification of the situation.

>> There’s a basic disagreement on fact between this article and City staff.

It seems that Judge Cordell agrees with the Weekly viewpoint, rather than City staff. But, perhaps more significantly, it appears that an opportunity was missed to make things better:

>> [Cordell] noted that the decision of whether a given incident constitutes a "personnel matter" is often a subjective determination, made by the Human Resources Department itself. Unless the language is clarified, the department will be able to classify incidents of police misconduct as "personnel matters" and, in doing so, screen them from public scrutiny.[...] Language in the new contract should make clear that such conduct must be properly classified as "misconduct" and investigated by internal affairs.


Eric Filseth
Downtown North
on Dec 17, 2019 at 5:54 pm
Eric Filseth, Downtown North
on Dec 17, 2019 at 5:54 pm
Like this comment

>> 'the department will be able to classify incidents of police misconduct as
>> "personnel matters" and, in doing so, screen them from public scrutiny'


Well, if everything is reported, then everything will under "public scrutiny” no matter how you classify it, or how many different teams review it.

I interpreted Judge Cordell as arguing that even =with= public scrutiny, certain kinds of incidents that don’t touch the public now might potentially be predictive of future actions that do touch the public, so these incidents ought to also be reviewed by both the internal and external investigators, even purely as an operational-management issue. I think that’s an important idea; but again, the discussion last night didn’t really go there; it focused mainly on transparency.


Gennady Sheyner
Registered user
Palo Alto Weekly staff writer
on Dec 17, 2019 at 7:21 pm
Gennady Sheyner, Palo Alto Weekly staff writer
Registered user
on Dec 17, 2019 at 7:21 pm
21 people like this

Thanks for your comments, Mayor FIlseth. You cited city staff's assertion that "under previous policy, incidents not involving the public were =not= normally referred to OIR, and the new contract simply states that."

Here is a case of OIR investigating a case in which a police officer posted on Twitter a training video that he made while on duty, in violation of company's policy (page 9: Web Link). Here is OIR investigating a PAPD officer who was involved in a single-vehicle roll-over accident while driving under the influence off-duty (page 13 here: Web Link). Here's OIR looking into the case of a sergeant who removed electronic equipment from a vehicle without authorization (page 10: Web Link). So yes, I disagree with the city staff assertion on which your vote was based.

Even if the new supplementary reports list all the new cases, the fact that they're "publicly reported" isn't the only issue. How they are reported is just as critical. The city manager and the police chief will have full discretion here. Would the DUI case, for example, be listed as "Violated beverage policy. Sustained" with no further explanation, or will there be a narrative and an account of what the department did in response? And if it's the former, will HR answer follow-up questions or will it respond by saying that the city does not comment on personnel matters? The council signaled with its vote that it believes this approach is more transparent than having an independent auditor report on such cases (status quo). I hope you can see why some would see it differently.


Brett
Registered user
Professorville
on Dec 17, 2019 at 7:48 pm
Brett, Professorville
Registered user
on Dec 17, 2019 at 7:48 pm
16 people like this

@ Mayor Eric Filseth,

The fact is the police auditor was initially hired to audit complaints made about police officers to determine if the police and city supervisors completed a fair, impartial investigation of their officers as to whether they violated policy and meted out appropriate discipline and training as a result of that investigation.

Now the police auditor will not be informed of some complaints about police officers solely because the complaint was lodged by a fellow police officer and therefore will not be able to determine if city supervisors conducted a fair and impartial investigation.

Investigations that were initiated by the weight and integrity of sworn officers will no longer be subject to independent and conflict free scrutiny but rather submitted to internal city staff who have a conflict of interest and innate bias due to their job dependence upon fellow city staff.

Proof of the city’s inability to hold itself accountable:

Web Link

Web Link

Web Link

Web Link


Eric Filseth
Downtown North
on Dec 18, 2019 at 8:15 am
Eric Filseth, Downtown North
on Dec 18, 2019 at 8:15 am
11 people like this

Gennady - thanks for these. I'm asking.


Eric do your job
Barron Park
on Dec 18, 2019 at 10:46 am
Eric do your job, Barron Park
on Dec 18, 2019 at 10:46 am
13 people like this

Eric,
Saying that two statements that are factually inconsistent are both "logical" is both incorrect and misses the point. Your job is to represent the community and ensure that City staff are honest and accountable. Your job is not to provide poorly reasoned commentary on what happened as if you are a (confused) third party observer.

Did you not think it was important to figure out the facts before you voted?


Winter Dellenbach
Barron Park
on Dec 18, 2019 at 11:31 am
Winter Dellenbach , Barron Park
on Dec 18, 2019 at 11:31 am
27 people like this

Thank you Gennady for clarifying the record, and Mayor Filseth for now asking more about this in light of the clarification. It is distressing that staff is giving our elected officials wrong information. I also think staff may have misstated the information to council and the public about why there the Auditor's Report releases are delayed to the public and council. My understanding is that the Auditor has released the Reports and they are in staff's hands. Mayor Filseth - would you also follow up with the Auditor on this?

I spoke at the council meeting where seemingly I was not clear that I was talking about complaints about police officer misconduct filed by other officers as well as by the public. I think I should have explained simply how things work now and should work since the staff report did not.

Both types of complaints should be handled as the public complaints are now - by PAPD Internal Affairs that is trained to do such investigations as a separate unit of the Department and with oversight of the Independent Auditor who ensures the soundness and completeness of such investigations. Confidentiality and identify of Officers would be kept confidential for Officer generated complaints.

But instead, unless a member of the public files a compliant, the HR Department will handle Officer complaints though it's not well trained to do so, even investigations of police misconduct. HR is fine to handle everyday variety personnel matters.

Misconduct allegations are serious and include physical or sexual assault, theft, DUI, homophobia, not reporting use of force in reports, lying under oath, planting evidence, racism, etc. They can be reported by another Officer or a complaint by the public.

With this reporting and comments, this sounds even worse than it did Monday night. Council approved a contract which was poorly written, lacked definition and description while allowing some misconduct allegations by Officers to fly under the radar with not enough information made available, yet relied on staff promises outside the contract which will not cure the defects.







Resident
Community Center
on Dec 18, 2019 at 11:43 am
Resident, Community Center
on Dec 18, 2019 at 11:43 am
29 people like this

Thanks to Gennady for sharing multiple examples of serious internal misconduct incidents that were investigated by the OIR. It looks like all of these occurred under Molly Stump’s tenure as city attorney so she was aware of them when reporting otherwise to the city council and public Monday night. Since the references were from past OIR reports, the city manager had easy access to them as well.
Mayor Filseth’s claim that city staff simply did not agree on the facts is proven false by the actual facts. Facts are facts, despite the staff’s effort to assert their “alternative facts” which are deliberate fact omissions. This is a serious deception and breach of trust by the highest members of the city staff. Filseth equating such serious internal misconduct with watching cat videos on the clock is an absurd false equivalency.
Interestingly, this occurred in the same meeting that Stump made a backhanded admission that she had not once, but twice provided erroneous direction to the council on voting rules for the emergency renter protection ordinance. All of these false claims were made with certitude by her.
Lastly, this all occurred on the same agenda as her 5% raise was officially adopted. You can’t make this up.


Eric Filseth
Downtown North
on Dec 19, 2019 at 2:57 pm
Eric Filseth, Downtown North
on Dec 19, 2019 at 2:57 pm
4 people like this

To close the loop here: City Staff says yes, Gennady's three cases would again be referred to OIR as before, if they happened under the new OIR contract; assuming that's accurate, these cases themselves don't demonstrate a policy change.

A bit of a technical point here, which I didn't initially understand either: OIR investigates =investigations= not =incidents=. In other words, all incidents are investigated internally, and then a subset of those internal investigations are reviewed by OIR. I'm not sure that makes a big difference, given that in order to assess in investigation, presumably you have to understand the incident; but that's my understanding of the mechanics.


Gennady Sheyner
Registered user
Palo Alto Weekly staff writer
on Dec 19, 2019 at 4:20 pm
Gennady Sheyner, Palo Alto Weekly staff writer
Registered user
on Dec 19, 2019 at 4:20 pm
17 people like this

Thank you for the additional research, Mayor Filseth. If it's always been the case that a subset of internal investigations were subject to review by OIR, the key question becomes: What's the criteria for determining which cases fit into that subset? It seems like the newly added sentence -- "Complaints and investigations of internal personnel or human resources matters are not part of these Independent Police Auditor Services" -- could have the effect of narrowing that subset and keeping cases like the ones I had previously cited from the auditor and the public. The new language seems to somewhat undermine the assurances from city staff that cases like the ones I had previously sited (each of which can be designated as an "internal personnel matter") would be investigated by OIR in the future.


Lee
Another Palo Alto neighborhood
on Dec 19, 2019 at 11:12 pm
Lee, Another Palo Alto neighborhood
on Dec 19, 2019 at 11:12 pm
21 people like this

This reporter is right - this is exactly the how it works. The consequence is that we now have a less accountable police force.

People asked the city council not vote to renew the contract that night, first take more time to get clearer about what they were doing first - but staff apparently said that they should just trust them to make it all ok. So council voted without knowing what it was doing.

This is not good governance. And the City Attorney, Manager and Police Chief should be taken to the woodshed and this matter should be voted on again once it is actually understood by the council members.

Thanks again for acting as a vigilant press should Mr Shayner.


Madness
Registered user
Another Palo Alto neighborhood
on Dec 20, 2019 at 8:17 am
Madness, Another Palo Alto neighborhood
Registered user
on Dec 20, 2019 at 8:17 am
22 people like this

Weaker internal officer investigations by HR and poorer oversight of them by staff makes no rational sense whatsoever. In our small Palo Alto democracy, why did police secrecy triumph over the public safety?

City council's agreeing to let staff remove an entire class of police officer complaints from investigation by Internal Affairs and oversight by the Independent Auditor, based on a phony concern for officer privacy, was completely needless. Identities of officers are confidential and there was no showing that it is otherwise (Perron was "outed" by a party to the complaint).

The public was sold out by Stump, Shikada and Jonsen who seemed to sow enough confusion that council bought into it. We just settled one case for nearly $600K where a handcuffed guy in town got his head slammed into a windshield by a police sergeant, and another such case is now looming. We are the ones paying for this and could be the victims of this.

Weaker internal officer investigations done by HR not Internal Affairs, and with poorer oversight of them by staff, not the Independent Auditor makes no rational sense whatsoever. This is madness..


Anon
Another Palo Alto neighborhood
on Dec 21, 2019 at 11:34 am
Anon, Another Palo Alto neighborhood
on Dec 21, 2019 at 11:34 am
4 people like this

Posted by Madness, a resident of Another Palo Alto neighborhood

>> The public was sold out by Stump, Shikada and Jonsen

I don't like usage of the term "sold out", which, to some old-timers like me, suggests actual bribery. There is no reason to believe that took place.

What did take place was, apparently, was a deception by the aforenamed, of the City Council. I am extremely disappointed. It may seem like a small thing, but, in reality, it isn't. This wasn't a little white lie to avoid hurting someone's feelings. What seems like small hole was actually a serious fracture in the structure that maintains police integrity and public confidence in the police. Hopefully they will repair the damage.


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