Five before Midnight

This site is dedicated to the continuous oversight of the Riverside(CA)Police Department, which was formerly overseen by the state attorney general. This blog will hopefully play that role being free of City Hall's micromanagement.
"The horror of that moment," the King went on, "I shall never, never forget." "You will though," the Queen said, "if you don't make a memorandum of it." --Lewis Carroll


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Location: RiverCity, Inland Empire

Thursday, July 24, 2008

Canary in the Mine: One attorney, too many hats

"The mission of the City Attorney's Office is to provide excellent and ethical legal advice, zealous legal representation, and other quality legal services for the City Council, City officers, and City employees in order that they may lawfully attain the City Council's goals and other department program outcomes without undue risk to the City."

---from the city's Web site (red emphasis, mine) Notice there's no such language included for the city's boards and commissions.

The situation involving the Martin Gaspar Pablo case and City Attorney Gregory Priamos' refusal to allow the Community Police Review Commission to investigation without dire consequences hit the Press Enterprise today.

(excerpt, Press Enterprise)

City Attorney Greg Priamos told the commissioners that beginning an investigation would be a violation of the charter, a misdemeanor publishable by a fine up to $1,000 or imprisonment up to six months.

"Based on preliminary information that we have, the incident does not fall within their subject-matter jurisdiction," Priamos said by phone Thursday.

He would not say what that information was.

Commissioners have long considered having independent counsel in the case of a conflict. Commissioner Chani Beeman said the lack of independent counsel fosters mistrust. The law is open to interpretation, she said.

"We should err on the side of transparence here," she said.

In a report by city consultant Joe Brann, many commissioners requested that they have counsel independent of the city attorney for when a conflict arose. However, he recommended the commission stay with the city attorney.

Priamos said the commission does not have the authority to retain special council.

The police department's official comment in the article made it appear that it was mystified or at the very least at a loss as to why none of its representatives (minus its liaison) attended the CPRC meeting to give a briefing on the Martin Gaspar Pablo death or even to just show up to say their lips were sealed on this case. You would think that if the police department apparently completely ignored Chair Brian Pearcy's invite to the meeting that it would have some clue why it did so or provide some reason. But if it does have a clue or a reason, it chooses neither to share it with the CPRC nor the city residents who provide the money through various tax revenues which funds their police department.

The police department has also (sort of) made it clear that it has already made its decision that the death has nothing to do with the actions of the officers even though the coroner hasn't issued his ruling yet. That's similar to how the the 2005 death of Terry Rabb played out. Of course in that case, even as the department said that the death had nothing to do with officers in that case (even before an autopsy had been conducted on Rabb). Comments like this so early on after an incident unfortunately feed the beliefs that police agencies are biased investigators of their own employees. In one sentence, they'll say that the investigation being conducted is a lengthy, thorough, exhaustive process taking many months and then in the next breath, the same representative or someone else will say the officers' actions were justified. If you follow incustody deaths or force incidents, this is a trend that's very noticeable in almost every incident. And it's in direct contrast to the more sensible statement that the department is investigating an incident and that it would be premature to reach a definite conclusion let alone announce one.

If a police chief or a county sheriff makes these statements, it often has very little to do with what's coming out in an investigation that usually is at most a day or two old and everything to do with staying employed at that position especially if he or she is at an agency with a revolving door policy for management level employees. It's difficult for a chief to remain in power when his subjects turn against him or her and many times when that happens, it involves a controversial death of a resident.

But the police department should remedy this situation by appearing at a CPRC meeting and providing a briefing on the incident and exactly what it is doing. That's what Chief Russ Leach said at various community forums that he personally would do if there was a death. The nonengagement of the police department's leadership in situations like this as the city approaches the 10th anniversary of the Tyisha Miller shooting is very unfortunate.

As for Priamos, he's a man of many hats in this situation. He's legal counsel for the city, the city council, the city manager, the police department and the CPRC. And in terms of the hierarchy of his priorities, that's pretty much how it sets up. Complicating matters further is that he's also the city's prosecutor, a role he's clearly exercising based on his comments at the meeting and that he provided for the newspaper article.

Meaning that he could be in a situation where he's essentially warning the CPRC as its purported legal counsel of charges that he could file against it as the city's prosecutor. So if he were to prosecute the CPRC on misdemeanor charges, who serves as the commission's legal counsel then? Does it seem even reasonable to have a prosecuting officer warn his "clients" that he could prosecute them if they didn't agree with his interpretation of Charter Section 810(d)? And what to make of Priamos rather pompous statement that as the author of this text, he would have a much better idea of what he meant than an outside attorney providing an abstract opinion?

In reality, that's not true that his opinion is the one that matters most. That's not true of any lawyer who writes an ordinance or charter provision that is subject to interpretation. In these cases, the interpretation of the legal language that matters is a presiding judge representing the proper judicial venue. If an independent attorney's interpretation of the law differs from that provided by its author, Priamos, then it's a judge who would decide the outcomes and then that judge could be subject to appeal at a higher court level. That's how the judicial system governing ordinances and laws works, after all. Priamos as a lawyer with vast experience should already know this as would any independent attorney who offers an opinion.

And this is the crux of the whole problem of having Priamos serve as the commission's legal counsel in the first place. The potential for tremendous conflicts of interest are just waiting in the wings when anything out of the ordinary (and even in the realm of ordinary) happens involving the CPRC. It's amazing that the city doesn't see this until you remember that it chooses not to do so.

Not much is known about the man whose death is the nexus of this controversy. Pablo was 38-years-old, Latino and about 5'5 tall and 155 pounds based on court records for two minor criminal cases from 1996. There was a bench warrant from 1998 that was out on him for a public intoxication case at the time of his death. The first question that's always asked is what kind of criminal is this person because if he died before, during and after engaging with police, he must be one. However, in many recent cases involving the Riverside Police Deparment, it's a bit different than some other agencies. It's not the murderers, gang members, rapists and serial killers who are being shot and killed. And these individuals do exist and they do get arrested every day through other means. That's probably a reflection of a high level of training on handling these situations and repeated training to reinforce these skills given that they are perishable skills.

On the vast majority of occasions, it's not people who shot at the police or even have guns who die in custody. It's mostly men and rarely women, the majority of whom are Black, White or mistaken for being Latino (as both Summer Lane and Douglas Steven Cloud) who are at least initially unarmed and mentally ill, medically ill or under the influence of alcohol or drugs. Their criminal records if they have them mostly involve misdemeanors or domestic violence type crimes or warrants rather than homicides, armed robberies and gang violence. One man, Cloud, had just been in a high-speed accident and there were officers making statements in depositions and interviews about not being trained on how to remove people from crashed vehicles and several who seemed a little less than clear on the department's policy and/or training against shooting at motor vehicles.

The department recognized these issues involving the use of force including lethal force against mentally and medically ill people and instituted crisis mental health training last year which quickly put in the national spotlight as setting an important trend for that training and showed that it does have the capability to respond to challenges in the field through the innovation of new training. The majority of the officers in the patrol division in the department have received this important training and officers from other law enforcement agencies are checking the training out to take back to their own departments.

In this case, the officers recognized that he was sick, even though he remained handcuffed until medical assistance arrived. Just offering an explanation of the circumstances surrounding the officers' decision to keep him handcuffed might be helpful because the department representative was quoted in the article about how unfortunate it was that Pablo was so seriously ill.

Executive Manager Kevin Rogan who appears to be adopting the city's position on this case said that Pablo was in medical distress before he was handcuffed so it wasn't necessarily related. That's true, but again, in the earlier case of Rabb, he too was in medical distress before the officers arrived onscene. In fact, the call which brought them there was a medical assistance call. The Rabb case and how it was handled by the CPRC stands as evidence that the city is punking its responsibilities in this case, for reasons that at the end of the day could have more to do with its concerns about civil liability (and there were indeed two lawsuits in the Rabb case, both of which were on the agenda for discussion at a recent city council meeting) than anything else.

Ironically or not, the word "community" was absent from the headline on this article. Many people feel that it's missing from the commission as well.

History of the triangle between the city, the city attorney and the CPRC

The relationship between the City Attorney’s office and the commission has differed from noninvolvement to regularly attending meetings, suggesting that this office is receiving different instructions from different city councils given that the City Attorney serves at the will of the City Council.

Key moments in this history include the following.

Winter/spring 2000: City attorney drafts ordinance that creates CPRC upon direction by the City Council. He neglects to include language in its text requiring it to use his office as its legal counsel.

November 2002: RPOA attorney Michael Lackie shuts down case review by challenging the right of commissioners to access personnel files and alleging several Brown Act violations. City Attorney agrees to consider case law review on this issue. Case review meetings are suspended for several months but resume in early 2003.

August 2003: The RPOA sues the city in Riverside County Superior Court over RPD policy #4.8. City retains counsel to represent its interests. Law suit settled in early 2005.

Spring 2004: CPRC invites City Attorney’s office to participate in a workshop to address legal issues and its role. City Attorney Gregory Priamos declines saying that he can’t meet with them in a public meeting because of confidentiality issues.

Autumn 2004: CPRC subpoenas Officer Tina Banfill Gould to appear to answer questions in the investigation of the Volne Lamont Stokes shooting. City Attorney’s office appoints CPRC its own attorney during this process. City Attorney represents City Council during its efforts to seek legal sanctions against Banfill Gould if she doesn’t comply with subpoena. The appointment of a separate attorney sets a precedent for the city’s recognition that at least in certain situations, the commission might require its own attorney to represent its interests if they potentially conflict with city interests. There's no written record that the city council ever voted to approve the appointment of an independent attorney. In accordance with state law, this action through vote and the votes tallied by individual council members would have to be recorded publicly.

December 2005: Lane v Wilson is filed in Riverside County Superior Court. City Attorney’s office hires attorney to represent city’s interests in this law suit stemming from the Summer Lane shooting. In 2008, the law suit would settle for $395,000.

August 2006: Copley Press decision is released by the State Supreme Court. The only impact on the CPRC is whether or not the identities of officers involved in the onduty deaths that it investigates can be released. The City Attorney’s office researches the issue and the department releases the names of the officers involved in the fatal shootings of Douglas Steven Cloud and Joseph Darnell Hill. The police department stopped releasing names of officers involved in shootings in 2008. But two days after the decision, the department resumes after State Attorney General Jerry Brown releases a decision affirming the right of the public to receive this information.

September 2006: Ryan Wilson v the City of Riverside is filed in Riverside County Superior Court. The CPRC was sued as a separate entity but released shortly afterward. The City Attorney’s office hires an attorney to represent the city’s interests. There was some concern expressed about whether or not the CPRC would require legal representation. In a hearing held last year, Wilson’s writ to have the sustained finding against him by the CPRC annulled as well as his request for a “name clearing” hearing were denied by Judge Dallas Holmes. Wilson blamed the CPRC. The city (and police chief through his deposition) blamed a host of entities and people including myself and this blog. The judge stated that there was no way to have a "name clearing" hearing in private. Judge wins. Because lawyers don't interpret ordinances, laws and statutes even if they write them, but judges do even if they have not.

To be continued...

The Riverside City Council has just decided to do away with approving loans between city funds in a public forum, instead leaving it up to Asst. City Manager Paul Sundeen to more privately.

Say goodbye to transparency in how the city switches its funding around from one fund to another. Like when they took $22 million in the sewer fund and used it for other purposes not too long ago. And interestingly enough, this move comes not long after the adventures involving the city's sewer fund and its floating loans came to light.

Some financial experts hesitated at saying this was a great move on the part of the city government and aired some concerns. Unlike the city residents who air those same concerns at meetings, they haven't been poo-poohed yet.

(excerpt, Press Enterprise)

Bob Bland, professor and chairman of the department of public administration at the University of North Texas, said it's better for the council to review the reassignments.

Without such oversight, "you're losing an element of accountability there," he said. "I think it's better for the finance officer because it protects him. And it's transparent to the public."

He also said four interfund loan reassignments in seven years is more than usual, and that the practice could end up hurting the city's utility bond ratings.

Louis Schimmel, director of finance for the Michigan-based Mackinac Center for Public Policy, said it might be a nuisance to seek council approval for each reassignment, but "in government today, the more transparent you are, the better."

Oh dear, there go those two words popping up again, accountability and transparency in local government. Where's the garlic and the wooden stakes?

Someone here thanked the city manager's office for its treatment of the library. There's been lots of talk about what's been going on there and rumors that the librarians aren't even allowed to determine where books are placed in the racks. We've

Various battles unfolding involving chamber of commerces in different cities have made it difficult for them to be effective at promoting businesses.

What was interesting was the recording made by Riverside's Greater Chamber of Commerce which called it the voice of the business community. Actually, the voice of some businesses downtown. When it spoke in support for the city's attempts to seize small businesses in downtown through threat of eminent domain, it wasn't exactly representing their voices. Perhaps there should be a separate representative body for businesses which the Greater Chamber deems fit to pull up stakes and leave the downtown as a playground for private developers. When it should have been supporting the due process rights of these businesses in a process where these rights are limited, it was lining up behind the Riverside Downtown Partnership congratulating the city on its actions.

Riverside County CEO Larry Parrish is stepping down and saying bye bye.

(excerpt, Press Enterprise)

Nevertheless, past and present county supervisors credit Parrish with spurring the 7,300-square mile county into the modern age and positioning it as a political and economic force in California.

"He has given us an invaluable reputation for high ethical standards," said Supervisor Bob Buster, who was elected to the 1st District seat shortly after Parrish was hired in 1992. Buster is the longest seated member on the current Board of Supervisors.

Under Parrish's leadership, the county has enacted many cutting-edge policies, including a general plan that integrated transportation, planning and habitat conservation, Buster said.

At the time Parrish was hired, the county was embroiled in a controversy stemming from a failure to properly collect millions of dollars in developer impact fees and a money laundering scandal in the 2nd District, Buster said.

The turmoil cost Parrish's predecessor his job and county leaders at the time looked for someone who could change the direction the county was heading.

Kay Ceniceros, a retired county supervisor who was part of the board that hired Parrish, called him a "man of great integrity."

Also departing is the superintendent from Riverside Unified School District.

The firing of a Riverside County District Attorney's office investigator has been upheld by the state court of appeals.

(excerpt, Press Enterprise)

A three-judge panel of the 4th District Court of Appeal based in Riverside ruled that Luis Bolanos' tale of an angry late-night outburst by his wife, initiated by an emergency call from a female deputy district attorney, did not withstand scrutiny.

"The record demonstrates that Bolanos, a criminal investigator, knowingly made false statements to the family law court for which action he was terminated from his employment," wrote Associate Justice Barton C. Gaut.

A sworn peace officer with a false statement on his record is a liability, district attorney's office supervisors said during Bolanos' fight to regain his job.

Defendants have a right to know if any officer involved in their case has a history of making such statements. They can use that to attack credibility.

A call to Bolanos' appellate attorney was not returned.

Given what's happened under his watch, it's not surprising that San Bernardino County Assessor Bill Postmus is taking a medical leave just about now. It's expected that his departure will pay the way for an eventual disability retirement.

The Press Enterprise Editorial Board stated that he should just resign already.

More details emerging in the case of a former police officer who was shot and killed by New York City Police Department officers.

Officer Jim Simone responds to criticism.

Qantas is a great airline but this isn't how you want the plane to look. The 747-400 landed safely and no one was hurt. This model of airliner has a very good safety record and the 747 is viewed by many airline pilots as the safest jet

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