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

Wednesday, July 14, 2010

River City: The Mystery of the Reappearing At Will Contracts

"If there's a need for (the records request), I don't have any issue with it, but if it's just trying to catch you in something you're doing ... then I might have an issue with it."

---Riverside Councilwoman Nancy Hart to the Press Enterprise saying one thing and explaining through her comments exactly what one serious problem is with City Hall.
That the decision whether or not to obey or violate state laws is apparently to be made on a case by case basis.

"The city is not a private entity. We need to remember that and be as responsive as possible."

---Councilman Mike Gardner to Press Enterprise and he's right. The city needs to abide by the state laws pertaining to the preservation and release of public records. Now what does the city council and mayor plan to do to make sure these laws are upheld within the halls?

Brad Hudson, City Manager and Magician

The Apprentice Of Public Records and Post It Disposal

This article was very timely by the Press Enterprise as something very interesting happened towards the end of the June 13 city council meeting at Riverside's City Hall involving the release of public records by City Hall. The article written by two reporters details the mixed record of the city's provision of public records not only to the publication in the past few months but to whomever asks for them. Meaning they get a quick response on some topics, and no response on others. It's a useful primer while perusing the history of the publication's document request and responses to find what subject areas of the city are perhaps more sensitive than others.

The California Public Records Act is one of the tools that residents of cities, counties and the state have to ensure that they have the information about their elected governments which represent and serve them. These documents and their storage is paid for by the general funds that are generated through tax revenues including those for properties and sales. Whether you're a resident of a city, a political candidate or the leader of a labor union, this law is your right to obtain public documents. But its enforcement in Riverside appears to be somewhat..mixed. Though it's interesting with all the legal muscle that a major publication like the Press Enterprise has at its disposal, that it still has problems getting some public information from Riverside's City Hall. It's actually much harder for city residents who don't have these tools in their arsenal.

However, any issues pertaining to the city's abidance of the CPRA isn't really all that surprising when you read the disparate opinions on the law and its enforcement by two of Riverside's own elected officials quoted above from the Press Enterprise article. One, Mike Gardner, says that it should be obeyed by a public agency like the city, the other, Nancy Hart, implies in her comments that it should depend on the intent of the person requesting the document. And Hart's comments attracted quite a bit of attention and comments from people who read the article including those who believe that her attitude on transparency of public records reflects concern by elected officials not so much in the revelations of troubling incidents inside City Hall but rather towards those who are trying to uncover more information including through CPRA to find out the extent of such disturbing behavior. It's not clear whether Hart's just not clear on the application and text of the CPRA or whether she's more upset at City Hall's critics than she is at the disturbing and even illegal actions taking place on her watch.

At the June 13 meeting, I had addressed the issue of the currently proposed "at will" contracts for the assistant and deputy police chief positions if they come outside, particularly who they will serve at the will of, the police chief or City Hall. There were a lot of comments in the newspaper article on these appointments serving at the will of the chief of course and also in the preamble of the agenda item's narrative but this language wasn't actually included on any single items of the backup material or in the classifications document itself. Hudson responded when requested in a way that's somewhat patronizing how everything's a misstatement including apparently former Chief Russ Leach didn't really say that he thought the contracted positions were at will to the city manager. Even though Leach said just this while sworn under oath during a deposition he gave during a lawsuit filed against the city.

But then Hudson's helpful comments moved in a much more interesting direction and that's when he began talking about the contracts given to former Deputy Chief Pete Esquivel and outgoing Asst. Chief John DeLaRosa in 2007. He said that the current contracts being proposed were identical to those in 2007 and the two contracts done in 2007 were available in his office for public review!

That's awesome, but come again?

The reason that it's awesome news should be self-explanatory. The reason why it was so interesting is that when at least one party submitted a California Public Records Act request for these same two contracts in May 2007, they were told by the city attorney that a search revealed no documents. Those seeking them appeared to believe it was because the city might be claiming that they were in "draft" form and thus not releasable under CPRA (where the limitation only applies to preliminary drafts). Which would kind of silly really for the city to claim that the contracts were mere drafts because why then would two management employees in the police department sign legally binding contracts that were not the final product? Is the act of signing "drafts" particularly "preliminary drafts" what's called a practice run or a rehearsal before the *real* contracts are signed by employees?

Any competent city management team would laugh at the mere thought of having employees sign drafts, even preliminary drafts and Esquivel testified through a deposition that yes, he did sign a contract for the at will deputy chief position so the contract pertaining to him certainly existed at that point which would have been in early March 2007. The contact like that involving DeLaRosa was later declared null and void because the city management and city government failed to abide by the appropriate process of reclassifying city positions. But being rendered null and void because it's not a legal contract doesn't preclude it from being releasable according to the CPRA if it's requested from City Hall.

It appears from documentation that the written request for contracts given to Esquivel and DeLaRosa in March 2007 were made at least twice. In late March/early April and then later in May. Both received responses saying that the documents requested, the contracts, essentially didn't exist or couldn't be found.

City Attorney Gregory Priamos clearly stated in a May 11, 2007 response letter on the second CPRA request that after a careful search, he didn't find any documents responsive to the request, which is a fancy way of saying that the city's denying that the documents, in this case the two employment contracts, didn't exist. But as became clear at the city council meeting through Hudson's own comments, what Priamos wrote in the letter didn't state the facts clearly.

Okay, so in 2007 the contracts in question didn't exist and weren't accessible to the public for review because you can't review something that can't be found or doesn't exist, right? Flash forward to June 2010 and poof, the contracts magically appear and not so magically, have been sitting in Hudson's office this entire time? That's quite a feat but it's more probable that the status of the documents hasn't changed just the stories told about their existence.

[This is a copy of a May 11, 2007 letter written by City Attorney Gregory Priamos in response to a CPRA request in relation to the two 2007 at will contracts involving Esquival and DeLaRosa. At its bottom, Priamos states that after careful search, these records couldn't be found.]

[A closer look at where "no documents responsive" appears just above Priamos' signature.]

[City Attorney Gregory Priamos (r.) denied several CPRA requests submitted in the spring of 2007 regarding the at will contracts of Pete Esquivel and John DeLaRosa stating that no such documents could be found. However, the contracts are currently sitting in Hudson's office awaiting public perusal three years later, having been found at last.]

There's also a response from the author of the CPRA request, an attorney who wrote on April 5, 2007 that an earlier CPRA request had received a similar response from Priamos' office. A more expansive CPRA request was submitted through Priamos to the city as a result according to that earlier correspondence not that it yielded any public records.

So there's two public employees who both work for the city council, Hudson and Priamos who both at different times have provided disparate accounts of whether or not the 2007 at will contracts exist or not. To attempt to clarify the issue, I have addressed the city council with the following email. It's been carbon copied to Chief Sergio Diaz, Hudson and the Riverside Police Officers' Association as there's no known contact address for the leadership of the Riverside Police Administrators' Association.

I attended the city council meeting on June 13 to address specific issues pertaining to the at will contracts being offered to any assistant and deputy chiefs hired outside the city. I am aware that Mr. Hudson referred to my comments as misstatements however I'm more than willing to provide documentation on the points I did raise during my three minutes on the dais. Several current and past city council members were very aware of the confusion and concerns during that period of time. In fact, Mr. Adams was instrumental in addressing it with Priamos and others when it first arose and their combined efforts helped bring it from behind closed doors to a public forum where it belonged. They are to be commended for doing that. Because much of the public and perhaps employees as well were left in the dark on a very important issue.

There's documentation of that as well.

I have to admit that I was delighted if somewhat surprised to hear that the two at will contracts involving Pete Esquivel and John DeLaRosa are currently in the possession of Mr. Hudson and are available for public perusal. That's very nice of Mr. Hudson to add his perspective on the issue of the availability of those public documents at this date and time.

I will certainly be taking him up on his generous offer to receive copies of both contracts as well as any current ones when they are releasable to the public. I am surprised however because I have a trail of written documents back and forth between the office of City Attorney Gregory Priamos and a party requesting those contracts where Priamos states that such documents were unable to be found after a careful search. So it's not clear at this point why the documents that are now in Hudson's office and available to the public apparently didn't exist in the spring of 2007, according to letters generated by Priamos' office to an attorney that I believe represented one of the two police associations.

I believe the issue of the documents not being available to the public because they were "drafts" might have been raised but that seems erroneous on its face because it would seem highly unlikely that city employees including those in management would be asked by city management to sign legally binding labor contracts that were "drafts" (which are allowable for release under CPRA) or "preliminary drafts". The timing of Mr. Hudson's helpful comments was nice given the article in the Press Enterprise written by reporters David Danelski and Alicia Robertson on the city's record of releasing public records. Some of you sitting on the dais made comments on that article on whether or not the city should release public documents which helped provide some useful perspective on the issue.

It would be perhaps a thoughtful gesture if the city management office made the same magnanimous gesture of making the at will contracts from 2007 available to the leadership of both police associations and anyone else who asked for them back then if it hasn't done so already. I believe that at least the RPAA made several formal requests for this information in the spring of 2007 and were told by Priamos no documents existed in writing. Now that this is clearly no longer the case and these contracts have been diligently located or relocated, that might be an appropriate action to take in the interest of transparency. If they requested the contracts pursuant to CPRA, then they have the legal right to receive and view them. This would pertain to any similar requests which were made by media outlets including the Press Enterprise if they made similar requests with similar responses. I assume that Chief Diaz has already received copies of those 2007 contracts as the templates they were implied by Hudson's public remarks to be to any 2010 contracts.

I do not have an issue with the concept of the current at-will contracts although I am somewhat concerned by the confusion that has now arisen as to why there were different accounts provided by two of the city council's direct employees as to whether or not those 2007 at will contracts existed or not. That and the fact that there was nothing in the written backup involving that agenda item (besides its front page summary) where it stated in writing whose will the employees would serve. And given the unfortunate chain of events in 2007, the public and I'm sure city employees need the assurance in writing that the two employees will be serving at the will of the police chief not the will of the city manager's office or anyone else at City Hall. For those of you who weren't on the dais in March 2007, you can probably still view or listen to that archived meeting from March 27, 2007 and see and hear for yourself what happened.

I don't oppose hiring upper management positions from outside the department and that's mainly because the department is experiencing a dearth of upper management personnel due to retirements and in large part to unfortunate practices at the time which fostered an environment of intense competition and conflict rather than collaboration and team work environment. When the lobbying skills or personal or political relationships with elected officials of prospective management candidates become more important than other skills actually associated with good and sound management including leadership, good interpersonal communication skills, accountability, broad experience, good organizational skills and good relationship with the communities served by the police, then you have serious problems. There's enough documentation to strongly indicate that these problems existed dating to at least 2005 and possibly earlier. Hopefully enough awareness has been raised by different parties to assure that these destructive patterns have been broken and replaced with more constructive and positive pattern and practice for building current and future management teams inside the department. But then again, we shall see over time whether or not that's the case.

The department has suffered from that way of doing business too long and has essentially been left with very little at the top and a sizable gap between upper management and the many talented and committed individuals who could be great leaders and managers if the department's upper management employees including its chief actively mentored rather than did the opposite. That roster of promising future leaders is also racially and genderly diverse as the current lieutenant and sergeant candidate lists attest to particularly with good representation of women at or near the top.

It is hopeful that Chief Diaz' considerable experience in this area of mentoring while at the LAPD will be put to great use here and that he has the freedom to do what he was hired to do.

Hiring from outside as I said will also not cause further depletion of the supervisory and officer ranks, which are all at critically low levels as would promoting within. That's not "misstatement" that's fact that these staffing deficiencies exist. The solutions to deal with these issues including rotating lieutenants in other assignments to serve as watch commanders is short-term at best. At worst, as we've seen, it's a recipe for serious problems including potential critical incidents. The department's patrol division is still young, relatively inexperienced and will continue to be so if more officers are hired (which is also very important as their levels are getting critically low too). In recent months, the city council's been very responsive to these issues which is a good sign of progress. The applying for COPS grant money for 15 positions is a good action and hopefully one which will bear more fruit this time. But more officer positions will be necessary to 1) address the shortages and also the needs of a growing city and 2) to offset tapping into the available officer level pool by upper level promotions due in part to existing MOUs with the city and union impacting the filling of vacant positions.

In conclusion, I will be requesting the copies of both the 2007 contracts as well as any 2010 contracts in hopes of making comparisons to see if as Mr. Hudson said on June 13 that they are as identical as he said and also to see in writing who the new employees if hired will be "at will" to.

Thank you for your time, and Mr. Hudson's generosity,

It would really be able to put the latest mystery to unfold at City Hall, the Mystery of the Reappearing At Will Contracts into the "solved" column. So I could like turn into Little Miss Sunshine and start writing about the gorgeous city council logo now adorning the wall inside the chambers, with one star apiece for the seven colonies of Riverside!

(It needs a little bit more orange...)

The Buck Stops at Supervision?

People addressed the situation involving the alleged demotion of Lt. Leon Phillips to sergeant at the city council meeting. There's not much to say about it except that it's a lesson plan in where the buck (meaning the responsibility) stops in Riverside which as far as the Feb. 8 incident involving Leach went, was somewhere at the supervisory level. After all, Phillips is the officer who most likely will retire at a lower salary than he was before the incident where management personnel above him including former Chief Russ Leach and outgoing Asst. Chief John DeLaRosa will retire with retirements at their current salaries. Phillips should receive disciplinary action for the role he played in the incident but for him to have the book thrown at him so to speak and the management personnel above him including those who broke the law getting lesser discipline and/or options to receive full retirements in lieu of disciplinary action just sends the message very loud and clearly that there's little or no accountability for the decisions made at the management level. It remains to be seen whether that this culture will change.

A member of the Riverside Unified School District school board wants more assistance from Riverside in paying for police as is the case with the Alvord Unified School District.

What's to happen to Riverside County's automobile perks? Drop them.

Riverside's Public Utilities Director Dave Wright won't be heading to Austin to direct its public utilities preferring to stay in Riverside. He was one of two finalists for the position.

[Five robbery/homicide detectives from the Riverside Police Department were honored by Chief Sergio Diaz and the city government for solving a robbery case at the meeting on June 13. These detectives had spent many years working in one of the department's most demanding assignments particularly Steve Shumway who's specialized in solving cold cases.]

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