MOORLACH UPDATE — OIR/Retroactive Anniversary — July 20, 2012

The OC Weekly provides a perspective on civilian oversight, a topic that has been covered in detail this year in my FIVE-YEAR LOOK BACKS.  I make the point that the County’s Office of Independent Review (OIR) does provide a healthy amount of communication and is even improving in this area.  To prove my point, please go to http://www.ocgov.com/ocgov/Office%20of%20Independent%20Review/Reports.  You will find a dozen reports to review that have been prepared by the County’s OIR.

Speaking of FIVE-YEAR LOOK BACKS, five years ago today we started on a journey to address the constitutionality of granting retroactive pension benefits, which created an immediate, enormous debt.  One can only wonder how many of the recent California city Chapter 9 bankruptcy protection filings could have been avoided if our case would have prevailed.

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Calls for Civilian Cop Oversight Continue In Fullerton

A year after Kelly Thomas’ death, the Police Oversight Proposal Committee ask for the formation of a new entity

(The Meek Squad: Despite long odds, calls for civilian review of cops continue on anniversary of Kelly Thomas beating)

By BRANDON FERGUSON

You can’t blame Cal State Fullerton student Maria Hernandez-Figueroa for being nervous in the conference room of the Fullerton Public Library on July 11. At one point, she lost her train of thought and began stammering. Hernandez-Figueroa had good reason to be nervous. After all, her large audience included two Fullerton City Council members as well as Captain Dan Hughes, the city’s acting police chief.

The topic of her speech—comparing various models of civilian oversight of police in the United States—is more than a little dicey, not least because there are so few functioning examples of such agencies. "Civilian oversight committees do exist," insisted Hernandez-Figueroa’s co-presenter, Eduardo Calderon. "Though not in large numbers, all across the country they do exist."

Despite the lackluster nature of civilian review of law enforcement being described at the conference, the sizeable crowd attested to the surge in support for such oversight, at least in troubled Fullerton in the wake of Kelly Thomas‘ beating by six police officers in July 2011. The presentation, moderated by Jarret Lovell, a CSUF professor who has written extensively about civilian review, was hosted by the Police Oversight Proposal Committee (POPC), a group of half a dozen local citizens who met regularly in the wake of Thomas’ death. It hopes to bring a proposal for some sort of oversight before the City Council this year.

Hughes didn’t respond to a request to be interviewed for this story, but Jane Rands, one of POPC’s founders and a systems engineer who ran unsuccessfully for a council seat in the recent recall election, said she has spoken to him about the group’s goals. "He’s of the mind that because of the Police Bill of Rights (POBOR)—and I’m not sure if he’s trying to take a union stance—you can’t have external oversight by citizens," she said.

The POBOR provides for an encyclopedic array of protections for police officers, laying out in specific detail guidelines on everything from the hours of the day an officer under investigation can be interrogated to the privacy protections afforded to officers, including those being disciplined.

"This new entity would pretty much be limited to that amount of information that the police department wishes to make available," says Peter Scheer, executive director of the First Amendment Coalition. His nonprofit organization gives legal advice on a range of topics including access to police records. "A local entity," explained Scheer, "even backed up by an ordinance, would not be able to exercise powers that conflict with the confidentiality safeguards given especially to police officers in state law."

A State Supreme Court ruling known as Copley Press v. San Diego significantly bolstered the POBOR in 2006. The case began three years earlier, when San Diego Union-Tribune reporters were barred from viewing a county Civil Service Commission hearing in which a sheriff’s deputy was appealing termination. Copley Press sued when its public records act requests were denied after the commission asserted confidentiality exemptions.

After the lawsuit worked its way through the judicial system, the high court ruled that the deputy’s identity was exempt from disclosure, even if maintained by a public agency independent from the sheriff’s department. This effectively prevented the public from accessing complaints against police officers. State Bill 1019, written by Senator Gloria Romero (D-Los Angeles), would have overturned the Copley ruling. It passed the state senate in June of 2007, but when it reached the Assembly for a full vote, members of law enforcement, including representatives of the Orange County Sheriff’s Department and the district attorney’s office, showed up in Sacramento to oppose it. The Assembly refused to vote on the bill.

"Police, as a rule, are very uncomfortable with having a lot of civilian presence, especially with mechanisms that could result in discipline," says David Haas, a Long Beach-based civil-rights attorney who attended the presentation. Back in the 1990s, Haas served on the Citizens Law Enforcement Review Board in San Diego. "Police unions are very savvy and alert politically," he added.

Despite the restrictions placed on oversight committees by Copley, the Orange County Board of Supervisors moved forward with a civilian review committee following the 2006 Orange County jailhouse beating death of John Chamberlain. The 41-year-old, suspected of possessing child pornography, was allegedly outed as a pedophile to fellow inmates by a guard. After this revelation, inmates proceeded to mercilessly stomp him to death. In May 2007, the board unanimously approved such a panel, leading to the formation of the Orange County Office of Independent Review (OIR), which today is headed by Stephen J. Connolly.

One of the OIR’s primary functions is to evaluate the fairness and rigor of internal-affairs investigations and advise Sheriff Sandra Hutchens on employee discipline, as well as inform the public of disciplinary outcomes. Before taking over the Orange County office, Connolly spent seven years at the Los Angeles Office of Independent Review, headed by former U.S. Attorney Michael Gennaco. In February, Gennaco presented an interim report to the Fullerton City Council on the city’s police response following Thomas’ beating, in which no evidence of an intent to deceive the public was found.

A key limitation—from the perspective of transparency and accountability, at least—of both Connolly’s and Genacco’s roles vis-a-vis the police is that they adhere to attorney-client privilege when it comes to speaking publicly about the agencies they investigate. "These review boards end up becoming little more than coffee klatches," said Haas.

"Certainly because of the attorney-client privilege, Mr. Connolly has to be cautious [about] what he communicates," countered Orange County Supervisor John Moorlach. "But he does communicate."

Travis Kiger, a Fullerton council member who replaced former Mayor Dick Jones, said he felt the POPC presentation didn’t get to the core question of how to meaningfully achieve greater public oversight of the city’s cops. "They didn’t touch on the more recent issues that have neutered police oversight commissions in the past five or six years," he said, specifically referring to Copley. "Once there’s a report against an officer, it becomes part of their personnel file, and nobody gets to see it. I’m not sure there’s a way around that."

In the weeks following Thomas’ death, the police department refused to release the names of the officers involved. It was only through confidential police sources sharing information with Tony Bushala‘s Friends for Fullerton’s Future blog, to which Kiger contributed before entering politics, that five of the six officers were identified. Following the revelations, all were put on administrative leave.

Rands knows that official opposition to police review could prove to be a major obstacle for POPC. "If we run into a brick wall, then we’ll back down and do it separately from the city," she said, adding that one idea would be to take complaints against police officers directly from citizens.

But Haas says the greatest danger facing Rands’ group is failing to move quickly while civic enthusiasm in Fullerton remains high. "You don’t want to get caught up in delaying tactics," he warns. "There’s a window that’s open because of this terrible event. But it’s not going to stay open forever."

 

FIVE-YEAR LOOK BACKS

July 20

1992

The Daily Pilot printed a plug for an upcoming meeting in their “Around Town” section.  The plug would appear two days later.  Was it only twenty years ago that we did not have to give area codes?

Republican Assembly – The Costa Mesa Republican Assembly, a conservative political group affiliated with the California Republican Assembly, will meet at 7 p.m. July 23 at the home of Brian and Missy Theriot, 2005 Paloma in Costa Mesa.  Police Chief Dave Snowden will be the guest speaker.  For more information, call John Moorlach at 754-1040.

2007

On this day, five years ago, one of the most difficult undertakings that I have pursued officially began. 

My UPDATE stated, “I have been appalled about retroactive pension benefits ever since our 2001-02 Board of Supervisors approved them.  Public employee pension reform has been my passion ever since.  How could five Supervisors approve a debt when new debt needs a two-thirds approval of the voters?

How could they give away so much money?  Isn’t it a gift of public funds?  After we have a chance to educate the members of the media this morning, there may be more informative articles over the weekend.”

Peggy Lowe of the OC Register provided the advance story about my announced press conference in “Supervisor expected to seek cuts in pension plan.”  Here it is in full (along with a photo that appeared in the next day’s edition).

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Supervisor John Moorlach is expected to announce today that he will seek a pension overhaul that will slice public-safety employees’ benefits by one-third, a move applauded by some top Republicans but one that will be deepen Moorlach’s divisions with the unions.

The announcement, described by several in the county’s central offices here as a political "nuclear bomb," is scheduled for an 11 a.m. news conference. The push by Moorlach, long a critic of what he says are generous pensions for county workers, will infuriate labor leaders, who are in negotiation with the county for new contracts.

On the chopping block is the "3 percent at 50," a pension formula that has applied to sheriff’s deputies and District Attorney’s Office investigators since 2002. Sources close to the negotiations told The Orange County Register that Moorlach will soon try to replace that formula with one that would cut any retirement benefits received before 2002 to 2 percent at 50.

Moorlach, who refused to comment for this story, will reportedly argue that the benefit violates several provisions of the state constitution. The retroactive benefits that kicked in during 2002 could be considered a payment for past services, which is banned, Moorlach will argue. He may also challenge the benefits as a large debt supervisors illegally approved without voters’ OK.

Specifics of the plan were sketchy Thursday, and more details will be clear at the news conference. If adopted by the five-member Board of Supervisors, the move could affect about 2,800 employees and an estimated 500 retirees. Moorlach is promoting the plan as a way of saving the county hundreds of millions of dollars over time, the sources said.

Wayne Quint, president of the Association of Orange County Deputy Sheriffs, didn’t return phone calls seeking comment.

Moorlach’s battle with the unions intensified last year after the deputies union endorsed and helped finance his challenger. After the election Moorlach called union leaders "thugs," then quickly called for an audit of a multimillion-dollar health-insurance fund administered by union leaders. He said the deputies should accept the same cuts on retiree medical benefits that other employees took last year.

Union leaders fired back, sending 870 signed letters to Supervisor Chris Norby, the board’s chairman, asking him to bar Moorlach from attending law-enforcement functions and funerals. During a dramatic board meeting in January, uniformed deputies showed up in force and told the board that being called thugs was irresponsible and demoralizing.

Skyrocketing public pension costs have gained attention across California, and many are urging state and local governments to trim the benefits or change how they are funded.

In December Gov. Arnold Schwarzenegger appointed a 12-member commission to identify how much the governments owe and suggest ways to fund the benefit programs. Orange County faces a $2 billion deficit in its pension system and $1.3 billion for retiree’s medical benefits.

Rich Wagner, president of the Lincoln Club, a group of GOP power brokers, said he hadn’t heard of Moorlach’s plan. But the county’s unfunded liability is "irresponsible" and shouldn’t be left for future generations to pay with their taxes, he said.

"Whatever is done, it’s prudent for the supervisors to take a look at the cause of that and what should be done for the future," he said.

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