Today’s West County Times carried a story of a tempestuous meeting of the Police Commission wherein a couple of city officials reportedly criticized me for quoting in an E-FORUM a memo from three police commissioners expressing dissatisfaction with the performance of Chief Samuels (TOM BUTT E-FORUM 10/5/02). For the record, the subject E-FORUM also offered a balanced assessment of the performance of the chief, providing a summary of both praise and criticism.

Consider the following:

• We City Council members receive a packet of documents every Friday evening that includes hundreds, if not thousands, of sheets of paper, including the entire City Council agenda and all back-up documentation, magazines, letters, invitations, copies of email, etc. There is no way that I, or anyone else, can ascertain if any particular document is intended to be confidential unless it is so marked. In this case, the memos criticizing Chief Samuels were not marked “confidential.”

• Even when documents are marked “confidential,” they often are not legally confidential. The use of “confidentiality” is often abused by City staff who believe that anything they don’t want the public to know deserves to be confidential. It is often used frivolously. For example, I received an envelope a couple of weeks ago marked “confidential” with meeting minutes in it.

• The city attorney has never provided the City Council with any detailed information on the legal requirements for confidentiality of information received pursuant to being a City Council member. Apparently, this is better left murky so that the perception can be manipulated at will. Even in the current controversy, no one has pointed out to me any specific law that has been broken.

• The city attorney and other senior City staff members have always been obsessed with secreting public information. When faced with a public information request under either the California Public Records Act or Richmond’s own Public Information Ordinance RMC 2.40 (http://bpc.iserver.net/codes/richmond/index.htm). The City has routinely fought legitimate requests for public information on many occasions and lost hundreds of thousands of dollars in litigation brought by persistent news media seeking public information.

• What is discussed legitimately in executive session regarding litigation, real estate negotiation and personnel matters is generally held to be confidential, and I concur. Often, however, executive session are used, in violation of the Brown Act, to discuss items that are not legitimately confidential. A common ploy is to “open the door” after an executive session in the Shimada Room to share information with the entire City Council that is sensitive or unpleasant but not confidential. Of course, no one else is around to hear it. Legitimate confidential information is defined by Government Code Section 6254(c), the exemption for names and addresses of crime victims in Government Code Section 6254(f)(2), the exemption for taxpayer information in Government Code Section 6254(i), any confidentiality or privilege statute referenced under Government Code Section 6254(k) under which the subject of the record would have access to the record under the Information Practices Act (Civil Code Sections 1798, et seq.), the exemption for personal financial data in Government Code Section 6254(n).

The sources of the memos were not some anonymous disgruntled citizen. Believe me, I get a number of those but would never consider publicly distributing them. The sources were three highly regarded Richmond citizens selected by the mayor and ratified by the City Council to represent 100,000 Richmond residents and to “advise the City Council, City Manager and Chief of Police on all matters pertaining to the administration of the Richmond Police Department.” Although the memos were not an act of the commission, they came from a reliable sources within the commission.

Because no reliable guidance has come from the city attorney about how City Council members should handle confidentiality of information that, like these memos, comes in my packet assembled at City Hall, I have developed my own rules:

1. If someone thinks it should be confidential, it should be so marked.
2. If a City staff member marks it “confidential,” the reason and legal basis should be cited.
3. Otherwise, I will consider it public information.

If a member of the public approaches me with information and tells me that they do not want the source revealed, I will always, barring some legal reason, honor that request.

What is really at the bottom of the criticism aimed at me is that no one, including public servants, likes to read unpleasant things about themselves in the newspaper. That’s simply human nature. However, when you go to work for the public, public scrutiny goes with the territory. When a majority of Richmond citizens tell me that they no longer want to hear anything unpleasant about the people who work for them, I will hang it up.

Richmond officials upset over memo criticizing chief
Councilman Tom Butt circulated allegations by a trio of commissioners that slammed top cop Joseph Samuels Jr.
By Karl Fischer
CONTRA COSTA TIMES
Posted on Fri, Nov. 08, 2002
Reach Karl Fischer at 510-262-2728 or kfischer@cctimes.com.

RICHMOND - A month-long row over police misconduct allegations aired in an e-mail forum left the chief offended, the police union fuming, police commissioners complaining and the city manager, in his words, trying to "referee."
All parties crossed paths Wednesday night in a small basement room at City Hall.
"A word of advice to the police commissioners," City Manager Isiah Turner said at the panel's monthly meeting. "In the future, stamp 'confidential' on anything you send to the City Council."
The advice came one month after City Councilman Tom Butt circulated on his political e-mail forum a memo written by three commissioners that slammed Chief Joseph Samuels Jr. and reported an alarming increase in citizen complaints against officers.
The three commissioners who signed the memo said Wednesday they didn't intend it for public consumption. Not every council member saw it that way, said Turner.
"That's how the laundry got aired to the greater Bay Area," he noted.
After two raucous City Council meetings -- one packed with residents complaining about police and another packed with police supporting the chief -- public furor over Butt's disclosure is waning but involved parties are consulting their attorneys.
"These guys are absolutely, totally wrong. Some of my colleagues have been coming down on me for doing this ... but all I have to say is they're absolutely wrong," Butt said on Thursday. "That is public information and if people didn't want it to be public they shouldn't have sent it to me."
The Richmond Police Officers Association claims the memo included personnel information that by law may not be released. The commission, appointed by the City Council, is a citizens' panel that investigates claims of excessive force and civil rights violations leveled against police.
"I don't really believe the way to handle these issues are through the press, e-mail, rumors, innuendo," said Sgt. Alec Griffin, the union president. "We need to do something to fix the process so it doesn't happen again."
Samuels, meanwhile, said he didn't care much for certain characterizations in the memo, but wants to work on his relations with the commission.
"Frankly, I was offended by some of what became public, but I've learned in this business that you need to rise above ... taking professional disagreements personally," Samuels said.
Butt distributed the memo to subscribers of his e-mail group in a message titled, "A Chief's Chief or a Disappointment?"
The memo expressed the three commissioners' frustration with Samuels and includes:
• Allegations officers threatened to file false reports, had sex while on duty, and ignored claims of repeated acts of brutality.
• Claims that Samuels does not have day-to-day knowledge of the department, hides in his office, and does not know all of his employees.
• An unverified statement that the number of claims against the city stemming from police misconduct has tripled since Samuels became chief.
Although the descriptions of alleged misconduct did not include the officers' names, Griffin said there was enough information in some cases for others in the department to identify them. Some of the claims in the memo were fabricated, he added.
"It's just not true. That's the bottom line," Griffin said of an assertion in the memo that Samuels hired an officer only to fire him three months later upon learning he was a convicted felon. "And I'm concerned because it paints (Richmond police) with a broad brush ... that we're doing something wrong."
Commission chairman Bob Sutcliffe, meanwhile, had his own ax to grind with Griffin.
The City Council unanimously re-appointed Sutcliffe to another term on Tuesday, but not before Griffin and other officers implored the council to hold off until it determined who was responsible for releasing the memo.
Sutcliffe, one of the commissioners who signed the memo, views some of their comments as personal attacks.
"I didn't feel comfortable. I didn't think what happened was appropriate. I'm a private citizen. As the POA leader, you have no right to impugn me as a private citizen. It was wrong," he told Griffin.
Turner said he and every council member except Butt viewed the memo as confidential and that the culpability for its release lies with him.
"It's not on you," Turner told the commission. "It's on Butt. Period. Butt is the one who put this in the daylight when we all wanted to deal with it in-house. But that's the past. Let's move on to the future."
Butt didn't see the problem with "daylight."
"That's news when one-third of the police commission goes on record saying they have no confidence in the police chief," he said. "They'd be doubly peeved if I published all the comments I received (about the memo). There are a lot of unhappy people out there, and a lot of them are police officers."
Turner said he plans to attend more commission meetings in the future.
"There's going to be inherent tension between any type of oversight committee and the police department. It's a given that they're going to disagree about some things," Turner said. "But I don't see no need for us to fall out."