By Gerry Bill
The ongoing saga of the missing report of Fresno’s Office of Independent Review (OIR) just keeps getting stranger. The latest from the City Manager’s Office is that the report we keep asking for doesn’t even exist! There must be something in that report that they really don’t want the public to see.
The “does not exist” argument was used by the City in a pending court case brought by relatives of Steven Anthony Vargas, who was shot to death by the Fresno police in October 2009. The plaintiffs in the suit asked the City to produce the report because they believed it contained a review of the police department’s investigation into the shooting. The City argued successfully in court that the report does not actually exist. To quote U.S. District Court Judge Barbara McAuliffe in her Oct. 20 judgment favoring the City, “defendants present evidence that a ‘2010 Annual Report’ does not exist in that the report is a draft report submitted for the year 2011.”
Of course, there is ample evidence that a report of some kind does exist—the judge’s statement acknowledges that a report exists in draft form. In fact, the report in question was submitted to the city manager by Eddie Aubrey last April when he was still the head of the OIR. Whether something in that report led to Aubrey’s dismissal we don’t know, but not long after the submission of the report the office was defunded and Aubrey was laid off on June 30.
The City has, on numerous occasions, acknowledged having received Aubrey’s report. Individuals and organizations that have asked to see the report have routinely been told that the report is not yet ready, is still in draft form and is “incomplete.” In fact, a California Public Records Act request was submitted to the City by the Community Alliance on Sept. 8. On Sept. 22, City Manager Mark Scott replied to the request by saying “we don’t have a report yet to release. I would hope maybe two more weeks and it will be done. I’ll get it to you immediately when it is released.” As we went to press more than a month after Scott’s promise, the report still had not been released.
Not yet done? Incomplete? What might it mean to say that the report is incomplete? Police Chief Jerry Dyer, who has no authority over the OIR or over how the report is handled, weighed in on the subject at a Chief’s Advisory Board meeting on Sept. 22. He said “Incomplete in whose eyes?” He went on to say that incomplete could mean there is not enough detail in the report, but it could also mean that there is too much detail in the report.
Could “too much detail” be behind the City’s reluctance to release the report? Does the report identify by name officers who have misbehaved, or does it provide detailed evidence of serious police wrongdoing? Such a scenario is not likely—Aubrey knows the law and knows not to reveal those kinds of details.
To head off potential lawsuits, reports from the OIR have to be vetted by the city’s attorney before they are made public. Aubrey claims he went though that vetting process and completed it successfully. Furthermore, he denies that the report itself is incomplete. In a Sept. 19 e-mail titled “Letter to Stakeholders,” Aubrey explains his side of the story. He says that he submitted a complete and vetted report to the city manager in April and was prepared to present it to the City Council and to the public in May. The presentation never happened, and Aubrey was laid off instead. Aubrey’s letter to stakeholders lays out a lot of detail about the vetting process.
The reports were submitted in compliance with confidentiality laws and the Peace Officer Bill of Rights. The audit reports and audits of officer-involved shooting reports were reviewed and approved by the City Attorney’s office for compliance with confidentiality laws and the Peace Officer Bill of Rights prior to submission in April. Additionally, the audit reports were written in the same manner and in accordance with best practices of other published reports from California Police Oversight Offices. Therefore when submitted in April, all reports were complete and within the confines of the law, complied with confidentiality issues, followed best practices and conformed to the Peace Officer Bill of Rights.
Not long after the release of his letter to stakeholders, Aubrey volunteered to come work for the City for free to help with any final touching up that might be required. His offer was reported in the Fresno Bee on Sept. 23. In the same article, City Manager Scott was quoted as saying that public release of the report is behind schedule, adding that “there are still elements that require completion.” At least Scott was acknowledging that the report exists, even if he won’t release it. Will he accept Aubrey’s offer to help with the “completion” of the project? Probably not, at least not if the real purpose of the delay is to give the City time to defang the report.
Finally, on Oct. 7, two of the groups that had lobbied for more than 10 years for meaningful police oversight in Fresno held a press conference in front of City Hall. In a joint statement, the Central California Criminal Justice Committee (CCCJC) and the Fresno Chapter of the ACLU pointed out that they once had been promised the report would be released in June. Months went by, and no report was forthcoming. The two groups demanded that the report be released by Oct. 14. Of course, nothing has happened. The groups are following up the press conference by scheduling visits to each City Council member, hoping to find one who would be willing to put the matter on the Council agenda.
What is the City hoping to accomplish with this inane shell game? Perhaps they are hoping that public interest will fade and that they can just keep the report in draft form forever. There must be something in there that they really do not want us to see.
We can learn something of what might be in the report by looking at Aubrey’s midyear report that had been submitted on Oct. 7, 2010. The report criticized the City for being slow to investigate officer-involved shootings and in-custody deaths. When Aubrey came on board in December 2009 he found there was a backlog of 46 such cases going back to 2004 for which investigations had never been completed. He said Fresno’s closure rate was “inordinately long,” averaging 39.6 months. By way of comparison, he said San Diego closes its investigations in an average of 7.6 months, and the Los Angeles Sheriff’s Department average is 9 months.
Has that situation gotten better, worse or stayed the same? The undisclosed report might tell us, if we ever get to see it. Also in last year’s report were the results of an independent survey of public confidence in the Fresno Police Department. It found that public confidence in the department stood at 68%, well below the national average of 80%. The survey has since been repeated. Does the City have an interest in hiding the results of that survey from us as well? Does it show no improvement in public confidence? How are we to know?
Perhaps the most damaging finding in Aubrey’s previous report was that hundreds of citizens’ complaints were being lost down the memory hole. There was no system for logging in complaints. More than 80% of complaints were never assigned a number that could be used to track them. Citizens who telephoned to learn the status of their complaints were told that their complaints did not exist. Sound familiar? Aubrey recommended that the City purchase some readily available computer software that would track complaints. Did that software ever get purchased? Are complaints now being recorded and tracked properly? How are we to know?
Of course, the secret annual report that we have not been allowed to see might raise new concerns as well. It is the OIR’s job, after all, to find weaknesses in the system and to suggest ways of addressing those weaknesses. Perhaps the City does not want its dirty laundry aired in public. However, critics are claiming that this lack of transparency makes it even harder for the public to have much confidence in their police department.
Could the City’s reluctance to air its dirty laundry be the reason it wanted to get rid of Aubrey? We know the police union did not want there to be an OIR and tried to negotiate it out of existence. Perhaps they were successful.
A strange twist that has been added to all of this is a Grand Jury report that was released in June, also shortly before Aubrey’s termination. The report did not criticize Aubrey’s office for doing too much to oversee the police, but for doing too little. It did not blame Aubrey personally. Instead, it acknowledged that Aubrey’s hands were tied by the way the office was set up by the City—a situation that the Grand Jury said needed to be changed.
The Fresno Office of Independent Review appears to be a symbolic attempt by City leaders to demonstrate to the public that an unbiased, independent review body monitors police activities. In reality, the OIR has no authority to conduct an independent investigation; it merely reviews completed Police Department internal investigations. As a result of the decision by the DA’s office to discontinue their investigation of officer-involved shootings and in-custody deaths, there is no independent oversight.
The Grand Jury report went on to make the following recommendation.
As the DA does not investigate OIS/ICD incidents, it is crucial the OIR be given the authority to conduct its own independent investigation with the power to subpoena.
Indeed, citizens’ groups like the CCCJC and the ACLU are urging the City to follow the advice of the Grand Jury and establish a new oversight body with both investigative and subpoena powers. If we are going to have meaningful police oversight in this town, something like that will have to happen.
Meanwhile, we can’t even look at the work done by the previous OIR, which had very limited powers to start with. The report doesn’t even exist, as far as the City is concerned. Maybe the City thinks that if the report doesn’t exist, then the problems in the police department don’t exist either.
Think again, City!
Gerry Bill is professor emeritus of sociology and American studies at Fresno City College and is on the boards of the Fresno Free College Foundation, Peace Fresno and the Fresno Center for Nonviolence. He is co-chair of the Central California Criminal Justice Committee and is a long-time activist in Fresno.