From: Monterey County Weekly
By: Mary Duann, 2/28/2019
IN DEL REY OAKS, THERE WAS A BIG PROBLEM BREWING. at the tiny police department that serves the equally tiny city sandwiched between Seaside and Monterey.
It went beyond the fact that, for years, the department functioned as a weekend warrior camp for a bunch of guys interested in being reserve cops so they could amass assault weapons and ammunition they couldn’t legally buy as members of the public. It went beyond the fact that one of those guys, the heir to a railroad fortune, funded the acquisition and refurbishment of a Mine Resistant Ambush Protected vehicle, or MRAP, from the U.S. Department of Defense to use as a SWAT vehicle in a city that hadn’t seen a murder since 2002 and had only 16 robberies total between 2002 and 2016.
Something was amiss. And it was amiss enough that newly hired City Manager Dino Pick, a retired Army colonel, special forces officer and commandant of the Defense Language Institute, took action.
And just a month before that, in April, Pick put police Sgt. Bob Ingersoll on paid administrative leave pending outcome of an investigation – he said at the time – by the Monterey County District Attorney’s office. What they were investigating has never been made clear, but Chief Assistant District Attorney Berkley Brannon says now that there was no direct investigation of Ingersoll and adds, “We never found evidence Bob Ingersoll committed any crime when he was employed with the Del Rey Oaks Police Department.”
But there was an internal investigation. That much was made clear in a claim and subsequent civil rights lawsuit filed Jan. 22 in Monterey County Superior Court by Ingersoll’s attorneys against the city and Pick.
As laid out in that suit, Ingersoll was hired as a paid reserve officer in November 2004, hired as a full-time police officer in 2013 and then promoted by Langford to sergeant in November 2016.
Then came Pick and then came April 2017 when Ingersoll was put on leave.
The October after Pick put Ingersoll on leave, he notified Ingersoll that an internal affairs investigation into allegations of workplace misconduct had been launched against him.
It was a slow-moving process. In February 2018, new Police Chief Jeff Hoyne sent Pick his recommendations for disciplinary action. Pick then sent Ingersoll a letter stating that misconduct allegations had been sustained and he was facing termination from the department. Following a Skelly hearing – a procedure in which a public employee learns about allegations against them and has an opportunity to refute or mitigate them, or rehabilitate their standing with their employer before any disciplinary action is taken – Ingersoll was fired on March 1, 2018.
In his lawsuit, Ingersoll references misconduct that took place in the past. “The allegations in the administrative complaint… were so vague as to constitute a denial of due process,” the suit states. “Further, many, if not most, of the allegations were alleged to have occurred at times well beyond the statute of limitations found within the public safety officer procedural bill of rights.”
Even if the allegations were true, it states, that alleged misconduct is so old there’s nothing Del Rey Oaks could do about it.
A search of public records shows that in 1991, Ingersoll pleaded guilty in federal court to a misdemeanor charge of violating a citizen’s civil rights under color of authority, stemming from a 1989 incident in which a black citizen was accosted and assaulted by police and which occurred when Ingersoll was an officer with the Seaside Police Department.
“I DIDN’T APPRECIATE HOW BROADLY THEY WOULD TRY TO ATTACK IT.”
Following his plea, Ingersoll was fined $1,000, ordered to serve two months on home confinement, placed on five years supervised probation and ordered to participate in an alcohol dependency program. And he was barred from employment involving all law enforcement work, including private security, for the term of his probation.
Based on a new law that took effect in California on Jan. 1, it would seem the investigation by Del Rey Oaks and the full accounting of what steps were taken to mete out discipline against Ingersoll would be public information, releasable upon request from any member of the public.
But according to Pick, Hoyne and Del Rey Oaks City Attorney Alex Lorca, in their response to a Public Records Act request made by the Weekly for Ingersoll’s disciplinary file, none of the records are subject to disclosure.
“Del Rey Oaks is proceeding to comply with the law. We are in no way interpreting or waiting for interpretations akin to positions taken by others that may take issue with the law,” Pick says. “Our response to the Weekly’s [Public Records Act request] is that there are no releasable records that fall under the provisions laid out in SB 1421.”
To which Ingersoll’s attorney, Marguerite Melo of the firm Melo and Sarsfield, offers a few choice words.
“Can I be frank with you?” she says. “They are full of shit.”
According to Melo, Del Rey Oaks fired Ingersoll for dishonesty related to questions they asked him in 2017 about the 1989 incident that led to his federal conviction. His memory of the events is no longer clear, she says, and most of the witnesses are gone.
That incident, she adds, was highly public at the time and Del Rey Oaks knew about it when they hired him in 2004.
“What they’re claiming he lied about doesn’t even make sense,” she says. “They’ve gotten clever about it. They say it’s not about his conduct now – it’s about how he responded to questions now about conduct that happened in 1989.”
And records related to a sustained finding of dishonesty in the course of doing the job are releasable under SB 1421 – if, that is, Ingersoll had lied in the course of an investigation, or lied about the actions of another officer or lied about evidence on the witness stand.
If he lied about his own actions, it’s just a different ballgame. But this is one of the many loopholes in the new law, which agencies are trying to interpret, sometimes to their advantage.
SB 1421 WAS BORN OUT OF FERGUSON, MISSOURI, WHERE A WHITE POLICE OFFICER IN 2014 SHOT AND KILLED AN UNARMED BLACK TEEN NAMED MICHAEL BROWN. It was born out of Oakland, where a BART cop shot and killed an unarmed 22-year-old black man named Oscar Grant at the Fruitvale Station. It was born out of the Los Angeles Police Department, where more than 70 gang cops in the Rampart Division were implicated in a long list of corruption – from unprovoked shootings and beatings to drug dealing, bank robbery, perjury and cover-ups – in the 1990s. It was born out of Salinas in 2014, a year in which police shot and killed four men, and then refused to release information about the officers involved. And it was born again out of Oakland in 2017, when four police officers were fired and a dozen more disciplined in relation to the sexual assault and trafficking of a teenager who went by the name of Celeste Guap.
As state Sen. Nancy Skinner put it when she introduced SB 1421 in April 2018, California’s existing confidentiality rules about police conduct are among the most secretive in the country. Sponsored by the California News Publishers Association, the ACLU of California, Black Lives Matter and Youth Justice Coalition, among others, Skinner crafted the bill to make records related to officer use of force, on-the-job sexual assault or instances of dishonesty in the course of doing the job available to hiring agencies or members of the public.
“Building trust between police and communities has to start with transparency,” Skinner, a Democrat from Berkeley, says. “SB 1421 ensures that when officers use serious or deadly force, engage in sexual assault or are dishonest in carrying out their duties, the public is informed.”
If there’s confusion or, worse, recalcitrance on the part of government and law enforcement agencies in Monterey County over what documents they can and should make public, it’s easy to understand where that confusion or recalcitrance comes from: Start by looking to the state’s top law enforcement official, Attorney General Xavier Becerra.
On Jan. 1, when SB 1421 went into effect, agencies seemingly fell into two camps: Those that would comply with the law and release applicable records on request, and those that wouldn’t. The California Highway Patrol, for example, is releasing retroactive records, meaning if someone requests records of an incident from five years ago and it falls under sexual assault, dishonesty, an officer-involved shooting or an officer causing great bodily injury, the CHP will make the records public. And that’s as Skinner intended it.
In Inglewood and Long Beach, though, the police departments destroyed years’ worth of records to prevent retroactive release, according to the Sacramento Bee. And in other jurisdictions, police unions have sued to try to stop SB 1421 from taking effect by filing what are called reverse Public Records Act actions.
In all, as of Feb. 5, law enforcement unions have filed court challenges to the law in the city and county of Los Angeles; Orange, Riverside, San Bernardino and Ventura counties; and six municipal agencies in Contra Costa County.
The focus of these suits: retroactivity, and whether agencies have to release records of incidents that occurred before Jan. 1 when the law took effect.
And attorney Michael Rains, who heads the legal defense of peace officers practice group at the law firm Rains Lucia Stern St. Phalle & Silver, maintains that SB 1421 doesn’t apply retroactively.
He represented the San Bernardino County deputy sheriff’s union in its quest to get the state Supreme Court to prevent the release of misconduct and use-of-force records. Rains tried to get the supremes to make a ruling before entering a long appeals process, but the court declined to review the case.
Jim Ewert, general counsel of the California News Publishers Association, says the landscape for how the law is being interpreted is changing quickly.
The CNPA has also intervened in the case filed by the Los Angeles Police Protective League against the city of Los Angeles. The First Amendment Coalition and the ACLU have also opposed or filed opposition briefs in a number of such cases. So far, judges appear to be on the side of those seeking release of records.
On Feb. 19, a Los Angeles Superior Court judge ruled the LAPD had to release records on shootings, use of force and misconduct, even if the events took place before Jan. 1. But the judge also stayed his order until March 1 to give the plaintiffs time to appeal. If they do, it’s likely the case will end up before the state Supreme Court, and agencies across the state are watching closely.
“There’s a provision in the California Public Records Act that says any court rule or statute or law in place has to be interpreted broadly when it favors public access, and interpreted narrowly when it seeks to limit it,” Ewert says. “I knew that retroactivity would be an issue because in the very first letter of opposition, they pointed out they were concerned about the law being retroactive. Way back at the start of the legislative process they knew,” Ewert says. “I didn’t appreciate how broadly they would try to attack it.”
That’s where Becerra comes in.
On Jan. 3, Becerra sent out an information bulletin instructing all state law enforcement agencies to preserve all records that may be subject to disclosure under SB 1421. But in response to a records request from East Bay-based journalist Darwin BondGraham, Becerra has refused to release misconduct files about law enforcement officers who work for his office.
“I KNOW THERE ARE SOME GUYS SHAKING IN THEIR BOOTS WITH THIS NEW LAW.”
“We will not disclose any records that pre-date January 1, 2019 at this time,” Mark Beckington, supervising deputy attorney general, writes in response to BondGraham’s request seeking misconduct complaints and sustained cases of misconduct dating back to 2014 against sworn officers who work at the California Department of Justice. Beckington states that because of cases currently wending their way through the court system, it’s unclear whether agencies, including the state DOJ, have to release records retroactively.
In effect, Becerra – the state’s top law enforcement official – is refusing to obey the law as the legislature passed it. It prompted the First Amendment Coalition to file suit against him earlier this month.
“From what I’ve observed, it would seem some law enforcement agencies are taking a cue from the AG, but no court has ordered his office to hold [back] records,” Skinner says. “Under California law, once a statute is enacted and it’s operative, it’s the law. The only law enforcement agencies now with legitimate justification to be holding records are those in counties where the lower court has ruled.”
At least one organization in Monterey County is following Becerra’s lead.
KEEPING IN MIND THAT SB 1421 HAS ONLY BEEN THE LAW SINCE JAN. 1, here’s how things are shaking out locally: Police officers are talking about it, city managers seem to be cringing about it and most city attorneys and the county counsel’s office have received Public Records Act requests from a variety of news agencies seeking disclosure of previously confidential documents. So far in Monterey County, no individual officer or any union has sought an injunction or filed suit seeking to prevent their agency to release previously confidential information, at least as of Feb. 25.
But even as they’re talking about the ramifications of the law, and how it may be used to tarnish anyone wearing a badge, some seem unaware that local agencies are releasing documents. One officer, who asked not to be identified, says he thought all documents were being withheld by every agency until a court decides on the retroactivity issue.
And another officer, who also asked to remain anonymous because he’s not authorized to speak to the press, said there’s a great deal of fear as to how documents, once released, may be used.
“It’s scary. Any blemish – even though people need to realize that we are humans still – is a black eye for everyone no matter the person, department or state for that matter,” says the officer. “I know there are some guys shaking in their boots with this new law.”
Public records requests to local law enforcement agencies have come from the Weekly, the Los Angeles Times, the Police Surveillance Project and the California News Coalition, a joint project of KQED, the Bay Area News Group and Investigative Studios, a nonprofit affiliated with the investigative reporting program at UC Berkeley. The ACLU of California has also sent PRAs to various jurisdictions in the county, including the cities of Monterey and Salinas.
The Weekly sent PRA requests to the Monterey County Sheriff’s Office and the cities of Monterey, Salinas, Soledad and Del Rey Oaks.
Seaside places all PRA requests – and responses to them – on its website, and documents about several police incidents are posted there.
The city of Monterey asked for additional time (until March 11) to gather documents related to a fatal officer-involved shooting of a man at Portola Plaza in 2017, as well as the shooting in 2017 of an armed man barricaded in an apartment near Del Monte Beach.
Meanwhile, the city of Salinas released documents on more than a dozen incidents, including officer-involved shootings, a case in which a domestic violence suspect died after being shot with a Taser and sustained investigations into dishonesty and sexual assault.
“In my opinion, the legislation is clear as to what the obligation is upon agencies to release records in response to these requests,” says Salinas City Attorney Chris Callihan. “We are following the legislation.”
HERE’S WHAT SOME OF THOSE DOCUMENTS REVEAL: In Salinas, an officer named William Yetter was issued a series of corrective letters stemming from a series of incidents. In one, he crashed his patrol car into a citizen’s car during a chase of a stolen car. In another, he was suspended for 40 hours without pay for failing to turn in 22 reports on time. In another, he was given a letter of reprimand for failing to take a report on a call involving harassment of a juvenile at a school. In another, he responded to a burglar alarm activation by asking a neighbor to unlock the door and turn off the alarm without first making sure a burglar was no longer inside.
In April 2016, then-Chief Kelly McMillin recommended Yetter’s firing for dishonesty, after he failed to investigate a sex assault case involving a 14-year-old developmentally disabled girl and a 22-year-old man found partially clothed in a car that January at Natividad Creek Park.
The situation came to light weeks later, when another officer investigating the sexual assault learned the man had previous contact with Yetter.
Yetter left the department and went to work as a police officer at the Soledad Police Department. He did not respond to an email request for comment.
In a second case, Salinas police responded to a domestic violence call at the home of the ex-wife of a Salinas Police detective. (The Weekly is not using the detective’s name to protect the identities of the alleged victims.)
The incident occurred on Jan. 5, 2018; according to the file provided by the city, the child had tried to prevent his father from assaulting his mother, by shooting at him with a NERF gun and throwing a backpack at him. The child told police his father grabbed him and pinned him to the ceiling before he managed to get away and, at the urging of his mother, the boy ran outside and hid.
The police documented the injuries to the woman. The next day, the detective was served with notice of suspension and an internal affairs investigation was launched. The day after that, he was arrested on suspicion of spousal abuse and child endangerment and booked into Monterey County Jail.
The detective, a 10-year veteran, was served with a restraining order which required him to relinquish his firearms, and according to the police, he lied about the number of weapons he owned – he said he had two, when in reality he had eight registered under his name. He turned them over when the investigator pointed it out. The report also alleges he tried to contact his ex-wife’s grandmother, whose address was also covered by the protective order, and that he tried to contact his ex-wife through social media.
The District Attorney’s Office declined to prosecute either the violence charges or the restraining order violation – then-Assistant District Attorney Jeannine Pacioni, who was sworn in as DA in January, cited insufficient evidence to prove the charges beyond a reasonable doubt as the reason, the police file states.
“This appears to be a very messy and challenging domestic dissolution,” Pacioni wrote in declining prosecution.
In the end, a number of charges made during the internal affairs investigation, including dishonesty, were sustained, and the detective was fired.
Salinas Police Officer Jim Knowlton, president of the Salinas Police Officers Association, says the union membership was unaware the city had started releasing information to the press and ACLU under SB 1421. He’s advising members to check their records – their personnel file, their human resources file, their Internal Affairs file (if they’ve ever been investigated) and their training files – to determine nothing’s there erroneously.
“At end of day, if you look at incidents covered under SB 1421, there aren’t going to be that many files,” Knowlton says. “But once the data is out there, people will be trying to crunch the numbers to prove their narratives. With no context, a lot of these records could be fodder for pushing a narrative or agenda, but whether it’s untruthfulness or being investigated for something off duty, the department takes it seriously.”
And the union wants to develop a process for notifying officers if their records are going to be released.
“I don’t think any of our members have been notified,” Knowlton says. “The problem with not notifying employees is that if an employee wants to seek an injunction, the genie is out of the bottle.”
AT THE MONTEREY COUNTY SHERIFF’S OFFICE, that genie is remaining in the bottle, at least for now. Monterey County Counsel is taking its lead from Becerra and refusing to release records prior to SB 1421 taking effect until the matter is settled in court.
They’ve received requests from the Los Angeles Times, the Weekly and the California News Coalition. In response to the Weekly’s request, the county counsel’s office sent 35 pages of documents and accidentally included inter-office correspondence covered by attorney-client privilege, which they asked the Weekly to disregard.
There’s nothing damning in that correspondence, but in a Jan. 2 email between Deputy County Counsel Susan Blitch, Undersheriff John Mineau and Sheriff’s Capt. John Thornburg, who acts as the department’s media relations officer, the header reads: “They just denied the petition in the San Bernardino case.”
In several emails responding to media PRA requests, the county counsel’s office asks for more time to respond. In others, including one to the Weekly in which information about the firings of two former high-ranking officers, the responses read as follows:
“The County has no responsive records from Jan. 1, 2019 to the present. As to any potentially responsive and disclosable records pre-dating Jan. 1, 2019, the county is in the process of analyzing SB 1421 and reviewing current proceedings on the issue of retroactivity.”
Depending on how courts resolve the retroactivity issue, the letter adds, records may still be exempt from disclosure if they’re covered under attorney-client privilege or are considered privileged communications or if they constitute investigative records.
“Given the current court cases on the issue of retroactivity, we are again extending the time to respond to this request,” the letter states. “We will provide you with a further response no later than March 1, 2019.”
Skinner says that’s acting in defiance of the law.
“Since there is no [court-ordered delay] in Monterey County, every agency in Monterey County should be releasing records,” she says. “The only law enforcement agencies now with legitimate justification to be holding records are those in counties where a lower court has ruled.”
ON FEB. 14, AN ATTORNEY REPRESENTING THE SALINAS POLICE UNION sent city attorney Callihan a letter requesting the city cease and desist making material it released under SB 1421 available, and asking the city disable the cloud-based file it used to disseminate the material.
And the attorney asked that the city do it by the end of the day on Feb. 15.
They also asked for what’s called in union-speak as a “meet and confer” to decide a protocol for releasing records in the future, and to review any files the city intends on releasing.
“As you may know, the Attorney General has advised that his office will not be applying SB 1421 retroactively pending the outcome of litigation proceeding throughout the state,” attorney Peter Hoffman, who works in Michael Rains’ firm, writes. “The Salinas [Police Officers Association] believes this is the proper approach and requests that the City follow the Attorney General’s lead in navigating this unsettled matter of law.”
Callihan emailed a response to Hoffman, in which he said while he’s happy to discuss it, he doesn’t see why the city would need officers’ approval before producing documents in compliance with SB 1421.
“I am aware of the position taken by the California AG re application of SB 1421 applying retroactively,” Callihan states in his response to Hoffman. “I do not agree with that position, however, and am happy to discuss this with you also if you would like.”
As of Feb. 27, much remains unclear. Salinas has moved swiftly to comply with the groundbreaking law. But it’s completely unclear what it will take for the county to comply with SB 1421, as they dig in their heels and follow Becerra.
Skinner takes a pause and quotes late Supreme Court Justice Louis Brandeis: “Sunshine is the best disinfectant.
“It’s refreshing to see agencies releasing because they want to show to the public their discipline and investigative procedures are working, that there are consequences.”
