By Henry K. Lee 12/5/14
A legal fight is brewing over whether the city of Oakland should hand over documents it considers confidential to a court-appointed attorney investigating why officers who are fired or disciplined for misconduct often win their arbitration cases and reverse those sanctions.
San Francisco attorney Edward Swanson was granted sweeping power to investigate the city’s record in binding arbitration by U.S. District Judge Thelton Henderson, who is overseeing reforms stemming from the “Riders” police abuse scandal more than a decade ago.
Henderson, angered by the reinstatements by arbitrators of two fired Oakland officers, tapped Swanson, a former law clerk of his, to help the reform effort’s independent monitor, Robert Warshaw, look into the issue.
City records show that over the past five years, arbitrators upheld the city’s decision to impose discipline in half of 22 cases and reversed sanctions in the other 11. In six of the cases in which discipline was upheld, arbitrators modified the level of punishment.
Swanson, who declined to comment Friday, began requesting documents detailing those cases in September and has been paid more than $61,000 by the city so far, records show.
But City Attorney Barbara Parker has balked at handing over some of the documents, saying they cover sensitive matters that are protected by attorney-client privilege, such as communications between city attorneys and outside counsel hired by the city, and internal discussions about arbitrators’ decisions.
Parker and Swanson have asked for a ruling on the matter by Henderson.
Jim Chanin, an attorney who represented plaintiffs in a $10.5 million civil settlement in the Riders case that sparked the reform effort, questioned Friday why the city was withholding documents key to seeing “why the city has lost so many arbitrations.”
Parker is “hiring all these outside counsel to fight this investigator, fight the monitor and even fight the judge about trying to find out what the truth is. I think it’s suspicious, yes,” Chanin said.
In legal filings, the city said it wants to keep confidential its communications with Oakland police about the “testimony and performance” of officers at arbitration hearings, including those “whose testimony materially differed from statements made prior to the arbitration.”
Parker said the city has handed over more than 13,000 documents — including disks with audio, video and photos, internal affairs files and arbitration decisions — and has withheld only 118 documents.
“We have a duty under both the City Charter and state law not to reveal confidential client advice and other privileged information,” she said Friday, adding that her office has provided a “privilege log” describing each document’s contents and “explaining why we cannot legally disclose it.”
Cedric Chao, an attorney for the city, wrote in court papers that any order to hand over documents would have a “chilling effect” that would “certainly prevent or otherwise inhibit candid communication” by attorneys handling disciplinary matters. Parker wrote in a filing that the documents could then be sought by members of the public or litigants who believe the city has waived attorney-client privilege.
In a sharply worded three-page order in August, Henderson said he was concerned that Officer Robert Roche had gotten his job back through arbitration.
The department fired Roche for lobbing a tear-gas canister toward a group of people trying to help Iraq War veteran and activist Scott Olsen, who had been struck in the head by a police beanbag during an Occupy Oakland protest in 2011. Roche’s reinstatement came months after Olsen received a $4.5 million civil settlement from the city.
The judge also cited the case of Officer Hector Jimenez, who was ordered back on the job by an arbitrator in 2011 after being fired for fatally shooting an unarmed drunken driving suspect in the back three years earlier.
“While the court understands that there may be room for differences of opinion, and that not every disciplinary decision will be upheld at arbitration, the court questions whether defendants are adequately preparing cases for arbitration such that consistency of discipline can be assured to the great extent possible,” Henderson wrote.
The judge questioned whether the “city’s representation at arbitration had been adequate,” including whether outside attorneys working on behalf of Oakland “displayed sufficient case-specific and institutional knowledge.”
In an interview Friday, Justin Buffington, the attorney who represented both Roche and Jimenez, said the quality of the city’s legal representation wasn’t the issue — but rather the weakness of the evidence against the officers.
“I think the quality of the cases that they bring are simply trying to fit round pegs into square holes,” Buffington said. “It doesn’t take a genius to see that, and that’s why these arbitrators are consistently overturning discipline. I mean, these arbitrators aren’t some whack jobs.”
Buffington said the department has been improperly disciplining officers to appease the independent monitor who is reporting back to Henderson as to whether the department is reforming itself.
“I think the city and department are acting in fear of a full-blown (federal) receivership and, as a result, they’re scrambling to try to discipline as many officers as they possibly can, even though there’s no basis to do so,” the lawyer said.