Michael Rains, Atwater Police Chief Sam Joseph’s attorney, spoke to the Times about the situation his client is in and sympathized with the disservice to the citizens of Atwater.
Eight months after being placed on paid administrative leave by former Atwater interim city manager Art de Werk, Joseph’s employment status has yet to be resolved. Joseph earned a Master’s degree, graduated from the FBI National Academy and ran the department from 2013 through Jan. 22, 2018 as lieutenant, interim police chief and then permanent police chief. There was a 20% decrease in violent crime and overall crime in Atwater during his last three years on the job.
As to allegations against Chief Joseph, Rains said there is nothing wrong with Sam Joseph, and “There is no smoking gun.”
Rains said the most sensible and cost-effective solution is mediation, but if the City doesn’t agree and fires his client, he is prepared to go into full battle mode.
City Attorney Douglas White of Churchwell White, who was solicited by Council members Cindy Vierra, Paul Creighton and Brian Raymond and recommended by de Werk without the prior knowledge of the other two Council members (Mayor Jim Price and Mayor Pro Tem Jim Vineyard), has continued de Werk’s investigations of Joseph, even after de Werk, who was being investigated himself, resigned and fled Atwater. White’s efforts include bringing in attorney/investigators with whom his firm is affiliated. White, whose firm has billed the City about $400,000 for city attorney services in the past six months, has divulged the total cost to the City of the Sam Joseph investigations is $50,000.
During the interview, Rains vowed he will find a way to get de Werk’s POST-level background investigation report, which is being withheld from the taxpayers, in whatever state of completion it is in. He explained how the 3 to 2 Council dynamic perpetuates the inertia that keeps the chief out of his position, and also how the City Attorney is not advising his clients, the city administrators, what would be in keeping with the best interests of the citizens.
Rains feels confident none of the allegations of wrongdoing are fair or have any real basis and hopes the investigators hired by de Werk and White reach the same conclusion, but if the City fires Joseph, Rains is “fully prepared to do battle.”
He said he would prefer a less costly resolution in the way of mediation which would be more fair to the taxpayers and to his client’s pocketbook.
What is Rains’ background? – “38 years” attorney, “30 years” POST teacher
Mike Rains said, “I actually am a former police officer myself and served in the Santa Monica Police Department in the 1970’s. I got my law degree when I was working at the police department, and I left in 1980 and began practicing law. From the outset, I began representing police officers in disciplinary matters and criminal and civil cases.
“For the last 30 years, I have taught classes certified by POST on Internal Affairs Investigations, so I certainly am familiar with, and much up on, what the law requires in terms of fair and objective investigations of police officers when they are accused of wrongdoing.
“Sam Joseph obviously knew of me and my reputation and asked if I would represent him. I had never done any work for anyone in Atwater, nor had my firm, before representing Chief Joseph.”
Rains, who in 1999 founded the Pleasant Hill firm of Rains Lucia Stern, PC, is highly regarded for winning the acquittal of the “Corcoran 8″, successfully defending the “Oakland Riders” and the case of former BART officer Johannes Mehserle, who was accused of murder by the Alameda County District Attorney, and representing baseball player Barry Bonds, who was ultimately exonerated by the 9th Circuit Court of Appeals with respect to perjury allegations.
Disservice to citizens, who “have every right in the world to be angry”
Rains continued, “After being involved in this case, and after 38 years of dealing with hundreds of municipalities in California because my office represents clients from Oregon to the Mexican border, I can’t think of a single municipality I’ve seen in the last 38 years that is as dysfunctional as the City of Atwater. It’s mind boggling.
“The citizens of the city whose needs are not being served have every right in the world to be angry about what’s happening because they are the ones whose interests are being sacrificed here. From a financial standpoint, the city has spent a lot of money on a lot of goose chases, and one goose chase is to find some basis for Chief Joseph’s initial removal, or placement on administrative leave, by Art de Werk in January. That was unsupported then by any basis at all, premised on a lie that the Association had taken a no confidence vote, which was false.
“That lie was the very basis of what’s happened since, and then of course bringing in a law firm that by all accounts, rather than advising the Council on prudent steps to take in the interests of the citizens, seems to be serving the majority of the Council members who are apparently fixated on getting rid of Sam.
“And that’s a disservice to the citizens. A law firm has an obligation to its clients to tell them what is the right thing to do, and that’s what this law firm should have been telling this majority of three on the Council who have their own agenda. But this attorney is apparently thinking ‘They’re paying me a lot of money’, and is covering up what they’re doing.
“I can understand why a lot of good people are up-in-arms and are very concerned about the economy of the city while they’re going down this rat hole of trying to chase Sam Joseph out of town.”
City’s Attorney’s affiliated attorney investigating Joseph – “no smoking gun”
Rains said, adamantly, “I sat next to Sam when he was interviewed by the attorney brought in by Churchwell White in the investigation, so I know the topics and the questions and answers by Sam and I know what evidence has been gathered in the investigation, and I can tell you there is no smoking gun and there is nothing here that arguably justifies any kind of discipline at all, nor his removal as chief, nor his demotion to lieutenant if the Council insists on doing that, which if so, will not be on the basis of any facts or law. The problem the city is going to have here is proof, and I hope that Vida Thomas, the lawyer brought in by Churchwell White to do the investigation – – my sincere hope – – is that before she submits her final report, she looks in the mirror and says to herself, ‘I can’t just be trying to ingratiate myself to the Council majority, knowing what they want me to say.’ “I’ve talked to Vida, and she seemed to me to be a decent person, and I hope she will objectively investigate the case and report on it. And if she does, I’m confident that there will be no basis to do anything but bring Sam back to work.
“The majority of the Council wants something to be said that makes him unqualified to serve as the chief, but there’s nothing there.”
The final say on whether Joseph is fired will depend on Lori Waterman, who was promoted in March from grants writer to Deputy City Manager and given a substantial raise in accordance with the financial solvency plan introduced by de Werk. Waterman replaced de Werk as interim city manager in April and then was promoted to permanent City Manager by the split Council in August, over the objections of Price, Vineyard, and several citizens who spoke in opposition to the decision before the vote. The educational requirements for the position were waived so that Waterman could hold the top job with an AA degree.
The 3/2 Council dynamic – “they’re being protected on everything they do”
Rains said, “There are people who stand up and speak up about the nonsense going on, and you’ve gotten some very committed citizens who smell a rat and say, ‘Why are they doing this and why are we spending all this money on this?’
“It hasn’t worked [to change anything] because of the 3 to 2, and it’s a sign of dysfunction in this Council.
“They’re being protected on everything they do by their City Attorney they’ve brought in. He’s the advocate for the majority of three. That’s unfortunate because their attorney needs to have an honest talk with the clients about what their responsibilities are and what the attorney’s role is.”
The Evidence Room – no “misconduct”
“The other factor is there’s just no factual basis for the city to conclude that Sam Joseph committed any misconduct.
“That’s not to say that it’s a perfect department. There’s always things that could be done better. They talk about the Evidence Room. Some agencies have had to rebuild their evidence rooms to make them more efficient, but that takes money. “Sam inherited a lot of the issues that are now the subject of this investigation, and he’s done a good job with the limited budget he has had and the limited staff he had.”
Where are we headed here? – “a hearing would easily cost the city $200,000″
“Where are we headed here? If there’s a fair, thorough and objective investigation of the allegations that were made by the City, i.e., the Council majority, against Sam, the investigation will disclose no basis that he has committed any misconduct, and that’s where it should go.”
City Manager Waterman could reinstate him.
“If they conclude otherwise, then, as they know, I will, on behalf of Sam, file an appeal from any action they take against him. I will request an appeal hearing on his behalf, and I will ask that that hearing be public so the public can see the evidence and hear the response and watch the circus if they want to make it that.
“I don’t want to make it that because the appeals in these cases can go on for days and be quite contentious and get downright ugly. But the problem is not that it can get ugly, but the issue is what’s the cost. First of all, it’s a cost to my client that he shouldn’t have to undertake, and it’s a cost to the taxpayers because I envision a hearing would easily cost the city $200,000.
“If they level these things at Sam, all bets are off, and the gloves are coming off and it’s going to be a blood bath. Having a fight and having Sam spend his own money to have me do this is crazy.”
Less costly solution – “selection of an individual to serve as a mediator”
Rains said, somberly, “I’ve talked to Sam about this, and of course, I have an idea that I think is a good idea, and I think it would be in the best interests of the citizens, and I think the best thing to do in a case like this (and I’ve done it before when representing government officials of all sorts) is, if we have an investigation, the city and I should agree on the selection of an individual to serve as a mediator. The mediator would have access to any investigation reports and conclusions, and the mediator would hopefully be able to mediate a resolution to this horrible mess, and it could be done relatively inexpensively in comparison to what a hearing would cost. The goal is to bring stability back to the city, and I hope it can be resolved fairly quickly.
“And we would have someone who had no axe to grind, and would simply look at the facts, understand the law, and say to the city, this is what you should do, or say to Sam Joseph, this is what you should do.
“I think it makes economic sense to bring in someone fair, objective, smart and talented in bringing parties together to solve problems. I think that would be the best thing to have happen, but I’m fully prepared to do battle and come down there and do hearings before the public on whatever they want to allege.
“It’s mind boggling that lawyers would give in to that, and I think their lawyers that they’ve hired have an obligation to tell their clients this is not right and this is not the way to go. The people that suffer are the people who live in Atwater, and it’s not fair.”
Attorney’s opinion of Sam Joseph – “his heart/mind is in the right place”
Rains stated emphatically, “I am at the point in my career where I can pick and choose my clients, and so I met Sam for the first time and talked to him for quite a while. This is a guy whose heart is in the right place, his mind is in the right place, and this is a guy who would have opportunities in other cities. I know that, and he knows that. Atwater is where he is and has roots and where he wants to be, and here we are.
“I talk to chiefs groups all the time. Atwater doesn’t pay top price and premium pay rates and I know sometimes for chiefs, they are struggling to get quality personnel in police officers because they can’t pay top dollar, and it’s tough for small agencies like Atwater that have limited tax dollars. It’s hard for them to get top officers, and I’ve talked about this with Sam that maybe from a practical standpoint, it would be better to be a police chief somewhere else, but he wants to see this through. His attitude is he loves this place.
“I’ve been in touch with the county police chief’s group, and he is held in high esteem there. That doesn’t always happen – – for example, if they think someone does not have the qualifications to lead. But they support him, and they like him. If there was something wrong with Sam, you would see opposition, and you don’t.
“I was impressed with Sam. I know a lot of law enforcement folks and a lot of them, I don’t want to represent. Also, I know because I have a lot of friends who are current and past FBI agents and I know something about the FBI National Academy and the demands placed on the students and the high standards they have to have to graduate, and the students have to exhibit the kind of conduct the FBI wants chiefs to have. This isn’t easy stuff. It’s tough academically, and it’s tough physically, and this is a guy who really has some skill and some great ability. I know the rigors of that place and anybody who gets through it is a pretty good person.
“The FBI, to its credit, makes its students think about the issues of the day involving ethics and ethical behavior and things that bring agencies into disrepute and they spend a lot of time drumming these things into the minds of the students. It leads to ethical leadership, and we certainly need that today and it is a tribute to Sam to get through that.”
Appeal is answer to critics’ goal to “eliminate him in the cover of darkness”
Rains said, “The folks who are critical of Sam, the Mayor and Mr. Vineyard think, ‘We’re doing what the Council majority wants us to do.’ And it’s all a show. The bad part of this is the citizens of the city suffer when the Council is mired down in these kinds of efforts by the majority of three to keep the ethical police chief out of his job. It’s not right and it’s not fair, and thank goodness Sam Joseph has statutory rights to appeal an action taken by the Council. That’s ultimately what they face – – they can’t just eliminate him or demote him in the cover of darkness. He’s going to have an appeal.”
De Werk background – “he didn’t want something to see the light of day”
“They have some explaining to do. Why has Doug White continuously denied the people the right to find out what the investigation discovered? They should already know what the investigator found. They should know how much money Mr. White claims to have been billed in connection with the de Werk investigation as well. But the City Attorney is lining his own pockets.
“I don’t think de Werk was as polished as some, but de Werk just didn’t have a good reputation. People live by their reputations. Some have a good reputation in the law enforcement community like Sam Joseph, and some don’t. And a lot of times, there’s a good reason someone may be viewed suspiciously by other law enforcement folks. When de Werk literally leaves town in the middle of the night during the pendency of a background investigation, you don’t have to be that sharp to recognize he didn’t want something to see the light of day.”
Times’ Question: Doug White told me in an interview there is a partial report, but he said it couldn’t be produced because it would be like producing a partial police report.
Rains’ Answer: “We will get that report.”
He explained, “You can work all sorts of interesting stories around the word ‘report’. A report may well be a draft report that gets updated when there are new interviews and is an ongoing document that gets updated as you gather more information. But if you want to play the name game, you can say until I sign off, there is not a report. There really is a report. It’s sitting right there. It’s not a completed report, but it is a report.
“Apparently, Doug White conceded there’s notes of information gathered, and there’s also an investigator who did all that work who will, in a litigation setting, probably end up getting deposed. He will have to testify what it is about de Werk that resulted in him running out of town in the middle of the night.
“A partial report means the parties would have to speculate on the outcome or follow up on what information had been developed by contacting additional people. All the work [investigation firm] Freeman did was billed to the city of Atwater, the taxpayers paid for it, and that information should be shared.
“I’m sure the Council majority doesn’t want the public to see what was uncovered, so the city attorney is doing their bidding by finding ways to make sure it’s not disclosed.
“There’s a sense that they think they can engage in a charade, or come up with some articulated reason for what they’re doing and they think the public is not going to follow through with it, and they can get away with it. I hope that we can get done with this charade.”
Interim chief issue? – “they need a chief who is going to be accountable”
Rains stated, “An interim police chief is never a good way to run a police department because people know he’s only going to be there for a little while and then he’s going to be gone. Running a police department with an interim chief for any length of time is a disservice. They need a chief who is going to run the place and be accountable.”
The Times was informed by anonymous sources that five Atwater Police Department staff members have recently filed claims of hostile work environment against the current management, led by Interim Police Chief Drew Bessinger, and that several officers who were waiting to see if Chief Joseph would be reinstated have either resigned or are retiring because too much time has elapsed without a resolution.
On Sept. 10, the Times asked both Bessinger and City Manager Lori Waterman to answer as to whether these things are true. They did not respond.
Attorney opinion of Times coverage- “detailed, thorough, well supported”
Rains said, “It’s quite the scenario in Atwater. It’s not a testament to the way the local government should work and if I were teaching a civics class to high school students, I would never take them to Atwater to show them how a municipal government should be conducted.”
Addressing reporter Beverly Barela, Rains said, “It’s quite the story, and your reporting has been very detailed, very thorough. I’ve been reading the articles. They’re well written and well supported. I find your articles very informative and interesting.”