Justin Berton, 11/30/12
An Oakland police officer who criticized the department’s leadership in a Chronicle article was told his comments are the basis for an internal affairs investigation against him, his attorney said Friday.
Officer Barry Donelan, the head of the Oakland Police Officers’ Association, was quoted in a Nov. 19 article about a legal brief filed by the union’s attorneys. The brief attacked the department’s handling of internal affairs investigations and characterized the inquiries as “dishonest.”
Donelan’s attorney, Michael Rains, said his client was notified one day after the article appeared that investigators wanted to discuss his knowledge of any allegedly dishonest investigations, even though Donelan’s quote in the article did not directly refer to that allegation.
Rains said the query was a form of harassment and that Donelan was targeted for his broader remarks that faulted the department’s top brass for a lack of leadership.
An investigation, Rains said, could serve as a way to probe Donelan’s relationship with news reporters and could force his client into a difficult position.
“Once he’s in there, he’s got to talk or clam up,” Rains said. “And if he clams up, then they can move to fire him for insubordination.”
A spokesman for Police Chief Howard Jordan did not respond to messages for comment on Friday. Officials typically do not comment on personnel matters.
In the article, Donelan discussed the union’s legal brief, which harshly criticized police leaders for failing to implement 51 department-wide reforms required in a 2003 civil settlement. That settlement stemmed from a criminal case known as “The Riders,” where four police officers were accused of beating and framing suspects in East Oakland. Attorneys representing the alleged victims of the Riders filed a civil lawsuit, which led to the settlement and its reforms.
Too many probes?
The union’s brief, in part, alleges that department leaders had pursued an excessive amount of internal affairs investigations that resulted in faulty conclusions in an attempt to appease a federal judge overseeing the reforms.
“They’re being unnecessarily punitive and heavy-handed,” Rains said. “The thinking is that as long as the judge sees police officers’ heads rolling, they’re doing a good job managing the department.”
The union’s stance in the brief appears to side with the plaintiffs’ attorneys in the Riders case, who asked the judge to turn the department over to a federal receiver.
“The common denominator between us and the plaintiffs’ attorneys is that we’re both looking for leadership from the city and we’re not finding it,” Donelan said in the Nov. 19 article. “We never made the argument we want a federal receiver – that’s up to the learned judge to make the call – but we were honest. Our responsibility is to the members and the citizens.”
The internal affairs investigation into Donelan comes at a sensitive time in the department’s quest to stave off the receivership, which the federal judge will consider when he hears oral arguments Dec. 13.
Oakland police officers are prohibited from talking about the settlement, and can face contempt of court charges if they criticize the reforms or the terms of the agreement.
After civil rights attorneys filed their motion urging a federal takeover, police officials issued another decree to the rank and file that reminded officers they were not allowed to discuss the matter with reporters.
The possible questioning of Donelan could set up a First Amendment quandary down the road, said Jesse Choper, a UC Berkeley law professor who has written about public employees who faced sanctions for making public comments.
As public employees, police officers are limited in what they can comment on, including personnel matters and working conditions. But, Choper said, they are allowed to discuss issues of “public concern.”
“The fact that he is commenting on a matter that is public concern – the lawsuit – and not simply on his own, will tend to be something that favors protection under the First Amendment,” Choper said.
“What he has to overcome is the fact that he is making a comment on employment conditions, which is a matter of internal office affairs,” Choper added. “That, by itself, cuts against his claim that he’s protected by the First Amendment.”
Examining comments
Under departmental guidelines posted on a website, if police officials believed Donelan’s comments indicated he had knowledge of an improper internal affairs investigation, an investigation is required.
Rains said he was drafting a letter to Jordan to halt the investigation before his client is interviewed.
