From: Oakland Tribune
By Judith Scherr 9/19/14
BERKELEY — Police officers quietly resumed participation in closed-door Police Review Commission complaint hearings Sept. 10, even though their grievances over a leak of confidential information have not been resolved.
City Manager Christine Daniel allowed officers to stop attending the otherwise mandatory hearings, formally known as Boards of Inquiry, for a 45-day period while the city investigated disclosure of confidential information from a hearing.
The leak was published in May by The Daily Californian newspaper, which did not reveal its sources. Since a 2007 court decision, PRC hearings have been held behind closed doors.
The city investigated the disclosure but came up empty-handed. According to Berkeley Police Association President Chris Stines, PRC staff was thoroughly vetted and the city concluded they weren’t the source of the leak.
However, Stines said they failed to investigate commissioners beyond signed statements they all submitted saying they had no knowledge of the leak. Stines called that insufficient, saying, “No one directly asked them.”
The police officers association wanted to halt mandatory hearing attendance until the source of the leak was resolved. “We’re not looking to prosecute anyone for the crime,” Stines said. “We want to fix this process.”
In a memo to the commission, Daniel said the Alameda County district attorney “informed us of her conclusion that the breach was not a crime.”
In early August, BPA attorneys asked a judge for a temporary restraining order so that officers would not be required to attend hearings until a thorough investigation of commissioners took place.
But Alameda County Superior Court Judge Evelio Grillo turned them down, saying that unless there was evidence showing which individual leaked the information, he wouldn’t stop officers from attending Boards of Inquiry.
Nonetheless, BPA attorneys continue to press theircase in the courts.
Plaintiffs in the case, Officer Gwendolyn Brown and the BPA, want to find the source of the leak. BPA attorney Timothy Talbot of the Rains Lucia Stern law firm told this newspaper that the defendants — the city and the Police Review Commission — breached the 2007 court settlement “requiring the city and the PRC to maintain the confidentiality of the police officer records and of proceedings before the PRC.”
BPA wants “to identify the source of the leak, and get the city and the PRC to take appropriate actions to sanction that individual and prevent this from happening again,” Talbot said.
Through the discovery process, the court can subpoena electronic communications from all who had access to the information, he added.
Plaintiffs are also asking for damages for Officer Brown, contending she was harmed by The Daily Cal’s disclosures.
The newspaper article revealed confidential Board of Inquiry findings, saying that Brown acted improperly by not constantly monitoring the vital signs of Kayla Moore, who died Feb. 12,2013, while in police custody.
The coroner said Moore, who was transgender and schizophrenic, died from obesity, drugs and cardiovascular disease.
City officials declined to comment due to the pending lawsuit.
On Aug. 29, attorneys for the city responded to the complaint in Alameda County Superior Court, arguing that the defendants are not liable for the disclosure “as any individual releasing such information was acting outside the course and scope of employment, was not authorized to release such records and was acting with actual malice to violate the defendants’ rules on confidentiality.”
The city response also says Brown has no reasonable expectation of privacy under the circumstances, since she was “an arresting officer in an in-custody death (that) was public information that had been widely disseminated.”
While not commenting directly on the lawsuit, Alison Bernstein, PRC vice chairwoman, pointed out that, in reaction to the leak, the commission revised its rules around confidentiality, making the nondisclosure requirement more explicit.
