Allen, et al v. City of Oakland, et al

Filing 1082

ORDER re-engaging Court Investigator. Court Investigator's report due by 03/07/16. Signed by Judge Thelton E. Henderson on 01/26/16. (tehlc3, COURT STAFF) (Filed on 1/26/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DELPHINE ALLEN, et al.,
Plaintiffs,

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v.
CITY OF OAKLAND, et al.,

Case No. 00-cv-04599-TEH
ORDER RE-ENGAGING COURT
INVESTIGATOR

Defendants.

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On April 16, 2015, the Court Investigator issued a report that this Court

United States District Court
Northern District of California

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characterized as “both disappointing and shocking. After reviewing the report, it is

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difficult to reach any conclusion other than that the City has been indifferent, at best, to

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whether its disciplinary decisions are upheld at arbitration.” Apr. 20, 2015 Order re:

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Investigator’s Rep. on Arbitrations at 2-3. As the Court explained, “there are many steps

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the Department and the City can take to improve the manner in which discipline cases are

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prepared both internally and for arbitration. It is difficult to imagine how, absent these

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steps, the goals of accountability and fair and consistent discipline – two of the foundations

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of the NSA [Negotiated Settlement Agreement] – will ever be achieved.” Id. at 5.

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The Court ordered the City to file a report by September 1, 2015, and subsequently

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ordered the City to file quarterly reports, discussing the City’s progress on improving its

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disciplinary system. The City states in its filings that the vast majority of the

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recommendations in the Court Investigator’s report have been implemented and that the

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remaining recommendations are scheduled for implementation. However, in many

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instances, the descriptions of the steps the City has taken do not reflect full and sustainable

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implementation. Most concerning is that the City apparently believes that having the

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Mayor and City Administrator attend parties’ meetings in this case, and having the Mayor

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and City Council receive updates on the City’s compliance efforts, are sufficient to satisfy

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the recommendation that the City establish sustainable accountability procedures that will

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outlive this litigation. See Sept. 2015 Progress Report at 13. This response falls far short

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of the accountability that is so fundamental to this case.

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Likewise, the City appears to characterize all six arbitrations discussed in the
December report as victories, despite the discipline in one case being reduced from

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termination to a 30-day suspension – a reversal that resulted in the reinstatement of an

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officer whom the City believes is unfit to police its community. While the City clearly

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stated that there was a reduction in discipline, it emphasized the arbitrator’s agreement

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with its decision to impose some level of discipline, and not the arbitrator’s drastic reversal

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of what level of discipline to impose. Moreover, while the City expressed disappointment

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in the outcome, it has not identified any steps it has taken to try to avoid similar outcomes

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United States District Court
Northern District of California

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in the future.

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The Court’s concerns about accountability and sustainability – issues that the Court

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has repeatedly emphasized – are underscored by the Monitor’s two most recent reports,

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both of which noted that, “[w]hile the majority of the [internal affairs] cases we reviewed

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comported with NSA requirements and OPD policy, the exceptions noted in our relatively

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small sample should serve as a caution against complacency.” Dec. 2015 Monitor’s Rep.

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at 10; Jan. 2016 Monitor’s Rep. at 10. In one case, the Monitor found an “obvious

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reluctance to assign a sustained finding” when the investigator apparently ignored a video

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recording. Jan. 2016 Monitor’s Rep. at 10. The Monitor previously commented on an

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investigator’s “incredible display of semantics gymnastics” in reaching an unfounded

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finding in a different case, where “the investigation clearly substantiated the allegation.”

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Dec. 2015 Monitor’s Rep. at 9. In yet another case, the Monitor found that “a supervisor

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involved in the incident conducted the investigation,” in clear violation of the NSA’s

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provision – supported by common sense – that an investigator must be removed from an

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investigation if he or she “was directly involved in the incident being investigated.” Id. at

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9-10. That these issues occurred while the City and Department are still being monitored

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raises concerns as to what will happen when the Court and Plaintiffs’ counsel are no longer

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holding them accountable.
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Given this context, the Court finds good cause to re-engage the services of the

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Court Investigator to examine whether the City has implemented and is making sustainable

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progress on the recommendations in the Court Investigator’s April 16, 2015 report. In

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doing so, he shall consult with Plaintiffs’ counsel and other stakeholders. He shall file a

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report on or before March 7, 2016, to give the City time to incorporate any

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recommendations in its report due by March 31, 2016. The cost of the Court Investigator’s

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services shall continue to be paid by Defendants through the Court registry.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: 01/26/16

_____________________________________
THELTON E. HENDERSON
United States District Judge

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