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Berkeley City orders investigation into Police Chief

Berkeley Police Chief Michael Meehan: BPA calling for investigation

This story was rewritten at 2:50 pm for the purposes of clarity.

The City of Berkeley has ordered an investigation into Police Chief Michael Meehan following his decision to send an officer to a reporter’s home at 12:45 am on March 9 asking him to make a correction.

The statement by Interim City Manager Christine Daniel that she had hired public law specialists Renne Sloan Holtzman Sakai on Monday was issued today, less than half an hour after the Berkeley Police Association said it had sent Daniel a letter calling for a formal investigation into the Chief.

On being informed of the city’s action, Officer Tim Kaplan, President of the Berkeley Police Association, said: “That’s great to hear. That’s exactly what we feel should be done. It’s the right step.”

Kaplan told Berkeleyside earlier today: “The bottom line is we do not believe there should be double standards in the department. It is guaranteed that any captain, lieutenant or sergeant would be on administrative leave if this had happened to them.”

Chief Meehan sent BPD Officer Sgt Mary Kusmiss to the home of Oakland Tribune reporter Doug Oakley at 12:45 am on March 9 asking for a correction to a story he wrote about a community meeting held in the wake of the murder of Peter Cukor on Feb. 18. Oakley made a revision, but said he felt intimidated by the visit.

Sgt Kusmiss was put in a difficult position on the night according to Alison Berry Wilkinson who Kusmiss hired as her attorney the weekend after the incident. Wilkinson told the Chronicle that Kusmiss “did everything in her power not to show up on the reporter’s doorstep” and that Meehan had given her Oakley’s address. Chief Meehan told Berkeleyside on March 11 that he assumed Sgt. Kusmiss knew where Oakley lived, since he knew where the reporter lived.

The BPA statement reads: “Meehan has been quoted in numerous press articles stating: ‘It was a significant error of judgment on my part.’ ‘My actions do not reflect the values of the Berkeley Police Department.’ If a police officer uses poor judgment and violates Department policy, he is placed on administrative leave and is fully investigated. As law enforcement officers, we don’t just get to say ‘I’m sorry’ and have the whole matter go away.”

The three-page statement continues: “The Berkeley Police Department, through its Chief of Police, has been eager to investigate and discipline officers while espousing zero tolerance at many levels for violations of policy and procedures. Moreover, the Chief of Police has demanded that the members of the Police Department perform at the highest levels and constantly insists that accountability be a necessary component to the delivery of police services to the citizens of Berkeley.”

The letter further states: “The media accounts and the Chief’s own admissions and apologies to various members of the Police Department seem to confirm that the order to Sergeant Kusmiss was not only inappropriate, but in violation of professional standards.” “It is appalling that the City of Berkeley has seen fit to simply allow this incident to slide into a media graveyard without further examination or review.”

Investigation on six fronts

The letter demands an outside independent investigation into the following possible departmental policy violations: (1) misconduct/supervisory and command officer responsibility; (2) reporting misconduct;  (3) general responsibilities of officers and employees; (4) courtesy; (5) acts – statements by employees; and, (6) function of the Chief of Police.

The BPA released a statement two days after the Oakley incident, on Sunday, March 11, saying officers were “gravely concerned” about Chief Meehan’s action.

Responsibility for disciplining the police chief falls to Interim City Manager Christine Daniel who, in a statement also released on March 11, said she “took the situation very seriously.” A request from Berkeleyside to interview Daniel was declined.

“The citizens of Berkeley rightfully demand at every level complete transparency and full accountability of its police officers and should expect nothing less from their Chief of Police,” Kaplan said. “The City can’t just sweep this or any other potential policy violation under the rug.”

Kaplan told Berkeleyside the BPA wants the investigation to be carried out by an independent person outside the police profession. “We do not have a preconceived idea of the outcome,” he said.

Read the letter from the Berkeley Police Association to Berkeley Interim City Manager Christine Daniel.

Related:
Spotlight on City Manager’s response to Berkeley Police Chief [03.14.12]
Few comments on Chief Meehan before Council session [03.13.12]
Questions remain about Berkeley police chief’s actions [03.11.12]
At 12:45 am police chief demands reporter make changes [03.10.12]
Community gathers in wake of murder: quizzes Berkeley police [03.09.12]

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  • BHills

    By their own statements, the firefighters would have heard any altercation and intervened.  Certainly there are any number of ways they would have changed the outcome had they been able to interact with Mr. Cukor.  For example, they might have had him stay at the station and gotten the police to come up.

    The issue is that Mr. Cukor was attacked when he went back home from the empty fire station across the street from his house.

  • PragmaticProgressive

    I didn’t mean to imply that he was reluctant to pay taxes.  But the article does quote him justifying NIMBYism because he “wanted to preserve the value of [his] property.”  I got the impression that, for a long time, his objective was “no fire station at all” which is to say that he viewed his economic interests as trumping the value of a fire station in that location.  Or that is the impression I formed from the article:  you knew him and I did not, so I will not speculate any further than that.

  • BHills

    Except what else is there that it would be useful to know and worth a large amount of money and further anguish to discover?

    If one truly believes that constitutional rights have been violated as well as department standards and practices and therefore, implicitly at least, the Chief’s contract, what difference will it make whether Ms. Kusmiss knew the reporter’s address?  This seems far from a close call to me based on what the Chief already has acknowledged.

    In the meantime, Ms. Kusmiss also is spending money on private counsel and the Chief might be too.  I have experience with paying for lawyers that tells me anyone who find him- or herself in that position will be spending lots of money that they otherwise would keep.

    I am looking for the opportunity to refocus on the four or more horrific crimes – two that ended the lives of productive and worthy men and two that seem to pose the threat of lawlessness – that have happened in Berkeley this year.

    It’s not ‘shaking up’ that I want to see.  Those of us who lived near Mr. Cukor already are shaken as are, I imagine, those who knew and cared for Kenneth Warren.  I want to focus on how to make us be and feel safer than we are and do right now.  It’s settling down that I want.

  • BHills

    I get you.  I meant by my post that I obviously got the part you call NIMBY but understood that he just wanted the station to be located elsewhere.  (Several available sites were considered before this one was chosen.)

    I actually thought while this process played out that I would like to have a fire station across the street from my house.  I assumed that firemen and -women would make great neighbors and that it would be reassuring to have first responders that close by.

    I recently saw a story that included the statement that Mr. Cukor had come to appreciate the design of the station.  I was glad to read that.

  • Petsitter101

    In response to your statement about the FD making great neighbors, I wish I could say that the Training Center on Cedar Street (which also houses a Fire Station on the same property), was a better neighbor.  In the past we have had to complain about the burning of diesel fuel during training classes, where the smoke blew directly in our backyard 3 houses away.  The complaints were ingnored until we actually complained to the Air Quality folks.
    Since then, we have had to endure incredibly loud training sessions where they use Chainsaws and other extremely loud equipment.  I get that this kind of training is needed, but in a residential neighborhood?
    About a week ago the FD gave us a notice that the Chainsaw training classes would commence but the notice only included the classes would be intermittent and somewhere between the hours of 9 to 4 Mon-Friday.  And when we complained we were told too bad, we can bring you some earplugs.

  • BHills
  • BHills

    The first link is to the SF Gate profile of Peter Cukor.  I could not find a profile of  Kenneth Warren so the link is to a Daily Cal story about him.

  • PragmaticProgressive

    Thanks for doing this — very easy to lose track of these people and their accomplishments among all the insanity of the last weeks.  I wish I had been able to know them both.

  • BHills

    This sounds quite bad. Have you and your neighbors have banded together to request changes in these practices?  Have you contacted the Fire Chief?  Did you get any help from your council rep?  What do you think should happen?

  • BHills

    Yes.  The idea was to remind myself about them.  Peter’s profile ran today and I thought it awesome – and I know something about this subject.

    The Kenneth Warren story was chilling.  Eighty bullets????

  • PragmaticProgressive

    EIghty bullets and one of them was just inches from the gas line.  Chilling, yes, and appalling too.

    And (some) people say there are no gangs in Berkeley….  I guess that’s more evidence that, as bgal4 observed, the official bird of our city is the Ostrich.

  • Petsitter101

    Honestly, I think the neighbors don’t want to rock the boat for a couple reasons.  Most of them have kids who just love firemen.  Who didn’t as a kid?  I’ll always remember my little nephew who tried to say fire truck and it came out, well you know!  And, since my husband and I are both home a lot during the day when the noise is usually at it’s worst, I don’t think most of the neighbors appreciate how loud it can get.  Our next door neighbor is also upset but so far she has not had the time or energy to do anything.  A letter went to the FD training director, who actually is a very nice guy, cc’s to Linda Maio, Public Health and City Mgr.  Only the training director replied.  His hands are tied. 

  • BHills

    My experience with the city is that either the person doing the work or the head of the department are the only ones who will do anything.  I guess that would be the fire chief.

  • BHills

    Thank you for providing the link to the letter from the ATTORNEY for the BPA to CM Daniel.

    The letter’s contents are ironic in light of fact that it was hand delivered presumably on Friday March 16, 2012, shortly before the interim City Manager announced that on Monday, March 12, 2012, she had engaged Ms. Louise Renne’s SF law firm to investigate Tribune-Gate exactly as the BPA letter demanded.  All of the negative consequences that the BPA letter attribute to the CM’s failure to investigate Tribune-Gate can now be shifted to her decision to keep secret her engagement of Renne’s firm.

    The BPA letter includes statements that show just how damaging was the interim Manager’s odd decision to make her act her own little secret and to keep all of the interested parties – the City Council, the BPA, the press, and, the people of Berkeley – in the dark about it.

    The BPA letter to CM Daniels includes these statements:

    “There has been no indication from the City that further inquiry or investigation is forthcoming.”

    “The failure to conduct an investigation into this matter reflects negatively not only on the members of the Police Department, but also the City at large.”

    “This demand for an investigation is not one that was borne [sic] in the immediacy of the moment.  For several days, the membership of the BPA has struggled with the appropriate course of action in this matter.  All of us had truly hoped that the City would do the right thing and initiate an independent review of this matter.  Sadly, such was not the case.”

    So, while the interim CM kept her action a secret, a few other things happened.  Mary Kusmiss engaged a lawyer for herself.  The Chief began his third week under the bus.  Members of the BPA “struggled [to find] the appropriate course of action.”  The Mayor endorsed what he apparently thought was and would be the CM’s only statement on the issue.  One council member explained that the council was in no position to comment on the Chief and Tribune-Gate since personnel issues are handled exclusively by the CM.  Another council member expressed his support for the chief but was subsequently embarrassed during a live interview on KCBS radio in which he learned from the interviewing reporter that the CM has engaged a firm to investigate the Chief’s actions, information to which he admitted he had not been privy.  Meanwhile, the people from all parts of the city who are afraid and want better policing continued to be afraid.  And nobody addressed the questions about how we are going to make ourselves be and feel safer.

    Perhaps the next investigation should be into the damaging act or inacton of the City Manager.

  • BHills

    *inaction*

  • Bruce Love

    The people left somewhat in the dark here are, of course, the general public. This appears to be an artifact of the charter combined with employment law. In other words, the opacity is a legal requirement (at this stage). You can’t (or maybe ought not) blame the CM for being strict in following the law.

    Here is why I think that’s what’s going on. It took me a while to figure out what Worthington seems to be talking about. The city charter is worth taking a look at here:

    Section 27. The City Manger. [....] The City Manager shall be chosen by the Council without regard to his or her political beliefs, and solely on the basis of executive and administrative qualifications. [....]

    A conservative understanding is that that restriction applies to the upcoming vote at the end of the CM’s probationary posture. That may part of the reason for Worthington’s reticence.

    Section 28. Powers and duties of City Manager. [....]

    (a) To see that all laws and ordinances are duly enforced, and the City Manager is hereby declared to be beneficially interested in their enforcement and to have the power to sue in the proper court to enforce them.

    (b) Except as otherwise provided in this Charter, to appoint, discipline or remove all officers and employees of the City, subject to the Civil Service provisions of this Charter. The appointment of a department head by the City Manager shall become effective upon affirmative vote of five members of the Council. Neither the Council nor any of its committees or members dictate or attempt to dictate, either directly or indirectly, the appointment of any specific person to office or employment by the City Manager. Except for the purpose of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager, and neither the Council nor any member thereof shall give orders to any of the subordinates of the City Manager, either publicly or privately.

    (c) To exercise control over all departments, divisions and bureaus of the City Government and over all the appointive officers and employees thereof.

    [....]

    (f) To make investigations into the affairs of the City, or any department or division thereof, or any contract, or the proper performance of any obligation running to the City.

    So, it is true that the power to retain or dismiss the Chief is exclusively the CM’s. Note the firewall: council members are prohibited from trying to “dictate or attempt to dictate, either directly or indirectly, the appointment of any specific person to office or employment by the City Manager.”

    A conservative understanding is that that prohibition against influence includes a CM’s decision to end and appointment.

    Other provisions constructively lay out the City Manager’s obligations to openly inform the council. There is nothing about informing council about an investigation (for sound reasons — the charter would contradict itself otherwise).

    Now council is in a very precarious position here. On the one hand they soon have to vote on the CM’s appointment. On the other hand, the CM is involved in a politically charged process of investigating the Chief’s “proper performance of any obligation running to the City.”

    If a council member speaks to the investigation and employment status of the Chief, directly or indirectly (such as through the press) to the CM, that councilmember risks violating Section 27, quoted above.

    For that reason we’d expect a professional compartmentalization of the investigation and efforts not to highly politicize it.

    The CM is similarly constrained by wrongful termination law. Suppose that the CM made a snap decision to dismiss the chief without formal, well-documented investigation. The Chief could challenge this on the grounds that the City did not follow its own rules — that the City Manager is to investigate the performance of obligations to the city.

    And because the question is one of performance obligations, rather than a political question, the CM is legally discouraged from flaming the fires of public discourse on the matter.

    Similarly, if the CM made a snap decision to retain the chief without performing an investigation, this could be construed as grounds for her dismissal.

    So in summary, the charter (and employment law) essentially orders the CM to investigate and for the CM and the council to keep mostly mum at this juncture.

    As for BPA: The political speech of BPA is not similarly constrained. Their “struggle” was reportedly between the letter they sent, and a no-confidence vote. In either case, they apparently wanted to send a very strong signal of disapproval of the Chief’s leadership.

    The CM has oversight responsibility to ensure the efficient operation of city services. A near mutiny by the rank and file presumably influenced her decision to make her simple, factual, public statement: there is an investigation and that process will run to completion. Note that her statement did not elaborate or invite public input (at this stage). Thus, it appears she is attempting to calm the rank and file without further flaming the political debate about the non-political investigation and disciplinary questions.

    Again, to summarize: the CM pretty much has to investigate. The council should not be saying much about this. The CM shouldn’t be saying much about this. The BPA revealed serious discontent in the department — a problem within the CM’s purview — and her brief public statement seems directed in part at trying to calm that discontent.

    The charter (and employment law) seem to be functioning like clockwork. Public frustration should be redirected to contemplate those laws rather than fault any of the parties for risking violating them.

  • BHills

    Sorry but my comments were limited to information the CM  withheld then DISCLOSED.  Does you analysis lead you to conclude that the CM has violated the charter by admitting that she hired Renne’s firm?

  • Bruce Love

    Does you analysis lead you to conclude that the CM has violated the charter by admitting that she hired Renne’s firm?

    No.   She did not “admit” that she started an investigation.   She released that information apparently partly in response to a near mutiny from the rank and file — consistent with her obligations to oversee the city’s efficient operation while protecting the sanctity of the investigation.

  • BHills

    You see Ostriches?  I see headless Chickens…

  • BHills

    Hi Frances:

    Is there any chance that you can obtain and publish a copy of the agreement for the Renne firm to investigate ‘the events of March 8th and 9th?

  • BHills

     *’the events of March 8th and 9th?’

    Thank you.