Police watchdogs and other elected officials have taken issue with the city administration following the announcement that an outside investigation into text messages from a city police supervisor had concluded.
The city’s announcement, which ostensibly exonerated the department, drew conclusions outside the investigators’ purview, according to several officials who spoke with Berkeleyside.
The city had hired San Francisco-based attorneys Swanson and McNamara LLP after a fired police officer, Corey Shedoudy, leaked text messages that he said showed evidence of racism, anti-homeless bias and the institution of arrest quotas by his onetime supervisor, Sgt. Darren Kacalek.
What precisely the investigators found remains unknown, other than that nearly all the texts Shedoudy sent the City Council appeared to be legitimate. The City Attorney’s Office has ordered everything but a one-page summary of the investigators’ process be kept confidential, according to city spokesperson Matthai Chakko.
Chakko did say that the investigation resulted in these findings:
- The department does not have a practice of racial bias
- The department does not have any arrest quotas
- The department follows state law and Constitutional law when it comes to enforcement of protective orders
- The department has existing policies that prohibit discrimination and harassment of protected classes.
Many personnel records are typically exempt from disclosure, with some exceptions. Under California’s Penal Code law enforcement officers have even greater protections against disclosure than other public employees.
“The general rule in California, for better or worse, is that police personnel records are generally exempt from public disclosure — and not only are they exempt from public disclosure, but cannot be shared even if the agency wants to,” explained David Loy, legal director for the San Rafael-based First Amendment Coalition. “Historically, police personnel records were an almost complete black hole of transparency in California.”
Some records and information can be made public, thanks to recent changes to state law, including when certain allegations of improper conduct are sustained against law enforcement officers. Berkeleyside has inquired as to whether any such findings have been sustained against the officers and supervisors wrapped up in Swanson and McNamara’s investigation but the city did not immediately respond.
In the cases of other public employees — teachers, firefighters or engineers, for example — if there are “credible allegations of substantial misconduct and there’s good reason to believe that they happened, the records must be disclosed, with or without a sustained finding,” Loy said.
The confidentiality of the report, as asserted by the city administration, has even barred city police watchdogs from viewing it in its entirety.
In a statement, Director of Police Accountability Hansel Aguilar said the Police Accountability Board had not been allowed to see the investigators’ full report, but that the text messages, “which have now been authenticated through a comprehensive forensic investigation, have shaken the trust and confidence in our law enforcement agency.”
“Consequently, the board cannot opine on the conclusions made by the independent investigators or verify the accuracy of the statements made by city officials,” Aguilar wrote in a prepared statement Friday. “The PAB, however, is concerned about the characterization of the results by city officials since they seem to suggest a broader scope than what the independent investigators were engaged to explore.”
The conclusions offered by the city, Aguilar said, would have required a broader investigation than what Swanson and McNamara signed on to do.
John “Chip” Moore, who chairs the board, said in the same prepared statement that “we take these allegations with the utmost seriousness.”
The board is conducting its own policy review into the bike squad, also prompted by Shedoudy’s allegations. That review is ongoing.
Councilmember Kate Harrison, whose district includes much of the downtown area, said she was “extremely troubled that the city manager’s office, who is in charge of the very police department under scrutiny, is releasing details from the independent investigation by telling the media that there were no arrest quotas nor departmental practices of racial bias.”
Chakko’s statements Thursday, Harrison said, “draw a conclusion that extends far beyond the scope of the investigation,” which covered only a period between Oct. 1, 2019 and Nov. 22, 2020.
“It is a breach of protocol and undemocratic to keep the investigation confidential while simultaneously releasing drips of information without context to absolve the department and management,” Harrison said. “This behavior breeds further mistrust about government and the independent nature of the investigation.”
Along with Councilmember Ben Bartlett, Harrison abstained when police Chief Jen Louis’s confirmation came up for its final vote in May. Bartlett, Harrison, Councilmember Sophie Hahn and Mayor Jesse Arreguín had hoped to postpone the vote until Swanson and McNamara had completed their investigation but the other five council members outvoted them on the postponement.
Louis’s confirmation, originally scheduled for November, was postponed after Shedoudy’s allegations came to light.
“All of this undermines the actual mission of promoting public trust that the (city) charter entrusts to the Police Accountability Board,” said Nathan Mizell, a city rent commissioner and former Police Accountability Board member who also previously chaired the city’s Reimagining Public Safety Task Force.
“It seems to me to be a clear attempt to influence media headlines, shift the narrative early,” Mizell said. If and when new details do emerge, “by then the headlines are out, people don’t want to dive into the minutiae.”
Mizell questioned the timing of the report as well. The council is scheduled to begin its summer recess Wednesday. Louis is away from work until Aug. 11, according to an automated email reply from her account.
“How did they know a report is coming for months and then release information like this and then us not believe there was an intentionality to it?” Mizell said. “This is not a surprise thing that happened to the city. It was a report that they knew was coming for months and they deliberately decide to release information in a way that undermines public trust.”
Arreguín said there was more work to be done.
“Regardless of the underlying findings and outcomes, the investigator verified the accuracy of the text messages. What is clear from a plain reading of the texts is that the behavior was unprofessional and does not meet the standards to which we should hold to our City employees,” Arreguín said in a statement Friday. “Police officers, like elected officials, are in positions of public trust and we do not want to erode that trust because it undermines our ability to keep our community safe.
The situation has brought to the fore “the need to review and strengthen our Police Department policies and practices to make clear that these kinds of statements and behavior will not be tolerated,” Arreguín said. “I look forward to the outcome of the Police Accountability Board’s policy investigation and working with them and the City Manager to improve our policies. This episode further demonstrates the need to implement reforms — including a stronger early intervention system — to identify specific behavior or patterns to address problems immediately and provide ongoing accountability.
Kacalek, who was placed on administrative leave after Shedoudy’s allegations came to light, is scheduled to return to duty “in the near future,” Chakko said Thursday. He will be working in the department’s patrol unit rather than its bike squad.
Kacalek stepped down from his position at the head of the Berkeley Police Association, the union that represents most of the department, following the leak of the texts. The union declined to comment for this story.
