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Officials respond to the public’s right to police chief ’s severance agreement

By: Carol Feineman, Editor
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City of Lincoln letter to Lincoln News Messenger:

July 25, 2016

 

Steve Archer

Carol Feineman

Lincoln News Messenger

553 F Street

Lincoln, CA 95648

 

Re: Public Records Act Request Dated July 15, 2016

 

Dear Mr. Archer and Ms. Feineman:

 

This letter is in response to your written Public Records Act Request (“Request’) dated July 15, 2016 (copy attached).

In your letter, you requested a hard copy of the “severance package” for former Lincoln Police Chief Rex Marks, the hard copy of the list of concerns regarding former Lincoln Police Chief Rex Marks, and the hard copy of the final report regarding the independent investigation of former Lincoln Police Chief Rex Marks (hereinafter, “police personnel records”). For purposes of this response, my understanding is that your term “severance package” means information contained in any agreement severing employment between the City and former Police Chief Rex Marks.

Pursuant to Government Code sections 6253(c) and 6255, this letter serves to advise you that the Request seeks copies of documents exempt from disclosure under the provisions of the Public Records Act, Government Code section 6250 et seq. (“PRA”), including, but not limited to, the exceptions set forth at Government Code sections 6254(c) and (k), and Penal Code sections 832.7, 832.8, and Evidence Code section 1043. Peace officer personnel records are confidential and privileged and the procedures set forth in Evidence Code section 1043 are the exclusive method for obtaining those records.

Therefore, your Request for police personnel records is respectfully denied. The persons responsible for the denial are Matthew Brower, City manager, and Leslie Walker, Interim City Attorney.

If you have any questions or wish to further discuss this matter, please do not hesitate to contact me.

Sincerely,

Matthew Brower

City Manager

Attachment

 

cc: City Council

    City Clerk

 

Lincoln News Messenger letter to Lincoln City Manager:

July 29, 2016

 

Lincoln City Manger Matt Brower

600 Sixth St.

Lincoln, CA  95648

 

Dear Mr. Brower,

Your July 15, 2016 letter denying access to the severance agreement for former Lincoln Police Chief Rex Marks is unlawful under the California Public Records Act for the following reasons:

First, in response to our CPRA request, the city refused to provide the agreement, only releasing some general data contained within the severance agreement.  This is improper.  The CPRA requires the city to produce all documents that are not exempt from disclosure.  Any exempt information may be redacted, but the burden for justifying those redactions must be provided. To correct this violation of the CPRA, the city must produce the agreement. See further, Government Code § 6253(a) (requiring an agency to produce the “public record” and redact information that is segregable if necessary under the CPRA); Government Code § 6253(b) (requiring an agency to produce a “copy” of a record requested).

Second, Penal Code §§ 832.7 and 832.8 are inapplicable as to the severance agreement. To the extent that the severance agreement contains any personnel information that is protected by the Police Officers Bill of Rights — specifically information exempt under Penal Code §§ 832.8(b)-(e) — that information can be redacted from the produced record. Otherwise, the record is not exempt from disclosure.

In International Federation of Professional Engineers v. Superior Court, 42 Cal.4th 319 (2007), the court ruled that salary information held by the state about a public employee is not exempt under Gov. Code § 6254(c). The court, in its analysis, addressed law enforcement officer records specifically, and rejected the Police Officers Association contention that peace officer salary information was exempt from disclosure as a personal data under both the Penal Code and the CPRA. (See also Long Beach Police Officers Assn. v. City of Long Beach, 59 Cal. 4th 59, 325 P.3d 460 (2014).

Furthermore, the assertion that Penal Code § 832.8(f) would apply because release of the record would be an unwarranted invasion of privacy is also wrong. In rejecting that exemption’s application, the International Federation court said that it looked to Government Code § 6254(c) to determine what would be disclosed under that provision. The court said, “We reject the argument [under Penal Code § 832.8(f)] for the same reasons that led us to conclude above that the disclosure of public employee salary information does not constitute an “unwarranted invasion of personal privacy” under the Act. (Gov.Code § 6254, subd. (c).)”International Federation of Professional Engineers, 42 Cal.4th at 344 (standing for the principle that salary information is not exempt under Gov. Code § 6254, subd. (c) for public employees in California).

Finally, Government Code § 6254.8 states that, “[e]very employment contract between a state or local agency and any public official or public employee is a public record which is not subject to the provisions of Sections 6254 and 6255."  In Braun v. City of Taft (1984) 154 Cal.App.3d 332, the City refused to disclosure two records: a letter notifying an employee of a particular assignment, and a separate letter which rescinded that assignment.  The Court found that the letters were a matter of public interest outweighing any privacy interest of the employee under either Section 6254(c) and Section 6255. 

The letters of June 25 and June 29 contain no personal information. Although reclassification may be embarrassing to an individual...in California, employment contracts are public records and may not be considered exempt. (§ 6254.8.) The letters were memoranda of Polston's appointment to a position and the rescission thereof; they therefore manifested his employment contract. Because the letters regarded business transactions and contained no personal information, the court properly ordered disclosure of the letters.

Id. at 34.  The severance agreement must be disclosed under the same analysis.  The agreement modifies the terms of the Mr. Marks' agreement with the City, and therefore, form his “employment contract.”  Thus, the agreement must be provided pursuant to Government Code § 6254.8.

Because there is no exemption that applies under the Penal Code or the CPRA to prohibit disclosure of the severance agreement, please provide that record promptly to our office. Failure to produce the record by 5 p.m. on Aug. 5, 2016 may lead this newspaper to consider further remedies to obtain the record.

 Sincerely yours,

Carol Feineman

Lincoln News Messenger Editor

(916)774-7972

Or email carolf@goldcountrymedia.com

 

 

 

 

Officials respond to the public’s right to police chief ’s severance agreement

By Carol Feineman

Of The Lincoln News Messenger

The Lincoln News Messenger’s attempts to attain former Police Chief Rex Marks’ severance agreement have been unsuccessful since July 5.

The Lincoln News Messenger, in emails and letters, has told Lincoln City Manager Matt Brower that the California Public Records Act ensures that the severance agreement is disclosable.

Lincoln City Manager Matt Brower has responded in emails and letters that those records are confidential.

Brower sent the newspaper’s editorial team a letter July 25, denying access to Marks’ severance agreement. The newspaper sent a reply July 29, countering the reasons behind Brower’s denial. Those letters are copied above.

This issue, which happens in every state between governmental officials and newspapers, often ends up in court.

For that reason, Lincoln City Council members and agencies that deal with public records and police were asked if Brower should provide the newspaper with the severance agreement.

Their answers follow below.

­

Lincoln City Councilman Peter Gilbert

“It is my understanding that our city manager has taken the position he shared with you based on the law and the advice of council as it pertains to law enforcement personnel.  As you are aware, I support open government but I would feel very uncomfortable putting the city at risk based on our attorney's advice.”

Lincoln City Councilman Gabriel Hydrick

“I am not an expert in California law so I defer to the city attorney, a professional, as to whether or not Mr. Brower should release the severance agreement.  Mr. Brower's response should be, and is, according to legal advice of the city attorney and not of his own free will or personal agenda; this councilman will not align himself against the city manager on this matter.  The only option to produce the document, as understood by the council at this point, is by court order under which the council is happy to provide information to the public.  The council and staff are always happy to keep the public as informed as possible within the law.”

Lincoln City Councilman Stan Nader

“As one who strongly supports that our city government be transparent with its citizens, it would be my desire that we, the city, share with the public why the chief of police “resigned” as was stated in the city's press release.  But unfortunately, the City Council is being told by the city manager and the city attorney that to share that information with the public would subject the city to a potential lawsuit if the information were made public. I will let the citizens of Lincoln draw their own conclusions and connect the dots as to what that all means.”

Lincoln Councilman Paul Joiner

The City Manager, Mr. Brower, has been advised by the City Attorney that the separation agreement is a police personnel record and not disclosable without a court order from a judge. Given that, I believe Mr. Brower is acting appropriately in denying your request.

 

Lincoln Mayor Spencer Short

“As I stated before, I take the responsibility entrusted to me by the citizens of this community very seriously. We have a duty to the citizens to maintain transparency in government to improve the trust of the community with your city government.

I will not speak to the legality of providing the documents because that is the job of our city attorney. I will state that from a public policy perspective, release of a severance agreement once it has been completed is typically the norm.

However, at this point, even the council has not been provided that document nor the investigation report. Like the investigation report, I believe that the City Council has a duty to see the severance agreement (if not also approving such a document) to ensure that proper protocol has been followed and to determine if future changes need to be made to any of these processes. I believe that oversight of the actions of a city manager is critical to the proper functioning of the city. At this point, the City Council has seen neither the investigation nor the severance agreement. While some elected officials may appreciate this separation as providing plausible deniability for whatever the city manager has approved, I believe that your elected officials have a duty to the public and to the organization to properly oversee the acts of the city manager.”

 

 

Peter Scheer, First Amendment Coalition executive director

My guess is that the city and the police chief agreed to keep the terms of their separation agreement, including the specifics about any severance, confidential.  But promises of confidentiality in this context are not enforceable. The Public Records Act in California overrides a city's promise of confidentiality.

The claimed exemption for police personnel records doesn’t apply for several reasons. First, that special exemption doesn't apply to the chief of police; it applies to the rank and file only. Second, any documents containing a severance agreement would be an amendment, legally speaking, to the police chief's employment agreement, and all employment agreements are non-exempt public records under the Public Records Act.

And finally, the public interest in disclosure of a police chief's severance or separation agreement clearly outweighs the interest in secrecy. The California Supreme Court has made clear that the public has a right to know the actual compensation of government employees.

Severance is a type of compensation, just like salary or a bonus.

I’m highly confident that if this case ends up in court, the city will be ordered to release the severance or separation agreement.”

 

 

Robert Fellner, Transparent California research director

This is one of the most blatant violations of the California Public Records Act that I've seen in my experience of making record requests to over 2,000 different government agencies. 

The City's refusal to release the chief's severance package - which is specifically identified as public under state law - is nothing short of a slap in the face to Lincoln taxpayers, who will bear the cost of the City's legal fees when a Court orders them to provide this record.

Lincoln residents deserve better than this. Hopefully they voice their frustration at the ballot box, when next given the opportunity, by supporting candidates who understand their duty to be transparent with the people they promised to serve.

As an aside, here's the University of California, no friend to transparency generally speaking, in their official policies:

In addition, the following terms and conditions are considered public information and will be made available upon request: Separation or settlement agreement, with information that may state or imply performance issues redacted

http://policy.ucop.edu/doc/4000383/CompDisclosure.”

 

Mike Durant, Peace Officers Research Association of California (PORAC) president

“It is not the place of PORAC to interfere in local government issues without expressly being asked by our local associations.”

 

Jonathan Feldman, California Police Chiefs Association’s legislative advocate

Thanks for reaching out to us, but as a statewide association, Cal Chiefs doesn’t comment on local issues. As such, I am not going to be able to get you a quote regarding this matter. Again, I do appreciate the outreach and if you do ever have a question about statewide issues, legislation, etc., please feel free to send me your questions.