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Council questions Law Department, others over KeyPoint issues

Friday, May 28, 2010 by Michael Kanin

The City Council got a chance Thursday to publicly question its legal department about the series of steps that led to last week’s sudden release of the independent report associated with Officer Leonardo Quintana’s shooting of Nathaniel Sanders. As part of the process, the Council heard about the handling of the report, a look at how independent reports had been treated in the past, and a general list of changes that the department would look at going forward.

 

During both the briefing and Council members’ questions, discussion centered around complicated legal readings and the nature of the city’s agreement with its police officers’ union, the Austin Police Association. In the end, however, it all boiled down to one real issue: legal confusion.

 

For the law department, it centered around an interpretation of state regulations, and how those interact with the local, “meet and confer” rules agreed to by city staff and the APA. Assistant City Attorney Lee Crawford told Council members that what information could be released about an investigation such as the one in the Sanders case was dependent on Texas state civil service laws.

 

Crawford said that those regulations were intended to protect officers from political shenanigans and possible “stigmatization” if a misconduct investigation were to occur. Under them, he added, “if a police department investigates officer conduct and determines that discipline is appropriate…than all of the materials related to that incident (can be made) available for release to the public under the Open Records Act.”

 

“On the other hand, if the investigation of officer misconduct issues does not result in disciplinary action against the police officer, then all of the investigative materials…are made confidential under state law, and the city is not able, lawfully, to produce them,” he said.

 

However, according to Crawford, if a union represents a municipality’s police—as it does in Austin—the state laws can be “modified” by any collective bargaining agreement that might exist. Because Austin has such an agreement with its officers, and because that agreement puts different constraints on what portions of an independent investigation can be released, this creates something of a thicket of legalese to parse, Crawford said.

 

The former, releasable documents are collectively called A-File material. The later, confidential ones are known as G-File material.

 

Mayor Pro Tem Mike Martinez would later point out that “what’s classified as G-File material is absolutely and extremely subjective.” Martinez said he had plenty of experience with the stuff as former president of the union that represents Austin’s firefighters.

 

As has been reported (see In Fact Daily, May 24), until staff read media reports earlier this month, they were under the impression that the more conservative reading that prohibits the release of the report when the officer isn’t disciplined applied to the Sanders shooting. Ultimately, Police Chief Art Acevedo found Officer Quintana—who has since been dismissed for an unrelated alleged drunk driving incident—was not reckless in his conduct in the Sanders shooting. Acevedo did suspend Quintana briefly for failing to turn on his dashboard camera.

 

In his questions, Council Member Bill Spelman honed in on this point. After a detailed exchange with Crawford, he gave his summation: “Despite the fact that we had information in the contract which in black and white looked as though…we could release (at least some portion of what was originally redacted in the KeyPoint report), your staff, the law department as a whole, decided to be more cautious than that and go back to the state law,” he said.

 

After the hearing, Assistant City Manager Michael McDonald told In Fact Daily that, with the signing of the memorandum of understanding that allowed for the KeyPoint report to be published (see In Fact Daily, May 14), “allows for even more transparency with regards to those independent investigations.”

 

He added, “What the independent investigator writes will be released now.” He was careful to point out that this would apply specifically to independent investigations.

 

That was not the end of the conversation about Acevedo, the report, and the untimely death of Nathaniel Sanders, however.

 

Attorney Jim Harrington of the Texas Rio Grande Legal Aide accused Acevedo criminal behavior in releasing the KeyPoint report to his colleague California Highway Patrol Lieutenant Paul Golonski for Golonski’s comments. (See In Fact Daily, May 26, 2010)

 

Those comments were roundly rejected by the city in general but Acevedo has not been allowed to comment on whether he used Golonski’s reasoning in coming to a decision on how to handle accusations of misconduct against Quintana. And once again on Thursday, Acevedo said he wanted to respond—this time to Harrington and to attorney and activist Ann del Llano—but the Law Department did not want him to do so.

 

During citizen comments on the compensation for City Manager Marc Ott, Del Llano said, ”Harrington wanted to point out that the chief’s action in mailing out that report appears to be a jailable crime under Texas Local Government Code …(civil service law)…” 

 

However, McDonald told In Fact Daily “the chief, under the powers of the chief, has the ability to seek advice from different sources in order to make a decision. As I’ve said before, the city does not supports the comments….but what I can tell you that Chief Acevedo makes his best effort—he’s not a criminal, he’s doing the best job he can.”

 

He said the law does not address the chief’s ability to get comments from “others in similar positions …the chief has the ability to seek outside sources,” he said.

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