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Smith retires suddenly, a casualty of shooting report controversy

Thursday, May 20, 2010 by Jo Clifton

Under pressure from City Manager Marc Ott over legal advice related to the release of a report on the shooting death of Nathaniel Sanders, City Attorney David Smith announced his decision to retire on Wednesday. Smith, who became City Attorney in 2003, was a litigator when he joined the Law Department in 1997.


Although his retirement will not be effective for a month, Smith will take vacation days in the interim, making his absence immediate, Ott said. Speculation about Smith’s departure had been circulating on the second floor of City Hall for two days, along with speculation on the future of both the city manager and Police Chief Art Acevedo.


After months of saying that the report could not be released, the Law Department last week suddenly reversed its ruling on the release of the KeyPoint Government Solutions report. That report concluded that Officer Leonardo Quintana used excessive force and flawed tactics in dealing with Sanders in the May 2009 shooting. The writers of the KeyPoint report — which the city commissioned at the request of a Council-appointed citizens group — concluded that his actions were so reckless they may have been criminal.


Acevedo did not agree with those results but suspended Quintana for 15 days for not activating his patrol car camera during the incident. Acevedo fired Quintana for allegedly driving while intoxicated earlier this month.


In his retirement letter, Smith wrote, “As you are aware, questions have been raised concerning legal advice given to you, the Mayor and Council, and the City. I have been lucky to share in the many accomplishments of the Law Department, but take full responsibility for any mistakes we have made.”


On Tuesday, Mayor Lee Leffingwell sent a memo to Ott asking for “a detailed written accounting of city staff’s decision-making process,” placing specific emphasis on how the city reached one legal conclusion last fall and then another totally different conclusion last week regarding the report.


Leffingwell told In Fact Daily, “We need to discuss this whole process, how it came about and what we can do to make sure nothing like this ever happens again.” He said he wanted a report on “the whole process of the rationale for not disclosing it.” He noted that he had been told “pretty firmly based in state law” that the report could not be released. “And then all of a sudden we could disclose it. It just seemed to me that it should have been on firmer ground.”


Ott told reporters at a hastily called press conference late Wednesday that Smith’s decision to retire was a personal one but that the attorney “recognized that I had some concerns … I asked him to think about his current status.”


Last week, when the furor over the release of the KeyPoint report reached a boil, Ott said he met with Smith and “I expressed some concerns to him about the guidance that I was receiving and the city was receiving … I expressed concern about how this situation was being handled.”


Ott made it clear that Smith had few options this week.


Council Member Bill Spelman said he had been working with Smith since he was first elected in 1997. “I found (Smith) to be a pleasure to deal with almost all the time … and I wish him very well,” he said.


But having said that, Spelman told In Fact Daily, “I had tremendous questions about his decisions, particularly in the Sanders case … I think all of us did. We had a raucous executive session where we were reviewing what the options had been for the city manager and the Law Department and the Police Department … Clearly there were a lot of questions that had gotten bad answers … we were told unequivocally … that we cannot release the results of the independent investigation.”


Spelman said the Council was never told that the reason the report was being withheld was because of the contract between the city and the Austin Police Association, but once someone in city management learned that the APA would not oppose the release of the KeyPoint report, then the Law Department found a way for that to happen.


In a memo to Mayor and Council, Ott said, “David has given this City many great years. He has recruited many talented attorneys into our organization. His commitment to the City of Austin will always be valued.”


Karen Kennard, who has been 1st Assistant City Attorney, will serve as Acting City Attorney.

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