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Thursday, September 11, 2008

Investigation into Grand Jury Charges Costly to City

In June, the Yolo County Grand Jury released its annual report, in it were reports that severely questioned some of the operations of the Davis Fire Department. City leaders and the Vanguard called for an independent investigation into these allegations hoping that the issue would be resolved one way or another.

The city manager named Police Ombudsman Bob Aaronson as the independent instigator and he has been hard at work interviewing past and current Davis firefighters.

However, on the council agenda this past Tuesday was an item authorizing an additional expenditure of $35,000 to Mr. Aaronson in order to conduct this investigation.
The city's staff report reads:
"Mr. Aaronson’s charge for investigations is $195 per hour plus expenses. Staff had hoped to keep the cost of the investigation below $25,000. It now appears likely that cap will be exceeded as he has already spent many hours interviewing employees and others affiliated with the Fire Department. There has been more interest than we originally anticipated from employees and others to meet with Mr. Aaronson to talk about the Grand Jury findings and it is apparent that for Mr. Aaronson to complete a comprehensive and fair report, additional time and costs are required. As the total amount for the project is now expected to exceed the amount the City Manager is allowed to authorize without Council approval, staff requests that Council approve the attached resolution to authorize the City Manager to execute Amendment #1 to the original contract, which would extend the contract with Bob Aaronson in an amount not to exceed $35,000."
This item was placed on the consent calendar, however Councilmember Lamar Heystek pulled the item from consent and proceeded to ask the City Manager, Bill Emlen, a number of questions about this contract extension. One of the more surprising responses was the acknowledgment that Bob Aaronson's base contract which awards him with $60,000 as a part-time Ombudsman, would not be sufficient to conduct an independent investigation even of the Davis Police Department.

It was my understanding that the reason he was hired was expressly to do these sorts of investigations into the police department as warranted. This has led to further questions about the position and what the position is supposed to do and whether the position's focus has shifted from its original intention. For instance, Bill Emlen mentioned that Mr. Aaronson was instrumental in helping the department to resolve the issue of videos in squad cars. While it is great that Mr. Aaronson could provide that assistance to the department, it does not seem to be the role that he was hired to do. There would seem a number of individuals better suited for the role of fixing the video systems in squad cars.

That said, I have been one of the most outspoken advocates for conducting this independent investigation and I have at this point full confidence in Mr. Aaronson's ability to conduct it and really believe he was not only the best option but the only option to produce a report that would have the necessary impartiality to convey confidence no matter the outcome. Nevertheless aspects of this contract were concerning. During a conversation with Bob Aaronson, he recommended I interview him on the record about these concerns so that he could address them to the best of his ability.

According to Bob Aaronson there will be two different versions of a final report on this incident:
"One that I will anticipate being released publicly and one that I will anticipate being held confidentially."
He hopes to have this completed perhaps by the end of October if not sooner.
"My hope at this point is to be done within the next 30 to 45 days. How it plays out after that isn’t my call."
When Councilmember Heystek asked Bill Emlen what the $35,000 cost was covering, Bill Emlen gave vague and non-specific answers.

Bob Aaronson told me that he would not be provided with support staff on this investigation.
"The investigation includes extensive interviews, document review, basically in my view, I am studying the fire department. It’s hard always to predict what I’m going to decide is relevant to an aspect of the investigation. I am interviewing current employees. I may or may not interview some former employees as well as interviewing people outside of the fire department. In my experience investigations are labor intensive. There isn’t a substitute for that."
Unfortunately he believes that these types of investigations are costly.
"The core problem is that an investigation, I don’t care who conducts it, is very labor intensive. It winds up being very expensive no matter who conducts it."
In fact, it is more costly than even the $35,000 implies.
"The $35,000 does not represent the entire cost of the investigation, because basically I have shifted hours out of the police ombudsman area in order to try to keep down the additional costs. So I would estimate I’ve probably shifted 20 hours so far."
The basic cost of this investigation probably runs from $50,000 to $60,000.
"If it’s going to be a thorough investigation it’s going to cost. Frankly if a jurisdiction I didn’t work in called me, and made this proposal, fire department, about 50 employees, you’re probably going to have to interview most of them, some former employees, there’s this grand jury report, and there’s basically a Jackson Pollack picture of the issues, it’s not a single issue, it’s all of these confused, convoluted issues, I’d probably quote them that it would be at least $50 to 60,000 maybe more."
I did not ask him, though I should have, what work he was doing as Police Ombudsman was being scrapped because of the fire investigation.

However, this additional contract was necessary for a variety of reasons, one of which was that he couldn't use all of his hours as police ombudsman to conduct this investigation.
"It wouldn’t have been feasible for me to try to complete this investigation and basically steal all of my hours from police to do it. In fact, I suspect that certain bloggers would take issue with the fact that the oversight of the police department had fallen off the edge of the table because the fire department investigation was taking precedence."
He suggested that if he had attempted to do that this would have been an eight or nine month investigation based on the number of monthly hours he would use.
"If you read the contract, I think it more or less lays it out. I don’t think anyone envisioned that the contract was going to actually encompass the hours that it would take to conduct my own investigation. That for the most part that contract is there to interact with the public, to review citizens complaints, to do a certain amount of ride-alongs, to basically be involved as oversight as opposed to first line investigation."
Mr. Aaronson also emphasized to me that this is a very rare occurrence. In Santa Cruz for instance, he has had one independent investigation in six years. That is the highly publicized case where the police illegally conducted surveillance on peace protesters.
"I would be surprised if this comes up [independent investigations by the ombudsman] more than every third or fourth year. I suppose there is a remote possibility if the city was satisfied with my report that they might use me more. But my general experience is that it’s with that frequency."
While Mr. Emlen suggested that Mr. Aaronson would possibly need an additional contract to conduct these type of investigations into the Davis Police Department, Mr. Aaronson somewhat downplayed that possibility.

A chief difference between the police department and the fire department is that the police already have investigators capable of conducting these kinds of investigations. They have investigators that primarily do arson investigations, but most fire departments, particularly small departments like Davis do not have professional standards units like those that exist in police departments.
There aren’t people who work for the fire department that have the level of expertise. There are people in the police department that have the level of expertise to conduct a competent, thorough investigation.
As a result in a case like the Buzayan case, Bob Aaronson would like operate more as an auditor than as the primary investigator.
"There are instances where if the decision were made that I felt comfortable with, that the police department would do the initial investigation in something like the Buzayan case."
However, the question as to whether he would need an additional contract to conduct his own investigation appears to be answered in the affirmative.
"I could be involved and it wouldn’t necessarily require an additional contract. On the other hand if I were asked to be the lead investigator on it, it would probably require an additional contract."
In the role of auditor, he believes for the most part, he can review the case and have a general sense if the the investigation was done correctly.
"In my view there’s a way, that once I know the given investigator and I know the quality of their work product because when I audit an investigation, I’m listening to things in their interviews and I’m comparing it with the transcripts and the summaries. Then I go through their analysis with a fine-tooth comb. I’m making sure that they’ve gathered all of the evidence, and talked to all of the witnesses. So I suppose it would be possible to sneak something past me, but it’s pretty hard.

I listen to the recorded interviews of the witnesses, because typically that will tell me a lot about what the investigator did or didn’t do. If I have a heightened level of concern in a given case, I might insert myself more. But generally speaking I find that auditing is a way to provide the oversight function in a cost effective way."
It is the cost of these investigations that drives the form of them.
"In an effort at cost savings, both in Davis and also in Santa Cruz, the vast majority of investigations are conducted by city employees and I audit those investigations."
He continued,
"Part of the reason I’ve taken the job here and I’ve taken the job in Santa Cruz, and when we first did the interview I discussed this, this to me is an experiment in trying to find a way to provide cost effective civilian oversight to jurisdictions that couldn’t support a fulltime function. If you sit down and look at some of the bigger jurisdictions, they spend a lot of money. And even those aren’t even doing their own investigations. This is the big difference around the reason why something like the office of citizen complaints in San Francisco is such a huge budget line item for San Francisco and on the top of that, they have a terrible backlog. If you want to do an investigation thoroughly, you’re going to have to pay for it."
Notably he added:
"You are basically asking for a fancy French meal at McDonald’s prices. And that’s really hard."
However, Bob Aaronson did reiterate that while he was trying to conduct this in a prudent fiscal manner, he was confident he would do an effective investigation.
"I’m not going to do a substandard job."
He elaborated on this:
"I really relish working as the police ombudsman here in Davis. A concern I had very early on, in taking on this additional assignment was that something in the additional assignment would sour people to the extent that it would undermine my ability to go forward as the police ombudsman. One way to have that sour would be to force the city to pay more than they can reasonably bear. Part of the difficulty is that some of the allegations that are raised, are allegations that if true might mean that there are employees that have lawsuits against the city. Six figure law suits. How much do you want to expend investigating six figure lawsuits?"
During the meeting on Tuesday night, Bill Emlen mentioned that Bob Aaronson had paused his investigation while the contractual matter was being ironed out. Bob Aaronson was able to clarify this point.
"One of the things I most fault big investigations for is how much time it takes for them to be completed. So if I have time on my schedule when I’m available for some given assignment I like to really plunge in. I think I got ahead of everyone else. I would up doing a lot of work, conducting a lot of interviews in a relatively short period of time. It became apparent to me that although city officials had been alerted to what the expense was going to be, those things hadn’t been moved into place."
Mr. Aaronson told me that he's probably interviewed between 25 and 30 people already.

He emphasized the fact that the fire department has been extremely cooperative in this entire process.
"A positive sign is that there’s no question that the fire administration has an interest, it has been expressed to me, in as thorough an investigation as possible. They’ve encouraged employees to come and talk to me."
Moreover, he has not felt that the fire department has tried to thwart his efforts.
"I haven’t gotten the impression that the fire department is trying to shut me down or push me away in any way, shape, or form."
Finally he also emphasized that citizens should not be concerned about the quality of the service provided by the fire department.
"If there are people in the public that having heard things are concerned about service to the public, the piece that I can share at this point, neither the grand jury report nor anything that I have seen in my work suggests that the public is being disserved. I think that the quality of fire service in the city of Davis is high."
That has been my experience and belief as well. Whatever issues exist in the fire department, quality of service and work product are not among them.

However the ability of the city to provide vital services is not infinite. The amount of resources consumed by a single department and allegations of misconduct on their part are of great concern to the taxpayer and citizen of Davis. The cost of this investigation, as small as it is in the scheme of things, is just another reminder of the consequences of the failure to resolve issues at a more basic level.

Hopefully the Grand Jury report's recommendations will be thoroughly reviewed and implemented to the extent possible. I do not remain optimistic that much can be resolved in terms of the issues raised by the report in the short term. I can only hope that whatever the result of Mr. Aaronson's investigation, that the city takes his findings seriously and acts on them when necessary.

---Doug Paul Davis reporting