CITY ATTORNEY COMMENTS 9/19/2022
Good evening, I am Rob Epstein. I am the city attorney of San Rafael. By having an elected city attorney, our City is different from all the other cities and towns in Marin as well as the County, all of whom appoint their legal counsel. For the past two weeks, I have been receiving your emails and calls and have read your posts directed to me on Instagram and Facebook. This is a first for the city attorney. My work usually draws little attention.
You have been demanding that I reconsider my appointment of Paul Henry, a retired police lieutenant as the person who will conduct an Internal Affairs investigation which will be the first step of a complex police disciplinary process. The matter concerns the July 27 incident in the Canal neighborhood, which was captured on video which has been in the news.
The laws that apply to how the investigation is conducted and what happens afterward are complicated. It is often times difficult to make sense of the law and how it is applied. Lawyers and judges struggle with it every day. My specific subject tonight is known partially as employment law, but we are operating in the even more specific area of police disciplinary proceedings. That subject — the investigation and disciplinary outcomes — is governed by many statutes and appellate cases. It takes a semester class to discuss all the ins and outs of the process. I will do my best with limited time tonight.
In addition to what I am saying tonight, the IJ has kindly printed a Marin Voice column that I submitted that explains my decision. A copy of what I wrote is available on the City website in Spanish and English. But the IJ gave me only 700 words! Anyone who knows me is aware that was a difficult restriction for me. I’d like to take a little more time tonight to explain who I am and why I made the choice that I did.
I believe that many if not most of you are here tonight to tell me and the City Council how you feel about this issue. Please know that I want to hear everything you have to say, even if you and I disagree. You have every right to disagree and to express your position to me and the City Council. I only ask that you also please hear me, and consider my role, and my personal history in San Rafael. I don’t expect to change your minds. I only hope to explain myself to you.
As I said, I am the City Attorney. You see me at the City Council meetings, but I don’t say much except when the City Council asks a legal question or I otherwise need to give legal advice during the meeting. Like the city staff and City Council, most of my work is performed outside City Council meetings. My job is to represent and give legal advice to my client, which is the City. In communicating with me, the City ultimately speaks through its highest body — the elected Mayor and City Council. But while I provide advice to them, I also advise the City staff. In an employee disciplinary process.
This incident happened on July 27. The City didn’t talk about it until the most recent city council meeting on September 6, on what was probably the hottest day of the year, when so many of you showed up — having already seen the video — to address the Council. Why did it take six weeks for the community to hear about it, you asked? What has the City Attorney and everyone else at City Hall been doing about it until now?
It is important for me to explain the timeline of what happened in the Marin County court regarding the incident, which I and the City Council only learned about later, after it happened. You all know the incident happened on July 27th. The officers responsible for the preparation of the police report completed it, transmitted it to the Office of the District Attorney, and the DA’s office filed a criminal complaint six days later on August 2 with four separate charges including battery on a police officer. The initial hearing was held on Monday, August 15, two weeks later. The defendant entered a “not guilty” plea and refused to waive time, requiring the scheduling of a preliminary hearing within 15 days. The judge set the preliminary hearing for the following Tuesday, August 23. On that date, the deputy district attorney told the court that she had just received the body worn camera video the day before, and had not had an opportunity to review it in its entirety. Over the objection of the defendant, the Judge agreed to continue the hearing for three more days, to Friday, August 26. On that date, the deputy district attorney told the court that after her review of the police report and the body worn camera footage, “the People are unable to prove the charges.” She made a motion to dismiss the case which the Judge granted ending the case against the individual who was arrested.
The week following that Friday, the week of August 29, was the first that my office, police command staff, and City management staff first learned about the incident, just before the story first hit the media which was also just before the Labor Day weekend. Then we had our Council meeting on Tuesday, September 6, the day after Labor Day. From the moment I learned of what happened and watched the video I have been working to commence the investigation that was triggered by what occurred.
What does this process look like? How does it work? Every piece, each component of it must follow rules and procedures prescribed by law. The process starts with an internal affairs investigation, which is known as an “IA.” At the same time, in this case, the District Attorney has announced that her office has initiated its own separate criminal investigation of the incident. Moreover, as was reported in the news, the FBI has contacted the City requesting that we provide it — the FBI — with evidence concerning the incident.
The City’s goal in this matter is to have 100 percent transparency to the greatest extent that the law will allow. We welcome the investigations and invite close scrutiny of this incident and of the police department overall.
And let me be clear: the local district attorney investigation as well as any federal investigation that may occur are totally separate and distinct from the City’s internal affairs investigation, which has a very singular purpose — the point is solely and only to measure the conduct of the involved officers against established written policies to determine whether those policies were followed, or not.
Given the allegations that have been made in Court and the media, the scoping of the investigation will have to consider the relevance and applicability of a number of written police policies — all of which you can read on the San Rafael Police website — including:
- The officer’s duty to be 100 percent truthful, honest, and accurate in everything they do, including, in particular, in writing their police reports.
- The officer’s duty never to use force unless it is necessary and, if force is required to be used, never to use unreasonable force.
- The duty of an officer who is present and observing another officer using force clearly beyond what is necessary to intercede to prevent the use of unreasonable force.
- And an officer’s duty never to engage in any act that brings discredit upon the police department.
After determining the applicable polices at issue, the investigator conducting the IA will examine the entire incident in detail. All of the written police reports, all of the body cam videos, all of the photos, plus any other physical evidence. The investigator will conduct interviews of all of the officers involved plus any and all witnesses, including the individual who was arrested, if they are willing to be interviewed. The officers must submit to the investigator’s interviews and answer all of his questions. If an officer refuses to answer the investigator’s questions, under the applicable state law and department policy, such a refusal would constitute insubordination and, in itself, would be grounds for termination.
After completing the interviews, the investigator will prepare a written report with findings as to whether the officers involved violated, or did not violate, each of the applicable policies.
The final report is delivered to the police chief who will then fulfill his key role in the process. The police chief will review the report and the investigator’s findings and make the initial determination — on behalf of the City — as to what disciplinary action, if any, should be imposed on the involved officers, including and up to the potential termination of their employment.
Any employee who is the subject of discipline is legally entitled to an internal City appeal and then has a right to contest the discipline at a private arbitration before a binding arbitrator. The legality and integrity of the IA investigation are tested in the arbitration process. The subject employee may point to any perceived irregularity in the investigation and disciplinary process to argue that their discipline should be reversed by the arbitrator.
For many years, since longer than I have been an attorney, these IA investigations have been conducted by police officers. Many of you are saying that the result of the investigation of police officers can’t be trusted if the investigation is conducted by a police officer. I have two things to say about that. First about the process itself, and second about me and my job as City Attorney.
First, I want to describe why, in this specific legal context, the most defensible opinions are those reached by a professional who does the same kind of work as the person whose performance is being evaluated. For example, take medical malpractice, an area in which I actually have some experience. Earlier in my career, I represented people suing doctors whose conduct was alleged to have caused injuries or death. Each of those cases required me to hire expert doctors to give opinions about those doctors who were alleged to have made mistakes. Similarly, findings of misconduct against a police officer are most straightforward to defend when those findings are made by another police officer. In this case, if the City ends up at a future arbitration — where the question concerns the discipline imposed against any police officer — the City will be required to defend the discipline by defending the investigation and the findings. For the City, it is not a forum in which it should rely on a co-investigator, a non-professional investigator, or really anyone who doesn’t do these kind of investigations all the time. At this moment in history, the only kind of person whom I can rely upon to do it correctly in a way that I can be confident that I will be able to defend, if need be, someday, at an arbitration, is person who has substantial training and experience as a police officer. Maybe that will change someday, but that is the way the law and process operate now.
Along with the fact that Paul Henry is a retired police officer, people have also complained about his work as a Santa Rosa police officer in connection with the investigation of a 2013 shooting of a 13-year-old boy, Andy Lopez, by a Sonoma County deputy sheriff that ultimately resulted in a finding of no criminal liability for the deputy sheriff. In that case, the FBI and the Sonoma County District Attorney’s office conducted their own independent investigations and reached their own conclusions not to file a criminal complaint. Mr. Henry had no involvement in the DA or FBI investigation of that case. Nor will he have any involvement in the Marin County District Attorney’s investigation of the July 27 incident in San Rafael, nor in any FBI or other investigation that may occur.
In addition to Mr. Henry’s involvement in that single case in 2013, I can tell you that he has separately performed more than 150 independent IA investigations. For those of you who believe he will not be neutral in this particular case, I don’t believe that — or I wouldn’t have hired him — and I personally won’t allow the process to be anything but completely fair and unbiased.
Over the years, San Rafael has been like many other California cities in that the police IA investigations have been done in house by a captain or lieutenant. In the IA context, an independent investigation refers to having an individual outside the organization conduct the investigation. We clearly heard community concerns and hired an independent investigator who is not a part of San Rafael’s police department. For those of you who believe that a former police officer will never make findings against another officer, please know that Mr. Henry has been involved in many IA investigations in which he has made findings of misconduct against other police officers.
As for your other concerns about Mr. Henry’s background, it is my job, as the city attorney, to ensure that all aspects of the disciplinary process, including the investigation, are free from any bias or prejudice based on the race, ethnicity, gender, or any other aspect of the individual who was arrested or of the officers who were involved, or anyone else.
And yet nothing that I have said thus far may persuade you that the City’s internal affairs investigation and disciplinary process in this case will end up with a fair result. So this is the part in which I want to tell you a little more about me and how I view my role as City Attorney, because it is my job to supervise the entire police disciplinary process and make sure that it is done properly, that the investigation is neutral and without any bias, and that the result of the process is lawful and just.
I have lived in San Rafael my entire life and I am old. I am four years older than this City Hall building that we are in — and it is really old. My brother, sister, and I all went all the way through San Rafael City schools and my three kids did too. I still go to San Rafael High two nights a week to coach the mock trial team, which is one of my favorite activities. I have very deep roots in this community.
I have been an attorney for 31 years and city attorney for 15 years. The community has elected and re-elected me as city attorney four times. I will be up for re-election again in 2024 at the time of the presidential election.
I have worked hard over many years to earn my reputation in our community. If you ask any one of our 12 sitting Marin County Superior Court judges, or any of our retired judges, about my reputation and character for honesty, ethics, and fairness, I am confident that you will receive a consistent response. I have nothing to gain from overseeing a process that is unfair, cooked, pre-baked, fixed — whatever you want to call it. And I certainly would never be involved in something that is tainted with any kind of racial or ethnic or any other kind of bias. Instead, I personally will oversee this investigation and the entire disciplinary process to ensure that it is done right. The result must be fair, impartial, and any discipline that may be imposed on any officer or officers must be able to stand up to challenge at arbitration and be permanently binding on the officers involved and the City.
I often say that you hire an attorney to give you their best advice, not to tell you what you want to hear. It is very frequently the case that an attorney’s advice is something the client doesn’t like and doesn’t want to hear. It is just part of being an attorney. I have gotten used to giving advice that my client doesn’t like, but it has never gotten easier for me.
The City has a strong interest in having the interviews of the involved officers and other witnesses conducted as soon as possible, without any further delay. Each of the interviews must be scheduled with the involved officers and their counsel, as each of them is entitled to have an attorney present when they are interviewed. In a case with multiple witnesses and a substantial amount of evidence to review with the witnesses, they will not be short interviews. This is why I already told the IJ what I know deep in my bones, which is that it is very likely to take months. You would like it to take weeks, and believe me, so would I, but I have to tell you what I know to be true based on my past 31 years of scheduling dates with litigation attorneys and their clients and spending long days with them in depositions and trials.
In this case, we already experienced a one-month delay before the IA was even opened, after which we immediately started looking for an investigator. We made a lot of calls. When Mr. Henry’s name came up and I contacted and interviewed him, I confirmed for myself that he is more than qualified for this assignment that requires unique qualifications and experience. In my view, at this juncture, it would be a critical error to dismiss Mr. Henry and replace him with someone else, or saddle him with a “co-investigator” which some have suggested. Mr. Henry already has begun the investigation — we do not want to hire someone else who will have to start all over again. And we are extremely unlikely to locate an independent investigator more experienced than Mr. Henry who is also ready at this moment to drop whatever they are doing, come to San Rafael, and re-start this already-pending investigation. And most importantly, even if we did, and regardless who they were, the firing of one investigator due to public pressure and the hiring of a second would in itself give any police officer who receives discipline the gift of an argument that the City had been making decisions at the outset based on prejudgment and bias against the officers. In other words, in my view, if any of the officers are found to warrant discipline, including potentially termination, the very thing many of you are asking for — the dismissal of Mr. Henry and hiring of a new investigator — could make it more difficult for the City to defend its disciplinary action at arbitration. In other words, there is a risk that the City could lose the arbitration which would mean that the City’s potential determination that an officer should be fired would be overturned by the arbitrator.
Thus, the easy thing for me to do would be to bow to public pressure regarding my choice of the investigator. But my ethical duty to my client, the City of San Rafael, requires me to do what I believe is right, which in this case isn’t the easy thing to do. Mr. Henry is fully qualified to conduct this investigation. It is critical that we get it done as soon as possible. For this reason, plus those reasons that I already have stated, Mr. Henry will continue and complete the investigation.
I respect all of the opinions that I have received on the subject, including those that you may choose to express tonight, but with that said, I hope that you now understand why I will not be changing my decision regarding Mr. Henry.
In closing, I want to say a word about the public disclosure of the investigation report after the process is over. As I said earlier, the City welcomes the scrutiny and would far prefer to have complete and total transparency about all aspects of this matter. And yet, once again, my job in connection with the City’s disclosure of information about the investigation is to make sure that the City follows the law.
You can Google California Penal Code Section 832.7. That is the statute that sets forth the general rule of confidentiality that governs the report, investigation, and findings — and enumerates certain important exceptions to that general rule. Those exceptions were broadened in an amendment to the law that became effective on June 30th of this year. Those rules will govern the City’s disclosure of the investigation after it is over. I promise that the City will disclose all aspects of the investigation that it is legally permitted to provide under the law.
Thank you for your careful attention to my remarks. As I said at the outset, I don’t expect to change the minds of those who disagree with my decision. And I and the City Council want to hear what you have to say, whether or not you agree or disagree.