Report on San Jose's IPA probe by BayAreaNewsGroup

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									  INVESTIGATION REPORT
     REGARDING THE
OFFICE OF THE INDEPENDENT
     POLICE AUDITOR


               PREPARED BY


              M. D. MOYE, ESQ.
            HANSON BRIDGETT LLP
       425 MARKET STREET, 26TH FLOOR
          SAN FRANCISCO, CA 94105
               (415) 777-3200


               JUNE 30, 2010




                                       2389 i 9 i.i
                                                            T ABLE OF CONTENTS

                                                                                                                                                                                     Page


I. INTRODUCTION ...........................................................................................................1
       A. The Context of the Investigation .........................................................................1
       B. Report of Investigation.............,..........................................................................2
II. EXECUTIVE SUMMARy.......... .......................................... .............. .................. ...........4
       A. There Is No Evidence of Inappropriate or Illegal Disclosure of Information
                   Related to or Taken From Complaints Filed with the IPA.................................... 4
         B. The Evidence Does Not Indicate the Work of the IPA Was Affected By
                   Conduct of IPA Staff Who Made Statements to Third Parties .... ....... ......... ......... 5
                   1. There is evidence of statements by IPA staff to outside parties in
                                  or about 2009, which statements do not appear to have had an
                                  adverse impact on IPA functions or the credibility of the office................ 5
                   2. There is evidence of conduct by IPA staff during the period 2007-
                                   2008 that had the potential to create a conflict of interest with the
                                   obligation oUhe IPA to carry out its charter in a fair and impartial
                                   manner ...................................................................................................5
                   3. Though there is evidence of conduct by IPA staff during the period
                                   2007 -2008 that had the potential to create a conflict of interest, the
                                   evidence faiis to demonstrate that this conduct affected the work
                                   of the IPA................................................................................................6
          C. There Is No Evidence of Intent to Undermine or Interfere with the IPA ..... ..........6
III. SCOPE OF THE INVESTIGATION ................................................................................ 6
       A. Witness Interviews .............................................................................................6
          B. Documents Reviewed.........................................................................................7
IV. LEGAL STANDARDS AND IPA POLICIES ....................................................................8
     . A. State Laws Applicable to IPA Activities............................................................... 8
              1. California Government Code Section 1222............................................. 8
                    2. California Penal Code Section 832.5 Citizen's complaints against
                                   personnel; investigation; retention and maintenance of records;
                                   removal of complaints; access to records............................................... 8
                    3. California Penal Code Section 832.7 - Confidentiality of Peace
                                    Officer Records; Exceptions....................................................................9
          B. San Jose City Charter and Municipal Code Provisions Applicable to IPA
                    Activities. . . . . . . . . . ..... . . . . .. . . . . . . . . ... . . . . . . . . . . . .............. . .... ... . . . . . .... . .... ................... . ... ... .. 1 0

                    1. City Charter Section 809 - Office of the Independent Police
                                   Auditor .................................................................................................. 10
                    2. Municipal Code Section 8.04.010 - Duties and Responsibilities ... ......... 10


                                                                                         -1-
                                                     TABLE OF CONTENTS
                                                                 (continued)
                                                                                                                                       Page


                     3. Municipal Code Section 8.04.020 - Independence of the Police
                                 Auditor ..................................................................................................11
         C. Other Authority Relevant to IPA Activities......................................................... 11
                     1. Code of Ethics - National Association for Civilian Oversight of Law
                                 Enforcement.......................................................................................... 11


V. FACTUAL FINDINGS AND ISSUES ............................................................................ 13
      A. IPA Policies and Procedure ......... ..................... .............. ...... .......... ....... ........... 13
             1. Complaint Procedures.......................................................................... 13
                                 a. Intake and "Classification of Complaints"................................... 13
                                 b. Interaction Between IPA and Internal Affairsllnvestigation......... 14
                                 c. Audit Function........................................................................... 14
                     2. IPA Records and Information .............. ............ ...................................... 15
                                 a. Confidential/Protected Information ............. ................... ............ 15
                                 b. Sensitive Information................................................................. 15
                     3. Standards of Conduct and Independence of the IPA............................. 16
          B. Allegations of Potential Compromise of IPA Confidential                                      Information............... 17
                      1. In June 2009, a potential problem in the IPA was reported to
                                  Skyler Porras and in May 2010 she reported this information to the
                                  new IPA ................................................................................................17
                                  a. In a conversation with Ms. Porras, Sergeant Lopez stated
                                              he was receiving information from IPA staff............................... 17
                                  b. On May 20, 2010, Porras reports the conversation with
                                              Sergeant Lopez to the new IPA ...... ................ ........................... 18
                      2. A separate, and conflicting, report of allegations of inappropriate
                                  communication between IPA staff and the POA emerged after
                                  Judge Cordell began her investigation.................................................. 19
                                  a. . A report of misconduct is attributed to Sergeant Lopez............. 19

                                  b. After the Mercury News article, Sergeant Lopez makes
                                              clear that he received no confidential information from
                                              anyone on the IPA staff and that the news article was not
                                              accurate.................................................................................... 19
                                  c. Sergeant Lopez explains the interactions that he had with
                                              the IPA staff...............................................................................21
          C. Evidence of Communications Between Lopez and IPA Staff as to Staff

                      Contacts #1 and #2 .......................................................................................... 22
                      1. Communications related to specific cases ...................................;........22

                                                                         -11-
                                                    TABLE OF CONTENTS
                                                                (continued)
                                                                                                                                       Page


                    2. Communications related to IPA policies and procedures ................ ...... 23
                                a. Staff Contact #1 ......................................:.................................23
                                b. Staff Contact #2 ........................................................................ 23
         D. Evidence of Communication Between IPA Staff and Outside Parties ...............24
                    1. Communications related to specific cases............................................ 25
                    2. Communications related to IPA policies and procedures ............. ......... 25
                                a. During the tenure of IPA Barbara Attard .................................... 25
                                b. During tenure of Acting IPA Shivaun Nurre ........................ ....... 25
Vi. FINDINGS AND ANALyS~S.........................................................................................26
         A. Is There Sufficient Evidence To Determine Whether the Matters Alleged
                    by Sergeant Lopez Occurred?......................................................................... 26
         B. Is There Evidence that Confidential           Information, As Defined By Relevant
                    Statute, Ordinance, and/or IPA Policies and Procedures, Was Disclosed
                    in Violation of IPA Policies or Applicable Law? .......................... ........ ...............26
                     1. There is no direct evidence that any IPA staff disclosed protected
                                 information............................................................................................ 26
                    2. The circumstantial evidence demonstrates the absence of an
                                 illegal disclosure of information............................................................. 27
         C. Is There Evidence that InternallPA Communications or Other Non-Public
                     Information (e.g., opinions, policy discussions, etc.)                Was Disclosed to an
                     Outside Party?...............................................;.................................................28
                     1. The conversation with Staff Contact #1 is evidence that an
                                 employee engaged in a conv~rsation with Sergeant Lopez that
                                 may have been construed as disclosing non-public information,
                                 but the facts do not establish inappropriate conduct.............................. 28
                     2. There is insufficient credible evidence to determine that any of the
                                 conduct attributable to Staff Contact #2 is evidence that a
                                 particular employee disclosed non-public information, and, in any
                                 event, the facts do not establish inappropriate conduct......................... 28
                     3. The conclusion reported to Judge Cordell that a specific employee
                                 engaged in misconduct is not supported by the evidence..................... 29
                     4. The evidence shows that an employee of the office made
                                 comments that could have been construed as criticism of office
                                 policy .....................................................................................................30
         D. Is There Evidence that any Activity of the IPA Was Affected as the Result
                     of Interaction Between IPA Staff and Outside Parties? .....................................31




                                                                        -111-
                                           TABLE OF CONTENTS
                                                       (continued)
                                                                                                                               Page


                1. As the evidence demonstrates no unauthorized disclosure of
                         complaint-related information, the credibility of the IPA function
                         has not been permanently impaired ..............................................,....... 31
                2. The evidence demonstrates that the integrity of the IPA complaint
                         process has not been compromised..................................................... 32
       E. If There Was a Disclosure of Either Type, Is There Evidence That Any
                Disclosure Was Intentional? .............................................................................33
ViI. CONCLUSIONS AND RECOMMENDATIONS ............................................................35
       A. As to the Allegation of Unauthorized Disclosure of Information Protected
                from Disclosure Under State or Local Law:.......................................................35
       B. As to the Allegation of Disclosure of Information that Constitutes a
                Conflict of Interest Between a Member of the IPA Staff and the IPA or
                Similar Violation of the Municipal Code: ........................................................... 35
                 1. With respect to the communications between Sergeant Lopez and
                          IPA staff in 2009: ..................................................... .............................35
                2. With respect to the communications between Sergeant Lopez and
                          IPA staff alleged to have occurred between 2007 and the end of
                          2008: ....................................................................................................35
                 3. With respect to communications between IPA staff (Employee C)
                          and internal affairs that occurred between 2007 and the end of
                          2008: .....................................................................................................35
        C. General Recommendations.............................................................................: 36




                                                              -lV-
                                                          i. INTRODUCTION
        On June 3, 2010, Judge LaDoris Cordell requested an outside investigation of
allegations that staff of the Independent Police Auditor (lIPA") disclosed information concerning
complaints filed with the IPA contrary to IPA policies and procedures or legal obligations.
Although Judge Cordell did not receive direct evidence regarding the alleged unauthorized
disclosure, the report that such a disclosure may have occurred warranted a full investigation of
the relevant facts and circumstances.

       This investigation was undertaken with the purpose of determining the facts related to
the specific allegations such that Judge Cordell could 1) determine the need for or
appropriateness of employment actions and 2) assess the extent to which related corrective
action might be undertaken by the IPA in light of the allegations and factual findings.

A. The Context of the Investigation.
            The need for investigation arose from a report to the newly appointed IPA of potential
misconduct by IPA staff. Although this report did not reflect direct knowledge of misconduct or
the identity of the IPA staff involved in the alleged misconduct, there was sufficient information
for Judge Cordell to be concerned and to feel that outside investigation was warranted. In
particular, it was apparent that actual disclosure of information accorded confidential status by
law or policy constituted serious misconduct amounting to illegal activity and a threat to the
independence/credibility of the IPA office. Likewise, evidence of conduct in conflict with IPA
policy, or suggesting public disagreement with IPA policy, could constitute misconduct; the
question of misconduct and the seriousness of the transgressions depended on the specific
circumstances and evidence of harm, actual or perceived, to the office. Judge Cordell wished to
be clear as to both the facts of incidents alleged to have occurred and evidence - or lack of
evidence - tending to corroborate the allegations, as well as facts and evidence from which to
assess the implications of any conduct related to the allegations.

        From the outset, it was clear that several factors could potentially complicate
investigation of the matter. First, the subject matter of this investigation is not a current issue -
both the original circumstances that prompted the report to Judge Cordell and the underlying
conduct being reported, date back more than a year before the initial report to Judge CordelL.

The person who initially reported this matter received the information that she was now
reporting in June of 2009. Between June 2009 and the May 2010 meeting with Judge Cordell,
this information had not been disclosed publicly or to the City. Additionally, at the time this
matter was brought to Judge Cordell's attention, there was no specific information to indicate
the alleged misconduct was continuing after June 2009. Ultimately, it became clear that the
allegations related to circumstances and events in the period 2007-2008. This lapse of time
challenged the opportunity to confirm the details of meetings and communications central to the
allegations.

            Second, although the allegations centered on conduct by a specific person, or persons,
those individuals were not identified by the person making the allegations. This situation is not
atypical, but does require a three-step evaluation of the evidence to reach a credible conclusion.
The first step seeks to determine the reasons that a name     is being withheld and the relationship
between that non-disclosure arid the credibility to be accorded the statements of the person
making the allegations - i.e., is there in fact a person to be identified? Next is the determination
of circumstantial evidence that is sufficient to draw a conclusion as to the identity and



                                                                            i                    . 2389191.1
assessment of what that evidence shows - i.e., does other evidence point to one person in
particular?1 The final step is determining what of the allegations can be sustained and
assessment of the importance of the unnamed person(s) to those allegations - i.e., assuming
these things occurred, what steps must be taken (legal action, disciplinary action, corrective
action, etc.)?


         Given the nature of the allegations - at a minimum the allegations call into question the
integrity and loyalty of an employee on the IPA staff - a particular sensitivity arises with what
amounts to essentially an "anonymous" allegation. Conclusions drawn from circumstantial
evidence can be more complicated than conclusions drawn from direct evidence. The due
process and privacy rights of the individual employees are entitled to respect/protection and
must be balanced against the investigative goals noted above: insuring proper enforcement of
legal requirements and protection of the reputation/credibility of the IPA.



        A final factor, also related to the delay in these matters coming to light, is the fact that
although it might be the case that no inappropriate conduct continued, there might be a question
as to the need for corrective action necessary to address earlier inappropriate activity or
misconduct. It is apparent that in directing the investigation, Judge Cordell sought a factual
basis for determining the potential impact on the operations and/or credibility of the office going
forward. Developing this issue requires careful development of facts that permit a distinction to
be drawn - as warranted based on seriousness, evidence of frequency and similar factors -
between past actions and current concerns.

B. Report of Investigation.

        Our report of investigation primarily sets forth a factual record to assist the IPA in
determining what misconduct, if any, had occurred and, thereafter, fashioning appropriate
responses, remedial actions and other corrective measures. Given the nature of certain of the
allegations, determining "what happened" in large part will have answered the question of
whether misconduct had occurred. For example, where the evidence demonstrated a
disclosure of information from IPA files, this finding by itself would constitute evidence of
misconduct. Accordingly, as to these issues we can and do offer our conclusions as to whether
the evidence sustains an allegation of misconduct.



              On the other hand, certain of the allegations concern subjective questions related to
office policy/procedure and standards. For example, certain interactions, not amounting to
violation of legal requirements or even standard policies, may be considered inappropriate or a
violation of policy according to management's interpretation of applicable conduct standards,
conflict of interest rules/guidelines, and the circumstances of the incident/event. As to these
issues, we report the relevant facts and, where the evidence permits, make factual findings to
resolve disputed or ambiguous facts. The ultimate determination of whether these facts
constitute misconduct or warrant corrective action/response is left to the discretion of City
management.




i Where the allegation identifies a specific person it is also necessary to determine whether circumstantial
evidence corroborates that identification. Typically, you can ask a specific person direct questions.
However, where the person is unnamed, questioning can be more problematic if the circumstantial
inquiries are vague or ambiguous or the circumstances do not suggest a likely suspect. The challenge is
balancing the unfairness of treating every employee as a "suspect" from    the outset against relying on
credible leads to develop circumstantial evidence.

                                                                                                     2389191.1
                                                                              2
        Accordingly, in setting the investigative objectives reflected in this report we sought to
determine all of the questions' - direct and indirect, relevant and irrelevant - that appeared to be
raised by the allegations and to use them as a guide in developing the available facts. To the
extent that these facts pointed to a conclusion within the charge of our investigation, we provide
that conclusion and appropriate recommendations. On the other hand, where the facts pointed
to determination of issues more appropriately addressed by the IPA or other managers, we
have endeavored to provide a complete record from which appropriate action can be taken.

           For the purposes of reporting our results, we have focused on the following general
issues:
               Is there evidence that confidential information, as defined by relevant statute,
ordinance, and/or IPA policies and procedures, was disclosed in violation of IPA policies or
applicable law?

               Is there evidence that internallPA communications or other non-public
information (e.g., opinions, policy discussions, etc.) was disclosed to a third party?

                       Is there evidence that any activity of the IPA was affected as the result of
interaction between IPA staff and third parties?2

                       If there was a disclosure of either type, is there evidence that any disclosure was
intentional?

           In developing the factual setting, we sought to differentiate factual findings based on
type of information, timeframe and context of communication. In our view, the question of .
whether the disclosure related to information specifically protected from disclosure by state or
local law raised different, albeit related, concerns as opposed to disclosures giving rise to some
other type of violation.3 We also believed that inasmuch as one significant issue is the question
of whether the independence of the IPA had been undermined by any sustained conduct, it was
reasonable to distinguish between conduct that occurred during the tenure of a particular IPA
and conduct that occurred afterwards. In the same vein, given the obligation of the IPA staff to
conduct "outreach," understanding whether any allegedly inappropriate conduct occurred during
such activity as opposed to private activities seemed a reasonable distinction. Thus, the context
in that regard seemed relevant.



           The report begins with a summary of our key findings and conclusions. In the'first part

of the main body of the report we outline the scope of our investigation and the tasks
undertaken in the course of the investigation, followed by a summary of pertinent legal authority
and policies. Thereafter, we set forth our factual findings and analysis. In the last section we
discuss recommended corrective measures.




2 Recognizing the unique role of the IPA and the concerns raised by these allegations and consistent with
Judge Cordell's direction, we have avoided narrowing our focus to the question of "compromise" to the
IPA's function and instead address the broader question of any conduct that might be perceived to affect,
at any level, the work of the IPA.
3 Generally, we assumed that to the extent confidential/protected information was disclosed
inappropriately, in addition to the objective statutory violations, there would likely be a violation of the
standards applicable to less sensitive information (See Section V.A, below).


                                                                                                         2389191.1
                                                                            3
       Also included in our report is an index of witness interviews (Appendix A), a timeline of
events (Appendix B), and a chart illustrating evidence of contacts between IPA staff and
Sergeant Lopez (Appendix C).


                                   II. EXECUTIVE SUMMARY

        There is no evidence to substantiate the allegations that were reported in the news
media. The evidence fails to demonstrate disclosure of confidential information. There is also
no evidence that any member of the IPA staff "leaked" information to the San Jose Police
Officers' Association or acted as a "spy" or "informant." It is possible that Sergeant Lopez
construed casual statements by IPA staff as criticism of office policy, the evidence fails to show
that any information was communicated to him with the intent of affecting the independence of
the IPA and there is no evidence that the processes of the office were so affected. Despite the
lack of timeliness to the allegations and the absence of identification of a specific employee on
the IPA staff, there is sufficient evidence to conclude that no violation of the law has occurred.

A. There Is No Evidence of Inappropriate or Illegal Disclosure of Information Related
       to or Taken From Complaints Filed with the IPA.

        There is no evidence that any information related to any complaints filed with the IPA,
investigated by the IPA, or audited by the IPA was disclosed by IPA staff in violation of IPA
policies or statutory requirements related to IPA files and records.4 The evidence demonstrates
that there has been no compromise of the integrity of IPA files/records and/or the confidentiality
afforded to - and expected of - information entrusted to the IPA. (See Section VI.B.1, below)

        Although two sources alleged that "specific information" concerning one or more
complaints filed with the IPA, or information held exclusively by the IPA, was disclosed to an
outside party, the evidence does not sustain this allegation. On the contrary, the original source
for these allegations has stated unequivocally that such disclosure has not occurred and the
secondary source has clarified her statement of that nature. Likewise, based on the evidence
adduced in the course of investigating these allegations, we have found no evidence, direct or
indirect, that information submitted to the IPA was submitted to or used by an unauthorized
party/person. To the extent that law and policy permit or require information submitted to the
IPA to be disclosed under limited circumstances, the evidence indicates the IPA staff acted in
accordance with those standards. (See Sections V.D.1 and VI.B., below)




4 Our investigation was limited to the conduct and actions of the IPA staff. We did not seek to determine
what actions were taken by third parties, except in relation to their interactions with IPA staff.
Consequently, our findings and conclusions do not purport to address questions of whether their actions
constituted misconduct or other operations were adversely impacted or interfered with. In conducting this
investigation, Judge Cordell's direction was clear that the fact that the actions of third parties may have
been proper (or improper) was not determinative of and would be irrelevant to her determination of the
culpability of IPA staff.


                                                                                                    2389191. 1
                                                    4
B. The Evidence Does Not Indicate the Work of the IPA Was Affected By Conduct of
            IPA Staff Who Made Statements to Third Parties.

            1. There is evidence of statements by IPA staff to outside parties in or about
                   20091 which statements do not appear to have had an adverse impact on
                        IPA functions or the credibility of the office.

        As a result of the end of the tenure of Barbara Attard as IPA, two members of the IPA
staff had conversations with San Jose Police Officers Association ("POA") President Sergeant
Bobby Lopez in 2009. Although Sergeant Lopez characterized one of those conversations as
similar to the information that he had been provided by another employee, the evidence
indicates this conversation constituted neither a disclosure of confidential information or a
potential conflict of interest.5 The statements by IPA staff reflected previously stated public
positions of the office and related to the issue of transition to a new IPA. The evidence indicates
statements by the IPA staff in this conversation were consistent with its typical outreach
functions and did not contradict past IPA practices or policies. (See Sections V.C.2 and VI,C.1,
belowl

            2. There is evidence of conduct by IPA staff during the period 2007-2008 that
                        had the potential to create a conflict of interest with the obligation of the
                        IPA to carry out its charter in a fair and impartial manner.

            Although there is no evidence to sustain the allegation of unauthorized disclosure of IPA
file information, there is some evidence of statements by IPA staff during the period 2007-2008
to outside parties commenting on IPA practices. The evidence shows that these comments
mayhave been perceived as relating to policies and practices of        then IPA, Barbara Attard. The
comments had occurred while Ms. Attard was in charge of the office and, as a result, could have
been perceived as criticism of the IPA.



       However, with respect to this aspect of this allegation that we could sustain, the
evidence in this regard is neither overwhelming nor precise, primarily because it appears that
these comments were made typically off-hand, in casual conversation as opposed to indicating
a purposeful intent. Moreover, it was not possible to corroborate the specific circumstances
(content of statements or places/times statements were made) alleged by Sergeant Lopez and
in certain instances his allegations are contrary to the available evidence. The lapse of time,
inconsistencies in Sergeant Lopez's statements and the absence of independent corroborating
information preclude precise determination of anything more than generalized statements. (See
Section VI.C.2, belowl

       We also noted communications with other outside parties that might have been mis-
construed as criticism of the office. While the facts indicate that it is unlikely that such a


5 Lopez clearly denied disclosure of specific case information, but insisted on receiving "information" from
staff that he believed supported certain of his criticisms of then-IPA Barbara Attard. However, as clear as
Lopez is in stating these comments were made to him, he has little in the way of specific recollections to
corroborate that these communications occurred or the specific content of the "information from IPA staff."
Despite the generalized nature of what he has to say, we have sought to identify specific statements and
the evidence to support in drawing our conclusions.


                                                                                                     2389191.1
                                                        5
perception arose, the facts must be reviewed to determine whether corrective action is
appropriate (see footnote 9 below). (See Section VI.C.4, below)


       3. Though there is evidence of conduct by IPA staff during the period 2007-
             2008 that had the potential to create a conflict of interest. the evidence fails
                to demonstrate that this conduct affected the work of the IPA.

        We have found no evidence that, to the extent such communications were made, there
was any actual impact on the functioning of the IPA. There is insufficient evidence that any of
the IPA processes or responsibilities were impeded by the actions of the employee. With
respect to the IPA intake function, an area where an employee in some instances acts in
isolation to a certain extent, we found no credible evidence of inappropriate or questionable
conduct by any employee that was related in any way to the allegations made by Sergeant
Lopez, that was contrary to typical procedure, or that constituted interference. Likewise, the
evidence demonstrates that most of the other IPA functions were, and are, sufficiently insulated
from isolated, unilateral control that no one individual could directly or indirectly obstruct or
interfere with the processing of a complaint,6 (See Section VI.D, below)

C. There Is No Evidence of Intent to Undermine or Interfere with the IPA.

        The evidence demonstrates that any comments by IPA staff to third parties that may
have been perceived as critical of the IPA or questioning of IPA policies/procedures were taken
from casual conversations involving other matters. Accordingly, we do not find sufficient
evidence to persuade that these communications were made with the intention or knowledge
that they would be construed as a challenge of IPA policy or used in any fashion adverse to the
interests of the IPA. (See Section VI.E, below7)


                              III. SCOPE OF THE INVESTIGATION

A. Witness Interviews.

        In the course of the investigation, we conducted more than 25 interview sessions.
Where feasible and consistent with the goal of completing the investigation expeditiously, we
endeavored to conduct interviews in person, particularly with witnesses whom we anticipated
could offer direct evidence related to the allegations. Given the nature of the allegations and the
anticipated issues, we interviewed witnesses who, in our view, could provide competent
evidence or information as to:




6 In this regard, our conclusion is limited to the question of actual"interference" in processes and actual
activities of the IPA. With respect to the question of interference as it relates to the perception of
credibility or the integrity of the office we only report facts relevant to that determination.
7 In arriving at this conclusion, we were forced to resolve an arguable dispute in the evidence created by
the observations of Sergeant Lopez and a witness with whom he spoke about this matter and other
evidence. As we were not able to corroborate certain aspects of Sergeant Lopez's statements and found
other facts and circumstances inconsistent with his statement and the statement of another witness, we
do not believe the evidence indicates any intentional conduct by IPA staff.


                                                                                                         2389191.1
                                                      6
                actual disclosure of information by IPA staff;B

               assessment of the "confidential" nature of information communicated to third
parties by IPA staff; and

                implications of disclosure of information by IPA staff related to statutory or policy
obligations.9

       We interviewed the following witnesses in the course of investigating this matter:

          Independent Police Auditors (Current and Former)

          IPA Staff (Current and Former)

           IPA Advisory Council Members ("IPAAC") (Selected Members)

           Police Department Internal Affairs Staff (Current and Former)

           Police Officer's Association Leadership

           Representatives of Outside Organizations (that interact with the IPA)10

B. Documents Reviewed.

        VlJe reviewed the following items (or excerpts therefrom):


                Available email communications of IPA staff for the period 2006 to present;

                Telephone records for the IPA office covering the period 2006 to present;

                 Public statements by Sergeant Bobby Lopez of the San Jose Police Officer's
Association during the period 2006 to present;
               IPA published policies and procedures, including the National Association of
Civilian Oversight of Law Enforcement Standards of Conduct;


8 We attempted an interview with the reporter for the San Jose Mercury News who reported statements
made to him by Sergeant Bobby Lopez. Because of the newspaper's editorial policies, the reporter could
not disclose any information beyond the statement printed in the news reports.
9 As noted above, conclusions as to certain issues are beyond the scope of this investigation and will be
left to the determination of the IPA or other managers. As those issues may involve, in part, interpretation
of applicable standards related to conflicts of interest, duty of loyalty, and ethical obligations we sought to
develop a factual framework for that analysis.
10 A complete list of persons interviewed is included as Appendix A. With respect to the IPAAC members,
we determined, based on public statements, that there possibly existed some information as to disclosure
of information by IPA staff; we also determined that members of the IPAAC might have relevant
information regarding the implications of any sustained finding of disclosure of information. We did not
seek to interview each member of the IPAAC, but focused on the members identified as potentially having
useful information. Likewise, in conducting interviews (or in one case attempting to conduct an interview)
we were guided by public statements suggesting the possibility of useful information and, thereafter,
referrals from that source to other potential witnesses.


                                                                                                       2389191. i
                                                      7
                  2008 IPA End of Year Report and selected information from 2006 and 2007 End
of Year Reports;
                   IPA Confidentiality Acknowledgement;

                   Selected employee performance statements.
                               iv. LEGAL STANDARDS ANDIPA POLICIES

A. State Laws Applicable to IPA Activities.

       1. California Government Code Section 1222.

       Every willful omission to perform any duty enjoined by law upon any public officer, or
       person holding any public trust or employment, where no special provision is made for
       the punishment of such delinquency, is punishable as a misdemeanor.



       2. California Penal Code Section 832.5 Citizen's complaints against
                   personnel; investigation; retention and maintenance of records; removal of
                   complaints; access to records.

                   (a) (1) Each department or agency in this state that employs peace officers shall

       establish a procedure to investigate complaints by members of the public against the
       personnel of these departments or agencies, and shall make a written description of the
       procedure available to the public.
               (2) Each department or agency that employs custodial officers, as defined in
       Section 831.5, may establish a procedure to investigate complaints by members of the
       public against those custodial officers employed by these departments or agencies,
       provided however, that any procedure so established shall comply with the provisions of
       this section and with the provisions of Section 832. .
              (b) Complaints and any reports or findings relating to these complaints shall be
       retained for a period of at least five years. All complaints retained pursuant to this
       subdivision may be maintained either in the peace or custodial officer's general
       personnel file or in a separate file designated by the department or agency as provided
       by department or agency policy, in accordance with all applicable requirements of law.
       However, prior to any official determination regarding promotion, transfer, or disciplinary

       action by an officer's employing department or agency, the complaints described by
       subdivision (c) shall be removed from the officer's general personnel file and placed in
       separate file designated by the department or agency, in accordance with all applicable
       requirements of law.
               (c) Complaints by members of the public that are determined by the peace or
       custodial officer's employing agency to be frivolous, as defined in Section 128.5 of the
       Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that
       is determined to be frivolous, unfounded, or exonerated,shall not be maintained in that
       officer's general personnel file. However, these complaints shall be retained in other,
       separate files that shall be deemed personnel records for purposes of the California
       Public Records Act (Chapter 3.5 commencing with Section 6250) of Division 7 of Title 1
       of the Government Code) and Section 1043 of the Evidence Code.
               (1) Management of the peace or custodial officer's employing agency shall have
       access to the files described in this subdivision.
               (2) Management of the peace or custodial officer's employing agency shall not


                                                                                                       2389191.1
                                                                        8
use the complaints contained in these separate files for punitive or promotional purposes
except as permitted by subdivision (f) of Section 3304 of the Government Code.
         (3) Management of the peace or custodial officer's employing agency may
identify any officer who is subject to the complaints maintained in these files which
require counseling or additional training. However, if a complaint is removed from the
officer's personnel file, any reference in the personnel file to the complaint or to a
separate file shall be deleted.
         (d) As used in this section, the following definitions apply:
         (1) "General personnel file" means the file maintained by the agency containing
the primary records specific to each peace or custodial officer's employment, including
evaluations, assignments, status changes, and imposed discipline.
         (2) "Unfounded" means that the investigation clearly established that the
allegation is not true.
        (3) "Exonerated" means that the investigation clearly established that the actions
of the peace or custodial officer that formed the basis for the complaint are not violations
of law or department policy.

3. California Penal Code Section 832.7 - Confidentiality of Peace Officer
           Records; Exceptions.

        (a) Peace officer or custodial officer personnel records and records maintained
by any state or local agency pursuant to Section 832.5, or information obtained from
these records, are confidential and shall not be disclosed in any criminal or civil
proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence
Code. This section shall not apply to investigations or proceedings concerning the
conduct of peace officers or custodial officers, or an agency or department that employs
those officers, conducted by a grand jury, a district attorney's office, or the Attorney
General's office.
        (b) Notwithstanding subdivision (a), a department or agency shall release to the
complaining party a copy of his or her own statements at the time the complaint is filed.
        (c) Notwithstanding subdivision (a), a department or agency that employs peace
or custodial officers may disseminate data regarding the number, type, or disposition of
complaints (sustained, not sustained, exonerated, or unfounded) made against its
officers if that information is in a form which does not identify the individuals involved.
        (d) Notwithstanding subdivision (a), a department or agency that employs peace
or custodial officers may release factual information concerning a disciplinary

investigation if the officer who is the subject of the disciplinary investigation, or the
officer's agent or representative, publicly makes a statement he or she knows to be false
concerning the investigation or the imposition of disciplinary action. Information may not
be disclosed by the peace or custodial officer's employer unless the false statement was
published by an established medium of communication, such as television, radio, or a
newspaper. Disclosure of factual information by the employing agency pursuant to this
subdivision is limited to facts contained in the officer's personnel file concerning the
disciplinary investigation or imposition of disciplinary action that specifically refute the
false statements made public by the peace or custodial officer or his or her agent or
representative.
            (e) (1) The department or agency shall provide written notification to the
complaining party of the disposition of the complaint within 30 days of the disposition.
       (2) The notification described in this subdivision shall not be conclusive or
binding or admissible as evidence in any separate or subsequent action or proceeding
brought before an arbitrator, court, or judge of this state or the United States.


                                                                                         2389191.1
                                                                9
             (f) Nothing in this section shall affect the discovery or disclosure of information
      contained in a peace or custodial officer's personnel file pursuant to Section 1043 of the
      Evidence Code.




B. San Jose City Charter and Municipal Code Provisions Applicable to IPA Activities.

      1. City Charter Section 809 - Office of the Independent Police Auditor.

                  The Independent Police Auditor shall have the following powers and duties:

                  (a) Review Police Department investigations of complaints against police officers
      to determine if the investigation was complete, thorough, objective and fair.



                                                            Department policies and
                  (b) Make recommendations with regard to Police

      procedures based on the Independent Police Auditor's review of investigations of
      complaints against police officers.

            (c) Conduct public outreach to educate the community on the role of the
      Independent Police Auditor and to assist the community with the process and
      procedures for investigation of complaints against police officers.

      2. Municipal Code Section 8.04.010 - Duties and Responsibilities.

              In addition to the functions, powers and duties set forth elsewhere in this code,
      the Independent Police Auditor shall have the duties and responsibilities set forth in this
      section. A. Review of internal investigation complaints. The police auditor shall review
      police professional standards and conduct unit investigations of complaints against
      police officers to determine if the investigation was complete, thorough, objective and
      fair.
                  1. The minimal number of complaints to be reviewed annually are:
                    a. All complaints against police officers which allege excessive or
      unnecessary force; and
                    b. No less than twenty percent of all other complaints.

             2. The police auditor may interview any civilian witnesses in the course of the
      review of police professional standards and conduct unit investigations.

               3. The police auditor may attend the police professional standards and conduct
      unit interview of any witness including, but not limited to, police officers. The police
      auditor shall not directly participate in the questioning of any such witness but may
      suggest questions to the police professional standards and conduct unit interviewer.

               4. The police auditor shall make a request, in writing, to the police chief for
      further' investigation whenever the police auditor concludes that further investigation is
      warranted. Unless the police auditor receives a satisfactory written response from the
      police chief, the police auditor shall make a request, in writing, for further investigation to
      the city manager.



                                                                                               2389191.1
                                                                       10
              B. Review of officer-involved shootings. The police auditor shall participate in the
      police department's review of officer involved shootings.

              C. Community function.
              1. Any person may, at his or her election, file a complaint against any member of
      the police department with the independent auditor for investigation by the police
      professional standards and conduct unit.



              2. The independent police auditor shall provide timely updates on the progress of
      police professional standards and conduct unit investigations to any complainant who so
      requests.

                  D. Reporting function. The police auditor shall file annual public reports with the
      city clerk for transmittal to the city council which shall:
               1. Include a statistical analysis, documenting the number of complaints by
      category, the number of complaints sustained and the actions taken.

                  2. Analyze trends and patterns.

                  3. Make recommendations.

               E. Confidentiality. The police auditor shall comply with all state laws requiring the
      confidentiality of police department records and information as well as the privacy rights
      of all individuals involved in the process. No report to the city council shall contain the
      name of any individual police officer. (Ords. 25213, 25274, 25922.)

      3. Municipal Code Section 8.04.020 - Independence of the Police Auditor.

              A. The police auditor shall, at all times, be totally independent and requests for
      further investigations,' recommendations and reports shall reflect the views of the police
      auditor alone.
              B. No person shall attempt to undermine the independence of the police auditor
      in the performance of the duties and responsibilities set forth in Section 8.04.010, above.

C. Other Authority Relevant to IPA Activities.

      1. Code of Ethics - National Association for Civilian Oversight of Law
                  Enforcement.



                                 Preamble
                         Civilian oversight practitioners have a unique role as public servants
                  overseeing law enforcement agencies. The community, government, and law
                  enforcement have entrusted them to conduct their work in a professional, fair and
                  impartial manner. They earn this trust through a firm commitment to the public
                  good, the mission of their agency, and to the ethical and professional standards
                   described herein. The standards in the Code are intended to be of general
                   application. It is recognized, however, that the  practice of civilian oversight varies
                   among jurisdictions and agencies, and additional standards may be necessary.
                   The spirit of these ethical and professional standards should guide the civilian
                   oversight practitioner in adapting to individual circumstances, and in promoting
                   public trust, integrity and transparency.


                                                                                                   2389191.1
                                                      11
             Personal Integrity

        Demonstrate the highest standards of personal integrity, commitment,
truthfulness, and fortitude in order to inspire trust among your stakeholders, and
to set an example for others. Avoid conflicts of interest. Conduct yourself in a fair
and impartial manner and recuse yourself or personnel within your agency when
significant conflict of interest arises. Do not accept gifts, gratuities or favors that
could compromise your impartiality and independence.
             Independent and Thorough Oversight
             Conduct investigations, audits, evaluations and reviews with diligence, an
open and questioning mind, integrity, objectivity and fairness, in a timely manner.

Rigorously test the accuracy and reliability of information from all sources.
Present the facts and findings without regard to personal beliefs or concern for
personal, professional or political consequences.
             Transparency and Confidentiality
        Conduct oversight activities openly and transparently providing regular
reports and analysis of your activities, and explanations of your procedures and
practices to as wide an audience as possible. Maintain the confidentiality of
information that cannot be disclosed and protect the security of confidential
records.
       Respectful and unbiased Treatment
        Treat all individuals with dignity and respect, and without preference or
discrimination including but not limited to the following protected classes: age,
ethnicity, culture, race, disability, gender, religion, sexual orientation,
socioeconomic status or political beliefs.
             Outreach and Relationships with Stakeholders
        Disseminate information and conduct outreach activity in the communities
that you serve. Pursue open, candid, and non-defensive dialog with your
stakeholders. Educate and learn from the community.
             Agency Self-examination and Commitment to Policy Review
      Seek continuous improvement in the effectiveness of your oversight
agency, the law enforcement agency it works with, and their relations with the
communities they serve. Gauge your effectiveness through evaluation and
analysis of your work product. Emphasize policy review aimed at substantive
organizational reforms that advance law enforcement accountability and
performance.
              Professional Excellence
         Seek professional development to ensure competence. Acquire the
 necessary knowledge and understanding of the policies, procedures, and
 practices of the law enforcement agency you oversee. Keep informed of current
 legal, professional and social issues that affect the community, the law
 enforcement agency, and your oversight agency.
              Primary Obligation to the Community
        At all times, place your obligation to the community, duty to uphold the
 law and to the goals and objectives of your agency above your personal self-
 interest.




                                                                                      23891911
                                                      12
                                        v. FACTUAL FINDINGS AND ISSUES

A. IPA Policies and Procedure.

        The IPA exists to provide independent oversight of police misconduct investigations.
The office receives complaints and performs objective review of police misconduct
investigations. The IPA's mission is to "instill confidence" in the complaint process.

           1. Complaint Procedures.

        Allegations of police misconduct can be reported to the Police Department Internal
Affairs (lilA") or filed with the IPA. Complaints filed with the IPA are investigated by IA and the
IPA reviews - audits - the completed IA investigations.

           The IPA staff includes the designated IPA, the Assistant Auditor, a Complaint Examiner,
a Public Relations/Education Specialist/Complaint Examiner (also referred to as "Outreach
Coordinator"), a Data Analyst, and an Office Manager (receptionist/administrative assistant).11

                       a. Intake and "Classification of Complaints".

         Members of the public contact the IPA to file a complaint alleging a concern with the
activities of the Police Department.12 The Complaint Examiner has primary responsibility for
initial intake of complaints, but the Assistant Auditor and Outreach Coordinator will also conduct
initial intake.13 Intake typically consists of an interview with the complainant to determine the
facts related to the complaint and review of documents or other information provided by the
complainant. The Examiner may determine that a report received from the member of the
public does not state allegations constituting a matter within the jurisdiction of the IPA and take
no further action or refer the individual elsewhere. In all other cases, the Examiner follows
procedures for initiating a complaint and referring the matter to IA for investigation.

       The person conducting the intake will prepare a complaint form and prepare an audio
recording of the complainant's statement/allegations. The person conducting the intake will also
prepare a report summarizing the facts and identifying allegations.1~ The Complaint Examiner's
work, to assemble information from the complainant and to prepare the summary report, is not
reviewed before further processing (next section). In certain cases (e.g., complex fact
situations, sensitive matters, etc.) the Examiner may coordinate or discuss a potential complaint
with the IPA or Assistant Auditor, but IPA policies/practices do not require review or approval of
the Examiner's initial intake work.

i i These positions are currently filled by Shivaun Nurre (Assistant Auditor), Suzan Stauffer (Complaint
Examiner) Diane Doolan-Diaz (Public Relations/Education SpecialisUComplaint Examiner), Vivien Do
(Data Analyst), and Jessica Flores (Office Manager). Barbara Attard held the position of IPA (2005-2008)
and Steve Wing was the Assistant Auditor until August 2006. Shivaun Nurre was hired as Assistant
Auditor in September 2006 and served as Acting IPA from January 2009 until May 2010.
12 Typically, a complaint will concern the conduct of one or more officers. But complaints may also
address Police Department policies or practices without identifying a specific individuaL.
13 The Data Analyst and Office Manager may participate in complaint intake where translation services
are required. These two employees do not have substantive responsibilities for complaint intake.
14 IA has the authority to classify complaints. The IPA summary report identifies the IA complaint
 classifications that the Complaint Examiner believes are raised by the complainant's allegations, but IA
. determines the classification and the scope of allegations to be investigated.


                                                                                                     2389191.1
                                                                             13
       Until 2008, IPA categorized reports it received as a complaint, a citizen contact or an
inquiry, the latter constituting matters differentiated from complaints under IA classification
procedures. Pursuant to a 2006 recommendation by the IPA to adopt a more objective
classification system, the complaint system was revised and the definition of "complaint" was
refined to encompass allegations of misconduct for which discipline could be imposed and to
exclude allegations of conduct that could not result in discipline. Reports in the latter category

were renamed "non-misconduct concerns" and the terms "citizen contact" and "inquiry" were no
longer used. The Revised Complaint Procedure ("RCP;') was implemented on July 1, 2008 and
resulted from the recommendations of a joint effort by IPA, the City Manager's Office and the
Police Department.15

                        b. Interaction Between IPA and Internal Affairs/Investigation.

            The information collected by IPA "from the complainant is uploaded to a database shared
by IPA and IA. Typically, IPA uploads all onhe information related to the complaint
(complainant's recorded statement, documentation, if any, and the IPA summary report). Once
uploaded, IA has access to the IPA information and determines complaint status and
classification and initiates an IA investigation. To the extent that the IPA staff determined that a
report of alleged improper conduct was required, the information uploaded to the shared
database encompasses all of the factual information related to the matter obtained by IPA. The
information in the shared database is confidential to IA and the IPA.



        Notice of a complaint filed with the IPA is given only to IA. In the course of initiating an
investigation, IA will notify the subject officer of a complaint in conjunction with scheduling an
interview, but no other notice procedure is used.16 Depending on the factual circumstances, the
likelihood of an IA investigation may be apparent before an investigative interview is noticed
(e.g., use of firearms, and other matters for which an IA investigation is mandated), but the
matter (Le., the information reported by IPA) is not disclosed until an investigation is initiated.

        There may be cause for IPA and IA to communicate about a matter that is forwarded by
IPA to clarify statements in the IPA summary report or other matters. The IPA staff will also be
notified of interviews that IA will conduct with the subject of the complaint and will be invited to
observe the interview. The IPA and Assistant Auditor are authorized to .observe the IA
interview.17 In addition to the IA staff conducting the interview and IPA staff observing, the
officer being questioned may have a representative of the Police Officers' Association ("POA")
present. Typically, the POA representative would be a member of the POA Board.

                         c. Audit Function.

         The IPA is also responsible for conducting an audit of completed IA investigations. This
 audit assesses the IA classification of the matter, the thoroughness and fairness of the
 investigation, and the recommended corrective/remedial action, if any. After an initial review of
 the completed investigation, the IPA may seek to resolve concerns about the investigation

 15 We summarize here some of the changes that resulted from the RCP that are germane to issues that
 we discuss in later sections of this report. A detailed discussion of the development of the RCP and the
 revised procedures/practices is set forth in the IPA's 2008 End of Year Report, pp. 13-25.
 16 In addition to reports to the IPA, members of the public can report alleged misconduct/concerns directly
 to IA. Similarly, the Police Department can initiate a matter to be investigated by IA.
 17 During the period 2005 to present, Steve Wing, Barbara Attard, Shivaun Nurre and Suzan Stauffer
 represented the IPA office at IA investigative interviews.


                                                                                                     2389 i 91. i
                                                                              14
with IA or by a formal disagreement memorandum to the Chief of Police. If such approaches do
not resolve IPA concerns, the IPA may file an appeal with the City Manager.

       The IPA, Assistant Auditor and either/or. both Complaint Examiners are usually involved
in auditing investigations. An audit of each investigation is reviewed by at least two members of
the IPA staff. The decisions as to audit findings reflect the consensus of the IPA staff.

       2. IPA Records and Information.

       For the purposes of this investigation, we considered two categories of records and
information held by the IPA: confidential/protected and sensitive. The former refers to
information and records subject to statutory protections; the latter, other information relevant to
the allegations.


               a. Confidential/Protected Information.

            Confidential/protected information is information that relates to its complaint intake and
audit functions. Thus, information received from a complainant in the course of receiving a
complaint and any information related to that complaint falls into this category. Likewise, it
would include internal analysis and discussion       of complaints related to the intake function. It
would also include communications with internal affairs related to investigation of a complaint
and any information received from IA in the course of its investigation of a complaint or an IA
investigation submitted to IPA for audit. Internal discussions of an audit, decisions regarding
audit of an IA investigation and any non-public correspondence relative to the audit function are
confidential/protected. Confidential/protected information includes files, tape/audio recordings
and related correspondence.

         Confidential/protected information is subject to disclosure restrictions set forth under
Penal Code Sections 832.5 and 832.7. In addition, to the extent that such information contains
information covered by the Public Safety Officers' Bill of Rights (Government Code Section
3300 et seq.), disclosure of the information is also restricted. The Penal Code sections and
Government Code Section 1222 provide for criminal penalties for the unauthorized disclosure of
this information.

                   b. Sensitive Information.

         Sensitive information includes any other information, disclosure of which would create a
conflict of interest with the responsibilities of the IPA, violate IPA policy/practice (Le., the
NACOLE Code of Ethics), or would otherwise hinder the effectiveness of the IPA. For example,
we considered non-public internal discussions of polices and practices affecting the office,
personnel matters, public statements by IPA that do not reflect the official position/policies of the
IPA or create confusion as to the official policies/practices of the IPA to be sensitive information.

        Sensitive information is not defined precisely by state or local law. There are also no
written policies of the IPA defining sensitive information. However, unauthorized or
inappropriate disclosure of information in this category potentially raises an issue as to
compliance with the policies, past practice and statutory obligations of the IPA. Accordingly,
these authorities provide the basis for defining this category of information.




                                                                                                2389191.1
                                                   15
       3. Standards of Conduct and Independence of the IPA.

         The IPA's specific policy and guidance for employees in the performance of their duties
is set forth in the "Confidentiality Acknowledgement" that each employee is required to execute
upon commencement of employment with the office. (Exhibit A) This policy specifically
references Penal Code Sections 832.5 and 832.7 and provides:

        i fully understand that release of any records, verbal disclosure of àny
       complaint related information, and discussion of any complaint related
       information is illegal and strictly forbidden. Any questions related to
       complaint information will be referred to (the IPA) or (Assistant IPA) and
        not disclosed by me.

         In addition to this policy, specific provisions of the Municipal Code applicable to the IPA
define relevant standards of conduct and ethical obligations. In addition, general and specific
principles of employee conduct under other statutes establish relevant standards.

                Municipal Code Section 8.04.101 (E) requires employees of the IPA to maintain
the confidentiality of information provided to the IPA. Likewise, as discussed above, relevant
sections of the Penal Code and Government Code place obligations on IPA employees in their
access to, handling of, and disclosure of confidential/protected information.

               Municipal Code Section 8.04.020 provides that the IPA "be totally independent"
and that "recommendations and reports (of the IPA) shall reflect the views of the police auditor
alone." In addition, the Municipal Code prohibits any "attempt to undermine the independence
of the police auditor in the performance of (its) duties and responsibilities.,,18

                  Penal Code Sections 832.5 and 832.7 (see discussion above).

               Labor Code Sections 2860 and 2863 set forth general duties of loyalty between
and employer and employee. Although articulated in the context of private employment, these
provisions are consistent with and describe principles reflected in the Municipal Code sections
cited above.

        The IPA has historically treated the NACOLE Code of Ethics as a policy standard for the
office.19 Under this Code, IPA staff are obligated:

                  "to conduct their work in a professional, fair and impartial manner,"

                  to act in a manner "promoting public trust, integrity and transparency,"


18 In the course of our investigation, several witnesses stated a belief that it was inappropriate, or perhaps
illegal, to "interfere" with the work of the IPA. The statutory authority does not address "interference" per
se. However, in evaluating the factual issues we have taken the view that it is reasonable to conclude
that actions by an employee of the IPA that "interfere" with the work of the IPA could lead to the
conclusion that such actions "undermine the indepen,dence of the IPA" or otherwise violate the specific
provisions of the Municipal Code. Similarly, it is reasonable to conclude that "interference" with the
functioning of the IPA may adversely impact the obligation to act in a manner "promoting public trust,
integrity and transparency" as set forth in the NACOlE Code of Ethics.
19 The Code of Ethics is referenced in the IPA Mid Year and End of Year Reports and included on the IPA
public website.


                                                                                                       2389191.1
                                                      16
               to "avoid conflicts of interest," "present the facts and findings without regard to
personal beliefs," and

               to " (mlaintain the confidentiality of information that cannot be disclosed and
protect the security of confidential records."

B. Allegations of Potential Compromise of IPA Confidential
                                                                                                      Information.

            1. In June 2009, a potential problem in the IPA was reported to Skyler Porras
                        and in May 2010 she reported this information to the new IPA.

                        a. In a conversation with Ms. Porras, Sergeant Lopez stated he was
                                    receiving information from IPA staff.

       In mid-June of 2009, Skyler Porras met with Sergeant Lopez; at the time, Sergeant
Lopez was the President of the San Jose Police Officers' Association ("POA"). The meeting
between the two was an introductory meeting for the purpose of a general discussion of issues
of mutual interest, including the need for transparency in issues related to police conduct and
areas where they might work together in the future. The meeting occurred in the aftermath of a
dispute involving the POA and a community activist; Porras, in her capacity as Director of the
San Jose ACLUprovided comment on the issue addressing the First Amendment rights of the
POA.20

         In the course of the meeting, the conversation turned to the IPA office and then-IPA,
Barbara Attard. Sergeant Lopez expressed frustration and concern over his belief that the IPA
office, through Ms. Attard's direction, pursued complaints/claims without merit and/or
mischaracterized complaints. Sergeant Lopez also told her that his concerns were
corroborated. Porras recalled him saying, "I get calls from staff telling me things aren't right."
Sergeant Lopez did not identify a particular IPA staff me.mber and Porras did not ask who on the
staff he was referring to. She did not ask him any questions about the statement. She had the
impression that the "calls" happened more than once, but she did not have an idea of the
timeframe in which they occurred or whether they were ongoing. Porras was not sure, based on
the conversation, if Sergeant Lopez was referring to multiple IPA staff members or just one.

        The meeting with Porras ended and she did not take any steps to follow-up with Lopez
on what he had told her. Porras also has no specific recollection of any steps that she took at
that time as a result of her conversation with Sergeant Lopez. She believes that she would
have told her assistant about the conversation, but does not have a specific recollection that she
did. She is not certain that she reported the conversation with Sergeant Lopez to the ACLU
Executive Director.21




20 The POA had created a "YouTube" video, described by the POA as a parody, of a public statement by
a community activist.
21 We did not feel it necessary to contact Ms. Porras' former assistant or the then-Executive Director of
the ACLU as the details of what Porras did or did not do at that time - and why - do not bear directly on
the issues before the IPA. The lack of action on her part may relate to the content of her conversation
with Sergeant Lopez, but it does not appear that there is a conflict in the evidence on that point.




                                                                                                                     2389191l
                                                                             17
                       b. On May 20, 2010, Porras reports the conversation with Sergeant
                                   Lopez to the new IPA.

       On May 17, 2010, Judge Cordell began her tenure as the new IPA. Judge Cordell's
appointment was announced on April 13, 2010 and Porras spoke briefly with Judge Cordell at a
community event prior to Judge Cordell's start. Porras set up an appointment and met with the
Judge on May 20.

         After initial pleasantries, Porras told Judge Cordell, "I have some bad news to tell you."
Porras then related that in February or March of 2009 she met with Sergeant Lopez and he told
her that someone on the IPA staff had been leaking information to him about specific complaints
filed with the IPA. Judge Cordell confirmed that Porras understood that Lopez had been
receiving information about specific complaints. Porras related Lopez's statement that the staff

member had provided the information because the person felt that the then-IPA had pursued
the complaints without justification. Porras indicated that she knew who it was, that this staff

person did not like the former IPA, and had confirmed that information with a second source.
Porras told Judge Cordell, "here's what I want you to do" and explained that the employee
should be removed from her position. Porras also stated that if the person was not removed,
she would let "the community" know that this person had leaked confidential information to the
police. Judge Cordell said that she would need time to look into the matter and tentatively
scheduled a meeting for the following week.

        Judge Cordell met with Porras again on June 2. In this meeting, Judge Cordell asked
her to describe again the conversation with Sergeant Lopez. In this meeting, Porras said Lopez
said "! get calls from the IPA's office. Not all the staff there agree with how complaints are
categorized." In response to Judge Cordell's questions, Porras clarified that Lopez never told
her that he had received information from IPA staff or about specific complaints. Porras also
stated how she had concluded which member of the IPA staff Lopez was referring to.22 Porras
explained that she had a "hunch" based on her observations of this employee at public
meetings. Porras said that she confirmed that "hunch" with another employee on the IPA staff.
Porras then repeated the threat to "expose" this employee to her coalition partners if the
employee was not removed from her position.

             In the meeting, Judge Cordell asked Porras why she had waited almost a year to come
forward with this information. Porras explained that she wanted to confirm her suspicion as to
which employee Sergeant Lopez was referring to and she was also concerned that the
allegations would adversely affect the IPA office given the prior controversy related to the
appointment of Chris Constantin.

            As a result of this conversation, Judge Cordell made arrangements for outside
 investigation of the matter.23




 22 Porras confirmed that Lopez never told her the                        name of anyone on the IPA staff from whom he claims
 he received information. Before the first meeting with Judge Cordell, Porras had come to her own
 conclusion as to the identity of the unnamed person and that was the name that she gave Judge Cordell

 in the first meeting. In this second meeting she explained how she came to that conclusion.
 23 Immediately after the first meeting with Porras, Judge Cordell conducted her own initial inquiry to
 determine what further steps would be necessary to investigate the matter.


                                                                                                                        2389191.1
                                                                              18
           2. A separate, and conflicting, report of allegations of inappropriate
                       communication between IPA staff and the POA emerged after Judge
                       Cordell began her investigation.

                       a. A report of misconduct is attributed to Sergeant Lopez.

        On June 9, 2010, the San Jose Mercury News ran a news story entitled "Former cop
union boss: I had a spy inside San Jose police auditor's office." The article reported several
allegations, attributed to Sergeant Lopez, related to information allegedly received from
unnamed members of the IPA staff. In particular, the article alleged the following:24

                       "I had a spy inside San Jose police auditor's office"

              (IPA staff) "repeatedly leaked confidential information over several years to the
San Jose police officers union"

                        (IPA staff) "gave him inside information about complaints against police officers
made to the IPA"



                        "At one point (Lopez) said he was tipped to an upcoming Mercury News story

about the violent arrest of a San Jose State student"



               '''They felt that, for many reasons, the office was being disingenuous and
being unfair to the department, particularly under the leadership of former IPA head
Barbara Attard.'"

             "Lopez said he was approached by the IPA employee when Attard was the IPA
head from 2004 through 2008."
                        liThe person, Lopez said, was upset that Attard was 'pushing the organization
in a direction that was contrary to be being fair and truthful.'''



                 "Lopez contended, the insider would give him information which wasn't included
in the officiallPA complaint about an officer."

               "Last October, the person tipped the union president that the Mercury News had
obtained a cell phone video of San Jose State student Phuong Ho, as he was being violently
arrested, Lopez said. "

                        "Lopez said he is positive the IPA staff member discontinued communicating with
the union when he left at the beginning of this year. '"



                        b. After the Mercury News article, Sergeant Lopez makes clear that he
                                    received no confidential information from anyone on the IPA staff

                                    and that the news article was not accurate. .

      Sergeant Lopez cooperated in an initial interview as part of this investigation after the
Mercury News article was published. Sergeant Lopez stated that at the outset and end of the

24 The items here are quoted from the news article as indicated. Quotations attributed to Lopez in the
article are in bold.


                                                                                                        2389191.1
                                                                             19
interview he told the reporter that he received no confidential information from the IPA staff and
that he was referring to the fact that the IPA staff had told him about "information on the
misconduct of the IPA (Attard)" but that information did not include information on specific
complaints. Sergeant Lopez stated that he never referred to the employee in the IPA office as
an "informant" or "spy," nor did he ever say that anyone from the IPA office was "leaking"
information or that there was a "leak" in the office. As to the specific allegations in the
newspaper article, Sergeant Lopez related the following:25

                "I had a spy inside San Jose police auditor's office"
                Lopez: never used   the term "spy" or referred to a "spy" in the I~A office;

                (IPA staff) "repeatedly leaked confidential information over several years to the
                San Jose police officers union"
                Lopez: never received any "confidential information" from anyone in the IPA
                office; he stated that he told the reporter that he was told that the IPA office was
                not acting according to its charter;

                (IPA staff) "gave him inside information about complaints against police officers
                made to the IPA"

                Lopez: never received any information about specific complaints from anyone in
                the IPA office;

                "At one point (Lopez) said he was tipped to an upcoming Mercury News story

                about the violent arrest of a San Jose State student"

                Lopez: never received any "tip" from the IPA staff; only "tip" he received on this
                issue was from the Mercury News;

                "They felt that, for many reasons, the office was being disingenuous and
                being unfair to the department, particularly under the leadership of former
                IPA head Barbara Attard. '"
                Lopez: this referred to his conversations directly with Ms. Attard;

                "Lopez said he was approached by the IPA employee when Attard was the IPA
                head from 2004 through 2008. "
                Lopez: his contact with the IPA staff member began about a year after he
                became union president (i.e., communication began in or about 2007);

                "Lopez contended, the insider would give him information which wasn't included
                in the officiallPA complaint about an officer."
                Lopez: never said that this statement occurred;
                "Last October, the person tipped the union president that the Mercury News had
                obtained a cell phone video of San Jose State student Phuong Ho, as he was
                being violently arrested, Lopez said. "
                Lopez: never received any "tip" from the IPA staff; only "tip" he received on this
                issue was from the Mercury News;

       Sergeant Lopez was adamant that he was clear with the reporter that he had not
received any information from IPA staff that was protected from disclosure. Sergeant Lopez

25 See preceding footnote.




                                                                                               2389191.1
                                                                    20
reviewed a copy of the relevant Penal Code sections applicable to IPA complaint information
and stated that he never received any information that was subject to those sections.26
Sergeant Lopez also clarified that he never received any advance information from IPA staff

about any specific case; he never learned of an IA investigation because of or as a result of his
communications with IPA staff. He also did not receive any advance information from IPA staff

about activities of the office.

                        c. Sergeant Lopez explains the interactions that he had with the IPA
                                    staff.

            Sergeant Lopez explained that the information that he received from the IPA staff

consisted of conversations; he never received any documents from IPA staff, nor did he
communicate bye-mail with the staff member. Sergeant Lopez also clarified that rather than
passing him information about specific complaints, this person was making statements that
confirmed his belief that Ms. Attard was acting beyond the authority of the IPA.



        Specifically, Sergeant Lopez's concerns with Ms. Attard arose from the view that she
was pursuing investigation of complaints that she (Ms. Attard) knew to be false or unsupported
or that matters were being categorized as 'complaints' contrary to the facts. Sergeant Lopez
referenced a series of public forums in 2006 where he understood Ms. Attard permitted
questions about past complaints or complaints found to be without merit. He characterized
these items as "misconduct" by the IPA and that his communication with the staff member(s)
related to these general items. Sergeant Lopez's criticism of the IPA is summed up:

            . . .(W)e have an Independent Police Auditor (IPA) who thinks her job is be
            adversarial, and attacks the department every chance she gets. She has done
            everything possible to increase complaints against officers. She skews stats by
            changing reporting criteria inan attempt to justify her existence. . . .
            i will also monitor the IPA's actions informing you of her half-truths and
            deceptions.
            (Exhibit B)

        Sergeant Lopez did not identify the IPA staff with whom he claims that he
communicated. He did say that his communications were generally in person and that he would
see this person in meetings, social events, or in conjunction with his POA duties.27 He
estimated that he spoke with one person once a month or once every two months (if he saw
them at an event they both attended). He did indicate he spoke with two different employees.



26 In the course of the interview, Sergeant Lopez made the point that as President of the POA he was
entitled to access the information in the IA file, which would include the information in IPA files for
complaints generated from that office. However, in conducting the interview, we were interested in how
he may have received information about complaints, not if he was entitled to the information at some
point. We made clear, and Sergeant Lopez acknowledged that he understood the distinction, that even
assuming he was entitled to the information, he was being asked at what point he came into receipt of
information and whether any information about a specific complaint (information subject to the Penal
Code sections) was ever provided to him by      a member of the IPA staff directly.
27 Sergeant Lopez stated that he does not believe that he told Porras that "I get calls..." Rather, he
believes that he told her that "i get information..." He does not rule out the fact that he might have said
"calls" but he reiterated that his communications with the IPA staff that he was now reporting
                                                                                                 were in
person.


                                                                                                      2389191.1
                                                                             21
                         (1) Staff Contact #1.

        Sergeant Lopez stated that he spoke with this employee only one time in early 2009. He
says that he never spoke with this employee while Ms. Attard was in office as the IPA. He
stated that the person contacted him to talk and wanted to discuss working better with the POA
in the future.28
                         (2) Staff Contact #2.

     Sergeant Lopez provided the following facts and circumstances related to his
communications with this employee:

               He spoke with this employee once a month or once every two months beginning
in about 2007 (one year after his election as POA President in 2006).

                   His communications with this employee ended in early 2009.

               He never received information from this employee by telephone, but would speak
with them at events where both were in attendance. He did not have a specific recollection of
such events, but recalled that they may have included IA investigations (when Lopez served as
the POA representative), City Council meetings, Public Safety Committee meetings, and at a
POA Open House.

               He stated that typically he would run into this person at one of these occasions;
he did not have any set practice of meeting with this employee and the occasions where they
spoke occurred by happenstance.
               He described only one occasion when he had a "sit down" meeting with this
person. Sergeant Lopez appeared to recall this event specifically and stated that the meeting
was at the "beginning of 2009" and was a lunch meeting at PF Chang's.

C. Evidence of Communications Between Lopez and IPA Staff as to Staff Contacts #1
         and #2.

         1. Communications related to specific cases.

          There is evidence that Sergeant Lopez attended IA investigation interviews in the
capacity of representative to the officer being questioned.29 In the course of this representation
he may have had contact with a member of the IPA staff. Although it appears that typically
there was no conversation between the IPA staff attending these interviews related to the case
itself, it is possible that there was some communication between Sergeant Lopez and the IPA
staff.


 28 As we explain below, there is sufficient information to identify the employee referenced in this
 allegation. It is also clear from the evidence that this employee was not the second employee (discussed
 in the next section) who Sergeant Lopez alleges communicated with him on more numerous occasions.
 29 There are no separate records indicating in which case a particular Board member represented an
 officer. Each individual investigation file would have to be reviewed to find this information. As the
 evidence shows that because he was President, Lopez acted as representative in 2007-2008 only rarely
 and there is no specific evidence that Lopez spoke with any IPA staff (outside of the actual interview), we
 did not undertake to review those records.

                                                                                                       2389191.1
                                                       22
       Employees A, B, C, and E would have been the IPA employees participating in such
meetings.30 Sergeant Lopez's allegation of inappropriate communication during these meetings
could not have referred to either Employee C or Employee E. Employee C is the person
referenced as Staff Contact #1 (see Section V.C.2.a.); Lopez states that this employee never
made any questionable statements to him during Attard's tenure. Lopez could not have been
referring to Employee E as this employee did not attend any of these interviews in the period
2007-2008.

           2. Communications related to IPA policies                               and procedures.

                       a. Staff Contact #1.

           The evidence shows that Sergeant Lopez met with one IPA staff member in early 2009.
This was a meeting in March 2009. Employee G made an appointment to meet with Sergeant
Lopez (the appointment appears on the calendar of Employee C). The meeting was requested
to discuss generally the office of the IPA and the development of an effective working
relationship between the IPA and POA upon the selection of a new IPA.



       There is no evidence of any other specific meetings between Sergeant Lopez and the
IPA staff during "early 2009."

                        b. Staff Contact #2.

                                    (1) During the tenure of IPA Barbara Attard.31

        Sergeant Lopez provides no specific information as to any meetings or communications
from  the employee(s) in the IPA between 2007 (when such communications began) and 2008
(when Barbara Attard left). He is only able to recall generally that the person made statements
similar to his criticism of Attard and that these statements arose in the course of casual
conversations with the individual.32 Except for a few isolated circumstances, none of the IPA
staff recall any specific interactions with Lopez in this period. It appears that the following are
events where Sergeant Lopez may have crossed paths with IPA employees during Attard's
tenure:



30 The allegations reported in the Mercury News article, and even the allegations Sergeant Lopez states
are more correct, are serious and call into question misconduct by an employee of the IPA. Even if
proven to be without merit, the allegations could impair the effectiveness of innocent employees on the
IPA staff. Furthermore, because the allegations relate to potential employee misconduct and/or
disciplinary action, these accusations raise confidentiality, privacy, fairness, and due process issues. In
our initial interview, Sergeant Lopez would not disclose the names of the IPA staff that he was referring to
 in his allegations. He did provide some factual details as to interactions with these staff members.
 Because of the serious nature of the allegations and potential for harm to innocent employees if they are
 even speculated to have been Sergeant Lopez's contact, we will not identify any employee by name.
 31 The discussion here is applicable only to Staff Contact #2 as Sergeant Lopez was clear that he did not
 receive any information from Staff Contact #1 while Barbara Attard was the IPA.
 32 Sergeant Lopez's recollection of the conversations with these individuals is not precise. He claims that
 they provided "information" to him, but denies that the information related to specific cases and can only
 state that what they told him indicated disagreement with the policies/practices of Attard. It is not clear if ,
 Lopez is referring to affirmative statements by these individuals (i.e., "i think the IPA is acting illegally...")
 or simply reporting ambiguous statements that he interpreted as criticism of IPA Attard.


                                                                                                           2389191.1
                                                                             23
               January 2007: 2d HRC Forum (Employees A, B, C, and D)

               June 2007: meeting re: 2006 End of Year Report (Employee A)

               June 2007: Special Council meeting re: police issues (Employees A, B, C,
                and D)

                December 2007: POA Open House (no evidence that any employee from IPA
                attended)

                January 2008: Council meeting re: RCP (Employees A, B, C, and D)

                February 2008: Courtesy meeting (Employee A)

                November 2008: Publication Intoxication Task Force convenes (Employees A
                and B)

                December 2008: POA Open House (no evidence that any employee from IPA
                attended)33

                         (2) During the tenure of Acting IPA Shivaun Nurre.

      Similarly, there is no specific information as to any meetings or communications from the
employee on the IPA staff after 2008. It appears that the following are events where Sergeant
Lopez may have crossed paths with IPA employees in 2009:

                Jan-May 2009: 647(f) Task Force meetings (Employees B or C)

                March 2009: Meeting with IPA staff member (Employee C)34

                May 2009: Meeting between Lopez and Raj Jayadev (Employee B)

                November 2009: Lunch meeting with Sergeant Lopez (Employee B)

                December 2009: POA Open House (Employee C)

       Although Sergeant Lopez specifically recalled a lunch meeting with an employee in early
2009 at PF Chang's, there is no evidence of a member of the IPA staff participating in this
event. The evidence indicates lunch meetings between Sergeant Lopez and IPA staff at other
times and at other locations; but not on this specified occasion.

D. Evidence of Communication Between IPA Staff and Outside Parties

        Although the allegations by Sergeant Lopez purport to describe communications that he
had with IPA staff, we also sought to determine whether there was evidence of communications
with others under similar circumstances. As before, we address the facts in the context of the
type of information (confidential vs. sensitive) and the timeframe and context that such
communications may have occurred.
33 A chart detailing this information and the information in the next section is attached as Appendix C.
34 This item is discussed in the preceding section.


                                                                                                     2389191.1
                                                     24
            1. Communications related to specific cases.

       Logically, there is evidence that IPA staff discussed specific cases with IA staff in the
course of intake, investigation and audit functions. The evidence indicates that these
communications were consistent with and necessary to the requirements of the position and
would not constitute an improper disclosure in violation of the Penal Code or Municipal Code.35

            2. Communications related to IPA policies and procedures.

                        a. During the tenure of IPA Barbara Attard.

           We found no evidence of specific statements to any outside party reflecting
disagreement with the policies of the office. There was evidence of statements by an IPA staff

member in conversations with IA staff that appeared to be related to IPA policy or may have
been construed as such. For example, in conjunction with discussion of cases, Employee C,
from time to time, commented on the general nature of the complaint. These comments
addressed the question of whether the information satisfied the requirements for pursuing a
complaint. Employee C acknowledges generally this type of conversation, but not any specific
statements. The IA staff also does not remember specific statements other than the relationship
to ongoing discussions, sometimes disputes, between IA and IPA over complaints and
classification. Though the evidence is not sufficient to identify a specific statement of
disagreement with policy, the statement might have been construed as such.36
         We found evidence of only one other statement that might have been construed as
expressing disagreement with IPA policy. In a training session on IA procedures for new police
officers (likely in June or December of 2008), Employee C made a statement to the police
trainer (formerly a contact of Employee C when he was assigned to IA) that indicated she was
not happy working in the office. The statement was not specific to any policy or situation and
was made in a private conversation.

                        b. During tenure of Acting IPA Shivaun Nurre.

            We found no evidence of statements to any outside party during this period.




35 We learned that on two occasions one employee of the IPA was counseled for conduct related to
inappropriate disclosure of sensitive, non-public information. These incidents occurred in the latter part of
2005 and early 2006. We found no evidence that either incident related to disclosure of information
related to specific cases. There was also no evidence that any similar incidents occurred or were noted
after early 2006. We did not consider this information to be directly related to the instant allegations.
However, we did consider this information in evaluating other circumstances of alleged inappropriate
disclosures and with respect to the question of intentional conduct by the IPA staff.
36 Other IPA staff reported statements by Employee C to the effect that she told (IA contact) that "if i was
the IPA" in the course of discussing the quality of a complaint. The evidence shows that such statements
were made after IPA Attard's tenure ended. There is no evidence of similar statements being made
outside of that context.




                                                                                                     2389191. 1
                                                                             25
                                                Vi. FINDINGS AND ANALYSIS

A. Is There Sufficient Evidence To Determine Whether the Matters Alleged by
           Sergeant Lopez Occurred?

           Yes.

       Sergeant Lopez has not disclosed the names of the employees that he alleges
communicated information to him about the IPA. He justifies withholding this information out of
concern for the employees in question and his belief that they provided information to him
because of their concerns over the practices of the former IPA.



        Sergeant Lopez appears genuine in concern for the IPA staff and genuine in his belief as
to what he was being told. Although his refusal to identify the employees complicates the
investigation, there is circumstantial evidence that indicates a basis for the allegations that he
has made. Accordingly, we cannot conclude that his refusal to identify the employees is proof
that the events did not occur.

       There is ample evidence regarding the circumstances under which these alleged
meetings occurred to draw a reasonable conclusion as to whether they did occur. If the
evidence regarding such interactions constitutes misconduct, there is also evidence for a
determination as to appropriate corrective action.37


B. Is There Evidence that Confidential                            Information, As Defined By Relevant Statute,
            Ordinance, and/or IPA Policies and Procedures, Was Disclosed in Violation of IPA
            Policies or Applicable Law?
            No.

            1. There is no direct evidence that any IPA staff disclosed protected
                        information.

       Despite the statements/allegations that appeared in the San Jose Mercury News article,
Sergeant Lopez was adamantly clear that he never received any confidential information from
IPA Staff that related to a specific complaint. Sergeant Lopez appears to understand the
requirements of Penal Code Sections 832.5 and 832.7. He distinguished clearly the type of
communications he had with IPA staff and the "information" that he received from those
communications from anything having to do with a specific complaint or IPA work in conjunction
with a specific complaint.



        In addressing the statements in the news article, Sergeant Lopez credibly explained how
each item that appeared to suggest knowledge of confidential/protected information did not
involve his access to or receipt of information from the IPA. With respect to each item, the
evidence supports his denial:


37 Sergeant Lopez cooperated voluntarily with our investigation. Because this investigation was directed
 by the IPA and not pursuant to POBOR, we do not have authority to compel Sergeant Lopez to disclose
 information.


                                                                                                          2389191.1
                                                                   26
                         The statement that he was "tipped" to a Mercury News story could not
                         have occurred as reported as there is no evidence that any IPA staff was
                         aware of this news story in advance.

                         The statement that he was tipped to the fact that the Mercury News had a
                         cell phone video could not have occurred as reported as there is no
                         evidence that IPA staff was aware of a video before the story was printed
                         in the newspaper.

                         The general statement that he received information that "wasn't included
                         in the officiallPA complaint" could not have occurred as the weight of the
                         evidence demonstrates that any information the IPA had regarding a
                         compliant was forwarded to IA.



            In her initial report to Judge Cordell, Skyler Porras indicated that Sergeant Lopez's
statement to her suggested that he had received information about specific complaints.
However, in a follow-up conversation with Judge Cordell, Porris stated unequivocally that she
had no information to believe that Sergeant Lopez had received information about any specific
complaint.38 Her statements in the         investigation were consistent with the statements to Judge
Cordell and the statements of Sergeant Lopez on this point. 39

        2. The circumstantial evidence demonstrates the absence of an illegal
                 disclosure of information.

        The   idea that Sergeant Lopez received information about cases is also not consistent
with the other facts in the matter. . Sergeant Lopez states that this employee provided
information on cases because of disagreement with the IPA as to forwarding complaints for
investigation that had no merit. This situation suggests information was being provided on
complaints of questionable or no merit. It seems unlikely that this employee would have
submitted such a complaint for investigation in the first instance.

        Furthermore, there is no evidence that Sergeant Lopez took any action that suggested
that he had advance information on a case. There was never any suspicion on the part of IA or
other IPA staff that information was available to POA under suspicious circumstances. The
POA Board was not aware of any information being provided to Sergeant Lopez.




38 Porras was formerly the head of the San Jose ACLU office. If Lopez told her in June of 2009 that he
was receiving confidential information - or she suspected that he was informing her of this fact - there is
no reason to believe that she would not have taken steps to intervene and bring the issue to the attention
of the public. The notion of such a practice with the IPA would have raised serious concerns for the
ACLU and it is clear that she did nothing with the information at the time.
39 We do raise questions in other sections of this report as to the weight to be accorded certain
statements of Lopez and Porras. Our determination that they are credible on this point is based both on
the consistency of their statements in our investigation and as demonstrated by other evidence and the
fact that other circumstantial evidence tends to corroborate the finding that no confidential/protected
information was disclosed.



                                                          27                                        2389191. 1
C. Is There Evidence that InternallPA Communications or Other Non-Public
           Information (e.g., opinions, policy discussions, etc.) Was Disclosed to an Outside
           Party?

           Sergeant Lopez states that he communicated with two different employees from the IPA
staff. One of the employees only spoke with him one time in 2009; the other he states he spoke
with over an extended period between 2007 and 2008.

           1. The conversation with Staff Contact #1 is evidence that an employee
                       engaged in a conversation with Sergeant Lopez that may have been
                       construed as disclosing non-public information, but the facts do not
                       establish inappropriate conduct.




        Sergeant Lopez says that he met with this employee in "early 2009." The conversation
is described by Lopez as expressing a desire to work better with groups like the POA in the
future. The meeting occurred in person. Employee C acknowledges a meeting with Sergeant
Lopez in March 2009. Employee C met with Lopez to discuss the future of the IPA and in
particular the notion of focusing on the significance of Field Training Officer assignments in
cases of officers accused of misconduct. Employee C was interested in appointment as the
new IPA and stated an intention to work with the POA if appointed and to improve the
relationship between the IPA and POA.



            The evidence provided by Sergeant Lopez regarding the content of the discussion is
consistent with the foregoing. The only point of dispute is the conclusion by Sergeant Lopez
that this meeting reflected "information" from the IPA and/or that the statements by the staff

member constituted a report of inappropriate conduct by the IPA.



       There is no evidence that any "information" was disclosed, other than the opinion of the
person meeting with Sergeant Lopez. The fact that this meeting occurred after the tenure of
IPA Attard ended is significant. Clearly there is no evidence of disagreement being expressed
with current policy. Even assuming that statements made during the meeting indicated an intent
or desire to take the office in a different direction, the evidence fails to demonstrate that such
statements constitute interference with the independence of the IPA. At that time, an interim
IPA was in place and the evidence demonstrates that the perspective of the office had in fact
changed. Furthermore, recruitment was under way for a new IPA and a statement indicating an
intent to take the office in a different direction if appointed to be the new IPA was not a conflict
of interest or inappropriate under those circumstances.

            2. There is insufficient credible evidence to determine that any of the conduct
                        attributable to Staff Contact #2 is evidence that a particular employee
                        disclosed non-public information, and, in any event, the facts do not
                        establish inappropriate conduct.




        The evidence of conduct that might constitute inappropriate behavior or a violation of the
 Municipal Code is neither overwhelming, nor specific. From the outset, Sergeant Lopez does
 not describe particularly frequent contact with the individual over a more than two-year period
 and other than the last meeting, he does not recall specific meetings or the content of
 communications from those meetings. In the absence of more detailed information, the facts do




                                                                                                  2389191.1
                                                                             28
not support a conclusion of a pattern of conduct or individual incidents of significance.4o

        As noted, in the discussion in Section V.C.2.b, there are several employees who had
occasion to come into contact with Lopez and there is no evidence that any of those contacts
occurred with any particular degree of frequency or in circumstances outside the regular course
of IPA business. Of the employees that Lopez might have been referring to, only one, Barbara
Attard, appears to have met Lopez under most or all of the circumstances that he recollects the
meetings occurred.41

            Even assuming that a single employee was involved in all of the situations where Lopez
interacted with IPA staff, and assuming further that on each occasion there was some contact

with Lopez, there is still little evidence of what communications actually occurred.
Consequently, we are not persuaded that anyone employee met with Lopez as he alleges - it
appears that he is mistaken on this point.42 .
            3. The conclusion reported to Judge Cordell that a specific employee
                        engaged in misconduct is not supported by the evidence.

        In reporting her conversation with Sergeant Lopez to Judge Cordell, Skyler Porras stated
that she had concluded Sergeant Lopez's allegations referred to a specific employee. Porras
concedes that Sergeant Lopez did not disclose the name of an employee and told Judge
Cordell that her conclusion was based on a "hunch."

        Porras offered several explanations to support her 'hunch." Primarily, she stated it was
based on observing the employee in question during committee meetings and other public
settings. In particular, she referred to a meeting of a task force in January 2009; Porras felt that
the comments by this employee during that meeting were "inappropriate," reflecting
perspectives on the issues of transparency and oversight. Porras also felt that she had
"confirmed" the identity of this employee with another member of the IPA staff. Finally, Porras
related that she learned of developments in the IPA recruitment that further confirmed her
beliefs.

        Despite these deductions, we do not find that the evidence supports Porras's belief.
Significantly, Porras's speculation as to the identity of the employee is not based on any direct
evidence; Lopez did not tell her who she talked to and Porras has no first-hand knowledge from
any other source. The "confirmation" that Porras says that she obtained was not a
"confirmation" of the allegations Lopez made to her. Porras stated that she told another IPA
employee (Staff Contact #3) about Lopez's allegations and that this contact identified the same
employee as Porras. However, in speaking with Staff Contact #3, it was clear that she did not

40 In our view, the allegation of inappropriate disclosure requires assessment of the scope and nature of
the alleged disclosure. Isolated incidents or ambiguous communications are less significant than
evidence of frequent, periodic contact and/or specifically damaging/harmful communications (even if
isolated).
41 Employee A is Barbara Attard. As she is not a current employee we believe disclosing her identity is
appropriate.
42 We would come to the same conclusion even if Lopez had identified a specific employee. As
explained, Lopez related all of the facts that he could recall regarding the circumstances of these
meetings. We would have tested these facts against the name of any employee that he might have given
us, the same as we tested the facts against all of the employees he might have been referring to. We
believe the results would have been the same.


                                                                                                    2389191.1
                                                                             29
understand Porras to be making an allegation that Sergeant Lopez received confidential or
sensitive information from a member of the IPA staff. On the contrary, Staff Contact #3
understood Porras to be saying that an employee had "complained" to Sergeant Lopez about
the IPA but Staff Contact #3 had no information about how the complaint occurred or what was
said. Staff Contact #3 assumed that the matter concerned a statement that the employee did
not like the former IPA and said that she told Porras, "it would not surprise me" and nothing
more.43

       As to the circumstantial evidence that Porras considered, we are similarly unpersuaded.
Porras noted that comments by the employee at a task force meeting struck her as
inappropriate. The Acting IPA was aware of the comments made by the employee in the
meeting and did not find them to be inappropriate statements by a representative of the IPA
office.

           4. The evidence shows that an employee of the office made comments that
                       could have been construed as criticism of office policy.

                       As discussed in section V.D.2 above, the evidence disclosed two
                                                                                                   circumstances
in which Employee C made statements to outside parties that could have been construed as
comment on IPA policy or practices. The recollected facts as to the first set of circumstances
are not specific. It appears the statements occurred in conversation with IA staff. The IA staff

did not attach particular significance to the statements as criticism of IPA policy. Other
conversations and interactions between Employee C and IA staff indicated to the IA staff

member that Employee C was following the policy of the IPA.



            The facts of the second circumstance are more specific. However, the statement was
somewhat ambiguous and the police trainer did not ask for detaiL. He understood the statement
to express some dissatisfaction by Employee C with the job, but there was no information
disclosed to identify the source of that dissatisfaction.

          Neither statement appears to disclose confidential or even sensitive information. In the
first situation, interactions with lA, it is even reasonable to anticipate that comments on the
quality or scope of a complaint would have come up, particular before the implementation of the
RCP. IPA staff would always have an obligation to be circumspect in their conversations with
outside parties, both as to confidential information and statements affecting the independence of
the office, but not every comment on a complaint would constitute an inappropriate comment.

Nonetheless, the comments did occur and raise a question as to the need for corrective action.

        With respect to the second situation (statement to the police trainer, we do not believe
that the evidence supports a finding of disclosure of sensitive information. A general comment
on the workplace, even in these circumstances, is a routine part of casual conversation; it is
clear that the comment was viewed in that vein.




43 Staff Contact #3 knew that the employee in question had met with Sergeant Lopez in early 2009 and
that the meeting was part of several outreach efforts by the employee and her interest in the open IPA
position and she assumed the statement criticizing the former IPA came up in that context. Staff Contact
#3 did not learn until after the fact mòre detail about the comments that appeared to have been made to
Lopez and that the comments concerned questioning IPA practices (and not just dislike of Attard).


                                                                                                            2389191.1
                                                                             30
                                                                                                                  -::,
                                                                                                                  ::.




D. Is There Evidence that any Activity of the IPA Was Affected as the Result of
           Interaction Between IPA Staff and Outside Parties?44




           Generally, no.


        Several witnesses expressed concern that even if the evidence failed to show that
confidential information had been disclosed inappropriately, the fact that an IPA staff member
was sharing information about the office with the POA could be detrimental to the IPA in two
ways. First, the concern was raised that the IPA would be perceived as less than impartial
because of communication between the IPA and the POA - or any outside party - regarding
sensitive, if not, confidential information. Second, insofar as such a course of conduct reflected
a desire to impede the IPA complaint process, this person might also engage in other conduct to
achieve the same result. For example, the person might use their authority to minimize or
narrow complaints; use their influence to affect the outcome of audit findings; or simply delay
the processing of a complaint.



            1. As the evidence demonstrates no unauthorized disclosure of complaint-
                        related information, the credibility of the IPA function has not been
                        permanently impaired.

        The first point raises valid concerns. The perception of impartiality is important to the
credibility of the IPA and conduct that could be misinterpreted as indicating bias is as
problematic as actual bias. Accordingly, engaging in conduct, albeit appropriate, that opens the
door to speculation is an issue of judgment that those responsible for the reputation of the office
must assess. The charter of the office requires outreach efforts and interactions with
stakeholders in the work of the IPA, which would include meetings with the POA. The challenge
is to conduct those outreach efforts in a fashion that avoids speculation as to impartiality. Thus,
IPA staff have to be particularly careful in any interaction with such an outside party and insure
nothing that they say or do might be misinterpreted or misconstrued. In this instance, nothing
occurred at the time to suggest inappropriate conduct. Sergeant Lopez never made any
statement at the time these meetings occurred to indicate publicly that he had special access to
IPA. Significantly, none of the witnesses interviewed in this investigation could cite any conduct
or event that suggested - even in retrospect - concern that any IPA staff had acted impartially
or demonstrated a bias towards anyone.45 Consequently, the evidence does not indicate that
any of the conduct alleged and sustained in the investigation impaired the perception of
impartiality of the office.

        A separate issue concerns the possibility that the perception of impartiality of the office
going forward is impaired by the sustained finding of past conduct. In this regard, it is evident
that the entire IPA staff appreciates the special position that they hold by virtue of their work and
take seriously the obligation to protect the complaint process. . The consistent understanding on
this point is significant in that there is insufficient evidence to determine whether the staff person

 44 Recognizing the unique role of the IPA and the concerns raised by these allegations and consistent

 with Judge Cordell's direction, we have avoided narrowing our focus to the question of "compromise" to
 the IPA's function and instead address the broader question of any conduct that might be perceived to
 affect, at any level, the work of the IPA.
 45 The former IPA described that one of the employees involved in the audit of investigations was viewed
 as playing the role of "devil's advocate," raising different perspectives on issues, in group discussions of
 audits. However, the former IPA saw nothing that indicated the employee was doing anything other than
 expressing an opinion that she felt was justified by the circumstances.


                                                                                                      2389191.1
                                                                  31
of Lopez's complaints is still an employee of the office. If not, the evidence would suggest that
the impact of these allegations on the credibility of the office is minimized. If the person is still

an employee, the issue of pubic perception remains. However, in addition to the belief that the.
present employees are genuinely committed to upholding the integrity of the office, the evidence
supports factors to conclude that the office can continue to discharge its obligations effectively.

        These allegations have been taken seriously and prompt action has been taken to
determine the scope and nature of any problem. This unilateral self-review anâ self-
assessment is indicative of commitment to the proper standard. As indicated in this report, the
evidence fails to sustain the most serious allegations and there is no evidence that any conduct
that could be considered inappropriate by the most rigorous standard has occurred in the past
18 months. As discussed in the next section, the current procedures of the IPA impart a
measure of internal control that insures adherence to the expected standards of trust and
impartial work. The surfacing of these issues in the absence of any evidence of actual harm
offers an opportunity for the new IPA to refine internal procedures and controls and to identify
needed policy/practice change to insure that any existing or perceived problem of contact
between IPA staff and outside parties is solved.

            2. The evidence demonstrates that the integrity of the IPA complaint process
                        has not been compromised.

       The primary point of contention in this issue was the belief by the POA that the former
IPA exceeded the charge of the office, particularly with respect to processing matters that did
not warrant consideration as complaints. Sergeant Lopez asserted that his communication with
IPA staff, wherein they made statements consistent with that belief, supported his criticism.

            The evidence demonstrates that even accepting this reasoning, the complaint process
was not compromised. With respect to the intake function, there is no evidence that a matter
that should have been processed as a complaint or investigated in some fashion was not
because IPA did not support or was critical of the policy of the former IPA for handling
complaints.46 On the contrary, from the perspective of lA, IPA staff generally called for broader
investigations than the facts warranted; there was no perception that any member of the IPA
staff was more accommodating in this regard.47 Along the same lines, there was no evidence of
any instance where it appeared that IPA staff failed to process a complaint according to its
standards.48 Moreover, with the implementation of the RCP and the change of IPA at the end of
2008, the evidence demonstrates fewer internal questions within IPA over the scope of matters
 constituting complaints.

 46 It is evident that under IPA procedures Complaint Examiners act independently in most instances in
 handling intake responsibilities. Generally, there was oversight of the Complaint Examiner in that a
 dissatisfied complainant could ask to speak with another member of staff and, on occasion, that would
 occur. There is no evidence of any pattern, or even suspicious isolated circumstances, suggesting a
 problem with any Complaint Examiner (or anyone involved in the intake function) suggesting an issue
 consisterit with the allegations.
 47 There were varied impressions from IA as to how individual members of the IPA staff handled
 interactions with IA from the standpoint of interpersonal relations. However, there were no suspicions
 from IA staff during the relevant period that anyone on the IPA staff was not following IPA policy.
 48 The investigation sought from each relevant witness, who interacted regularly with members of the
 public who would have cause to be concerned over the impartiality or effectiveness of the IPA, any
 instance where it was believed or perceived that any IPA staff obstructed or impeded a complaint from
 the public. We were informed of one potential witness and asked that that person be invited to contact us,
 but we did not receive any information or contact. .


                                                                                                        2389 i 91.1
                                                                              32
          Because the IPA was not responsible for investigating complaints, the timelinebetween
filing of a complaint and resolution by IA was in the hands of IA. IPA submission typically
occurred in no more than a very short period after the complairlt was filed. Thereafter, there
was no opportunity for IPA staff to delay or impede the completion of an investigation. Although
the IPA and Assistant Auditor were permitted to participate in (observe) IA interviews, the
evidence demonstrates that an interview 'or other investigative activity was not affected by IPA
participation.

        In the audit function, IPA staff considered the completeness, thoroughness, fairness and
conclusions of the completed IA investigation. Arguably, a member of the IPA staff seeking to
obstruct a complaint that they felt was not meritorious but had only been pursued because of a
policy they disagreed with, might use the audit to pursue that goal, but the evidence
demonstrates this was unlikely, if not impossible. As a rule, audit reviews by the IPA involved
two or more members of the staff. The decisions as to audit findings reflected a consensus, if
not unanimous, viewpoint of the office, and no one employee was in a position to make
unilateral determinations regarding a completed investigation.

            Practically speaking this type of interference was also unlikely. If a member of the staff

sought to obstruct a matter that had been investigated it would have required arguing to
favorably audit a complaint that IA did not sustain. Or, it would have caused that employee to
find reasons to challenge an investigation that sustained a complaint forwarded by the IPA (a
complaint that was taken by a colleague because if this person had been conducting the intake,
ostensibly they would have tried at that point to keep it from going forward). Generally, the IPA
believed that each complaint raised a concern that needed to be addressed by IA. In either
instance, it seems likely that                a regular pattern of raising such a dispute would have been noted.
There is no evidence that such a pattern occurred.49


E. If There Was a Disclosure of Either Type. Is There Evidence That Any Disclosure
           Was Intentional?

            No.

           As discussed above, the communications that occurred in 2009 do not constitute
disclosures of confidential or sensitive information.50


        Direct evidence of intent would include specific statements by the person to indicate they
were providing the information to Lopez for a specified purpose. There is no direct evidence of
intent. Sergeant Lopez believes that the person told him what he says he was told because
they disagreed with the IPA (Attard) and felt she was exceeding the charter of the office. But
Lopez did not relate that he could recall such specific comments.


49 Clearly, there were differing perspectives amongst the staff who handled intake and audit as to how
police actions/conduct might be viewed. One witness indicated that Employees A and C were on
opposite ends of the spectrum and Employees Band D were somewhere in between. Statements of
other witnesses corroborated this assessment. The same witness saw no peculiar activity by either
Employee A or C in discussions of audit findings and challenges/questions to be raised to IA.
50 In any event, the circumstances fail to demonstrate an intent to engage in unauthorized disclosure of
information. It is well-documented that the purpose of the meetings was unspecified or to discuss other
matters.


                                                                                                          2389191. 1
                                                                            33
        The circumstances also do not establish intentional conduct. Circumstantial evidence of
intentional disclosure would be found in facts indicating the IPA staff member set up meetings to
pass certain information to Lopez, did so in some routine or periodic fashion, and/or spoke with
him with some indication of a purpose to talk about the IPA. However, with respect to the
communications alleged to have occurred in 2007-2008, Sergeant Lopez's statements establish
that the conversations that occurred with IPA staff were casual occurrences that happened on
occasions when he happened to be speaking with the individual in question. These were social
occasions when the person happened to be in attendance, meetings where it turns out Lopez
and this person both attended, and similar circumstances. There is no evidence that the
conversations occurred for the purpose of the staff member to share opinions about or criticisms
of the IPA or office policy/practice or even that the person made a point of speaking with him on
these chance meetings. Rather, these statements came up in the course of general
conversations.

       We also find no evidence, direct or indirect, indicating collusion with Sergeant Lopez or a
conscious (or reckless) effort to support his criticism of the IPA. Whatever support he perceived
he was getting from the IPA staff occurred without any evidence of design or planning. None of
the public statements or activities by Sergeant Lopez suggested that he was working in concert

with or with the aid of a supporter on the IPA staff. Any impressions within the IPA staff as to
which employees agreed or disagreed with policies was never shared outside of the IPA office.
For the witnesses who worked with IPA staff regularly, the consistent view is lack of any
indication that they were acting against the interest of the IPA.



        Based on the foregoing, there is no evidence to conclude that these statements were
other than off-handed remarks. There is insufficient evidence to conclude that the statements
were made with the intent that they be construed as support for Sergeant Lopez's criticism, or
other outside criticism, of the activities of thelPA.51

            The person making the statement would have known of Sergeant Lopez's criticism of the
IPA. Making any statement that clearly expressed disagreement with the IPA under such,
circumstances would have been questionable and at worst indicative of poor judgment.

However, the lack of evidence as to the specific statements made by the person precludes a
finding that the disclosure of information was intentionaL.




51 Our conclusion on this point only addresses the issue of intentional conduct. We do not comment on
the issue of whether unintentional is a sufficient basis to find that an employee acted inappropriately (i.e.,
acted recklessly or exercised poor judgment) or the action to be taken if such were the case.

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                                                                             34
                             VII. CONCLUSIONS AND RECOMMENDATIONS

A. As to the Allegation of Unauthorized Disclosure of Information Protected from
      Disclosure Under State or Local Law:

                 We find no evidence of a violation or misconduct.


                 We recommend that no further action be taken.

B. As to the Allegation of Disclosure of Information that Constitutes a Conflict of
      Interest Between a Member of the IPA Staff and the IPA or Similar Violation of the
      Municipal Code:

      1. With respect to the communications between Sergeant Lopez and IPA staff

                  in 2009:

                  o We find no evidence of a violation                          or misconduct.


                  o We recommend that no further action be taken.


      2. With respect to the communications between Sergeant Lopez and IPA staff

                  alleged to have occurred between 2007 and the end of 2008:

                  o We do not find sufficient evidence to sustain the allegation of a violation or
                        misconduct.


                  o We recommend that no further action be taken.

      3. With respect to communications between IPA staff (Employee C) and
                  internal affairs that occurred between 2007 and the end of 2008:

                  o We find that there is evidence that these statements were made under the
                        circumstances described in Section VI.D.2.a.
                  o We do not find evidence that these statements affected the processing of any
                        complaint reported to the IPA.


                  o We do not find evidence that these statements were made with the intent to
                        undermine the functioning of the IPA.


                  o We recommend that the IPA determine whether corrective action is
                     warranted.




                                                                                                 2389191.1
                                                                      35
c. General Recommendations.

        In our investigation of this matter, we found evidence of appropriate internal controls in
place to satisfy the IPA's obligations for security of confidential information and to protect its
independence under the Municipal Code. We also found the members of the IPA staff

knowledgeable of and attentive to these obligations and responsibilities. Nonetheless, to
reinforce the policies and practices in place, we further rècommend that the IPA:



                        Revise the "Confidentiality Acknowledgement" form to delete the reference to the
                        IPA and Assistant Auditor by name and clarify that questions concerning the
                        policy be directed to the sitting IPA or Assistant Auditor.

                       Adopt a policy to provide for annual or periodic review of the policy with current
                       staff and acknowledgement of that periodic review.

                        Consider requesting that the San Jose Conflict of Interest Code be amended to
                        include the IPA Analyst II classification as a "designated officiaL."

                        Consider implementing guidelines for non-outreach contacts between IPA staff

                        and outside parties.


Respectfully Submitted,



   'D'M4r




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