Following is City Manager Bill Lindsay’s response to “The Firing of Captain Mark Gagan.” Previously, Chief Allwyn Brown had called the story “dishonest.”

MEMORANDUM
City Manager’s Office

DATE: August 8, 2018

TO:                 Mayor Butt and Members of the City Council

FROM:            Bill Lindsay, City Manager

SUBJECT:     Information Regarding East Bay Express Article, “The Firing of Captain Mark Gagan”

▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬

City Councilmembers have asked that I provide background information concerning the Richmond Police Department as it relates to the East Bay Express article, “The Firing of Captain Mark Gagan.”  This memorandum has been prepared in response to those requests.

Please note that this memorandum is not intended to be a critique of the article itself.  I have known the author, John Geluardi, for a number of years during the time that I have served as the Richmond City Manager, and have a great deal of respect for him as a journalist.  I believe that he has always sought to be accurate in his coverage, and he has been consistently fair in writing about me and my work performance.

This memorandum is also not intended to be a defense of the Richmond Police Department.  There are a number of issues raised in the article related to the performance of the Department that need to be acknowledged and require focused follow-up by me and by the Richmond Police Chief.  I will identify those in this memorandum.

Captain Mark Gagan as a Member of the Richmond Police Department and the Relationship with Chief Brown

The article discusses Captain Gagan’s contributions to the Richmond Police Department and the Richmond community.  While I am not personally familiar with all of the specifics described in the article, I did have the opportunity to work directly with Captain Gagan on a number of occasions, usually associated with community events, but also in some policy development matters.  I always observed his work to be excellent.

The article implies, however, that Chief Brown was seeking to “destroy Gagan’s reputation,” and there is no evidentiary support for this assertion.  Mark Gagan rose from the rank of lieutenant to captain during Chief Magnus’ tenure; Allwyn Brown was promoted from sergeant to deputy chief, then to assistant chief, and was recommended by outgoing Chief Magnus to be his successor.  Based on Chief Brown’s successful career path, there would be no logical reason for his professional jealousy towards Captain Gagan.  From my perspective, both Brown and Gagan have been important contributors to the Richmond Police Department becoming “a national model of reform.”

The article states that Gagan “felt as though he was being marginalized.”  If this were the case, it was unfortunate that it was not addressed through communication between these two individuals.

Circumstances Regarding Investigation and Termination

I believe that the East Bay Express article is not as precise as it could be in summarizing the conclusions of the investigation of Captain Gagan.  The article states:

That investigation ultimately found no evidence of the accusations against Gagan, and in May, the police captain was reinstated to his job.

Please contrast that statement to what I wrote to you in an email following Captain Gagan’s reinstatement:

In sum, I found that there was insufficient evidence to support the charges that gave rise to the disciplinary action against him.

The semantics are critically important – “no evidence” to support the accusations vs. “insufficient evidence” to support termination – and I discuss this distinction below.

The Office of Professional Accountability (OPA) was responsible for trying to determine who provided a copy of a Police Department crime report to ABC7 News reporter Melanie Woodrow in violation of department policy.  The appearance of that document in the television news story showed that the document had been disseminated without clearance to do so.  Captain Gagan was not the initial target of the OPA investigation, but, as it progressed, the investigation narrowed to him from an initial eight subject officers based on the testimony and evidence. 

Normally, elements of the investigation would need to remain confidential; however, Captain Gagan’s attorney, Paul Bird, has publicly disclosed elements of the investigation in an article that was published in the June 2018 publication PORAC Law Enforcement News (“Richmond Police Captain’s Termination Overturned on Appeal to the City Manager”).  I have utilized Mr. Bird’s descriptions to provide specifics regarding the evidence.

As described by Mr. Bird:

After a local official (Councilmember Eduardo Martinez) reported himself the victim of a robbery, the attending sergeant completed his investigation and drove the official home, rather than allowing the official to drive himself.  When his initial report made no mention of why he had driven the official home, the sergeant was directed to draft a supplemental report.  Soon thereafter, in her television news story on the incident, a local reporter alleged that a “source” within the Richmond Police Department had provided her with the supplemental report. The Richmond Police Department then commenced an internal investigation to uncover the “leak“.   

Mr. Bird goes on to say:

Gagan was repeatedly asked whether he knew the reporter who received the report, to which he responded he did not. He was repeatedly asked whether he communicated with her, to which he responded he had not.  After committing Gagan to his answers, the interviewers then presented him with the records from his department phone, which showed several one- to two- minute calls from and to what was determined to be the reporter’s phone number in February 2016, as well as a five-minute phone call from her in late October 2016 – just days before the reporter referenced the leaked supplemental report in her television report.  How could Gagan say he didn’t know the reporter when, right there in black-and-white, his own phone records showed he communicated with her? (emphasis as used in article).

Mr. Bird also recounts a specific text record in which the reporter states,

“Mark Gagan suggested that I contact you (Chief Brown) directly.”  If he did not know her, why did the reporter say that Gagan had told her to text the Chief? (emphasis as used in article).

The description by Captain Gagan’s attorney indicates why an investigator (in this case, Eddie Aubrey, Office of Professional Accountability Manager) could conclude that Captain Gagan was deliberately misstating facts (i.e., a claim to not know someone when hard evidence shows that there had been multiple telephone conversations with that person).

Regarding the supplemental police report, Mr. Bird provides the following account:

The interviewer also dug hard into Gagan about the supplemental report. They asked him a multitude of questions: Had he ever a “seen, read, obtained, given, been asked to give, faxed, etc., etc.” the report?  All to which he (Gagan) responded he had not. They then produced a database login report that showed that only days before the reporter discussed it on television, he had logged into the system where the supplemental report was kept. Why was Gagan in the database?

Based on Gagan’s testimony, which was contrary to factual evidence, the investigator concluded by the standard of a “preponderance of evidence” that Captain Gagan had lied, both about conversations with the reporter and about access to the subject police report.

My conclusion, as previously noted, and with which reasonable people could disagree, is that “there was insufficient evidence to support the charges that gave rise to the disciplinary action against him.”  Whether one agrees or disagrees with my conclusion, I believe that the details of the investigation show that evidence was reasonably gathered and conclusions were reasonably drawn by the investigator.

Both the Paul Bird article in the PORAC Law Enforcement News, and the article in the East Bay Express create a sympathetic view of both Captain Gagan and elements of the investigation.  However, this recounting does not change the undisputed fact that Captain Gagan provided testimony to an investigator that was not accurate (whether deliberate or not) and, on its face, self-serving.  I believe that I reached the correct conclusion that Captain Gagan’s misstatements were not calculated, and that the investigative conclusions drawn from these statements were not correct.

Jasmine Abuslin Case

The East Bay Express article is critical of the way in which the Richmond Police Department handled the “sex scandal” related to Jasmine Abuslin.  There is no question that the behavior of a number of individual officers involved in this case was inexcusable and merited disciplinary actions against all, and terminations of some, of these individuals.  However, a number of the criticisms and conclusions in the article are unfounded or unsupported; others, in my mind, have merit, as discussed below.

• Handling of the internal police department investigation - The article is critical of the “tight control” of information.  The article states that “Both Brown and Assistant Chief French sent out department-wide emails that warned police employees they would be disciplined for talking about the case.”

A more complete summary is that Chief Brown issued a department directive instructing staff members to (1) not spread rumors about the case, (2) report any pertinent information about the case to the OPA, as would be an ordinary obligation under established policy, and (3) direct all inquiries about the case to Chief Brown or, alternatively, to Assistant Chief Bisa French.

The confidentiality that was demanded is, in fact, not about protecting the department’s “public image,” nor “protecting the names of the officers” as alleged in the article; instead, it is standard practice in all personnel investigations to ensure the integrity of investigations.  We routinely admonish employees involved in a personnel investigation (throughout the City – not just in the Police Department) that they must maintain confidentiality in the investigative process.

• Role of Lieutenant Tan as Chief of Staff – The article is factually incorrect that Chief Brown appointed Lt. Tan to be chief of staff; this appointment was made by former Chief Magnus.  At the time when the Abuslin case was being investigated, Tan was not the Department’s lead public information officer (PIO), and, as previously noted, Chief Brown and Assistant Chief French were to handle all media inquiries, effectively removing him from any such role in this case.  The then-lead PIO was removed from those responsibilities when the investigation disclosed his possible misconduct in the case.

• Removing Abuslin to an out-of-town rehabilitation facility – This action has received a significant amount of criticism, and I recall asking Chief Brown about it when the issue was first raised.  Candidly, I give the Richmond Police Department credit for being the only department in the Bay Area that correctly treated Ms. Abuslin as a crime victim, rather than as an object of an investigation into police misconduct. 

Richmond Police Department personnel appropriately worked with the Family Justice Center and the State Crime Victims Fund to seek help on her behalf once all questioning in the personnel investigation had concluded.  In my conversations with Chief Brown, he indicated to me that the decision for an out-of-town location was made after consultation with Ms. Abuslin’s family, who felt that she needed to be out of her normal living environment, and out of the Bay Area, to receive effective treatment.  Because this assistance was directly connected to matters protected by confidentiality laws, the Department did not publicly explain what was being done nor why it was being done.

I am unaware of any sense of urgency in transporting Ms. Abuslin.  I have been informed that Police personnel adhered to established policies and procedures in her transportation.

The article states that “It (transporting Abuslin to Florida) was a risky move,” and I agree.  Moreover, it proved to be unsuccessful and gave rise to accusations of a “cover up” by the Richmond Police Department.

I was intrigued by the quote in the article attributed to former federal prosecutor Gil Soffer:  “Why take the risk, at a minimum, of giving the community the impression that they are trying to hide something?  Because that’s the optics of it.”  The answer, I would assert, is simple if one believes that the Richmond Police Department was trying to assist a troubled youth and a crime victim:  we should not be more concerned about “impressions” and “optics” than we are about assisting the victim.

I am reminded of the Office of Neighborhood Safety and the “optics” of the media sound bite that the ONS is “paying people not to shoot other people.”  This always requires an explanation that is routinely ignored by the press.  However, the focus of the ONS program is not on the optics; it is on reducing youth homicides.

• Disciplinary actions against officers involved in misconduct – The article is accurate in implying that I believe the disciplinary actions against the officers involved in this incident were far too lenient.  I do not understand why a number of people think that the misconduct was less serious than I think it was.  In particular, I cannot understand how, in one specific case, a neutral arbitrator would believe that my proposed disciplinary action (termination) was too harsh.  I hope that, in implementing more severe disciplinary actions, we can change these departmental behavioral standards.

The city manager is not in the disciplinary review chain for actions below a certain threshold, including reprimands.  Thus, I do not know the nature of the misconduct giving rise to the reprimand of Lt. Tan. 

• Claim against the City of Richmond – It is noteworthy that the $30 million claim filed against the City, carrying with it the comments by Ms. Abuslin’s attorneys that are quoted in the article, was abandoned by the plaintiffs – not even a “nuisance value” settlement.  I think that this speaks volumes regarding the veracity of the claims and associated statements that were being made.

Alleged Misconduct by Lieutenant Felix Tan

The article describes in some detail alleged misconduct by Lieutenant Felix Tan in taking “three secret out-of-state trips with a girlfriend.”  I believe that these very serious assertions merit additional review.  Certainly, any time and money spent by City personnel on travel and training should have a significant business purpose, and not be treated as a “perk” of the job, or, worse yet, of rank.

I am obligated to provide additional detail regarding information contained in the East Bay Express article:

• The three trips that are discussed in the article were arranged by the United States Department of Justice (DOJ) in connection with Richmond’s two-year affiliation with the Violence Reduction Network (VRN).  The VRN creates an opportunity for cities to engage in violence reduction strategies, directly with DOJ, and with national and international, practitioners and researchers who have proven track records in developing, implementing, and evaluating strategies and tactics that reduce urban violence.

• The VRN employs peer-to-peer learning exchanges to create “communities of practice,” where agencies examine first-hand how others are implementing successful strategies in their jurisdictions.  The Richmond Police Department has both hosted police staff from agencies across the United States, as well attended meetings with other agencies, in a practice that predates Richmond’s participation in the VRN.  Particularly effective Compstat strategies have been gathered from the peer-to-peer exchanges in Kansas City, Dallas, and Boston.  

• These peer-to-peer learning exchanges are not traditional conferences with extensive presentations or classroom seminars.  This would explain the “no reports, presentations, or other forms of tangible value” as described in the article.  The tangible value is in evolving police strategies over the long term.

• The trips were not “secret.”  The article correctly states that records were publicly available from the Richmond Finance Department.

• The site visits were not paid for by “Richmond taxpayers” as expenses were largely funded by the federal Violence Reduction Network grant.  But, while I want to correct the facts, I consider this particular fact barely relevant to the discussion.  I believe that all personnel attending training on City time should approach that opportunity as if it were a regular work day – no matter who is footing the bill.  Even if the funds were not from Richmond taxpayers, they were public funds and there needs to be a high standard of care for the use of these funds.

• While I have no firsthand knowledge of their relationship, the characterization of a woman as Tan’s “girlfriend” may be based on hearsay and malicious gossip, and should be read with reasonable skepticism.  I have asked Chief Brown directly about Tan’s relationship, and he states unequivocally that “she is not his girlfriend.”

• Overtime costs as described in the article are exorbitant; however, the City is legally obligated to pay for overtime spent whether at a conference or as part of regular duties.

Rashanda Franklin  

The murder of Rashanda Franklin by her ex-boyfriend is recounted in detail, and, as I understand it, accurately, in the article.  What is unfortunate and unfair is the accusation that the Richmond Police Department “may have been partially responsible for her death.”

This is a serious accusation and one that I asked Chief Brown to address directly.  His response was:

Lawyer McBride is the person solely responsible for the April 7, 2017 murder of Rashanda Franklin.  Police officers are empowered to take legal criminal action when facts gathered, and circumstances meet the elements of specific crime statutes based on information available to them at the time.  Our internal review found no policy violations or failure to exercise duty in the enforcement of criminal law with regard to the handling of Ms. Franklin’s April 3, 2017 call for service.

Concluding Remarks and a Path Forward

I would summarize my comments in this memorandum as follows:

• There is no support for the assertion, that Chief Brown sought to “destroy Gagan’s reputation” out of professional jealousy.

• There was evidence to support the disciplinary charge that Captain Gagan lied to the investigator about whether or not he “knew the reporter” who received the police report in violation of Richmond Police Department policy.  There was some, but less compelling, evidence that he gave the report to the news reporter.  My conclusion was that “there was insufficient evidence to support the charges that gave rise to the disciplinary action against him.”

• The confidentiality in the Jasmine Abuslin investigation was to preserve the integrity of the investigation.

• At the time when the Abuslin case was being investigated, Lieutenant Felix Tan was not the Department’s lead public information officer (PIO), and Chief Brown and Assistant Chief French were to handle all media inquiries.

• The Richmond Police Department correctly treated Ms. Abuslin as a crime victim, rather than as an object of an investigation into police misconduct.  While the “optics” of relocating her to an out-of-state facility was not good, and, ultimately, the treatment was unsuccessful, it was a legitimate attempt to assist the victim.  “Optics” should not be the determining factor for police work.

• The initial disciplinary actions against the officers involved in the Jasmine Abuslin incident were far too lenient.

• The site visits associated with the Violence Reduction Network grant have been a valuable resource; however; any potential misuse of time and money on these site visits should be investigated.

• The accusation that the Richmond Police Department “may have been partially responsible for the death of Rashanda Franklin” is unfortunate and unfair.  There were no policy violations nor was there a failure to exercise duty in the enforcement of criminal law with regard to the handling of Ms. Franklin’s April 3, 2017 call for service.

Of concern to me is that the articles in the East Bay Express undermine public confidence in the management of the Richmond Police Department.  To identify and assess whether this “national model of reform” is, in fact, regressing in any way, I have retained the services of a qualified consultant to conduct a leadership assessment of the Department.  The purpose of this assessment is to review the leadership efficacy of the Department based on the stated goals and intended outcomes of the organization.  This assessment will begin as soon as possible.