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Eugene Weekly : Coverstory : 8.21.08

 

Blind Oversight

Cops block auditor from seeing informant complaints

Words By Alan Pittman | Photo by todd cooper

Police confidential informants came up repeatedly during the scandal involving Roger Magaña, the Eugene police officer sentenced to 94 years for raping or sexually abusing more than a dozen women.

In a sworn deposition during the subsequent $5 million in lawsuits against the city, Eugene officer Larry Crompton testified that he once confronted Magaña about a victim’s complaint but dropped the matter. A suspected heroin user and prostitute had complained to Crompton that after she told others about having sex with Magaña, Magaña had sent other officers to tell her to “keep her mouth shut” in a threatening manner. 

Magaña explained to Crompton that the woman was one of his confidential informants. That claim, Crompton testified, “put it all to rest.” 

Shocked by the six-year spree of officer sex abuse that the EPD failed to stop despite numerous complaints, voters passed a 2005 charter amendment to create an independent Civilian Review Board and police auditor to oversee complaints.

But now, apparently, the police chief and city manager have instituted a policy of illegally refusing to allow the auditor to oversee complaints involving confidential informants.  

Asked if she has been allowed to handle confidential informant cases like those in the Magaña trial, Eugene Police Auditor Cristina Beamud said, “I would like to be able to say yes,” but the chief and city manager have taken the policy position that she cannot. 

Beamud declined to say whether the confidential informant policy dispute is involved in a recent controversial case. The chief and city manager have been hiding a complaint by two citizens from the auditor since May 22 and dismissed the allegations of misconduct against the officer without independent oversight, according to Beamud. 

Beamud said the city attorney — hired by the city manager — has told her not to reveal the nature of that controversial complaint. Beamud said the complaint from two citizens was not an excessive force allegation but declined to say whether the complaint involved sex, as in the Magaña case.

City Manager Jon Ruiz did not respond to requests for an interview for this story. An assistant said he was out of the office or in meetings.

Police Chief Robert Lehner also declined to say whether the confidential informant policy dispute was involved in the recent controversy. Lehner refused to talk about the dispute, even in broad terms. “It would be illegal to do that,” Lehner claimed, but refused to cite which laws that would violate. 

Lehner said he may be able to reveal details of the “sensitive” complaint against a fellow officer later. He said he doubted that future date would be more than a year. Asked if it would be less than a month, he said, “I don’t know.” Lehner referred other questions to a written statement claiming: “The viability of criminal cases and safety of associated persons is at some risk” in discussing the issue. 

Lehner and Ruiz’s action in hiding the complaint appear to directly violate city law. “The auditor’s office is the intake center for all community complaints about police employees,” the city ordinance creating the auditor position states. 

Beamud said she only found out that the police were hiding the complaint because her assistant noticed that a number was missing in the complaint numbering sequence. 

Beamud, a former police officer and prosecutor, says she has procedures in place to handle confidential complaints and would not reveal the identity of police confidential informants. She said the police can provide complaint information to her with redacted names. “We have ways of dealing with that.”

The City Council “hired someone perfectly capable of keeping confidential information confidential,” City Councilor Bonny Bettman said. Bettman, who spearheaded creation of the independent oversight function, pointed out that the auditor’s only real power is to oversee and not to adjudicate complaints. “The entire model allows access to information, and that’s it,” she said. “Now what they want to do is take even that role away.”

“The auditor is under the same confidentiality rules [as the police] and has a perfect track record,” said Councilor Zelenka. “The ordinance is clear” about her intake of complaints and access to information, he said. “There are no exceptions.”

Ignoring the city code may mean the chief and city manager have broken state law. ORS 162.405 states: “A public servant commits the crime of official misconduct in the second degree if the person knowingly violates any statute relating to the office of the person.”

Lehner claims he did not break the law. He said in his statement that when he decides to release more information: “I am confident my actions will be viewed as reasonable and necessary.”

But Beamud said she’s heard the legal argument from the chief and said in a statement, “He did not provide an applicable legal rationale for his action.” She said the city attorney “confirmed” her interpretation of city law.

“There are no exceptions within the ordinance or state law that applied to this case,” Beamud wrote of the chief’s “improper” withholding of the complaint. Beamud wrote that while she was allowed some late access to limited, redacted information, the delay “foreclosed much of the auditor’s ability to monitor and review the investigation.”

“It is a dangerous precedent to carve out exceptions based on one individual’s determination that special circumstances exist,” Beamud wrote.

City Manager Ruiz, a Republican retired U.S. Army colonel, appears to back, firmly, the chief’s decision to keep the complaint secret from the police auditor. In an email to the council, Ruiz wrote that it is “very unfortunate” that the issue “has been aired as a contentious, black and white question.” He wrote, “I have high respect for Chief Lehner’s integrity.” 

Ruiz wrote that he has been aware that the complaint was withheld from the auditor “since May,” but he apparently did not tell the auditor, in violation of city law. Beamud said that she did not discover the existence of the complaint until June 6.

The news that the chief and manager were ignoring the police auditor law alarmed many citizens who spoke out to the council at a public forum or in letters. 

“I was just livid,” said Chuck Dalton, president emeritus of the local NAACP chapter. “I was so disappointed.”

Dalton wrote the council: “It is clear to me that both the city manager and chief of police believe that they are above the law.” Dalton added, “Neither of them believes the independent police auditor ordinance applies to them. When the leaders won’t follow the law, the rank and file won’t respect the law.”

In other cities with independent police oversight, police auditors are allowed access to complaints involving confidential informants, according to Beamud. Beamud said she researched the issue and was unable to find any other city that blocked confidential informant complaints from oversight as has happened in Eugene. 

A quick Internet search reveals records of independent police auditors and review boards handling complaints involving confidential informants in New York City and Albany, N.Y.

Confidential informants are frequently involved in complaint cases against police due to the “very high risk” nature of using such sources, Beamud said. Such informants may be motivated to give false information to avoid arrest for their drug addictions or to eliminate the criminal competition, according to Beamud. “Most all of the oversight professionals consider these types of cases to be very serious,” she said. 

Indeed, Beamud herself recently accepted a job as police auditor in Atlanta, Ga., a job created in the wake of a police scandal involving a confidential informant. According to press accounts, police claimed they used a confidential informant’s accusation of drug dealing to raid a 92-year-old woman’s house, killing her in a 39-shot burst of gunfire. The “confidential informant” later came forward in the media to report that police had lied in saying he identified the innocent woman’s house as a place of drug sales.

The Atlanta case and other police confidential informant abuses helped prompt the U.S. House Judiciary Committee to hold a hearing last year on the issue. Experts testified that police use of confidential informants needed increased independent oversight.

In the Magaña case, one frequent victim of coerced sex testified that Magaña threatened to tell criminals that she was a confidential informant, putting her life at risk. 

The criminal prosecutor and victim’s attorney in the Magaña case pointed out that the police had trusted some of the women as “reliable” confidential informants in pursuing criminal cases but did not trust them when they complained about Magaña. 

Magaña wasn’t the first Eugene officer to target a confidential informant with sex abuse. Documents in the victims’ lawsuit against the city refer to an earlier case in which a Eugene school officer sexually harassed and furnished alcohol to a minor whom he used as an informant. 

Lehner said that he should also be allowed to withhold information from the auditor in cases involving “national security.” Lehner said, “I have national security clearance” that forbids him from disclosing such information to anyone, including the city manager and the police auditor, “under any circumstance.”

The national security and police oversight issue came up in Portland in 2005. The Portland City Council voted to withdraw city officers from the federal Joint Terrorism Taskforce for the area because the secrecy provisions would not allow for adequate police oversight and supervision. 

Lehner declined to elaborate on just how his “national security clearance” could block the police auditor from taking complaints and complaint oversight. He claimed “there are other examples” of laws that conflict with the auditor function but declined to site those examples. “I don’t have time,” he said.

Lehner and Ruiz have said publicly that they support the independent police auditor, whose position was enacted by voters. 

But before he came to Eugene, Lehner opposed the creation of an independent police review board while serving as the police chief of staff in Tucson, according to press reports. In the wake of a dozen police officers charged with robbery, molesting minors, assault and other crimes, the Tucson mayor and council unanimously voted for police oversight anyway.

Lehner was hired by former Eugene City Manager Dennis Taylor, who, along with the Eugene police association, opposed independent police oversight. In Tucson Lehner once served as president of the police union.

Beamud said she also has other issues with how the police have handled complaints. 

Beamud has said the police chief has decided that investigations of police misconduct shall be suspended until criminal proceedings are complete. Beamud notes that other cities have concurrent criminal and internal investigations. She cites a leading police oversight expert that such concurrent investigations are preferable.

Police oversight supporters recently criticized local District Attorney Doug Harcleroad for inserting a county criminal investigation into a controversial Eugene police Tasering of a protester. Critics said Harcleroad, who has a record of quickly dismissing complaints against police, was retaliating and trying to intimidate those who complained of police brutality and trying to delay the police auditor’s work.

Asked about allegations of retaliation in the Taser case, Beamud said, “I am sympathetic to those people who might say that the complaint has resulted in more scrutiny.”

Lehner also involved the DA in the mysterious secret complaint, but it’s unclear why, since the complaint did not appear to be a criminal matter, according to Beamud’s statement. The Eugene police chief is supposedly under the supervision of the city manager, not the DA. 

The police chief also drew criticism for assigning the same internal affairs officer who was investigating the Taser complaints by protesters to investigate the protesters for additional charges.

“Clearly it created some problems,” said Beamud of the IA investigator’s dual role. Beamud said it would be better to have separate officers conduct the criminal and complaint investigations.

A similar issue had come up earlier with another complaint. A person had alleged that an officer used excessive force against a woman involved in a naked bike ride protest. According to Beamud, the police internal affairs officer apparently took a list of witnesses from the complainant and then used the list to charge other people involved in the protest with crimes. 

Beamud said regardless of police motive, “There may be a chilling effect on the complaint process if what they disclose in the complaint process results in further criminal charges.”

In other cities, Beamud said, police chiefs exercise more discretion in pursuing minor cases against people complaining of police misconduct. 

In the Magaña case, police apparently did not pursue charges against the heroin user and prostitute victims of the EPD officer while the criminal investigation and trial was in progress. 

With so many unresolved issues, the future of the independent police auditor and review board function in Eugene appears uncertain.

“Although they say they’re in favor of independent complaint review, the devil is in the details,” said Councilor Bettman of the chief and city manager. “So far the administration’s posture appears to be to resist any oversight.”

The manager and chief have said they will propose changes to the city’s police oversight law to address their concerns. But Bettman said, “There is not a problem with the ordinance; there is not a problem with the auditor. There is a problem with resistance.” She said the chief and manager’s proposed changes to the ordinance are “a ruse to reduce the very minimal amount of power that the auditor’s office and the external review of complaints has to begin with.”

The city managers “are very secretive. Information is hard to get, it’s rationed, so the idea of having open scrutiny of complaints is anathema to how they’ve functioned,” Bettman said.

Bettman, who is months away from the end of her last term in office, said she’s not sure there will be support on the council to protect independent police oversight. 

She pointed out that the council last year voted 5-3 against requiring an independent internal investigation of how the more than a dozen complaints against Magaña were ignored by more than a dozen other officers for six years. “Even with the severity of those crimes and the longevity of those crimes, they didn’t do an administrative investigation at all,” Bettman said.

“You just have people on council that are anti-accountability,” she said. “We have a split council here.” 

The tight mayor’s race could change that split to open opposition of police oversight. Mayor Kitty Piercy has supported the auditor, but challenger Jim Torrey has said he opposes the independent police auditor, preferring that the auditor be controlled by the city manager, not the council. Torrey, who has said he may spend more than half a million dollars to win the mayor’s seat, has received some of his biggest campaign contributions from the police union, a strong critic of the independent auditor function.

Bettman said she hopes voters will approve a city charter amendment in November that would help prevent a future council from doing away with independent police oversight. Beamud said she supports the charter amendment and opposes changing the existing ordinance. But Beamud’s last day before leaving for her new job in Atlanta is Aug. 22. 

Beamud said her deputy Dawn Reynolds is qualified to fill in. Reynolds has experience as a city prosecutor, judge and defense lawyer and said she will apply for the head auditor job. 

The council voted this month for a nine month process to find a permanent auditor. That would leave the office short-staffed and push the hiring decision to the next council after the potentially pivotal mayor’s vote in November. 

Beamud declined to recommend who should replace her as independent police auditor. She said of the mayor and council, “it’s really up to them.”