While announcing the appointment of Howard Jordan as the city's new interim police chief last October, City Administrator Deanna Santana told reporters at a City Hall press conference that she was also hiring Thomas Frazier as a consultant. Frazier is a former Baltimore police commissioner who also worked for the San Jose Police Department for 27 years. Santana knew Frazier from her time as a deputy city manager in San Jose, and she said he would help OPD finally live up to the reforms mandated in the federal consent decree. Six months later, however, Frazier and Santana were involved in a testy and lengthy email exchange over the contents of a hard-hitting report that Frazier had produced on OPD, its dysfunctional culture, and its heavy-handed response to Occupy Oakland.
The emails, obtained by this reporter, show that Santana wanted to redact portions of Frazier's report that included strong criticisms of OPD. In one email, Santana's chief of staff Alexandra Orologas also requested that Frazier send a draft of his report in Microsoft Word format to Santana to make it easier for city officials to alter the report's contents. Santana also requested that Frazier send the report to her private Comcast email account — in a move that could have kept the email exchanges and the alterations that Santana intended to make to the report from becoming public. Santana also apparently sought to keep a draft copy of the report, and the changes she wanted to make to it, out of the hands of one of Mayor Jean Quan's top aides.
Frazier, however, steadfastly refused Santana's request to send his report to her in Microsoft Word or to her private email, writing at one point: "I'm afraid we can't do that."
The emails also show Frazier refused a request from Santana that might have resulted in most of his report being kept secret. The city administrator wanted him to "bifurcate" the report's executive summary from its actual findings. After Frazier refused again and Santana and Quan finally released his report in full in June, the actual findings made up the lion's share of the report and included criticisms of OPD's inadequate planning before the October 25 raid on Occupy Oakland; the use of internal affairs officers during the raid, some of whom would later investigate complaints against OPD; failures by the department to follow its own crowd-control policy; a seriously mishandled criminal investigation into the wounding of Iraq War veteran Scott Olsen; revelations that Olsen was gravely wounded by a beanbag round identical to those used by OPD that evening; and serious misgivings from OPD officers who told Frazier Group investigators about the department's lax attitude toward misconduct and discipline.
In an interview, Santana said she wanted Frazier's report in Microsoft Word format because she contended that an earlier version of the report was riddled with errors. "What I found was that more due diligence was needed," she said. "Facts had to be cleared up."
Frazier has declined requests to comment further about Oakland-related issues.
Since arriving in Oakland in August 2011, Santana has risen to a level of prominence seldom experienced by appointed municipal bureaucrats. The 41-year-old Massachusetts Institute of Technology graduate had cut her teeth as a public safety analyst in the Oakland City Manager's Office during the 1990s before becoming a deputy city manager in San Jose. Despite the tumult surrounding the city's response to Occupy Oakland protests last fall, Santana emerged with her law-and-order credentials intact. In a laudatory July 9 article, the San Francisco Chronicle hailed Santana as a firm-handed, principled official willing to make "gutsy calls," including the October 25 raid on the Occupy Oakland camp — a move initially opposed by Quan, whose public image has never recovered.
The raid on the tent city at Frank Ogawa Plaza and the subsequent violent encounters between Oakland police and demonstrators attracted global media attention. Moreover, it placed OPD's conduct under such scrutiny that the city's response to Occupy Oakland promises to play a major role in upcoming hearings over a potential federal takeover of the police department.
Santana, Quan, and other Oakland officials have all stated their opposition to federal control of OPD, and plan to oppose a receivership motion by civil rights attorneys John Burris and Jim Chanin in US District Judge Thelton Henderson's courtroom this December. One of the pieces of evidence the city will be fighting against is the Frazier Report.
When the report was released in June, there was already evidence that Oakland officials had attempted to sugarcoat its findings by adding their own "progress charts" to Frazier's evaluation (see "Damning Report of OPD," 6/20/12). However, Frazier told the Express at the time that he had no hand in creating the progress reports and had no way of verifying whether they were accurate.
The series of email exchanges between Santana, Frazier, and Santana's chief of staff Orologas had begun three months earlier when Santana fired off a missive to Frazier from her iPad asking him to send a draft of the report to her only — and to ignore a request by Quan's public safety advisor, Reygan Harmon, to also obtain a copy. Frazier responded that this was not a problem, and asked Santana how she wanted the report delivered: "On my list of questions for you was 1) How many copies do you want printed, and 2) Do you want any on CDs and if so, how many?"
Santana's responded: "I only need one copy...you can send it to [her private email account]."
Although there is no explicit passage in the California Public Records Act that bars public officials from using their private email addresses for official business, there is much controversy as to whether private emails that involve official public business should be considered public records. Peter Scheer, the director of the First Amendment Coalition, believes communications by public officials from their personal accounts are public records, but the courts have yet to clarify the issue entirely. The gray area in the Public Records Act, Scheer said, has allowed officials to try to keep the public from having access to official public business.
"This uncertainty can be used by public officials who are trying to avoid channels of communication that would be subject to a public records request," said Scheer. "I believe it's inappropriate to do that."
Santana's directive to Frazier also raises questions about how much business the second most powerful city official in Oakland is conducting through her personal email accounts, thus potentially making them beyond the reach of city and state transparency laws.
Santana said in an interview that her request to Frazier was the only time she has asked to have official city business sent to her personal email account. "This was a one-time deal," she said, adding that she will make available to the public the emails from her private account to Frazier that related city business.
Santana also said that she sought to interact with Frazier through her private email because of security concerns and leaks at City Hall. "I have some people who actively monitor my email ... there had been some leaks of sensitive information from the City Administrator's Office," she said. She also said that eight to ten people had access to her schedule, and two people had continuous access to her City Hall email.
Frazier's consulting firm, Frazier Group LLC, submitted its final version of the Occupy Oakland report to the city on April 30. However, Santana did not appear pleased with the end product. A May 11 email from Frazier to Santana's email account at City Hall offered a glimpse into their argument about how much of the Frazier report's damning findings would become public.
"We feel strongly that bifurcating the Report into two sections, (Executive Summary and Internal Management Plan) masks the substance of our work," Frazier wrote. "Both myself personally and each member of my team consider it an ethical breach to split the report into two sections. Each of us individually, and all of us collectively will not do that."
Santana admitted to me that she had requested that Frazier "bifurcate" his report, and contended that her request was based on what another consultant had done in a 2009 report about a separate OPD scandal. She also asserted that if Frazier had done what she asked, she did not know what ultimately would have been included in the final report released to the public. She also noted that, "at the end of the day, nothing was redacted" in Frazier's report.
Nonetheless, emails show that Santana and Orologas tried repeatedly to redact portions of the consultant's work. At 5:03 p.m. on June 1, Orologas sent Frazier an email asking him to "send me a word version of the Oct report? Our City Attorney's Office has advised us that we need to do additional redactions to the report and will need the word copy to do this."
Frazier's response, however, was firm: "As far as the City Attorney redactions are concerned, I'm afraid we can't do that." After reminding Orologas about the previous rounds of edits his team went through with city officials, and the repeated delays of the report's release date, Frazier drew a line in the sand about further changes. "It is past time for any content changes," he wrote. "If there are technical changes, send them to us and we will consider them. Most importantly, this is a Frazier Group report, and we cannot allow modifications to it that are beyond our control through provision of a Word copy."
In another June 1 email from Orologas to Frazier, she noted to him that "Deanna and team brought to your attention that some report content exceeded the scope and/or required elimination because it revealed too much tactical information not generally shared beyond law enforcement experts."
Orologas further asserted that the April 30 version of Frazier's report contained errors, and tried again to convince Frazier to send a Microsoft Word copy, stating that the Oakland City Attorney's Office had cited potential legal risks created by the report. "We would be happy to share with you a redacted version before the report is released if that helps alleviate any concerns that you may have," Orologas wrote.
Frazier's response the following day reasserted his opposition to Oakland city officials changing his report and/or redacting substantial portions of it, stating, "[W]e strongly disagree with much of the commentary in your email." Frazier also responded to the city's objection about including tactical and munitions information in the report, noting that such information is "easily available on the internet" and that his report would "provide a clearer picture for the reader, but in no way compromised any future law enforcement actions." In the end, however, Frazier redacted the tactical and munitions information.
But as for Santana's request to redact information from the report without his approval, Frazier again refused to provide a modifiable copy. "As I stated earlier, we will not provide a copy of the report in Word. A redaction, to my understanding, is where certain verbiage is 'blacked out'. If this is the case, please provide these 'redactions' to use and we will evaluate them for report modifications."
Shortly after the release of this report, Frazier Group's contract with Oakland was canceled. The Chronicle reported late last week that Santana has now hired another outside consultant to analyze OPD's response to the consent decree. Chanin told the newspaper that he believes Santana and her staff are merely shopping "for someone who will tell them what they want to hear."
The Oakland City Attorney's Office did not respond to a request for comment for this story.
It should be noted that, on July 18, the Express named Santana "Most Courageous City Official" of 2012 for her work in uncovering questionable dealings by Councilwoman Desley Brooks involving an East Oakland teen center. Santana is also ensnared in a recent controversy involving independent court monitor Robert Warshaw, who is overseeing the police department. The Express and other newspapers have reported that, according to sources, Santana has accused Warshaw of acting inappropriately toward her (see "Oakland's Latest Mess," 8/29/12). Last week, Henderson denied a motion by the city to have Warshaw removed as monitor because of his alleged conduct toward Santana.
There is also evidence that this is not the first time that Santana appears to have attempted to dilute critical analyses of police actions — or shop for a consultant who will produce a report with favorable findings. In 2006, when Santana was an assistant to the city manager in San Jose, the city's Independent Police Auditor, Barbara Attard, released a report highlighting San Jose PD's practice of downgrading Internal Affairs complaints against officers to "inquiries" — a lesser category of incident — and of not tracking these incidents by officer name, and failing to investigate the downgraded complaints.
As the liaison between the City Manager's Office and the police auditor, Santana was instructed by the San Jose City Council to analyze the police auditor's findings in conjunction with Attard and SJPD. Instead, Santana hired Macias Consulting Group, an outside firm. Macias Group then issued a report that claimed that the police auditor had used "incorrect units" of data and found that SJPD complaint levels had remained "relatively constant" at "very low levels" from 2004 and 2006 — the period covered by Attard's report.
In response, Attard submitted a sharp rebuttal to the San Jose City Council on June 18, 2007 that all but accused Santana and Macias of going out of their way to deflect attention away from the problem at hand. "Both the Macias Report and the Administration's Response contain misstatements about civilian oversight ... improper premises for analysis resulting in inaccurate data and reporting, and failure of the consultant to provide independent, objective analysis." Attard's report pointed out that Macias accepted SJPD's practice of not counting internal affairs "inquiries" as complaints against officers while incorrectly asserting that other cities do the same.
"In fact, the Macias report fails to document any rigorous or independent analysis of the [Independent Police Auditor] contention that the majority of the complaints classified by SJPD do contain misconduct allegations and are being misclassified, based upon the SJPD's own definition of complaints."
To back up her assertion, Attard's report included twelve instances of misclassified San Jose police internal affairs complaints, including allegations of racial profiling, verbal abuse, illegal searches, excessive force, bribery, and pointing of weapons at unarmed juvenile suspects. None of the twelve cases cited by the police auditor were ever investigated.
Attard, who left San Jose in 2008, declined to comment for this report.