Says they incited ‘mob justice’ and “‘engineered’ an intentional delay in having officers interviewed” postponing their return to work

City follows Skelly Hearing disciplinary process, council members have no say

“…the Chief suddenly got cut-out of any role or responsibility in directing or managing the investigation, or even communicating with the investigator,” – APOA attorney Mike Rains

By Allen D. Payton

In response to the recent calls by Antioch Mayor Lamar Thorpe and Mayor Pro Tem Tamisha Torres-Walker for the immediate termination of the police officers involved in the text scandal, reported by the Herald last Friday, that same day Michael Rains, attorney for the Antioch Police Officers’ Association, sent a scathing letter to them and the other three members of the city council. In his letter, Rains, of the Pleasant Hill-based Rains Lucia Stern St. Phalle & Silver law firm, both chastises Thorpe and Torres-Walker, calling out their own behavior while in office, and labels the two reports from the Contra Costa DA’s office “misleading” and “highly partisan”. (See related articles here and here)

He also claims the two council leaders “‘engineered’ an intentional delay in having officers interviewed.”

The letter from Rains reads as follows:

Police Officer Texting Investigation and Recent Public Statements by Mayor Thorpe and Vice Mayor Tamisha Torres-Walker

Dear Members of the Antioch City Council:

As you are aware, this Firm serves as General Counsel to the Antioch Police Officers Association (APOA) and all of its individual members. We represent all of the officers who have been recently placed on administrative leave pending an investigation of text messaging which occurred between approximately 2019 and 2022 by Antioch police officers which were described and discussed (in many instances inaccurately and in a misleading fashion) in two reports prepared by Contra Costa County District Attorney Inspector Larry Wallace.

Frankly, it is a tragedy that the City, the Police Department and the public have been “fed” misleading and what we believe highly partisan reports prepared by the District Attorney’s Office for reasons we hope to decern in future litigation, but which have resulted in widespread but undeserved condemnation of many police officers for engaging in “racist” or “sexist” texting when no such texting by many such officers, in fact, ever occurred.

By all accounts, the Mayor and Vice Mayor are ecstatic to condemn the entire police department for the “sins of few” and place themselves in the glare of the public spotlight, which has most recently shined down on both of them proclaiming that all of the officers on administrative leave should be fired and, in essence, the Police Chief should “start over” and hire an entire crop of new recruits to replace the mass of racists and sexists who were formerly employed.

Of course, it is not either unusual or uncharacteristic of either the Mayor or the Vice Mayor to be displaying ignorance or indifference to the law or acting inappropriately, such as the Vice Mayor’s previous profanity – laden, public tirade against the police that, standing alone, should have resulted in her removal from the Council; or the Mayor’s demonstrated disregard of the laws concerning sexual harassment of females and the laws prohibiting drunken driving. In other words, neither the Mayor nor the Vice Mayor are what most would recognize as “role-models” that a constituency should rely upon for receiving factual and accurate information or advice.

However, the very pinnacle of irresponsibility on the part of the Mayor and Vice Mayor are their recent synchronized chorus to the public and media for the Chief to fire all of the police officers who have placed on administrative leave on the texting case. Neither the Mayor nor the Vice Mayor truly understand the “facts” of this case, or they would know and explain to the public that the admittedly highly inappropriate texting that they “smear” every officer with was engaged in by only three or four. The officers who are on leave, for the most part, were simply included, without their knowledge at the time, or their wishes in most cases, on “text chains” between 20 and 30 officers which have been in existence for months if not years. In many cases, the officers on the text chains were off-duty and asleep when the texting occurred and did not even take the time to review the content of text messages upon quickly determining that they involved matters of no importance or interest to them.

Perhaps the Mayor and the Vice Mayor do, in fact, know the truth – that the texting which essentially the entire department has now been condemned for is the product of a few. To our knowledge, the Mayor, perhaps in an unholy alliance with the City Attorney, has now excluded the Police Chief from directing the “outside” administrative investigation of the officers on leave. Instead, despite the fact that our Office has continually attempted to schedule interviews of virtually all of the officers we represent who have been placed on leave without a factual or legal basis, the outside investigators have rejected our request to interview our clients, telling us that they have only gotten authority from “the City” to set dates for interviews of four of the officers on leave.

Thus, before the administrative investigation has even determined whether the vast majority of the officers on leave can be subjected to discipline for misconduct, the Mayor and Vice Mayor attempt to incite “mob justice” by calling for the immediate mass firing of officers who have done absolutely nothing to deserve discipline. This may further the “spotlight” which the Mayor and Vice Mayor appear to enjoy, but it deprives the citizens of Antioch of the services of somewhere near 20 additional police officers who cannot, and will not, under established law regarding employee discipline, be terminated.

We have no doubt that, even if the Mayor and Vice Mayor had even a “passing familiarity” with the law concerning “just cause” for the discipline of public employees (which is clear they do not), they would simply urge the Police Chief, who under City rules and procedures will make the decision concerning discipline of his police officers, to disregard those laws or try to incite the public to condemn the Police Chief if he dared to apply the facts established by a thorough and objective investigation to the existing law, and not impose termination.

By refusing to direct the City’s retained investigators to immediately schedule and conduct interviews of all of the officers on administrative leave, while simultaneously condemning those officers publicly and demanding their firing, the Mayor and Vice Mayor have deprived every member of the community of the additional police officer resources available to them to make Antioch a safer community. Instead, the “City’s” very clear disinterest in insisting that all of these officers be interviewed and receiving a report from the retained outside investigator, which will undoubtedly clear most, if not all, of any misconduct, allows the Mayor and the Vice Mayor to continue to appear under the spotlight they covet, and sell the public a lie about the facts of the case, hoping, no doubt, that good police officers, tired of being unfairly maligned by these two irresponsible “public servants” will simply quit. It is clear that neither the Mayor or Vice Mayor have any sincere interest in the investigation of all these officers to be completed, and the truth really known.

To the extent that the public, the police department, the media and all of us have been forced to make conclusions of what officers said or meant in text messages, or deprived of the understanding of the context in which text messages occurred or the identity of the person who was the “object” of the texting at the moment, as a result of the misleading and distorted report of DA Inspector Wallace, we have all been fed a “bill of goods” to begin with.

Nevertheless, the irresponsible manner in which the “City”, under the direction of Mayor Thorpe and Vice Mayor Torres-Walker have “engineered” an intentional delay in having officers interviewed in order to be cleared of any wrong doing, while simultaneously calling for their mass termination, is a clear demonstration of their indifference to ethical behavior and their disregard of allowing their highly experienced, knowledgeable and ethical Police Chief to make the decisions he should be making concerning both the work status of his officers and the progress of the “outside” investigation supposedly underway.          

Very truly yours,

Rains Lucia Stern

St. Phalle & Silver, PC

Michael L. Rains

———————

Outside Investigator Replaced Before Police Interviews Began

City Attorney Thomas L. Smith hired Cerritos, CA-based Angela Powell, a partner in the law firm of Atkinson, Andelson, Loya, Ruud & Romo, to conduct the investigation of the text messages. She has 26 years’ experience as an attorney. Her services ended by Monday, May 15, the day the interviews of the officers were to begin. In her place, the City hired San Jose-based attorney Allison Hernandez, a Senior Associate with the law firm of Burke, Williams & Sorensen who earned her law degree in 2016.

Rains Provides Details on Investigators, Process

Rains was emailed questions, specifically asking what he meant by his claim in the final paragraph of his letter that Thorpe and Torres-Walker had “‘engineered’ an intentional delay in having officers interviewed”. He was asked, “does that refer to the replacement of the outside investigator, Angela Powell who found no fire-able offense in the text messages, with Allison Hernandez? Can you provide any details on that?”

Rains responded Monday afternoon writing, “Even with the replacement of Angela Powell with Allison Hernandez, the interviews of 2 of the witnesses we represent went forward with Allison on the dates we had originally agreed-to with Angela. As an aside, we never found out why Angela was suddenly ‘out’ as an investigator, but I suspect it had to do with her perception that the ‘City’—and I am referring to Thorpe and Torres-Walker,  had no interest in being fair or objective in any aspect of this case, which is why the Chief suddenly got cut-out of any role or responsibility in directing or managing the investigation, or even communicating with the investigator. I had suggested to Angela that, if she was disturbed by what she was seeing her ‘client’ do, and if that would put her in an untenable ethical position, she should simply declare a conflict, fire her client (the City), and have someone else hired to do the investigation. The next thing I knew was that Angela was gone, and we were told that Allison Hernandez would be doing the interviews of our clients. 

My reference to the ‘City’ engineering an intentional delay relates to the fact that we had told Angela, when we learned she was coming to doing interviews from May 15th through the 18th, that either RLS Partner Julia Fox, Nicole Pifari, or myself would be available those 4 days to participate in the interviews of all of our clients who had been placed on administrative leave, so she could get all the officers interviewed that much faster, and we would have a better chance of getting them off administrative leave, and back to work. Nicole Pifari even sent Angela a suggested interview schedule for all of our clients. In response, Angela contacted us, as said that the City had only authorized her to interview 4 out of all the clients on leave (3 of whom are our clients, and 1 of whom is represented by another lawyer).

We then asked her to ask the City to allow her to get these other interviews done, but they would not authorize her to do so. Thus, they have essentially done nothing to allow all of these officers on leave to be interviewed, so we can clear them of any wrongdoing, while they simultaneously call for their summary terminations—that’s the dishonesty of it all. We still have not got Allison Hernandez to get any authority/direction to interview all of our other clients who continue to languish on administrative leave.”

Questions for City Attorney & Police Chief Go Unanswered

Questions were sent to City Attorney Thomas L. Smith and Police Chief Steve Ford asking if Angela Powell was hired as the outside investigator in the Antioch Police officers’ text message scandal, that she found there were no fire-able offenses, her services then ended last Monday, May 15 the day before interviews were to begin and then she was replaced by another outside investigator, Allison Hernandez.

They were also asked, “Were both hired on a collaborative basis by you both? When were they hired? Can you please provide copies of their contracts? Did Ms. Powell interview any of the officers? Did she provide you with a preliminary report? Or was her investigation completed and you have her final report? Can you please share any other details of both investigators’ work for the City of Antioch and why Ms. Powell’s contract was terminated before completing the investigation?

They were then provided a copy of Rains’ letter and asked, “Were you ever contacted by either of them or any council members about the outside investigator? Were any findings by Ms. Powell shared with any of the council members? Were you directed, encouraged or pressured by any of the council members to terminate Ms. Powell’s contract and hire a different outside investigator?”

Smith was also asked if Ms. Powell quit because she was tired of him interfering in her investigation and giving her too much direction in conducting it, and if so or if not, to please provide what directions, if any, that he provided to Powell that were outside of what is written in her contract.

Following Rains’ response to the questions posed to him, additional questions were emailed after work hours on Monday asking Smith and Ford the following: “Is what he wrote correct that ‘the Chief suddenly got cut out of any role’ in the process? If so, why? Is it also correct that you only want four of the officers interviewed and the City is delaying investigator Allison Hernandez from conducting those interviews? If so, why?”

Neither responded prior to publication time.

Questions for First Outside Investigator Go Unanswered

Questions were emailed to outside investigator Powell on Monday, May 22 asking if she found there were no fire-able offenses and then her services ended last Monday, May 15 and then replaced by another outside investigator. Powell was also asked, “When were you hired by City Attorney Thomas L. Smith? Can you please provide a copy of your contract? Did you interview any of the officers? Did you provide a preliminary report? Or was your investigation completed? Can you please share any other details of your work for the City of Antioch and why your contract was terminated before completing the investigation?”

Powell was also asked if she quit because she grew tired of City Attorney Smith interfering in her investigation and giving too much direction in conducting it. She was also asked what other direction was provided to her outside of what was written in her contract with the City and if Smith was dissatisfied with your (preliminary) findings, if any.

The portion of Rains’ email was shared with Powell who was then asked if she was ever contacted by any council member.

Attempts to reach Powell by phone and email were unsuccessful prior to publication time.

Only Ogorchock, Barbanica Respond to Questions for Council Members

All five council members were asked via email if they have any response to Rains’ letter. Thorpe and Torres-Walker were asked specifically, to what is he referring in the final paragraph that they “‘engineered an intentional delay in having officers interviewed.’”

They were all asked if they had contacted the city attorney with instructions, directions or requests in the hiring of the outside investigator on the text scandal, if they know why the first investigator’s services ended and a different investigator was hired, and if they had received or seen a copy of either preliminary findings or a final report from either investigator.

When reached for comment and asked what she knew about the outside investigators and if she had received a preliminary or final report, District 3 Councilwoman Lori Ogorchock said, “This is the first I’ve heard of it. I didn’t know they had even hired one, yet. These things take a long time to happen. So, I’m not aware of any report or determination by the investigator.”

Later she wrote, “After reading and rereading this letter from Mr. Rains, it leaves me with several questions around the investigation as to why we would reject a request to interview the officers involved, why only 4 officers when there are more than that out on administrative leave.”

In response to the Herald’s questions Ogorchock wrote, “I have not, nor have I discussed this with our City Attorney. I would like to understand the reason (if true) as to why this investigator was let go, or did they no longer wish to work for the city.  I have not, nor do I know of any such report existing.”

District 2 Councilman Mike Barbanica was the only other one to respond before publication time, Monday evening. Asked again if he had contacted the city attorney about hiring the outside investigation he said, “About this, no. The city attorney’s office is in charge of hiring any investigator. I stay out of it. I’m giving them the space to do their job. I will be briefed as this evolves and when proper.”

“I do have a call into the city attorney and am awaiting his call, because I’ve had several questions raised from the public about hiring the investigators,” the former Pittsburg police lieutenant added.

“I believe that we should all be concerned with due process that this is done properly,” Barbanica stated.

Question for DA, Senior Inspector

An email was sent Monday evening to Contra Costa DA’s Office PIO Ted Asregadoo asking if D.A. Diana Becton or the office’s Senior Inspector Wallace had a response to Rains’ claim that the reports were misleading and highly partisan.

UPDATE: Asregadoo responded Tuesday morning, “The letter you sent is from the POA’s legal representation and concerns the Antioch City Council’s administrative matters. As such, we really don’t have anything to say about its contents.”

City Follows Skelly Hearing Disciplinary Process, Council Members Have No Say

The City of Antioch follows the Skelly Hearing process which is like a Bill of Rights for city employees in California. According to the California Department of Human Resources’ Supervisors Guide to Addressing Poor Performance, the “Skelly Hearing is the name of the hearing the employee can ask for before the adverse action becomes effective to ensure no mistakes have been made by the department in taking the action.  This hearing is a short, more informal due process-review of the department’s case and the employee’s defense.  It is called a Skelly Hearing because the requirement was established through a court case entitled Skelly v .SPB.”

According to unlocklegal.com, “a Skelly hearing is better described as a pre-disciplinary due process meeting. This procedural meeting ensures that when an employee is facing disciplinary action, the accused employee is informed of the allegations, has an opportunity to refute the allegations, and has an opportunity to mitigate the allegations or rehabilitate their standing with their employer before any actual disciplinary action. It is a preliminary meeting that must take place in the case of an employee’s termination, demotion, suspension, reduction in pay, or transfer with an accompanying loss in pay.”

The city manager serves as the City’s Skelly Officer. The hiring and firing of all city employees starts and ends with the city manager who signs the papers for each staff member.

In addition, police officers in California have the Public Safety Officers Procedural Bill of Rights Act giving them an additional process and greater protections from termination.

The city council as a whole or as individuals have no say in the process of determining which city workers, including police officers, will remain employed or be terminated. The Antioch City Council currently only has the authority to hire and fire the city manager and city attorney.

Please check back later for any other responses or updates to this report.