A new report heavily criticizes the investigations into police misconduct that led to Police Chief LeRonne Armstrong’s firing in February.
Although the report was supposed to be kept confidential by Armstrong and the city, multiple news outlets were able to review it and reported on its contents Monday. Armstrong and his attorney William Edlemen spoke about the report’s findings at a press conference the same day.
“I said from the onset of this that I was not guilty of any of these allegations, that the facts would come out in this case, and when the facts did come out, I would be vindicated, and today is that vindication,” said Armstrong.
The report’s author, Maria Rivera, who retired as an associate justice in California’s 1st District Appellate Court in 2018 and now works for ADR Services, a company that provides mediation services to parties to a dispute, issued a slew of recommendations in her 55-page decision about the complicated and controversial case. She was hired after Armstrong asked for a chance to respond to discipline he faced as a result of mishandled internal affairs cases. The city is required by state law to provide a “neutral” factfinder in cases like this.
The Oaklandside reviewed a copy of her report.
Rivera largely sided with the former chief. She recommended that Oakland reverse the discipline he received in connection to a mishandled police misconduct case, including the 30-day suspension he was given, and that this discipline be wiped from his personnel file.
This suspension was separate from the mayor’s decision to fire Armstrong and was added to his record after he had been fired.
Rivera called on the city to sit down with the former chief to “discuss the viability of resolving this dispute in a manner to be negotiated, including the possibility of reinstatement.” At the same time, she took no position on whether or not Armstrong should be reinstated.
According to Rivera, the attorneys who investigated a pair of police misconduct cases last year and earlier this year that were part of the basis for Armstrong’s suspension and firing didn’t accurately characterize statements the former chief made. After reviewing the record, Rivera supported Armstrong’s contention that his credibility should never have been doubted.
In Rivera’s opinion, Armstrong also should not have been disciplined for failing to hold subordinate officers accountable for serious misconduct. In her view, she wrote, it was unrealistic to expect Armstrong to read the internal affairs reports at the center of the case. She decided that “nothing in the [outside investigators’ report] supports a conclusion that the Chief failed to hold any other OPD officers to the standards, policies and rules of the Department.”
Rivera didn’t entirely agree with the former chief; for one thing, she found that Armstrong wasn’t fired in retaliation for blowing the whistle on alleged corruption by OPD’s federal monitor, as he and his supporters, including the local NAACP chapter, have alleged. In her opinion, there is no evidence that the monitor, Robert Warshaw, took steps to have Armstrong ousted so that Warshaw could maintain his job overseeing OPD.
Armstrong has also argued that his First Amendment right to free speech was infringed on when he was fired. While he was on leave, Armstrong attended rallies and held press conferences demanding to be reinstated while denouncing the federal monitor. Thao said this behavior showed that Armstrong wasn’t taking responsibility for OPD’s problems and that it played a major role in her decision to fire him. Rivera wrote that Armstrong might be able to convince a jury that this was a violation of his right to free speech, but she found the city’s arguments that Thao had the right to fire him over these statements equally valid.
Rivera’s recommendations are just that: recommendations. The city isn’t required to reverse the discipline in Armstrong’s personnel record or sit down with him to discuss potential ways of resolving his grievance. As a hearing officer, her job was only to listen to both sides in the dispute and issue a report with her opinions.
But Rivera’s opinion can become evidence in a lawsuit if Armstrong decides to file one. And now that the report’s findings have been made public, they also can serve to influence the court of public opinion.
Already, members of the Oakland Police Commission, the city board that oversees OPD and is tasked with selecting finalists for the job of police chief, have indicated they would like to see Armstrong rehired. “To not consider Armstrong as a candidate would be to ignore a huge amount of the community voice,” said Commission Vice Chair David Jordan at Monday’s Police Commission meeting. Police Commission Chair Tyfarhra Milele said in a statement Monday that she plans to discuss Armstrong’s potential reappointment at the board’s next meeting. The Police Commission plans to send a list of three finalists for chief to Thao by mid-October.
Armstrong cannot simply be given his job back; city law doesn’t allow for reinstatement after firing. And while state law afforded Armstrong the right to a hearing, it doesn’t give police chiefs a “property interest” in their job, meaning they are at-will employees who can be fired for any reason or no reason. This is different from, say, a normal police officer who belongs to a police union. Officers not only have the right to an administrative hearing, but the city can also be required to obey the hearing officer’s findings, and they can be reinstated if the arbitrator agrees with them that discipline was unfair.
The city charter—Oakland’s constitution—says that a person can only become chief after they’re selected as a finalist by the Police Commission. The mayor has the final say because she gets to pick from these finalists. Armstrong could potentially reapply for the job of chief.
Mayor Thao said in an emailed statement Monday that she won’t rehire Armstrong. Even if she accepts the conclusions in Rivera’s report about the former chief, she said, she still believes that his statements and behavior after he was placed on leave were inexcusable. She said she fired Armstrong because of his “knee-jerk response to the outside investigator’s report and the poor judgment it revealed, not on the report itself.”
“That lack of leadership led me to lose confidence in his commitment to reform and his ability to serve Oakland as a credible messenger and partner to the federal court and federal monitor in finally ending 20 years of oversight,” Thao said.
Fired police chiefs have the right to a hearing before a neutral factfinder
The new report wasn’t an investigation, audit, or a decision rendered in a court of law. Rather, it was the product of the city’s obligations under a section of state law known commonly as the Public Safety Officers Bill of Rights. The law says that no chief of police can be fired unless the city provides them with “an opportunity for administrative appeal.”
To fulfill Armstrong’s right to appeal his firing, the city selected three potential “neutral” hearing officers, meaning someone who can presumably consider a dispute in an unbiased manner. Armstrong was allowed to pick from these three to hear his side of the story. He selected Rivera.
Armstrong and his attorney Edelman and attorneys representing the city, including Katharine Van Dusen and Anthony Risucci of Coblentz Patch Duffy and Bass, John Burke, and Montana Baker of the Oakland City Attorney’s Office, presented before Rivera on June 6.
The hearing did not include testimony from witnesses, cross-examination of witnesses, and some evidence, such as recordings of officers interviewed for the original cases. Rivera issued her report on September 7.
Rivera summarized her nonbinding recommendations as follows:
- “The discipline imposed on Chief Armstrong should be reversed and removed from his personnel record.”
- “The undersigned provides no recommendation as to whether the Chief should be reinstated. That decision depends not just on whether the Chief was improperly removed, but also on the parties’ current desires regarding the issue, and the consideration of intervening events, as well as policy matters.”
- “The parties should meet and confer, together with their counsel, to discuss the viability of resolving this dispute in a manner to be negotiated, including the possibility of reinstatement. It would be wise for both parties, and of great benefit to the citizens of Oakland, to avoid the costs and related toll of protracted litigation.”
Armstrong hasn’t filed a lawsuit against the city, but he said Monday that the option is on the table. He previously filed a claim accusing Thao of firing him in retaliation after he spoke out against the monitor.
The internal affairs case that led to the police chief’s firing
Last year, after OPD Sergeant Michael Chung shot his gun inside a freight elevator in OPD headquarters and tried to cover up the shooting by throwing the shell casing off the Bay Bridge, an unnamed whistleblower in the police department tipped off federal monitor Robert Warshaw about an earlier disturbing case also involving Chung. Warshaw, who was appointed by a federal judge to monitor OPD under the terms of the more than 20-year-old “Riders” civil rights lawsuit, ordered the city to hire independent investigators to get to the bottom of what happened.
The Clarence Dyer and Cohen law firm took the job. They looked into a 2021 incident in which Chung committed a hit-and-run in the parking garage of his San Francisco apartment building in an OPD vehicle. OPD eventually identified Chung as the officer responsible for the crash, but according to the independent investigators, the captain who led internal affairs at the time, Wilson Lau, improperly pressured an investigator to whitewash the report. Lau had findings that Chung committed a hit-and-run and other serious offenses removed from the final report.
Stunningly, the Clarence Dyer and Cohen investigators concluded that Armstrong was grossly derelict in his duties to ensure that Chung’s first case, the hit-and-run, was thoroughly investigated and that the sergeant received the proper level of discipline. They also called into question Armstrong’s credibility, saying statements he gave them about his knowledge of Chung’s wrongdoing weren’t consistent with statements given by other members of his command staff.
Thao placed Armstrong on leave when a summary of the Clarence Dyer and Cohen report was published by the federal judge who oversees OPD’s reforms.
While Thao was reviewing the hit-and-run and elevator gunshot cases and considering Armstrong’s alleged role in mishandling them, Armstrong appeared at a press conference and political rally and demanded to be reinstated. The chief, who had already been placed on administrative leave, claimed he’d done nothing wrong and accused the federal monitor of corruptly acting “in the interest of his own pocketbook by manufacturing a false crisis to justify extending his lucrative monitoring contract.” Warshaw and his team are paid about $700,000 a year to keep a watchful eye on OPD and ensure the department is making progress on reforms.
When she fired him in February, Thao said it was not only because of the findings in the Clarence Dyer & Cohen report but also because of Armstrong’s reaction to the reports.
“In response to a public report that concluded that OPD had repeatedly failed to rigorously investigate misconduct and hold officers accountable, Chief Armstrong said these were not incidents where officers behaved poorly,” said Thao. “He stated that he did not believe these incidents reflected systemic problems.”
According to Rivera’s report, Thao said in a declaration that she had a phone conversation with Armstrong around the time he was placed on leave and that Armstrong “blamed others” for the mishandled internal affairs cases, denied there were systemic problems, and called a subordinate officer who presumably tipped off the monitor about the cases a “snitch.”
In his appeal before Rivera, Armstrong insisted that these statements were protected by the First Amendment. Armstrong said Monday that part of the reason he sought the opportunity to make his case before a hearing officer was to clear his name, which he felt was unfairly tarnished when the independent reports about police misconduct were leaked to members of the press, including The Oaklandside.
“I think the people of Oakland deserve the truth,” Armstrong said Monday. “I think the people of Oakland deserve to know that the son of the city did not violate, did not undermine their trust. I am who I said I was. I am committed to the city of Oakland. Someone who was doing the job the right way. And regardless of the mayor’s decision, I felt like my reputation was important to restore.”
