News - March 24, 2010

Atherton council shelves police oversight idea

by Andrea Gemmet

A push to create a citizen oversight committee for the Atherton Police Department ran out of steam, as four of five Atherton council members voted to table the idea at the March 17 meeting.

Mayor Kathy McKeithen was the only champion of the idea, as the rest of the council said that new police Chief Mike Guerra should have a chance to put his stamp on the department.

"We have a new sheriff in town," said Councilwoman Elizabeth Lewis. "I hope our residents understand that we've got to give this new administration a chance to do the right thing."

The town and two of its police officers are currently being sued by Atherton resident Jon Buckheit over the handling of a domestic dispute at his house in 2008. Mr. Buckheit was arrested on suspicion of domestic violence but never charged. His arrest record was later expunged by a San Mateo County Superior Court judge who granted a declaration of factual innocence. In October, Mr. Buckheit filed a civil rights lawsuit against the town of Atherton in federal court in San Francisco.

Mr. Buckheit's high-profile case, along with other residents' complaints about the police department, has led some to call for the creation of a police oversight committee.

"A crisis is not a prerequisite for a citizen review board," Mr. Buckheit told the council. "Oversight is good."

The creation of an oversight body should not be seen as a rebuke, but as a healthy process, he said.

Mayor McKeithen said that nearly every significant piece of litigation that Atherton has been involved in recently was tied to the police department. "I don't think these issues can wait," she said.

Ms. McKeithen also said that, in the past, she knew of complaints about the police chief himself that were ignored by the city manager at the time.

"What happens when our chief of police is responsible?" she asked.

Councilman Jerry Carlson said that there is already another level of accountability for the police department. "The buck stops with the council," he said.

The creation of a police oversight body was scheduled for discussion at the meeting, not action, so the council's decision to table the idea caught some by surprise.

Mr. Buckheit said he was promised a chance to give the council a PowerPoint presentation on police oversight issues, and was told by City Manager Jerry Gruber that the council wouldn't vote on the issue at the meeting. "I've been robbed of my opportunity," Mr. Buckheit protested.

Of the nine citizen complaints lodged against the Atherton police since 2005, none were sustained, which was used as an argument both for and against the oversight commission.

Mr. Buckheit said that Atherton had an illegal warning on citizen complaint forms that said anyone making a false complaint against an officer could be criminally prosecuted. That warning wasn't removed until the very day of the council meeting, Mr. Buckheit said.

After the meeting, Chief Guerra said that the law regarding the admonishment against false claims changed following a 2006 court decision, but that the California Penal Code still hasn't been updated to reflect it. Even the latest edition of the penal code says that law enforcement agencies "shall have" that admonishment on their complaint forms, even though the courts say that no one can be asked to sign it.

"Mr. Buckheit is right, it's cleaner not to have it on there," Chief Guerra said. "We talked about it four weeks ago when he questioned it, so we changed it in our printed forms, but we didn't realize our online complaint screen still had it."

It's now been removed, on the advice of the city attorney, he said.


Posted by Jon Buckheit, a resident of Atherton: West Atherton
on Mar 24, 2010 at 9:11 am

Here's another process/policy issue with the APD that the community should weigh in on.

It used to be that any complaint about an officer got put into that officer's personnel file.

In 1997, the California legislature, lobbied by police unions, changed the law so that "frivolous" complaints would not be put into the personnel file. I agree with this action.

In 2000, they were again lobbied to expand the categories of complaints not put into personnel files to include "exonerated" and "unsustained". They again changed the law.

This is all chronicled in Penal Code 832.5.

Guess what? Chief Guerra is using a conflicting provision in another part of the penal code to ensure that NO complaints (even sustained, or not sustained) are put into an officer's personnel file. I've asked him to explain his justification for this, but have not received an answer.

Certainly, sustained complaints should be included in a personnel file of anyone, including police officers. This creates a strong disincentive to engage in improper behavior as it can follow an individual to future employment. Not sustained complaints should be as well, as a future hiring agency might well consider such conduct to have been worthy of a sustained verdict, or simply the existence of too many complaints as a warning sign.

The issue for this community to ponder is: why won't APD even include sustained (and not sustained complaints) in an officer's personnel file?

Posted by Jon Buckheit, a resident of Atherton: West Atherton
on Mar 24, 2010 at 9:17 am

(To clarify the above comment, the "conflicting provision in another part of the penal code" offers Chief Guerra the choice of whether or not to put sustained and not sustained complaints into the personnel file; he is choosing not to. There is nothing requiring him not to).

Posted by Lived in Atherton 30 years, a resident of Atherton: West Atherton
on Mar 24, 2010 at 3:44 pm

Here's my awesome Atherton Police Dept Story:

A couple of years ago, my mom (also a resident of Atherton) called the police in the middle of the night because her alarm was going off and she thought she heard noises within the house.

The police dept raided the house across the street. Worth noting: both houses were correctly labeled with BOTH street addresses AND Atherton Alarm Tags. We'll call that house 'Home of Internet Executive A.' The police entered and 'cleared' that residence, finding the actual resident asleep in his bed with his wife (the police did NOT announce their presence upon entering this residence.)

Dispatch told my mom that the house had been searched and that it was safe to come out from hiding. Her: "Really? I didn't hear the police inside the house." Dispatch: "Yep. Your house has been cleared and is safe. You can come out." She came out and there was nobody anywhere. No police,.. no nothing. Turns out they went across the street and cleared that house instead. If there had, in fact, been an intruder, she would have been put at risk by the Police Department by telling her that everything was safe. That doesn't even address the fact that during this instance, the police entered ANOTHER persons house (Internet Executive A), disabled the alarm, and searched the residence for intruders, even though it WAS NOT the person who called in the alarm. 1) Why did the police tell my mom that everything was safe, when they were clearly in the wrong house? 2) Why did the police enter another house during the middle of the night for no reason? Let's be frank: if the police entered my house in the middle of the night (with no announcement and by mistake), someone is getting shot. Nothing against the police-- I think they generally do a great job. BUT, in this case, they risked their own lives by entering a house, unannounced, and for no reason, AS WELL AS risked my mothers life by telling her that her house had been deemed safe, when it had NOT been.

I pray for some oversight. Personally, I've had good experiences, but it seems like they are operating in a risky gray-area.

And hearing that there may possibly be officers on the force that are stealing from residents, with the council conveniently covering things up doesn't help one bit. Regardless of the fact that I rely on the Police for my protection, after hearing these consistent stories, there is no way I would ever provide access keys or my alarm code to this department. i hate to say it, but it's true. In fact, I gave the Atherton PD a fake alarm code that doesn't turn off my alarm at all-- it silently calls the San Mateo Sheriffs Office instead. If some corrupt cop breaks into my house, I don't want them knowing my actual alarm disarm code, and I want a county officer to come back me up against the locals.

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