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Atherton police officer exonerated in 'theft'

Original post made on Jun 11, 2009

There is "no foundation" for an allegation of theft against an Atherton police officer, according to the San Mateo County District Attorney's Office.

Read the full story here Web Link posted Wednesday, June 10, 2009, 10:57 PM

Comments (16)

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Posted by Resident
a resident of Atherton: West Atherton
on Jun 11, 2009 at 10:23 am

How is an officer off on leave when the sexual assault person caught on video committing his offense is still working. Where are the priorities of this Chief and Town! The DA has stated it pretty clear: "Exhonerated" "No Foundation" "No Basis" in the Officer Metzger incident. Focus on the important cases such as sexual assault and harassment...People earn millions of dollars for sexual harassment that was never prosecuted as criminal and here it is the opposite. How can the other residents feel safe knowing this is what is going on?


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Posted by Incredulous
a resident of Atherton: other
on Jun 12, 2009 at 7:18 am

What is going on in Atherton? The Police Chief should be ashamed. That this matter even went to the DA's office is beyond comprehension. What a waste of tax payers money. If the DA finds that not only is there not enough evidence but NO BASIS - then surely the chief of police has enough brains to figure that out himself and not waste taxpayers money. OR DOES HE? Or will he hide behind some politically correct statement like "we must investigate all incidents no matter how small they appear"? Why in the world would you have bothered a busy DA's office with "a small piece of furniture" that even the DA believes was a misunderstanding/ confusion? Something stinks in Denmark - and I would like a statement from the Chief of Police as to why he wasted tax payers money with this matter. He answers to me - the taxpayer. And I want an explanation. And it sounds like he owes Officer Metzger an apology.


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Posted by Because
a resident of Atherton: West Atherton
on Jun 12, 2009 at 10:07 am

The Chief did the right thing by referring this to the district attorney. If he had not, he was setting himself up for charges of cronyism.

If Atherton cops have come to this forum to defend Mr. Metzger, that's fine by me. I wonder if they believe the same outrage and apologies should apply to people they arrest when the D.A. finds these charges unsupportable.


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Posted by Peninsula Police
a resident of Atherton: other
on Jun 12, 2009 at 11:43 am

Typical Atherton community response. Nothing but a community full of spoiled rich people who think their entitled to something because of their checkbooks, which explains the ridiculous sense of entitlement from their children too. Find a hard working kid in Atherton and you might as well spot Elvis walking the El Camino. Nevermind that Atherton PD keeps their precious property rates up by providing a safe neigborhood.... I'm sure you all blog with appreciation for your Police Officers when the news is of a prominent arrest. Of course, when an Atherton resident is arrested for DUI in their BMW, their the first to complain about the officers and the department. God forbid an Atherton resident take responsibility for themselves... Keep up the good work Atherton PD, even if the housewives, nannies, life coaches, personal trainers, and gardeners of Atherton don't appreciate it.


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Posted by Wrong Peninsula Police
a resident of Atherton: Lindenwood
on Jun 12, 2009 at 1:19 pm

Sorry "Peninsula Police", say what you want about us, but the reason we have money is that we do work hard, have made sacrifices, took years of schooling, took risks etc. All so that we could have the things we deserve, and so that you could reap the rewards from our property taxes that pay for your over blown salary and benefits. Be careful that you do NOT bite the hand that feeds you.....


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Posted by Figures
a resident of Atherton: West Atherton
on Jun 12, 2009 at 2:05 pm

What an utterly contemptuous response by "Peninsula Police". S/he despises the residents of the community s/he works for, but is happy to take the salary, retirement, health care (and, presumably, the more secure working environment than, say, Oakland). I've always thought that cops resent people on both ends of the spectrum. Obviously there have been many cases, such as Oakland BART, in which cops have been charged with showing contempt for people of different racial and lower socioeconomic backgrounds. Wouldn't they resent people who have "made it" even more? "Peninsula Police" proves this point.

It's also pretty clear they want to operate in an environment with no checks, balances, or questioning. If any of this occurs, "morale" becomes an issue. It's about as ridiculous as the employees of Oracle unionizing and complaining of "morale" whenever one gets disciplined, questioned, or fired. It would mean the end of that company, and people wonder why California is going bankrupt?


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Posted by Beautiful!
a resident of Atherton: Lindenwood
on Jun 12, 2009 at 3:42 pm

And this is why, people like "Figures" live in Atherton, and people like "Peninsula Police" do not. Beautiful email "Figures", for some reason people are forgetting how to spell "accountability", and you lay this out perfectly!


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Posted by William
a resident of Atherton: West of Alameda
on Jun 13, 2009 at 10:43 am

As an attorney, I would add to the comments that just because the district attorney's office decides to make a press release and/or declines to charge someone; it does not mean that a crime did not occur. The standard for the D.A. is that there is a 100% percent chance that someone did it while it the civil arena where I practice the standard is 51%.

I would think that there is also some form of an internal investigation going on, which may or may not have anything to do with criminal activity.

I wonder of the media has asked for the police union's thoughts on the cases that have been ccurring in Atherton. There does not seem to be any outrage there so the process is working.

I am also happy to see that there is transperency in that potential conflict of interest issues are immediately identified and sent to an independent reviewing source. A reason why we do not need a citizen's review board in Atherton.

The chief should be commended....


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Posted by Citizen's Review Board
a resident of Atherton: other
on Jun 13, 2009 at 11:08 am

William, how would it *hurt* to have a Citizen's Review Board in Atherton? I'm not sure I follow your logic that just because in this one instance, the police chief made the right decision (and I agree with this), he always has and always will make the right decisions. A Citizen's Review Board would promote transparency and due process, and I really don't see how this could be bad (or unnecessary) at all.

I'm an attorney as well, and I disagree with your comments on standards of evidence. The standard for a guilty verdict in criminal prosecution is not 100%. It is "beyond a reasonable doubt." In fact, jury instructions in criminal proceedings usually state something like "The standard of proof is not absolutely certainty."

That's an entirely separate question of how the District Attorney chooses to prosecute cases. Much has to do with the particular philosophies of the prosecutors. For example, they prosecute practically 100% of all domestic violence allegations as part of a "zero tolerance" policy they adopted in this area. They prosecute a very small percentage of non-strongarm theft cases in which they believe there is a civil remedy. As someone stated on a different version of this thread, they also are probably loathe to prosecute police officers.


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Posted by Elvis walking the El Camino
a resident of Atherton: other
on Jun 14, 2009 at 9:45 pm

Responding to "Peninsula Police": you obviously haven't met my family yet. My wife worked over 110 hours a week for the past five months (topping out at 128, least was 90). I've been out pickaxing and jackhammering my back yard for 3 hours a day for the past 2 months (the baserock and contaminated clay I've been digging out are too tough for a spade or even a bobcat, and a backhoe would cost too much money you know) - I've wheelbarrowed enough out to the curb to fill nearly three loads of the 12 cubic yard truck I hired to take it away. (I assume you are familiar with how much a cubic yard really is because no doubt you've done this kind of work yourself, right?) I've installed/dug/potted/planted all my own landscaping, I do all our domestic chores (vacuuming, scrubbing toilets, washing dishes, doing the laundry, changing sheets, etc.) in addition to taking care of my three young children and working on finishing my house construction. My kids get zero allowance and have to do chores in order earn money on a per-chore basis so they can save up to buy themselves toys like Webkinz.
So the next time you call me a spoiled rich person or accuse my kids of a having a ridiculous sense of entitlement I suggest you find someone else to aim your insecurity and jealousy at, because as per your comment you've just seen Elvis walking on El Camino Real.


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Posted by john p johns
a resident of another community
on Jul 4, 2009 at 5:42 pm

john p johns is a registered user.

In February of this year I notified via e-mail Mr.Wagstaffe and Chief Investigator Mr. John Warren of the San Mateo County District Attorney's Office that I had obtained documentation indicative of a violation of PC 424 and Government Code Section 8314 by a high ranking member of the Atherton Police Department.

Within my e-mail I provided Mr. Wagstaffe copies of the documentation in support of my allegation, documentation that I had obtained via a public records request. (I learned from Councilman Marsala that the California Public Records act can be very useful as a means of investigating Town employees.)

I followed up my e-mail with a telephone call to Mr. Warren several weeks later. I was unable to reach Mr. Warren and he never returned my call.

In the subject article Mr. Wagstaff is quoted as follows:


"With law-enforcement agencies, we have a strict policy that we expect departments to follow. Then no one can reasonably claim a cover-up," said Mr. Wagstaffe.


I am pleased to learn that Mr. Wagstaffe takes complaints about possible criminal misconduct in local police departments very seriously. I am however disappointed that he appears to have chosen to ignore my complaint. I find his failure to act all the more troubling in light of the fact that Mr. Groshauser of his office spent nine months investigating me for the very same allegation.

If Mr. Wagstaffe does not act on my referral it is my intention to escalate this matter to the California Attorney General and to include within my complaint the San Mateo County DA's failure to adhere to its own policy.

By acting swiftly and objectively in my referral Mr. Wagstaffe will also demonstrate that his office is not abusing its discretion as a way of doing his friends in the law enforcement community favors for which they are undeserving.


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Posted by Very concerned
a resident of Atherton: West Atherton
on Jul 4, 2009 at 6:49 pm

The allegation made above by Mr. Johns is a very serious one and I hope that it will be investigated by the District Attorney's office and not get deleted by the Almanac.

For those who would say Mr. Johns is disgruntled and has a personal/financial interest in "getting" the Atherton Police Department, I would say "yes, perhaps", but then again, the Atherton Police Department also had personal animosity against Mr. Johns and had a personal/financial interest in "getting" Mr. Johns, yet that did not stop either the District Attorney from criminally investigating him, nor did it stop the Almanac from reporting those issues.

There needs to be some consistency here, otherwise people will claim "cover-up", Mr. Wagstaffe.


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Posted by Ed
a resident of Atherton: other
on Jul 4, 2009 at 7:42 pm

Wow there's a big bang theory for the forth of July--what I want to know is which one of them is it FOX or Wagstaffe that is such good friends with Brennen-if it's Fox then Mr. Johns should be more understanding of Steve's inability to stand up to his boss-- especially if the Chiefs have him surrounded--maybe the guy actaully needs help from the attorney general----but if it is Steve I'm going to have get really disappointed as I also went to him with a serious police matter and got blown off--starting to wonder how many people there are that have had to go through this closed loop


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Posted by Two DA's
a resident of Atherton: West Atherton
on Jul 4, 2009 at 10:55 pm

James Fox is "the" district attorney who needs to run in an election to get his job. Thus far, he has required the support of the police chiefs to get elected and has been beholden to them. Steven Wagstaffe works for Jim Fox as the second in command. I have heard Mr. Fox will not run for reelection, and Mr. Wagstaffe naturally would like to step into the top job, so he too must now kowtow to the police.

For a state that is traditionally considered "liberal", California has perhaps the most pro-police laws in the Untied States in terms of shielding them from scrutiny and holding them to a very low standard of accountability for their actions. It is due to the enormous power the police unions have in California.


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Posted by Anna
a resident of Atherton: other
on Jul 5, 2009 at 12:04 am

Do the Chiefs keep the attourney generai all tied up as well as all the DAs??--or is he anymore of a free agent?? Also do the Chiefs ever self regulate and clean house when their guys get too obvious with the police state stuff. Somebody needs to fix this mess--maybe we can start fresh after the state goes broke.


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Posted by john p johns
a resident of another community
on Jul 5, 2009 at 9:08 am

john p johns is a registered user.

I obtained the following documents via a public records request:

An e-mail dated 9/21/07 from Sherman Hall to Mary Topliff with a copy to Wende Protzman indicating that the DA was not interested in prosecuting me for a possible violation of Government Code Section 8314 because the burden of proof was too high.

An e-mail dated 10/17/07 from Marc Hynes to each member of the City Council notifying them that Bob Brennan and Wende Protzman had received subpoenas to testify before San Mateo County Grand Jury regarding my suspension and the Police Department's forensic examination of a laptop that I had returned.

An e-mail dated 10/29/07 from Chief Robert Brennan apparently requesting that the DA reconsider its position of refusing to investigate or prosecute me.

These documents are included for the reader's reference.

When combined with the fact that Ivan Groshauser is known to have told at least one person that "the Johns matter never belonged in the criminal arena", I do believe that Mr. Wagstaffe owes me an explanation as to:

What prompted the DA to spend a full nine months to resolve my criminal referral from the Town of Atherton that it had rejected initially and that it acknowledged after the fact was not a legitimate referral in the first place; and,

What causes the DA to refuse to act upon equally serious charges I have leveled against high ranking personnel within the Atherton Police Department and for which I have provided what I consider to be compelling documentation to support my claim.

In short it is time for Mr. Wagstaffe to come level with those who will decide his fitness to serve as DA when Mr. Fox retires.

Most importantly Mr. Wagsaffe should be prepared to demonstrate that he will take the doctrine of equal protection under the law. He should, by his actions assure the electorate that he will not turn a blind eye to official misconduct because those accused wear a badge.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

From: Sherman Hall [shall@reacttf.org]
Sent: Friday, September 21, 2007 5:15 PM
To: Mary Topliff
Cc: Wendé Protzman
Subject: RE: Request

All of the emails I searched were taken from the Exchange server. There were no emails stored on any of the three computers. There were, however, emails restored from a backup tape to the Exchange server prior to my creating a copy of his mailbox. I would need to research whether the emails I forward to Wende were recovered from the backup tape.

The emails I recovered were sent to his Atherton email address (jjohns@ci.atherton.ca.us). In one of the emails, the "To" was addressed to jjohns@harveyrose.com and the "CC" was addressed to his Atherton email address. I obviously had the "CC" copy of the email.

The Pacific Grove work appears to be from Johns' work as a consultant for Harvey M. Rose Associates, LLC (www.harveyrose.com). The Internet history records on Johns' computer revealed that he spent a great deal of time accessing the harveyrose.com email server (webmail.harveyrose.com and mail.harveyrose.com) from his Atherton computers. As I had no search warrant, I was unable to search for documents, spreadsheets, and other work product I would anticipate finding from these consulting engagements.

The use of Atherton's facilities (his office and the computers) appears to be a violation of section 8314 of the California Government Code. As I read the statute, the fine is $1,000 per day for each time he knowingly and willingly violated the section. The San Mateo County DA suggested that the burden of proof was too high to pursue this charge. I found no other criminal violations. As such, I have dropped my criminal investigation.

I spoke with Wende about transferring the computers to a third party examiner. I will do so on Monday. I will do my best to bring the examiner up to speed on my findings and suggest some areas where his search might bear fruit.

-----Original Message-----
From: Mary Topliff [mailto:Topliff@joblaw.com]
Sent: Fri 9/21/2007 4:42 PM
To: Sherman Hall
Subject: Request

Hi Sherman. Regarding the pdf files you sent regarding the references to Pacific Grove (you sent these to Wende on 9/19), were these from the Outlook exchange server or the laptop? Is the email his work or personal email address?

Thanks,
Mary

***********************************
Law Offices of Mary L. Topliff
One Embarcadero Center
Suite 2300
San Francisco, CA 94111
p: 415/398-9597
f: 415/398-9599
w: www.joblaw.com <Web Link;

Employment Law Counseling, Training and Compliance

**CONFIDENTIALITY NOTICE: The information in this internet email is confidential and may be legally privileged. It is intended solely for the addressee. Access to this email by anyone else is unauthorized.



++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

From: Marc Hynes [mhynes@netgate.net]
Sent: Wednesday, October 17, 2007 9:58 AM
To: acarlson@littler.com; jjanz@sideman.com; raljer@ix.netcom.com;
cemarsala@yahoo.com
Cc: Wendé Protzman; leonel@stubbsleone.com
Subject: Formal Grand Jury Investigation

CONFIDENTIAL-ATTORNEY-CLIENT PRIVILEGE; I am sending this memorandum to
Kathy McKeithen by facsimile transmission.The Interim City Manager and the
police Chief have been subpoenaed to testify before the grand jury in the
presence of the presiding judge next Tuesday October 23,2007.
Documents requested in advance of this proceeding include documents detailing
the examination of the the Finance Director's computer. The forensic report
on the computer responds to this request, but it warrants a defense under the
attorney client privilege and attorney work product, in my opinion. This
should be discussed tonight during the closed session.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

From: Bob Brennan
Sent: Monday, October 29, 2007 8:34 AM
To: John Warren
Cc: Wendé Protzman
Subject: Atherton Finance Director

John, I forgot how we left our conversation. The outside investigator for the Town of Atherton is Mary L. Topliff, 415-398-9597, topliff@joblaw.com . I know you told me Ivan is in trial, but I thought getting the two of them together would be more efficient. Let me know how else I can help.

Bob Brennan
752-0506


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