Olive Avenue Confidential: Minority report

August 25, 2010

To explore the outer limits of open government, look no further than Burbank City Hall, where there are things under lock and key that even City Council members aren't privileged to see.

So powerful are state laws preventing disclosure of police personnel records that it appears only a handful of people are able to view the complete findings of a recent probe into allegations of misconduct at the Burbank Police Department.

And even though it was the council who in January authorized the $200,000 needed for former San Luis Obispo Police Chief James Gardiner to conduct his investigation, they're not on that exclusive list.


Martin Mayer, a law enforcement affairs expert who serves as general counsel for the California Police Chiefs Assn., told me the council's exclusion is not unusual and is due to Burbank's common municipal structure of shared power between elected council members and their appointed city manager.

Under state law, said Mayer, only direct supervisors of the Police Department have official duties that carry privileges of access to police personnel records.

In Burbank, it's City Manager Michael Flad — not the council, which acts as a legislative body directing city policy — who wields executive powers to hire, fire and supervise city department heads and other employees.

So under state law, "the City Council is not the manager of a [Burbank police] officer, the chief of police is, and he works for the city manager," Mayer said. "They have no more right to see what's in an officer's personal file than anybody else does. That's the law."

In other words, think of the city as a corporation in which the council is the board of directors and the city manager is the chief executive directly in charge of company operations.

So that means even though Flad is ultimately accountable to the council and had to seek its approval to fund the investigation, he'd be the person an enterprising journalist would want to put the squeeze on for details about the Gardiner report, right?

Well, not exactly.

"The city manager has not seen the report and won't," said City Atty. Dennis Barlow, who explained that Flad is staying clear of it for now because, at the end of the day, Flad may end up deciding final appeals of any officers asking for their jobs back.

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