South Portland police officers don’t like how their top brass handle internal investigations, and are seeking access to a report they believe criticizes the process.
Both of the department’s administrators, Chief Edward Googins and Deputy Chief Amy Berry, have received copies of an internal city report, which the city’s patrol officers and sergeants say is critical of the pair and should be made available to the rest of the department.
The city refused a Freedom of Access request from the city’s two police unions to get copies of the report, leading the unions – the South Portland Police Patrol Association and the South Portland Command and Supervisory Unit – to file suit in Cumberland County Superior Court seeking access to it. City officials have also refused the Current’s requests for the report.
The lawsuit says several officers were interviewed – at the public’s expense – during the research leading up to the report, which was created by the city’s human resources department because of ongoing concerns within the department.
It was begun following a complaint from a sergeant that he had not been informed that he was the subject of an internal department investigation. The sergeant had been exonerated, and the city human resources department dismissed his complaint, according to court documents and a union official.
Longstanding tensions
Officer James Fahey, vice president of the South Portland Police Patrol Association, said longstanding tensions between the police administration and the two unions concerning internal investigations led to the report being done.
Fahey said an “overzealousness” in how the administration deals with informal complaints against police officers has been an issue for years.
Berry, who has served in South Portland since 1977 and has been the deputy chief since 2001, is married to a sergeant in the department.
Berry said Wednesday she is involved in internal investigations as the “keeper of the records,” but said she rarely conducts the inquiries.
“Internal investigations are never popular because an officer’s actions are being questioned,” she said, adding that they are absolutely critical to maintain trust and officers “should be concerned with what the outcome is.”
The department policy for internal inquiries requires the department to notify the officer being investigated, Fahey said. He said the administration did not do that in the case of the sergeant. Fahey said criminals always have the opportunity to face their accusers in court and the police officers are just asking for the same right.
Berry said Wednesday that some officers are not told they are under investigation, depending on what is alleged against them.
Googins said there have been concerns in the past about the policy and said the department is working with the unions to clarify the procedure.
City attorney Mary Kahl has refused to release the report except to Berry and Googins, citing a statute that states “employee records containing complaints, charges or accusations of misconduct that do not result in disciplinary action are confidential.”
“We have no discretion, either it is public record … or it’s not a public record,” Kahl said.
When she received the report in March, Berry wrote to the City Council with concerns about it. She said her concerns are being dealt with at this time and she is waiting for a response to her letter. City officials say the letter is confidential and Berry refused to provide a copy of it.
City Councilor David Jacobs said the issues raised in the letter were “already addressed in executive session,” but would not comment on its contents or any result of the session.
“I can’t even tell you if it’s on white paper or not,” said Mayor Jim Hughes, who declined to comment further on any aspect of the situation, because the city has deemed the letter and anything involved with the report as confidential.
Kahl said the report is part of someone’s personnel file and falls under legal guidelines requiring confidentiality. If disciplinary action were taken against an individual then a factual statement would be released for public record, but if no disciplinary action is taken than the “complaints, charges or accusations of misconduct” remain confidential to protect that employee, she said.
“The right to privacy belongs to the employee, not the city,” Kahl said. “They have a right to privacy that it is not put out into the public.”
When asked if the report was part of her personnel file, Berry responded that the report requested by the unions pertained to the “upper echelon” of the police department, “which is not exclusively me.”
Chief Edward Googins said he had received a copy of the report, but would not comment on the contents because of confidentiality. When asked what led to the report being written in the first place, Googins said he could not say without “alluding to what’s in the report.”
Officers want to fix problems
Fahey said the unions want access to the report so they can fix any problems within the department that the report may have identified. He said they didn’t know if the problems were within the administrative ranks or the officer ranks. “We can’t fix what we don’t know is broken,” he said.
Fahey said he expects a long battle to get access to the report. He cited a similar case in Portland that was settled last year that took two years and cost the police unions upwards of $17,000. In that case the police unions sued the city to obtain a report that was not being released by the city.
Fahey said the report, which became known as the McClaran report after the former Portland police chief, was withheld because it did not reflect positively on the upper echelon of the police force.
Attorney Dan Felkel, who represents the two police unions in the South Portland case and also represented the police unions in the Portland case, said the situation is similar. But, Felkel said he doesn’t think the case in South Portland will last as long because he has already done a lot of the work during the Portland case. “I’m not reinventing the wheel,” he said.
City attorney Kahl said this case is different because in Portland’s case the report was deemed by the judge to be an overall critique of the department, while the report in South Portland is part of someone’s personnel file, and therefore exempt from Maine’s Freedom of Access law.
Felkel agreed. He said the Portland report was finally provided to the police unions because it was determined nothing contained within it would lead to disciplinary action. It was a critique of the department, “that’s all it was,” Felkel said.
Kahl said she doesn’t think the case will take years, but it could conceivably be four or five months before it comes to a hearing.
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