Third and Final Statement by Alfred “Chub” Wilcox
THIRD AND FINAL STATEMENT BY ALFRED (“CHUB”) WILCOX:
The Rose Opinion Letter
Voters have seen the October 7, 2021 opinion letter by Attorney Michael Rose posted by Chief Spera on the OSPD website and read aloud by Chairman Keeney at the October 19 special meeting of the Police Commission. They have also seen statements by Mr. Spera and Chairman Keeney touting that letter as a way of blasting Renee Shippee and me, just weeks before the November 2 election. The voters are entitled to my response.
I don’t know the “facts” or “issues” Chief Spera instructed Mr. Rose to assume or to address (because Mr. Spera refused to let me see them), and so I am reluctant to overly criticize Mr. Rose. However, having enjoyed a forty year career as a litigation attorney, I understand the laws he cites and the analysis he makes.
That analysis is fundamentally flawed:
John Doe’s records were his private records, not “public records” of the police department.
Mr. Rose is therefore wrong in his FOIA analysis.
Mr. Rose therefore greatly exaggerates any risk of liability on the part of the Town.
For those readers interested in the bases for my assessment, here it is.
JOHN DOE’S RECORDS ARE HIS PRIVATE RECORDS
Chief Spera has acknowledged that the records John Doe shared with each of the Commissioners were lawfully in his possession, and that John Doe was not under any legal constraint preventing him from sharing them with the Commissioners or anyone else. John Doe’s records are therefore his private records, not “public records” that must be kept and maintained at the police department (“OSPD”).
MR. ROSE IS THEREFORE WRONG IN HIS FOIA ANALYSIS
The whole purpose of FOIA is to enable private citizens to review and obtain copies of public records. That is why FOIA requires that public records must be “kept and maintained” in an accessible place at the public agency’s regular office or place of business. In response to a FOIA request a private citizen can obtain his or her copy of the public record. That copy thereupon becomes the citizen’s private record. FOIA does not mandate that the public agency is required to grab the citizen’s copy back, because to do so would defeat the whole purpose of FOIA. Similarly, FOIA doesn’t prevent the citizen from sharing what is now their private record with anyone they choose.
Mr. Rose thus mistakenly assumes that the document in my possession is a “public record” of the OSPD which I must return to that department. But it is not a public record; it is my copy of a private record, mailed to me by a private citizen who was entirely within his rights in doing so.
MR. ROSE GREATLY EXAGGERATES THE TOWN’S RISK OF LIABILITY
Mr. Rose says that if the police department doesn’t safeguard these documents from public view, then the “Department and the person who has the records are subject to whatever punishment the [FOIA] Commission deems appropriate as well as any civil suit should the documents fall into the hands of any member of the public….”
As noted above, the documents in question are not police department documents any longer.
Moreover, the civil penalty provided under FOIA is no less than $20 and no more than $1000. It can only be imposed “upon the finding that a denial of any right created by the [FOIA] was without reasonable grounds and after the custodian or other official directly responsible for the denial has been given an opportunity to be heard at a hearing.” Sec. 1-206(b)(2). Since the Town is neither granting inappropriate access unreasonably (so far as I know) nor denying appropriate access unreasonably, the risk of any liability under this section seems extraordinarily remote.
Similarly, since the Town is neither granting nor refusing access unreasonably, nor presumably being sloppy in maintaining the department’s records, it is difficult to imagine how the Town is at risk of liability in an “invasion of privacy” type private lawsuit.
Finally, since I have not and will not expose the documents in my possession to anyone, I think the concern hypothesized by Mr. Rose that I might allow the records to “fall into the hands of a member of the public” is not worth considering. I have had these documents in my possession since early July, and none of them has yet to see the light of day, despite incessant goading by Chief Spera and others to get me to say more about these documents in order to correct the misimpressions being circulated. I hope that gives all concerned comfort that I am not a “loose cannon” about to plaster these documents on some public forum. I strive to adhere to the high standard of circumspection the public has a right to expect from a member of the Police Commission, consistent with the oath I took when I was sworn in as a commissioner.
Statement #2 By Alfred “Chub” Wilcox, The By-Laws
STATEMENT # 2 BY ALFRED “CHUB” WILCOX: THE BY-LAWS
Several people have written to express their opinion that just because I “disagree with” a Police Commission by-law, I don’t have any right to ignore it.
I actually agree with that proposition. What I disagree with is the interpretation Chief Spera and the Republican majority are making of the by-law.
The by-law says that when a commissioner receives a complaint from a citizen about a “personnel” matter, he or she shall “forward” the complaint to the department for it to process in accordance with the department’s General Orders. Should we infer from this that the commissioner(s) are thereby divested from any further responsibility, such as an ongoing oversight responsibility? The by-law doesn’t say that. There was no discussion at the time the by-law was adopted suggesting that any such constraint on the authority of the Commission was intended. And when a citizen directs his or her complaint to the Commission, instead of to the department, that probably was because he or she wasn’t confident that the department would investigate and assess the complaint in an unbiased manner. That suggests to me that the Commission should be especially mindful of its oversight role.
That is why I believe that nothing in the amended by-law should be interpreted as requiring anything other than what the by-law expressly says: citizen complaints shall be forwarded to the department so it can process them. The by-law doesn’t say that a commissioner can’t make notes about the complaint. It doesn’t say that a commissioner can’t make a copy of the complaint. It doesn’t say that a commissioner can’t keep whatever record he or she thinks might assist if the need to exercise oversight arises in the future. And because I know that at least four commissioners have given their copies to Chief Spera, I know that he doesn’t need my or Commissioner Shippee’s copy as well to know what he should be doing.
If the Republicans on the Commission indeed intend that the Commission must wash its hands of any ongoing responsibility once a citizen complaint has been forwarded to the Chief for processing, I invite them to move for, discuss, and openly vote on such a motion. I think it would be a serious mistake, but I’m just one of two Democrats currently on the Commission
Statement by Chub Wilcox
STATEMENT BY POLICE COMMISSIONER ALFRED “CHUB” WILCOX
It is apparent that the Chief takes his job seriously. I hope it is equally apparent that I take my job seriously too.
The Chief’s job is to manage the department. My job is to be a part — and hopefully a forceful part — of citizen oversight of the Chief and the department.
I can’t accomplish anything individually, only a majority of the Commissioners can really accomplish anything. But I can’t persuade a majority to do anything without the benefit of information, and I think that’s what this dispute is really about. The Chief apparently wants to be the only person with all the information we need, depriving the rest of us of our ability to do our jobs effectively.
There seems to be a lot of misimpressions or misinformation floating around, so let me state flat out what is not involved here.
There are:
-NO police photos in any of the documents being discussed.
-NO report of a police interview with the alleged victim.
-NO report of a police interview with a child of the alleged victim.
-NO photo of or even the name of a child of the alleged victim.
There is nothing gruesome, lurid, prurient, or otherwise sensational shown in the three photos which a private citizen gave to each member of the Commission in support of his complaint to them in early July, 2021.
Neither Chief Spera nor anyone else has ever suggested that the citizen who made the complaint about the department was not lawfully entitled to possess the documents he supplied to the Commissioners, or that he was not lawfully entitled to share those documents with the Commissioners.
Why, you may ask, do I care about these documents? Because I believe that when a citizen is angered enough about how he was treated by our police department that he (or she) writes a lengthy complaint letter to the Commissioners, supporting it with what he believes to be corroborating evidence, then the Commissioners owe it to him (or her) not just to turn the complaint over to the Chief for him to look into, but also to monitor and follow up from time to time to ensure that the complaint is being taken seriously.
And if we are to do that, we need to have some record of the complaint so we can competently follow up on it.
Chief Spera says he is doing his utmost to protect us all. But with specific regard to this citizen’s complaint, when I asked at a Police Commission meeting what was being done, Mr. Spera replied that he wasn’t investigating it because he had invited the complainant to come to police headquarters and fill in a form, and the individual hadn’t done that.
But that runs directly counter to the Chief’s own General Orders for the department, which state that complaints received in the form of a letter are to be promptly acknowledged and investigated. Clearly, there is good reason for the Commission to be alert to its ongoing oversight responsibility here.
I will address in another piece the purported legal reasoning which Chief Spera says backs up his position, but that must of necessity be denser and drier than this. In the meantime, I hope this gives the public a clearer picture of the nature of the materials that were given to me, and why I think it is important that I hold onto them.
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