That Old Time (Civic) Religion

By Frank Gruber

April 4, 2011 --On February 14 when I first wrote about the OIR Group’s report on the Santa Monica Police Department’s investigation of School Board Member Oscar de la Torre, I opined that Superintendent of Schools Tim Cuneo was the person, other than the police investigator who went after Mr. de la Torre, who came off the worst in the report. The OIR report identified Mr. Cuneo as the school official who had given the police a video of a fight between two high school students; this was the fight that Mr. de la Torre broke up, but not as soon, in the opinion of some, as he could have.

In my view there was nothing in the video that a fair mind would find suspect, and that sending the video to the police showed a lack of judgment. (See column of February 14, 2011, Report on Oscar de la Torre

After I wrote that, Mr. Cuneo called me, mystified. He had not yet read the report and he denied that he had furnished the video to the police. In my column the next week, I reported Mr. Cuneo’s denial, and explained that my evaluation of Mr. Cuneo’s conduct was based solely on what was in the report.

Now another shoe has dropped. Mr. Cuneo complained to city officials, and City Attorney Marsha Moutrie asked the OIR Group to check its sources. On March 23 Michael Gennaco of the OIR Group wrote Ms. Moutrie with a correction, stating that on further inquiry he and his colleagues had concluded that they had received “inaccurate information” from their sources about how the police department obtained the video, and as a result, they had no reason to believe that Mr. Cuneo was the source.

The correction raises the question of who did give the video to the police. From the report it’s clear that the video came to light when it was given to administrators at Santa Monica high school, allegedly with a note stating (by means of allegory) that the video showed that Mr. de la Torre was the kind of person who wants young men to fight so that he can have more business stopping them from fighting. (Mr. de la Torre heads an organization, the Pico Youth and Family Center (PYFC), funded by the City in part to deal with issues of youth violence.)

Mr. Gennaco did not, however, identify who gave the video to the police. He did say, however, in the letter, that this person “behaved in accordance with one’s civic duty.” Since it was my opinion that if Mr. Cuneo had given the video to the police, this showed a “profound lack of judgment,” I wondered how my view about civic duty could be so different from Mr. Gennaco’s. To find out, I called him.

He told me that, speaking as a former prosecutor, he thought that there was a difficulty in getting people involved with the schools to disclose potential crimes to the police, and that given the evidence here, the video of a fight between two high school students, possibly implicating criminal behavior on the part of a school board member, the person who disclosed the video did the right thing. (Why Mr. Gennaco felt compelled, in an investigative report about police conduct, to analyze the motivations of an unnamed person who was not a police officer is not a question I thought to ask.)

I can see Mr. Gennaco’s point, but I am unconvinced. My view is based not only on how I evaluate what the situation was, but also my view that “civic duty” does not necessarily require subordinating one’s own judgment to that of “authority.” Ingrained in the theology of the American civic religion is a healthy skepticism towards authority, bordering on suspicion, and in our culture, no one likes a snitch.

Mr. Gennaco is right, of course, that if any school official came into possession of evidence implicating a member of the school board in a crime, he or she should forward the evidence to appropriate law enforcement authorities. But was that the case with the fight video? It’s interesting to me that after reading my column, Mr. Cuneo wanted it to be clear that he had not been the forwarder.

Naturally, my “reading” of the video and my knowledge of Santa Monica politics influence my analysis. I believe that it was a huge stretch to watch the video and conclude that Mr. de la Torre had done anything wrong, let alone committed a crime, particularly a crime that required that he have care and control of at least one of the fighters. I suspect that the accusation from the anonymous source of the video that Mr. de la Torre was drumming up “business” poisoned the perceptions of the school officials who watched it.

Even if the video needed to be evaluated by law enforcement, the Santa Monica police were the wrong authorities to send it to, and anyone who knew of Mr. de la Torre’s history with the SMPD should have known that.

In his letter, Mr. Gennaco also justified the furnishing of the video to the police on the grounds that it later became the basis for a judge’s finding that there was probable cause to issue a search warrant. But this seems like a rationalization. The paperwork the police submitted to get the search warrant reflected the flawed and biased police work the OIR report brought to light, and it is not that difficult for police to obtain search warrants.

Okay, though, I’ll admit it: the school officials had a tough call. If Mr. de la Torre had committed a crime, and it came to light that they had suppressed evidence against him, they would be accused of protecting a school board member. But they had an alternative -- they could have given the video to the City Attorney’s office, or to the District Attorney. As it happened, when the police finally brought their claims to the City Attorney, Ms. Moutrie’s office declined to become involved, citing a conflict of interest, since the PYFC received funding from the City.

Unfortunately, when the police obtained the video, they investigated Mr. de la Torre themselves. This is what police do -- they aren’t lawyers.

Which brings me, now that I can’t criticize Mr. Cuneo, to a new determination of who comes off the worst in the OIR report aside from the police investigator. The more I ponder the case, the more I have to fault Police Chief Tim Jackman.

Which is unfortunate, because by all accounts, including those in the OIR Report, Mr. Jackman has worked hard to create a good relationship with the whole community, including Mr. de la Torre.

Ideally, on receipt of the video, Mr. Jackman would have had his officers refer it to outside investigators. Failing that, Mr. Jackman should have recognized the sensitivity inherent in the police investigating a local politician, and in particular Mr. de la Torre, and he should have taken steps to insure that the investigation would be competent and untainted by bias. I.e., he should have overseen the investigation himself. But if he did so, then he’s ultimately responsible for it.

According to the OIR report, however, no one supervised the officer who conducted the investigation, who was free to pursue his idiosyncratic theories about Mr. de la Torre’s “mindset,” etc.

But then, if Mr. Jackman did not oversee the report, then he’s also responsible for it.

In any case, we’re about half-way through the 90 days that Mr. Jackman and City Manager Rod Gould gave themselves to report back to the City Council on their implementation of the OIR Group’s recommendations, and we’ll soon have their report.

Frank J. Gruber is the author of Urban Worrier: Making Politics Personal, available at Hennessey + Ingalls and Angel City books in Santa Monica, at City Image Press, and on amazon.com.