Cents and sensibility

Worcester faces three suits that could cost taxpayers millions, and City Hall needs all the good press and public support it can get. So why has the city refused to hand over police records to the T&G?

by Kristen Lombardi

City Hall probably won't send a thank-you note to Linda Alago anytime soon. So enraged by a local cop's treatment, which she charged was racially motivated, Alago dialed up Worcester Telegram & Gazette reporter John Monahan last August to complain she was harassed without provocation, thrown against a car, and cursed at by an officer who detained her in front of her Elm Street home. Little did Alago know how far the T&G would go with her news tip.

Monahan first detailed her story in the August 11, 1998, edition, but he continued to be intrigued, partly because Alago outlined the runaround she says she got from the department when she complained about the officer. It seemed to fit a pattern: a growing, public discontent with the Worcester Police Department and how it conducts business. So, like any good investigative reporter, Monahan set out to examine how formal complaints, like Alago's, are received and investigated by the department. Monahan ultimately requested a complete account of citizen-complaint investigations from 1997 and into '98, a total of 20 months' worth of internal-affairs records.

City officials reluctantly released 20 of an estimated 125 complaints, all heavily edited, excluding key information like dates, locations, and, more important, officers' names. Months of futile haggling ensued until the T&G appealed to the Secretary of State, winning a January decision that ordered the city to re-release records with the names of officers about whom residents had complained.

But victory was short-lived. The administration did re-release the records (this time 73 complaints) but, again, blacked out officers' names. Dissatisfied, the T&G, under its parent company, Chronicle Publishing, and represented by Bowditch & Dewey, is now preparing to face the city in civil court.

The legal battle, expected to be tried in 2001, pits the public's right to know against police officers' right to privacy -- legitimate, competing interests, for sure. But the administration's staunch action hasn't come without consequence. The stonewalling's set off a wave of negative publicity, starting with news articles exposing the inadequacies within the internal-affairs division. T&G editorials have not only condemned the city's "prevailing secrecy," but also urged residents to "revive arguments" for a civilian-review board. Even the irreverent T&G columnist Dianne Williamson mocked City Manager Tom Hoover and Police Chief Ed Gardella in a clever February column in which she blacked out segments of her article.

If anything, the city vs. T&G is a study of poor public relations at a time when City Hall can't afford it. This fall, the city will have to relive what's undoubtedly its worst case of police misconduct: the 1993 suffocating death of Cristino Hernandez. Six years after the Hernandez family first filed its wrongful-death lawsuit, the case is slated for trial in October. And other, potentially costly court battles loom. Three families are seeking considerable cash awards, following the conviction of a former Worcester school teacher for abusing special-education students. And in a rare tax-appellate case, the administration hopes to convince a judge that it shouldn't have to pay Norton Company nearly $60 million in property taxes, which the company says it overpayed.

So with the law department in overdrive, attempting to spare the city (thus taxpayers) from losing what could be history-making multimillion-dollar settlements -- for which it has set aside no money in the budget -- the city's current battle with the T&G is just the type of pretrial publicity it doesn't need.

POLICE PRIVACY

VS. THE PUBLIC'S

RIGHT TO KNOW

Perhaps what is most peculiar about the city's fight against the T&G is that the paper appears to be right. The Massachusetts public-records law, for one, presumes all government documents are public, unless they meet 13 strictly defined exemptions (among other things, public-employee medical records, yet-awarded construction bids, and specific financial information are exempt). Agencies refusing to release records must prove which exemptions apply.

The law favors disclosure because it's predicated on the notion that citizens have a right to know how municipal employees perform official duties, precisely how the T&G has presented its case. Censored citizen complaints "obviously breeds suspicion, which only serves to deteriorate the public trust both in individual officers and in the system," the T&G argues in court documents.

In its defense, though, the city administration's relied on three exemptions of the public-records law -- those dealing with personnel, privacy, and investigative matters. Revealing names would have an "irreparable and adverse effect" on the police department's ability to investigate not just complaints, but also crimes, the city contends. It further maintains full disclosure might invite residents to make up complaints, then concludes: "The mere fact an officer sees his name published can provoke serious negative personal issues."

But ultimately, Carolyn Kelly MacWilliam, the state's supervisor of public records, echoed what the T&G asserted all along, ruling in January that "substantial public interest" outweighs officers' privacy rights. She also rejected the city's claim that disclosure could encourage false complaints, saying it "may actually restore public confidence in the police."

Rather than abide by the ruling, the city hunkered down and, yet again, blacked out officers' names in complaints re-released to the T&G. It was a brazen, uncooperative move, one lending credence to the perception that Hoover and Gardella are more concerned with preserving the "blue wall of silence" than protecting residents. The aura of secrecy inspired the T&G to up the ante, filing suit in Worcester Superior Court almost as soon as Attorney General Tom Reilly, without explanation, refused to enforce the Secretary of State's mandate.

But if T&G supporters assumed the city could not elude a court order, they were wrong. On June 3, Worcester Superior Court Justice Daniel Toomey stunned the newspaper when he denied an injunction (which would have forced the city to release unedited complaints) because, he said, "defendants are likely to suffer irreparable harm if information, later determined to be exempt, has been improperly released."

Now the T&G has one option: battle the city at trial come November 2001.

The back-and-forth, convoluted fight is not unusual, especially with law-enforcement records. This past May, a Rhode Island judge dictated Providence officials relinquish 300 citizen complaints and corresponding investigations. Direct Action for Rights and Equality (DARE), a non-profit organization, had first requested records in 1993, after years of alleged police misconduct in Providence's poor, minority neighborhoods. When the city refused, DARE sued and won. On appeal, the city was again told to release the records but, this time, with a stipulation: the city could remove officers' names.

Just this year, the Worcester County Chapter of the American Civil Liberties Union (ACLU) asked for citizen complaints against Fitchburg and Leominster officers, after the ACLU filed a number of police-brutality lawsuits. While Fitchburg fulfilled the request -- including cops' names -- Leominster did not, prompting the ACLU to appeal. Whether the ACLU, like the T&G, will see the complaints remains uncertain.

The fact that there's no broad, judicial ruling to settle the T&G matter frustrates the paper's management enough to pursue a costly, burdensome lawsuit. Editor Harry Whitin hopes the case leads to a clear judgment that citizen complaints -- officers' names included -- are public. "The point is to get the courts to focus on the core issue," he says.

Whitin, who has served for years on the state Supreme Judicial Court's Judiciary/Media Steering Committee, is convinced the law backs the T&G. "The city's exemptions don't make sense," he explains. First, the T&G wants access to citizen complaints and findings, not the police's crime files. Second, complaints aren't, by practice, included in personnel records.

What amazes Whitin about the city's tough stance is that the Secretary's ruling affords police, as he puts it, "big loopholes under which to hide." After all, Worcester officials did not have to turn over open, possibly unfounded complaints; and so, in theory, damaging cases might be left forever unresolved. For Whitin, the ruling strikes an appropriate, if not generous, balance between public and privacy interests.

But for city officials, the ruling tips the scale too far. City Solicitor David Moore insists the administration hasn't denied access to public records; it's just disagreed with the decision to disclose names. "This is simply about where the line is drawn," he says.

Whitin would beg to differ. "The city's arguing a lot of motherhood and apple pie," he says. Not only have officials displayed arrogance by claiming residents may fabricate complaints were officers' names released, he says, but they've revealed a level of distrust of their own department's ability to act professionally by arguing the disclosure will hinder investigations.

Yet Moore counters that people -- in particular, those who may break the law -- have made up complaints before, and, when it happens, it does nothing but compromise the police department's enforcement capabilities. "Residents [who] could be arrested can be resourceful," he notes. "It's a gross overgeneralization to suggest the city doesn't trust citizens and police because of one point."

This isn't to say that the administration is oblivious to the negative publicity its actions have spurred. Although Moore stresses the fact that the city isn't "legally bound" to MacWilliam's ruling, he admits the city's challenge may be viewed as defiant -- a position, he allows, that isn't helping the rift in community/police relations.

But even so, he asserts, "If we released officers' names and it did have an adverse effect on law enforcement, that would look foolish too."

WE'LL SEE YOU IN COURT --

A BUNCH OF TIMES

Worcester officials, though, may not be able to avoid looking foolish in several of the city's upcoming lawsuits. The administration faces three civil trials considered so extraordinary, $137,000 was added to the law department's fiscal 2000 budget. In total, $260,500 is allocated this year for experts and additional counsel.

The first case centers on Norton Company and its attempt to get a substantial real-estate tax abatement. Norton is challenging its property valuation over the past two years, which, at $29 million, represents one of the city's highest tax bills. Since state law requires businesses to pay before they appeal, the administration stands to lose the $58 million already paid, thus incorporated into the budget, plus interest. The considerable stakes have prompted the city to retain not just an independent tax attorney but an independent assessor.

Scheduled before the state Appellate Tax Board, the Norton trial is the first of its kind in years. Moore says the old State Mutual Insurance was the last to contest a multimillion-dollar valuation in the late '80s. Back then, the administration hired the same attorney and assessor it will employ in the Norton case. Rather than pay back millions, the city was found to have overestimated by $50,000.

Just how likely it is that Norton will secure an abatement is a question on which Moore declines to speculate, except to state the obvious: "We hired the same people for a reason."

In the second lawsuit, the city's prospects don't seem as promising. The Laramee v. Underwood et.al. case stems from a former school teacher's undisputed abuse of special-education students. Parents of three developmentally delayed, autistic children are suing the administration, School Committee, and five school employees (several of whom no longer work in the local school system), alleging negligence, civil-rights violations, and intentional infliction of emotional distress.

The civil suit follows a June 1996 conviction of Halina Suitum on 13 charges of physically abusing students in the "Follow Me" program at City View School between 1991 and '94. Suitum served 12 months of a 30-month sentence at MCI-Framingham.

During her criminal trial, Suitum's nasty habit of slapping five students in particular -- all under 10 with few or no verbal skills -- came to light. She once broke a girl's wrist by slamming it on a table. She threw a wooden brush at a boy, striking his head. She even belittled the kids, calling them "dirty dogs."

At issue in the pending litigation isn't just when school officials discovered the abuse but what they did about it. Though Suitum was suspended and fired in '94, Donald Shea, the City View principal and a civil-suit defendant, has testified he first heard of the mistreatment three years earlier -- an ominous admission for the administration.

Finally, there's the lawsuit arising from the 1993 death of Cristino Hernandez, the Salvadoran immigrant who lapsed into a coma during a botched arrest at his Clarkson Street home. Police officers David Reidy and Christopher McInnes encountered Hernandez after neighbors complained an intruder was harassing their dog. What should have been a routine follow-up unraveled as soon as the officers tried to take Hernandez into custody.

A five-minute videotape captures Reidy rolling a defenseless Hernandez on the ground, face down, then kneeling on his back and lifting his hands, handcuffed behind him, high above his head. McInnes is shown circling Hernandez's flailing legs and dropping onto his buttocks.

The family's wrongful-death suit, Quintanilla v. Worcester, charges police brutality and neglect, alleging that Reidy and McInnes caused Hernandez's distress, then delayed medical attention. The family's suing the two officers, the administration, Gardella, and Robert Lamprey (who drove the wagon), charging civil-rights violations like intimidation and coercion. Two sisters, arrested while taping the incident, cite false arrest, false imprisonment, and malicious prosecution as well.

Though local, state, and federal investigations exonerated McInnes and Reidy, the family has a good chance of winning. And not just because plaintiffs in civil court must prove a less-rigid standard. Or because their case is backed by irrefutable evidence like the tape. It's also because, as with any police brutality case, success tends to hinge on the severity of injuries.

As Fitchburg attorney John Bosk, who handles police misconduct lawsuits, says, "If there are no broken bones, bloody noses, black eyes, or sprains, lawyers won't touch it."

Death is the most extreme injustice, for sure. But the Hernandez family isn't necessarily bound to win. Lawyers who focus on police brutality will tell you that success also has to do with jurors and their attitudes toward police. And though there are places like the Bronx, where community/police relations are antagonistic, people, in general, want to believe cops over citizens.

"Jurors have a natural prejudice toward cops," says Suffolk University law professor Michael Avery, who wrote a definitive handbook on police misconduct trials. For a case to be solid, he notes, plaintiffs need something to help jurors get over the bias -- either egregious injuries or likable plaintiffs or unlikable cops -- because more often than not, Avery explains, "jurors will forgive a lot."

But sometimes they don't. After four, white Los Angeles police officers were caught on tape beating Rodney King in 1991, jurors in the civil trial awarded him a phenomenal $3.8 million, putting an end to the case that had become a national emblem of what police do -- particularly to minorities -- when nobody's watching. And when Anthony Baez was smothered in 1994 by a Bronx cop who used an illegal chokehold, the family received $3 million in its wrongful-death lawsuit. More recently, there's the $150 million civil suit against New York City in the Abner Louima case, in which the Haitian immigrant seeks damages after he was sodomized with a broken broomstick by police. A huge payoff is all but expected since, in June, one officer pled guilty to and another was convicted of criminally violating Louima's civil rights.

Such high-profile cases have undoubtedly heightened public intolerance of police misconduct. In Worcester, an increasing cynicism over the police department has fueled the campaign for a civilian-review board and led to the recent revamping of internal-affairs policies. So it's not impossible for a local jury to sympathize with the Hernandez family.

Were that to happen, the administration may be forced to pay out millions of dollars. Indeed, the city's potential liability isn't limited by law in both Quintanilla and Laramee -- which, it seems, positions either case for making city history as the largest settlement yet. Law experts wouldn't even speculate the dollar amount the city stands to lose. But one thing is clear: since no money is budgeted, if it does lose anything, the city will have to scramble to come up with money.

Even Moore recognizes the lawsuits' significance. When asked whether the city were primed for big losses, he replies, "If we ever have to pay a multimillion judgment, it could be in these cases."

TRUST IS A VERY

IMPORTANT ASSET

But if major payoffs in the Quintanilla and Laramee lawsuits loom over the administration, so, too, does the likelihood that residents (read: taxpayers) will lose faith in their government. Which is exactly why the city's fight against the T&G is striking. By standing firm against releasing cops' identities, the city has chosen to risk what is most critical: public trust.

In the words of Jack Authelet, the recently retired Massachusetts "sunshine chairman" (whose group educates the public on open-government laws), "The city has drawn a line in the sand." The resolve merely makes residents wonder what officials are hiding, eroding public confidence, he says. "It could come back to bite them."

As far as Authelet is concerned, the argument for not releasing citizen complaints including officers' names -- an act effectively preventing people from detecting rogue cops -- is so flimsy, the city shouldn't bother with a defense. "The city will go to court," he predicts, "and lose."

Yet not everyone is as quick to judge. Wendy Murphy, a Boston attorney who has pushed for greater public access to police records, believes that legitimate privacy issues exist. "To reveal unsubstantiated complaints as public information is unfair," she acknowledges. Further, she says, police departments need to be permitted to keep investigative materials confidential to remain effective crime-fighters.

Too often, though, police departments resist disclosing records by invoking these interests when the law doesn't allow for it. "The golden egg of police arguments is the watered-down, overused notion of investigative privilege," Murphy says. "Police can't just say they need to insulate everything from public scrutiny."

Instead, they must prove it. And this, perhaps, has been the biggest disappointment for the T&G. For even after the Secretary of State ruled squarely in its favor, the newspaper has watched the administration get another chance to defend itself. The T&G can thank Justice Toomey, of course, whose June 3 decision to deny a court order has rendered the Secretary of State a mere paper tiger. Although it might be prudent to rule on the side of caution, critics cannot help but notice how Toomey, a former prosecutor, and Reilly, the state's top cop, work in concert with the very folks clamoring against disclosure: police officers.

It's a sad bit of commentary when the prestigious yet powerless Secretary of State's Office becomes the sole agency standing up for the public interest -- a commentary not lost on Whitin, who poses the question: "What is the point of the public-records law if it has no teeth?"

Lucky for the public, the T&G keeps pressing to get at what's been deemed rightfully ours. By doing so, the newspaper is living up to its most valuable, crucial role as government watchdog. Consider the mass of news stories across the country that come from simple, public-records requests -- stories exposing unfair housing practices, racial discrimination in contracts, abuse of public funds. Surely, the law is intended to ferret out the bad in government.

Which brings us back to the city's curious behavior. In the 93, heavily edited complaints released thus far, citizens protest minor charges, such as officers using improper language, as well as more serious ones, such as using excessive force, harassment, and illegal searches. Yet only a handful have been sustained; seven resulted in sanctions. From what can be deciphered, there's little indication of systemic police misconduct. Even Whitin admits the records lack "a smoking gun."

And so, the city's dug in its heels over what looks to be a fairly bogus problem. Now that it's bought another two years, it's also managed to exacerbate -- or prolong, anyway -- existing tensions between residents and police. As At-large Councilor Stacey Luster, the leading force behind the campaign for police oversight, points out, "What we need to build is mutual respect among police officers and citizens. Resolution of the T&G case would go a long way toward building that."

No doubt, the city's fight against the T&G has shown how far the administration will go to shield itself from public scrutiny. But the intense battle's brought out something else as well: residents' desire for independent oversight of the police department. Ever since the T&G struggle became known, residents, aided by Luster, have called for a civilian-review board. The Human Rights Commission (HRC) meetings held this past spring reinforced the idea -- enough to motivate the HRC, as anticipated, to address such a review board in a pending report.

So even if the T&G ends up without a broad, court decision -- which, incidentally, experts doubt will happen -- the lawsuit's served to spark public concern over police and, hence, City Hall accountability. At a time of citizen apathy, this is a giant step toward open government.

As Murphy puts it, "Anytime you get citizens to develop greater interest in their police department that's a good thing."

Kristen Lombardi can be reached at klombardi[a]phx.com.