Tulare’s public records responses earn city a lawsuit

Many Tulareans are interested in the investigation of their police chief, Wes Hensley, and command officers Cpt. Fred Ynclan, and Lt. Jerod Boatman.

All three remain on paid administrative leave, Hensley since September 27, 2017; Ynclan and Boatman since November 7, 2017.

Ben Brubaker, a Tulare resident, submitted a Public Records Act request for information regarding the investigation; a representative of the city attorney’s office replied that the city would not comply with the request. As a result, Brubaker is taking the city to court.

In a suit filed with the Tulare County Superior Court on January 31, Brubaker, through his attorney, Michael Lampe, requests the following judgements:

1. A declaration that the City has not complied with the January 16, 2018, Public Records Act request, and that the requested documents should be produced forthwith.
2. That Brubaker be awarded reasonable attorneys’ fees in this action under the provisions of Government Code 6259(d) and Code of Civil Procedure section 1021.5.
3. That Brubaker be awarded his costs of suit incurred herein; and
4. That Brubaker be awarded such other relief as the court may consider proper.

A case management conference has been set for Tuesday, June 12.

City officials have told reporters that an investigator has been hired to look into matters regarding the police personnel – but that’s about all they’ll say.

Attorney’s response to public information requests

A response letter to Brubaker, signed by Sarah Tobais — an attorney with Goyette and Associates, Inc., the city’s contracted law firm — states:

“Making information and records public about an on-going, confidential personnel investigation would interfere with any agency’s ability to conduct an effective investigation.  This risk is greatly amplified in the situation at hand by the involvement of the media in this matter, and by the possibility of any prematurely released information impacting potential witnesses and impacting the investigator’s ability to conduct the investigation.  The public does possess an interest in transparency and in evaluating the City’s performance of its duties, such as conducting a personnel investigation.  Making information and records public about an on-going, confidential personnel investigation would interfere with any agency’s ability to conduct an effective investigation.  This risk is greatly amplified in the situation at hand by the involvement of the media in this matter, and by the possibility of any prematurely released information impacting potential witnesses and impacting the investigator’s ability to conduct the investigation.  The public does possess an interest in transparency and in evaluating the City’s performance of its duties, such as conducting a personnel investigation.  However, learning information such as the name of the investigator before the investigation is completed does not serve the public interest in determining whether the City has properly performed its duties, as its duties have not yet been completed.”

Clearly, Brubaker is not satisfied with the response.

“As a citizen, I have rights to know how our city is run,” he said in an interview with the Voice. “It’s our business.

“They are refusing it [the public information request], so I am challenging it.”

Brubaker isn’t the only one receiving that response.

The Valley Voice’s Catherine Doe placed a very similar request – she got the same answer as Brubaker.

While the California Public Records Act requires an agency to offer any “reasonably segregable portion of a record” for copying or viewing, Tulare officials stated that revealing the name of the investigator was an issue. So, the Voice made a subsequent request for a copy of the contract with the name redacted.

The same response was given, without any reference to the investigator’s name being an impediment.

Apparently the name of the investigator is not the only issue the city attorneys do not want to reveal. Brubaker and the Voice are not the only ones looking for answers.

Council member wants answers, too

At the January 16 Tulare city council meeting, following some public comments on the situation, Councilman Jose Sigala tried to fish out some answers.

“And the final thing I’d like to see, is if we could have, in closed session, a briefing on the status of the chief of police’s leave,” he said during council member comments. ”I know that the city attorney has told us, we as a council are not allowed to legally be involved in that process, which I respect. But, I do believe as a council, we can be briefed on the cost of the investigation and the timeline. So, I would like to see if we could have that in closed session.

“I’m not asking about the particulars of why the chief is on leave, but I do think that we, as a council, do have to deal with city funding and get an opportunity as to what the timeline is. I read about it in the paper, but I’d like to get a briefing from the city manager and the city attorney on the cost of the investigation and the timeline.”

A discussion ensued between Sigala and Councilman Greg Nunley, in which Nunley said, “Let’s just talk about it right now – if there’s investigations happening, how much will it cost? Council, can we know any more than this?”

Vice Mayor Maritsa Castellanoz stated she felt that without it being properly agendized, council could not discuss the issue.

Sigala responded, “So, what would be an appropriate avenue as a council member, as duly elected by the public who I have sworn an oath to protect, and do what I can to protect the treasury of the city. Maybe they don’t want to know. But I would like to know what the cost is and the timeline. So, if the closed session is not the appropriate avenue, would the city attorney to be willing to say what is the appropriate avenue to find out, as a council member?

Tobias did not respond.

Nunley did, “I would like the public to know, everyone in this room and everyone who reads the newspaper, I’d like the public to know that we can only know certain things and we can only get an update on certain things.”

After a brief discussion on another topic, Sigala brought the conversation back to the investigation.

“And then the final thing would be just a briefing, whether it’s closed session or not, on the cost and the timeline of the investigation,” he said.

Mayor Carlton Jones responded , “I’ll say this and let me say it to everyone here – when you talk about your duties as a council member, that’s also one of your duties as a council member, is your involvement in personnel matters. So, don’t forget that one.”

“I’m not being involved in personnel matters, it is very specific of the cost,” Sigala said .

Jones responded, “That’s a personnel matter.”

“Well, that’s why I need a city attorney to tell me,” Sigala said.

Again, Tobias did not respond, the mayor did.

“The best thing to do, as council members – you leave that process alone,” he said.

Further discussion continued and Sigala said, “I don’t want to know what the chief did. I don’t want to know this and that, all I want to know – is it going to cost the city a specific amount of money and how much longer this is going to take. It’s very specific, so if we’re not going to support this, I would like to hear from you or from the city attorney, something in writing, telling me – focusing on case law, or focusing on personnel law, or whatever, saying you are prohibiting councilmen from knowing this information.”

Shortly after, Sigala was silenced.

“This is just your 30 minute closing, and we don’t want to have another meeting here,” the mayor said. “That’s enough with that. That’s enough. It’s not going to close session. You’re crossing into a whole bunch of Bill of Rights issues that I would suggest you meet with legal counsel to look into before we go any further. I’m going to move on.”

“Well, it’s not fair that you are the only one who gets briefed on this,” Sigala rebuked. “That’s my point.”

“I don’t get briefed,” Jones responded.

“According to your radio interview, you do know what’s going on and I don’t think it’s fair that you are the only one who knows what’s going on,” Sigala said referring to Jones’ K-TIP weekly radio appearances.

In a February 3 interview, Sigala said he is still waiting to hear from the city attorneys with regard to citing case or personnel law in that the city council, and the public, does not have a right to know the cost and timeframe of the investigation.

“I’m just as curious as the public as to what is going on,” he said. “I do feel there are some questions that we, as council members, have the right to know. But, as of yet, I have not heard back.

“I am not satisfied as to the lack of response regarding the cash and timeline from the city attorney.”

It is not clear, at this point, just what it will take for council or Tulareans to learn how much time the investigation into three top law enforcement officers will take, or how much money Tulare will spend on that investigation. Perhaps the Brubaker court case, some four months away, will be able to shed some light onto it. Meanwhile, Hensley, Ynclan and Boatman remain on paid administrative leave.