Trust and Confidence Violated

If one particular Huckleberries Online (HBO) weblog post by Dave Oliveria is accurate and complete, Idaho State Police (ISP) Captain Clark Rollins has violated the trust and confidence of at least one Idaho citizen. In doing that, Rollins has jeopardized the ability of his fellow law enforcement officers in all agencies to acquire useful information from citizens.

The particular blog post on February 22, 2007, was headlined "Huckleberries Hears That Spen-Sah ...". In that post, Oliveria quotes a communication purportedly passed from Coeur d'Alene, Idaho, City Administrator Wendy Gabriel to other City department heads. Gabriel was informing other City department heads that Captain Rollins telephoned her with information from a conversation he had with Larry Spencer. Spencer is a vocal critic of parts of a multimillion dollar project underway in Coeur d'Alene. Rollins reportedly told Gabriel that Spencer's complaint was civil, not criminal, but he (Rollins) was just providing Gabriel with "a heads up" about what the ISP's response to Spencer would be. That wording, if accurate, means Rollins called the City Administrator to discuss the ISP's response with her before he even notified the complainant.

So what's wrong with the ISP Captain in charge of criminal investigations for the five northern counties of Idaho passing along information to a City Administrator?

First, it violated the ISP's own promise to Idaho's citizens. From the ISP's website:

Help Us

If you suspect someone, or have any information involving drug or criminal activity in this area please contact us.

By providing us with as much information as possible you will better equip us in handling and investigating any incidents.

The Idaho State Police actively solicits information on criminal activity within the State of Idaho. Any information received will be disseminated to the appropriate law enforcement agency.

The anonymity of the sender and the privacy of all information contained in any messages received will be respected.

Coeur d'Alene City Administrator Wendy Gabriel does not work for a law enforcement agency nor is she a law enforcement officer. By disclosing Larry Spencer's identity and information to her, Captain Rollins violated the State's promise to respect the anonymity of the sender and the privacy of the information. That's a "trust and confidence" violation.

But was there really any harm in what Rollins, Gabriel, whoever "leaked" Gabriel's communication to Oliveria, and Oliveria did?

Yes. Imagine the chilling effect their combined actions would have on a citizen who may have information about a major crime or public corruption. Is that person as likely to go to the ISP now and risk having his complaint information and personal identity passed to a non-law enforcement person, spread throughout the city or county government, and ultimately posted on the Internet in a regional newspaper’s weblog read by several thousand people every week?

Second, the information Rollins' passed to Gabriel appeared to have no criminal or public safety predicate. There was nothing in the information Oliveria attributed to Gabriel suggesting Spencer posed a threat to anyone's safety or he planned to commit a crime. There was nothing in that information suggesting Gabriel perceived a threat to the personal safety of anyone in the City government. In short, Rollins had no business passing the information along to anyone.

When a citizen contacts the police with a complaint or concern, he should expect his information will be provided to others in public safety and used for legitimate law enforcement or public safety purposes. The citizen also has every right to expect it will not be provided to anyone, including law enforcement, who may use it to discourage legitimate dissent or publicly discredit a citizen activist engaging in lawful conduct.

Professional law enforcement organizations recognize the importance of lawfully-obtained criminal intelligence in protecting the public safety. They don’t want to lose that valuable tool by allowing it to be abused for political purposes in violation of citizens’ civil rights. Neither do they want to chill the willingness of citizens to come forward with information by betraying those citizens’ trust and disseminating the citizen’s information for other than legitimate law enforcement and public safety.

In its July 2003 concepts and issues paper titled Criminal Intelligence, the International Association of Chiefs of Police National Law Enforcement Policy Center notes on page 2:

“While intelligence plays a key role in law enforcement operations, history tells us that it can also be the instrument of abuse if such operations are not properly organized, focused and directed. Particularly during times of national emergency, one must be particularly vigilant to prevent aggressive enforcement and intelligence gathering from becoming incursions upon constitutional rights. Aggressive intelligence gathering operations that resemble fishing expeditions have been employed improperly in the past to garner sensitive or confidential information on individuals for whom there is no reasonable suspicion of criminal activity. Once documented, such information can develop a life of its own if sufficient safeguards are not built into the screening, review, and management of intelligence files. If passed on to other law enforcement agencies as intelligence, it can form the basis for abuse of civil liberties and potential civil liability.

In the same manner, intelligence operations are misguided that directly or indirectly gather information on persons based solely on their dissident political activities or views, because they espouse positions or philosophies that are perceived to threaten conventional social or political doctrine, traditionally accepted social mores or similar societal values or institutions, or because they have cultural connections with terrorists. Use of law enforcement resources to intimidate, inhibit or suppress such activities or harass such individuals under the pretext of legitimate police concern for maintaining social order are at best misguided and, in the worst case scenario, constitute a threat to the principles of law enforcement in a democratic society. Additionally, misguided intelligence gathering is a waste of valuable resources that are desperately needed to ferret out wrongdoers and persons who pose real threats to national and local security.”

This whole incident stinks.

Rollins was wrong if he passed Spencer's information to Gabriel as reported. That was an official betrayal of public trust. If his conduct has not been investigated by his superiors at the ISP, it should be. Most law enforcement agencies have strict policy guidelines on how citizen-provided information (intelligence) can be properly gathered and disseminated. It is hard to imagine that his telephone message to Gabriel was within ISP policy.

Gabriel was wrong when she disseminated Rollins' information to other City department heads. The implication is they would somehow use the information Rollins provided if and when they formulated responses to Spencer's criticisms.

Whoever "leaked" Gabriel's information to Oliveria was wrong, because s/he knew Oliveria was likely to publish it on his blog exactly as he did. It appears the intent of the "leaker" was to discourage Larry Spencer from participating in lawful dissent or to discredit him as a critic of the City's business dealings.

Oliveria was wrong in publishing Gabriel's communication on his weblog. Idaho State Police Captain Clark Rollins' conduct should have been pursued as a news story rather than posted on a weblog. The story here was not that Spencer requested to make a complaint with the ISP, a request denied reportedly for lack of criminal jurisdiction. It was that ISP Captain Clark Rollins thought it was appropriate to supply Spencer's identity and information to a person who had no legitimate public safety reason to have it. That is the type of police conduct that draws the attention of the American Civil Liberties Union and aggressive newspaper reporters.

It is also police conduct that damages the trust and confidence of citizens and other law enforcement agencies alike. If I were still in law enforcement, I would be much more wary about passing sensitive law enforcement information or finished intelligence to the ISP.

ADA & Public Safety Response

Under Title II of the Americans with Disabilities Act (ADA), people who have disabilities are entitled to the same services public safety agencies provide to anyone else. They may not be excluded or segregated from services, be denied services, or otherwise be treated differently than other people.

How does that translate into everyday situations? Remember the March 18, 2006, death of Otto Zehm during a confrontation with the Spokane Police Department? One of the issues the federal government would have examined in this case is whether Officer Karl Thompson individually or the Spokane Police Department institutionally violated Zehm's rights under the ADA. In his statement to investigators, Officer Thompson was recounting his special assignments, and said, "Um, Crisis Intervention Team, which is advanced training in dealing with the mentally ill."

To provide some guidance to law enforcement, the US Department of Justice, Civil Rights Division, Disability Rights Section has prepared a 12-page Commonly Asked Questions pamphlet. In its Q & A format, it asks and answers the 25 most common questions law enforcement officers have about their duties and responsibilities to conform to the ADA.

However the DoJ does not stop with law enforcement. It notes that one of the most important roles of local government is to protect their citizenry from harm, including helping people prepare for and respond to emergencies. Making local government emergency preparedness and response programs accessible to people with disabilities is a critical part of this responsibility. Making these programs accessible is also required by the Americans with Disabilities Act of 1990 (ADA). To help local governments meet this requirement, the DoJ has published An ADA Guide for Local Governments - Making Community Emergency Preparedness and Response Programs Accessible to People With Disabilities.

The President's Corporate Fraud Task Force

Corporate fraud? Here in eastern Washington and northern Idaho? Before you say it couldn't happen here, remember these two words: Metropolitan Mortgage.

But there have been far more widely publicized and financially devastating examples of corporate fraud. Note that this abbreviated list also contains another Washington State company, Holmes Harbor Sewer District.

• Adelphia (Remember "The Rigas Gang")
• Arthur Andersen LLP
• Capital City Bank
• Credit Suisse First Boston Corporation (CSFB)
• Enron (Andrew Fastow)
• Enron (Lea Fastow - Andrew Fastow's wife)
• HealthSouth (Richard M. Scrushy)
• Holmes Harbor Sewer District (HHSD) on Whidby Island, Washington
• Qwest
• U.S. Wireless

What does The President's Corporate Fraud Task Force do?

It was established by Executive Order 13271 of July 9, 2002. The CFTC's main functions is to:

Provide direction for the investigation and prosecution of cases of securities fraud, accounting fraud, mail and wire fraud, money laundering, tax fraud based on such predicate offenses, and other related financial crimes committed by commercial entities and directors, officers, professional advisers, and employees thereof (hereinafter "financial crimes''), when such cases are determined by the Deputy Attorney General, for purposes of this order, to be significant.

How the President's Corporate Fraud Task Force goes about prosecuting corporations is outlined in Principles of Federal Prosecution of Business Organizations. One paragraph from the cover memorandum sums it all up:

The main focus of the revisions is increased emphasis on and scrutiny of the authenticity of a corporation's cooperation. Too often business organizations, while purporting to cooperate with a Department investigation, in fact take steps to impede the quick and effective exposure of the complete scope of wrongdoing under investigation. The revisions make clear that such conduct should weigh in favor of a corporate prosecution. The revisions also address the efficacy of the corporate governance mechanisms in place within a corporation, to ensure that these measures are truly effective rather than mere paper programs.

Appraisal Fraud in Real Estate

"You cannot participate in the real estate business without committing felonies."

That's a direct quote from former Texas real estate appraiser William J. Rose who resigned his state-issued appraisal license and complained successfully to the Federal Bureau of Investigation (FBI) about his state real estate board's attempt to stifle his efforts to clean up his industry. Mr. Rose's concern was raised in a Realty Times article titled The Appraisal Crisis and the FBI. In the February 2, 2005, article, Realty Times writer Blanche Evans quoted Mr. Rose as saying, "I complained to the boards, and they tried to stifle me. According to the FBI, this is the new Mafia."

Ms. Evans February 2005 article came just a month after another of her Realty Times articles titled Sickened By Fraud, A Real Estate Appraiser Turns in His Pencil.

The methods used by banks, savings and loans, mortgage brokers, credit unions, loan officers, and real estate agents to apply pressure to appraisers to submit fraudulent appraisals are outlined in another Evans article titled Appraisers Respond: Too Much Fraud In Lending. This article was in the January 19, 2005, Realty Times.

The FBI is not the only federal agency to take notice of appraisal fraud. In its 69-page report titled The Detection, Investigation and Deterrence of Mortgage Loan Fraud Involving Third Parties - A White Paper, the Federal Financial Institutions Examining Council (FFIEC) listed appraisal fraud at the top of a list of third party mortgage fraud schemes that included such intriguing names as builder bailout, chunking, double selling, equity skimming, false down payment, fictitious mortgage loan, land flip, phantom sale, and straw borrower.

One of the more comprehensive articles on appraisal fraud was published by Demos: A Network for Ideas and Action. The article's title, Home Insecurity - How Widespead Appraisal Fraud Puts Homeowners At Risk, succinctly and clearly summarizes appraisal fraud and its consequences to homeowners.

But we're fortunate in Washington and Idaho: Appraisal fraud can't happen here.

IED Defeat Manual

Nearly every nightly national news broadcast has at least one story about improvised explosive devices (IED) in Iraq. IEDs are not new, but they have received much more news coverage during the Iraq engagement.

In September 2005 the US Army and the US Marine Corps jointly published an interim field manual titled "Improvised Explosive Device Defeat". The link to the manual was obtained from the Federation of American Scientists which redacted approximately 98 pages out of 144 to protect some of the manual's more sensitive information. The 44 remaining pages still do a good job discussing IEDs and the philosophy and practice of defeating them.

Eyewash Legislation

In a February 6 post on a local blog, Kevin Richert, Vice President of the Idaho Press Club, stated the Idaho Press Club supports Idaho Senate Bill 1085. Richart asks newspapers for their editorial support for the bill.

Why? Why should newspaper editors and the general public support bad legislation that worsens rather than corrects the existing problems in the Idaho Open Meeting Law?

The proposed legislation co-sponsored by Senator Kate Kelly (D-Boise) and Representative Jim Clark (R-Hayden Lake) would amend Idaho Code Sections 67-2344 and 67-2345.

The amendment to 67-2344(2) would change the wording from "Minutes of executive sessions may be limited to material the disclosure of which is not inconsistent with the provisions of section 67-2345, Idaho Code, but shall contain sufficient detail to convey the general tenor of the meeting," to "Minutes of executive sessions shall be limited to a specific reference to the statutory subsection authorizing the executive session and sufficient detail to convey the general subject matter but shall not contain information sufficient to compromise the purpose of going into executive session."

Kelly and Clark apparently think that more words increase clarity rather than add confusion. They're wrong.

Including the indefinite article "a" before "specific reference" compels the body to cite only one but not all the subsections being invoked as authority for executive session. The word "each" should have been used instead of the indefinite article "a".

There is little meaningful difference between the "general tenor of the meeting" in the original statute and "general subject matter" in the amendment. Both are vague and subject to situational interpretation. The final clause, "shall not contain information sufficient to compromise the purpose of going into executive session," will be interpreted by those already abusing executive sessions as a legal prohibition from disclosing any information beyond the statutory citation.

The amendment to 67-2345 (1) would change the wording from "under this act" to "by specific reference to one (1) or more paragraphs (a) through (j) of this subsection". This is a harmful change since it requires the governing body to cite only one but not all the statutory subsections being invoked to justify executive session.

The amendment to 67-2345(1)(f) changes the wording from "To consider and advise its legal representatives in pending litigation or where there is a general public awareness of probable litigation" to "To communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated. The mere presence of legal counsel at an executive session does not satisfy this requirement." Huh?

Only the last sentence strengthens and clarifies the existing law. The last sentence simply means that a dishonest city council or other dishonest body can't invoke attorney-client privilege as the reason for an illegal executive session merely because the city attorney has been invited in to have a slice of pizza with the gang. The amendment adds cover rather than clarity when it allows the governing body to subjectively decide what issues are "controversies not yet being lititated but imminently likely to be litigated." Define "controversies", and explain when one is "imminently likely to be litigated."

The amendment to 67-2345(1) adds subsection (j) which allows executive sessions to be held "To engage in communications with a representative of the public agency's risk manager or insurance provider to discuss the adjustment of a pending claim or prevention of a claim imminently likely to be filed. The mere presence of a representative of the public agency's risk manager or insurance provider at an executive session does not satisfy this requirement." In other words, the governing body is allowed to hide an existing or anticipated claim from the public by going into executive session. Exactly how does adding more exemptions improve openness in government?

This legislation co-sponsored by Kelly and Clark and endorsed by the Idaho Press Club has the effect of empowering dishonest elected and appointed officials to conduct more of the public's business in secret. It does nothing, absolutely nothing, to correct the underlying problems in the Idaho Open Meeting Law. I outlined some of those problems and some suggested solutions in my blog post titled Executive Session - Shell Gaming the Public.

Until the Idaho legislature admits that a significant number of public officials will knowingly, willfully, and intentionally try to circumvent the Idaho Open Meeting Law to deprive the electorate of information we need to hold those public officials accountable and to contribute to the formulation of good public policy, changes like the ones Kelly and Clark propose are eyewash.

Until the Idaho legislature admits that county prosecuting attorneys are not held accountable for the quality of their investigations of complaints of open meeting law violations and imposes mandatory Attorney General review of all open meeting law complaint dismissals, changes like the ones Kelly and Clark propose are eyewash.

The Idaho legislature needs to do one of two things: Either get serious about revising and enforcing the Idaho Open Meeting Law or repeal it. Kelly, Clark, and the Idaho Press Club can put lipstick on this pig, but it's still a pig.

Serial Meetings: Intentional Evasions of Law

Kootenai County prosecuting attorney Bill Douglas was unwilling to prosecute a blatant violation of the Idaho Open Meeting Law (IOML). Since he didn't prosecute the relatively obvious offense, it is reasonable to wonder if he has the skill or will to recognize and prosecute a more complex and sinister evasion, the serial meeting. Participating in a serial meeting acknowledges the participant is knowingly engaging in behavior intended to evade the IOML and deprive the public of the law's protections.

A serial meeting is a conscious attempt to evade the IOML by dividing the public body into groups smaller than a quorum. The smaller groups meet in some manner, deliberate and often arrive at a decision, then reassemble as the entire body in a public place to "deliberate and vote" so the public is misled into believing the public's business was conducted in the public meeting. Of course, it was not. This serves to deny the public any opportunity to observe government operations so elected and appointed officials can be held accountable, the very opportunity the IOML is intended to assure.

Here's one simple example of a serial meeting: Councilmember A meets with Councilmember B and discusses an item that is currently or is expected to be in front of the Council. Councilmember B delivers the A+B consensus to Councilmember C who agrees and delivers it to Councilmember D. Councilmembers A+B+C+D constituted a quorum, but they did not physically "meet" as a quorum in the same space or time. Still, they conducted an illegal serial meeting. They effectively met, deliberated, and arrived at a decision (euphemistically called a "consensus" by public officials who try to rationalize their violation of law) when public attendance was impossible.

A serial meeting need not be a face-to-face meeting or even occur in real time. It can be a series of communications (direct communication, personal intermediaries such as staff members, or technological methods such as E-mail or telephone calls), with each unique communication involving less than a quorum, but which taken as a whole involves a majority of the body’s members. A serial meeting occurs when there are systematic communications on a particular matter involving a quorum of the body acquiring information, engaging in debate, discussion, lobbying, or any other aspect of the deliberative process.

My blog post of Sunday, November 19, 2006, titled Explosions Shake Coeur d'Alene Place Home, used Coeur d'Alene Councilmember Dixie Reid's own words uttered at the November 7, 2006, Coeur d'alene City Council Meeting to illustrate how a majority of the Council had conducted a serial meeting via telephone in October wherein it agreed to approve an event permit to a private contractor. The event was to be held on November 3. The Council unanimously (absent: Edinger) "ratified" October's illegal serial meeting by voting in public on it on November 7, four days after the event on November 3. The after-the-fact "ratification" of the earlier serial meeting denied the public the opportunity to challenge the permit and prevent its harmful effects.

Though Idaho's law is far less rigorous than California's, we ought to learn from the experiences of California. The California First Amendment Coalition has published a very detailed explanation of the intricacies of that state's open meeting laws. One segment of that publication, The Brown Act: Open Meetings for Local Legislative Bodies, is linked here. Serial meetings are discussed in Section 2 of that publication.

The Idaho Open Meeting Law needs to be revised.

First, the legislature needs to recognize, correct, and prohibit technical evasions that encourage serial meetings. The present law seems to have been enacted in 1974 with an underlying presumption that public officials would voluntarily and willingly comply with a law they understand. The law needs to be revised with a new underlying presumption: Some public officials will intentionally and knowingly seek ways to evade the Idaho Open Meeting Law so they can conduct the public's business in secret.

Second, the legislature must compel county prosecutors to investigate allegations of IOML violations aggressively and honestly. As a minimum, the complainant must be required to make a complaint of an IOML violation under oath or affirmation. Any statements of witnesses and suspected offenders must likewise be taken under oath or affirmation. Lying on a material matter under oath or affirmation by the complainant, a witness, or an accused is perjury.

Under my proposed revisions, any decision of the county prosecutor to dismiss the IOML complaint would have to be submitted within five working days after dismissal to the Idaho Attorney General's (AG) office for review. No exceptions. The AG’s review would include an examination of the sufficiency of the prosecuting attorney's investigation as well as the applicability of the law and appropriate use of prosecutorial discretion. The public is entitled to know if its elected prosecuting attorney conducted a thorough and diligent investigation.

The legislature gets an important benefit from the requirement for an AG review. Since the AG would be reviewing all dismissals, the AG would be better able to identify weaknesses or defects in the law (as opposed to factual insufficiencies in the specific complaint) so the legislature can correct them expeditiously.

The IOML needs to be revised so that dishonest public officials are severely and personally penalized when they use or allow serial meetings or other evasive techniques to conduct the public's business in secret. Their actions need to be exposed so the voters can be informed and take appropriate remedial action. A legislature that fails to protect the public by correcting defects in the IOML and its prosecution invites suspicion of its own motives and integrity.

Digital Evidence: Before the Investigators Get There

This Whitecaps post could be sub-titled "What to do before the investigators arrive." It illustrates the need for private industry to be able to recognize and preserve digital media that may contain evidence of criminal or civil misconduct.

On Friday, February 2, 2007, The Spokesman Review staff writer John Craig wrote an article headlined "S-R worker may have downloaded child porn". The subhed was, "Web employee fired after images found on two company computers". Craig's article briefly describes how the newspaper's staff discovered and then preserved the evidentiary value and admissibility of the digital evidence. A more complete discussion of the newspaper's procedures is available in the paper's "The Transparent Newsroom" blog under the headline Mud bath anyone?. Scroll down in that piece to the hyperlink "the video" and watch it. Make sure your sound is on.

The newspaper's experience shows that private sector businesses would benefit from talking with their attorney about their duties and responsibilities to preserve digital material. They should have a simple but effective process in place that prepares key employees (including all supervisors) to recognize obvious evidence and preserve it properly when necessary. In most instances, doing little is far better than trying to do too much. It is not the employee's responsibility to become crime scene investigators. It should be their responsibility to preserve, not process, digital evidence. The staff at The Spokesman-Review did it correctly.

In preparing employees to recognize and preserve digital evidence, employer training officers may wish to consult the guides prepared by the National Institute of Justice. These guides are intended for investigators and prosecutors, but the material would help a corporate training officer better understand what the company's employees should do and what they must never be expected to do. Here are links to the four existing guides:

• Electronic Crime Scene Investigation: A Guide for First Responders
• Forensic Examination of Digital Evidence: A Guide for Law Enforcement
• Investigations Involving the Internet and Computer Networks
• Digital Evidence in the Courtroom - A Guide for Law Enforcement and Prosecutors
  
  Two more guides are being prepared and will address using advanced technology to investigate and creating a digital evidence forensic unit.
  
  
  

Digital Evidence in the Courtroom - A Guide for Law Enforcement and Prosecutors

Presenting digital evidence in court is a challenge for the law enforcement investigator who identified, collected, and preserved it. That challenge continues for the investigators and the prosecutors who must convince the judges evidence is admissible. It is equally challenging to present digital evidence to jurors without overwhelming them with technobabble.

To help investigators and prosecutors succeed in the digital era, the National Institute of Justice has published its fourth digital evidence guide, this one titled Digital Evidence in the Courtroom - A Guide for Law Enforcement and Prosecutors. It was released in January 2007.

The guide covers:

• Search and seizure areas
• Integrity, discovery, and disclosure of digital evidence
• Courtroom preparation and evidence rules
• Presentation of digital evidence
• Application: Child pornography
• Resources and links
• Electronic Communications Privacy Act disclosure rules
• Sample consent forms
• Stipulation regarding evidence returned to the defendant
• Glossary of terms