DENVER — The FOX31 Problem Solvers have learned Mayor Michael Hancock’s administration has prevented the city’s Office of the independent monitor from having anything to do with two current cases involving Denver police Chief Robert White and Denver Sheriff Patrick Firman.
Public Safety Director Troy Riggs said he’s following the City Charter based on a legal opinion he received from the City Attorney’s Office.
But Independent Monitor Nicholas Mitchell said the city’s new legal opinion isn’t consistent with past practice.
“As independent monitor, I strongly believe that it is in the city’s best interest for my office to provide oversight of investigations into the chief of police and sheriff, as it has done in the past,” Mitchell said in a statement.
Mitchell points out that in the past, his office participated in one investigation of former chief Gerry Whitman, one of former Sheriff Gary Wilson, six of former Sheriff Elias Diggins and four of White.
In addition, his office monitored and made recommendations about two additional recent incidents involving White but was not allowed to recommend disciplinary findings in those cases.
Mitchell referred to city ordinance 2-374 (b), which states: “The monitor’s office shall also have the discretion to monitor any internal investigation by the police or sheriff department as to which the monitor’s office believes it is in the city’s best interest for the monitor’s office to be involved.”
City leaders refuse to say what White is being investigated for, but on April 24, the day he announced his retirement, he said, “Tell your investigative team not to be so judgmental. Wait until the facts come out. I’m very comfortable that they will be resolved in my favor.”
Firman is the focus of a complaint filed by Lisa Calderon of the Colorado Latino Forum.
She filed a complaint in March accusing Firman and others of sabotaging her jail re-entry contract with the Denver Sheriff’s Department to provide transition services to inmates as they’re released.
Calderon had held the contract for 10 years until the city recently decided to put the program out to bid and choose a new vendor operated by Servicios de La Raza.
Calderon has since filed a federal lawsuit against the city alleging political retaliation.
Calderon and the Colorado Latino Forum are pushing a May 2019 ballot initiative that would make the sheriff an elected position in Denver instead of a mayoral appointee.
In the meantime Calderon said it might be time for city council members to approve a charter change to make it explicit to the city attorney not to obstruct the work of the independent monitor.
“The City Attorney’s Office often changes the rules as it sees fit to protect Mayor Hancock’s appointees from wrongdoing,” Calderon said.
Whether it’s the police chief, sheriff or even the mayor himself, the city attorney interprets the rules in favor of protecting the administration rather than serving the interests of the people of Denver.”
“When the Independent Monitor’s Office was created, it was with the community expectation that it serve as the oversight entity in matters of public safety no matter who the wrongdoers were, including those at the very top.”
The current legal dispute between the Office of the Independent Monitor and the city attorney follows an April 9 decision by Hancock to clear White in two cases.
One case involved a hit-and-run where White was the victim but followed the driver who hit him. He was investigated for possibly violating the department’s pursuit policy.
The other involved an open records request where White was accused of not complying with the department’s public records policy.
The mayor exonerated White in both cases.
While the independent monitor was allowed to be involved in the early stages of both cases, Mitchell was not allowed to recommend any possible discipline.
Now, Mitchell isn’t being allowed to monitor either current case involving White or Firman.
It was the involvement of Mitchell in the 2015 jailhouse death of inmate Michael Marshall that led to policy changes at the downtown jail.
Mitchell released a scathing report in March that revealed Internal Affairs originally determined no wrongdoing from deputies despite a chokehold-like restraint that led to Marshall’s death.
The city would later settle with Marshall’s family for $4.65 million and suspended three sheriff department employees.
All three employees appealed their suspensions to the civil service and won.
The city of Denver is appealing the decision that overturned the suspensions.
Riggs said the independent monitor has no jurisdiction over mayoral appointees.
“They are at-will employees appointed by the mayor so they’re not afforded the protection of civil service,” he said.
Riggs points to a different section of the city municipal code that states, “The monitor’s office shall actively monitor and participate in certain investigations of uniformed personnel … ‘uniformed personnel’ means all members of the classified service.”
“I have taken an oath to follow the charter to follow the laws. That’s the legal opinion I have. It’s as simple as that,” Riggs said.
But when asked why the independent monitor was allowed to be involved in past investigations concerning the police chief and previous sheriffs, Riggs said, “That’s not my call, that’s something that we have to let the attorneys look at.”
A day after Riggs’ interview with Fox 31, his spokeswoman, Daelene Mix, said the public safety director and the city attorney recognize there is some confusion about the independent monitor’s jurisdiction.
Mix said the City Attorney’s Office was working on legal language to craft a new policy within the Department of Public Safety that would further clarify the Independent Monitor’s Office has no jurisdiction to participate in investigations concerning mayoral appointees. Mix says the reason the Independent Monitor was allowed to participate in past cases was because prior sheriffs and chiefs came through the ranks of the department and therefore enjoyed civil service protection that mandates the inclusion of the Independent Monitor in internal investigations. But that ignores the fact that the Independent Monitor was involved in past cases concerning Chief White’s conduct. Both Chief White and Sheriff Firman were outsiders appointed by the Mayor to lead their respective departments. Mix told the Problem Solvers that a new policy created by the Department of Safety will further define when the Independent Monitor can be involved in investigations of the agency’s top leaders.
Doing it this way means the city avoids the need to get permission from voters if it were to change the City Charter or the need to get city council approval if it were to amend the city’s municipal codes. But Mix insisted making the city’s position a Public Safety Department policy, as to when the Independent Monitor has jurisdiction, should not be construed as an attempt to avoid transparency by the City of Denver.
Still, such a move is already drawing criticism from the Citizen Oversight Board.
It’s chairwoman, Katina Banks, said past investigations of Denver’s chiefs of police and sheriffs have always been subject to the standard course of oversight from the Independent Monitor’s Office.
She said she doesn’t understand why that the city’s position has apparently changed.
“The Citizen Oversight Board is troubled that major investigations were concluded without the involvement and input of the independent monitor,” Banks said in a statement.
“This invites a double standard in which rank-and-file officers are subject to a higher level of scrutiny than their leadership, and compromises public trust in the process.
Oversight of law enforcement in Denver must be independent and unobstructed.”
Four business days after the Problem Solvers asked the Mayor’s office to respond, we received an email from the Mayor’s spokesperson Amber Miller stating, “The previous Executive Director of Safety made a discretionary decision to involve the OIM in Chief White’s previous discipline matters, but this is not a requirement under the Charter or OIM ordinance. The OIM provided very valuable oversight into this recent investigation, which allows for confidence in the information considered, but the Mayor is the sole decisionmaker when it comes to appointees.”