The revised scope drew a sharp rebuke from retired Superior Court Judge LaDoris Cordell, a former city councilwoman who had previously served as an independent police auditor in San Jose. She noted that the decision of whether a given incident constitutes a "personnel matter" is often a subjective determination, made by the Human Resources Department itself. Unless the language is clarified, the department will be able to classify incidents of police misconduct as "personnel matters" and, in doing so, screen them from public scrutiny.

Shikada disputed reports that the proposed changes raise concerns about a lack of transparency and argued that, in fact, they reflect the city's commitment to being open and transparent. To reassure the council, he said that he and Jonsen plan to release a supplementary report in conjunction with the audits, summarizing any incidents that fall beyond the scope of the independent review. Given that it will be the city itself – and not an external auditor – who will be issuing that supplementary report, Shikada and Jonsen will have full discretion in deciding which incidents to include in that report.

The change means that disputes that involve two officers — including a recent incident in which a police captain was accused of using a racial slur — will be shielded from external reviews. Instead, they will now be privately investigated by the Human Resources Department and screened from the public.

By a unanimous vote, the council approved a recommendation from City Manager Ed Shikada and Police Chief Robert Jonsen to approve a new three-year contract with OIR Group, a Los Angeles-based firm that for more than a decade has been providing biannual audits of the Police Department, which include reviews of every Taser employment and Internal Affairs investigation. But while Shikada characterized the new contract as essentially a continuation of the existing scope of services, the agreement does include one clause that the prior one did not: a determination that "complaints and investigations of internal personnel or human resources matters are not part of these Independent Police Auditor Services."

City Attorney Molly Stump argued that the new clause is important because the city has "an overriding interest in protecting the privacy of sworn personnel so that these employees can do their work without concern about risk or intrusions into their personal and family affairs."

"I feel the process today that we're currently working under has some gaps and that's what we're trying to rectify — to make this fair, transparent, equitable and legitimate," Jonsen said.

Jonsen pushed back against the characterization. Rather than reducing transparency, the revised scope — when coupled with the new supplementary reports — seeks to address some "gaps" in the existing system, he said.

She alluded to recent accusations against Capt. Zach Perron, who was alleged to have uttered a racial slur to another officer. Language in the new contract should make clear that such conduct must be properly classified as "misconduct" and investigated by internal affairs.

His colleagues agreed, even as they expressed some concerns about the fact that OIR Group has not released any audits since October 2018. While Jonsen attributed the delay to the auditor needing more time to get information from the city and reach a conclusion, Michael Gennaco of OIR Group told the Weekly in July that the firm was expecting to release an audit in the summer. Gennaco also said in September that the audit was delayed because his firm was awaiting direction from the city.

The council, however, sided with Shikada and Jonsen, with several members arguing that not every personnel issue warrants an independent review. Mayor Eric Filseth pointed to a hypothetical case in which an employee sees a co-worker watching cat videos on their computer. Is this really the kind of issue that an external audit should be exploring, he asked?

"At a time when the city needs to up its police accountability, the contract seems vague and wrong-headed, especially when the state grants greater privacy rights to sworn and in-uniform officers than it does to the public," Dellenbach said.

While the council agreed, some residents of the public took issue with this determination. Winter Dellenbach argued that under the new rules, Human Resources will "investigate in total secrecy, eroding transparency and accountability." Complaints generated by officers should be handled by an independent auditor, she said.

"In addition, the City has an obligation to maintain a confidential human resources system, so that employees feel safe coming forward to make complaints or to provide information in an investigation that involves their co-workers or supervisors," a report from the City Attorney's Office states.

"There is an issue of diffusion of accountability and I think there's a fair argument that some incidents should absolutely be audited by an independent auditor and some should be handled by the regular channels in the HR Department," Fine said.

Despite some reservations, the council approved Shikada's plan. Councilwoman Liz Kniss said the city is walking a "fine line" in deciding between privacy and accountability. Vice Mayor Adrian Fine, who made the motion on Monday to approve Shikada's recommendation, agreed but nevertheless voted to approve the revised scope.

Gennaco also indicated in an email to the Weekly on Monday night that his firm's next report will address the issue of whether it's appropriate for the city's own Human Resources Department to handle internal personnel issues.

Palo Alto to shield internal police conflicts from independent audits

New contract with independent auditor draws criticism for excluding certain cases of officer misconduct