West Linn Police Chief Terry Kruger repeatedly and vigorously defended his department’s questionable arrest of a Portland man during private meetings before the mayor and City Council, newly released documents show.

Kruger’s comments in the closed-door executive sessions appear to contradict more recent public statements distancing himself from the controversial 2017 arrest of Michael Fesser on unwarranted theft charges.

They also raise questions about the chief’s statements to The Oregonian/OregonLive this year that he had recused himself from the case as soon as the Fesser litigation “was brought before me.’’

Kruger, though he wasn’t chief at the time of the arrest, has had to handle the fallout after Fesser earlier this year won a $600,000 settlement from West Linn for the bungled police investigation. In February, Kruger placed the detective involved in the arrest, now a sergeant, on paid leave, and then at a packed City Council meeting in March called Fesser’s allegations deeply disturbing and said he would not “tolerate racial or any other bias'' in policing.

But two years before, Kruger forcefully denied any wrongdoing by West Linn police in response to Fesser’s allegations.

Kruger had received Fesser’s notice of intent to sue the city his first day on the job as chief, June 4, 2018. In the notice, Fesser outlined his wrongful arrest allegations and specific claims of discrimination, referenced a series of racist and crude text messages between Fesser’s former boss and the lead West Linn detective on the case and how the investigation was launched by a former West Linn police chief who was chummy with Fesser’s boss at the time.

During two subsequent council executive sessions, on Sept. 4, 2018 and Feb. 19, 2019, Kruger addressed the mayor and council members, calling the West Linn investigation of Fesser legal and warranted. He said the inquiry was done to help out a West Linn resident, Fesser’s employer from A&B Towing Co. Kruger never named the man and never mentioned in the executive session that he also had personal ties to him.

“It's not an illegal investigation. There wasn't illegal surveillance. It wasn't an unlawful arrest. There wasn't a violation of his civil rights. These are the allegations. But it was a legitimate investigation,’’ Kruger told the council at a Sept. 4, 2018, closed-door meeting.

“There was probable cause. They did arrest him lawfully. He was indicted for crimes.’’

Comments at executive sessions typically remain private under Oregon law, but the West Linn City Council this week voted to release transcripts of five of their closed meetings that dealt with the Fesser litigation. The Oregonian/OregonLive obtained them through a public records request.

Fesser’s arrest has become the focus of at least four investigations by local, state and federal authorities. A group of West Linn residents has called for sweeping changes at the police department, including Kruger’s resignation.

Kruger said Thursday that he was only relaying to the council what others had told him about the Fesser investigation.

“I recused myself from the investigation,” he said in an email. “I only shared with Council what I was told; as the Department head, I too was briefed.”

The transcripts covered executive sessions held on July 2, 2018, Sept. 4, 2018, Feb. 19, 2019, Dec. 5, 2019, and this past Feb. 10.

They also showed that the attorney for West Linn’s insurance company, which negotiated the settlement with Fesser, downplayed the offensive text messages and only met with the mayor and City Council once. At that council executive session, he advised the council that the text messages didn’t indicate police misconduct.

Yet, according to the transcripts, the local city attorney in February of this year relayed the insurance provider’s recommendation to settle Fesser’s lawsuit, saying it would be preferable to allowing all the details of the case to come out at trial.

'Would they do it for any citizen or just a friend?’

The Fesser arrest and the revelations his lawsuit brought have thrown West Linn government -- and Kruger’s police force in particular -- into a tailspin. Fesser’s lawyer has called the Portland man’s treatment by West Linn police a classic example of ‘old-boy-style racism.'’

The city’s officers investigated Fesser even though he lived and worked in Portland and had nothing to do with West Linn. West Linn police became involved at the direction of former Police Chief Terry Timeus. Timeus was a fishing buddy of West Linn resident Eric Benson, who happened to be Fesser’s boss at A&B Towing Co. in Southeast Portland.

Benson accused Fesser of skimming money from the towing company. Fesser said Benson targeted him because he had complained about racist comments and harassment at work.

On the night of Fesser’s February 2017 arrest, Benson exchanged texts with West Linn Detective Tony Reeves using racial epithets. Reeves sent back homophobic and crude messages.

All charges eventually were dropped against Fesser and he also won a $415,000 settlement from Benson and A&B Towing for discrimination.

Kruger entered the picture when he took over as West Linn police chief in June 2018.

In a fall 2018 executive session, several council members, including then-Council President Brenda Perry, questioned why West Linn police would investigate a theft case in Portland.

“Why were West Linn (police) so involved in this when this was (a) Portland thing?’’ Perry asked. “Would they do it for any citizen or just a friend?’’

Kruger said police investigated Fesser to help out Fesser’s employer, A&B Towing. He pointed out that the company also did business with the city of West Linn and was owned by a West Linn resident.

Kruger told Perry that West Linn police powers are good statewide. When Portland police couldn’t pursue an investigation, West Linn police assigned a detective, Kruger told the council.

“I would say it's not out of the ordinary for a resident who has business dealings within the city, who looks to be a victim of a crime, who can't get investigative resources in the jurisdiction he's in, just due to overload, to assign detectives to look into it,’’ Kruger told the council in the September 2018 session.

Kruger, a retired Portland police lieutenant, told the council then that it would have been ideal if Portland police would have pursued the theft investigation into Fesser when West Linn alerted that bureau, and he would have used every “favor, friend and network I had,’’ to press Portland police to run with the case. When that didn’t happen, what West Linn police did was “not unlawful, is not unethical,’’ he added.

The transcripts indicate that Kruger was familiar with the details of Fesser’s arrest and investigation, and eagerly defended West Linn police actions before the council, though he told The Oregonian/OregonLive that he had recused himself from the case when Fesser’s litigation “was brought before me” because he knew Benson.

Kruger didn’t name Benson and didn’t mention at either of the two executive sessions he attended related to the Fesser case that he also had personal ties to Benson. Other city records released earlier this year revealed that Kruger was a personal friend of Benson’s. Kruger subsequently told The Oregonian/OregonLive that he met Benson through a mutual friend of his son’s.

He told The Oregonian/OregonLive on Thursday that he told the city manager, the city attorney and city labor lawyers, among others, that he had stepped away from the case because of his ties to Benson, “and I believed the council already knew.”

Several council members said they were unaware of Kruger’s ties to Benson.

‘There’s some text messages that I wish didn’t exist’

The executive session transcripts also reveal that Andrew Campbell, the attorney for the city’s insurance provider City County Insurance Services, acknowledged that the text messages on the night of Fesser’s arrest were “problematic,” during his sole closed-door meeting with the council in February 2019.

But Campbell told the council he was confident that a jury would understand that “we all make mistakes.’’

"There's some text messages that I wish didn't exist,’’ Campbell told the council.

He said he started out as a Marion County prosecutor handing homicide and violent crime, explaining that: “I've spent my entire career dealing with police officers, and we all make mistakes.”

“But frankly I don't think any of that is really strong evidence that any of the officers did anything wrong,’’ Campbell said.

He said the text messages contained “some fairly colorful language’’ but made little reference to the racist or homophobic statements.

Campbell said he considered the Fesser suit a “fairly defensible case’’ and a “fairly strong case for the city of West Linn,’’ even noting that he was excited about defending it, allowing him to return to his roots and litigate a mini-criminal case inside a civil case.

“In this case, we've heard about these text messages. I'll tell you, I've read them. And the only fault I can think of for the West Linn officers is the offensive words are coming in and the West Linn officers aren't saying, ‘Whoa, Whoa, Whoa, that's inappropriate,’” Campbell said.

“The West Linn officers aren't saying things, I can't say unqualified, but for the most part, they're not volunteering inappropriate things,” he said. “For the most part, they're dealing with a witness who has a colorful vocabulary.”

Jon Stouffer, the insurance provider’s risk analyst, was at the executive session with Campbell and said “the big parts of the case are those texts. But those judges are all good at understanding what the real issue is and won't be distracted by those texts. The jury might be, but I think even the juries will understand it as well.’’

‘Drama we don’t need’

In the executive sessions, local city attorney Tim Ramis told the council that police had probable cause to arrest Fesser, but that the charges were dismissed as part of a civil compromise between Fesser and A&B Towing, largely because of some questionable correspondences that were discovered.

Ramis didn’t mention the police involvement in the messages.

“It turns out there are apparently emails (sic, they were texts,) where the employer's not very careful about his own attitudes and about political correctness in those communications,” Ramis said.

“And I think the DA's office, our understanding is, that they reached a conclusion that's not the sort of thing you want to put in front of a jury in a case,’’ Ramis said, without going into further detail.

At the executive session earlier this year when the $600,000 settlement was discussed, the council was briefed by Ramis, West Linn Capt. Pete Mahuna and interim city manager John Williams.

Ramis and Williams both relayed that it was the insurance provider’s recommendation to accept the settlement. No one from the insurance company attended the session.

“That while $600,000 is a lot of money and it's unpalatable in many ways,’’ Ramis said, “there's also good reason to avoid going to trial on the issue and exposing all of the evidence that there is on the case.’’

Williams added, “He was pretty clear that he felt this was a good number to settle at considering the amount of risk that is out there getting into a jury trial, from my understanding.”

Council President Teri Cummings commented that a trial could “open the door to so much drama.’’

Mayor Russ Axelrod, who was personally served with Fesser’s notice of intent to sue in 2018, chimed in: “Drama we don’t need.”

Mahuna wondered if the city could keep the settlement amount private.

“Is there any way to close the agreement once it’s signed to say we’re not going to give a dollar amount out to the media or something like that?’’ he asked.

Ramis said he’d look into that.

The City Council, in fact, never voted on the settlement publicly, contending it was a matter agreed upon by its insurance provider.

The Oregonian/OregonLive revealed the settlement after speaking with Fesser’s lawyer, obtaining copies of depositions taken for the lawsuit, as well as the full text messages.

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TRANSCRIPTS OF WEST LINN CITY COUNCIL EXECUTIVE SESSIONS RELEASED:

July 2, 2018

Sept 4, 2018

Feb. 19, 2019

Dec. 5, 2019

Feb. 10, 2020

Statement from West Linn attorney’s office

-- Maxine Bernstein

Email at mbernstein@oregonian.com; 503-221-8212

Follow on Twitter @maxoregonian

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