Skip to Content
By PORAC | June 1, 2018 | Posted in PORAC LDF News

Richmond Police Captain’s Termination Overturned On Appeal To City Manager

Messing Adam & Jasmine LLP

After an accomplished 23-year career as a police captain, the last words one expects to read in a letter from the city manager are: “You’ve been terminated because you are a liar.” Yet that was Captain Mark Gagan’s fate, laid out in a November 22, 2017, letter from the Richmond, California, city manager. How did Gagan get to this point? And, more importantly, with a family and mortgage, where would he go from here? Gagan’s story is both cautionary for officers appearing at administrative interviews and instructive for their representatives preparing and presenting their defense at a Skelly hearing and beyond.

In 1994, after graduating the police academy, Gagan began his career with the Richmond Police Department. He worked patrol until 1999, when he was promoted to sergeant. After working for several years as a detective in the family services unit and as a team sergeant working patrol, he was promoted to lieutenant. From 2003 until early 2017, among other assignments, he worked as one of Richmond P.D.’s several public information officers (PIOs), whose numbers during that period varied (between three to five officers), as did their duties (lead, administrator, etc.) depending on their rank (sergeant, lieutenant, captain or assistant chief). The overall purpose of the PIOs is to present a coordinated message to the media and public (through television and print interviews, press releases, social media, etc.) about events involving or relevant to the Richmond P.D. During his tenure, Gagan became well-known to reporters as an easily accessible PIO who was guaranteed to provide them clear and accurate information. Perhaps oddly, it was his reputation for accessibility and transparency that became the cornerstone of the Department’s charges against him. In 2010, Gagan was promoted to, and served as, captain until he was fired shortly before Thanksgiving 2017.

So, why did his Department brand this well-known, well-liked “Boy Scout” a liar? The real story begins in late October 2016. After a local official reported himself the victim of a robbery, the attending sergeant completed his investigation and drove the official home, rather than allowing the official to drive himself. When his initial report made no mention of why he’d driven the official home, the sergeant was directed to draft a supplemental report. Soon thereafter, in her television news story on the incident, a local reporter alleged that a “source” within the Richmond P.D. had provided her with the supplemental report. The Richmond P.D. then commenced an internal investigation to uncover the “leak.”

Although notice of his May 25, 2017, administrative interview advised that he was a “subject officer” in the P.D.’s investigation of the release of “confidential information,” Gagan, assured of his innocence, appeared at his interview without a representative. But he soon found himself woefully unprepared for what would be an almost hour-and-a-half-long interrogation by his two questioners. In a classic “box him in” strategy, Gagan was repeatedly asked whether he knew the reporter who’d received the report, to which he responded he did not. He was repeatedly asked whether he’d communicated with her, to which he responded he had not. After committing Gagan to his answers, the interviewers then presented him with records from his Department phone, which showed several one- to two-minute calls from and to what was determined to be the reporter’s phone number in February 2016, as well as a five-minute phone call from her in late October 2016 — just days before the reporter referenced the leaked supplemental report in her television report. How could Gagan say he didn’t know the reporter when, right there in black and white, his own phone records showed he’d communicated with her?

The interviewers also dug hard into Gagan about the supplemental report. They asked him a multitude of questions: Had he ever “seen, read, obtained, given, been asked to give, faxed, etc., etc.” the report? All to which he responded he had not. They then produced a database login report that showed that only days before the reporter discussed it on television, he had logged into the system where the supplemental report was kept. Why was Gagan in the database?

By the time he received notice for a second interview — this notice specifically alleging that he had not been truthful and had disclosed confidential information — Gagan wisely asked the Legal Defense Fund to provide him legal representation, and Paul Bird of the San Francisco office of the Messing Jasmine & Adam LLP firm was assigned his case.

Gagan’s second interview on August 30, 2017, consisted mainly of the interviewer going over Gagan’s answers from the first interview: “Did you say you don’t know the reporter?” “Did you release the supplemental report?” and so on. The interviewer, however, had an additional piece of evidence: a screenshot of a text from the reporter to Richmond’s chief of police with a date/time stamp of just days before her televised report (and only minutes after her late October 2016 call to Gagan that was reflected in his Department telephone records). The start of her text stated, “Mark Gagan suggested I contact you directly.” If he did not know her, why did the reporter say that Gagan had told her to text the chief?

In its October 11, 2017, notice of Gagan’s Skelly hearing, the Department advised that it would seek to terminate him on the grounds that he had lied about knowing the reporter and had released the supplemental report “apparently designed to embarrass an elected official.” The Department relied on its investigator’s 109-page report in which the investigator had sustained these same charges.

At Gagan’s Skelly hearing, which occurred on November 7, I argued that Gagan, who had had contact with innumerable reporters over his 14-year career as a PIO, could not possibly have been expected to remember a reporter he had never met in person and with whom he had only had brief telephone interactions, the last of which occurred almost seven months before his first administrative interview in May. Further, I argued, the City had failed to establish that Gagan ever had accessed the supplemental report, much less provided it to the reporter. The Skelly hearing officer, who was the chief who had received the text from the reporter, was unmoved and recommended termination, with which the city manager concurred on November 22.

In the months leading up to the April 6, 2018, grievance hearing — delayed several times because of various scheduling conflicts — we scoured the record and racked our brains to figure out how to convince the city manager to change his mind and go against his own disciplinary system to reinstate Gagan as a Richmond police captain. How does one defend a client who has stated in his interview that he does not know a reporter, only to have the interviewer produce phone records and a text message that suggest the opposite?

First, how could we explain why the reporter would have made several calls to Gagan in February 2016? In reviewing the time frame, Gagan noted that the reporter’s calls coincided with the off-duty murder of Richmond police officer Gus Vegas. During that time, he had sent an email to another PIO stating that certain information regarding a memorial fund for Vegas should be provided to reporters, one of whom was the reporter in question. I searched the internet for news reports about the Vegas murder, found only one that quoted Gagan and noted that it was not the same reporter who later obtained the supplemental report. I also found that the reporter in question had quoted other Richmond officers about the murder, but did not quote Gagan. Finally, I found that she — and reporters from other outlets — had used the memorial fund information that Gagan had directed be disseminated to her and the other reporters. Thus, at the grievance hearing we argued to the city manager that Gagan’s contact with the reporter in February 2016 was so incidental that it was reasonable for him not to have remembered it.

Yet, if he doesn’t know her, how could we explain why, just days before her on-air report referencing the supplemental report, phone records reflect she called Gagan for five minutes and then immediately texted the chief? We saw that in her text to the chief, after she introduced herself and said, “Mark Gagan suggested I contact you directly,” the reporter specifically asked the chief, “Can you please confirm the city manager overturned initial discipline for 3 officers who have now been notices [sic] of intent to terminate?” I again searched the internet and found that the reporter had published an online story about the discipline of three officers on the same date that she called Gagan and texted the chief. Therefore, I argued, the reporter was, in fact, contacting Gagan and the chief about the discipline of the three officers — about which she then wrote her story — and not about the supplemental report.

Even so, why would she say in her text to the chief that Gagan had directed her to contact him? Gagan searched his records and found emails from early 2016 in which the assistant chief had directed Gagan and others on the command staff to send all reporters’ queries about the discipline story to either the chief or her. Gagan then also found multiple emails from 2016 in which he had, in fact, directed queries from other reporters about the discipline story to the chief. So, I argued, Gagan was simply doing as he had been told to do, which the reporter stated in her text, and that was to refer to the chief any reporters who asked about the discipline story.

But wasn’t five minutes a long time to be on the phone with the reporter? How could Gagan not remember a five-minute call? We looked again at Gagan’s Department phone records and found that it identified him taking a second call from a different person less than five minutes after the time the records said the reporter had called him. So, I argued, he had actually spoken to the reporter for a period of time that was less than five minutes, as the records simply reflected what must have been a minimum billing of five minutes for the reporter’s call.

Fine, but how do we explain why Gagan accessed the database just days before the reporter discussed the supplemental report on air? From the investigator’s interview with the records clerk, who finalized and uploaded the supplemental report to the database, we knew that Richmond’s database, at the time, would not show which specific document a person viewed and whether they downloaded it. So we knew that there was no record that Gagan had viewed the report, but there also was no record that he had not. This still left us to explain why he had accessed the database. The database contained more than supplemental reports; it contained contact information for parties who have been involved in various actions, among other information. Gagan reviewed his notes from the command staff meeting, held just prior to the date he accessed the database, and found that the chief had directed him to ensure that the address of a party in the previously mentioned officers’ discipline case was flagged in the system. The chief wanted to alert officers to follow certain procedures, if called to that address. As the chief did not provide the specific address, Gagan believed he may have accessed the system to get the party’s correct address to provide to a dispatcher to flag. We then obtained an audio recording from February 2017, made by the Department, of Gagan calling the dispatching center to follow up and ensure that his previous flag request had been instituted. This, I argued, showed that it was entirely reasonable to believe that the reason Gagan had accessed the database days before the reporter obtained the supplemental report was simply to obtain the party’s correct address to then provide to dispatch to flag, as he had been directed to do.

OK, but, if not from Gagan, could we offer any plausible explanation as to who could have provided the reporter with the supplemental report? We noted that the records clerk had stated that once she uploaded the supplemental report to the system, she also emailed it to the robbery and homicide unit and, once emailed, “there’s no way to track where it goes.” Therefore, once she emailed it to the unit, anyone with access to the unit’s email address had access to the report and could review and forward it without being traced. I had to wonder, had any of those people been interviewed? I then requested that the Department produce all recordings or transcripts of all witnesses the investigator had interviewed that the City had not previously provided to us. The Department had already produced audio for all 16 of the witnesses the investigator had identified in his report that he had interviewed or attempted to interview (through her attorney, the reporter had invoked her privilege not to identify her source). But, pursuant to my request, the Department produced four recordings of interviews of witnesses that, surprisingly, the investigator had not identified in his report. Even more surprisingly, one of the witnesses (1) was a member of the robbery and homicide unit, (2) admitted that he was contemporaneously aware of the incident involving the city official as well as the drafting and content of the finalized supplemental report, (3) admitted that he did not care for the city official, and (4) admitted that he had often called the reporter, albeit not on a Department phone. Thus, I argued, there was at least one individual who, unlike Gagan, had an actual motive to “embarrass an elected official.”

On April 6, over a three-hour period, we presented Gagan’s case to the city manager.
And then we waited.

On May 2, City Manager Bill Lindsay let us know by letter that, after considering our presentation, it was his finding that Gagan (1) had not lied and (2) had not released the report to the reporter. Further, he ordered that Gagan be reinstated as a captain with the Richmond Police Department “as soon as reasonably possible.”

Upon learning that the city manager had overturned his termination, Captain Gagan expressed his extreme gratitude that we were able to represent him and to the Legal Defense Fund for allowing us to do so.

We were very fortunate to have Mr. Lindsay hear our appeal and reconsider the termination decision. It would have been very easy for him to politely listen to the presentation, nod his head in agreement and then, once we’d left, simply rubber-stamp the termination. But he listened intently, asked pertinent questions that showed he understood the issues and then objectively evaluated the evidence to make the hard decision to go against the decision that had been recommended to him by Richmond’s disciplinary system.

Sometimes Boy Scouts win.

About the Author

Paul Bird is an attorney with Messing Adam & Jasmine LLP, which predominately represents public safety unions and their members in their labor relations.