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3/22/19 – Newly hired City manager Doug Schulze has been off to a controversial start in Banning – and judging from the latest developments, it’s not getting any better: Schulze’s latest stunt could potentially cost the city millions in liability payouts.

Documents released by the city show that, two months ago, Schulze contracted with a private firm, namely the “Titan Group”, for a “Police Audit”, (click here to view agreement). The contract amount was “not to exceed $24,990” – which is exactly $10 below Schulze’s maximum authority ($25,000) to contract without council approval.

In light of this contract, Schulze proceeded to grant said firm unrestricted access to highly sensitive and protected personnel files of all – yes ALL – 38 Banning Police employees (click here to view the audit document, page 20: “The Audit Team confidentially reviewed all personnel records for all thirty-eight (38) employees of the Banning Police Department”).

Schulze then went as far as to publish the Titan Group’s complete report on the internet.

The published document included an internal affairs investigation case number (pg.21), discussion and detailed criticism of a specific, already closed internal affairs investigation, references to a “minor” witness that was interviewed during this investigation, all of which had the ability to identify the officer being investigated to colleagues and others.

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WAS THE PEACE OFFICERS BILL OF RIGHTS (POBR) VIOLATED ?

The above scenario leads to an important question: were the rights of Police Officers violated?

Pursuant to California Penal Code Sec. 832.7, California Police Officers’ Personnel Files can only be accessed by :

1. Court Order (Pitchess motion)
2. Grand Jury
3. District Attorney
4. Attorney General

.The section makes it clear that a City manager, or even a Police Chief, cannot grant access to Officer’s Personnel Records to anyone not on this list. To do so would violate Penal Code Sec. 832.7.

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STATUTORY PENALTY FOR EACH POBR VIOLATION : $25,000

California Government Code Sec. 3309.5 sets statutory penalties of $25,000 for each incident of malicious access of personnel files. The penalty is payable to the victim.

The audit confirms that the files of all 38 Banning police employees were accessed. This happened due to Schulze giving what appears to be an illegal order to acting Police Chief Vincent Avila, ordering him to provide unrestricted access to any and all personnel files to the Titan Group.

If the order was illegal, Avila had an obligation not to comply. However, Avila followed Schulze’s order with what appears to be deliberate indifference, and with a blatant disregard for his officers rights, even if it meant to violate their privacy and cause them irreparable harm.

It can be argued, that this set of circumstances, in and by itself, points to an act of malice by the City of Banning. The total penalties for potentially malicious acts by City manager Schulze and acting Chief Avila could amount to $950,000 (38 x $25,000).

$950,000 – not exactly chump change for the City of Banning, which is already operating at a 7-figure annual deficit.

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INVASION OF PRIVACY?  HIPAA VIOLATIONS?

The Titan Group is also on record making recommendations on how to assign duties to officers that were injured on the job, instead of sending them home. Such recommendations seem problematic, largely because they require professional medical expertise, which the auditors do not claim to possess.

But this part of the report also raises further pressing questions about officer privacy, as the recommendations were likely based on reviewing actual medical records, presumably without first securing consent from the officers to have their medical records accessed by a non-employing third party.

This scenario therefore suggests that by sharing medical information with a private party, Schulze may have exposed the City of Banning to legal claims of privacy invasion – a very, very serious matter indeed.

Additionally, if HIPAA laws were found to have been violated, the City of Banning could potentially be fined an additional $50,000 per incident, or close to $2,000,000 (“Category 4 Violation” – source), if they allowed unauthorized access to all 38 employee medical records.

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DOCUMENT REDACTED AFTER THE FACT

For over 2 weeks, the Titan Group audit was posted unredacted on the City’s website, accessible to anyone. Then, all of a sudden, the original document was pulled and substituted with a heavily redacted version (see here). No reasons were given for the change.

While this can be interpreted as an admission of wrongdoing on the part of the city, it doesn’t change the fact that all officers’ private records were accessed without due cause.

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CITY ATTORNEY NEVER CONSULTED ON CONTRACT, SCOPE NOR PUBLICATION

According to reliable sources, Schulze entered into the contract without first consulting with the City Attorney. There was no legal review of the contract, nor any legal review of Schulze’s move to grant a private party access to confidential personnel files.

And it seems that only after the damage had already been done, did the city engage in damage control by removing the original document from the city website, and replacing it with a heavily redacted version.

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CONCLUSION

It appears that with the latest hiring of a City manager, Banning has entered into “amateur hour”. Doug Schulze seems completely clueless about California law, and yet doesn’t appear to see a need to obtain legal advice prior to making important decisions.

Additionally, Schulze has no qualifications running a Police department, and should have waited for the newly hired Chief to arrive to make professional assessments about any personnel matters.

But instead, know-it-all Doug Schulze decided to throw caution to the wind and shoot from the hip. We predict that the resulting blunder will now cost the taxpayer millions. Stay tuned for part two of this story.

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