Witt Says Police Poll Could ‘Trample’ Rights

San Diego City Atty. John Witt on Wednesday said he was worried that the Civil Service Commission may be going too far and could “trample” on individual rights during its investigation into whether some police officers are subjected to intimidation by their superiors.

Witt’s comments come one day after commissioners announced the scope of their investigation, which includes sending 2,000 confidential questionnaires to current and former officers to see if they were harassed or intimidated for filing disability claims or testifying against the Police Department in disciplinary actions.

The commission voted last month to investigate allegations of harassment brought by Patrick J. Thistle, attorney for the Police Officers Assn. Since then, the commissioners have been at odds with Witt over how to proceed. Witt has vigorously opposed a proposal by commissioners that they hire outside counsel rather than rely on his office for advice.

On Wednesday, Witt said he had concerns that the scope of the commission’s investigation could be broader than what is allowed by the City Charter, which limits the commission to examining the conduct of “classified,” or non-management, police officers.

“There is no indication that they’re limiting their inquiry to that,” Witt said.

In addition, the city attorney also said he is not sure whether the questionnaires themselves could be kept confidential under the state’s Open Records Act. That would mean people accused of wrongdoing in the questionnaires might be able to sue the city for civil rights violations if the charges become public, he said.

“If an individual’s name is used (in the questionnaires) and misconduct is alleged, he’s entitled to certain protections under the Constitution,” Witt said. “If he doesn’t get them, then the possibility exists of civil rights action under the federal civil rights laws.

“There could be implications of liability to both the city and individual commissioners if they trample on the constitutional and statutory rights of people in the process.”

Witt said he is also concerned that commissioners didn’t consult with his office before announcing their guidelines, which include 17 areas of inquiry.

“I’m always concerned when a client takes a step that has legal implications and doesn’t consult with us,” Witt said.

The city attorney said his office is analyzing the scope of the commission’s investigation plan and will forward its comments to the panel, along with a written opinion on whether it has the right to hire outside counsel.

David Lewis, one of the two commissioners who will conduct the investigation, said Tuesday that he and his colleagues “would be more than interested in hearing from” Witt about the scope of the probe.

Asked why commissioners didn’t consult with Witt before making their announcement, Lewis said: “The commission’s not mad at him, but the commission is very determined that city employees and the public understand that this is a serious, independent inquiry.”

Lewis said commissioners believe that the investigation guidelines, which also include closed-door hearings, concern classified employees, as required by the City Charter. He said there may be some discussion of unclassified employees but “as long as we’re not investigating unclassified employees, I don’t know if that would be a problem.”

The commission has also announced that it would begin holding closed hearings, possibly by the end of the year, with Thistle being the first witness.

The noisiest fight between Witt and the commission has been over whether the panel can hire outside counsel. Lewis has said outside counsel is needed because at least one of the charges of intimidation has been leveled at a member of the city attorney’s office.

But Witt and his assistants have threatened to sue the commission, saying the City Charter makes them the legal advisers in the matter. They said they would instruct the city auditor to withhold payments to any outside counsel hired by the commission.

Witt said Wednesday that his office stands by its previous interpretation.

“I think we’ve made it clear from the start that we don’t believe an independent counsel is appropriate,” Witt said. “One of the reasons why the office of the city attorney is elected is to make it independent and that independence permits the city attorney to give his municipal clients legal advice they don’t want to hear.

“When they don’t get the advice they want, it’s totally inappropriate to get another attorney.”