Officials Warned Not to Libel Parks

As Los Angeles Police Chief Bernard C. Parks considers whether to sue the city for denying him a second five-year term, the city’s attorneys are weighing Parks’ chances and warning officials to watch what they say about the chief.

Anticipating that Parks might opt for legal action--a course that his predecessor, Willie L. Williams, pursued--the city attorney’s office has sent a confidential memo to the mayor, members of the City Council and the Police Commission. In it, the city lawyers urge officials to refrain from making comments that could lead to potential liability against the city.

“Recognizing the need for a vigorous public debate about an issue of this importance, our office believes that you should be aware that even when discussing a public official, statements made about the public official, if shown to be false and made with malice, may result in liability,” Chief Assistant City Atty. Patricia V. Tubert wrote. “Therefore, if you do comment on the chief, please refrain from making comments that could lead to potential liability against the city of Los Angeles or against you as an individual.”

So far, council members and others have largely held their tongues, though Police Commission President Rick Caruso has questioned the chief’s honesty. Parks’ lawyer, Gloria Allred, has raised other legal objections to the process that resulted in the chief’s bid for a second term being turned down. Parks is expected to announce today what options he intends to pursue.

“I strongly believe he has rights that he can assert,” Allred said. “But it’s up to him. There are many options, not just one.”

Allred has laid out the areas in which she believes Parks was wronged in a six-page memo to the city attorney’s office. In her letter, sent as the council was voting Wednesday to uphold the Police Commission action against Parks, Allred alleged that Parks’ constitutional rights were violated in a number of instances.

For example, Allred said, Parks was denied a chance to have his attorney present during a nine-hour interview with members of the Police Commission. The proceedings were also held behind closed doors, even though Parks asked that the discussions be held in the open.

“Chief Parks made it clear that he wanted to waive any right of confidentiality that he might have and that he wanted to have a public hearing,” according to the letter. “This right was denied to him and the commission chose to conduct its proceedings in secret closed session, even though [the city attorney’s office] advised the commission in writing that it could conduct the hearing openly, if it chose to do so.”

Allred also accused members of the commission of meeting secretly, without public announcement, during the course of their deliberations. If true, the actions would constitute a violation of California’s open meetings law, she said. Allred’s contention that Parks has been defamed is built largely around the comments of Caruso, who said in an interview that Parks tried to mislead the commission by submitting an earlier performance evaluation that he knew had not been finalized by the previous Police Commission. Parks has denied the allegation.

“Pursuant to the federal Constitution, Chief Parks cannot be deprived of a significant liberty interest without due process of law,” according to Allred’s letter. “A liberty interest is implicated when the city or commission acts in a manner which adversely affects Chief Parks’ good name.”

Councilman Nate Holden, one of Parks’ strongest supporters, said he is urging the chief to file a suit along those lines.

“At the very least, he’s got to protect his good name,” Holden said.

One question about that approach, however, involves whether Parks was in fact entitled to due process. The chief does not have a contract with the city, and the commission’s decision to deny him a second term did not constitute discipline or firing. Rather, the City Charter provides for a chief to serve for five years, and for Parks, that term ends in August.

Several council members and legal scholar Erwin Chemerinsky noted that under the City Charter, the police chief has no right to a second term. Chemerinsky, a constitutional law professor at USC who helped write the City Charter, said bluntly that he believes Parks’ claims are “nonsense.”

“The way the charter is written gives him no reasonable expectation for a second term,” Chemerinsky said.

Attorney George Kieffer, who also helped draft the new charter, agreed.

“The Police Commission, as head of the department, must have the power to change a chief who does not have their confidence,” Kieffer said. “There is no presumption of a second term.... Under this kind of standard, it would be very difficult to have some claim against the city.”

Chemerinsky said Parks also would face an uphill battle to prove that he was defamed. The chief would have to show that Caruso knew that he was acting with “reckless disregard for the truth,” Chemerinsky said.

In addition, the law protects officials from defamation suits if their comments are made during an official proceeding, which city lawyers could argue was the case with Caruso.

“I don’t think it would be possible for Parks to prove actual malice,” Chemerinsky said.

Beyond the legal merits of Parks’ case are political considerations.

Five years ago, council members eager to smooth the departure of then-Chief Williams seized upon his pending claim against the city to give him a buyout.

In that case, Williams had taken action against the city after parts of his confidential personnel file were published by The Times.

Williams argued that the city had improperly “released” those materials, even though he never established how the documents were obtained by the paper.

Although legal experts said his case had little merit, council members and then-Mayor Richard Riordan approved a $375,000 settlement to end the controversy over Williams’ rejected reappointment.

Councilman Jack Weiss said he doubts the council will vote to give Parks money.

“The presentation that has been made so far has not been convincing that he is owed either money or a second term,” Weiss said.