Fullerton residents may soon find out exactly how former City Manager Joe Felz was given a ride home by Fullerton police officers after hitting a tree and trying to flee the scene following drinking on election night in 2016, after resident Joshua Ferguson filed a lawsuit against the city to produce police body camera footage from that night.
Shortly after the new police records disclosure law – SB 1421 – kicked in at the beginning of the year, Ferguson requested body camera footage from officers at the Felz crash scene, including former Sgt. Rodger Jeffery Corbett, who gave the former city manager a sobriety test, but not a breathalyzer. He also requested numerous other potential police misconduct records.
Despite an administrative investigation that found Corbett falsified the police report and purposely blew the field investigation in the Felz case, the city refused to give Ferguson records and camera footage to Ferguson, according to the lawsuit.
Felz retired December 2016, a month after the crash, and was charged with driving under the influence in early 2017. But that charge was lowered and he pleaded guilty to one count of reckless driving December 2017.
The Orange County District Attorney charged Corbett Sept. 4, 2018, with one felony count of falsifying a police report about Felz’ crash. Corbett pleaded not guilty Feb. 19 and is scheduled for a jury trial Nov. 13.
Fullerton denied Ferguson the body camera footage from Corbett and other officers who were there. The city cited an exemption in state law that allows records to be withheld if their disclosure could jeopardize a related investigation, according to the city’s response to Ferguson’s request.
Media attorney Kelly Aviles, who represents Ferguson, said the body camera footage denial doesn’t hold legal weight.
“I don’t think it’s a good basis. It’s their burden to show why they don’t have to disclose it and I don’t think they’ve made any showing why it needs to be withheld it at all,” Aviles said. “They’re just saying, ‘We’re not going to release it because there’s some investigation related to it. We think we shouldn’t give it to you.’ It’s just not enough.”
Ferguson said it’s unfortunate that the taxpayers, not city leaders, have to shoulder the burden for the lawsuit because the city failed to act properly.
“Nobody’s held accountable. Even if I prevail, nobody at city hall, not the city attorney, not the City Council, nobody pays a price but the taxpayers” for the legal fees, Ferguson said. “Because the city broke the law.”
But City Manager Ken Domer said the city is fully complying with the police record disclosure law, including posting records to the city’s website.
“I cannot comment on pending litigation. However, the city of Fullerton is complying with SB 1421 (the new police records disclosure law) in a fashion that produces the records as soon as we can. It is a slow and deliberative process because of the need to redact victim and other information that cannot be released,” Domer said.
Domer said the city has to blur out faces, names and other information not involving the officer the records request is about. The law makes available use-of-force and misconduct records.
“We have to do that on documents, we have to do that on video and audio and that is the reason it is taking longer than even what we hoped. But, as evidenced by us putting it on a specific webpage, we are complying with the intent of the law,” Domer said.
The city has spent nearly $72,000 on legal fees since Jan. 1 on police misconduct records requests, Domer said, adding that number doesn’t include city staff time.
The website was last updated Oct. 18 and has 27 different entries on it, which link to police records, including some audio and video.
“Corbett purposely failed to conduct a proper investigation and provided false information under FPD case# 16-74804, in violation of PC – 118.1 False Report by a Peace Officer,” reads the administrative investigation report attached to the lawsuit, which was served Oct. 18. “Corbett purposely failed to conduct a proper investigation which compromised the integrity of an attempted prosecution of Felz for his crimes committed in the City of Fullerton.”
At least two officers who were on the scene thought Felz could have been driving under the influence that night, according to the investigation report.
Cpl. Jim Boline told investigators he thought Felz might have gotten out of a DUI.
“However, Boline did believe that Felz was possibly D.U.I. Boline thought if Felz was going to get away with the D.U.I. that would be ‘bullshit’ and shared that view with Officer (Tim) Haid,” reads the report.
Haid told investigators he would’ve arrested Felz for a DUI “based on the objective symptoms that he witnessed that night.”
Although the investigation report contains Corbett’s statement to investigators, it has been fully redacted.
Fullerton also considered a deal with former Lt. Kathryn Hamel to halt at least one internal affairs investigation if she resigned from the department, in an effort to shield the records from disclosure law, according to the lawsuit.
“In that agreement, the City agreed to revise the Notice of Intent to Discipline to remove those allegations if Hamel resigned, to not release the file pursuant to SB 1421, and agreed to defend against any SB 1421 request in court,” reads Ferguson’s complaint.
“The City will revise its Notice of Intent to Discipline Hamel to remove allegations relating to dishonesty, deceit, untruthfulness, false or misleading statements, ethics or maliciousness. The Interim Police Chief will place a notice in the file indicating that, pursuant to settlement, all charges against Hamel … were never resolved or proven because there was no Skelly hearing or opportunity for appeal and, accordingly, are not sustained,” reads the draft agreement attached to the complaint.
It’s unknown if the city struck a deal with Hamel.
The blog, Friends for Fullerton’s Future (FFFF), published documents on the potential Hamel deal, along with numerous other documents beginning in June. Greg Palmer, the city prosecutor, threatened to sue Ferguson and the blog over the documents and demanded the material be returned to the city and deleted from the blog.
The documents were leaked to the blog and Ferguson and the blog did not comply with Palmer’s cease and desist letter.
“It’s a chilling effect. It’s that, ‘we’re going to threaten you with a vague threat, not even tell you exactly what you did wrong,’” Ferguson said, referring to the cease and desist letters.
The blog received two letters from the city, with the latest sent July 11 by the city attorney’s office.
“We further note that the FFFF blog has posted many of the confidential City documents after receipt of our office’s June 13, 2019 cease-and-desist email … Many, if not all, of the confidential City records posted to the FFFF blog are explicitly exempted from disclosure under the California Public Records Act, would not have been provided to Mr. Ferguson or FFFF agents or associates in response to a Public Records Act request, and could only have been obtained without the City’s express authorization,” reads the letter.
Aviles said she also received the letters and “There is no way for me to have any idea what documents they’re talking about.”
She also said the blog and Ferguson is not only protected by the First Amendment, but under California Shield laws, which affords legal protections to journalists’ sources and unpublished information.
“There’s never been a prior restraint that’s ever been granted and held up. So, I don’t know what they’re thinking. So whatever it is, it’s wrong,” Aviles.
Ferguson is also trying to find out if there’s misconduct records on 46 officers, but the city hasn’t said if the records exist, according to the lawsuit.
Aviles said Fullerton has to indicate if misconduct records exist or not on the officers Ferguson named and while the city has been uploading misconduct records to its website, the public needs to know which records will be released.
“Whether they’re moving as fast as they can, I don’t know. But certainly they can respond properly and say here’s the records that we have and will be disclosed, but we are going through the process of redacting them and will post them,” Aviles said.
Meanwhile, Ferguson said his records battle has negatively impacted his life.
“It’s stressful. I’ve had to talk to my wife and everybody else to see if I want to do this,” Ferguson said. “I’ve had my job threatened. I’ve had people threaten to come after where I live.”
Ferguson, who was a regular at City Council meetings, doesn’t show up anymore because he said he hopes to avoid a “confrontation.”
“You have to worry about every little thing because the city is a giant weapon, as it where. They have all these tools to throw at you, whether it’s code enforcement. It’s that risk,” Ferguson said, adding the city also approves business licenses and various permits.
“Do you really want to antagonize that group?”