Fullerton Council Reports Out the $4.9MM Settlement — and Explanations for Irked Citizens

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From left: Fullerton Council members Mayor Greg Sebourn, Jennifer Fitzgerald, and Bruce Whitaker, with City Manager Joe Felz.

Today is “Kelly Thomas Settlement Day” here at OJB.  Vern has a reaction story up reprinted from a short essay by “Bax” Baxter.  I’ll have two stories: first this news piece, then a separate analysis.

I attended the 8:00 a.m. pro forma City Council meeting where they reported out the results of a closed session meeting approving the $4.9 million settlement with Ron Thomas.  For those extremely late to the game, he is the father of the homeless man, Kelly Thomas, who was killed by Fullerton police four years, four months, and three weeks ago.  The trial on his civil case against the city was to have begun on Monday when it settled.  The Council, particularly Doug Chaffee (who favored the settlement) and Bruce Whitaker (who opposed it), also added some useful public information about what just happened — and how.  We’ll cover the events in chronological order.

Following general public comments, the business at hand began with an explanation of why everyone was there today, which would not involve taking any votes.  This meeting is required by the Brown Act to publish the results of Monday’s 8:00 a.m. closed meeting.  At that time, a draft settlement was in hand but had not yet been approved by the City’s insurers.  Fullerton did not oppose the insurer’s decision in the case.  The Council had then voted 3-2 to accept the settlement rather than going to trial: Chaffee, Fitzgerald, and Flory in favor; Sebourn and Whitaker opposing.  This after-the-fact meeting afforded the Council the opportunity to explain themselves.

Public Comments

Nine people offered public comments, six in favor of the settlement, two opposed, and me casting forth nuance.  In order:

Sean Paden: The Fullerton attorney noted that the crowd of a couple of dozen at 8:00 a.m. showed that there was still substantial public interest in the Kelly Thomas case.  He argued that the settlement that had been reported in the media on Monday was bad for Fullerton, offering three general categories of reasons.

First, while the settlement was billed as requiring no payment from the city, Paden said that it would inevitably cost the City money because its insurance rates would inevitably rise.  Fullerton loss history could push it into a higher “risk pool” — or it could be booted out of a mutually funded municipal risk pool altogether and forced to self-insure.

Second, he considered the settlement to be too high.  In not working towards a lower settlement, the city was violating its duty to taxpayers.  He added that, because Kelly Thomas’s mother rather than his father was his guardian, conferring the ability to sue on behalf of the estate, Ron Thomas did not have standing required to receive damages for “pain and suffering.”  (My note: Such damages are, in any event, not assessed against governments.  I know; I’ve tried.)

Third, and I think he’d agree most importantly, Fullerton should want the effect of punitive damages (by that or any other name) in this case.  The point of punitives is to punish the wrongdoers.  He asked, rhetorically: what role the citizens of Fullerton had had in the beating of Kelly Thomas, the hiring and training of officers, and the cover-up of information after the fact?  By supposedly costing the city nothing, and by not singling out either the officers or administrators responsible for Kelly Thomas’s death, this settlement actually undermined deterrence.

Jane Rands: This leading Green Party figure and former candidate for office said that, as a taxpayer, she was willing to see the city take responsibility for its actions.  This settlement would cost the city dearly, if not directly in money, in reputation and dignity.  She said that now, more than ever, Fullerton should act to prevent recurrence of these issues by creating a Civilian Oversight body for police activities — and should also strive to take the lead in reform of POBOR, the so-called “Police Officers’ Bill of Rights.”

Richard Dwyer: He is another figure from “Kelly’s Army.”  He was upset that one feature of the settlement was that the city was unwilling to admit fault in this matter, which he considered cowardly.  He thought that the City should at least admit that it had a problem with the Fullerton Police Department.  He would have loved to see the six police officers, those present at the beating and crushing of Kelly Thomas, on the witness stand.  He said that he hoped that federal charges would still be imposed and tied this killing to others since then, such as the one that just came to light yesterday in Chicago.

Matt Leslie:  An anti-police-violence activist whose work sometimes appears here from his own blog “The Fullerton Rag,” he called for more police oversight and for each Council member to explain why they were willing to settle for this amount of money.

Greg Diamond: I believe that I came next, and my comments will be reflected more in the analytical piece to be written later today.  I argued that as an attorney I understand why the City would want to avoid admitting guilt for reasons of wanting to avoid broader legal liability — but that even if it took that route, it at least had to be contrite.  Contrition, to restore the City’s reputation and dignity, would largely involve adopting the reforms expressed by other speakers and by seeking to release every bit of information that it could about what had happened, even if it meant fending off a suit for retaining privacy that might be brought by its own Police Association.

Wiley Drake:  The Buena Part Pastor of “imprecatory prayer” (he has received headlines for calling for prayer for God to smite his liberal political enemies) noted that Kelly Thomas, like many other homeless people, was one of his parishioners.  He argued that the City should not deny its guilt and that everyone would answer to God.

Joe Imbriano:  The announced Tea Partier candidate for City Counsel complained that Kelly Thomas had been denied his liberty and that now the police would have carte blanche to do whatever they wanted.  He said that people have called him insane for his expressed views on the dangers of vaccinations and wireless for children, but that was really insane was pretending that arbitrary police actions didn’t pose a threat to them.  He sarcastically congratulated those who had tried to sweep this matter under the rug for doing it so effectively.

Rick Price: The first of two speakers opposed to most of what was said by the preceding seven, he congratulated the Council for making the right decision.  He said that there was no guarantee that the City would have won this case and that the cost of an adverse jury verdict would have been too dangerous to the City.

Lorraine Jones:  I had thought that she was still in the police command structure (and maybe she still is), but she was definitely out of uniform if so.  She said that the Council had done well in making a hard but sensible decision.  She said, in response to comments (that may have included mine) that all of the facts in the case had come out in the criminal trial and there was no need for divulging further information.  She defended POBOR as simply assuring rights for people — police officers — whose rights had become less than others and that it didn’t give them any extra or special rights.

The Council’s Comments

The only two Council members who presented extended substantive comments were Doug Chaffee and Bruce Whitaker, so let’s dispense with the rest before we get to what was in effect a very good debate between them.

Greg Sebourn said that he thought that justice would have better been served by the City’s not settling, especially because the law prevented the release of information that the public does not yet have.   Jennifer Fitzgerald said that she voted “yes” because the City has a contract with the insurers and that now — I’m paraphrasing here from various movies — the whole unfortunate chapter was closed.  (I did not follow her logic about the “contract” at all and will have to view the video to see what I missed.  Jan Flory did not attend the meeting and therefore missed out on publicly not having a chance to vote today.

Doug Chaffee spoke first and at the greatest length — and also provided some interesting procedural background that I don’t think you’ll find anywhere else.  (Of course, I haven’t read everything else.)  The Council majority had decided to cooperate with the insurers, allowing the City to settle the Thomas case with what he said was no cost to the City.  He hadn’t liked the resolution that was originally brought to the Council and so he had redrafted it himself, for consideration prior to what was to have been the start of the trial this past Monday.

This is where Chaffee’s explanation got interesting.  The city had had no input into the final amount.  As the trial approached, trial counsel for both sides said that the parties were still very far apart.  (His own preferred settlement amount, he said, was $0.)  But they had a mediator — a retired judge with decades of experience settling cases who could reasonably predict the value of the case.  The mediator implemented a “double-blind” settlement procedure: he wrote the same number on a piece of paper and delivered it to either side, instructing them to either accept or reject it and report back to him.  If, after discussing it separately among themselves, both sides agreed to that number, the case would settle for that amount.  The number the judge wrote down was “$4.9 million” — that, Chaffee stressed, is how that number had appeared — and both sides accepted the mediator’s conclusion.  Fullerton had had no input into the final number other than to accept it as a “take it or leave it” offer to both sides.

Chaffee also said that:

1. He had checked with insurers and confirmed that the City’s insurance rates would not rise due to the settlement.
2. He thinks that all the pertinent facts about the case came out during the criminal trial — and that the tape of the beating and crushing speaks for itself.
3. Police officers have filed for reinstatement and the Council may serve as a review board for their hearings, so that prevented them from giving their opinions on some of the issues that speakers had raised.
4. Had the trial gone forward, the City would have had to pay the fees for other defendants as well as a half-million for its own defense.  The judgment could have been well in excess of $4.9 million — and if the City had rejected the insurers’ settlement then it would have been stuck without any insurance if it still lost the case.

Bruce Whitaker spoke after Chaffee, noting that four years and four months had occurred since the killing, at which time he had been on the Council for only seven months.  He said that the incident was not accidental — and that it was not adequately described by the language some people used for it, like “scuffle” and “unfortunate incident.”  Since that event, he said, he had participated in meetings where the goals had been punishing protesters and obscuring information.  The most difficult thing that he had faced in office had involved being stymied in his desire to release information — even receiving a restraining order at one point.

Whitaker said that he had strongly opposed fixing the cost of the settlement at what he considered a high number.  He opposed the city’s denying liability for what happened.  He believes that the settlement makes successful (and expensive) wrongful termination cases against the City more likely.

He considers this sort of sealed settlement, in private litigation, to be “hush money” — and he thinks that settlements involving cities should be as transparent as possible.  He notes how much and how often he has been blocked from pushing for transparency regarding this case.  He believes that Fullerton will receive less from this settlement than it will ultimately cost in future wrongdoing.  He does not agree that the factual issues at hand were fully aired during the criminal proceeding.  And he opposed the settlement because it was a defeat for transparency, openness, and decency.

To foreshadow the analysis part of this program, I think that Whitaker is mostly (though not entirely) right.  But I think that Chaffee isn’t mostly (though not entirely) right as well — in seeking a different (although legitimate) purpose.)  Is there a way to reconcile what’s right about each of their positions?  Maybe.  I’ll let you know when I’m done writing it — although you may have taken off for the holiday by then.