City of Palo Alto Quietly Lifts Ban on Critical Email Addresses

Palo Alto City Blocked Email

In a sting of stunning reversals of Palo Alto’s city attorney Donald Larkin who has made it a long time practice of “blocking”and “filtering” email messages sent to government employees without the benefit of “Due Process” of law, newly appointed chief legal attorney Molly Stumps has quietly instructed the city’s IT Department to undue city attorney Donald Larkin’s unconstitutional doing’s.

In fact Mr. Larkin teamed up with current police chief Dennis Burns and attorney Michael Genanco, Independent Police Auditor contracted with the city of Palo Alto in ordering and approving the blocking of ALL critical email addresses.

One such email directive was intercepted from Chief Burns last year where he requested the IT department to block the email addresses of Palo Alto police critic and attorney Aram B. James and the current editor of Palo Alto Free Press.

PAPD Chief Dennis Burns

“Hi Glenn

Can you block the email addresses listed below from reaching the City email address of Sandra Brown, Bob Beacom, Mark Venable, Patty Lum and Bob Bonilla? The comments have become inappropriate and the employees should not have to be submitted to this nonsense.

Thanks, Dennis [Palo Alto Police Chief]
abjpd1@juno.com
public.records.request.tracking@gmail.com”

In response to Chief Burns and city attorney Donald Larkin’s actions, attorney and former public defender Aram B. James wrote the following:

3/2/2010

Hi Dennis,

I had nothing to do with the e-mails sent by Mark Petersen Perez to the below parties and am requesting that you immediately rescind your request to Glenn Loo that my e-mails (should I decide to send one) to Sandra Brown, Bob Beacom, Mark Venable, Patty Lum and Bob Bonilla be blocked.

I have sent no e-mails in the last few days ( or longer) to any of the above parties. If you have a specific e-mail in mind that I have sent, to the above parties, that you contend is some how not consistent with my First Amendment right to communicate with my local public officials and or is some how in violation of some other legal principal –please copy me with that e-mail and I will be happy to discuss the particular e-mail with you and the city attorney’s office.

I did send out a long e-mail re Sandra Brown several days ago (see below, titled: Has Lt. Sandra Brown mislead the people of Palo Alto? You be the judge!) but I believe nothing in that e-mail is in any way beyond the scope of appropriate and protected First Amendment criticism of a member of your department. In fact the letter in question was in direct response to comments Lt. Brown made to the press (Palo Alto Daily Post) back on February 16, 2010.

Okay, Dennis I look forward to your response. I will copy Gary Baum and Don Larkin in on this e-mail.

Sincerely,

Aram James

Attorney Aram B. James stinging critical email which may have caused the indiscriminate blocking of all critical emails.

Re: Has Lt. Sandra Brown misled the people of Palo Alto? You be the judge!

2/24/2010

Hi Mark,

Why would any police department be proud of a DUI convicted officer? And why would that same department allow someone like Lt. Sandra Brown to—(apparently acting in the capacity as the department’s spokesperson-spin-mister) –try to get over on the public by stretching credibility to the breaking point?

As I will argue below: Lt. Brown’s suggestion that when an officer of the PAPD is arrested or convicted of a DUI —that they should be held to a different standard then the rest of us, by being allowed to keep information re their arrest private, is simply untenable on its face.

The truth is, once arrested, any of us, cop, or non-cop– the information and fact of the arrest becomes public record under the California Public Records Act. See: California Government Code & 6254 (f) (1).

Law enforcement agencies must make available to the public the following information about individuals the agency has arrested. In addition to other information mandated to be released– pursuant to the public records act– the following must be released:

The full name and occupation of every individual arrested by the agency.

As such –this officer’s name (the convicted PAPD officer) has no doubt already been published (made public) in the local police blotter and or newspaper –in the town and county where he/she was arrested.

By failing to provide this information the PAPD is simply engaged in a delay tactic–hoping that the press, and or some other entity— is simply unwilling or unable to track down the information that has already been made public.

In other words, the PAPD is playing cat and mouse with the public trust–hoping that the controversy will simple go away–without anyone tracking down the information that has in fact already been made public.

In the Daily Post of February 16, 2010, in an article titled, When a cop gets a DUI, Lt. Sandra Brown made the false and misleading claim that for the PAPD to release the name of the officer would be an unwarranted invasion of his privacy. In fact she is quoted in the piece as follows:

“We all have our right to privacy, we are all human and we all make mistakes, no matter who writes our paycheck,” said Brown.

Lt. Sandra Brown knows this is not the truth. When a member of the PAPD makes an arrest such information becomes public, by way of the department’s police log (police blotter). The information is subsequently reported in the press.

Lt. Brown’s comments, suggest, misleadingly, that somehow police officers are above the law and are entitled to more privacy then other individuals arrested. The truth is quite different –police are entitled to the same level of privacy as any other individual arrested, no more and no less.

Lt. Sandra Brown, yet again, attempts to turn both common sense and the truth on its head with the following comments— attributed to her in the same post article:

Palo Alto Police would not have to attend mandatory alcohol counseling for a drunken driving conviction, and an officer who had been convicted of drunken driving would still be allowed to make drunken driving arrests, as a matter of public safety, said Brown. (Note: in the same article—comments attributed to Lt. Sandra Brown suggest that the DUI convicted officer would not be subject to random checks for alcohol).

So think about the implications of the above comments: we are led to believe by Lt. Brown that it is a matter of public safety that a convicted DUI officer should still be allowed to make drunk driving arrests, while at the same time not being subjected to random drinking tests himself ,or mandatory DUI classes for his conviction. Does this absurd suggestion/proposition by Lt. Brown make you feel safer?

Common sense suggests that absent disclosure of the officer’s name, absent a clean bill of health re this officer having completed mandatory DUI classes, and absent random testing to ensure that the officer is not drinking on the job—it is the officer and the department— that allows him to continue on the job under these conditions– that constitutes the public safety threat—not the other way around.

Lt. Sandra Brown’s suggestion that not allowing this officer to conduct DUI arrests— until he has been subject to all of the above programs and testing –would some how implicate public safety is disingenuous at best—and ,more simply, a blatant attempt to deceive the public Lt. Brown has sworn to serve and protect.

One final bit of irony—this is the same Lt. Sandra Brown who now apparently supervises internal affairs, and oversees citizen complaints filed against fellow members of the PAPD.

Given Lt. Brown’s obvious contempt for both the public trust and the truth –it does not inspire a sense of confidence that citizen complaints will be taken seriously by this department. Its time that the PAPD release the name of the convicted DUI officer, now! Justice, fair play and public safety demand such a result.

Sincerely,

Aram James

In a follow-up email from famed civil rights attorney Michael Gennaco and head of the Office of Independent Review (OIR)  based in Los Angeles protesting their joint collaboration, Gennaco issues the following email response:

Famed Civil Rights Attorney Michael Gennaco

3/3/10

“Mr. Petersen-Perez:

I acknowledge receipt of your complaint. On its face, your complaint does not indicate a violation of Palo Alto Police Departmental policy. Accordingly, we intend to take no action with regard to your complaint. Feel free to pursue whatever recourse you believe is available to you with the US Department of Justice.

Michael Gennaco”

Apparently, the First Amendment is not recognized in any police manuals maintained by the PAPD and therefore no violation has been committed.

In any event, were extremely pleased with newly appointed Molly Stump’s decision to undo city attorney Donald Larkin’s unconstitutional blocking of email addresses critical of city government.

However, a lingering question remains. Will she open the closed secret door meetings being privately help by police chief Dennis Burns?  Will she continue too promote transparency and open government. That question remains to be seen.

July 6th, 2011 – Up-Date:  City attorney Donald Larkin’s sinister email document reveals PAPD Chief Dennis Burns directive to “Block” critics emails.

From: Larkin, Donald
Sent: Monday, March 08, 2010 5:33 PM
To:abjpd1@juno.com
Subject: RE: Update re order by Chief Dennis Burns blocking my e-mail access to city employees

Aram,

While I am not prepared to discuss the specifics of the e-mail messages you have previously sent, I have tried to respond to your questions regarding the request by the Police Chief to limit your ability to directly e-mail several City employees. My responses to your questions are as follows:

1.  You are now able to e-mail the City Council and higher level (upper management and City Attorneys’ Office) employees.

2.   We do not track whether your e-mail or others are included in “spam” filters or other means of blocking e-mail at the client level.  The Chief has asked that your e-mail to some individuals be blocked, but I do not have any way of knowing whether there are others who are not receiving your e-mail.  Please note that unsolicited e-mail sent indiscriminately to a large group of recipients is frequently identified as spam, and is often caught in the City’s filters.

3.  There is no specific protocol.  Limits on a person’s ability to e-mail individual employees are made at the discretion of the department director and/or other management employees.  While there is no written policy regarding when a department director can limit e-mail access, some of the relevant factors that may be considered are:

a.   Receipt of e-mail from the sender is not necessary for the employee to complete his or her assigned responsibilities.

b.  The sender has sent messages or has forwarded messages by others that violate the City’s anti-harassment policy.  As you know, pursuant to Government Code section 12940(j), the City is required to make reasonable efforts to protect its employees from unlawful harassment by members of the public.  Cutting off e-mail access to specific employees would be considered a reasonable effort to protect an employee from harassment.

c.   The volume of e-mail and attachments received from a single sender, or a group of senders who copy City employees on an e-mail conversation causes the employee to exceed his or her maximum e-mail storage space.

d.   The receipt of e-mail messages from a specific outside sender is disruptive, and hinders the employee from performing his or her assigned tasks.

Please note, except for attorneys (who are required to maintain e-mail by the State Bar), there is no obligation for City employees to maintain direct outside e-mail addresses.  City policy is for departments to provide a single e-mail address for members of the community to send e-mail queries and communications.  For the Police Department that address is pd@cityofpaloalto.org.  This e-mail address is monitored daily, and messages are distributed to the appropriate department contact.

While you have a right to criticize public officials in any medium you wish, the First Amendment does not guarantee you direct access to every City employee.  In fact, as you are no doubt aware (and was just reiterated within the last couple weeks in the case of Hamer v. El Dorado County (2010 WL 670780)) the “First Amendment does not impose any affirmative obligation on the government to respond to the petitions raised by individual citizens, does not guarantee that citizens’ speech will be heard, and does not require that every petition for redress of grievances be successful.”

As the Supreme Court has noted:

However wise or practicable various levels of public participation in various kinds of policy decisions may be, this Court has never held, and nothing in the Constitution suggests it should hold, that government must provide for such participation. In Bi-Metallic the Court rejected due process as a source of an obligation to listen. Nothing in the First Amendment or in this Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.  Minnesota State Bd. for Community Colleges v. Knight 465 U.S. 271, 104 S.Ct. 1058.

Regards,

Donald Larkin

Assistant City Attorney

City of Palo Alto

(650) 329-2171

donald.larkin@cityofpaloalto.org

This e-mail may contain confidential and/or attorney-client privileged material. If you have received this message in error, please immediately notify the sender and delete this e-mail message from your computer.

2 Replies to “City of Palo Alto Quietly Lifts Ban on Critical Email Addresses”

  1. Hi Mark,
    I just attempted to leave a long comment–but your site would not take it. I will try to redo it later in the day. Bottom line: Keep up the great work defending our First Amemdment rights.
    Aram James

    1. Aram,

      Thanks for your reply. What city attorney Donald Larkin has miserably failed to realize a most recent court case out of the 9th circuit court dealing with emails sent to quasi-government agency’s and the people they employ.

      9th circuit ruling – No. 08-16073, D.C. No. 2:04-cv-02510-EHC (OPINION)

      “It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good.

      But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech.

      Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.”

      Sandra Day O’Conner
      Former United States Supreme Court Justice

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