Palo Alto's independent police auditor is urging the Police Department to enforce its rules against sharing draft police reports and other work-related documents on personal cell phones after two department employees exchanged case information while one of them was in a dispute with a supervisor.

According to a new report from OIR Group, the city's police auditor, the sharing of police information on personal devices became an issue after one of the employees complained that a supervisor failed to pursue a "robust investigation" into a confrontation between two civilians. An employee also claimed that a supervisor had not been factual in an internal email about how the incident should be handled.

The department responded by hiring an outside investigator, who looked into the complaint and who also investigated concerns from department brass about the complaining employee. The report states that the administration was concerned that the complaining employee had failed to follow instructions and used derogatory language when talking about supervisors.

The new report, which covers all external and internal complaints against Palo Alto officers and all uses of force in the second half of 2022, does not include names of any of the employees involved. It suggests, however, that the use of personal cell phones for work-related business was not limited to the employees in this case. This despite a policy that prohibits doing so "except in exigent circumstances" such as the unavailability of radio communications.

The outside investigator concluded that there was no wrongdoing on the supervisor's part but found that the complaining employee did fail to follow instructions and used derogatory language about supervisors. The investigator also found that the complaining employee and another employee used personal cell phones to communicate about this case, including sharing of draft police reports and strategies on how to prepare the eventual report.

When the investigator asked for copies of these records, the complaining employee's attorney declined to provide them, according to the audit. The report notes that under California law work-related information conveyed by government employees is subject to the California Public Records Act.

"Yet here, the employee was able to successfully forestall access to this work-related information by refusing to simply produce the information," the audit states.

The existing department policy already cautious employees that the use of personal cell phones for business-related purposes "may subject the employee and the employee's PCD (personal communication device) records to civil or criminal discovery or disclosure under applicable public records laws or lawful order."

OIR Group has advised the department to enforce this policy and to advise internal investigators that "employees who have lodged information potentially relevant on a personal cell phone should be ordered to surrender such information or be subject to potential future charges for insubordination."

Police Chief Andrew Binder wrote in a response to the audit that the department agrees with the recommendation and will reinforce the policy to all current employees.

"In addition, the training will be added to the mandatory in-house training curriculum for new sworn employees," Binder wrote.

Investigating the pointing of firearms

While the OIR Group has been reviewing the Palo Alto Police Department for over a decade, the May report is the first to include all instances in which officers had pointed firearms, consistent with the City Council's recent move to expand the auditor's scope. There were three such incidents in the second half of 2022, according to the audit.

One involved a suspect in auto burglaries who drove away from an officer and, after a pursuit, ultimately collided with a police car in a parking lot. Two officers pointed a gun at him as they gave initial commands for him to get out of the car.

Another incident pertained to a road rage incident in which one of the individuals was believed to have a handgun, which ultimately turned out to be a power drill. An officer pointed a gun at the man after he had refused to comply with officers' initial commands to stop.

The third incident concerned a member of the department's SWAT team who was assisting a neighboring agency in searching for a murder suspect. According to the audit, members pointed their firearms "in keeping with their respective assignments during that operation."

In each case, the pointing of the firearms was deemed by the auditor to be "consistent with policy and training." n