When St. Paul Police Chief Todd Axtell announced the firing of five police officers for allegedly failing to stop an assault, he may have gone a step too far in describing the incident, according to experts on the state data privacy rules. But not far enough in failing to identify the officers involved.
St. Paul resident Don Gemberling, who years ago authored portions of the Minnesota Government Data Practices Act, said he was taken aback by Axtell’s press conference last week.
Axtell announced he terminated five officers on Thursday. He said they responded to an incident last year and “while they were there, an individual assaulted others and officers did not intervene.”
The police chief said he was speaking publicly because he wanted to be transparent and accountable but state law did not allow him to go into detail about the officers or the incident because there is an active internal affairs investigation.
But Gemberling said, under state statutes governing data privacy and public personnel, the script should have been flipped.
“Clearly, the names are public,” he said.
Gemberling, who until 2004 ran the state office that advises citizens and government agencies on the data practices act, said while the police officer’s names should have been made public, the details of the infraction they’re accused of committing or the rule they’re accused of violating are not.
“When I saw (Axtell) on TV I was like, wait a minute, what’s wrong here? Names of employees, unless they’re undercover cops, are always public,” Gemberling said. “And if it’s associated with other public data, such as the status of the complaints or charges, that’s always public, too. But not the nature of the complaint or charge, until disciplinary action becomes final.”
CITY: WE GOT IT RIGHT
Portia Hampton-Flowers, deputy St. Paul city attorney, said this week that state law does not allow the city to identify the names of employees before final disposition of any disciplinary action.
“Accordingly, at last week’s press conference, Chief Axtell did not identify any individuals involved in the incident, nor did he disclose any private information,” she said.
Mark Anfinson, an attorney for Minnesota Newspaper Association and expert on state data practices, said the chief may have erred on the side of accountability and transparency.
“The statute is so literal and clear here, and that’s not always true for the Minnesota Data Practices Act,” Anfinson said. “The law directs that they disclose the name, not do what the chief did. The problem for reporters is, would you rather get the circumstances and the nature of the complaint, or would you rather have the name?”
The Pioneer Press determined the case centers around Tou Mo Cha, who was a St. Paul police officer until he resigned 14 years ago after pleading guilty to making terroristic threats. In December, Ramsey County prosecutors charged Cha with felony assault.
He is accused of seriously injuring a man last June outside Eastside Checkerboard Pizza at Arcade Street and Jenks Avenue, a business owned by his wife.
The Pioneer Press, based on various documents and sources, published the names of the five officers. Other media outlets also reported on the officers’ identities.
POLICE FEDERATION TO APPEAL FIRINGS
After Axtell fired the officers, St. Paul Police Federation attorney Chris Wachtler said “the first thing we did was call an assistant city attorney, and follow up with an email to say, ‘Don’t go out there and talk about the details of the case,’ but that’s what they did.”
Wachtler said their position was, “Under the law, you can’t talk about the basis or facts of why discipline was imposed until it’s over.”
Under state law, the specific reasons for disciplinary action become public when it reaches final disposition. The St. Paul police union said they will be appealing the officers’ terminations.
The St. Paul Police Department, in a statement issued Tuesday, said, “The chief has a duty and an obligation to provide information about the police department to the community it serves, and he must do so in a manner that is as transparent as the law allows while still balancing the rights of the officers involved.”
“That’s exactly what he did in this situation and he will continue to do in the future, so the community and his officers can have confidence that he will always act in their best interest,” the statement concluded.
LACK OF WILLFUL INTENT?
It’s not unprecedented for directors of public departments to reveal that a difficult situation has come up among staff members without naming the personnel involved.
“If you disclose the nature of the complaint against the employee, then theoretically you can’t disclose the name of the employee,” Anfinson said. “In theory, that could comply with the law, because you haven’t identified anybody. I’ve encountered other individuals who have done that.”
Willful violations of the Data Practices Act are classified as misdemeanors, though Gemberling doubted there’s much evidence to point to willful intent.
