A petition of injunctive relief calling for an expedited hearing has been filed by the former Miami Chief of Police Gary Anderson's attorney James E. Frasier.
Frasier filed the request on Feb. 27 with the Ottawa County Court Clerk and he said he is waiting to hear from the court if and when a hearing will be held. Frasier's filing states two main reasons for the cause of action citing,“In simple terms, what has happened here is that Defendant (City of Miami) has the power to and has appointed a board of review which is partisan, predisposed, and beholden to Defendant.”
The second cause of action cited by Frasier is for the City of Miami's failure to provide the records that he requested in an expeditious manner. He requested records on Feb. 8 regarding the City's purchase of email software from Barracuda Networks. On Feb.10 Frasier requested copies of all email communication on the computers of the City of Miami for the period of time July 1, 2010, through March 1, 2011, assigned to Huey Long, Tim Wilson, Jill Fitzgibbon, Brent Brassfied, Judy Francisco, Nancy Wells, Detective Mark Byfield, Detective Todd Hicks, Troy Fugate, David Dean, James Richardson, Chris Leamon, Rudy Schultz, and Scott Trussler, and copies of any and all emails from or to Susan Lewis Simmons to any of the above mentioned persons.
Frasier again requested the information verbally on Feb. 21 and Miami's City Attorney David Anderson indicated that the City would respond to the open records request the next day.
Frasier said he has since been given the information he requested on the Barracuda Networks purchase and email software, but has still not received the requested emails, and he said that the requested information is not exempt under the Open Records Act.
This injunction comes after a lengthy process regarding Gary Anderson's legal battle with the City of Miami after his suspension with pay on Dec. 2, 2010 and subsequent firing on Feb.16, 2011 from his position as Chief of Police for Miami by then Miami City Manager Huey Long.
Long said at that time that Chief Anderson's suspension, after 34 years in the position, was the result of two official complaints alleging what he termed as a “hostile work environment, ”which he said left him,“no choice but to take the action.”
An outside investigator, Susan Lewis Simmons, a law enforcement counselor and investigator, then conducted confidential interviews with 44 members of the police department's staff.
Long fired Anderson on Feb. 16, 2011 releasing a short statement that said in part, “Upon review of the investigative report... Chief Anderson has been terminated effective immediately from his position with the City of Miami for the good of the service.”
Frasier appealed the dismissal on behalf of Gary Anderson saying that he could only be discharged for cause as a participant in the Oklahoma Police Pension and Retirement System and not as an at-will employee. Frasier argued that this afforded Gary Anderson due process and appeal rights which the City conceded and agreed to afford an appropriate appeal by a board of review.
The City Council and attorney David Anderson then proceeded to locate, vet and appoint members for the board of review. Frasier in his complaint said,“What in fact Defendant, through its agents,was doing, however, was to “stack” those sitting in the board of review against Plaintiff so that the City would win its board of review case.”
The petition said, “Also, Defendant appointed outside counsel to “prosecute” the City's side of the board of review process and separate outside counsel to represent the board. However, and at the same time, the city attorney coordinated with outside prosecuting counsel as to what position to take in order to move effectively win the case against Plaintiff before the board of review.”
The petition goes on to say, “Plaintiff objected to several appointees to the board of review because they had been part of the “investigation” against Plaintiff that resulted in his termination and had voiced their position in that investigation that Plaintiff should be terminated. Another member appointed by Defendant to the board of review was the City's own doctor who either directly or indirectly derived great revenues form city contracts.”
City officials contacted by the News-Record deferred comments on Frasier's petition and request for an expedited hearing to the City's Attorney David Anderson.
David Anderson said that he had sent a “very nice” letter to Frasier dated Feb. 24 in regards to the Open Records requests. In the letter Anderson states that he contacted the IT for the city, Mike Richardson, who informed him that there are over 30,000 emails and that it would take Anderson considerable time to “sift” through these. Anderson also referenced an Oklahoma Attorney Generals' opinion on electronic records that states that these type of records may contain information, which is required by law to be kept confidential and that the providing agency would need to provide the information in a format in which the confidential information can be redacted.
David Anderson said that in his legal opinion, “You are allowed to determine what is and is not a public record. The Attorney General's opinion on electronic records says that you don't have to give whole, raw data unless it is public record.”
As examples of what would be redacted he gave information identifying employees such as birth dates, or employment evaluation comments. He said that Frasier has another legal opinion on the issue. David Anderson said, “I disagree, state law decides.”
When asked why information is filtered through the City's attorney and not distributed directly from Pat Lee the City Clerk, he said that as the attorney he has the duty of risk management both financial and legal and to insure a fair and impartial process. “I don't support that public records should be released by the city clerk without review by the city attorney,” he said.
When asked if he felt that Lee was capable and well-trained on the Open Records Act, Anderson said, “I think so.” He said he has suggested that if the Council feels it is appropriate that they might seek further specific training for Lee with OML.
David Anderson said that an outside attorney will review the law-enforcement emails due to his private practice to avoid the appearance of any ambiguity. He said that he has also visited with the District Attorney Eddie Wyant and his Assistant District Attorney Ben Loring on many of these issues.
Regarding Frasier's petition specifically he said after reading it,“It's hard to know what he's asking for.”
David Anderson said that the attorney for the review board has sought input from Frasier and the City's attorney in the matter Tony G.Puckett along the way in the process. He said that he will probably send a copy of the letter he sent to Frasier to the court explaining his opinion.
He went on to say that he believes it would be the City's position that Frasier and his client consider allowing the administrative appeal process before involving courts in the matter.
“I think anybody can say or accuse anything, but if recommending the appointment of two officers that have no prior history with the former chief is a problem, I'm flabbergasted. I don't consider that stacking, especially when the City Council has allowed three attorney's input on appointment,” David Anderson said.
He said, “I analogize this to jury selection. In my substantial legal experience, you entrust the process to them. Let them do that. Give them the chance to do their job. I think the Council's view would be to let these people do their job.”