San Jose Explores Faults In Employee Misconduct Investigations

By Jana Kaddah, San Jose Spotlight

June 1, 2022

San Jose Mayor Sam Liccardo wants to revise how city employees are investigated once accused of misconduct.

In his memo coming before the Rules and Open Government Committee on Wednesday, Liccardo asks the city manager and the independent police auditor (IPA) to break down what checks are in place to hold employees accountable and suggest new ones to protect the public.

The proposal follows the recent arrest and conviction of two city employees: San Jose Police Department Officer Matthew Dominguez and former Code Enforcement Inspector William Gerry. Dominguez was arrested for exposing himself to a family in their home in April —but was accused of sexual battery of a 25-year-old woman nearly a year before. Gerry was sentenced to 35 years in prison for soliciting bribes and extorting sex from massage parlor owners, in addition to molesting two children. His crimes allegedly started in 2018, but continued even after they were first reported.

“Although each case presents very different behavior and circumstances, one critical similarity exists,” Liccardo wrote in his memo. “Each city employee continued working in their public-facing role for several months, subjecting additional members of the community to harm and risk.”

Liccardo specifically calls on the IPA to review cases of misconduct and recommend changes to SJPD’s duty manual. However, this request may not go far because while the IPA has authority to investigate some cases and make recommendations, it has no real power to enforce decisions or unfettered access to SJPD data to conduct a thorough review. An IPA report revealed last year that a quarter of San Jose officers had complaints filed against them in 2020.

“The scope of the mayor’s direction may exceed the authority of the IPA,” said Aaron Zisser, the city’s former IPA and a San José Spotlight columnist. “What would’ve been better is a policy to change and enhance the authority of the IPA so they could conduct those kinds of investigations.”

Zisser said there needs to be an oversight body to review all of SJPD’s processes and not only suggest, but enforce recommendations similar to those put forth by the city’s Charter Review Commission and Reimagining Public Safety Community Advisory Committee.

“There isn’t an oversight agency that’s tasked with comprehensive review and that is what we need,” Zisser said. “It could look at background checks, the hiring process to see if (the city) missed anything.”

Raj Jayadev, criminal justice advocate and founder of Silicon Valley De-Bug, agreed with Zisser, but emphasized the need for significant change in the police’s culture of accountability.

“Auditing and holding someone to account are not synonymous,” Jayadev told San José Spotlight. “There’s only so many times you do an annual report that confirms the same trends and expect that’s sufficient enough to make the larger systemic and cultural changes required.”

For these reasons, Jayadev criticized the memo, calling it “cosmetic,” rather than effective or substantive.

“This type of misconduct is not the exception, but rather an endemic to policing,” Jayadev said. “And it’s not because these employees were particularly stealthy, it’s because they know there was no legitimate accountability system or culture of accountability within the department.”

Liccardo also wants the city manager to report what citywide policies have been, or will be implemented to address the risk of exposing the public to harmful behavior pending investigations of city employees’ criminal conduct.

Under state law, city employees have rights to a full and fair investigation of any allegations of misconduct prior to termination or other disciplinary action.

“That doesn’t settle the question, however, of why these employees were not placed on leave or otherwise reassigned to mitigate the risk of harm to the public from their behavior,” Liccardo said.

For example, in 2021, Dominguez was accused of touching a 25-year-old woman’s breasts and thigh and kept trying to touch her even after she rejected his advances at a Memorial Day party at the home of another San Jose officer, according to the Mercury News. Her allegation was investigated, but no charges were ever filed.

San Jose’s IPA alerted SJPD’s Internal Affairs unit in June 2021, but Dominguez was still able to serve as an officer in the public until the recent April episode.

In Gerry’s case, it took four complaints and a civil lawsuit for the City Attorney’s Office investigation to lead to a witness whose statements triggered his arrest, according to Liccardo.

“We must ensure that when a reasonable suspicion arises of serious misconduct by a city employee, no member of our community is subjected to a single hour of that predatory criminal conduct,” Liccardo wrote. “We must do better.”

The Rules and Open Government Committee meets Wednesday at 2 p.m.

Contact Jana Kadah at jana@sanjosespotlight.com or @Jana_Kadah on Twitter.

This story will be updated.

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