Denver says its top cops are now exempt from independent monitor’s oversight. Here’s who disagrees.

The city administration has told its police oversight agency to butt out of cases involving the police chief and sheriff.

Denver Police Department's Chief Robert White at Mayor Michael Hancock's Cabinet in the Community event. Nov. 19, 2016. (Kevin J. Beaty/Denverite)

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The city administration has told its police oversight agency to stay way from internal investigations of the police chief and sheriff, and the decision is raising eyebrows around Denver.

Nicholas Mitchell, the city’s independent monitor, is a civilian who’s supposed to keep an eye on the city’s law-enforcement employees. His office of more than a dozen employees is allowed close access to investigations of alleged wrongdoing by law enforcement in Denver.

Now, though, there’s a major question in City Hall about Mitchell’s role: Does it include leaders like the chief and sheriff, who were appointed by Mayor Michael Hancock?

Apparently not, according to the city administration.

Troy Riggs, the director of the department of the safety, will no longer allow the independent monitor to supervise investigations into law-enforcement leadership, according to his spokesperson. He’s acting after getting legal advice from the city attorney’s office, as he told KDVR.

“Executive Director Riggs is following the Charter and related ordinances that define the monitor’s oversight authority,” wrote safety spokesperson Daelene Mix in an email to Denverite.

Mitchell has been allowed to monitor investigations into White and previous chiefs, but the new policy will prevent him from doing that now and in the future, according to Mix.

The decision keeps the monitor away from two current investigations.

One is about Sheriff Patrick Firman’s alleged role in awarding a disputed contract. Another involves undisclosed questions about Chief Robert White, who recently announced his retirement.

The investigation into White involves “unrelated allegations that came to light” during a previous investigation of White and deputy chief Matt Murray, Mix wrote.

The decision is raising red flags for some city officials.

Councilmen Wayne New and Paul Kashmann said that they want the city to find a way to give Mitchell full access.

“I think it’s important that the monitor be free to investigate at all levels,” Kashmann said. “I don’t like the policy of being able to investigate the rank and file, but not the higher-ups.”

The city administration has defended its decision on legal grounds. But that argument doesn’t hold up, according to Mark Silverstein, the legal director of the American Civil Liberties Union of Colorado.

“I would assume that the sudden change in position on the part of the city attorney’s office and the manager of safety’s office is a political decision,” he said.

Here’s the city’s specific reasoning.

Mitchell’s powers as monitor are outlined in an article of the city’s municipal code.

The second paragraph in the article says that the monitor “shall actively monitor and participate in certain investigations of …  all members of the classified service of the Denver police department (and) all sworn members of the Denver sheriff department.”

So, that paragraph would not include people who are appointed by the mayor, such as the police chief.

Speaking to KDVR, safety director Riggs said that language forced him to exclude Mitchell. (KDVR’s Rob Low broke the story this week.) Mix provided the same explanation to Denverite.

“I have taken an oath to follow the charter to follow the laws. That’s the legal opinion I have. It’s as simple as that,” Riggs said.

Mitchell also found his powers limited in the earlier investigation of White, when he was not allowed to suggest how the chief should be disciplined in the open-records case.

However, Mitchell has his own legal argument.

The ordinance later says that the monitor’s office will “have the discretion to monitor any internal investigation by the police or sheriff department.” The only qualifier is that the monitor’s office must believe “it’s in the city’s best interest”.

Silverstein, the ACLU lawyer, reviewed the ordinance and said that he found no reason that it excluded Mitchell from investigations of police leadership.

“I don’t see the conflict between these two provisions,” he told Denverite.

“One of them says the monitor shall monitor this group of investigations. That doesn’t say it’s the only thing he should do. And in addition, he has the discretion to monitor internal investigations by the police and sheriff’s department.”

Lonnie Schaible, a CU Denver academic who specializes in criminal justice, said that he agreed.

“Like it or not, that IS the monitor’s role, and to subvert it undermines public trust in the police department,” he wrote in an email to Denverite, noting that he’s not an attorney. “They’d fare far better if they welcomed outside involvement by someone like the monitor who is a neutral entity — otherwise it looks like they’re hiding something.”

Councilwoman At-large Robin Kniech and Councilwoman Stacie Gilmore said they wanted to review relevant documents before commenting.

Mitchell provided the following written statement: “As Independent Monitor, I strongly believe that it is in the City’s best interests for my office to provide oversight of investigations into the Chief of Police and Sheriff, as it has done in the past.”

Why does this matter?

This dispute gets at the heart of Mitchell’s powers.

His office of more than a dozen employees is allowed close access to internal-affairs investigations of officers and deputies, including the right for his monitors to listen in on interviews and review evidence.

And while the monitor’s office doesn’t have a lot of direct powers, its supervision can have significant effects.

Take the case of Michael Marshall’s death in jail. He choked after being restrained by deputies. Internal investigators said that they were done with the case even though they hadn’t interviewed the deputies and nurses on the scene.

When Mitchell objected, they went back and did more research. Meanwhile, the city implemented reforms at the jail and paid out millions to Marshall’s family. Eventually, Mitchell published a lengthy report that called for civilian oversight of internal investigations.

At the time, Darold Killmer, a lawyer for Marshall’s family, said by email that the “report perfectly illustrates why we can’t expect the law enforcement to police themselves.”

Denver’s voters have shown support for the monitor’s office. They voted  in 2016 to enshrine the monitor’s powers in the city charter, with about 71 percent supporting the measure. That means that the office can’t be disbanded by the Denver City Council — it would take a vote of the people.

The mayor does have the power to fire and hire the independent monitor — but there has been no indication that Hancock wants to change the monitor’s office leadership. Hancock’s office didn’t respond to a request for comment.

Andrew Kenney

Author: Andrew Kenney

Andrew Kenney writes about public spaces, Denver phenomena and whatever else. He previously worked for six years as a reporter at The News & Observer in Raleigh, N.C. His most prized possession is his collection of bizarre voicemail. Leave him one at 303-502-2803, or email akenney@denverite.com.