Lansing’s protocol gray area raises concerns of ‘councilmanic interference’

Members from the Lansing City Council's Public Safety Committee review documents in preparation for Wednesday's heated meeting about sex-sting operations. From left are Eric Hewitt of the First Ward, Sandy Allen of the Second Ward, City Council administrative assistant Diane Bitely, and Carol Wood, an at-large member of the council. (Photo by Todd A. Heywood/Michigan Messenger)

LANSING — In the study of ethical strictures that govern actions by public officials, there is a principle called “councilmanic interference,” a term that describes the extra weight that’s given to statements, inquiries and comments from elected and appointed officials by city employees. And in the capital city, officials are sorting out whether a request for a May 22 undercover sex-sting by the Lansing Police Department by an appointed member of the city’s Board of Police Commissioners stepped over the line and into the territory of councilmanic interference.

Regardless of the controversy surrounding the police sex sting sparked by what’s been called “badgering” by Board of Police Commissioners member Jan Kolb, the subject of a heated Public Safety Committee hearing on Wednesday, the debate on the absence of specific policies and protocols in such situations has been “a long time coming,” according to Lansing City Council member Eric Hewitt, who represents the city’s First Ward.

“It has to do with snow removal, garbage pick up, park opening and closings, how are we supposed to do it and that way if something ever happens, we know whether or not someone actually did the job as they were supposed to do it, and we protect the taxpayers of the city of Lansing,” Hewitt said in an interview following Wednesday’s hearing, where Kolp’s actions were defended by Mayor Virgil Bernero and police officials.

Hewitt and fellow council member Carol Wood, who is running against Benero for mayor, have said they support the implementation of specific rules and regulations that could prevent such confusion that can involve such special requests from officials.

In an interview Tuesday, Lansing Police Chief Mark Alley, said the department doesn’t have such policies, and he sees no reason for one.

“I have no reason to question the ethics or integrity of the police commission,” Alley said.

The situation exists in a gray area.

“It is entirely appropriate, not to mention commonplace, for citizen members of city boards and commissions to communicate their opinions and concerns to the departments they advise. That is clearly part of their role as a member of the board of commission,” Bernero spokesman Randy Hannan wrote in an email to Michigan Messenger. “At the same time, they do not have the authority to direct the actions of our departments or any departmental personnel.”

Tom Hendrickson, executive director of the Michigan Association of Police Chiefs, has called Kolp’s calls to Lt. Larry Klaus, who oversees the Special Operations Unit, requesting the sex-sting in Lansing’s Fenner Nature Center in May “disruptive” and “absolutely” dangerous to officers’ safety. “You have officers or departments acting independently or responding to some one else. They are serving a different master or command structure,” Hendrickson said, noting that in some cases, if uniformed officers on duty encounter an undercover operation they weren’t privvy to, officers and others can be hurt unnecessarily.

In the initial backlash to the sex sting, officials, including Alley, said they did not know about the undercover operation until after it was conducted.

Kolp has admitted to calling Klaus to complain about sexual activity in the park. But Kolp has claimed she did so as a member of the public, not as a police commissioner. But internal communications released by the city show that Klaus hoped to get “Jan Kolp off my back.”

“You’ve got a case where Lt. Klaus made a judgment call on problem solving. He didn’t do anything illegal,” Alley told members of the city council at Wednesday’s hearing

“I’m concerned that what triggered this was the inflammatory comments that were being made by a police commissioner to a lieutenant,” Hewitt said during the hearing.

“I’m horrified by the lack of communication,” said Penny Gardner, president of the Lansing Association for Human Rights, one of the groups, along with Michigan Messenger, City Pulse newspaper and the Detroit-based Triangle Foundation that has been battling the city and police to release documents related to the origins and execution of the sex sting. “I’m almost horrified by the incompetence I’m hearing here,” Gardner said.

Judy Nadler from the Markkula Center for Applied Ethics at California’s Santa Clara University said the situation certainly creates a concern about “councilmanic interference.”

“It is virtually impossible as an elected official or a public official to not be assumed or recognized as serving in your official capacity,” said Nadler, a former two-term mayor of Santa Clara, a city of about 114,000 people near San Jose. As a result, she said, when such an official makes contact with a city employee it puts that employee in an “impossible situation.”

“The city employee is in a no-win situation because he or she doesn’t want to create a problem, friction, which could lead up the chain to his or her boss,” Nadler said.

And the official does not have to direct an employee, Nadler said, in order to create this dilemma for employees. She said the mere fact that an official is calling is enough for a city employee to presume that person is calling in an official capacity and respond to the expression of a concern as a direction.

Nadler would not weigh in officially as to whether Kolp had violated any ethical considerations, but she called the situation “a tough call ethically. It requires an abundance of caution.” She said while Kolp may not have violated the principle of councilmanic interference, there was “certainly an appearance that her call had a greater-than-average influence and quicker, perhaps, than average influence on the actions that were taken.”

The problem such as Kolp’s could have been avoided, Nadler said, with a clear policy.

“You are protecting the commissioner and the employees. And by doing that, you are protecting the public from the fear that there are special people who have special access and special interests in the police department,” Nadler said. “It’s about trust and transparency. Both are very, very good for the public confidence.”

Concerns over sting operation persist

The specifics of the sting operation are also coming under close scrutiny. Gardner, from LAHR, called the police actions “entrapment.” Jay Kaplan, staff attorney for the LGBT project of the American Civil Liberties Union of Michigan, has raised concerns about equal protection violations as well as entrapment. Kaplan also expressed concerns over why the sting operation was even necessary considering evidence released by the city, in conjunction with public statements by police officials, that show other actions by the department had been working to reduce the sexual activity in the park.

Those concerns deepened when Alley admitted that the concerns about sex in the nature center have existed for many years, but until the May 22 sex-sting operation, the department has never been able to substantiate the allegations.

The released arrest reports raise serious questions as well. Neither of the two men arrested during the sting attempted to have sex with the officers in the nature center. In fact, both reports show both men agreed to follow the decoy officer to an apartment to have sex. In one case, the man was rubbing his groin through his clothing, the report shows, and the undercover officer asked him: “Can I see it?” That action lead to the man exposing his penis to the officer. In the other situation, the officer used nonverbal communication cues to entice the man to expose himself. In that report, the officer discusses at length his knowledge of nonverbal cues to initiate exposure.

Both men have been arraigned and have plead guilty to charges.

While representatives of Triangle Foundation, a Detroit-based lesbian, gay, bisexual and transgender advocacy organization, were not in attendance at Wednesday’s hearing, Executive Director Alicia Skillman issued the following statement about the situation:

“We have worked well with Chief Mark Alley and the Lansing Police Department and will work harder with the Ingham County Prosecutor to figure out what went wrong recently in Fenner Park. If any illegal activities were occurring, the neighborhood association or any of the groups involved could have reached out to the Triangle Foundation and other local groups to deter the conduct. However, it appears that a member of the Police Board of Commissioners used her authority to target gay men and that is simply wrong. Her conduct is reprehensible.”

When asked by Lansing City Council member Sandy Allen, who represents the Second Ward, if Kolp had a responsibility to report criminal activity to the police in her capacity as a commissioner, Alley responded: “Absolutely … They would be negligent if they didn’t.”