High Court Wants Sheriff to Partially Release File

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High Court Wants Sheriff to Partially Release File

Sheriff Terry Maketa

Sheriff Maketa's response to “High Court Wants Sheriff to Partially Release File,” found in The Gazette, Metro Section, on Tuesday, November 11, 2008.

This is in response to the article entitled, “High Court Wants Sheriff to Partially Release File” from the November 11, 2008, edition of The Gazette, pertaining to the release of internal affairs files on Shawn Moncalieri. As Sheriff, I have continually exercised proper discretion in this matter unlike the accusation made by Steven Zansberg in the article. What you, in the public, have not been told is the continual legal wrangling between the various entities involved that has driven the decisions in this particular matter.

First, while employed as a deputy, Shawn Moncalieri did arrest two men without sufficient probable cause on the night of December 28, 2006. Immediately upon this being brought to my attention, I placed Shawn Moncalieri on administrative leave pending the outcome of an internal affairs investigation and set into motion the necessary steps to correct the problem. This included admitting our wrongdoing, dismissing the charges against the two men, compensating them for damages they suffered, and assisting them in clearing their names. I accepted responsibility for the actions of one of my deputies and proceeded accordingly.

The County then entered into a settlement with the two men, which was not a lawsuit but an attempt to right a wrong. During the process, the County agreed to compensate each $20,000.00 for being arrested without probable cause. Part of this money was to help pay the legal fees necessary for the two men to seal their criminal records, so they would endure no future ramifications.

Upon completion of the internal affairs investigation, Shawn Moncalieri’s supervisors recommended termination, a decision I, as Sheriff, upheld. When The Gazette requested the internal affairs file for Shawn Moncalieri, I declined their request, in part because of Moncalieri’s expressed privacy concerns, but also over concerns of confidentiality for the two men who were identified by name in the internal affairs investigation. As a result, The Gazette sued to obtain the entire file. A subsequent article appearing in The Gazette cited our refusal and drew a comparison to a Colorado Springs Police Department case where the file was made available; however, this was done only after a judge reviewed the file in chambers and rendered a decision. This process is exactly what I wanted to occur so as not to be exposed to greater liability from the two men or Shawn Moncalieri. Each internal affairs investigation must be treated independently; you cannot automatically apply the same rulings and legal opinions to every similar case. In fact, internal affairs investigations have long been treated as confidential until just recently. Although this is a paradigm shift, it is a period of transition with no clear guidance from the Colorado appellate courts.

I tried to settle the lawsuit. I contacted The Gazette and agreed to release the information on the condition the two men’s identifying information (and that of other witnesses with privacy concerns) be blacked-out and not published. The Gazette refused this offer.

In court, Judge Miller ruled, “While the Court has overruled the Sheriff's objections, the Court notes that prior to making a decision in this case, the Sheriff's Office received strong objections to the release of the information from counsel for Deputy Moncalieri and John Does I and II. In light of these objections and the unique issue associated with the sealing order, the Court is not inclined to declare the Sheriff's refusal to produce the documents as ‘arbitrary and capricious’.” Simply stated, I did not make my refusal on a whim or with no predictable pattern but rather based on ramifications and potential liability. Had I released the file to The Gazette, I would have exposed the County to further liability from the two men or Shawn Moncalieri.

The most significant omission in the article is the attorney for the two men involved appealed Judge Miller’s decision to the Colorado Supreme Court, not I. I can only theorize that, had The Gazette been granted full access, the information on the two men would have become public record when the matter was previously sealed by the court.

After reviewing the case, the Colorado Supreme Court overturned Judge Miller’s ruling that the entire file be turned over and instead instructed my office to “balance the public and private interests involved” and submit what I deem to be appropriate for release to Judge Miller for review. The Supreme Court, however, upheld our desire to delete the two men’s identifying information, which is what I offered the Gazette in settlement. Based upon this decision, The Gazette eventually reviewed the internal affairs file with the two men’s names redacted and signed an agreement whereby The Gazette would not make any reference to the identity of the two men. My settlement offer became the resolution of the case and was eventually accepted by The Gazette. There simply was no impropriety.

As a public figure, I understand there is a certain amount of criticism that comes with the position; however, I must staunchly object to and refute the insinuation of a cover-up. My actions and those of my office clearly demonstrate acceptance of responsibility for an unlawful act by a former deputy, who was terminated, and the willingness to make matters right. Judge Miller, in his opinion, said, “[A] review of the subject investigation by the Court reflects positively on the officers and supervisors who candidly expressed concerns about Deputy Moncalieri's conduct and performance. Stated another way, the public interest is most certainly enhanced by a transparent look into how our local law enforcement reviews accusations of misconduct against its deputies. Although Deputy Moncalieri's conduct may well have fallen below the standards expected of law enforcement, it is likely that any dispassioned reader of these lengthy investigations will come away with the conclusion that many individuals with the Sheriff's Office acted with diligence and integrity in the reporting, investigation and evaluation of these complaints.”

As Sheriff, I expect nothing less than the utmost adherence to the criminal process and professionalism from those in uniform. When allegations of impropriety or wrongdoing surface, I am quick to respond to ensure the trust and confidence of the public is not shaken. I believe the actions taken in this case exemplify that belief and should clearly retain the public confidence for the men and women of the El Paso County Sheriff's Office.

Sheriff Terry Maketa