Consultant raps FMPD probe into talk of keeping proposed police station cost under wraps

An independent consulting firm has released a report critical of Fort Myers Police Chief Derrick Diggs for his handling of a complaint that a high ranking officer wanted to play down rising costs for converting an existing building on Dr. Martin Luther King Jr. Boulevard for use as a new police headquarters.

The consulting firm Jensen Hughes said Diggs' failure to have an internal affairs investigation of the police major in charge of internal affairs reviewed by a senior officer led to an incorrect finding by the chief on an internal complaint against one of the department's highest ranking officers.

The investigation centered on a June 10, 2021 meeting of five members of the police department that included discussion of growing costs of a proposed new city police station on Dr. Martin Luther King Boulevard.

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The meeting was attended by Diggs, Major William Newhouse, Inspector General Donald Oswald, Lt. Roger Valdivia and Deputy Police Chief Jeff Meyers.

The consultants, with offices in Lake Worth and Coral Gables, were hired by the city, and have been reviewing the handling of Oswald's complaint against Newhouse.

The complaint was centered on comments allegedly made by Newhouse at the meeting that raised the issue of keeping the rising cost of the project from the city council until the city's financial commitment to the police headquarters plan was so large it would not make economic sense to pull out of the project.

Consultants Mark Giuffre and Michael Dirden, of the consulting firm, said the five meeting participants were consistent in recalling that "Newhouse made a statement to the effect that Lt. Valdivia not tell anyone on city council that the cost estimates for the police department project had significantly increased."

Valdivia has been a liaison between the city council and the architects hired to design the proposed conversion of a former newspaper office and printing campus into a police station.

Newhouse denied that he was attempting to avoid telling the city council of the rising cost of the project, but Oswald moved forward, filing a complaint with the department's internal affairs unit.

After the complaint was filed, Lt. Lesa Breneman was assigned to investigate. Her report, based on interviews with the people involved in the case, was sent directly to Diggs.

The consultants said that was contrary to department procedures, which call for a high ranking officer, such as Newhouse, to review internal affairs reports before they are sent to the chief for final action.

"In the absence of the Internal Affairs Commander's ability to review the case, a designee should have been appointed to do that in his place, per FMPD policy," the consultants' report said.

"Had someone with expertise in internal affairs investigations completed that review before it went to Chief Diggs, it may have helped him make the correct finding of Not Sustained based on FMPD policies," the consultant's report to the city manager and city attorney stated.

Department literature indicates Breneman became commander of the internal affairs bureau in 2021.

The internal affairs report Diggs upheld called the allegations against Newhouse "unfounded." Jensen Hughes' report states that a complaint can be called unfounded "when the complainant admits to making a false allegation or the facts of the investigation support this, or the accused employee was not involved in the incident, or there is no basis in fact that the incident occurred."

The consultants stated that the finding should have been "not sustained," which they define a finding that "the allegation has been investigated and the facts presented are insufficient to prove the allegation by a preponderance of evidence."

Definitions included in the Jensen Hughes report were those used by the Fort Myers Police Department.

Fort Myers City Council members will consider the consultant's report at its regular meeting Monday at 4:30 p.m. in the council chamber at Oscar M. Corbin Jr. City Hall, 2200 Second Street.

Newhouse retired from the police force in November. Oswald resigned his position in October.

The consultants said Oswald, Diggs and Meyers each recalled comments from Newhouse to the effect that the council "should not be told about the price increase until $36 million obligated to the construction project was already spent and it would be impossible for them to back out of the project."

In an interview during an internal police department probe of Newhouse's remark, Oswald said "it made me sick to my stomach that somebody actually could think it was okay to order somebody not to tell our elected officials that a project is going to cost more."

After Oswald filed the complaint against Newhouse, an attorney for Newhouse filed a complaint accusing Oswald of violation of police "general rules of conduct" in handling the investigation into Newhouse.

The city council hired Jensen Hughes to direct the investigation into the allegations against Newhouse and asked the consultants to "evaluate the internal investigation process that the FMPD implemented to investigate Oswald's complaint for compliance with FMPD policies and procedures."

Oswald's attorney has been critical of assigning the investigation of Newhouse's statements to one of his direct reports.

"Are you kidding me? How can a subordinate investigate the boss for the boss' misconduct," said attorney David Seide, who represents Oswald. "It's just a blatant conflict of interest ... you can't have a subordinate investigating the boss."

Breneman reported that her investigation found that Diggs claimed the statement by Newhouse about keeping information from the council, which gave rise to the controversy, had been taken out of context in Oswald's complaint against Newhouse.

The consultants said they "absolutely concurred" with Diggs' decision to order an investigation, but faulted him for failing to have the report reviewed by a ranking officer before being submitted to the chief for final action.

In other cases, the consultants said, Newhouse, would have reviewed an internal affairs investigation report before it was sent to the chief for action.

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The consultants also said Fort Myers police should have turned such an investigation concerning one of its leaders over to another agency with no connection to the case.

"The public expects transparency, accountability and fairness throughout an alleged misconduct investigation," the report said. "This would include considering when to seek an external agency's assistance to handle an internal investigation in which the agency's trust and accountability to conduct a fair and impartial investigation is called into question."

Fort Myers Mayor Kevin Anderson, who rose to the rank of major in the police department before retiring, said he was "disappointed" by what he learned about the way the department handled the allegations raised by Oswald concerning Newhouse.

"We want an internal affairs process that is very thorough and complete, that's very impartial and fair and is focused on one thing and one thing only," Anderson said. "How do you really expect somebody lower ranking than the person being investigated when that person being investigated has some direct or indirect authority over the people doing the investigating. It lends itself to the appearance that this is is not a thorough, complete and fair investigation."

Consultants Giuffre and Dirden said they found "inconsistencies" in the recollections and interpretations from people in the meeting where Newhouse allegedly raised the issue of holding back information on the cost of the new police station.

The consultants reported their investigation found different opinions as to whether Newhouse spoke "angrily" in the meeting or whether he gestured at Valdivia, as if giving him instructions. The consultants also raised the question whether Major Newhouse's comments to Lt. Valdivia could be considered a formal order to withhold information from the council.

But Valdivia didn't see it that way and said he considered Newhouse's remarks a "general comment" rather than a direct order.

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Anderson noted the department's internal investigation of Oswald's complaint against Newhouse needed to follow the standard procedure of having a senior officer review the findings before forwarding the report to the chief of the department.

"You're investigating someone who reports directly to the chief, someone that's high ranking and the only other two people who were higher ranking were the deputy chief and the chief, who were involved ... they were witnesses," Anderson said. "What this does is allows for increased questioning of the validity of the process — there should have been an independent investigation."

Cape Coral lawyer Robert Burandt, a former police officer who has represented Newhouse and whose legal clients include the police union, said the complaints filed by Inspector General Oswald, against Newhouse concerning the police facility construction reflected a different agenda.

"[Oswald] filed the complaint against Newhouse for two reasons, one, he is mad at Newhouse and two, he is trying to get the chief ... because he wants to be chief," Burandt said.

Burandt called the city turning to an outside consultant to review the case "a total waste of money" that "certainly has no impact on Newhouse," who retired from the force last November.

Still pending before the city's Citizen Police Review Board are complaints filed with the board by attorney Seide on behalf of Oswald asking that the review board overturn Diggs' decisions to sustain complaints made against Oswald by Burandt, the lawyer for Newhouse.

The complaints filed by Oswald seek to overturn Diggs' findings that upheld the allegations made by Burandt on several issues. They included a delay of about two weeks between the meeting on the police station costs and Oswald's decision to file a complaint against Newhouse.

Diggs also upheld allegations made against Oswald in the complaint filed on behalf of Newhouse. Those allegations claimed that Oswald broke department rules in the course of his investigation, by speaking with the county attorney and the mayor about the case without the permission of the police chief.

Diggs found the complaints against Oswald to be "sustained." As with the allegations against Newhouse, he did not have the internal affairs report reviewed by a senior officer.

Oswald has appealed Diggs' decision to the Citizen Police Review Board, which the second Tuesday of each month, which would make its next meeting on May 12. No agenda for that meeting has been posted.

This article originally appeared on Fort Myers News-Press: Report criticizes FMPD probe into talk about proposed police station cost