Former San Francisco Police Chief George Gascón’s “conflict of interest challenge” continues to grow with yet another allegation of police misconduct by officers serving under his command.

The latest allegation stems from a video showing officers allegedly improperly searching a  residential hotel room and taking property from the room that was not marked into evidence – and then allegedly lying about it under oath.

These serious allegations of police misconduct require a serious response – and Interim District Attorney George Gascón can’t be serious if he proposes to investigate officers who were under his command at the time of the alleged misconduct.

When similar allegations arose last month, Gascón said he was under no obligation to recuse his office from any potential criminal prosecution. After the Federal Bureau of Investigation stepped in to review the allegations of misconduct, Gascón said he was stepping away from investigating those earlier allegations because of “resource” issues while continuing to insist that he had no conflict of interest. He has not defined what resources he was lacking.

From day one, Gascón had the clear obligation to recuse himself from investigating the Police Department he so recently led. And that obligation only becomes more pressing as the number and scope of allegations of police misconduct during Gascón’s tenure as police chief widens.  

The National District Attorneys Association’s National Prosecution Standards clearly states:

“The prosecutor should excuse himself or herself from any investigation…where personal interests of the prosecutor would cause a fair-minded, objective observer to conclude that the prosecutor’s neutrality, judgment, or ability to administer the law in an objective manner may be compromised.”

In my career as a criminal justice expert I have learned that our community is safest when the police and prosecutors earn – and keep – the public’s trust. Our appointed District Attorney undermines years of progress in building trust when he refuses to acknowledge his clear conflict of interest.

Gascón’s failure to address conflict of interest issues was also highlighted by recent disclosures that his former campaign consultant potentially violated city ethics laws by lobbying him on behalf of the San Francisco Police Officer’s Association, the police union. The campaign consultant also potentially violated the same ethics rules in lobbying another former client, San Francisco’s City Attorney. The City Attorney acted quickly to recuse himself from any investigation regarding the matter. Gascón has taken no action to recuse himself, despite the nearly identical fact set.

The people of San Francisco deserve and demand a District Attorney who will avoid clear conflicts of interest as a matter of policy – rather than personal whim. Gascón must recuse himself as a matter of policy from police misconduct cases of officers who served under his command. And Gascón is under an ethical obligation to develop and publish a clear conflict of interest policy.

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David Onek is a Senior Fellow at Berkeley Law School, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.

When San Francisco’s sitting police chief was chosen to become San Francisco’s district attorney, there were two clear schools of thought on such an unprecedented move.

Leaders of the American Civil Liberties Union and others wrote to underscore the conflict of interest inherent in elevating a sitting police chief to district attorney in the same city. They predicted that new District Attorney George Gascón would be terribly challenged by the conflict of interest posed by his tenure as police chief.

Other San Francisco leaders took a different view. They argued that Gascón had shown signs of being a reformer as police chief and that this was the same spirit necessary in the district attorney’s office. Conflict of interest issues, these thinkers argued, could be identified and isolated.

But the events of the past few months have highlighted just how significant the conflict of interest challenges faced by former chief Gascón are going to be. And his responses have not been encouraging.

San Francisco police officers have been accused of allegedly conducting illegal searches and committing perjury – incidents that occurred while they were under Gascón’s command as chief. Most of these cases occurred at Southern Station – the one station located in the Hall of Justice, the same building where Gascón worked as chief (and where he works today as district attorney). As chief, Gascón was responsible for the training and supervision of the involved officers.

When confronted with these facts, the former chief insisted he was perfectly capable of handling the investigation in his new office. He maintained he could fairly investigate the San Francisco Police Department for conduct that occurred when he led the agency.

Gascón maintained this position for nearly a week. Finally, after lawyers for the accused officers met with the police officer’s union, Gascón announced he was turning over the investigation to the U.S. Attorney’s Office – but insisted that it was due to unspecified “resource” issues, not because of a conflict.

His decision to turn over these cases to a third party, regardless of the motive, is a correct step. Yet something absolutely foundational is still missing – Gascón has not made it a policy to recuse himself from investigations relating to his own tenure as chief.

Gascón’s decision to continue – as a matter of policy – to investigate incidents involving police officers when they were under his command is fundamentally flawed on at least two basic levels. First, every suspect is entitled to a fair, objective investigation. When Gascón sits in judgment of his own service as police chief, this foundational principle of the law is undermined.

The second flaw underscores a management principle rather than a legal principle, but is vitally important if you are an advocate of reform in San Francisco or elsewhere.

When Gascón makes the decision to investigate the officers who served under his command, he is saying clearly that he himself holds no responsibility for their behavior. Such a position of inoculating the leader from the behavior of his agency undermines the basic tenets of reform – and frankly, the basic principles of sound management.

In the not too distant past, San Francisco saw the bulk of the police department command staff criminally indicted for allegedly covering up an incident involving off-duty officers on the street. Those charges were dismissed, but the underlying culture of top command looking the other way rather than embracing oversight and responsibility was identified as a problem that needed to be fixed.

The new chief after that incident was Heather Fong, who embraced a culture of responsibility starting at the top.

If former chief Gascón is now saying that he was not responsible for the actions of his own officers – he is saying he does not understand the foundational principles of how to lead a reform movement.

For the sake of justice – and for the sake of reform – former chief Gascón needs to implement a clear conflict of interest policy that would recuse him and the office he now leads from investigating the San Francisco Police Department.

David Onek is a Senior Fellow at the Berkeley Center for Criminal Justice, former Commissioner on the San Francisco Police Commission and candidate for San Francisco District Attorney.