Lynchburg police forbid secret taping

Listen to Detective John Romano’s 54-minute recording

Click to view the lawsuit


Guide to tape
00:08 Police Chief Parks Snead and Detective John Romano discuss the city manager’s reaction to Romano’s public statement, made 24 days earlier, questioning the city manager’s handling of the budget. Snead tells Romano the city manager was upset early on, “but that was a long time ago. He’s fine now.“ He also offers words of support for the detective. “You work here and you’re in the years-long habit of doing the right thing. I know that. I’m not concerned about that.“
01:30 Awaiting the city manager’s arrival, Snead and Romano engage in small talk. Snead explains the history of a keepsake on his desk. Romano reports on some of the cases he is working on.

07:41 City Manager Kimball Payne arrives. The recording rustles for several seconds as the men exchange greetings.
08:15 The conversation at the center of Romano’s lawsuit begins. During this period, Payne tells Romano that his earlier statement contained inaccuracies and was personally insulting to him. He also criticizes Romano for failing to identify himself as a city employee at the time, saying the detective misrepresented himself and fell short of the level of integrity expected in city government. Romano responded he wanted to separate his professional and personal life in this matter and repeatedly requests that they discuss this at a time when he isn’t working. He also said he was observing the wishes of the police chief by not mentioning his place of employment. The chief, who remained quiet during most of the meeting, acknowledges that Romano was advised to omit the fact that he’s a city employee.
At one point, Payne tells Romano that if he continues to do these things it will affect his career and “you’ll never be able to prove it didn’t.“ Romano responds that he did not violate any city policy and says he’s feel the city manager may have crossed a line. “You’re basically threatening me that if I speak again that I’m going to be penalized in a way that may not be easily detectable. And I don’t think that’s appropriate.“
Payne later apologizes and says it was never his intent to threaten Romano. He also indicates he does not intend to hold a grudge. “As far as I’m concerned when this is over, this is over,“ he said. “Because I don’t live my life that way. And if you thought I was threatening you earlier, I apologize for that. I certainly didn’t mean to do that. Because I don’t intend to do anything, other than hopefully answer your (budget) questions some day when we have that chance.“
45:52 The conversation begins to digress into a form of friendly small talk. Topics include issues related to computer crime — a specialty of Romano’s — and a shooting simulation program operated at the Central Virginia Criminal Justice Academy.

Seven weeks after a detective secretly taped a meeting with the city manager and police chief, the Lynchburg Police Department issued a written directive forbidding employees from making such recordings in the future.

Officials said the new policy was not a response to Detective John Romano, who has filed a $500,000 civil suit against the city alleging he was threatened and harassed after publicly criticizing the city manager.

The centerpiece of that lawsuit is a recording Romano made on April 3. The new LPD rules were implemented May 20, although officials said they had been in development for months before and were first discussed back in January.

“We had been researching this issue for some time prior to implementing the policy,” Capt. Brandon Zuidema, the department’s public information officer, stated in an e-mail.

Although it is legal in Virginia to tape a conversation as long as one party involved consents to it, the new LPD policy on surreptitious recording argues there is a difference between what’s legal and what’s ethical.

“Police Department employees must follow a code of conduct that reflects the highest ethical standards and promotes public confidence in the Department. Conduct may be unethical, even if it is lawful,” states the three-page document.

The policy does carve out exemptions for things such as recordings made to further police investigations or document interactions with the public. “However, as a general rule, the non-consensual recording of a conversation with another person outside of criminal investigations is not appropriate and is incompatible with the best interest of the Police Department,” it says.

The directive goes on to explicitly prohibit recording other LPD or city employees, although one exception to that ban is provided. Recordings of fellow employees will be allowed with the prior approval of a division captain, it says.

City Attorney Walter Erwin said the LPD created this policy based on a recommendation he made back in January. Employees recording each other has been a problem for the city in the past, he said, one not limited to the police.

“It appears to be becoming more and more of a common practice,” he said, attributing the trend to the better recording technology available today as well as “just a sign of the times we live in.”

Other Virginia communities have also reported problems with surreptitious recording among staff, he said.

Erwin said his recommendation was in no way tied to Detective Romano, noting it was months before any of the events related to that lawsuit occurred.

The entire LPD policy, entitled Use of Recording Devices, is not focused solely on covert recording but also addresses broader police issues, such as how to preserve a recording for evidence.

The city’s general employee handbook does not prohibit recording co-workers, but the human resources department is considering adding that restriction as part of a pending update to the manual.

“In the past, when employees have been discovered recording in the office, they’ve always been told to stop. They’ve been told that’s not appropriate behavior,” Erwin said. “But now it looks like for the first time we may be getting to the point where we need a citywide policy.”

Like the LPD policy, Erwin drew a distinction between the legal and ethical issues involved in recording someone without their knowledge. He noted the Virginia State Bar has ruled that secretly recording someone is a punishable breach of ethics for attorneys in the commonwealth.

“You have to remember that just because something is legal doesn’t mean it’s the ethical or proper or professional thing to do,” he said.

Asked about the possibility that the new guidelines could restrict an employee’s ability to document misconduct in the office, Erwin said the policy is not meant to inhibit those using legal measures to investigate criminal behavior.

Detective Romano is suing the city for violating his constitutional rights after he was upbraided for criticizing the city manager’s handling of the budget during a City Council meeting in March.

He was subsequently called to a meeting with City Manager Kimball Payne and Police Chief Parks Snead, which he secretly recorded.

On that tape, Payne can be heard telling him that such speeches are “gonna make a difference in your career, and you’ll never be able to prove it didn’t.” Later, Payne apologizes and says he does not plan to “do anything” to Romano.

The city says no punitive action was ever taken against the detective.