During an arbitration interview last year, John Hirokawa testified that demoting Sgt. Don Morrissey for his involvement in a texting scandal was “too severe.” Based on what he knows now, Hirokawa says the punishment wasn’t severe enough.
Last week, after a San Jose Inside story reignited the issue, the ex-Santa Clara County undersheriff says union president Morrissey should have been fired from the department—and he also wants him to step down as Deputy Sheriffs’ Association (DSA) president.
“Based on what I know today, he should be terminated,” Hirokawa affirmed toward the end of an hour-and-a-half June 22 interview.
But Hirokawa—who’s challenging Sheriff Laurie Smith’s re-election this fall—has had many chances to learn the facts of the case and, by his own admission, chose not to.
After a criminal probe initially unearthed the vile text messages three years ago, the Sheriff’s Office convened a series of all-hands-on-deck meetings to deal with the flurry of media coverage. The 2015 discussions involved top brass, communications staff and outsourced public relations consultants gathered around a conference table, passing around a binder full of some of the 3,000 texts, which included references to “kikes,” “gooks,” a “shemale,” “nig nogs” and “yard apes.”
“How many soups to have your ass licked?” DSA president Morrissey quipped in one thread mocking inmates exchanging sexual favors for commissary items. In another, he responded to a colleague’s misogynistic joke about an “irritated cunt” by asking if it referred to Sheriff Smith.
It was a first-of-its-kind scandal for the agency, which was still reeling from unprecedented scrutiny after three jail guards beat mentally ill inmate Michael Tyree to death a few months prior.
As second-in-command and head of the jails, Hirokawa took part in the huddles alongside Smith and other members of the command staff. They talked about the racist, sexist, transphobic content of the texts exchanged amongst about a dozen officers, including the heads of two unions. It was a public relations nightmare, a uniquely digital-era problem at a time of mounting public distrust of law enforcement nationwide.
In last week’s interview, Hirokawa said he made a point of not cracking open that binder because he thought reading the texts would violate the privacy rights of the senders.
“There was still a concern that … we’re sharing personnel records with people who don’t have a right to know, in violation of personnel law,” he said of his mindset at the time.
When an independent investigative team led by retired Oakland police chief Howard Jordan hammered out a draft report on the case about three months later, Hirokawa was tasked with editing it. Instead of poring over the 26-page document, however, Hirokawa said he skipped to the end and merely “skimmed” the findings. Weighing in too heavily would have compromised the integrity of the investigation, he explained.
“And, you know,” he said with nervous laughter, “it looked all good to me.”
When Morrissey contested the demotion, Hirokawa again raised concerns about privacy and free speech rights, and whether the texts were sent on or off duty. When asked in a deposition last fall what concerns him about the sustained charges against Morrissey—that is, failure to report misconduct—Hirokawa responded with the same doctrinaire reasoning he tends to lapse into while discussing the case.
“As a department moving forward, again it was about the level of involvement and his—that the expectations in what was clear in the policy—or in the general orders [county policies],” he replied, according to arbitration records first obtained by the Mercury News in February. “The expectation that a supervisor, or let’s just say manager, command staff person may be at an event. And whether it be, like, a birthday party, wedding, gathering or just being together and drinking or being at a gathering, an event, and certain bantering or conversation going between people at a private event, and then when overheard by a supervisor or a manager, was there an expectation for them to come forward and report what was said and who said it.”
“And you didn’t believe that that was clear in the general order, the obligation to report?” the attorney then asked.
“For me, it wasn’t clear—that clear,” Hirokawa replied.
The ex-undersheriff maintains that at no point since 2015 did he read the content of the text messages or realize which ones Morrissey personally sent or responded to. When he sought the DSA’s political endorsement in late 2017, he said in last week’s interview that he never broached the subject with the embattled union president because he didn’t want to pressure Morrissey into making any self-incriminating statements.
“There’s still personnel rights, there was a gag order, all this stuff in regards to discussion or asking him questions,” Hirokawa said. “So [to ask], ‘were you responsible?’ That’s an admittance. ‘Should I be concerned?’ That’s an admittance. So you’re really getting into asking him to disclose on the side, which could be ... that’s ... a rep-client privilege.”
Despite numerous news articles from the time the Mercury News broke the story about the texting investigation in 2015 and up through this year, Hirokawa said he never considered whether any of this would come back to bite the DSA chief.
“I mean, if it backfires on Morrissey, it’s on him,” Hirokawa said. “We talked about this. ... Again, they [the members] voted him in. I think they voted him in a second time. Those stories are out. Why am I then going to him, questioning him about his personnel issues? What I do know is that I made no assurances or promises to Don Morrissey. ... no behind-the scenes, no quid pro quos with the individual Don Morrissey.”
The DSA spent $186,828.35 in independent expenditures to promote Hirokawa’s candidacy in the June 2018 primary.
At a county Democratic Club meeting in May, Stanford University law professor Michele Dauber asked Hirokawa about how he would handle a similar scandal as sheriff. Again, he responded by citing confidentiality and distancing himself from the Morrissey case.
“I had nothing to do with it,” he said. “I was not part of that.”
Dauber had to repeat her query.
“The question I asked was how do you think that should have been handled and how would you handle it if you were elected and something like that happens?”
“If somebody is sending racist texts while on duty, I believe they should be fired,” Hirokawa finally offered without naming Morrissey or saying how he’d deal with off-duty texts. “But again, I don’t have access to all the personnel records.”
Only in the past week did Hirokawa call out Morrissey. The day San Jose Inside published a story about an arbitration ruling that upheld his demotion, Hirokawa said he phoned the DSA president and urged him to step down.
Hirokawa says Sheriff Smith should have fired Morrissey if she felt so strongly about it. Smith said from the beginning that Morrissey should have no place in law enforcement. But concerns about her retaliating against Morrissey prompted the county to hire an independent investigator. When the disciplinary review board comprised of her command staff recommended demotion, the sheriff deferred and signed off.
“[T]he record evidence shows that the sheriff had no direct involvement in the disciplinary process resulting in [Morrissey’s] demotion,” attorney Morris Davis wrote in his arbitration opinion. “Thus, all of the statements attributed to others, regarding the sheriff’s purported dislike of [Morrissey] or implied animus, are unsubstantiated hearsay and therefore insufficient evidence to prove retaliation.”
As a high-ranking official in the Sheriff’s Office, Hirokawa had access to documents that would have shown the full context of the quoted texts and detailed Morrissey’s complicity. Even as a retiree and aspiring sheriff, he then could have read the news articles about the case and made a determination about whether to talk to Morrissey about it. But until recent days, Hirokawa’s response to the scandal consistently zeroed in on privacy rights as his main concern.
Morrissey’s baggage, which dates back to his first demotion in 2012 for surfing porn at work, sullies more than just his own reputation. He represents a union of comprised of hundreds of officers, some of whom say they will withdraw their membership unless Morrissey and his No. 2, Roger Winslow, resign.
It also affects Hirokawa’s election bid. Forcing Smith into a runoff for the first time in two decades was a huge win. But instead of riding high off that victory, Hirokawa went on the defensive—all because Morrissey put his personal battle to regain his rank above union members’ political interests.
In trying to get his sergeant stripes back, the labor leader unsealed his arbitration ruling and forced Hirokawa to publicly reckon with Morrissey’s checkered history. Now, the union has to answer to its members.
“In our law enforcement profession, we are no strangers to being tried in the court of public opinion before facts have a chance to be evaluated,” the DSA board wrote in an email to members Tuesday, promising to make Morrissey available for one-on-one meetings upon request. “This current environment is no different.”