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Portland City Council Informal

Agenda
Portland City Council Informal
January 11, 2001 2:00pm - Council Chambers
Handling of Citizen Complaints about the Police
Introductions Mayor Katz
Background on Task Force
Task force assignment Mayor Katz
Meetings, division into two groups, etc. Mike Hess
Overview of process Gary Blackmer
Today: hear the concerns with the current system, focus on clarifying questions.
Next week: formal acceptance of Majority and Minority Reports; public hearing
Coming months: research alternatives; solicit additional public comments; propose changes to Council; vote on changes.
Minority report 2 Representatives
Majority report 3 Representatives
Council discussion of specific decision points from the reports
What organizational model should be explored for PIIAC?
  1. Independent Investigations Model
  2. Audit Model
  3. Involved-Monitor Model
  4. Appellate Model
What problems do Council members see with the current system?
And what options would Council members like to see explored?
PIIAC
  1. Scope of authority
  2. Requiring sworn testimony by complainants
  3. Compelled testimony of officers
  4. Public hearings
  5. Standard of proof
  6. Staff resources
  7. Personnel standards
  8. Communications and community outreach
    Internal Affairs Division
  9. Communications and community outreach
  10. Intake
  11. Adequate Staffing
  12. Supervision and case management
  13. Mediation
Briefing Document
Portland City Council Informal
January 11, 2001 2:00pm
Handling of Citizen Complaints about the Police
General Schedule
January 11 -- City Council Informal - work session to discuss PIIAC changes
January 17 -- Council Hearing to accept Majority and Minority reports and hear public testimony
Mid-March -- Complete Mayor's and Auditor's proposed recommendations for public comment and Council review
Mid-April -- Finalize any necessary proposed Code changes
Early May -- Council Hearing to consider and vote on PIIAC code changes
June 30 -- Complete changes
Are there other models that should be explored for PIIAC?
Independent Investigations Model
An agency separate from the police is responsible for investigating citizen complaints. (Minneapolis, San Francisco)
Majority: favors this model. Independent investigation is seen as a key component to police accountability.
Minority: rejects this model as unnecessary in accomplishing the goals of effective civilian oversight; will exacerbate police-community tensions; prohibitive expense; legality questioned; violates City’s collective bargaining agreement with the police union.
Audit Model
Police department conducts investigations and the oversight body is authorized to review or audit completed investigations and to review policies and procedures of the police department and make recommendations for change. (Portland, San Diego, Los Angeles Sheriff’s Department)
Majority: feels there are inherent deficiencies in any system where the police investigate other police officers.
Minority: feels that the current model with improvements can function effectively.
Involved-Monitor Model
Police department conducts investigations and the oversight has some input in reviewing the investigation and making recommendations, which are forwarded to the police chief. (Kansas City)
Majority/Minority: Neither addressed this model.
Appellate Model
Police department conducts investigations and the oversight body can accept appeals and refer the case back to the police department for further investigation if the investigation was judged to be inadequate. (Omaha)
Majority/Minority: Neither addressed this model.
Council’s Views?
 
What PIIAC options would Council members like to see explored?
1. Scope of authority
The scope of PIIAC’s authority is one decision point. What is the range of activities PIIAC should review? Should PIIAC review audits of misconduct investigations of sworn as well as non-sworn employees? Should PIIAC’s review authority extend to Bureau policies and procedures; EEO complaints; internally generated complaints; investigations of high ranking officers; investigations conducted by outside agencies; investigation of police shootings and deaths in custody? Should PIIAC accept cases that are in litigation? Should PIIAC audit the Early Warning System and Review Level Committee?
Majority feels that PIIAC’s authority should be expanded to include review of completed investigations of police shootings and deaths in custody; that PIIAC should exercise its current authority to hold public hearings on police policy; and that PIIAC’s current authority to audit the Early Warning System should remain in place.
Minority agrees that PIIAC should continue having the authority to review the effectiveness of the Early Warning System itself as managed in IAD, but that this authority should not be expanded to reviewing personnel files. Reject the idea of PIIAC reviewing police shootings and deaths in custody, since these are already investigated by various tiers of government, including grand juries, District Attorney’s Office, and the PPB Detective Division. Support the review of cases involving command officers and where IAD has a perceived conflict of interest.
The majority and minority reports do not address the issues of whether PIIAC should review investigations of both sworn vs. non-sworn employees of the PPB; EEO complaints conducted by IAD; internally generated complaints; and cases that are in litigation.
Council's views?
2. Requiring sworn statements by complainants.
Police officers are compelled to cooperate with IAD investigations and are required to tell the truth under penalty of dismissal. Complainants, on the other hand, face no sanctions for false statements. All experts on civilian oversight agree that there must be no barriers, intimidation, or retaliation for persons who desire to make a complaint against a police officer. However, if a statement is to be given evidentiary weight, should the complainant or witness be required to sign an oath or affidavit that their statements are truthful?
Majority and Minority agree that sworn statements should not be required at intake, but that an oath (sworn statement) should be required if the statement is to be given evidentiary weight in the investigation.
Council's views?
3. Compelled testimony of officers
Of all the decision points, this has the most legal questions and issues affected by the Officers’ Bill of Rights and collective bargaining. The testimony of officers is an essential element of a complete investigation. Making changes to the current processes will require additional research, and we can pursue the issues relevant to the Council's questions and views.
Majority: feels that compelled testimony is essential to an independent investigatory process.
Minority: questions the legality of compelled testimony and feels that it violates the City’s collective bargaining agreement with the police union.
Council's views?
4. Public hearings
Most advocates of civilian oversight regard public meetings as essential for informing citizens of the facts regarding alleged officer misconduct. All PIIAC meetings are public, with the rare exceptions specified under the Oregon public meetings statute. Each agenda includes time for public comments. Public hearings on police practices and the complaint process can be a useful way of opening a window for the public into the Police Bureau and to solicit input of citizens. PIIAC currently has the authority to conduct open hearings on police issues of public concern, but this authority has rarely been implemented.
Majority and Minority agree that PIIAC should exercise its current authority to hold public hearings on police policy and issues of public interest.
Minority recommends that at least once a year the PIIAC Examiner and the IAD Commander should hold a public meeting to explain the IAD and PIIAC system .
Council's views?
5. Final Say on Findings; Disciplinary power
Many experts on civilian oversight agree that removing disciplinary power from the police chief and assigning it to an oversight agency not only undermines the authority of the chief, but may be detrimental to accountability in the long run. However, a frequent criticism of PIIAC is that it has no authority to change a finding on a police complaint investigation and has no authority to compel the chief to explain his or her decisions when they are contrary to PIIAC recommendations.
Majority and the Minority agree unanimously that final disciplinary authority should remain with the Chief of Police and the Police Commissioner.
Majority feels that PIIAC’s decisions on the disposition of cases should be final and binding; and that PIIAC/Citizen Review Board should have the authority to recommend that discipline be given but not to dictate the nature or severity of discipline.
Minority feels that PIIAC should not recommend discipline, as this would undermine the authority of the Police Chief.
Council's views?
6. Staff resources
A citizen oversight operation requires adequate staff and resources. Prior to the Mayor’s PIIAC reforms of 1994 PIIAC had a part-time staff person. Since 1994 PIIAC has had a full-time examiner, but no additional staff or specific operating budget. To the degree that responsibilities increase, consideration needs to be given to expanding PIIAC’s staff and budget.
Majority and the Minority agree that PIIAC needs more staffing and resources
There is general agreement among both groups that PIIAC should be staffed to provide intake of complaints and to assist persons in filing complaints; that volunteers should be trained to help complainants file complaints and move through the process; that a public awareness outreach program should be initiated; that mediation should be an option for all parties regardless of the model chosen; that adequate training resources should be available.
Minority also recommends that the City’s web page should be designed to accept complaints electronically.
Council's views?

7. Personnel standards
To ensure objective and thorough reviews, citizens need adequate skills and experience. The selection process has no guidelines to ensure that citizens approach their responsibilities in an unbiased manner. Standards for citizen advisors do not address any mandatory training or experience. Appointments are for two-year terms, but there is currently no limit to the number of terms that an advisor may serve.
Majority and Minority agree that citizen advisors should be appointed and not elected; that term limits be instituted; that training be mandated for all citizen advisors/board members, including attendance of the Community Police Academy, "ride-alongs" with police officers, and training on IAD standard and procedures, the PPB General Orders, Oregon Public Meetings law, disparate treatment and use of force guidelines, basic criminal law, etc.
Council's views?
 
8. Communications and Community Outreach
The citizen oversight body must make a continuous effort to inform the public about the complaint process, police bureau policies, and to listen to community concerns about the police and ensure access to the complaint process.
Majority and Minority agree that a public awareness outreach program should be initiated and that adequate resources be dedicated to this program.
Council's views?

What Internal Affairs Division changes would Council like to see explored?
Under the current configuration, PIIAC reviews the efforts of IAD and makes recommendations for improvement. Both functions are inter-related and the Majority and Minority groups also identified changes to IAD.
9. Communications and Community Outreach
Citizens who file complaints as well as the general public need to be kept informed about the complaint process, police bureau policies. In addition, the Internal Affairs Division needs to listen to community concerns about the police and ensure access to the complaint process.
Majority and Minority agree that a public awareness outreach program should be initiated and that adequate resources be dedicated to this program.
Council's views?
 
10. Intake
For a variety of personal and cultural reasons, many persons are afraid or reluctant to go to the police with their complaints.
Majority and Minority agree that persons should be able to go for intake to an office outside the Police Bureau, where their complaints will be taken by non-police personnel and that complaint forms should be made available through interested public service organizations.
Majority feels that complainants should be able to file complaints at a location separate from both the Police Bureau and the City Hall.
Council's views?
 
11. Adequate Staffing
Timely and thorough work is critical to the success of internal investigations. A Police Bureau General Order requires that IAD investigations be completed within ten weeks. However, IAD has been chronically understaffed, causing a backlog of cases with average completion times of more than a year. In September 2000, Chief Kroeker doubled the investigatory staff of IAD and assigned an additional supervisor and support person. This brought the IAD staff close to the recommendation of the International Association of Chiefs of Police of one investigator per 100 sworn and non-sworn employees.
Majority and Minority agree that IAD should be sufficiently staffed to permit completion of investigations within a specified number of days. Majority recommend 70 days (as per current PPB General Orders); Minority recommend 90 days. The Minority further recommend that the PPB should provide adequate incentives to make IAD positions attractive and career boosting.

Council's views?
 
12. Supervision and case management
A critical responsibility of IAD is managing its workload and performance to ensure the quality and timeliness of investigations.
Majority did not address supervisory and management issues except with regard to timeliness of investigations.
Minority recommended that the IAD Captain should have experience in conducting or supervising criminal investigations; that performance standards be put in place in IAD; and that case management software programs should be utilized by IAD.

Council's views?

13. Mediation
Mediation offers an alternative approach to resolving complaints. In mediation, there is no investigation, but the complainant and the officer agree to meet face to face with an independent mediator present, discuss the incident from which the complaint arose, and attempt to reach an understanding. Mediation can be offered to the complainant at the time of intake. However, the officer must agree to mediation and cannot be compelled to mediate. Complaints that are categorized as Use of Force or Disparate Treatment may not be mediated.
Majority and the Minority agree that mediation should be pursued as an option for all parties whenever it is appropriate.
Council's views?
 
August 25, 2000
 
INTEROFFICE MEMORANDUM
TO:
Mike Hess
PIIAC Examiner
FROM:
Jeffrey L. Rogers
City Attorney
SUBJECT:
Legal Questions Regarding Police Oversight.

INTRODUCTION
You’ve asked me to answer questions related to oversight of police conduct. The questions you forwarded to me were apparently compiled by one or more members of a committee reviewing the City’s Police Internal Investigations Auditing Committee (PIIAC) and considering whether to recommend changes to that system. The questions are best answered by addressing the core question.
QUESTION
If the City were to create an independent body to investigate allegations of misconduct by members of the Portland Police Bureau, could that body be given the authority to require police officers to appear before it and testify?
ANSWER
Yes, but only after certain steps are taken, including amending City Code or City Charter and bargaining with the affected unions. Furthermore, the steps that would be required depend on the degree of "independence" and the extent of authority given the new body.
DISCUSSION
The City Charter gives the Council as a whole, and the Mayor individually, the power to investigate the conduct of City employees. Portland City Charter sections 2-109 and 2-403. The same sections give the Council and the Mayor the "full power to compel the attendance and testimony of witnesses."
The charter provides that the Mayor may conduct an investigation herself, or appoint others to do it. Section 2-403. Charter section 2-104 authorizes the Council to delegate any of its non-legislative powers to boards or commissions. Therefore, both the Council as a whole, and the Mayor individually, have charter authority to empower a review body of City employees or private citizens to investigate allegations of police misconduct and to compel the attendance and testimony of witnesses for purposes of conducting investigations.
However, if these charter provisions were utilized to empower an investigating body, the Council or Mayor would retain ultimate authority and could revise or disband the body at will. The only way to establish a completely independent review commission with a life of its own would be to amend the City Charter to create such a body. The Charter can be amended only by the legal voters of the City of Portland. The voters could create a review body and vest it with the power to conduct investigations and compel the attendance and testimony of witnesses. However, as discussed below, unless that review body also had final disciplinary authority it is questionable whether an autonomous review body could effectively compel testimony of police officers if an officer exercised his or her fifth amendment rights against self-incrimination.
Another major factor which would have to be addressed before establishing a review commission more autonomous than the present PIIAC system is the City’s collective bargaining agreements. The current Collective Bargaining Agreement with the Portland Police Association does not contain any language that specifically prohibits mandatory cooperation with a civilian investigating body. However, that does not end the inquiry.
The central question is whether an action by the Council or Mayor authorizing a body to subpoena police officers would constitute a mandatory subject of bargaining. The Oregon Public Employee Collective Bargaining Act requires an employer to negotiate concerning all mandatory subjects prior to implementing a change in employment conditions. In addition, the City and the Portland Police Association have in their contract an existing standards article which expressly requires that all "standards of employment related to wages, hours and working conditions which are mandatory for collective bargaining shall be maintained at not less than the level in effect at the time of the signing of this Agreement." (Article 3.) This existing standards article includes all conditions of employment not mentioned in the contract but which are mandatory for bargaining.
Although there is no Oregon case on point, the Public Employment Relations Commission in the State of Washington (Washington’s equivalent of the Employment Relations Board in Oregon) concluded that the establishment of a citizen’s review panel with authority to recommend discipline was a mandatory subject for bargaining. PERC determined that creation of the panel constituted a change in disciplinary procedures and consequently the City had to bargain over the change.
Under Oregon law as well, discipline procedure is a mandatory subject for bargaining. A requirement that Portland police officers cooperate with a civilian investigating body would likely be interpreted as a change that affects the discipline process. This would be so if the body itself could impose discipline, or if an officer’s compelled statements could be used by the City to find a violation of the Bureau’s General Orders or to discipline the officer for his conduct.
Although not germane to the question of whether there is a duty to bargain, another relevant contract provision is Article 61, the Portland Police Officers Bill of Rights. This article sets forth mandatory procedures which apply to any non-criminal investigation which may reasonably result in the discipline of the officer. For example, the Bill of Rights requires advance notice of the charges and provides for certain interview safeguards including the requirement that the interview take place at a Portland Police Station facility. Given the scope of this article, the PPA could argue that the Bill of Rights provisions apply to the officer’s compelled appearance before the investigating body and the procedural safeguards would have to be included. If the Bill of Rights is not followed, the PPA could potentially use that as another vehicle to demand bargaining over any change to the existing PIIAC procedures.
Another issue intertwined with the question of bargaining is whether an autonomous investigating body without disciplinary authority could effectively compel statements from police officers. In Garrity v. New Jersey, 385 US 493 (1967), the US Supreme Court held that when a public employee is ordered to answer questions under threat of discipline, such compelled statements cannot be used against the employee in a subsequent criminal proceeding. In City and County of Denver v. Powell, 969 P2d 776 (1998) the Colorado Court of Appeals noted that the citizens review commission could not compel statements from police officers because the commission was not their employer and had no authority to discipline them for refusing to answer questions. Because the citizen review commission could not compel an officer’s testimony by the threat of disciplinary action, any testimony an officer gave would be considered voluntary and hence constitute a waiver of Fifth Amendment rights. Therefore, the citizen review commission’s authority to issue subpoenas did not translate into an ability to coerce a compelled statement. The court also found that the commission could not compel the officers’ statements by granting immunity because the commission had no authority to grant immunity.
The reasoning of the Colorado case indicates that subpoena authority held by a board without disciplinary authority would have no teeth since the investigating body could not compel an officer to testify in the face of an officer’s exercise of his or her Fifth Amendment against self-incrimination. This hurdle could probably be overcome if discipline authority was given to the investigating body, but that would definitely involve a mandatory subject of bargaining, requiring negotiations with PPA.
 
POSTSCRIPT
Portland’s present system for reviewing allegations of police misconduct could be left in place or could be revised in numerous ways. Any proposal to change the system significantly is likely to generate legal questions. However, those questions will vary depending on the proposal. It is impossible to anticipate all of the questions that could possibly be raised, and attempting to do so would be wasteful. Therefore, the appropriate way to proceed is first to provide a general outline of some of the major legal issues – which is presented above. Next, as specific policy proposals are developed, the legal issues they raise can be identified and addressed.
JLR:cj
  1. Sam Adams
David Lesh