MINORITY REPORT OF THE MAYOR'S PIIAC WORK GROUP
October 30, 2000
In May, 2000, Mayor Vera Katz created a Work Group to evaluate the effectiveness of the Police Internal Investigations Auditing Committee (PIIAC). The charge given by Mayor Katz to the work group was to examine the strengths and weakness of PIIAC, hear citizen input, evaluate the citizen review processes in other jurisdictions, and to make recommendations as to how PIIAC could be improved.
Any examination of the effectiveness, strengths and weaknesses of PIIAC necessarily involves a review of the Police Bureau’s Internal Affairs Division (IAD). For these reasons, we are making a number of recommendations as to changes we believe are necessary not only in PIIAC, but in the IAD.
From all standpoints, much is gained when the Police Bureau and the community are jointly involved in the delivery of community policing. Both PIIAC and the IAD play an important part in the community policing system, insuring accountability, improving professionalism, and providing citizens with assurances that legitimate performance problems in their police services are being fairly, promptly, and thoroughly investigated. Citizen oversight strengthens both the police force and positive attitudes in the community.
Our overall assessment is that the structure of Portland’s system of police complaint investigation and civilian oversight not only a good one, but also follows the best form of civilian oversight available. However, delays in IAD investigations and the lack of adequate staffing in IAD have undermined public confidence in the system. Additionally, PIIAC has not always had the full support of Portland’s elected officials.
Beginning with the Police Bureau, complaints are fairly and impartially resolved by the Police Bureau. We concur with the City Auditor’s overall conclusion that IAD investigations are "well done" (City of Portland: Auditor’s Report, 20). In recent years, PIIAC has established a good working relationship with IAD. Cases have been returned by PIIAC to the IAD for further investigation, and IAD has performed the additional investigatory work. PIIAC has been very conscientious with respect to the ongoing monitoring function, something Dr. Sam Walker, the country’s leading expert on civilian oversight, finds to be the hallmark of a successful civilian oversight function. Almost universally, PIIAC’s recommendations to the Police Bureau as to disciplinary and investigatory procedures have been followed. In our judgment, the intent behind the original creation of PIIAC – in the words of the Storrs Commission, to provide the public with "a window into the internal affairs process" – is being fulfilled. Furthermore, the process has continued to expand and improve, though much remains to be done, as reflected in the recommendations in this report.
The average length of time to complete internal investigations, 13 months, is completely unacceptable and is the greatest source of frustration by citizens and police officers with the process. The City’s inadequate funding of investigative positions in the IAD cannot be allowed to continue. Additionally, the IAD needs to be run more as a business, using performance, case management and accountability tools. Additionally, a dual intake system for complaints and the adequate staffing of PIIAC support positions should be given high priority by the City.
We have also considered the proposals made by other members of the Work Group that would fundamentally alter Portland’s system of civilian review. Those proposals include changing PIIAC into an investigative body, vesting PIIAC with the ability to make binding decisions on the disposition of complaints, granting PIIAC the ability to make disciplinary recommendations and/or decisions, charging PIIAC with the responsibility of investigating or reviewing deadly force incidents, and a host of other proposals that would change the basic structure of PIIAC. We have rejected these proposals for the following reasons:
(1) The proposals have been inadequately researched by the Work Group. In several cases, members of the Work Group making such proposals made motions to consider the key elements of the proposals and then within minutes "called for the question," long before any adequate debate of the proposals could be had and without any consideration whatsoever of the experiences with such proposals in other jurisdictions.
(2) The proposals are unnecessary to accomplish the goals for effective civilian oversight. In fact, the PIIAC/IAD system has had a substantial measure of success, particularly since the Mayor’s last reforms of the system. Those in the Work Group who are proposing fundamental changes in PIIAC have been unable to clearly identify and define either what the problems are with the existing system, or what alternative approaches are most effective in solving those problems.
(3) The proposals would cause substantial expense to the City both in the form of direct costs and potentially in the form of civil liability. Additionally, there is no evidence that the quality of investigations would be improved under those proposals.
(4) Some of the proposals are of questionable constitutionality. It is inadvisable to vest with a review board the authority to compel police officers to give statements – which results in the granting of immunity for those officers from criminal prosecution. Significantly, the majority of the Work Group received no input whatsoever from the Multnomah County District Attorney’s Office on the proposal to grant PIIAC the ability to compel police officers to give statements.
(5) As described in a letter received by the Work Group from City Attorney Jeff Rogers, in some cases, the proposals would be inconsistent with the City’s collective bargaining obligations with both the Portland Police Association and the Portland Police Commanding Officers Association.
(6) The last three cities that have established "blue-ribbon" committees to study the appropriate model for civilian review, Austin, Sacramento, and Seattle, have all rejected such proposals and have opted for the "audit model" currently followed by Portland; and
(7) Based on experiences in other cities, the proposals have at least the significant potential to exacerbate rather than ameliorate police-community tensions, and will not accomplish their stated goals. The Work Group heard no evidence whatsoever of any link between the Review Board model and more effective internal investigations, citizen satisfaction with the process, or reduced instances of police misconduct.
THE INTAKE PROCESS
The complaint intake process can be improved in a number of ways to make the system more accessible to complainants.
Recommendations 1-3. All procedural hurdles to filing a complaint against a police officer should be removed, and as much as possible should be done to facilitate the filing of a complaint. Currently, citizen complaint forms are available through IAD, at police precincts, and through various other City offices. We believe that complaint forms and training should be available through interested public-service groups such as the NAACP, Transition Projects, and the League of Women Voters that are not entities of the City of Portland. At least once a year, the PIIAC Examiner and IAD Commander should hold a public meeting in different sections of the city each year to which public service groups are invited. The purpose of the meeting should be to explain the IAD and PIIAC processes.
At present, complaint forms are downloadable from the City’s web page. After downloading, the complaint forms are not necessarily compatible with all printers. We believe a more "user-friendly" interactive form should be used on the web page that will allow citizens to file complaints electronically.
Recommendation 4. A dual intake system should be established. The Work Group heard testimony that some citizens are reluctant to file complaints directly with the Police Bureau. While we believe that the number of citizens so deterred is small, we also believe it critical that no valid complaints should go un-investigated because of the reluctance of the complainant to file the complaint with the Police Bureau. Our conclusion is that PIIAC should have an intake function, with the PIIAC Examiner made available to assist citizens in the filing of complaints.
Volunteer Citizen Advocates.
Recommendation 5. Volunteer citizen advocates should be used to assist citizens in the complaint process, where necessary. The Work Group heard concerns that language and other barriers may exist which potentially could interfere with the lodging and processing of complaints against the police. We believe that the limited use of volunteer citizen advocates could assist in lowering such barriers. The IAD and PIIAC should provide training for current and potential volunteer citizen advocates on at least an annual basis.
THE COMPLAINT INVESTIGATION PROCESS
Timeliness of Investigations.
Recommendations 6-7. The IAD should be sufficiently staffed to the IACP recommendation of one investigator per 100 officers. Without question, the most serious problem in Portland’s investigation of complaints against police officers is the time necessary to complete those investigations. Citizens, PIIAC citizen members, complainants, interested groups, and police officers all point to the delay in the investigative process as the most serious problem with the internal affairs/PIIAC process. At present, it requires 13 months on the average from intake to the completion of the investigation. We find this length of time to be wholly unacceptable.
The timely investigation of citizen complaints should be the highest priority for the Police Bureau and the City, and sufficient funds must be allocated to the Police Bureau to conduct investigations in a timely manner. In 1999, a blue-ribbon commission in Seattle conducted an exhaustive study of the internal affairs/civilian review process in Seattle and other cities. The commission recommended that all investigations be completed within 60 days from intake, and that the Police Chief issue disciplinary decisions within thirty days of all sustained complaint resolutions (City of Seattle, Final Report, 23). This recommendation was later accepted by Seattle’s Mayor and Police Chief, and is in the process of being implemented (City of Seattle, Accountability Action Plan, 12-13).
The cause of the delay in IAD investigations is crystal clear – the City has not allocated the funds necessary to retain sufficient investigators in the IAD. At times, IAD investigators have had as many as 20-30 cases assigned to them for investigation, a number that, in our judgment, is too high by at least a factor of four. Too few investigators assigned too many cases not only causes a significant delay in the completion of investigations, but also poses the potential that investigations will not be as complete as they should be.
We recognize that this recommendation will require the City to allocate additional resources to the IAD. It is our judgment that the underfunding of the IAD has been allowed to go on far too long, and that prompt and thorough investigations of complaints against the police must become a high priority for the City. The funding for the additional investigators should be a high budgetary priority for the City. Additionally, once additional investigators are employed, the Police Bureau should refrain from temporarily assigning IAD investigators to other tasks such as performing background investigations.
At times, there have been significant delays in the imposition of discipline by the Police Chief and the Police Commissioner once a complaint has been sustained. The Police Chief and Police Commissioner should promptly issue discipline once a decision has been made to sustain a complaint.
Communication with Complainants and Officers.
Recommendation 8. The Police Bureau should send written notifications of the status of an investigation to both the complainant and the officer under investigation. Members of the public and police officers believe that once a complaint is accepted by the IAD, lengthy periods of time elapse without any further communication from the Police Bureau as to the status of the complaint. Though imposing a 90-day time requirement for the completion of investigations will largely solve this problem, we believe that every thirty days, the Police Bureau should send written notification of the status of an investigation to both the complainant and the officers under investigation.
Recommendation 9. The IAD Captain should have experience in conducting or supervising criminal investigations. The Work Group heard accounts that the quality of the investigations in the IAD varied depending upon the investigatory background of the lead supervisor in the Division. The Work Group believes that the IAD Captain should be experienced either in conducting or supervising criminal investigations.
Performance and Accountability.
Recommendations 10 and 11. Performance standards should be put into place to measure the success of the investigators and supervisors in the IAD. Case management software programs should be reviewed and employed by the IAD. The IAD apparently has no written performance standards by which the performance of the IAD Captain or IAD investigators can be judged. We believe that the lack of performance standards has the potential for producing a breakdown in accountability in the IAD. In our judgment, both the IAD Captain and IAD investigators should be subject to fair and equitable performance standards and periodic review. Additionally, the Police Bureau should investigate and utilize available computer software to assist it in developing a more responsive case-management system.
Filling of Investigator Positions.
Recommendation 12. The filling of IAD positions must be a Police Bureau priority. At times, the Police Bureau has not promptly filled all open investigator positions in the IAD. Often, the underfilling of IAD investigator positions seems to be the product of bureaucratic inertia; on other occasions occurring more frequently several years ago, there has been a dearth of applicants for the position. The Police Bureau must immediately act to fill open IAD investigator positions, and should anticipate vacancies before they occur by surveying current investigators as to their transfer/promotion intentions. In addition, the Police Bureau should make the position of IAD investigator attractive enough – whether through offering premium pay or non-wage incentives – that an adequate applicant pool for the position is always available.
Recommendation 13. The IAD and PIIAC should use periodic surveys to solicit customer feedback. Any good service-provider such as the Police Bureau or PIIAC should constantly be soliciting feedback from its "customers" to determine what changes in policies would help produce better services. We believe that both the Police Bureau and PIIAC should develop survey forms, which will then be given to each complainant and to each police officer who is the subject of a complaint. The survey forms, which will be optional to complete and should allow for anonymity, will solicit information as to the individual’s experience with the I.A.D. and/or PIIAC, and will leave room for suggestions as to how services can be improved. The results of the feedback system should be tabulated and analyzed by PIIAC at least annually.
Integrity of the Process.
Recommendation 14. If statements of complainants or other witnesses are to be given evidentiary value, they should be sworn. Currently police officers who are interviewed in the IAD process are required as a condition of employment to answer all questions in a truthful manner, and are subject to discharge if they do not do so. No sanctions of any sort apply to complainants and other non-City employees who make false statements in an IAD investigation. While we do not believe that initial complaints should be sworn, we do believe that if a statement is to be given any evidentiary value, it should be sworn.
Recommendation 15. The system of mediation should be reinstated. By all accounts, the system of mediation of IAD complaints developed by Mayor Katz’s office worked well as an alternate approach to the resolution of IAD complaints. Citizens, officers, and the Police Bureau all praised the system as providing a positive system of addressing IAD complaints that minimized both conflict and the potential for civil liability for the City.
Currently the mediation system is moribund, hampered by inadequate funding. This fiscal decision by the City was short-sighted. Even without regard to all the other positive benefits of mediation, if the mediation process results in even one lawsuit not being filed against the City, it will have more than paid for its cost. The mediation program should be reinvigorated and adequately funded, and the mediation rules should be reviewed to make sure they are fair to all participants. The mediation system should be a key element of the City’s outreach system, particularly to groups such as the homeless.
Recommendation 16. PIIAC’s audit and review authority should be extended to two specific types of cases. As the City Code is currently structured, PIIAC has the authority to audit and review cases arising out of the Internal Affairs process. This allows review of not only cases investigated by IAD, but also cases investigated at the precinct level. However, this structure does not allow for PIIAC’s review of at least the following: (1) Investigations of allegations of misconduct made against high-ranking police officials, where those investigations are conducted by other high-ranking officials outside of the IAD; (2) Investigations in which IAD has a conflict of interest, and the investigation is conducted by an outside agency. We believe that PIIAC’s audit and review authority should extend to both types of cases as well as any other non-criminal investigation conducted by the Police Bureau of suspected employee misconduct (with the exception of EEO investigations, which have particularly sensitive personnel concerns).
Codification of Informal Practices.
Recommendation 17. The City should codify PIIAC’s informal appeal process. Over the years, several informal arrangements have developed with respect to Citizen Advisors, the PIIAC Examiner, and the Police Bureau. Currently the Code defines the citizen panel as an advisory board, and stipulates that recommendations go to City Council for action. In practice, a different practice developed with respect to appeals.
In instances where a case audit revealed deficiencies in an appealed investigation, the PIIAC Examiner typically has provided the IAD a draft copy of the Examiner’s report in advance of the advisory meeting. Doing so has allowed the IAD to remedy minor weaknesses with the investigations; at other times the IAD has asked to have the case withdrawn from the agenda so it could redo the investigation if it had more serious flaws. We believe that this process produces better IAD investigations with the expenditure of fewer City Council and PIIAC resources, and recommend that this process be included in the Code.
PIIAC Staff Positions.
Recommendations 18-19. The role of PIIAC staff positions should be reevaluated and enhanced. Currently the PIIAC Examiner position is classified as a Commissioner’s Assistant I, and is assigned no permanent clerical staff to assist in the performance of the job. As a result, an unacceptable percentage of the Examiner’s duties are taken up with performing rote clerical jobs. The investigator is given little training, and is not routinely sent to conferences where the Examiner can interact with and learn from others holding similar positions in other cities. The Mayor should meet with the PIIAC Examiner at least once a quarter to discuss PIIAC issues.
The City should perform a classification study on the compensation paid to the PIIAC Examiner to ensure that the highest quality individuals apply for the job, and that the Examiner be provided with the necessary clerical staff to perform the job. The classification study should review equivalent positions in other citizen oversight agencies. Additionally, the initial and ongoing training of the PIIAC examiner be commensurate with the responsibility of the position.
Additionally, our recommendations envision a greater community outreach effort on the part of the IAD and PIIAC. We believe that the City should allocate the necessary staff resources to coordinate the process of integrating PIIAC and IAD with social service agencies, and to provide training to social service agencies and volunteer advocates in the IAD and PIIAC processes.
Recommendation 20. PIIAC Citizen Advisors should be adequately trained. Training for Citizen Advisors has been sporadic. We believe it is important that all Citizen Advisors be required to participate in a minimum of 24 hours of "ride-alongs" with members of the Bureau within the first three months of their appointment. Citizen Advisors should also be required to participate in the Police Bureau’s Citizen’s Academy, which should be held at least once a year. In addition, on at least an annual basis, the PIIAC Examiner should coordinate with the Police Bureau, the City Attorney’s Office, and the District Attorney’s office to conduct training for PIIAC Citizen Advisors on the basics of criminal law, including the elements of crimes, search and seizure, and the use of force.
Follow-Through on PIIAC Recommendations.
Recommendations 21-22. The City should reinforce the requirement that the Police Bureau’s responses to PIIAC recommendations should be made in writing within 60 days. Additionally, the Police Chief should meet with the City Council to discuss the reasons why the Chief has rejected a recommendation by PIIAC on a specific appeal. Overall, the Police Bureau’s response to PIIAC’s recommendations has been positive and prompt. However, there have been occasions when follow-through from the Police Bureau on PIIAC recommendations has either been significantly delayed or not forthcoming at all. For example, in PIIAC’s 1994 and 1998 annual reports, PIIAC commented on inadequate timekeeping systems in place in the Police Bureau. Had the Police Bureau followed through on these comments, it is likely that the difficulties with "cuff time" could have been avoided. The current City Code requires that all PIIAC recommendations should be responded to in writing within 60 days of the time PIIAC has made the recommendation. The City should reinforce these requirements.
In the past, when the Police Chief has responded to PIIAC’s recommendations to the Police Chief, either on matters of policy or on a specific appeal, the Chief’s response has not always been as substantive as PIIAC’s citizen advisors would have desired. On occasion, it appears the Police Chief has delegated the preparation of the response to the IAD commander, and has participated very little the formulation of the response. These difficulties could be resolved by requiring the Chief to personally meet with the citizen advisors to explain responses to PIIAC recommendations. Where the Chief has rejected a recommendation made by PIIAC on a specific appeal, the Chief should meet with the City Council to explain the reasons for the rejection.
On two occasions in recent years, the Police Chief has rejected recommendations made by PIIAC on specific appeals. We do not find these rejections to be causes of concern. On substantially more occasions, the Police Chief has accepted PIIAC recommendations, and on the two cases in question reasonable individuals could have disagreed on what the ultimate outcome of the cases should have been.
PIIAC’s Ability to Make Recommendations On Policy Matters.
Recommendation 23. PIIAC should have the authority to make policy recommendations to the Police Bureau. With a significant caveat, we believe that the City should consider granting to PIIAC the explicit authority to make recommendations to the Police Bureau on non-citizen complaint policy matters. The caution we offer is that such recommendations may not be useful, and may in fact be harmful to the City from the standpoint of civil liability, unless PIIAC Citizen Advisors receive adequate training in the policy areas about which they are commenting. Currently, the City Code allows PIIAC to conduct community meetings to receive input on Police Bureau policy. Experience has taught that the information gathered in such meetings may be anecdotal and/or emotional, and is not a sufficient substitute for actual training on the underlying subject matter.
Recommendation : IAD complaint forms should be made available through interested public service organizations. The Police Bureau should solicit public service organizations as to whether the organizations are interested in distributing IAD complaint forms, and should provide complaint forms to all interested organizations.
Recommendation : At least once a year, the PIIAC Examiner and IAD Commander should hold a public meeting to which public service groups are invited; the purpose of the meeting should be to explain the IAD and PIIAC processes.
Recommendation : The City’s web pages should be redesigned to allow citizens to file IAD complaints electronically.
Recommendation : The City should establish a dual-intake system that will allow PIIAC to accept citizen complaints against the police. The PIIAC Examiner should be made available to assist citizens in the filing of complaints.
Recommendation : The IAD and PIIAC should provide training for current and potential volunteer citizen advocates on at least an annual basis. Volunteer citizen advocates should be allowed to assist complainants through the IAD and PIIAC process, but should not be allowed to be disruptive of the process.
Recommendation : All IAD investigations should be concluded within 90 days from intake. To accomplish this requirement, the City should allocate additional funding to the Police Bureau to employ at least one IAD investigator for every 100 officers employed by the Bureau.
Recommendation : The Police Commissioner and Police Commissioner should promptly issue disciplinary decisions.
Recommendation : Every thirty days, the Police Bureau should send written notification of the status of an investigation to both the complainant and the officers under investigation.
Recommendation : The Internal Affairs Captain should have at least one year of experience in either conducting or supervising criminal investigations.
Recommendation : The Police Bureau should adopt performance standards for the IAD. Those standards should require accountability for both the Captain of the IAD as well as the investigators assigned to IAD.
Recommendation : The Police Bureau should investigate available computer software to assist it in developing a more responsive case-management system.
Recommendation : The Police Bureau should immediately act to fill open IAD investigator positions, and should anticipate vacancies before they occur by surveying current investigators as to their transfer/promotion intentions. The Police Bureau should ensure that the position of IAD investigator is attractive enough that an adequate applicant pool for the position is always available.
Recommendation : The Police Bureau and PIIAC should institute a feedback system allowing complainants and officers who are the subject of complaints to evaluate the strengths and weaknesses of the process. The results of the feedback system should be tabulated and analyzed by PIIAC at least annually.
Recommendation : If a statement by a witness in I.A.D. is to be given any evidentiary value, the statement should be either be sworn or be made under a compulsion to tell the truth.
Recommendation : The program for the mediation of I.A.D. complaints should be reinvigorated and adequately funded.
Recommendation : The City Code should be amended to allow PIIAC the ability to audit and, if requested, review investigations of alleged police misconduct under the following circumstances: (1) Where the investigation is conducted by other than the IAD; and (2) Where the investigation is conducted by an outside agency pursuant to an agreement with the Police Bureau; and (3) Any other non-criminal investigation conducted by the Police Bureau of suspected employee misconduct (with the exception of EEO investigations).
Recommendation : The City Code should be amended to codify the informal process currently existing under which draft reports from the PIIAC Examiner are shared with the Police Bureau prior to their presentation to PIIAC’s citizen advisors, with the Police Bureau having the option to reopen and more fully complete an investigation.
Recommendation : The City should perform a classification study on the compensation paid to the PIIAC Examiner to ensure that the highest quality individuals apply for the job. The initial and ongoing training of the PIIAC examiner be commensurate with the responsibility of the position.
Recommendation : The Mayor should meet with the PIIAC Examiner at least once a quarter to discuss PIIAC issues.
Recommendation : Within three months of their appointment, all Citizen Advisors should be required to participate in a minimum of 24 hours of "ride-alongs" with members of the Bureau. Citizen Advisors should also be required to participate in the Police Bureau’s Citizen’s Academy, which should be held at least once a year. On at least an annual basis, the PIIAC Examiner should coordinate with the Police Bureau, the City Attorney’s Office, and the District Attorney’s office to conduct training for PIIAC Citizen Advisors on the basics of criminal law, including the elements of crimes, search and seizure, and the use of force.
Recommendation : The City should reinforce the requirement that Police Bureau should respond in writing to all recommendations made by PIIAC for changes in policy or procedures. The response should be made to the full City Council within sixty days.
Recommendation : The Police Chief should be required to personally meet with PIIAC’s citizen advisors to explain responses to PIIAC recommendations on policy matters. Where the Chief has rejected a recommendation made by PIIAC on a specific appeal, the Chief should be required to meet with the City Council to explain the reasons for the rejection.
Recommendation : The City should consider granting to PIIAC the explicit authority to make recommendations to the Police Bureau on non-citizen complaint policy matters, but only if the City first provides adequate training to PIIAC’s citizen advisors in the policy areas about which comments are to be made.
CHANGES NOT DEEMED NECESSARY
Review Board v. Audit Model.
During its work, the Work Group also discussed a "Review Board" model to replace the existing "Audit Model" followed by the PIIAC ordinances. Under the "Review Board" model, PIIAC or some other civilian review authority would have the ability to independently investigate complaints against the police, would make decisions on the disposition of complaints, and would either make disciplinary decisions or recommendations.
For a variety of reasons, we believe the City Council should not amend the PIIAC ordinance to follow a review board model:
The Work Group inadequately researched the PIIAC/IAD System. From the first meetings of the Work Group, some of the proponents of the Review Board model made it clear that they were intent on recommending the Review Board model, and were uninterested in either the workings of PIIAC or the structure of PIIAC and IAD. For example, as late as mid-August, there existed confusion among some members of the Work Group as to whether PIIAC was the group of Citizen Advisors or the City Council itself. Unless the current system is systematically studied with an eye towards correction of difficulties within the confines of the current system, recommendations for fundamental changes in the system are ill-advised. We feel strongly that one has to thoroughly understand the problem before proposing solutions to the problem.
The Work Group inadequately researched the Review Board model. Early in the Work Group’s meetings, members of the Work Group raised the issue of which model, Review Board or Audit, should be followed. The Work Groups entire factual review, discussion, debate, and vote on the matter consumed, at most, 30 minutes, ending when the supporters of the Review Board model "called for the question" and cut off any discussion of the issue. Before such a fundamental change in the structure of PIIAC should be countenanced, we believe it is imperative that the Work Group have done all of the following, none of which were done: (1) A catalog should be amassed of which demographically similar cities to Portland follow the Review Board model, which follow the Audit model, and which have other (or no) forms of civilian oversight; (2) An systematic assessment of success of each model should be made on a city-by-city basis, making inquiries as to citizens, governmental officials, the police, and interested groups; (3) The costs of the Review Board model should be calculated. At the very least, some estimate of costs should be made; (4) There should be an opinion from the City Attorney that the Review Board model is consistent with the City Charter; (5) There should be clearly demonstrable evidence that the Audit Model has not worked in Portland to ensure quality IAD investigations and public input and insight into the IAD process.
Blue-ribbon study groups in cities demographically similar to Portland have recently routinely rejected the Review Board model in favor of the Audit model.
Austin, Texas. On April 14, 2000, the Police Oversight Focus Group for the City of Austin unanimously rejected the Review Board model in favor of the Audit model. It also leaves the learning strengths (i.e., the abilities of citizen complaints to influence or improve police behavior) and investigatory expertise of internal review systems intact. The Focus Group described PIIAC in Portland as an "exemplary" version of the Audit model. (City of Austin: Final Report and Recommendations, 11, 18). The City of Austin Report, thoroughly researched and comprehensively drafted, bears reading in its entirety.
Seattle, Washington. In 1999, in the wake of allegations of police corruption, the mayor of the City of Seattle convened a Citizens Review Panel to thoroughly investigate and make recommendations about the police internal investigatory process and civilian oversight. The Panel unanimously recommended against a Review Board model, opting instead for a form of the Audit Model (City of Seattle: Final Report, 5).
Sacramento, California. On September 11, 1998, the "Blue-Ribbon Committee" in Sacramento recommended against a Review Board model, favoring instead an auditing system. The Committee commented that "Opinions vary and empirical evidence on performance is thin and predominantly subjective. We do know that external bureaucracies, such as civilian review boards, breed distinctive problems of management, competence, and bias, and tend to be costly." (City of Sacramento: Report of the Blue Ribbon committee on Selected Police Practices, 3).
St. Paul, Minnesota. Perhaps most significantly, in 1993 the City of St. Paul, Minnesota, located across the Mississippi River from Minneapolis and with immediate access to the Minneapolis experience with the Review Board model, considered and rejected the Review Board model. (City of St. Paul: City Code). When the Review Board model was discussed by the Mayor’s Work Group in Portland, the Minneapolis system was advanced by the proponents of review boards as the ideal system of citizen review, apparently without knowledge that the Minneapolis system is viewed by at least some as bereft with significant faults.
There exist substantial policy reasons not to adopt a Review Board model. There are numerous policy reasons why blue-ribbon committees have recommended the Audit model in lieu of the Review Board model. Those policy reasons include, but are not limited to, the following:
The Review Board model removes necessary internal management controls and responsibility. As described by the Citizens Review Panel in its Final Report to the City of Seattle, " . . . responsibility for investigating allegations of misconduct, and when appropriate imposing discipline, should rest with the Department and the Chief of Police. Such responsibility is the key to accountability. In determining what structure of civilian oversight would best suit the realities and needs of our city, the panel has considered and decided against a variety of models from other jurisdictions, including the model of a Citizen’s Review Board." (City of Seattle: Final Report, 4-5).
The Review Board model is expensive. The majority of the Work Group is contemplating a model under which both PIIAC and IAD would perform investigations of complaints against the police. Necessarily, this model involves the duplication of personnel, training, and other costs. A common complaint about review boards is that they are "starved for resources." (Derek Brown)
The Review Board model does not achieve what its proponents desire. For example, there exists a belief among some proponents that civilian oversight will bring about different results in complaints against police. However, Landau (1996) determined that final case dispositions do not vary significantly between civilian and police review systems. Nationally, law enforcement agencies, civilian review boards and mixed systems of police oversight all sustain roughly 10 percent of all citizen complaints reviews.
Along similar lines, proponents of the Review Board model have contended that police civil liability costs are lower in cities following the Review Board model. However, the statistics simply do not bear that out. The only nationally-collected data on the issue were compiled by Human Rights Watch in a multi-agency review of police disciplinary practices. That data, covering the period between 1993 and 1997, shows that in cities following the Review Board model, average police civil liability costs per police officer were $1,191. In cities either following the Audit model or having no civilian oversight, average police civil liability costs per police officer were $333. (See Appendix A)
Perhaps most importantly, Review Board proponents have contended that the community is more satisfied with the integrity of police misconduct investigations in cities where the Review Board model is followed. There simply is no evidence for this proposition. In fact, the study conducted by the City of Austin cities evidence that community trust in police misconduct investigations does not vary depending upon whether the city in question follows a Review Board model, an Audit model, or has no civilian oversight. (City of Austin: Final Report and Recommendations, 15).
There exist substantial legal questions about the Review Board model. On August 25, 2000, City Attorney Jeff Rogers provided an opinion about several questions concerning the Work Group’s discussions. In City Attorney Rogers’ opinion, the Review Board model being considered by a majority of the Work Group would not be constitutional unless PIIAC was given "disciplinary authority" over police officers. Additionally, it was the opinion of City Attorney Rogers that several aspects of the Review Board model could not be unilaterally implemented by the City, but would have to be collectively bargained with the Portland Police Association.
The national experience with the Review Board model has been mixed at best. Some review boards have experienced huge delays in the investigation of complaints. In 1998, New York City’s review board had a backlog of 2,000 cases, and was described by the New York Civil Liberties Union as "a mandate unfulfilled." (New York Civil Liberties Union: Special Report). In 1994, the first version of Washington, D.C.’s review board was eliminated when its backlog grew to 900 cases. (City of Austin: Final Report and Recommendations, 16). In San Francisco, the Office of Citizen Complaints had 556 cases pending as of the end of 1998, the last year for which full reporting is available. (City of San Francisco: Office of Citizen Complaints, Comprehensive Statistical Report). In the words of one observer in a city that studied and rejected the Review Board model, a review board is "sure to be slower [in] reviews of complaints about police conduct, and they will be more political." (Seattle Times)
Review Boards are also often beset with unproductive controversy. Recent newspaper articles have detailed public dissatisfaction with the Las Vegas review board, even before it has held its first meeting. (Las Vegas Sun). Pittsburgh’s Citizen Police Review Board, one of the few Review Board models enacted in recent years (and then only in response to a Justice Department consent decree), found in 2000 that 20% fewer complaints had been filed than at the same time in 1999. (Pittsburgh Post-Gazette).
Uses Of Deadly Force and In-Custody Deaths.
During its work, the Work Group discussed whether PIIAC should be given additional authority to investigate instances of the use of deadly force and/or in-custody deaths. We strongly recommend against such an expansion.
Currently, there are six layers of review of deadly force incidents and in-custody deaths: (1) A criminal investigation by an inter-agency task force made up of investigators from the Police Bureau and other Multnomah County agencies; (2) A review by the District Attorney’s office; (3) In cases where an individual has died, review by a grand jury in Multnomah County Circuit Court; (4) An internal review by the Police Bureau to determine whether the officer(s) conduct comports with the Bureau’s rules; (5) The potential for review by the U.S. Attorney’s Office for federal criminal charges for violation of civil rights; and (6) The review that comes with the inevitable lawsuit filed by the individual against whom the deadly force was used (or the individual who died in the custody of the police).
The Work Group heard no evidence that the current six layers of review is inadequate to either determine the underlying facts of what occurred or to provide adequate citizen review of such incidents. Several layers of the review are the responsibility of elected or appointed officials, most of whom are not employed by the City of Portland. The grand jury is comprised of citizens of Multnomah County, none of whom could be said to have a pre-ordained agenda in reviewing the use of deadly force or a death in custody.
The Work Group heard no evidence on the cost of expanding PIIAC’s jurisdiction to investigate or review in-custody deaths or the use of deadly force. We believe the cost is likely to be considerable. Criminal investigatory files in such cases are voluminous, and involve a good deal in the way of technical evidence, including trajectory and other ballistic calculations and the analysis of evidence that is usually the province of an expert (e.g., autopsy findings, trace hair analysis, etc.). To train PIIAC in the significance of the items in a normal investigation of this sort would be expensive; with the turnover of citizen advisors on PIIAC, this considerable expense would be ongoing.
The Work Group also heard comments that investigations involving in-custody deaths and the use of deadly force involve matters that are of the utmost privacy to all individuals involved in the incident, including citizens and police officers. A medical report, for example, can disclose the licit and illicit drugs consumed by a suspect against whom deadly force has been used. We are concerned that the wide dissemination of such materials, which may well be legally inevitable if PIIAC is granted the authority to review and/or investigate such matters, could result in a trammeling of privacy rights.
Last, the Work Group heard no evidence from other cities indicating that civilian review authorities had any success in investigating in-custody deaths and the use of deadly force. We do not believe that Portland should be a test case for such a radical departure from a system that appears to be working well.
Early Warning System.
The Work Group considered whether to vest with PIIAC the ability to review all of the details of the Police Bureau’s Early Warning System, which is designed to allow the Bureau to identify potential personnel problems and to intervene at an early point in the process in an attempt to correct those problems. We do not believe it is appropriate for PIIAC to have such review authority.
To begin with, PIIAC already has the authority to audit aspects of the Early Warning System, and has exercised that authority. PIIAC has examined whether officers were being correctly identified for the Early Warning System according to complaint history, and whether the IAD was following through with scheduling and verification process called for by the Early Warning system. The only evidence heard by the Work Group was that the Bureau’s Early Warning System was one of the most progressive and advanced in the country, and has worked well to achieve its purpose. Moreover, at least some of the materials gathered in the Early Warning process are of the highest sensitivity and confidentiality, including medical and psychological records. We believe there would be substantial legal impediments to sharing this type of information with PIIAC. Finally, the success of an Early Warning System depends entirely upon the willingness of employees to freely and voluntarily participate in it. Granting PIIAC review authority over the system would impair that goal and the effectiveness of the system.
Austin American-Statesman. "Police Critics Challenge Report." March 10, 1999.
City of Austin City Council Police Oversight Focus Group. Final Report and Recommendations. 2000. (provided to the Work Group).
City of Minneapolis Civilian Police Review Authority. "1998 Annual Report." (provided to the Work Group).
City of Portland City Auditor. Auditor’s Report January, 1993. (provided to the Work Group).
City of Seattle Citizens Review Panel. Final Report (1999). (provided to the Work Group).
City of Seattle. Seattle Police Department Accountability Action Plan (1999). (provided to the Work Group).
City of St. Paul. City Code, Chapter 102, Police-Civilian Internal Affairs Review Commission.
Griswold, David (1994). "Complaints Against the Police: Predicting Disposition." Journal of Criminal Justice 22:215-221.
Landau, Tammy (1996). "When Police Investigate Police: A View from Complainants." Canadian Journal of Criminal Justice 38:281-315.