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4th Quarter 1997 Monitoring Report

CITIZEN ADVISORS
FOURTH QUARTER 1997 MONITORING REPORT
TO THE POLICE INTERNAL INVESTIGATIONS
AUDITING COMMITTEE
(PIIAC)

 

Monitoring Subcommittee Members & Staff
Robert Ueland, Chair
Marina Anttila
Robert Wells
Lisa Botsko, PIIAC Staff


Approved by PIIAC Citizen Advisors
February 12, 1998
Submitted to City Council
March 11, 1998
 
CITIZEN ADVISORS
1997 FOURTH QUARTER MONITORING REPORT TO THE
POLICE INTERNAL INVESTIGATIONS
AUDITING COMMITTEE
(PIIAC)


The PIIAC Citizen Advisors Monitoring Subcommittee is responsible for surveying cases handled by the Portland Police Bureau's Internal Affairs Division (PPB/IAD) involving citizens and Police employees' complaints about alleged police misconduct. The Subcommittee analyzes complaints, IAD's investigations and Risk Management data to "highlight trends of police performance, suggesting necessary Police Bureau policy and procedural changes. Patterns of behavior, unclear procedures, policy issues and training needs may be identified for review."


FOLLOW UP TO PREVIOUS QUARTERLY REPORT
Appended to this report as Attachments A and B are the Chief's responses to the Second and Third Quarter 1997 reports. We appreciate that the Chief has agreed to several of our recommendations. Since PPB began informing officers of their right to appeal to PIIAC, we have received three officer appeals.
Seven months after we urged the completion of the PPB General Order on Complaint Investigation and Discipline, they have still not been completed.
We would like to comment further on some issues. It is true that some of our recommendations relate to post-investigation "administrative matters." But we are charged with ensuring that the process is fair to both officer and citizen, and helping to maintain public confidence in the Bureau. Post-investigation snafus can adversely affect these factors. We will address this topic further in our report, in the section on "Timeliness."
The Chief indicates that the Commissioner is an ideal person to determine in what situations an outside agency or liaison should be used for any investigation that could present a conflict-of-interest. (In our second quarter report, we had audited an investigation in which bureau administrators providing supervision and some direction were also complainants and major witnesses.)
Rather than getting mired in proposing an inflexible protocol, we would like the Bureau to put more thought into structuring such investigations before they begin. Our hope was to outline good investigative strategy whenever high-level and delicate cases arise in any government agency. Any Bureau members who are personally involved in a situation that turns into an investigation should make themselves available for interview but otherwise disengage themselves from the investigation. Those conducting an investigation should feel completely free to pursue necessary leads and ask necessary questions. If the potential exists that the investigator would have to ask tough questions of a superior, utilizing an outside investigator may be a wise course of action. We are not in any way attempting to suggest who that outside investigator should be. Else, the investigator must have clear latitude to pursue the lines of questioning or leads, even those that may be uncomfortable to a superior. The investigator should be provided a completely impartial liaison -- such as someone in the city's Personnel Bureau, or City Attorney's office -- in the event that investigator has questions about conducting the investigation. Those who ultimately make the decision on a case should have no possible real or perceived personal interest in the outcome. These are the kinds of questions that deserve consideration before an investigation is commenced, in any agency. Those who understand ideal investigative practice should structure it, rather than a commissioner. In this way, an agency can help protect itself against internal and external charges of impropriety or unfair treatment.
Regarding our recommendation for Crisis Intervention training to be adapted -- we appreciate that the Bureau will take a closer look at it. We would like to clarify that we were referring to the communications component, not the entire 40-hour class. That segment contains some excellent information and strategies for officers to deal with angry and tense people that could apply to more than just mentally ill or those "in crisis." Our recommendation came about because we see complaints in which officers evidently allow themselves to be provoked into unnecessary verbal sparring, or they participate in the dynamics that only escalate a situation to where physical force is then unavoidable. The training we're aware of specifically teaches officers how to employ body language, tone of voice, phraseology, etc. that can help de-escalate tension and anger. It emphasizes modeling desired behavior as opposed to matching aggression with aggression.
 
IAD / PIIAC ACTIVITY
 
Sam Houston State University is conducting a research project sponsored by the National Institute of Justice. This study focuses on citizen complaints against police and will examine several law enforcement agencies nationwide. Portland was selected as one of the test cities because of the citizen review component. 200 - 250 closed complaints have been reviewed. Information extracted will focus on the circumstances of the encounters that generate complaints. Later on, voluntary telephone interviews with complainants will be conducted to determine their impressions of the complaint process (rather than the incident itself).
IAD will be conducting a two-day training course in late January 1998, for PPB sergeants who investigate complaints, as well as investigators from other local agencies. We understand that a group of police complaint investigators from Portland and surrounding law enforcement agencies meet regularly to share ideas, assistance and strategies. This strikes us an excellent idea which we hope will be duplicated in other parts of the country.


II. Cases Appealed / Monitored
During the fourth quarter 1997, PIIAC advisors processed 4 new appeals. The appeals and actions taken are as follow:
PIIAC #97-17: The appellant filed a complaint after a traffic stop. He stated that the officer was rude and threatened him physically. He indicated that he expected the officer to be at the hearing; advisors then determined that he was interested in mediation. Advisors voted to table the hearing pending a decision from the officer.
PIIAC #97-19: The appellant had been conducting business at PPB's Records Division, when the records clerk noted that his name and birthdate closely matched that of a wanted person. Officers took him into custody until they could determine he was not the same individual; they then filed a special report that he was not the same person, and released him. The appellant stated that officers were unnecessarily rough with him, and objected to them having him partially disrobe so they could check for tattoos. IAD had declined the complaint; advisors affirmed this decision as the appellant was not able to provide medical information that would support excessive force allegations, and did not otherwise describe anything that would contradict police procedures.
PIIAC #97-20: The appellant stated that an off-duty police officer was discourteous to her after he boxed her into a tight parking space, and she tapped his front bumper trying to get out. She also complained that he submitted her name for DMV re-testing. IAD had declined investigation. Advisors voted to return the case for investigation (which is pending), pointing out that because the officer had identified himself as such during the encounter, a higher standard of courtesy should be expected.
PIIAC #97-22: The appellant had complained about the actions of officers during a "knock and talk" at her home. She believed they trespassed on her property and should be held accountable for the actions of an officer from another agency, who was later found to be in violation of proper police procedures. PPB's investigation had exonerated the officers. Advisors supported this finding, the appellant's appeal to Council is pending.
The following cases had updates:
PIIAC #97-13: This case was described in our third quarter report. Advisors believed that the evidence did not support the finding and requested that PPB's Review Level Committee reconsider. The Review Level Committee did not change their position, but after the case was reviewed by the Chief, he agreed to sustain the complaint for overall performance.
PIIAC #97-15: This case was described in our third quarter report. Advisors returned the case to IAD for further investigation, but in the meantime, the officer left the Bureau. The case is now closed.
PIIAC #97-18: This case was described in our third quarter report. A PPB officer appealed a sustained finding for courtesy, which had been made in the context of an EEO investigation. Advisors believed the evidence used to support the finding was weak and requested reconsideration by PPB's Review Level Committee. This body did not change the finding and the officer appealed to Council. The request is pending until Council determines policy questions about PIIAC review of EEO investigations.
We monitored an additional 30 IAD investigations closed out during the past two quarters. We monitor all closed cases that fall into the following categories: use of force, disparate treatment, complaints with sustained findings, and cases that went to PPB's Review Level Committee. Cases with less significant allegations are not routinely audited unless they are appealed.
Cases reviewed for monitoring reflected the following types of allegations:(1)
Property 0
Use of Force 15
Conduct 13
Disparate Treatment 2
Communication 7
Performance 4
Procedure 13
The findings reflected the following:
Unfounded 6
Exonerated 8
Insufficient Evidence 7
Sustained 14(2)
Suspended 0
Declined 0


Sustained complaints audited:
Precinct/division breakdown is as follows:
Southeast (Grubbs) 2
Central (Kauffman) 0
Northeast (Orr) 3
East (Paresi) 1
North (Rictor) 0
Other:
Detectives (Clark) 5
Traffic (Nelson) 1
Property Evidence (Akers) 2
Sustained complaints had been initiated both internally and externally (citizens). Violations included discourtesy, failure to take appropriate reports, ethics violations, misuse of Bureau equipment, excessive force and untruthfulness.
 
III. "Not Sustained Debriefing"
 
Internal Affairs is working with Bureau administrators to develop a mechanism by which supervisors can conduct a debriefing with an officer following a complaint investigation when that officer is not in technical violation, but might have handled a situation better. Under the current system, complaints are either "sustained" or not. Corrective counseling or discipline occurs only with sustained complaints, and command review is triggered only with multiple complaints. A "not sustained debriefing" would allow supervisors to help an officer examine performance in a non-punitive manner. We support this effort and appreciate IAD's innovation and willingness to act on citizen advisor concerns.


IV. Trend: Off-Duty Conduct
 
In the past several quarters, we have monitored several complaint investigations in which an officer's off-duty conduct was the focus. These complaints seem to fall into two general areas. One involves situations where an officer observed or experienced something that he or she later reported or took some other action. We want to support and encourage the concept of community policing. We want officers to take a personal interest in their community. We do not want officers to turn a blind eye to civic problems just because their shift has ended for the day. But we also want officers to exercise diplomacy and discretion in personal situations, taking care that their actions will not be misconstrued.
Another category of off-duty conduct results when someone finds an officer's behavior objectionable, the officer identifies himself as an officer which compounds the problem. It is an inescapable fact that people hold officers to higher standards of civility and professionalism around the clock. Objectionable conduct does then reflect on the Bureau, and other officers as a whole.
In one case we reviewed, the complaint followed a fender-bender between a citizen and off-duty officer. That officer produced a card identifying him as a Portland Police officer. The complaint focused on the officer's demeanor. We are still awaiting the conclusion of the investigation, but learned that no General Order specifically addresses what level of courtesy is expected of an off-duty officer who identifies him or herself as an officer during an encounter. There is a Standard of Conduct General Order that prohibits off-duty conduct that "tends to bring discredit or reproach upon the Bureau," but nothing that addresses courtesy. The Los Angeles Police Dept., for example, does have such a policy in place.
We will continue to monitor the issue and we encourage the Bureau to do so also. Perhaps specific complaints can help the Bureau clarify policy, or establish more specific guidelines. We understand that no set of rules will govern all situations. We also appreciate that the Bureau must exercise caution in what parameters it establishes governing off-duty conduct. We recommend that the Courtesy General Order be revised to address off-duty officers who are identified as officers.

V. Trend: Ongoing problems with LEDS/PPDS violations
 
We reviewed three complaints in which PPB personnel were alleged to have used the statewide Law Enforcement Data System (LEDS) or Portland Police Data System (PPDS) to gain and/or disseminate information about someone in whom they had a personal interest. We commented on this in an earlier report. We do not believe the problem is with lack of training or unclear policies. The breaches all involved employees who allowed themselves to cross the line of ethics and good judgment. The Bureau conducts thorough investigations into suspected misuse, and takes appropriate action by issuing sustained findings, so we have no recommendations at this time.

IV. Timeliness
 
Time taken from receipt of complaint to when the case was closed out(3) ranged from 4 months to 42 months, with an average of approximately 13.5 months. This number represents a significant increase over previous quarter figures, but was artifically inflated because of cases that were held up in the post-investigation process, and also because of a group of complaint investigations that had a common denominater. These latter cases were worked simultaneously, and criminal charges were considered but then rejected. Because of the complexity and connectedness of these cases, the timelines were quite drawn-out. IAD is now estimating that use of force complaints will take at least a year to complete. Complainants trying to contact Internal Affairs are experiencing waits of about a week before an investigator can call them back to take their statement. Complainants are also not being routinely kept up-to-date when cases are open for lengthy periods of time. This level of service is unacceptable.
Dr. Sam Walker, a national expert in police complaint review issues, has recommended an ideal ratio of IAD investigators to sworn members: 1 for every 150. With a PPB sworn strength at 900, 4 investigators falls short of this ratio. PPB has included a fifth investigator position in its budget request: We support this and highly recommend the Mayor and Council approve this particular budget item. Although IAD would still not be staffed at the ideal ratio, the workload would be better distributed with even one additional investigator.
Timeliness problems also exist within the Personnel Division. We discovered that a PIIAC appeal that went before Council in May 1996 was still open this past quarter. (PIIAC had recommended the finding be changed to Sustained, the Chief agreed and the IAD commander immediately notified Personnel.) No further action was taken until we discovered the lapse.
We have reviewed other cases which appear to have become administratively bogged down in the Personnel Division. In one, PPB's Review Level Committee recommended a sustained finding in February 1995; it did not actually get to the Chief until November 1997. In another complaint filed in 1994, then IAD-Commander Ed Davis controverted a finding, meaning he believed it should be sustained. (The complaint allegations were, in fact, quite serious.) The IAD file contains Capt. Davis' memo dated 1/26/95 in which he requested the Personnel Division schedule a Review Level hearing. No further action was taken until IAD discovered the still-open case as part of an audit nearly two years later, and inquired. The file contains no explanation as to why this case went no further; the officer has since left the Bureau, and the case has been closed.
During previous quarters, we have audited other cases with inexplicable delays between Review Level and final disposition. We are informed by the Portland Police Association that they are also aware of cases that languish during the disciplinary phase that has nothing to do with due process issues.
How is the proposed level of discipline affected when such a time gap occurs? Is the level mitigated down because of the time lapse? This could create quite a disparity with officers whose cases proceed more quickly. It is also unfair to both officer and complainant, who must wait interminably with an open case. Complainants may lose faith in the process, or can no longer be located when their complaint has finally been closed out. Accountability and potential prevention of additional complaints is reduced when discipline does not get imposed for months or even years after an incident.
IAD has begun auditing open cases on a quarterly basis so they can notify the appropriate parties of cases that have not been returned in a timely fashion. This should help prevent cases "falling through the cracks" and we appreciate Capt. Bennington's initiative in this area. But the Bureau must look to other remedies. IAD has enough work and is not technically responsible for ensuring Personnel's timeliness. We recommend the following: a) That PPB identify what timeliness problems exist post-Review Level that do not pertain to due process issues and remedy those problems immediately; b) That the General Orders pertaining to the complaint investigation process establish reasonable timeliness goals for both the Personnel Division and the Chief's Office; c) That IAD establish a reasonable timetable for updating complainants about case delays and stick to it.




ATTACHMENT A


September 18, 1997
TO: Mayor Vera Katz
Police Internal Investigations Auditing Committee
SUBJECT: Response to Second Quarter 1997 Monitoring Report
The Second Quarter 1997 Monitoring Report was approved by the Citizen Advisors on July 10, 1997 and accepted by City Council on July 16, 1997. Numerous recommendations were made in the report. While some suggestions involve the internal "investigative process" others dealt with administrative aspects about the handling of personnel matters after the investigation is complete. This Memorandum addresses each of the specific recommendations made by the Citizen Advisors to the Police Internal Investigations Auditing Committee.
Recommendation one:
Use of force complaints, where the force indeed occurred, should never be declined.
Response:
I concur with the reports' suggestions that discussions should continue with Captain Bennington. I appreciate the information provided and I accept the recommendation.
Recommendation two:
We recommend that corresponding G.O. 312.50 (Identification) is revised to reflect the new requirement.
Response:
The Identification G.O. 312.50 has been flagged and will be updated to make it concurrent with G.O. 211.00 - Board on Public Safety Standards and Training Identification Numbers.
Recommendation three:
We recommend that the Chief or his designee, and the schedulers, adopt a timeliness goal of no more than 60 days from the time Review Level Committee makes its recommendations to the time the letter of proposed discipline is sent to the employee.
Response:
All areas concerning "personnel matters" and the imposition of discipline should be done in a timely manner. The requirements of "due process" and other outside factors, can cause delays in the process. We will continue to monitor this issue and we will strive to ensure that handling of "personnel" matters is done as expeditiously as staffing, and "due process" allow.
Recommendation four:
We urge the Police Commissioner and Chief to make the completion of G.O. 340.00 (Complaint and Disciplinary Process) a priority.
Response:
The General Order 340.00 (Complaint and Disciplinary Process) has gone through various stages of revamping. This General Order was renumbered and packaged with five other related General Orders. We expect all general orders to be at the final draft stage and published in the near future. The new GOs are as follows:
1. GO 330.00 Internal Affairs, Complaint Investigation Process
2. GO 341.00 Disciplinary Process
3. GO 342.00 Personnel Performance Deficiencies and Non-Internal Affairs Rule Violations
4. GO 343.00 Criminal Investigation of Police Bureau Employees
5. GO 344.00 Prohibited Discrimination
6. GO 345.00 Early Warning System
Recommendation five:
We recommend that the Bureau's use-of-deadly-force investigative protocol include a mechanism for debriefing, assessing, and providing feedback on the internal investigation.
Response:
We have a protocol for handling use of deadly force investigations. This is covered by our G.O. 1010.10 (Use of Deadly Force, Including Reporting Requirements) and the investigative protocols of the Detective Division. Those protocols will not be changed at this time.
Recommendation six:
We recommend that any time a high-level Bureau employee is investigated, a neutral party--perhaps an outside agency--conduct the investigation. The Bureau should also seek recommended findings from a neutral referee or body.
Response:
The ability for any Commissioner or Bureau to seek outside assistance in a major investigation is known. While the requests may be infrequent, we have assisted other Bureaus and Cities. Anytime a Commissioner or a Bureau head felt that assistance is needed, local, state, and federal agencies can be contacted. The individual Commissioners are in the best position to determine if outside assistance is needed and they would be the neutral party to determine findings.
Recommendation seven:
We recommend PPB establish a protocol for "debriefing" when a finding is changed after mitigation.
Response:
While the mitigation process normally only deals with the level of discipline, I have, on rare occasions, reversed the finding to not sustained. I meet daily with the Assistant Chiefs and provide feedback when the situation occurs.
Recommendation eight:
We also recommend that the Chief and Review Level Committee discuss the best and most appropriate manner in which to notify complainants in these situations.
Response:
We will continue to discuss the most appropriate manner in which to notify the complainants. We will send out the disposition letter after I accept the Review Level Committee's recommendation. The complainant's will be advised if the outcome changes to "not sustained."
Recommendation nine:
That PPB Officers be notified of their right to appeal to PIIAC.
Response:
We accept the recommendation.


Charles A. Moose, Ph.D.
Chief of Police
cc: Commissioner Jim Francesconi
Commissioner Charlie Hales
Commissioner Gretchen Kafoury
Commissioner Eric Sten




Attachment A - Part II
December 20, 1997
TO: Mayor Vera Katz
Police Internal Investigations Auditing Committee
SUBJECT: Response to Third Quarter 1997 Monitoring Report


The Third Quarter 1997 Monitoring Report was approved by the Citizen Advisors on October 9, 1997, and accepted by City Council on October 30, 1997. Two recommendations were made in the report that involve IAD staffing and officer training. This Memorandum addresses each of the specific recommendations made by the Citizen Advisors to the Police Internal Investigations Auditing Committee.
Recommendation one:
We recommend PPB examine the possibility of expanding and adapting the CIT Training methods with regards to communication.
Response:
I concur with the reports' description of the CIT Training Program. It has proven invaluable to the Bureau and the Officers that have gone through the training. This program is a 40 hour block of instruction. The nature of the training is that it is designed to improve Officers skills when dealing with people "in crisis." The training does not lend itself to a "cookie cutter" approach.
Each year we prepare the training curriculum for the next in-service training. The Bureau will evaluate modifying the CIT training and incorporating it as part of its curriculum development for next year's in-service training.
Recommendation two:
We recommend that PPB make a concerted effort to re-establish the fifth investigator position.
Response:
The timeliness of investigations is important; however, our staffing of that position is dependent upon the table of organization authorized by the budget and City Counsel. There is definitely a need for the additional investigator, but because of budget cutbacks there are no supervisory positions that can be eliminated to create another position in IAD. Given a staffing increase, the Bureau would like to see that investigative position restored.
Charles S. Moose, Ph.D.
Chief of Police
CC: Commissioner Jim Francesconi
Commissioner Charlie Hale
Commissioner Gretchen Kafoury
Commissioner Eric Sten


ATTACHMENT B


IAD COMPLAINT CATEGORIES
1. Property: Allegation that money, property, evidence and other valued items have been taken and not properly accounted for, receipted, or placed in the Property Room.
2. Use of Force: Allegation of excessive or inappropriate physical or deadly physical force (Refer to G.O. 314.00).
3. Conduct: Allegations of misconduct other than those more specifically defined by another category, which tend to bring reproach or discredit upon the Bureau or City of Portland.
4. Disparate Treatment: Allegations of treatment to an individual that is different from the treatment of another because of
(a) Race.
(b) Other: sex, age, national origin, sexual orientation, economic status, political or religious beliefs, appearance, handicap, etc. . .
5. Communication: Allegations relating to attitude, rude conduct, or verbally abusive conduct other than those addressed in the disparate treatment category.
6. Performance: Allegations of work performance which fails to meet or conform with Bureau standards or requirements of an administrative nature such as lateness, misuse of sick time, etc.
7. Procedure: Allegations of conduct which violates a General Order, Special Order, or order of a superior officer and which are not more specifically addressed in sections (1) - (6).
FINDING CATEGORIES


1. Unfounded: Claim is false. Based on the facts of the investigation, there is no basis to the allegation.
2. Exonerated: Actions of the officer were within the guidelines of Bureau policy and procedure.
3. Insufficient Evidence: There was not enough evidence to prove or disprove the allegation(s).
4. Sustained: Officer found to be in violation of Bureau policy or procedure.
5. Declined: Police Bureau declines to conduct full investigation.
6. Suspended: Investigation is suspended, usually because complainant fails to provide key information.


1. PPB definitions of allegations and findings are appended to this report as Attachment B. We point out that statistics must be viewed with an understanding that a single complaint may reflect multiple allegations and findings, and may involve more than one officer.
2. Two complaints were "unsustained" following mitigation hearings. One finding was changed to "not sustained," and the second was changed to "Insufficient Evidence."
3. A decision was rendered by the officer's commander or the Bureau's Review Level Committee.