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Delay vote on IPR oversight system until Stakeholder input addressed

To Mayor Wheeler, Commissioners Eudaly, Fish, Fritz, and Saltzman, and Auditor Hull Caballero:
We are writing to urge you to modify or postpone a vote on the proposed changes to the Independent Police Review Division.

This past week marked six months since City Council sent the last version of the IPR ordinance to be reviewed by a limited-scope stakeholder group. That group met for a cumulative total of over 6 hours in November and produced three recommendations.
< link to www.cdri.com
The group's work is not acknowledged in the City's paperwork for the new hearing,*-1 posted at < https://www.portlandoregon.gov/auditor/article/632940>.

The three recommendations were: [...]
To Mayor Wheeler, Commissioners Eudaly, Fish, Fritz, and Saltzman, and Auditor Hull Caballero:

We are writing to urge you to modify or postpone a vote on the proposed changes to the Independent Police Review Division.

This past week marked six months since City Council sent the last version of the IPR ordinance to be reviewed by a limited-scope stakeholder group. That group met for a cumulative total of over 6 hours in November and produced three recommendations.
< link to www.cdri.com
The group's work is not acknowledged in the City's paperwork for the new hearing,*-1 posted at < https://www.portlandoregon.gov/auditor/article/632940>.

The three recommendations were:

__Stakeholder 1--Allow Public Testimony at Citizen Review Committee Appeal Hearings.

The stakeholders' decision on whether such testimony should come before CRC votes, as is done now and has been done for many years, or after the vote, was split between City personnel and community members. Community members were very clear that there will be no trust in a system where our input is not accepted until after the deliberating body has voted.

The ordinance, as written in 2001, says "The Committee may receive any oral or written statements volunteered by the complainant or the member or other officers involved or any other citizen" (3.21.160[B]).

In our testimony to you in September, we addressed this issue, writing:

* CRC is not only capable of separating facts from opinions, but the existing ordinance directs them to hear any evidence offered, saying they must consider evidence only from the investigation when deciding on the findings ([also] 3.21.160 [B]).

* The City Attorney admitted that the Police Association has never filed a grievance based on public comments at a CRC hearing.

* [In response to the claim that the community does not have enough information to make informed comments:] The community has the same case summary paperwork as the Appellant and the officer. Does the City plan to prohibit those parties from speaking at appeals as well?

* Public comment helps CRC on community context, policy, training and their own protocols.

* The [Matt Klug Taser] case at CRC benefitted from comments; after it was pointed out they were using an old Directive, CRC changed their recommendation on Taser use using the correct Directive.

The City Attorney has gone overboard in efforts to protect the City from hypothetical legal claims. Taking away public input before votes at the CRC will be a serious blow to the system's credibility. Besides which, as you know from when you heard Mr. Klug's case on February 22, if the Bureau disagrees with CRC's proposed finding, City Council gets to have the final say in a hearing at which there is no public input before the vote. We continue to urge Council to add public comment after the vote at such hearings, however. Are you discussing an employee's personnel issues? Yes. Does it meet the public interest exception to laws protecting privacy when that employee is a police officer accused of misconduct against a civilian? We argue yes. Does it even matter if we continue to talk about "Officer A" and "Sergeant B" anyway?

One more note: CRC had two back to back "Conference Hearings" with the Chief on one night and voted to reverse themselves to affirm the Chief's finding in one case and to continue pushing forward on the other, showing that public input-- which urged changes to both cases-- didn't sway their votes.

__Stakeholder 2--Expand CRC from 11 to 15 Members.

The purpose of this recommendation was to ensure that when CRC breaks into panels of 5 to consider appeals, there would be enough members available to review 2-3 cases a month to conform with the US Department of Justice Agreement's (unreasonable) 21-day timeline to hear appeals. While it has been learned since that time that IPR no longer has a backlog of appeals, something must be done to take the burden off the volunteers or you will not be able to keep them on the Committee.

You'll note that the Stakeholder Group spent considerable time looking into Portland Copwatch's suggestion of letting Police Review Board civilian pool members rotate onto CRC when there is a need for more person-power.*-2 We think Council should give serious consideration to this idea as a means to ease the pressure on CRC members. The 16 PRB volunteers receive exactly the same training as CRC members. The only difference, perhaps, are details on the "reasonable person" standard-- but since CRC members are cross-trained on the PRB's "preponderance of evidence" standard, the PRB members can also be cross-trained. Captain Bell of Internal Affairs even agreed that PRB members would have sufficient training to sit in on CRC appeals.

In addition to easing the burden on CRC, this would also give the PRB members the ability to interact with one another (assuming more than one of them occasionally get pulled into a given CRC panel), and with the public, two elements not available at the PRB as it is currently structured. PRB members currently only hear an average of 1-2 cases per year while the CRC heard 8 in 2016 (though most cases required 2-3 meetings to review).*-3

Since IPR has dropped the proposal to expand CRC (likely based on its claim that its staff can't manage four more volunteers), Council must take action on this proposal or current CRC members will likely resign in protest.

__Stakeholder 3--Do Not Make Any Other Changes to the IPR/CRC System Until Another Stakeholder Group Can Review Them.

We should point out that there is at least one item in the new proposal which Portland Copwatch and many other community members would welcome: The proposed requirement for the PPB to notify IPR when criminal charges are brought against a Bureau member (as former Chief O'Dea's shooting wasn't reported to IPR).

However, some of the positive changes also need further tweaking.

--Non-Disciplinary Complaints

For years, the City has been urged to change the term "Service Improvement Opportunity" to something else. The new ordinance makes a change, but rather than referring to such minor infractions that would not result in discipline as "Non-Disciplinary Complaints," the code would call them "Supervisory Investigations." An improvement from the September draft is that these cases now have to be run by IPR before they are closed out. However, once again to build community trust, the name shouldn't indicate that only a supervisor is reviewing the complaint. Moreover, if a complainant feels the case should be handled as a full investigation they should be able to protest IPR's case handling decision, but new language proposed in this version of the ordinance says they cannot file an appeal of a non-disciplinary complaint.*-4


--Referring Perceived Deadly Force Cases for Investigation

As with the September draft, the new ordinance gives IPR the ability to request the PPB investigate a case in which they believe officers used deadly force, even if it wasn't originally categorized that
way. However, this is a toothless addition unless the Bureau is then _required_ to investigate the incident as deadly force, or IPR is given the authority to investigate deadly force cases. This is one of the issues that could have been addressed had the City not negotiated the Police Association contract behind closed doors on a fast-track vote.

We need to add here that the same provision in the PPA contract is read by the City Attorney as prohibiting CRC from hearing appeals in deadly force cases, even when the person lives. We disagree.

--Reasons to Dismiss Complaints

The last draft included removing several reasons IPR is currently allowed to dismiss complaints, such as the one we referred to as a the "crystal ball" criterion where IPR could determine there would be no finding on misconduct even if the allegation were investigated. That is still going
to be removed, which is good. However, new language allows a case to be dismissed if there is "clear and convincing evidence the officer did not engage in misconduct." How can that possibly be done before there is a full investigation?

Furthermore, the last draft was going to remove the clause allowing allegations to be dismissed if they were "trivial, frivolous, or not made in good faith." That clause is now back in and will do nothing to ensure community trust.

__What Has Disappeared From the Last Draft

Since all these other changes are being proposed, it is clear the Auditor/IPR did not heed the Stakeholder Group's request to vet all changes with a new group.

On the other hand, a few items that were in the last draft disappeared, even though their additions would improve the system and community trust.

--The suggestion to allow a complainant to attend the Police Review Board hearing about the allegations they filed has been dropped.

--The requirement that the same IPR manager who investigates a case should not also be the one voting on the Police Review Board has been removed.

--Likely this was done because the suggestion that IPR or Internal Affairs should be able to attach proposed findings to their investigations has also been dropped. Regardless, IPR and IA can both "controvert" a supervisor's finding, so there is some sense of "two bites at the apple" having the same IPR staffer vote on the PRB.*-5

--A proposed new clause saying that if the "Force Inspector" finds a use of force was not in policy, the IPR could open an investigation has been cut.


__One Final Issue Around Public Input

While the new draft seems to allow public input at Case File Reviews as well as Appeal Hearings, the language around the CFRs is even more restrictive. It says public comment can be made "at the end of the meeting after the Committee has made a decision whether a case is ready for an appeal hearing." In other words, if the CRC holds a Case File Review and then launches directly into an appeal hearing, there's no input on the CFR until the end of the meeting.


__What is Still Lacking

As we noted in September, the "Conference Hearing" provision to allow the Chief to come back to CRC if he/she disagrees with their finding just causes more unnecessary delays and should be removed so disputed cases go directly to City Council.

Appellants should have advocates who can do more than the current "Appeals Process Advisors" who explain the system. If former CRC member Eric Terrell, who served as Mr. Klug's APA at the Council hearing, had been allowed to speak, the hearing may have proceeded very differently. We noted to you in September that officers can bring in a "union" rep or an attorney paid for by the PPA. This is inherently unfair.

But Portland needs so much more for a true civilian review board with the power to compel testimony and investigate deadly force complaints to exist,*-6 and to empower our Citizen Review Committee to hear deadly force appeals and make findings based on a preponderance of the evidence rather than the deferential "reasonable person standard."*-7 CRC should be able to compel officers to testify (which Council can do), _or_ Council should be allowed to hear new evidence (which CRC can do*-8). Again, it seems these were all items the Council should have negotiated before giving away money the City doesn't have to finalize the Police Association contract.

We urge another delay to this vote until we can get an ordinance that satisfies the major requirement of the DOJ Agreement: Something that builds community confidence in police accountability. At the very least, the facilitator of the Stakeholder group meetings, John Campbell, who wrote up his own observations about the importance of the community in civilian oversight of police, should be asked to testify.

Thank you for your consideration
dan handelman and other members of
--Portland Copwatch

*1-The cover sheet (at the end of the Council packet) has no changed wording from the September
version, so doesn't mention the stakeholders at all. It also claims the ordinance will allow civilians to speak at the PRB, but, as noted elsewhere in this document, that is no longer true.

*2-This was another suggestion we made to Council in September.

*3-Three of these cases were carried over from Case File Reviews held in 2015.

*4- For years there has been the ability for the complainant to "protest" the way IPR wants to handle their case, which mostly applies to dismissals.

*5-Removing the officer's supervisor from proposing the finding would also have solved the problem of that supervisor voting on his/her own recommendation at the PRB; that "double bite of the apple" now remains entrenched in the system.

*6- Other recommendations made by the 2010 Stakeholder Group which have still not been implemented include:
-- Fixing the problems with allegations that don't match the complaint
--Allowing appeals on non-disciplinary complaint outcomes
--Providing CRC its own dedicated staff
--Defining the complaint outcomes in a non-judgmental, clear and standardized way
--Increased sharing of records with the complainant and public; and
--Better reporting on discipline and the Employee Information System

*7- Note that the first draft of the proposed changes that came forward in late July 2016 allowed CRC to hear deadly force cases and to use a "preponderance of the evidence"-- but closed their meetings to the public. Those provisions disappeared between August and September.

*8- Though CRC then has to send the case back for more investigation.

Portland Copwatch
(a project of Peace and Justice Works)
PO Box 42456
Portland, OR 97242
(503) 236-3065 (office)
(503) 321-5120 (incident report line)
 copwatch@portlandcopwatch.org
 http://www.portlandcopwatch.org

homepage: homepage: http:// http://www.portlandcopwatch.org


Email Repost 3/21/17 21.Mar.2017 14:13

re-posting: Portland Copwatch

3/21/17
Portland Copwatch supporters:

The hearing on the "Independent" Police Review Division has been postponed
from this Thursday, so you can keep contacting the powers that be but
we'll let you know when the new date is 100% firmed up (though we thought
that was the case this time).

City Council agenda says it's postponed until April, date to be
determined:

 https://www.portlandoregon.gov/auditor/26997

The tentative new date is April 13 according to an inside source and the
Portland Mercury:

 link to www.portlandmercury.com

That article pretty much has the same information as our analysis but adds
that the IPR Director thinks we need to run on a consensus that includes
the Police Association. I think they Police Association has to work with
the rules that the community/elected leadership sets for them when it
comes to accountability in a job that involves state-sanctioned violence.

But best to watch for an email from us or check back here for "upcoming
agenda items" (currently has last week's version still showing the hearing
on the 23rd):
 https://www.portlandoregon.gov/auditor/article/378315

to the link for the current agenda.

(which is always at  https://www.portlandoregon.gov/auditor/26997 )

This is good, maybe they'll do more work on the thing, call in John
Campbell, and make something positive out of it. Maybe.

dan h
portland copwatch
> --Portland Copwatch