PO Box 42456
Portland, OR 97242
Auditor's Proposed Review Board
Shields Police from Public Scrutiny
an analysis by Portland Copwatch
May 21, 2001
City Auditor Gary Blackmer's proposal for a Division of Independent Police Review (IPR) is an effort to shield police misconduct from the public eye, rather than to expose and remedy it. Blackmer's plan would grant the police and the City broad powers of secrecy, while greatly limiting the review board's ability to operate independently of the Portland Police Bureau (PPB).
Evidence abounds, but generally, four key elements which support this analysis are these sections of the proposed City Code and the Auditor's 13 recommendations:
--Sections 3.21.120 C and D: When the "independent" IPR investigators interview police officers, they will be relying on Police Internal Affairs Division (IAD) detectives, who will "either repeat the question or direct the employee to answer the question." In other words, the highly-touted "independent" investigations in the Auditor's plan will be dependent on the police, and the IPR will not have its own power to compel testimony.
--Recommendation #13: The IPR will not conduct reviews of police shootings and deaths in custody cases. The public response to the case of Jose Mejia Poot, who was shot by police inside a psychiatric hospital, shows that the people of Portland demand assurances that policies and procedures will be addressed, along with ensuring fair, thorough investigations. While the grand jury and police investigators will review these cases, there is no citizen input as to how a case might be handled differently either in the police-civilian interaction itself or how it was investigated. This seems contrary to the whole purpose of the IPR, which alleges to "build greater trust with the public, have greater influence on police services, and establish stronger ties between the community and the police."
--Section 3.21.070 H: This section codifies the City Attorney's ability to keep IAD investigations from IPR in cases where they are considered "Attorney-Client communications." Copwatch refers to this as the "Garvey clause," named after Captain (then-Commander) Mike Garvey, who was investigated by the IAD several years ago. When he filed a suit alleging discrimination because of his sexual orientation, the City Attorney withheld the IAD documents from the current board, the Police Internal Investigations Auditing Committee (PIIAC), who by City Code should have had access to any IAD files. The Oregonian sued for access to the files; PIIAC has still not seen them to this day. Again, this seems counter to the proposed mission of the IPR.
Furthermore, the City Attorney will also be the legal counsel for IPR, and the defendant in most lawsuits will be "the City of Portland." In other words, the IPR will be part of the defense, and the City Attorney's involvement on these matters will be a conflict of interest. If the IPR actually intends to seek the truth, this clause must be removed.
--Section 3.21.110 C requires the IPR to "obtain approval from the [Police] Bureau prior to disclosure" of public information. Since the information is public under the Oregon Public Records Law, the Bureau should not have any say about its disclosure. Yet again, the Auditor's proposal allows the City and the police to hide information rather than to share it.
These are the most glaring problems. Consider some of these other issues, which also indicate a board which will not accomplish its stated purpose:
--According to section 3.21.160 A.1, the Citizen committee of IPR, unlike the current PIIAC, cannot request further investigation. If they don't have a complete investigation, all they can do is pass the case on to Council or uphold the finding. Whether the investigation is conducted by civilian investigators or police, the citizen board also needs to assess the thoroughness and fairness of the investigations.
--Section 3.21.160 D.3 implies that the Council can compel officers to testify, but removes explicit language in the current PIIAC code defining such power. Even if they do have this power, section 3.21.160 C states that no new evidence may be introduced at a City Council appeal. That means Council would only be able to ask officers about information which was already part of the investigation. Given that Council has often complained that police investigations are incomplete, this is a dangerous restriction. In the Auditor's plan, new evidence may never come to light and the truth could be forever buried. Blackmer's proposed code also prohibits the Council from delegating whatever power to compel testimony it does have to the Citizen Review Committee, which is not restricted from hearing new evidence.
--Section 3.21.110 B prevents investigations of matters in litigation, where a "tort claim notice has been filed", or when a "grievance or other appeal under collective bargaining agreement" has been filed. Presumably, "in litigation" can mean a criminal investigation or a lawsuit is underway. It is unclear whether a person can file a complaint once criminal charges are resolved.
Also, a tort claim notice only sets aside a person's ability to sue. If they do not file this paperwork within 6 months, they forfeit that ability. Since the IAD/PIIAC process currently takes about two years, this will tie people's hands. A better approach might be to suspend cases where the lawsuits have actually been filed, a more serious step than the tort claim. That way a person would not be immediately forced to choose between seeking damages from a lawsuit and being assured that officer discipline and policy review will take place.
Furthermore, the provision to avoid cases in which police file grievances opens the door for police to do so as a tactic to stall investigations.
--Sections 3.21.120 F.4 and 5 give broad discretionary power to the IPR to turn down complaints. One of the criteria, that a complaint cannot be "vexatious," is particularly troubling. Vexatious means irritating. Deciding what is "irritating" would be highly subjective.
Section 5 notes that the use of City resources should be considered in investigating complaints. Budget constraints determining when civilian investigation occurs implies that "independent" review will rarely happen. The community will not trust a system which deems their complaints unimportant. Also, disposing of complaints this way may undermine the Early Warning System, designed to catch problem officers based on the number of filed and completed complaints.
--Section 3.21.020 O defines misconduct as "conduct by a member during an encounter with a citizen, which conduct violates Police Bureau regulations or orders, or other standards of conduct required of City employees." This would seem to mean that non-citizens (i.e. resident aliens, undocumented workers, etc.) do not have the right to be treated fairly (or to file complaints). It also implies that cases which don't involve contact with members of the public (misuse of funds, officer-on-officer misconduct, etc.) will not be in the purview of the IPR.
--Section 3.21.160 A.2 states that the City Council will "decide what the finding is" and "inform the Chief of the Council's decision," but it does not explicitly state that the Chief must accept the Council's finding. Since Chief Kroeker rejected a PIIAC finding regarding "disparate treatment" set by the majority of City Council on April 9, it is crucial that this be spelled out.
--Section 3.21.150 notes that the IPR shall "act in accordance with applicable provisions of the collective bargaining agreement," implying that the laws creating the IPR and citizen concerns will be secondary to the desires of the Portland Police Association. The PPA should not be in the position of dictating public policy.
Here are some concerns with the role of the Citizen Review Committee (section 3.21.080), which restructures the current 13-member Citizen Advisory board:
--Subsection A limits the number of citizens to 7. This will restrict the stated goal of subsection A.6, to "cause the group to best reflect the demographic make-up of the community." A larger number of Citizens will also allow the Committee to break into smaller groups more easily. Neither the Majority nor the Minority report of the Mayor's work group on PIIAC proposed lowering the number of advisors.
--Subsection A.2 allows the Citizen Review Committee to be a self-perpetuating body by picking the applicants for City Council to approve as new members. As imperfect as it is, the current system of one nominee per Neighborhood Coalition and one per Commissioner is much better and less prone to produce a board that is too single-minded.
--Subsection A.3 states that a person must "pass a criminal background check." It does not define "passing," so that a person with violations or misdemeanors on their record may be disqualified, even though their perspective might be valuable.
--Finally, this section contains no term limits (as proposed by the Majority report) and no removal clause for citizens, both of which leave too much leeway for the board to become biased one way or another.
Before we conclude this analysis of the Auditor's proposal, we want to acknowledge that imitation is the sincerest form of flattery. That is why we are glad to see that the Auditor copied (though re-arranged) Copwatch's chart outlining which elements of the review board are reflected in each of the current PIIAC, the Mayor's work group Majority and Minority reports, and the PAC-2002 initiative, and his own proposal.
Of 24 recommendations made by the Majority report, the Auditor has claimed to include 19 proposals, though by his own count there are only 14. We counted four points of agreement, which could be counted as 10 only if certain portions of the Majority recommendations are ignored (which should then appear as half-moons on the chart instead of black circles).
In addition, there are three items which the auditor has marked as "partially agreeing" with the Majority report; but two of them seem completely untrue and the third is a pale substitute:
--The first is dual intake, by which the Majority report meant that people could go to IAD or to the independent board. The Auditor's footnote states that "intake is removed from PPB," contradicting this concept.
--The second is the issue of compelling officer testimony, mentioned above.
--Finally, the chart implies there will be "Independent investigations," which the Auditor admits will be "selective," but does not admit will not be "independent," as we noted above.
Meanwhile, there are five areas in which the Auditor has recommended the exact opposite of the recommendations in the Majority report:
--Most distressing is the intransigence on the shootings and deaths in custody issue.
--Dual investigations (which the auditor has misrepresented as "Complainant choice of IAD or independent investigations, which is "Dual intake"). Members of the Majority and Minority of the Mayor's work group agreed that the independent board should not duplicate the work of IAD and vice-versa. The auditor's proposal does just that.
--There is no explanation given for why the Auditor disagrees with the Mayor's work group on hiring one investigator per 100 officers. Perhaps it is budgetary.
--The Majority Report suggested that the offices of the review board be located outside of City Hall and the Police Bureau. The Auditor says this is not important because intake can be done on the phone and then interviews can be done outside City Hall. However, if a staff person is not immediately available to go "on location," many poor and disenfranchised complainants will be left with no options.
--Last, but certainly not least, is recommending that discipline happens: This is crucial for community trust, and for the power to compel testimony. It is also technically possible the way the code is written: The code merely forbids the board setting the level of discipline.
A few final items were not addressed at all:
--The Auditor calls for timeliness in the investigations, but does not set a specific goal (the Majority and Minority reports call for a 70 day timeline).
--Training for volunteer assistants to help complainants through the process;
--Funding for the Outreach program mandated in the City Code; and
--City funds for training of intake site processors and volunteer assistants.
We thank the members of the press and the public who have taken the time to read our analysis. If you want to talk to us, please call our office at 503-236-3065.
Thanks for your kind attention,
Dan Handelman, Kristian Williams and Diane Lane
members of Portland Copwatch
Click here to go to Auditor's report (PDF format)
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