Memorandum Regarding the CPRB

 

 

 

 

 

 

 

MEMORANDUM

To:                           Mike Matthes, City Manager

                                Mayor and City Council Members

                                CPRB Board Members

From:                     Keep Columbia Free, a political action committee registered with the MO Ethics Commission

Ref:                          Proposed Changes to CPRB Ordinance

Date:                       August 28, 2011

 

The recent business addressed by the board and a number of related news items have drawn attention to concerns about potential changes to the CPRB Ordinance.  Recent matters brought before the board have made it clear that both the Columbia Police Department and the Columbia Police Officers Association seek to promulgate an adventitious interpretation of the board’s duties and purpose under the ordinance as they relate to the original interpretation held by many and as would seem most appropriate to accomplish said purpose.

Below we address the majority of the issues outlined by the Mayor before the City council regarding differences of opinion between the police chief and the CPRB.  It is our sincere hope that the council considers the input of other interested parties, specifically concerned citizens’ groups, as it turns to address these issues.  We further urge you to keep in mind the greater potential of fostering police accountability to the community as well as community trust in the police.  A great deal of this potential exists given nothing more than the ordinance as it currently exists.  Any changes that are unnecessary or counter to its purpose threaten to stifle that potential, as the influence of excessive, unbalanced input from the police, unfortunately, seems to already have done.       

Problem: The definition of misconduct.

Recommendation: No change is warranted or desirable.  Providing a definition in addition to those that already exist in law and department policies serves no practical purpose.  Rather, including a definition in the ordinance may hinder the board in performing its duties.

Chief Burton voices concern that there is no definition of misconduct given.  Notwithstanding the adoption by the board of the previously suggested definition, he provides yet another.  Either seems sufficient for the purposes proposed, but it seems clear from the ordinance section 21-44 that the board is tasked with addressing misconduct both “actual” and “perceived.”  Thus, a complaint need not be tested against any particular definition to be appropriate for review by the board, except in that the body of the ordinance only deals with those which have been through the normal complaint process.  Any complaint that alleges something that doesn’t technically fall under whatever definition has been adopted could still easily fall under the class of misconduct that is “perceived” but not “actual,” and yet be dismissed without review. 

The broader purview described in the ordinance should allow for the board to address the general perception of police among the citizenry, or the general concerns of a complainant independent of any allegations of specific actual misconduct by LEOs or the department.  As an advisory body, the freedom to address these concerns is vital to the board’s mission to make recommendations under Section 21-49(3) because if only violations of standing policies are permitted, complaints for which the best remedy might be a change in policies could be excluded from the board’s consideration.  Let us address three general classes of issues that the board might be asked to address:

The first is an allegation that an officer violated federal or state law, city ordinance or behaved in some other way illegally.  Clearly, the proper place for this to be addressed is in the courts, and the board should recommend that the specific allegation be handled by the prosecuting attorney.  The board is not a council of jurists and lacks the powers and restraints that come with the handling of such allegations in the judicial system.  Its place is instead to determine if any recommendations need to be made regarding policies, procedures and training in an attempt to prevent future problems.

The second is an allegation that an officer violated an existing department policy, guideline, directive, rule, regulation, or order.  Clearly, the proper place for this to be addressed is within the Internal Affairs department.  The board is not a surrogate chief of police, and should most properly recommend that any discipline be handled within the department.  The one exception is the directive under Section 21-49(1) to review appeals from the police chief’s decisions.  As made clear in Sections 21-52 and 21-53 the role of the board in these cases is to act as an additional intermediate step before appeals proceed to the personnel advisory board or the city manager.  In fact the ordinance seems to mandate that the normal complaint process be followed and that the board act only as an intermediate step, providing citizen input at the request of an appellant.  It may make recommendations, but its findings and recommendations are neither final nor binding, and thus cannot determine the final disposition of a particular case.

The third class of issues is a complaint regarding policies, procedures, or training that is not necessarily related to any specific incident of alleged actual misconduct.  These complaints address perceived misconduct, or potential problems that may threaten police accountability and community trust in the police.  The products of this class of reviews will be, again, recommendations on any changes that need to be made in policies, procedures, or training.  Among such recommendations might be suggestions that the definition of misconduct needs to be altered.  Currently, the board dismisses this class of complaint out of hand, and yet since the other two classes seem to require little involvement of the board beyond providing recommendations, it would seem that this class of concern should be recognized as exactly the kind of issue on which the board should devote the majority of its time and effort.  This is a serious problem that is addressed further below.

In all three cases, either the existing definition of misconduct has no bearing, or the duty of the board will include consideration of the appropriateness of the definition in use by another body.  The board might recommend that the definition being used as part of police policies, procedures, and training needs to be altered.  The board might recommend that the definition being used by the chief of police needs to be altered.  At no time is it bound by a specific definition, unless the chief’s recommendation is adopted by the City Council and a definition is included in the ordinance.  At no time should it be bound by a specific definition if it is to best accomplish its purpose.

The only consequence that should be expected from making this change is that the second class of complaints might then be taken out of the jurisdiction of the board, with the simple claim that “The complaint alleges behavior that does not fall under the specific definition of misconduct.”  Any such attempt to limit or bypass the board would counter-productive, as the purpose outlined in the current ordinance makes it clear that misconduct need not be “actual” to be addressed.  Providing a definition in addition to those already extant in law and department policies serves no practical purpose.

Problem: Open Records, Closed sessions and interviews.

Recommendations: No change is warranted or desirable.  As has been clarified, the only elements of the records that are opened are those pertaining to complaints, which have a bearing on the board’s considerations.  Again, board meetings are not trials, and the members of the board are not judges.  The information revealed by the provisions of Section 21-54 might bring to light problems and patterns that should rightly be addressed in the board’s recommendations.  Furthermore, while it might be reasonable to make accommodation for complainants who are concerned about harassment and retribution, the concerns for the officers are unfounded.

Especially given his/her privilege of qualified immunity, it seems troubling that any public servant would be concerned with the requirement that he/she honestly answer for their behavior.  What might be revealed in an interview that should not be heard by the public? Furthermore, under Missouri Revised Statues Section 610.022.3, closed meeting shall be closed only to the extent necessary to address the specific reasons for closing the meeting, and no other business should be discussed or votes taken “which does not directly relate to the specific reason announced to justify the closed meeting or vote.”  State law allows for certain specific situations under which a meeting can be closed and are more stringent than the criteria proposed by the chief of police.  Section 21-54(b) seems to allow for these exceptions already, and any potential closed sessions would by practical necessity have to be in addition to the normal monthly meetings outlined in Section 21-47(b) in order to comply with statute.  Surely these limitations and opportunities should be considered before any effort to alter the ordinance is undertaken.  In any case, it seems that the specific concerns brought forth by the CPOA and other parties could easily be addressed under the existing Section 21-52(a), under which independent investigators can be contracted to interview and investigate outside of the public meetings and then publicly report to the board and Section 21-55, under which the board is directed to develop a mediation process.  Why put the public nature of the board in jeopardy simply at the request of an officer accused of misconduct, when other remedies for specific concerns already exist, available at the discretion of the board?  Why risk violating State statute in an effort to address questionable concerns?

Problem: Training recommendations.

Recommendations: The proposed changes are both onerous and of questionable merit.  Surely there is some benefit to be derived from additional information and training, but a strictly mandated schedule of obligations when no funding is provided puts an undue burden on members of the board.  Furthermore, the appearance of bias that is inevitable if the police department provides and directs such a large portion of the training should be avoided.  Instead, it is recommended that the City Council determine an appropriate level of training funds for the board and that the specific nature and scheduling of said training be at the sole discretion of Council members and inspired by suggestions from all concerned parties.

Problem: Police policies to be posted online, regular reports on complaints.

Recommendations: These issues are not addressed by the Chief, except by a general statement of assent.  They are nothing more than reasonable requests by the board to help accomplish the purpose of providing a greater sense of police accountability and trust, and should be obeyed to the best of the department’s ability.  In principle, it seems that the board should rightly be encouraged to make whatever requests it determines are appropriate.  In fact, these two requests simply fall under the directive of Section 21-49(3) and are a perfect example of the third class of issues outlined above.  Making these requests and recommendations are exactly what the board was established to do, and it should be supported in the fulfillment of its duties and purpose.  Instead of posing these recommendations as “differences of opinion,” they and the method by which they were arrived at should be embraced by the board and the council by clarifying that the board welcomes appeals regarding concerns outside the strict standing definition of misconduct.  This brings us directly to the last question:

Problem: Who can make an appeal?

Recommendation: The proposed change is neither warranted nor desired. Instead, the definition of “complainant” should be broadened to make it clear that in order to most effectively address “police accountability to the community and community trust in the police” the board needs to have an official mechanism to address concerns independent of standing or of a specific officer or incident. 

Limiting the sources of complaints to individuals that are alleging specific acts of misconduct has the result of hampering the ability of the board to fully fulfill its purpose.  As an advisory body for the city and police department, and an advocate of the citizenry, it is vital that the board have a mechanism to address concerns beyond appeals from the police chief’s decision on specific allegations of actual misconduct.  Under the proposed changes, the agenda of the board will be limited to consideration of specific incidents, initiated by the complaining citizen or the disciplined officer, and the initiative of board members.  This is already the de facto state of the process, but that needs to change.  There needs to be a means by which other concerned parties can bring issues to the board’s attention.  Currently, that mechanism is generally understood by the citizens to be the complaint process, but the confusion of the board, police chief and CPOA and the identification of this as a problem by the mayor make it clear that the procedure should be clarified.  If the board is to fulfill its purpose, that clarification should allow for both appeals from the police chief’s decisions and appeals directly to the board to address concerns not inspired by a specific case of misconduct.  In any case, the council has only recently dealt with this question, and the decision to limit complainants to county residents both addresses the concerns raised by the board’s first appeal and allows for the kind of general citizen input that is so vital to the board’s mission.

In the minds of many members of the community, there should a role for the board in handling concerns that do not stem from specific allegations of misconduct; that it should be their voice, and act as a liaison with the police department and city council on matters of law enforcement policy and procedure.  The intentional inclusion of 21-51(a)(4) seems to indicate that the council recognizes this, and given the stated purpose of the board, it would seem that providing a more flexible way for the board to fulfill that role is vital.  The simple solution would seem to satisfy this need while also addressing many of Chief Burton’s concerns:  a type of filing independent of allegations of actual misconduct and the appeals process should be clearly written into the ordinance.  This process would provide a ready means for citizens to petition the board to make recommendations, and all but one of the essential elements already exist in the ordinance. 

By a surface reading of the ordinance, it would seem that the only impediment is the definitions of “complainant” which limits what can be brought before the board.  An additional class of filing, perhaps a “request” or “submission” should be included in the ordinance as a means to initiate review under the duties described in 21-49(3) without burdening members of the police department with having to answer specific allegations.  Members of the community could suggest recommendations to the board for review and, if deemed appropriate, the board could pass those on to the city manager, the police chief, and/or the City Council.  During these reviews, many of the clauses that are troubling for Chief Burton and the CPOA would not apply, because Sections 21-50 through 21-53 specifically refer to appeals and Internal Affairs procedures.  From the point of view of the council, department, and board, little would change, and yet the citizens would likely feel much more empowered to voice concerns, accomplishing much in the effort to address perceived misconduct and increase community trust in the police.  The proposed change would look something like this:

Sec. 21-44.  Purpose.

 

     The purpose of this article is to provide an external and independent process for review of actual or perceived police misconduct thereby increasing police accountability to the community and community trust in the police.

 

Sec. 21-45.  Definitions and rule of construction.

 

     The following definitions and rules of construction apply to this article:

 

     “Board,” when not otherwise specified, means the citizens police review board.

 

     “Complainant” means a person who files a complaint with the police department against a police officer or who files a recommendation submission for review by the board.

 

     “Complaint” means a written statement alleging misconduct of a police officer involving interaction with the public.

 

     “Notice” shall be considered given when it is hand delivered or three (3) business days after it is mailed.

 

     “Police officer” and “officer” means a commissioned law enforcement officer, other than the chief of police, who has the power of arrest and who serves in the Columbia police department.

 

Summary: The proposals made by the chief are presented as a collection of reasonable, simple changes intended to “tweak” the ordinance to address minor concerns.  In actuality, they would go a long way towards undermining the intended and stated purpose of the board and silencing concerns regarding the relationship between the police department and the community.  Officers are not under a constant threat of inquisition as pretended, but are granted an incomparable level of privilege and power by the government.  It is not only reasonable but absolutely necessary that what is in practical and legal terms little more that a review and advisory body maintain as much independence as possible to conduct business and direct its own procedures and conduct if the true intent is to foster accountability and trust.  We at Keep Columbia Free, along with many other individuals and groups in the community, have grave concerns about the potential for misconduct and abuse without meaningful and vigorous civilian oversight of law enforcement.  The board has the ability to address these concerns, but only if it is clear that it is free from hindrance or interference by the very government agency subject to its review.

The ordinance at its outset hints that both actual and perceived problems can have very real consequences.  If the chief’s recommendations are implemented, not only will the actual ability of the board to fulfill its mission be greatly hampered, but the perception that the board functions as little more than a public relations arm of the police department will be strengthened.  We strongly encourage the CPRB and the Council to do its best to avoid such an outcome.

 

 

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