All citizens are equal, but some citizens are more equal than others (Part 2)

Since almost the beginning of this blog there has been a recognition that our current system of investigation of complaints of misconduct of law enforcement officers is completely broken, and while there has been some disagreement over the best solution there does appear to be a genuine desire to implement the most effective reform available to us under the law.

This brings me to the Civilian Oversight Ordinance.

Independent Civilian Oversight, as many have noted, can be completely toothless in cases where no subpoena power is given and when the Chief is free to ignore the recommendations of the Commission. That is why POPSI actually drafted a proposed ordinance and specifically addressed those concerns in the ordinance submitted to the City Council.

Pursuant to section (d) “The Civilian Law Enforcement Oversight Commission shall have the power to subpoena and require attendance of witnesses and the production of books and papers pertinent to its investigations and to administer oaths.”

Section (e) deals with the hiring of personnel for the commission. It was my belief that the use of independent contractors would not only be less expensive but would be more effective, as they would not become city employees and would therefore have a greater degree of independence from city politics than otherwise. For that reason the proposed ordinance does not specifically call for the hiring of full time investigators. I should note that POPSI’s ordinance was a group effort, but speaking solely for myself I would like to see the ordinance specifically state that the investigators would be independent contractors.

Section (f) identifies the duties of the Civilian Oversight Commission. Along with the review of complaints and issuance of recommendations, the Commission would also be charged with responsibility for preparing reports and preparing annual report to the City Council. Note that the County of San Diego’s oversight commission has the results of their annual investigation available online. Note that this gives the public a pretty clear picture about the nature of the claims made against officers of the department and the result of the investigation. As such, while it is far from perfect (since the name of the officers accused of wrongdoing, whether cleared or not, is never identified), it gives substantially more information than would be available otherwise.

And at the end is the provision of the Civilian Oversight Ordinance I advocated for most strongly and which was included in the final version. It is subsection (g) which states:

“The Civilian Law Enforcement Oversight Commission shall have the same standing as presently held by officers of the Police Department to appeal a decision of the Chief of Police in imposition or non-imposition of discipline in relation to an open investigation performed by the Civilian Law Enforcement Oversight Commission.”

As some of you noted in the comments in Part 1, the weakness of the ordinance is that under POBR the chief of police has to be the one making personnel decisions and the most the commission can do is advise the chief. Section (g) does not change the law but it does give standing to the Oversight Commission to appeal a decision made by the chief directly to the City Council. Currently the only party with standing to appeal the Chief of Police’s decision is the officer himself, making the appeal process fairly one sided.

No system is perfect, and a system that has to work within the framework of POBAR will be even less so, but this at least gives the City Council the tools it needs to investigate and discipline problem officers if it chooses to use it. A City Council majority concerned with reforming the department would have ample opportunity to weigh in on personnel matters. If they believe the Chief is being too lenient, they can hire a new chief; if they believe the Oversight Commission is being overly zealous, they can appoint replacement Commissioners. This will provide much needed checks and balances on how the Police Department is currently being run.

Moreover, a system where civilian complaints are taken seriously and disciplinary action is more than a theoretical possibility for all but the most egregious offenses (killing someone, upsetting higher ups and/or union chiefs) will help identify the type of officers who are prone to commit the more serious crimes down the line. This would give the City the tools it needs to remove those officers permanently before they cause significant exposure to the taxpayers (or, failing that, reducing the cost to remove the officers in question after such an incident).

The next question is how to implement a strong oversight ordinance in the City of Fullerton.

Independent Civilian Oversight has been declared constitutional and not inconsistent with POBR or the Copley decision thanks to the matter of Robert Brown vs. City of Berkeley (1976) 57 Cal. App.3d 223. However, the Court found that the ordinance did not conflict with the general state law in Government Code Section 38630 that “the police department of a city is under the control of the chief of police” because Berkeley was a charter city, where Fullerton is not. However, elsewhere in the same decision the court noted that agencies could delegate those responsibilities if they chose to.

In order to implement Civilian Oversight that could actually succeed in its intended goal, it is necessary to get the chief of police onboard. This, by the way, was a key reason the Fullerton Police Department pushed so strongly to immediately make Dan Hughes Chief. If Hughes was already appointed Chief by the City Council, he would have no reason to sign off on the ordinance. However, if he had not yet been appointed, and the Council agreed to hire him conditioned upon his agreement to sign off on the ordinance, it could pass muster with the Brown v. Berkeley case.

So there you have it – if we can convince three city councilmembers to require our next chief of police sign off on the proposed Civilian Oversight ordinance before hired, this could work. So far we have one councilmember who appears to be in favor (Bruce Whitaker), and two who are definitely opposed (Doug Chaffee and Jennifer Fitzgerald). Greg Sebourn and Jesus Silva have not publicly supported the ordinance (and Silva was backed by the Police Union) but they have not publicly opposed it either. There is at least a chance, even if a slim one, to make this happen.