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HomeMy WebLinkAboutCOM 0831.004 2004-2006 TESTIMONY OF PAUL M DE SILVA FOR THE FIRST.. UADING OF BILL 270 - THE INDEPENDENT POLICE AUDTl'' Having had the opportunity to review concerns expressed by all council members, may I respectfully submit the following comments. 1) Is the independent police auditor (IPA) system undemocratic? a) The IPA would be nominated by the mayor and confirmed by the council in a manner similar to the selection of members of various commissions. b) The council would set qualifications for the office and provide additional duties and functions to assure that it is able to oversee the IPA. The degree of council oversight of the IPA is therefore up to the council. c) The council can require reports from the IPA and dismiss the IPA with approval of the mayor if it is not satisfied with his or her performance. d) The auditor's independence would be protected by provisions of the charter generally describing the IPA's powers, duties and functions. e) Independence is one of the important values of auditing and investigating government operations, e.g., independent counsel and the Watergate investigation. 2) Would the auditor be a "super chief?" a) These catch words seem to have arisen from a basic misunderstanding of how the IPA is selected and how the system would work leading to the mistaken conclusion that it lacked checks and balances and was therefore undemocratic. b) The IPA must answer to the county council which by ordinance will perfect the system generally described by the charter. c) The council can devise mechanisms to oversee the IPA by enacting necessary ordinances addressing the duties and functions of both the chief and IPA. d) The IPA's powers are not administrative and are limited to monitoring and reviewing the department's operations with special access to information not available to the public. e) The IPA is prevented by the charter from interfering with the day to day administrative affairs of the police department. 3) How would the system function? a) Bill 270 lists general powers, duties and functions of both the chief of police and IPA. The charter would provide sufficient specificity to memorialize general powers, functions and duties of the IPA while ordinances would coordinate the functions of the police and IPA to ensure oversight of the IPA by the council and coordination of oversight activities between the IPA and police department. b) Broad charter provisions preclude persistent controversies about what "reviewing the operations of the department" means. c) Bill 270 mandates that the IPA would "Have such other powers, duties and functions as may be prescribed by ordinance." If the public approves of the charter amendment, the council by ordinance would then describe additional powers, duties and functions that are not inconsistent with the charter. Bill 270 also provides that the chief of police would have other powers, duties and functions as may be provided by ordinance. These two provisions would allow the council to have flexibility in assuring a functional system of deep oversight ~j I Comm. No. Ref. To: Ref, U4te consistent with powers, duties and functions of the chief and IPA specified by the charter. d) Ordinances could include such matters as: i) Regulating the nature of the auditor's conduct at the administrative review board hearings and during investigations. ii) Describing the information the auditor can access. iii) The duties of the chief to assure and allow oversight. iv) The kinds of reports the chief and IPA must make. v) The manner and conditions under which subpoena power could be used. e) Ordinances could be developed with input from all who would be impacted. f) The IPA's general powers, duties and functions specified by Bill 270 are as follows: i) Adopt such rules as the independent police auditor may consider necessary for the conduct of the auditor's business and the regulation of the matters committed to the auditor's charge; and may review the rules and regulations of the police department. ii) Receive, classify, investigate and route all internal or external complaints about swom police officers and other police department employees. iii) Review the operations of the police department including those relating to criminal intelligence. iv) Conduct inquiries and investigations into any operations of the police department and make subsequent recommendations to the managing director, the council, and the chief of police. v) Monitor the police department's investigations and processing of internal and external complaints of misconduct of sworn police officers and other police department employees; access all evidence and reports developed as part of such investigations; [participate in the department's investigative interviews related to such complaints at the discretion of the independent police auditor,] attend administrative review board and promotion board hearings; [and require the police department to undertake additional investigations as deemed necessary by the independent police auditor.] (bracketed functions should be eliminated) vi) Have the power to issue subpoenas compelling the attendance of witnesses or the production of books, documents or other evidence relating to the performance of any of his or her duties. vii) Hire personnel necessary to carry out the functions of the office of the independent police auditor and to provide staff support for the police commission. viii) Contract with qualified persons or entities outside of the police department to conduct independent investigations of complaints about sworn police officers or other police department employees, ix) Make recommendations to the chief of police or designees subsequent to investigations regarding complaints of misconduct of swom police officers or other police department employees. x) Have such other powers, duties and functions as may be prescribed by ordinance. 2 4) Is the process of changing the system "police bashing?' a) The police are not being accused of scandalous misconduct, and the police department is seeking improvement through the process of accreditation. A combination of better civilian oversight and accreditation should help to increase the accountability of law enforcement and to advance its further improvement. b) "The police auditor is a new form of citizen oversight of the police in the United States. Auditing represents an effective form of citizen oversight, focusing on organizational change and the prevention of misconduct" How Independent Police Auditors Can Improve Poli cing, Statement of Police Professional's Initiative at the University of Nebraska at Omaha, see appendix. c) The essence of effective oversight is transparency. The proposed charter amendment removes the responsibility for oversight of the police department from the police commission and assigns it to a more qualified, full time independent police auditor nominated by the mayor with approval by two-thirds vote of the council. The police commission is retained as required by statute with the continuing power to evaluate, hire and fire the chief of police but with greatly minimized powers, duties and functions, and its full time staff is eliminated. The new system will benefit the community, the police department and the individual police officer. d) Increased accountability to the community and betterment of law enforcement are the goals of the IPA. 5) What about subpoena power? a) Subpoena power can be described and limited by ordinance as desired by the council. b) For example, there could be limitations to prevent officers who are accused of misconduct from having to appear before the IPA, but only available to compel witnesses and documentary evidence to help achieve justice. Bill 270 purposefully does not specifically mention compelling the attendance of accused officers. c) Court proceedings to quash subpoenas and to obtain protective orders are always available remedies to guard against wrongful use of subpoena powers. d) Ordinances could also assure that procedures do not violate the Garrity rights of accused officers. 6) What about the privacy rights of police officers? They are often subject to frivolous complaints- a) State statutes protect privacy rights. These laws cannot be compromised by the charter and county ordinances. By flexible ordinances authorized by the charter that describe additional powers, duties and functions of the IPA and police department, effective and proper procedures with the advice and assistance of the corporation counsel can be devised b) The auditor may have access to information not available to the public because state law would allow the chief to disclose it to the IPA. The council by ordinance can assure that the process protects our officers while allowing the auditor to act as the public's watchdog. 7) Would there be any collective bargaining problems with this law? a) The corporation counsel is advising the council on this matte. and the council is also trying to assure fair application of all labor laws and the collective bargaining agreement 3 b) Provisions of Bill 270 allowing the county council to enact ordinances describing particular powers, duties and functions should allow sufficient flexibility to address collective bargaining concerns. Respectful) submitted, -~'aul M. de Silva May 8, 2006 4