The “police reform” subcommittees speak

The recommendations by the five subcommittees appointed by the “Committee on Police Reform & Racial Justice” are now out.

Although the subcommittees urge that the police department’s staffing and budget “should be maintained only at the level necessary to properly prevent, respond to, and investigate crime,” they do not propose any specific cuts – whether the 42 percent prescribed by Councilman John Knox White or some other percentage – in either the number of officers employed, or the amount of dollars spent, by the police department.  But they do make two recommendations that might be described as – to use the preferred lingo – “transformational.”

One is to establish a “Police Oversight Board,” whose all-civilian membership would include “representation” from the “homeless population,” to receive and investigate complaints against the police, with the power, among other things, to “recommend” that an officer be fired and that departmental policies be “redefined.”  The Board also would be given an “active role in hiring for the department at all levels.”

Another is to promulgate a “Police Code of Conduct,” modeled on the Uniform Code of Military Justice, that uses “general language” and prohibits “conduct unbecoming an officer” and “dereliction of duty.”  Violations of the Code would furnish the basis for disciplinary action, up to and including dismissal, or even criminal prosecution.

Update: Our discussion of the “Code of Conduct” recommendation is based on the document entitled, “Community-Led Committee on Police Reform and Racial Justice Draft Recommendations” that was posted on the City website last Thursday afternoon (a .pdf of which is included in “Sources”).  After this column was published, a former Policy and Procedures subcommittee member, James Meyers, sent us an email stating that this document did not contain the final version of his subcommittee’s recommendations.  We contacted the City’s Public Information Officer, Sarah Henry, who told us that the Steering Committee had “discovered that the version that was posted was an earlier version of the recommendation and not the final, and sent me edits to make later that evening,” which she did.  Mr. Meyers sent us what he said was the final version of the draft recommendations, which we have included in “Sources.”  We also have posted Mr. Meyers’s email in the Comments section.

The Merry-Go-Round does not intend today to comment on the assumptions or rationale for these recommendations or on their merits.  We will offer one overall observation, however:  In reading the subcommittees’ reports, it was not always clear to us whether these groups are endeavoring to solve problems they’ve actually uncovered in the Alameda police department – or whether, instead, they are treating Alameda as simply the local venue for implementing a sweeping national “police reform” agenda.

“[P]olicing in the United States has a culture and history of racism and excessive force, putting people of color and people with disabilities in particular at risk of injuries or death from excessive force at the hands of armed officers,” the very first report – of the “Unbundling Services” subcommittee – states.  “This history (no matter how present it is in today’s APD) causes great distrust and fear, making encounters fraught, and causing some members of our community to forgo help they need, and results in disproportionate outcomes based on race.”  (Emphasis supplied.)

But, in deciding whether, and to what extent, reforms are necessary or desirable, doesn’t it in fact matter whether a “culture” of “racism and excessive force” actually is “present in today’s APD”?  If the punishment should fit the crime, shouldn’t the remedy likewise fit the wrong?

But that’s an issue for another day.  Today, we will focus on the two recommendations cited above.  The City held a “community workshop” on the entire set of proposals the day after they were released, and they will be presented to the Transportation Commission on January 27; the Social Service and Human Relations Board on January 28; the Commission on Persons with Disabilities on February 10; and, finally, to Council on March 16.  The general public, which thus far has been shut out of steering committee and subcommittee meetings, will get the chance to submit questions and comments on each of those occasions.  (In addition, the City website offers all citizens the opportunity to fill out a “community survey.”)

The recommendation by the “Accountability and Oversight” subcommittee to create a Police Oversight Board seems to be the most fully developed.

To be established through an amendment to the City Charter (which, would require a vote of the people), the Board would have 7 to 13 members who are Alameda residents; would serve two-year terms, with a two-term limit; and would get a “stipend for their time.”  The draft does not make clear who would appoint the Board members, but police department and other City employees would not be eligible to serve.  By the same token, “Because the homeless population is significantly over-policed in many places, representation on the board would help the board have a broader perspective on the real lives of the community.”

Citizens would be able to file complaints directly with the Board, and any complaints made to APD itself would “automatically be sent to the board without being reviewed by the police first.”  “[A]t least initially,” complaints can be anonymous, and “special provisions” would be adopted for complaints by persons who already have been charged with a crime.  Moreover, “support” would be given to enable immigrants to file complaints “regardless of the status of their documentation.”

Here’s how the complaint process would operate:

  • The Board “should have broad powers to get evidence from the police department –[including] clear, fast access to complete video evidence, penalties for police withholding of evidence, and provisions for interviewing officers,” the draft states.  The investigators will have the right to review the police department’s Internal Affairs file (and to “monitor” any internal investigation), and the power “to compel police attendance at hearings and establish penalties for officers’ failure to cooperate or attend hearings.”  Moreover, subject to “further advice from the city attorney’s office,” they also might be granted subpoena power.  The draft does not address what rights, if any, the officer who is the subject of the complaint would have to obtain evidence or interview witnesses during the investigation.
  • Ordinarily, the investigation should be completed within 90 days and a “hearing” should be scheduled 14 days thereafter, at which, presumably, the Board will make findings and decide upon remedies. (The findings will be in writing.)  The complainant will have the right to an attorney, a “non‑attorney advocate,” and an interpreter (if needed) at the hearing; she also can “request mental health support.”  The draft does not delineate any rights to be afforded at the hearing to the police officer who is the subject of the complaint.
  • If the Board finds that “improper behavior” had occurred, it “should have the power to advise the police department on appropriate discipline.”  Although “[c]urrent laws and union contracts set limits on disciplinary actions,” this “should not stop the board” from recommending “that such action be taken, including recommending, where relevant, that the subject be ineligible for re-hire within the department.”
  • In addition, the Board “should have the power to remove existing policy and recommend redefined policy so that the behavior in the complaint is not repeated.” Nor should this power depend on a finding of culpability.  Even if the complaint “could not be sustained,” the “nature of the incident” may be such that “the board wants to make a recommendation about the policies and procedures and make some changes in how the police department handles future incidents.”

The proposal does not elucidate the standard against which an officer’s conduct is to be judged when the Board rules on a complaint.  Presumably, in such cases the Board will determine whether the officer broke any laws or violated any internal rules.  But, unless the “Code of Conduct” (discussed below) is intended to supply the missing guidance, it would appear that the Board’s discretion to find an officer guilty of “improper behavior” is unfettered.  To that extent, its authority exceeds that of an ordinary jury, whose members are instructed on, and told to apply, specific legal rules.

Adjudication of complaints is not the only function the subcommittee foresees for the Oversight Board.  The Board also “should play an active role in hiring for the department at all levels,” including “participation in oral boards/hiring for officers, and input into the hiring process for the police chief.”  It should “have the ability to recommend” either “specific training” or “subject areas for ongoing training.”  And it should “perform an annual review” of the police policy manual and “determine which polices and procedures need revision [or] removal/replacement.”

The recommendation to promulgate a “Police Code of Conduct” is attributed to a member of the “Policies and Procedures” subcommittee who has “experience in military command” in “both CONUS [i.e., the continental United States] and overseas assignments.”  (The City website does not provide biographical information, so we can’t put a name to this description.)

Update: Our discussion of the “Code of Conduct” recommendation is based on the document entitled, “Community-Led Committee on Police Reform and Racial Justice Draft Recommendations” that was posted on the City website last Thursday afternoon (a .pdf of which is included in “Sources”).  After this column was published, a former Policy and Procedures subcommittee member, James Meyers, sent us an email stating that this document did not contain the final version of his subcommittee’s recommendations.  We contacted the City’s Public Information Officer, Sarah Henry, who told us that the Steering Committee had “discovered that the version that was posted was an earlier version of the recommendation and not the final, and sent me edits to make later that evening,” which she did.  Mr. Meyers sent us what he said was the final version of the draft recommendations, which we have included in “Sources.”  We also have posted Mr. Meyers’s email in the Comments section.

The impetus for the Code arose, the draft states, from the “immediate need” to “stop racially unjust individual police officer and Department-wide conduct and restore our Community’s trust in our police.”  (No specific incidents are cited.)  The “current climate” in APD does not “support a peer-enforced process” to address “racially unjust” behavior, nor is there a “Community-oversight process” fulfilling that goal.  Accordingly, “there is an immediate need to create a process by which action is taken and community oversight is given to address police officers whose conduct is unbecoming of an officer or constitutes a dereliction of duty.”

The draft describes a “code of conduct” for the police as a “social contract between a police officer and the Community that is, in exchange for agreeing to follow the code, granting the officer special policing powers.”  Such a code “is legally enforceable and conduct not in conformance with the Code [is] punishable by law.”

The proposal provides examples” of “general conduct” and “specific conduct” that an APD Code of Conduct would cover, including the items on the “#8Can’tWait” list devised by national activists.  But its central idea is that the Code should contain a provision on “conduct unbecoming an officer” modeled on the Uniform Code of Military Justice.  This provision would prohibit “any action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character.”

The lack of specificity, the draft states, is “intentional; the offense serves as a catch-all Code that sweeps in conduct that may not otherwise be addressed in the Code.”  Moreover, the broad language could furnish “justification for discipline for actions that might not rise to the level of a Grand Jury investigation or a criminal prosecution but could rise to actions that punish or dismiss an officer.”

Examples of “conduct unbecoming an officer” include “unintentional or intentional racial discrimination or profiling”; “improper use of one’s police officer position to gain personal advantage”; “failing to report another officer for abuse”; and “even public drunkenness.”  The provision would “work well,” the draft states, in “encourag[ing]” police officers to disclose wrongdoings by their colleagues” by exposing them to “potential disciplinary action” if they keep silent.

In addition to “conduct unbecoming an officer,” the Code also would address “dereliction of duty.”  This phrase encompasses not only “disregard” of the duties set forth in the department’s policy manuals, the draft states, but also any conduct “deemed [to be] a willful disregard for individual rights of Community members and their protection.”

The proposal envisions that discovery of a suspected infraction of the Code would prompt a “discussion among the officers with direct knowledge of the incident, followed by additional reviews by supervisors and ultimately, a review by a rotating panel of rank-and-file officers as needed based on severity.”  (Elsewhere, the subcommittee recommends developing an “internal accountability and oversight process,” of which this “rotating panel” presumably is a part.)  “If warranted,” the next step would be “review of a peer panel for recommendation to the Chief for disciplinary action.”  In addition, the “Community Oversight” body would get an “anonymous detailed summary of all reviewed incidents and outcomes” within 30 days of the incident “or knowledge of the incident by another officer.”

The Code enforcement actions recommended by the subcommittee don’t end there.  One section of the draft is devoted to overcoming what the author sees as prosecutorial unwillingness to bring criminal charges against police officers.  “[H]aving a Code of Conduct could provide greater incentive for prosecutors to bring appropriate charges in the most egregious cases,” the draft states.  To the extent it prohibits specific actions, the Code could make it easier for prosecutors to bring charges against an officer (or “at the very least, they will have a harder time justifying not bringing charges when the officer has more clearly committed a violation.”)  At the same time, to the extent it contains a broad “conduct unbecoming” provision, the Code “could also potentially promote prosecutions that would otherwise not take place.”

By focusing on the “Police Oversight Board” and the “Police Code of Conduct,” we’ve omitted a host of other recommendations made by the “police reform” subcommittees.  We hope that ordinary citizens will take the time to review the entire list with an eye to determining for themselves whether it reflects what Alamedans truly need, want, and expect from their police department.

Sources:

“Police reform” subcommittees report posted on City website 1-21-21: Police reform committee recommendations (1-19-21)

“Police reform” subcommittees report provided by James Meyers 1-24-21: recommendationsdraft012221

About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
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12 Responses to The “police reform” subcommittees speak

  1. Irene says:

    The League of Women Voters held a community meeting on policing in Alameda, which also sheds light on the issue: https://ionalameda.com/2020/10/15/funding-the-police/

  2. Gigino DiMaio says:

    Another shooting at 3:40pm today right on Park St. So much for this reimagining nonsense.

  3. Ed. note: After this column was published, we received the following email from James Meyers:

    Hi Robert,

    Until recently, I was a member of the Alameda Police Reform – Policies and Procedures sub-committee. For reasons unrelated to the reform work, I have had to step away from volunteering for a while. I was forwarded your blog comments today. I’m not sure what happened but you did not download the sub-committee approved recommendations at this stage of their work. Based on your comments, I am assuming you got a copy of a draft of language in error meant for early sub-committee discussions. That document went through many drafts, ultimately had many edits and editors, ultimately did not have portions of the language you quoted, does not reflect the recommendations of the full committee and I suggest you toss it and review the correct recommendations approved by the subcommittee (attached and available for download from the same link you used before on the City’s website).

    Bottom line, the draft document you read on the code of conduct was written, added to, subtracted from and commented on by lots of folks on the committee and much of the language was thought to be important but also much was found to be overstated or not substantiated. The document you got was likely an early version based on the quotes you posted. The final version of the committee’s recommendations cover many other areas besides the idea of a code of conduct and does not overstate the collective opinions and recommendations of the subcommittee members. I think you will find the recommendations found in this document to be reasonable and important for our community to consider as we look to improve policing in our City.

    The committee members as a whole are committed to good research and solid fact gathering before making final recommendations. The idea of a code of conduct came from a military example and was presented as just that, an idea. All committee members are fully aware that a civilian police department is not the military – but many feel that the idea of a code of conduct might help our community and our police department. The committee is keenly aware that they need a thorough city staff and police department reporting on the current policies and procedures around handling officer conduct and to get expert feedback on national models for police codes of ethics and/or conduct before proceeding. Many on the committee also feel that a workgroup that includes police officers and other community members should review information collected and then comment prior to any final recommendations to the City.

    The idea of a code of conduct awaits significantly more input and discussion prior to any final recommendations are made. It is unfortunate the draft document you (and others) downloaded was not intended to ever be used except for committee members to kick around ideas (many of which were not agreed to) nor does it reflect the eventual consensus of the subcommittee members for recommendations at this early stage to the community.

    Feel free to share these comments on your blog to your followers. In addition, I have copy/pasted below the approved subcommittee language approved and submitted to the City regarding the idea of a code of conduct.

    Respectfully,
    Jim Meyers

    4. We Recommend Consideration of an Alameda Police Department Code of Conduct
    Preparatory Formal Review Process
    The Policies and Procedures Subcommittee has interest in considering the role a formal Code of Conduct might play in police department policies and procedures. In support of a full review of this option, it is requested that the City of Alameda (or a subject matter expert) provide assistance with research and written or verbal summary of:
    • • Existing approaches in policies, procedures, accountability and/or oversight in the City of Alameda of police officer misconduct,
    • • National trends and examples of Police Officer Codes of Conduct or equivalent Codes of Ethics or equivalent guidelines for general police conduct in the performance of the duties. This is not a request for examples of conduct guidelines in specific tactical police operations. Research and examples should include, at a minimum, conduct that could be described as “dereliction of duty” or “conduct unbecoming of an officer”.
    • • National trends and examples of internal police department use, accountability and oversight of a Police Officer Code of Conduct or equivalent Codes of Ethics or equivalent guidelines for general police conduct in the performance of the duties.
    • • National trends and examples of Municipality, Elected Official (like our City Council) and civilian Community Oversight structures and processes for oversight of internal police department use, accountability and oversight of a Police Officer Code of Conduct or equivalent Codes of Ethics or equivalent guidelines for general police conduct in the performance of the duties.
    Proposals Under Consideration Once A Formal Review Is Completed
    1. The Policies and Procedures Subcommittee (“PPS”) proposes that the Alameda Police Reform Committee (“Committee”) consider developing and recommending to the City of Alameda City Council a Police Code of Conduct. The Code of Conduct is proposed as a permanent part of the Alameda Police Department Policy Manual, to which all City of Alameda police officers and police managers would agree to follow as a condition of continued employment in the City of Alameda. We note that the City currently has codes of conduct and a Code of Ethics in its existing policies and procedures, and we expect that this work would build on those existing documents.
    2. The PPS further proposes that the Committee consider developing and recommending to the City of Alameda City Council an Alameda Police Department internal accountability and oversight process for specifically enforcing the Police Code of Conduct.
    3. The PPS proposes that the Committee consider developing and recommending to the City of Alameda City Council a City Council and Community Oversight process that includes enforcement of the Police Code of Conduct. The recommendation should include, as a minimum, a preferred model of a Community Oversight structure, conditions under which there is a mandatory review of incidences of potential police officer misconduct as defined under the Code, a legal review of the legal authority structure necessary for potential oversight actions and a recommended timeline for all required City Council action on any necessary revisions to the City Charter.
    Committee on Police Reform & Racial Justice
    Draft Recommendations Page 13
    Background
    Why Consider a Code of Conduct?
    Police departments have long had policies and procedures and Codes of Ethics that reside in their operational manuals and guiding documents. We believe that these guiding principles are in need of a full discussion, with stakeholder input, and that this discussion will help reinvigorate those standards and create shared expectations around police conduct. We further believe that these shared expectations need to be monitored through internal accountability systems and civilian oversight.
    What Could Be Included in a Code of Conduct?
    There would be codes dedicated to general conduct and specific conduct. Examples could include:
    • General Conduct Affirmative Code
    o Conduct unbecoming of an officer
    o Dereliction of duty
    o Racist or anti-LGBTQ+ group affiliation
    o Racist or anti-LGBTQ+ actions
    o Use or affirmation of racist or anti-LGBTQ+ language
    • Specific conduct (see #8CANTWAIT.org)
    o Duty to Intervene
    o Require De-escalation
    o No Choke/Strangle/Sleeper Holds
    o Require Warning before Shooting
    o BanShootingatMovingVehicles
    o Requirement to Exhaust Alternatives Before Shooting o Require Use of Force Continuum
    o Require Comprehensive Force Reporting
    Why a “Code” Versus Better Policies and Procedures
    Policies and procedures are guidelines for behavior that rely on a police officer’s skills, knowledge, and judgement to prioritize, use or, if appropriate, ignore, depending on each unique tactical situation faced in policing the Community.
    A Code of Conduct is not a set of behaviors that can be prioritized or ignored nor are dependent on a tactical situation.
    A Code of Conduct is a social contract between a police officer and the Community that is, in exchange for agreeing to follow the code, granting the officer special policing powers. A code can be used by officers to build a baseline set of behavioral standards they can rely on to guide their engagement with the Community.

  4. Trish Herrera Spencer says:

    Here’s link for Feb. 2 Council meeting agenda. https://www.alamedaca.gov/GOVERNMENT/Agendas-Minutes-Announcements

    Those with questions or comments about Alameda policing, please consider emailing and speaking on Agenda items 6-B (Interim Police Chief Randy Fenn police update) and 9-B (my referral/request to Council of Jan. 4, asking for that) on Feb. 2, 2021 City Council agenda, including City Manager, Interim Police Chief, and all Council in emails. I will withdraw my referral after hearing 6-B if it’s comprehensive and answers the community’s questions.

    citycouncil-list@alamedaca.gov

    https://www.alamedaca.gov/GOVERNMENT/Elected-Officials

    City Manager Eric Levitt
    manager@alamedaca.gov
    Elevitt@alamedaca.gov; 510-747-4700

    Interim Police Chief Randy Fenn RFenn@alamedaca.gov; 510-337-8300

    Thank you.

  5. anonymous says:

    Good point: “. . . it was not always clear to us whether these groups are endeavoring to solve problems they’ve actually uncovered in the Alameda police department – or whether, instead, they are treating Alameda as simply the local venue for implementing a sweeping national “police reform” agenda.”

  6. vishal says:

    Mr. Sullwold – Perhaps you can help guide me in the right direction. This recent shooting on park street has me on edge. How did we get to this point in community and kid friendly neighborhood? It has me asking some questions that hit at the root of our island’s problems. Over the past 5 years, there has no doubt been an outpouring of citizenry shouting about housing inequality. However, as more homes are sold for >1m on the island (and the greater bay area), one wonders where the incremental property tax revenue is going. Due to prop 13, we know more recent home sales will generate more tax than older sales. So where does this money actually end up? If a home sells for 1m, it is going to be generating 12k/year in property tax. If its previous tax assessment was say, 500k, then it was only generating 6k/year. Where does that incremental 6k in revenue go? Clearly it’s not going to fund more police. It has become more and more clear to me that absent great weather and topography, the Island, the Bay Area, and California in general appear to be held hostage by a totally failing government. One would think, with the highest tax rates in the country that we could fund enough police to keep crime down, have decent roads that aren’t full of potholes, and figure out how to keep the power on (maybe not exactly a state issue). Living around here always has me asking, where’s all the money going?

    Great blog, keep up the good work.

    v

    • JRB says:

      The policing issue isn’t the lack of funding – there’s plenty of funding. I believe we have around 20 budgeted positions that are currently not being filled right now. People just don’t want to sign up to become police officers these days, and those that do don’t meet Alameda’s higher standards for recruits (you have to have at least a college degree to patrol our streets). City council even approved poaching bonuses to make lateral hires from other cities, with little success. The main idea behind “defund the police” isn’t to literally take money away from the police, but to help take the burden off of officers who are otherwise expected to do everything – hence why people don’t want to be police these days. Up to 40% of our emergency calls could have been handled by a trained expert other than an officer with a gun – but we don’t have these trained experts. Offering a wider array of resources to support our emergency response will make sure the right solutions match with the right problems, and better allow police officers to do what they do best – policing.

      • Ed. note: Contrary to the statement in the comment, the City does not require that an applicant have a college degree in order to be hired as a police officer (or firefighter). The labor agreement with the police union does, however, provide additional pay for a police officer with a bachelor’s (5%) or master’s (6%) degree.

  7. Richard Sherratt says:

    Why are some council members picking on police. We had a safe community without police harassment but now they are putting our families in harms way for no logical reason. A review commission with the suggested authority will be a total mess. How about a fire, public works…etc. commission so those departments don’t feel left out. A citizen study group should be appointed to review our largest budget item, the fire department, which has fewer than a dozen real fire calls a year.

    • Really says:

      You hit the nail on the head. Like too many things in town now, incidents are exploited or manufactured (suspicious pamphlets! Hooded gunmen! Mass evictions looming! Pandemic Panic! ) while actual shootings, rises in crime and closed schools and businesses are ignored or downplayed. It is obvious that local politicians have county and statewide ambitions and have calculated a way to use local issues to get there by shouting “Look over there!”

  8. Really says:

    Really? Have you heard of a guy called Rob Bonta who briefly was on our council and now is in the state assembly?

    Read this:

    https://www.sacbee.com/news/politics-government/capitol-alert/article248045885.html

    Who do you think will replace him? Vella? Oddie? JKW?

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