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