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Re: Opinion of City Attomey Regarding Civilian Review Model July 8, 2005 Page 4 Similarly, if the police department were to change its recommended outcome from unsustained to sustained as the result of a reopened investigation, that could impact the City's ability to defend the decision. Although the CRB recommendation may be well-founded, it is likely to prompt a claim by the police union in arbitration that the Department's ultimate decision to sustain the complaint was due to "political" pressure. Also, under the current collective bargaining agreement, information related to an open investigation, including CRB input, must remain confidential until the matter is closed and the information becomes public record. Breaches of confidentiality by CRB members, even if advertent, could potentially breach the parties' contract. Closed case review of community impact cases mitigates these impacts, as compared to open case review. With open case review, the CRB would meet and discuss each community impact case before adjudication, and give its input to the department before adjudication. In this way, the CRB would be drawn into every high impact case, and evidence of their discussions would be sought by employees and plaintiffs in every related arbitration or lawsuit, even when the outcome of the discussion was agreement with the handling of the case by the department. With closed case review, it would be evident from the fact that the CRB did not request or require that an investigation be reopened that the CRB found the department's handling of the complaint satisfactory, and thus would make it less likely that an employee or plaintiff would seek to depose or subpoena the CRB members to arbitration or trial. Additionally, community impact cases that resulted in an unsustained adjudication could be discussed in an open meeting without violating the current collective bargaining agreement and without risk of any breach of confidentiality. Of course, in those cases where the CRB requested or required further investigation, it would be apparent that the board disagreed with the department's adjudication, creating the kinds of impacts on arbitration and litigation described above. However, as we have suggested in earlier discussions, these impacts can be mitigated by ensuring that the CRB's ability to request or require that a case be reopened for further investigation be limited by objective "cause" criteria, and perhaps by a requirement that a supermajority of the board support the decision to reopen. G. What impacts should be considered if the board were able to select cases other than "community impact" cases whereby its review could result in the recommendation to reopen the investigation? Empowering the CRB to reopen the investigations of cases other than community impact cases carries with it significant impacts. During the course of its consideration of various civilian review models, the Commission has made a policy decision that the value of allowing the CRB to impact the outcome of"community impact" cases outweighed the potential for that review to