HomeMy WebLinkAboutItem A: Amendments to Ordinance on Police Auditor and CRB
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Work Session: Proposed Ordinance Modifying the Powers and Duties of the
Police Auditor
Meeting Date: November 17, 2008 Agenda Item Number: A
Department: City Attorney’s Office Staff Contact: Glenn Klein
www.eugene-or.gov Contact Telephone Number: 682-5080
ISSUE STATEMENT
This work session has been scheduled to allow the council to consider ordinance language that
would modify the powers and duties of the Police Auditor.
BACKGROUND
On Monday, November 10, 2008, the council approved a motion directing the City Manager to
bring back ordinance language incorporating twelve modifications to the powers and duties of
the Police Auditor. A copy of the motion as initially proposed is attached as Attachment A. The
motion was amended (through friendly amendments) to include a timeline for council action on
the proposed ordinance, and provided that the council would consider the proposed ordinance at
a work session on November 17, hold a public hearing on the proposed ordinance on December
8, and schedule action for December 10. Tonight is the work session scheduled for consideration
of the 12 proposed modifications. The proposed ordinance is attached as Attachment B.
Attachment A identifies which revised code section implements each proposed amendment.
Attachment B (the revised ordinance incorporating the proposed amendments) contains a
"comment" following each proposed revision; the comment identifies which of the 12
amendments the revision addresses.
Prior to the work session, an additional memorandum will be provided to the council that
identifies some of the legal issues and questions related to the proposed modifications. Since the
council did not take action on the motion until Monday evening, it has not been possible to get
the memo with legal issues and questions prepared for inclusion in the packet. The additional
memorandum will be emailed to the Mayor and council as soon as it is completed.
Timing
Tonight is the work session scheduled for consideration of the proposed ordinance. A public
hearing on the ordinance is scheduled for December 8, 2008, and the council is scheduled to take
action on the ordinance on December 10, 2008. Due to the requirements contained in the City
Charter related to the provision of public notice of an ordinance before public hearing, the “final”
ordinance for the public hearing must be completed by November 21, 2008.
Z:\CMO\2008 Council Agendas\M081117\S081117A.DOC
COUNCIL OPTIONS
The council may:
1. Direct the City Manager to present the attached ordinance at a public hearing on December 8,
2008.
2. Give direction for amendments to the proposed ordinance and direct the City Manager to
present the revised ordinance at the public hearing on December 8.
3. Direct the City Manager to include only some of the amendments in the ordinance for the
public hearing, and refer other possible modifications to a committee for review and
recommendation.
4. Take no action.
SUGGESTED MOTION
None.
ATTACHMENTS
A. Initial Motion
B. Proposed Ordinance
FOR MORE INFORMATION
Staff Contact: Glenn Klein
Telephone: 682-5080
Staff E-Mail: glenn.klein@harrang.com
Z:\CMO\2008 Council Agendas\M081117\S081117A.DOC
ATTACHMENT B
ORDINANCE NO. ________
AN ORDINANCE CONCERNING THE POLICE AUDITOR;
AMENDING SECTIONS _____, _____, _____ AND _____, OF THE
EUGENE CODE, 1971; AND PROVIDING AN EFFECTIVE DATE.
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
Sections _____, _____, _____ and _____ of the Eugene Code,
1971, are amended to provide:
2.450 Office of Police Auditor – Established.
(1)
The office of the police auditor, hereafter auditor’s office, is hereby
established to provide an independent location to lodge complaints
involving police employees, monitor internal investigations to
ensure objective, thorough and high quality investigations, and
develop recommendations to improve police services.
(2)
The auditor’s office shall be headed by a full-time professional
police auditor who is hired by and accountable to the city council.
The city council shall hire, supervise, and specify the salary of the
independent police auditor, who shall serve at the pleasure of the
city council. All city council decisions regarding the auditor will be
made by a simple majority vote of the city council.
(3)
The independent police auditor shall have exclusive authority to
hire, supervise, and to make all other employment decisions
regarding the auditor’s support staff. No change relating to the
authority to hire and supervise the auditor’s staff shall be made
without formal action of the city council.
(4)
Any findings, recommendations and actions taken shall reflect the
police auditor’s independent judgment. No person shall use his/her
political or administrative position to attempt to unduly influence or
undermine the independence of the police auditor, or his/her staff
or agent, in the performance of his/her duties and responsibilities.
(5)
The city manager shall include in his/her recommended budget an
allocation sufficient for the operations of the auditor’s office. The
Budget Committee shall recommend, and the City Council shall
adopt, a budget for the Police Auditor that is sufficient to
accomplish all of the duties and responsibilities of the office
including the appropriation of sufficient and readily available funds
to contract for external investigations.
Comment
[: This implements Amendment #11.]
Ordinance - Page 1 of 9
(6)
The physical location of the auditor’s office shall be separate from
the police department, but in close proximity so as to facilitate a
close working relationship with others involved in the complaint
investigation process, and easily accessible to the public. The
auditor shall have complete, unrestricted and direct access to all
necessary offices within the police department to which the internal
affairs investigators and staff have access.
Comment
[: This implements the first sentence of Amendment
#5.]
(7)
It is intended that sections 2.450 through 2.456 and 2.240 through
Deleted: 6
2.246 will provide a system of independent oversight of the police
complaint process and implement section 15-A of the Eugene
Charter of 2002 as adopted by the city electorate on November 8,
2005.
2.452 Office of Police Auditor – Definitions.
Words and phrases used in
sections 2.240 through 2.246 and 2.450 through 2.456 have the following
meanings:
Chief of police or police chief. The person designated by the city
manager as the chief of police.
Community impact case. A complaint involving sworn police officer(s)
that alleges excessive force, bias, disparate treatment or violation of
constitutional rights, which the police auditor determines should be
reviewed by the civilian review board in accordance with section 2.244(3)
and 2.244(4) of this code.
Complaint. An expression of dissatisfaction, allegation of misconduct, or
question about a police employee’s conduct, police services provided or
not provided, or police department policies or practices in general.
Conclusion of any criminal investigation or conclusion of any such
criminal investigation. A criminal investigation is deemed concluded
when the appropriate criminal prosecutor decides either to press charged
or to not press charges.
Critical incident. An occurrence involving a significant police action
including, but not limited to, a civil disturbance or riot, an officer-involved
shooting, or other action by a sworn police officer resulting in serious
physical injury or death.
Facilitated conversation. A discussion guided by a third party, trained
facilitator, between the complainant and a department representative,
most often the named employee’s supervisor or internal affairs staff.
Ordinance - Page 2 of 9
Immediate family member. A person’s spouse or domestic partner, a
parent, step-parent, grandparent, child, stepchild, grandchild, sibling,
half-sibling or step-sibling of the person or of the person’s spouse or
domestic partner.
Internal affairs. The police employees designated by the chief of police
to investigate allegations of misconduct against police employees.
Mediation. A voluntary, confidential complaint resolution option that is an
alternative to the investigation, adjudication and disciplinary process. It
is a structured process guided by a neutral, third-party, professionally-
trained mediator enabling direct communication between the
complainant and employee.
Police employee. A city employee who reports directly or through others
to the chief of police. “Police employee” also includes the chief of police,
who answers to the city manager.
Comment
[: This implements Amendment #10.]
Preliminary investigation. As used in section 2.456(1)(c), an initial
inquiry by the police auditor or the auditor’s designee into the facts and
circumstances of a complaint for purposes of deciding how to classify
and route the complaint.
Substantial evidence. Evidence that, considering the record as a whole,
a reasonable person would rely upon to conclude that something is true.
For purposes of section 2.244(4), an adjudication is supported by
substantial evidence when the civilian review board reasonably could
reach the same finding after considering all the evidence in the record,
whether or not the board actually agrees with the adjudication.
Sworn police officer. A police employee who is also certified and
employed as a peace officer under the laws of this state.
2.454 Office of Police Auditor – Powers and Duties.
(1)
The police auditor is the administrative head of the auditor’s office
and shall:
(a) Oversee the operations of the auditor’s office, establish
program priorities and objectives, and manage the
implementation and evaluation of work programs;
(b) Develop and maintain operating procedures for the auditor’s
office, including protocols for handling complaints and
monitoring investigations;
(c) Establish standards of professional conduct and provide
necessary training for staff in the auditor’s office.
Ordinance - Page 3 of 9
(d) Act as liaison and provide staff support to the civilian review
board. In collaboration with the civilian review board, the
police auditor shall:
1. Establish and maintain policies, procedures and
operating principles for the civilian review board’s
functions; and
2. Conduct education and outreach activities to inform the
community about the process for filing complaints and
commendations about police employees, and develop
and disseminate information and forms regarding the
police complaint handling and review system.
(e) Receive and process complaints concerning police
employees; monitor the complaint investigation and review
Deleted:
and
process as set forth in sections 2.456(1) and (2); and review
random selections of service complaints..
Comment
[: This implements Amendment #9.]
(f) Perform a quality assurance function with the goal of
identifying systemic changes that will improve police services
to the community. These activities include:
1. Analyzing complaint trends and recommending changes
to police policy, practices and training;
2. Reviewing risk and tort claims and developing
recommendations to reduce risk and liability;
3. Reviewing and reporting trends in completed police
employee disciplinary decisions.
(g) Provide status reports to the civilian review board and city
council and provide recommendations relevant to police
policies and practices to the police commission.
(h) Develop and present to the civilian review board and city
council annual public reports describing the activities of the
auditor’s office, its findings and recommendations, the police
department’s response to its recommendations, and any other
information pertinent to assessing the performance of the
auditor’s office.
(i) Provide the city council with any other reports deemed
necessary or requested by the city council. All public reports
shall strive to protect the privacy of all individuals and shall not
contain the names of parties to a complaint (employees,
complainants and/or witnesses) not previously disclosed.
(j) Determine whether applicants for the civilian review board
meet the requisite qualifications in section 2.242(1)(a)1. and
2.242(1)(d).
(k) Keep confidential any names and other information that could
be used to identify such names, where confidentiality is
warranted, legally required or requested by the police chief as
provided in this paragraph. Upon classification of a complaint
Ordinance - Page 4 of 9
under section 2.456(1)(c), the police chief may request that
the auditor keep confidential one or more names in a specific
case. The identities of any individuals involved in a complaint
shall not be withheld from the auditor.
Comment
[: This implements Amendment #6.]
(2)
The police auditor shall receive timely notification of critical
incidents to enable him/her, or a qualified designee, to report to the
scene of critical incidents. The police auditor and chief of police
shall develop necessary protocols for summoning the police auditor
to the incident for purposes of first-hand observation.
(3)
The police auditor shall participate in use of force review boards.
(4)
All case adjudication and employee discipline decisions shall be
made by the chief of police. The police auditor may develop
adjudication recommendations, but is not authorized to recommend
the level of discipline for police employees.
(5)
The auditor, civilian review board or complainant may appeal the
police chief’s adjudication decision to the city manager if (a) the
case involves misconduct, and (b) the auditor or civilian review
board disagrees with the police chief’s adjudication decision. Any
such appeal shall be based on the record reviewed by the chief.
Deleted:
Comment
[: This implements Amendment #7.]
2.456 Office of Police Auditor – Complaint Processing.
(1)
Complaint intake.
(a) Any person may lodge a complaint or commendation with the
auditor’s office about the conduct of, or services provided by,
a city police employee;
(b) The auditor’s office is the intake center for all community
complaints about police employees. City employees may
choose to lodge complaints against another employee through
either internal affairs or the auditor’s office. A copy of any
claim for damages filed with the City, including tort claim
notices filed pursuant to ORS 30.275, shall be forwarded to
the auditor’s office for classification and processing as a
complaint if the claim alleges that a police employee caused
the damage. The auditor’s office shall document all contacts
and complaints received from any source. The auditor’s office
may refer a complainant to another department in the city or
another agency that would be more appropriate to address
the complaint.
Comment
[: This implements Amendment #8.]
(c) The auditor’s office conducts the preliminary investigation of
all complaints lodged with or forwarded to the auditor’s office
or internal affairs. The auditor has the exclusive authority to
appropriately classify and route the complaint and any
accompanying information accordingly. The auditor has the
Ordinance - Page 5 of 9
exclusive authority to reclassify a complaint if upon further
investigation and additional information, not available at the
time of intake, the auditor finds reclassification is warranted. If
a complaint is received that alleges criminal conduct on the
part of the employee, the police auditor shall forward the
complaint and any associated information to the chief of
police.
Comment
[: This implements Amendment #1, except
that “forwarded to” is added for implementation of
Amendment #8 contained in the prior paragraph.]
(d) The auditor’s office may determine whether a complaint is
appropriate for mediation or facilitated conversation, and upon
the voluntary agreement of the involved parties and approval
of the chief of police, shall coordinate the resolution of such
cases.
1. Mediation is an alternative to the investigation,
adjudication and disciplinary process; if the parties agree
to mediation, the investigation, adjudication and
disciplinary process will end.
2. A facilitated conversation may, but does not necessarily,
result in termination of the investigation, adjudication
and disciplinary process.
(e) The auditor’s office classifies complaints that will be treated as
community impact cases and provides support to the civilian
review board in its review of those cases and other cases
accepted by the civilian review board.
(f) The auditor’s office shall provide timely updates on the status
of a complaint and notification to the complainant of its final
disposition.
(g) The auditor’s office may dismiss a complaint if upon review, it
meets criteria that the auditor has established for such action,
including reporting delays and/or insufficient information from
which to take further action.
(h) The auditor may review and process a complaint not filed
directly with the auditor’s office if the auditor determines that
concerns have been expressed about conduct of a police
employee(s).
(i) Except for good cause, complaints of minor misconduct
involving courtesy, communications, and minor rules
violations that might be handled as service complaints shall
be filed within 60 days of the incident.
(j) Except for good cause, complaints of serious misconduct
including, for example, excessive force that causes
substantial physical injury, egregious acts of disparate
treatment, or major rules violations shall be filed within 6
months of the incident.
Ordinance - Page 6 of 9
(2)
Complaint Investigations.
(a) Administrative and criminal investigations of complaints shall
not commence until after the auditor has received, classified
and routed the complaint. The investigation shall commence
upon classification or as soon as possible after classification.
Comment
[: This implements Amendment #2.]
(b) An administrative investigation shall proceed concurrently with
any related criminal investigation. No administrative
investigation shall be suspended, delayed or postponed
because a related criminal proceeding involving a complainant
or witness has not been resolved.
Comment
[: This implements Amendment #4.]
(c) The police auditor shall actively monitor administrative
Deleted:
internal
investigations to ensure a thorough, objective, and timely
investigation, and is authorized to:
1. Participate in complainant, employee and witness
interviews;
2. Require the city to undertake additional investigation.
(d) The police auditor may require, and is authorized to contract
Deleted:
b
for, an external investigation when the police auditor
determines that an external investigation is appropriate.
(e) The police auditor will not be directly involved in any criminal
Deleted:
c
investigations, except to the extent that an action – such as an
interview – is intended to further both the criminal
investigation and administrative investigation. In such a
situation, the auditor may actively monitor the administrative
investigation as provided in paragraph (c) above even if that
results, for example, in the auditor’s participation in an
interview that is conducted as part of both a criminal
investigation and administrative investigation. The auditor
Deleted:
but
shall be kept apprised of the status of criminal investigations
Deleted:
such
involving police employees. The police auditor shall have
access to the case file relevant to the administrative portion of
such investigations.
Deleted:
Following the conclusion of
any criminal investigation or within 60
Comment
[: This implements Amendments #4 and 12.]
days after the date of the incident, the
(f) All case files shall be provided to the police auditor upon
auditor has the authority to initiate an
internal investigation unless the police
conclusion of the investigation for review and a determination
auditor receives written notice from
that the investigation was thorough and complete. Once the
the District Attorney, United States
Attorney, or City Prosecutor that the
investigation is deemed complete, the involved employee’s
internal investigation would
immediate supervisor will confer with the police auditor and
jeopardize the criminal investigation
and prosecution.
develop a case adjudication recommendation that will be
Deleted:
d
forwarded through the chain of command to the chief of police
for final adjudication. If the police auditor disagrees with the
supervisor’s recommendation, his/her disagreements and
comments will be documented and forwarded to the chief of
police as well. The immediate supervisor and police auditor
Ordinance - Page 7 of 9
will use their best efforts to complete this process in a timely
manner and without unreasonably delaying the final
adjudication of the case. If the investigation reveals evidence
of criminal conduct not previously known, the auditor may
refer the matter to the appropriate criminal prosecutor for
his/her consideration.
(g) The auditor’s office will make every reasonable effort to notify
Deleted:
e
the complainant that an investigation has been conducted,
summarize the case findings, and provide an opportunity for
the complainant to comment or ask questions about the
process.
(h) The auditor’s office shall return all case file materials to
Deleted:
f
internal affairs for retention, but shall have subsequent access
to closed cases.
(i) The police auditor shall maintain an on-going status report on
Deleted:
g
the work of the auditor’s office and case investigations and
shall share it with the civilian review board.
(3)
Access to Records and Materials.
(a) The police auditor shall have complete, direct and unrestricted
access to (i) all complaint and investigative records, evidence,
documents and materials, (ii) IA PRO database to the same
extent as the program coordinator and IA PRO supervisor,
and (iii) any other information the auditor deems relevant to
the complaint or is necessary for the performance of his/her
specified duties. Such access shall commence upon the
opening of the case file and continue even after a case is
closed. As provided in section 2.456(2)(f), the police auditor
Deleted:
d
shall not have access to a criminal investigation file until the
conclusion of any such criminal investigation.
Comment
[: This implements Amendment #3 and the
second sentence of Amendment #5.]
(b) The police auditor shall supervise the development and
implementation of a case management system to track all
complaints received in coordination with the internal affairs
unit, report case statistics and trends, and provide
performance indicators to evaluate the effectiveness of the
auditor’s office.
(c) The chief of police and police auditor shall develop
cooperative interdepartmental procedures and any necessary
infrastructure to coordinate the flow of information and
communication between the auditor’s office and the police
department.
Section 2.
The City Recorder, at the request of, or with the concurrence of
the City Attorney, is authorized to administratively correct any reference errors
Ordinance - Page 8 of 9
contained herein or in other provisions of the Eugene Code, 1971 to the provisions
added, amended or repealed herein.
Section 3.
Notwithstanding the effective date for this Ordinance as provided
in the Eugene Charter of 2002, the changes to sections _____, _____, _____, and
_____ shall not take effect until allowed under the Oregon Public Employees
Collective Bargaining Act.
Passed by the City Council this Approved by the Mayor this
_____ day of December, 2008 ____ day of December, 2008
___________________________ ___________________________
City Recorder Mayor
00212915.DOC;2
Ordinance - Page 9 of 9