HomeMy WebLinkAboutItem A: Quarterly Police Auditor Briefing
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UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Briefing: Quarterly Briefing to City Council from Police Auditor
Meeting Date: April 26, 2010 Agenda Item Number: A
Department: Office of the Police Auditor Staff Contact: Mark Gissiner
www.eugene-or.gov Contact Telephone Number: 541-682-5005
ISSUE STATEMENT
The Police Auditor is appearing before the City Council to provide an update on the annual report,
Civilian Review issues, case classification issues, budgetary issues and suggestions for improvements in
customer service.
BACKGROUND
The Eugene City Council is the hiring authority for the Police Auditor. On a quarterly basis the Police
Auditor provides reports to the council on key issues effecting the Auditor’s office and
police/community relations.
RELATED CITY POLICIES
Eugene Charter and Police Auditor Ordinances.
COUNCIL OPTIONS
Offer comments and questions.
CITY MANAGER’S RECOMMENDATION
Not applicable.
ATTACHMENTS
A. Informational Report
B. Civilian Review Board Letter to the Oregon Attorney General Regarding Public Records
C. Response from the Oregon Attorney General to the Civilian Review Board
FOR MORE INFORMATION
Staff Contact: Mark Gissiner
Telephone: 541-682-5005
Staff E-Mail: mark.a.gissiner@ci.eugene.or.us
Z:\CMO\2010 Council Agendas\M100426\S100426A.doc
ATTACHMENT A
City of Eugene
Police Auditor
800 Olive Street
Eugene, Oregon 97401
(541) 682-5016
(541) 682-5599 FAX
www.eugene-or.gov
To: Mayor Piercy and Councilors
From: Mark Gissiner, Police Auditor
Date: 4-26-2010
Re: Informational Report
This is my quarterly report to City Council on primary issues in the Auditor’s
Office. These issues are also discussed with the Auditor Supervision Team of
Council President Mike Clark and Council Vice President Betty Taylor.
We continue to strive to provide excellent customer service with a recognition that
often times the decisions made are not always popular. We also continue to work
with the Eugene Police Department and Chief Pete Kerns to identify key issues in
policies and training to improve the performance of the department and the
Auditor’s Office.
I. CRB Letter to the Oregon Attorney General Requesting Clarification on
Public Safety Records
Recently I sent an email to each of you with attachments regarding the Civilian
Review Board’s request for clarification from the Attorney General with regard to
public safety records (Attachment 1). Yesterday we received a letter from his office
indicating that state law does not permit him to give an opinion or provide legal
advice to the Eugene Civilian Review Board (Attachment 2). I believe our next step
should be convening all of the interested parties to find an agreeable solution to
share information with the public while protecting individual privacy.
II. Annual Report of the Auditor’s Office
While I had hoped to provide an annual report by this date, it is not completed.
One of my priorities when I took this job was to establish administrative policies
and procedures for long term efficiency goals. While most data is entered in the
complaint tracking system known as IAPro, the reports this product generates are
inadequate for my needs to provide Council and the City with a comprehensive
statistical analysis of complaints with key demographics identified. We did not
have templates for statistical data – those needed to be developed. As we mine the
data, we are finding errors in the data and are working to coordinate the data.
1
Each of the approximately 300 complaints must be individually scrubbed to
ensure accuracy. Ms. Reynolds has been working on this project for several
months and while our initial statistical reports are completed, they are now under
review by all staff for accuracy. I expect that the report will be completed soon.
As we begin to analyze complaints with empirical data, several issues begin to
emerge, at times surprising given my experience. The average age of our
complainant exceeds 40 years old. The complainants are predominantly male and
many suffer from status conditions such as mental illness, homelessness and
substance abuse.
Some initial key items are of interest:
?
The OPA audited 15 use of force allegations. The force used ranged from
ECWs (Taser), pepper spray, hands, handcuffs and one use of a K-9 (the K-9
case was opened by the Auditor and the Police Chief and one ECW case was
opened by the Auditor). Other force complaints included using a blunt
object. Of the 15 cases, mental health was identified as the status for 4 of
the complainants, 7 were identified as homeless, and 1 was identified as
ADA. Most self identified or were identified based on federal definitions,
some had multiple statuses. Of the 15, 6 were identified as not having one
of the above mentioned statuses.
?
It appears that many complaints begin as trespassing issues in the
downtown area. Some of the complainants have received dozens of
trespassing arrests or citations. The question is whether there is a more
comprehensive approach to the downtown and parks trespassing issues?
One statistic that should produce reconfiguration of customer service issues, is
that approximately 47% of all service complaints and nearly 40% of all complaints
represent complaints about basic customer service:
?
Officers not responding to a house when a crime has been reported;
?
Dispatchers not dispatching officers to some reported crimes if they are
considered “minor” crimes;
?
Response delays due to man power shortages;
?
Investigations of crimes not being investigated in a time frame that a victim
expects;
?
Lack of traffic enforcement on the complainant’s street;
?
Not having greater presence in “high” crime areas.
This volume of customer service related complaints puts a tremendous strain on
the operations of the Office of the Auditor and the Internal Investigations Section
because of the formalized process requiring that the Office of the Auditor intake
and classify all complaints. These are then forwarded to Internal Affairs for
processing. With regard to service complaints, which make up nearly 80% of all
complaints, this process is cumbersome, costly, and most importantly, frustrating
2
to residents as they must wait for the process to assign a supervisor to contact
them and investigate the issue. This process most often is at least a week in
length, and too often several weeks. The OPA and the Eugene Police Department
need to develop a Rapid Response customer service model where the outcome is
that residents will not have to wait for days or weeks to get answers to basic
customer service issues.
III. Community Outreach
I continue to meet with various neighborhood associations and groups. This
month I have meetings scheduled in the Cal Young and Churchill Neighborhoods,
respectively.
IV. Budget
We remain diligent in our efforts to be good stewards of tax payer dollars. I am
hopeful that, given our current pace of spending, we will be under budget by 5%
and perhaps as high as 8 or 9%. Much of this is in the area of non-personnel
spending and not having to contract for specialized services. The budget office is
recommending a continuation budget which I support.
V. Police Executive Research Forum Conference
Last week I attended this conference in Philadelphia. Chief Kerns was also there.
I found the conference to be an interesting learning experience. We heard a
significant amount of information and experiences on Tasers, customer service
and economic resource challenges.
VI. Interactions with the Police Department
We continue to work together to improve training, policies and procedures. There
have been several rotational changes in Internal Affairs with Sergeant Webber
transitioning to patrol and Lt. Mozan was promoted. Recently added as
replacements were Sergeants David Natt and Carolyn Mason, and soon, Lt. Scott
Fellman will become supervisor of the unit.
VII. Discussions and Changes in the Police Department
The Chief and I continue to meet formally on a weekly basis as well as less formal
discussions as issues arise. In addition, The Deputy Auditor and I meet with
command staff and internal affairs staff to discuss cases. The process changes
discussed in previous reports are being implemented and seem to be working. We
continue to keep in place a process where on major incidents, the Chief contacts
the Auditor and a case can be opened prior to the receipt of an official complaint.
3
We continue to work with the Chief and senior managers to identify ways to
improve major policy and procedures issues for recommendation to the Police
Commission. Examples include a review of the use of canines, warrantless entry
th
into homes and use of the Taser in light of the recent decisions by the 9 U.S.
Circuit Court of Appeals.
Previously I mentioned some concerns about officers making arrest decisions on
non-violent misdemeanor calls for service when the officers did not witness the
commission of a misdemeanor. These concerns have been discussed with the
command staff and, at least from what I am hearing, in some instances officers
are taking reports at the scene and providing them to the prosecutor’s office for
decision rather than trying to decide at the scene which conflicting version is more
credible.
VIII. CRB
The CRB has remained intact and works well together. While they do not always
share the same opinions on cases, they engage in thoughtful dialogue and do
make decisions. Two primary issues remain of concern, the public records issue
as indicated above and the “closed cases” issue. These issues will be discussed by
them when they present their annual report to Council in June.
IX. Complaints
Last time I reported a slight reduction but now we are on pace for being about the
same for last year. We had a large number of complaints in March which
impacted our abilities to do other things. As indicated above, I hope that we can
find more efficient solutions for some of the customer service issues raised by
residents.
Also, recently I dismissed a complaint because it exceeded the six month time
frame to file a complaint. According to Section 2.456 (1) (j) under Office of the
Auditor – Complaint Processing:
“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 filled within the six
months of the incident.”
If you have any questions, please call me at 682-5005.
4
Civilian Review Board
Kate Wilkinson, Chair 800 Olive Street
Tim Laue, Vice Chair Eugene, Oregon 97401
Bernadette Conover (541) 682-5005
Snell Fontus (541) 682-5599 FAX
Marisa Mendoza www.eugene-or.gov
Steve McIntire
Eric Van Houten
April 5, 2010
Mr. John Kroger, Esq.
State of Oregon Attorney General
Oregon Department of Justice
1162 Court Street NE
Salem, Oregon, 97301
Dear Attorney General Kroger:
On behalf of the City of Eugene Civilian Review Board (CRB) we are writing to seek clarity on
issues involving the release of records to the public in investigative complaint cases reviewed by
the CRB.
As Eugene considered the development of a model for civilian oversight, the concept of
transparency was one of the primary principles emphasized. Legal opinions used in the
development and implementation of the model clearly indicated that by choosing a “closed case”
form of review the CRB could discuss and make available investigative files in cases that were
found to be “unfounded,” “within policy” or “not sustained” and where no discipline was
imposed.
The CRB is covered under four governing layers: by City Charter, by Council Ordinance, by a
Labor Contract with the Eugene Police Employees Association (EPEA) and by collectively
bargained protocols between the City, the Police Auditor and the EPEA.
The goal was to have those records made publicly available to show the “thoroughness,
completeness and absence of bias” in the complaint investigation. Or, on the other hand, to
indicate where the Board felt the investigations did not meet those same standards.
Now we are informed by the Eugene City Attorney that such is not the case, citing another
statute that was not considered at the time the Council put the initial charter amendment before
the community. Nor was the Council informed of the implications of the statute at the time. In
part, that letter from the Eugene City Attorney’s office to the CRB states:
“In sum, between ORS 181.854 and 192.501(12), unless an exception applies, records
related to a personnel investigation of a public safety officer are exempt from
disclosure, whether or not discipline is imposed.”
In our view, the result of this is that the public will continue to remain in the dark regarding
“quality assurance” of police complaint investigations and will be forced to rely upon the
Board’s determination of the “thoroughness, completeness and absence of bias” in complaint
investigations.
The Eugene City Attorney refers to exceptions in the statute but was not specific about what they
are. In fact, there are four in ORS181.854(3):
a) When the public interest requires disclosure of the information.
(
(b) When the employee consents to disclosure in writing.
(c) When disclosure is necessary for an investigation by the public body, the
Department of Public Safety Standards and Training or acitizen review body
designated by the public body.
(d) When the public body determines that nondisclosure of the information would
adversely affect the confidence of the public in the public body.
We believe (a) and (d) are exceptions that apply to the work of Eugene’s Civilian Review Board,
and we seek an opinion of the Attorney General with regard to these matters, particularly as it
relates to public disclosure in relation to the two exceptions [(a) & (d)] of ORS 181.854 and
whether they may apply to Eugene’s Civilian Review Board. Once we have that opinion to
consider, we can decide on the next steps for the Board.
We believe the current State of Oregon public records laws provide no consistent standard for
the release of administrative public safety records. Rather than well defined state requirements,
the current laws seem to rely on subjective decisions by each respective jurisdiction. What may
be considered of “significant public interest” in say, Medford, may not be considered of
“significant public interest” in Salem. Public record laws should be State wide and clear.
Relying on the subjective decisions of local governments erodes the confidence of citizens in
their government because transparency is not clearly defined.
We also seek clarity as to who is authorized to release the records. In the case of the CRB, we
are tasked with reviewing police investigative files and a few documents generated by the Police
Auditor for the City of Eugene. Thus, with the vast majority of administrative records on police
complaints, those records are generated by the Eugene Police Department. As the generator of
an administrative record, is the Eugene Police Department the only entity authorized to release
the record or, once in the possession of the CRB or Police Auditor, are they authorized to release
to the public records originally generated by the police?
The final issue we seek clarity on is whether any collective bargaining agreements take
precedence over state public records law. Currently in place is an EPEA contract and negotiated
protocols that include clauses with regard to confidentiality and the public discussion of citizen
complaints and administrative processes and decisions as a result of these complaints. We
believe that this is an important question to be answered as well.
Our process to provide the public with printed material of police department administrative
investigations would include redacting individual names and places so that the individual
identities are more easily protected.
In the attachments are nine opinions of the City Attorney’s office related to the development and
implementation of the model of civilian oversight in Eugene. Four of these opinions are
particularly pertinent to the discussion we had concerning closed case public records and
bargaining issues at the last meeting:
City Attorney Opinion dated March 1, 2005 [Pages 49-53 in attachment]
• Attorney opinion on impact of the Public Employees Collective Bargaining Act on
civilian review.
City Attorney Opinion dated June 7, 2005 [Pages 36-45 in attachment]
• Attorney opinion on legal issues related to Eugene’s model of civilian oversight
City Attorney Opinion dated July 8, 2005 [Pages 31-35 in attachment]
• Attorney opinion on legal issues related to Civilian Review Board requiring
reopening of closed case investigations.
City Attorney Opinion dated June 29, 2006 [Pages 23-28 in attachment]
• Attorney opinion on legal issues related to Civilian Oversight Ordinance Framework
and Mandatory Subjects of Bargaining.
Of the four the opinion dated June 7, 2005 provides the best overview. Below we have also
listed the Oregon Statutes and court rulings cited in these opinions.
Statutes relating to issues of public records
• Oregon Public Meetings Law
ORS.192.610(3); ORS.192.501(12); ORS.192.630(1)(3)
o
ORS 181.854 (most recently brought to our attention)
o
Court rulings relating to issues of public records
•City of Portland v. Rice, 308 Or 118, 775 P2d 1371 (1989)
•City of Portland v. Anderson, 163 Or App 550, 998 P2d 402 (1999)
•City of Portland v. Oregonian Publishing Co., 2005 WL 1283302
Statutes relating to issues of collective bargaining
• Public Employees Collective Bargaining Act
PECCBA, ORS 243.650 through 243.782
o
243.672 (1)(e); 243.656; 243.650(7) (a-f)
Rulings relating to issues of collective bargaining
•OPEU v. State of Oregon, ERB UP-71-93, 14 PECBR 746 (1993)
•Assoc of Oregon Corrections Employees v State of Oregon, ERB UP-91-93, 14 PECBR
832 (1993)
Portland Firefighters Association, Local 43 v. City of Portland, ERB UP-99-94, 16
PECBR (245) 1995
•Springfield Police Association v. City of Springfield, ERB UP-28-96, 16 PEBCR 712
(1996)
•Gresham Grade School District No. 4, ERB C-61-78, 5 PECBR 2771 (1980)
•Springfield Police Association v. City of Springfield, ERB UP-37-94, 15 PEBCR 325,
332 (1994)
We look forward to your opinions on these important issues. We believe that to best ensure
transparency and confidence in our governing bodies, public records laws in Oregon need to be
better defined and less subjected to the current decentralized decision making at the local level.
It is in the best interest of our state to provide as public records all administrative documents that
do not expose personal information such as social security numbers, home addresses, etc. of our
public safety forces. It is not our intent to expose individual public safety officials to
embarrassment or exposure of mistakes. Rather, we believe that a broader public records
mandate provides citizens the opportunity to review how government offices operate
administratively.
Our liaison in this matter is Mark Gissiner, Eugene Police Auditor, 800 Olive Street, Eugene,
Oregon, 97401; phone: 541-682-5005. He is available at your convenience if you have any
questions or need additional information.
We look forward to your response.
Sincerely yours,
Kate Wilkinson, Chair
City of Eugene Civilian Review Board