HomeMy WebLinkAboutItem B: Civilian Review Board Annual Report
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Work Session: Civilian Review Board Annual Report Presentation
Meeting Date: June 23, 2010 Agenda Item Number: B
Department: Police Auditor Staff Contact: Mark Gissiner, Police Auditor
www.eugene-or.gov Contact Telephone Number: 541-682-5016
ISSUE STATEMENT
The Civilian Review Board will present its 2009 Annual Report to the City Council.
BACKGROUND
The Civilian Review Board is required to annually present a report and overview of the work of the
Police Auditor.
RELATED CITY POLICIES
City of Eugene Ordinance Number 20374.
COUNCIL OPTIONS
This items is advisory only.
CITY MANAGER’S RECOMMENDATION
Not Applicable.
SUGGESTED MOTION
Not applicable.
ATTACHMENTS
A. Annual Report of the Civilian Review Board
FOR MORE INFORMATION
Staff Contact: Mark Gissiner, Police Auditor
Telephone: 541-682-5016
Staff E-Mail: mark.a.gissiner@ci.eugene.or.us
Z:\CMO\2010 Council Agendas\M100623\S100623B.doc
ATTACHMENT A
Eugene Civilian Review Board
2009 Annual Report
Introduction
A primary goal of Eugene’s Civilian Review Board (“Board”) is to increase transparency
and public confidence in the police complaint process. We evaluate the work of the
independent Police Auditor, and may review complaints to provide comment, from a civilian
perspective, about whether the complaint was handled fairly and with due diligence.
In 2009, the Board reviewed its first Community Impact case that occurred in October of
2008 at Broadway and Willamette. In a public meeting, Board members discussed, debated
and probed the investigation, the Auditor’s recommended adjudication, and the police
administration decisions. The meeting provided a valuable and unique opportunity for the
public to learn more about the events leading to the complaints, and how the complaints were
investigated by the police department.
Aside from the community impact case, the Board also reviewed numerous other closed
cases, all in open meetings. Again, discussing the complaints in public affords the community
the opportunity to learn more about the complaint process, and to hear those complaints
discussed openly and critically.
Internally, the Board and the City began its work with the new police auditor, Mark
Gissiner. The Council also expanded the Board to seven members. Those additional members
have broadened the Board’s viewpoint and strengthened our voice.
We continue to work to increase transparency and public confidence. Board members
contribute a substantial amount of time in this endeavor. We express our appreciation to the
Eugene Police Department, the Council, and the citizens of Eugene for the confidence entrusted
to us. All of us on the Board volunteer our time and our effort because we believe in the
strength and the potential of this community.
Thank you for the opportunity to be of service.
Kate A. Wilkinson Tim Laue
Board Chair Vice-Chair
2009 Overview
In 2009 the Board performed eight case reviews including the first Community Impact Case
Throughout first eight months of the year, the Board monitored the status of the Community
Impact case through the criminal proceedings and IA investigation.
February – Board training from Dr. David Murphy (Western Oregon University) on
excessive force and the use of Tasers.
March – Dr. Snell Fontus joins the Board. A case review was conducted regarding issues
of an unlawful arrest and an illegal search. The Board majority concurred with the Police
Auditor’s recommended adjudication to sustain the allegations. Acting police auditor Dawn
Reynolds was placed on administrative leave by the Council.
April – A Case review conducted regarding use of force/use of the Taser. Specifically,
the case involved the use of a Taser on a mentally ill person. Unanimously, the Board
concurred with the Auditor’s recommendation that the allegations be sustained. The review
highlighted the need for refinement of the Taser policy with regard to its usage on people who
are mentally ill and/or appear to be experiencing a psychotic episode.
May – Tim Laue is appointed to the Board. A case review held regarding use of force/use
of the Taser. The board majority voted in agreement with the Auditor’s recommendation to
sustain the allegations on use of force, and concurred with the recommendation and decision
that the use of the Taser was within Policy. Mark Gissiner was hired by the Council as the new
Police Auditor.
June – A case was reviewed regarding use of force. The review also raised policy issues
of when officers should be required to seek medical attention for persons injured during arrest.
The majority of the Board agreed with the Chief’s decision that the use of force was within
Policy.
July – Mark Gissiner attends his first Civilian Review Board meeting. The case reviewed
pertained to wrongful arrest, excessive force and courtesy allegations. The Review raised issues
regarding the police department “party policy” – how loud parties should be dispersed while
protecting the civil rights of individuals.
August – Bernadette Conover and Marisa Mendoza join the Board. The case reviewed
pertained to constitutional rights, and courtesy involving a late night stop the complainant
alleged to be discriminatory in nature. The Board majority agreed with the findings that the
actions were within Policy.
October – The Board reviewed Eugene’s first community impact case during a public
meeting at the downtown library. Six Board members participated. Ann Marie Lemire resigned
from the Board shortly before the meeting and did not participate.
For several hours, the Board members reviewed, discussed and debated numerous aspects
of the internal affairs investigation and report. The Board considered witness interviews, as
well as interviews with the involved police officers and video of the events.
By a 4-2 vote, the majority of the Board concurred with the Chief that the allegations of use
of force/use of the Taser were within Policy. On October 26, 2009, the Board held an additional
meeting to discuss and de-brief the Community Impact case and to provide a forum for public
comment on the case. The Council voted not to re-appoint Board Chair Richard Brissenden to
an additional term.
November – Eric Van Houten and Steven McIntire join the Board. Kate Wilkinson is elected
chair. The Board discussed the Auditor’s decision not to classify the Chinese student case as a
community impact case.
December – In an effort to accommodate City Council members who might wish to attend
meetings, the Board changed its evening meeting time to the second Tuesday of the month.
The case review in December involved use of force, property seizure and handling, and mental
health crisis response issues. The majority of the Board agreed with the finding that the use of
force allegations were unfounded. The review highlighted areas of concern around mental
health response/community caretaking and the need for clarification and caution in those
areas.
Overall 2009 Board Summary of Case Reviews
During 2009, the Board performed 8 case reviews. Issues of concern highlighted by those
reviews included:
Search and Seizure issues – Need for increased and better EPD training on probable
cause requirements and clear evidence of a consent to search in the absence of a warrant.
Community care-taking doctrine - Need for better understanding of when this doctrine
is applicable and the limitations on the use of the doctrine. Need for better communication to
citizens when the doctrine is used as the basis for a search, warrantless entry into a home, or
detention of persons.
Use of the Taser – Continued concerns regarding use of the Taser as a pain compliance
tool, and a need for refinement of department practices regarding Taser use on mentally ill
subjects.
Incident Escalation - In several of our reviews, Board members noted that incidents
seem to spiral quickly into active confrontation and conflict. The Board discussed the need for
better de-escalation techniques (possibly more CIT training) with the hope that some situations
can be brought under control without the use of force. Better de-escalation would lower the
threat to officers, as well as subjects, and be more aligned with community values and
community policing.
Quality of IA Investigations – Overall the quality of IA investigations is very good.
Relevant witnesses are contacted and interviewed respectfully. Reports are generally thorough
and complete. Nonetheless, the Board encourages Internal Affairs to seek continuous
improvement in its investigative efforts and fact-finding reports, thus assuring the community
that the investigations and reports are presented in a thorough, neutral and unbiased manner.
Other Activities
At its June 2010 meeting, the Board finalized and adopted its Policies and Procedures Manual.
Those Policies and Procedures are available for review. It is the Board’s goal that adopting
written guidelines will improve our processes and increase transparency regarding the Board’s
work.
Recommendations
In the course of our reviews and other Board work, several areas of concern have emerged that
we would highlight to seek guidance form Council. In particular, these concerns relate to the
work of the Civilian Review Board and its unique role in Eugene’s model of civilian oversight.
?
Community impact case designations – Under the current ordinance, only the auditor
designates community impact cases; and the perspective has been expressed that the
Board should have a role in that decision.
?
Information/disclosure - The Board continues to discuss, and is conscious of, the need
for more openness and transparency in the complaint and auditor processes. To that
end, the Board has discussed providing the auditor summaries, the on-going status
reports of open and closed cases, the internal affairs reports, and the police
administration case evaluations. Because of uncertainty surrounding the legal
requirements of confidentiality and privacy rights for officers and individuals in some or
all of these documents, the Board requested a legal opinion from the Oregon Attorney
General on whether exceptions to specific public records statutes apply. The Attorney
General declined to comment (see attached letter and request). The Board’s goals are
to increase transparency and public confidence and we believe that both goals are
advanced by providing as much transparency and information as possible.
1
?
CRB authority to order cases reopened - In our review of the Chinese student case, a
majority of the Board voted to order the Chief to re-open the investigation. The
ordinance is silent as to whether the Board has the authority to order closed cases re-
opened. The ordinance clearly allows the Board to require the city to reopen the
investigation with regard to community impact cases (See Ordinance Section 2.244(4).
However, the Eugene charter states that the city council shall authorize the civilian
review board to “* * * require that the city re-open an investigation; * * *.” City
Attorney Glenn Klein provided a March 5, 2010 opinion to Mark Gissiner and to Chief
Kerns concluding that the Board does not have authority to re-open investigations in
closed cases (copy attached). In our view, the ordinance is not clear on this point.
?
Definition of Good Cause exception to 6 month filing deadline – The ordinance, Sec.
2.456 (1) (i) – (j), states that complaints shall be filed within 6 months of the incident,
except for “good cause”. The ordinance does not define good cause, and thus, vests
discretion in the auditor to determine good cause. The Board believes that a definition
of good cause is warranted, and that an established definition would avoid any
appearance of bias on the part of the OPA when dealing with untimely complaints.
In light of the above issues, and because we now have almost four years of experience with
oversight in Eugene, the Board believes that it is time for a review of the Ordinance 20374 as it
pertains to the Civilian Review Board, perhaps in a fashion similar to the process employed by
the Council when it reviewed the ordinance as it pertained to the Auditor’s role early last year.
In any event, we believe that a review and clarification of some of the ambiguities and concerns
regarding the role of the Civilian Review Board, particularly as it relates to ordinance language,
is called for and would be helpful in the performance of our work.
Police Auditor Assessment and Recommendations
All seven Board members completed individual written reviews of the police auditor.
The Board also discussed those reviews in a May 11, 2010 executive session meeting.
Overall, the Board concluded that the Auditor has provided strong support to the Board.
Mr. Gissiner has established a good working relationship with Eugene Police while maintaining
the necessary independence. He has a professional and diplomatic manner which is
appreciated. He meets or exceeds expectations in all core areas assessed.
Per ordinance, the Auditor is working to implement a system to provide on-going,
regular status reports with relevant data to the Board and that process needs to be completed.
1
The Board reviewed this case in February 2010 so it is not included in the 2009 case summaries. However, the
Board wanted to bring the authority issue to the Council’s attention as soon as possible.
Also per ordinance, the Auditor is working to complete a specific training curriculum for
the Board. In 2008 the Board adopted a requirement of eight hours of yearly training and the
Auditor and Board are working to finalize training options presented to the Board for its
consideration at our June meeting.
The Board has suggested the Auditor broaden community outreach efforts to include
various and diverse groups, and to include board members in those educational and outreach
activities. The auditor should continue efforts to improve alternative dispute resolution options
(including mediation).
Complaint classification nomenclature remains an issue of concern. The use of “inquiry”
as an initial classification should be clarified, and descriptions and guidelines should be adopted
for subsequent classifications of ‘Service Complaint,’ ‘Policy Complaint,’ “Allegation of
Misconduct” or a subsequent decision to ‘Dismiss’ for valid reasons. Such descriptions and
guidelines will help minimize misunderstandings and provide clarity for all involved.
Evaluation of the Office of the Police Auditor
In evaluating the functioning of the Office of the Police Auditor the Board has identified several
areas of note:
The OPA should improve follow-up with complainants, including tracking and analysis of
satisfaction with the complaint process.
There is a continued need for transparency and openness, including the provision of more
information to the public.
Finally, we note that the rate of Auditor’s recommendations to the Chief for sustained Use
of Force allegations fell in 2009. In 2008 there were forty-nine use of force complaints and
three were dismissed or reclassified without subsequent action resulting in forty-six allegations.
Eleven of those allegations received ‘sustain’ recommendations from the Auditor’s office. In
2008 the Auditors recommendation rate for sustained use of force allegations to the chief
equaled 24%.
In 2009 there were forty-six use of force complaints and eight were dismissed without
subsequent action resulting in forty allegations. Three of these allegations received ‘sustain’
recommendations from the Auditor’s office. In 2009 the Auditors recommendation rate for
sustained use of force allegations to the chief equals 8%. These and similar trends should
continue to be reviewed to identify underlying patterns and concerns.
Conclusion
In 2009, the civilian oversight system continued to evolve and develop. The Board evolved
through changes in membership and changes in the Office of the Police Auditor. The Board
and the Auditor worked through Eugene’s first community impact case and provided an
invaluable public opportunity for review and discussion of the complaint process. We look
forward to continuing our work and to improving our processes wherever possible. Thank you.
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
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