A Possible Template for the Police Commission Ordinance

 

Submitted by Rich Friedman (6/19/18)

 

Here is the link to a document prepared by Rich Friedman, Co-Chair of the Task Force, that he calls "a possible template for the Police Commission Ordinance." At present, the document has no official status. Everything is open for discussion by the Task Force members as well as open to comments from the community and from city staff and police staff.

Rich undertook this to support the Task Force's work having chaired the University of Michigan's Police Department Oversight Committee for seven years and redrafted its procedural rules. The Task Force appreciates the use of that experience to highlight issues around decisions to be made and suggested language to be considered.

At the June 21st meeting the Task Force will vote on whether to use it as a framework for discussion to help draft the Ordinance creating the Commission. An affirmative decision by the Task Force will not indicate agreement with the substance of the template but indicate agreement on its use to guide discussion. The utility of the template is that it suggests language for the ordinance and organizes all considerations needed to create the Commission.

Note that all commentary shown in the document is Rich's opinion
intended to clarify his choices for Task Force deliberation. Rich has incorporated into the document learnings from the past two listening sessions, 5/31 and 6/12, and the governing documents of law enforcement oversight bodies of many other cities. As more community engagement occurs, additional information will be available to the Task Force for incorporation.

Anticipated schedule for focused discussion of the template:
6/21 Article 1 and Article 3
6/28 Article 3 and Article 4
7/12 Article 4 and Article 2
7/25 Articles 1, 2, 3, 4

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From Rich Friedman: I’m presenting here what I’m calling a possible template for the ordinance that would create the Commission.  Obviously, everything here is up for discussion; these are my ideas of the shape the ordinance could take.  The template includes language that I am suggesting could actually go into the ordinance.  In some cases, I have put language in brackets, indicating specific issues on which the Task Force might make a different choice while keeping the structure of the provision I’m presenting.  Of course, the Task Force might decide to make

greater changes as well.  Suggested language for the ordinance is in Arial typeface, like this.  I’ve interspersed commentary throughout, explaining why I’ve put the language in that I did and in some cases discussing other possibilities; the commentary is in italics, like this.

 

                As I’ve set this up, there would be four parts to the ordinance.  Here’s a brief summary.

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                Article 1 is an overview, with a section naming the Commission, a mission statement, a section asserting the Commission’s independence, and one characterizing the Commission, for technical reasons, as a special commission.

 

                Article 2 sets out the composition of the Commission, with provisions on such matters as appointment of members, diversity of membership, terms, term limits, other eligibility requirements, City Council liaisons, officers of the Commission, suspension and removal of members, and vacancies.  It also provides for setting up a Youth Council and authorizes the Commission to set up other councils of particular populations.

 

                Article 3 lays out the responsibilities and powers of the Commission.  It has three sections.  The first authorizes the Commission to engage in activities designed to improve communications, understanding, and relations between the community and the police force; it also provides for a Commission role in selection of police leadership.  The second authorizes the Commission to issue reports, making recommendations on police-related policies and practices. The third sets out a procedure for reviewing incidents, either in response to complaints or on the Commission’s own initiative.  Both the second and third sections provide for the Commission getting broad access to relevant information and require the appropriate City officials to respond in writing.

 

                Article 4 addresses operations and support.  It has sections on committees and assignments to individual members, meetings of the Commission, staff support, independent counsel, the Commission’s budget, training of members, the Commission’s authority to provide its own operating rules, and the relation of this ordinance to other city law.

Article 1.  Overview

 

                § 1.1.  Name.  This ordinance creates the [Independent Police Oversight Commission], hereinafter referred to as “the Commission,” for the City of Ann Arbor.

        

I’ve put the name of the body in brackets because there are numerous choices.

 

                Although the Commission is created by the City, I believe the Task Force is agreed that it needs functional independence, and emphasizing that in the title, as some cities do, may be useful.

 

                I didn’t include a word like “Civilian” or “Community” because I thought that probably makes the title a little crowded, and “Independent” does what we need.  The Task Force might disagree.

 

                The Human Rights Commission suggested that “Review” might be a more appropriate term than “Oversight,” because the Commission will not actually administer or supervise the AAPD.  Personally, I think “Review” is fine but “Oversight” is better and is descriptively accurate.  For example, “oversight” is a recognized function of Congressional committees with

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respect to executive agencies, even though the committees in no respect administer the agencies; they do “look over” them, though.  The UM committee is called an oversight committee, and that is the term used by the statute that created it.

 

                We’ve been referring to the body as a Commission, and I’ve stuck with that.  “Board” is probably the more commonly used term in this area.  But there’s an advantage to treating this  as a commission; see § 1.4 below.

 

                § 1.2.  Mission.  The Commission is created to serve the purposes of this ordinance, as follows:

 

                • To ensure that the City maintains a high standard of policing, and to improve on the quality of policing to the extent possible, so that all persons in the Ann Arbor community may live safely and thrive.

 

                • To ensure that the Ann Arbor Police Department (AAPD) treats all persons properly, with fairness and respect, and without undue use of force – this concern being of special significance with respect to segments of the community that are vulnerable and have been marginalized, such as persons of color, youth, immigrants, low-income people, those who suffer from mental illness, and transgender persons.

 

                • To foster better communications, understanding, and relations between the AAPD and the community, so that the AAPD better understands the perspectives, needs, and expectations of all segments of the community, including especially youth

and those who are vulnerable and have been marginalized, and so that the community better understands the AAPD’s perspective on what it needs, and how it must operate, to perform its function.

 

                • To minimize the extent to which the AAPD receives service calls made for inappropriate or unnecessary reasons.

 

                • To enable the community to have an effective voice, independent of City administration, in recommending policies and practices that may improve the quality of police service in the City and in selecting leadership of the AAPD.

 

                • To provide a procedure for independent review of particular incidents, for the purpose of determining in each case what happened, whether any conduct by the AAPD was inappropriate, and whether any changes in policies or practices are warranted to prevent a recurrence.

 

                A Mission Statement can be very helpful as a reminder of what the enterprise is all about.  Obviously, this language can be altered however the Task Force thinks best.  I have tried here to maintain a balanced tone, which I think is important – neither castigating nor cheering for the

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AAPD, but laying out the goals for the Commission.

 

                § 1.3.  Independence.  Although the Commission is created by the City, it must be functionally independent of City administration to perform its mission.  In this respect, the Commission is different from other entities created by the City Council to assist it in performing its functions.

 

                This statement is not essential, because the Commission will have the extent of independence given to it by the ordinance.  But I believe everybody on the Task Force believes in the importance of this principle, and so it is useful to lay it out as an overarching principle, because it helps to shape much of what follows.  I have used the term “functionally independent” to avoid getting into academic debates over whether a body created by the City can be independent of the City.  I think we all know what we mean in this context by independence – that, so long as this ordinance remains in place, City administration (Council, the City Administrator, the City Attorney, the police chief, etc.) cannot control or impair the operations of the Commission.  And, as noted above, many comparable bodies are described in their titles as independent.

 

                § 1.4 Nature of the Commission.  The responsibilities of the Commission being broader than those indicated for departmental boards under § 5.17(a)  of the City Charter, the Commission shall be deemed to be a special commission authorized under § 5.17(b) of the City Charter.  The creation and operation of the Commission shall not impair the authority and responsibility of the Police Chief, the City Administrator, and the Council as provided in the City Charter.

 

                Section 5.17(a) of the Charter authorizes the Council to create “citizen boards” for each of the City’s administrative departments.  Such boards are authorized “to give counsel and advice . . . in respect to all such matters coming within the authority of its department as the Council prescribes,” and to make recommendations on such matters “to the department head, the City Administrator, and the Council.”  That section also provides that the Administrator, the Mayor, and Council Members “shall be privileged to attend the meetings of each such board and to take part in its discussions and shall receive copies of the minutes of the board’s meetings and of all reports prepared by it.”  Section 5.17(b) authorizes the Council to “create special commissions, including commissions on housing, human relations, and civil defense, with authority to make studies, submit reports and recommendations, and to take such other action as may be prescribed by the Council not inconsistent with this Charter.”  I think the Commission we have in mind is a “special commission,” not an advisory Board to the Police Department, because it has broader responsibilities; for example, it will take pro-active steps in the community, it may make statements with respect to individual incidents that are meant in part to inform the public of its conclusions, and it may make recommendations on policy matters that bear on the policing function but that are not themselves within the authority of the AAPD.        It is best to resolve this matter in the ordinance, to avoid any later inference that the Commission is subject to the requirements of §5.17(a), giving the named City officials the privilege to attend and take part in Commission meetings.

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                At the same time, I think it is useful to apply explicitly the substance of the last sentence of § 5.17(a), which provides: “The creation and operation of any such board shall not serve to impair the authority and responsibility of the department head, the City Administrator, and the Council as otherwise provided in this charter.”  That principle is consistent with the Commission as it has been envisioned by City Council and by the Task Force, and I don’t think a proposal that undercut it would be approved.  So I think it’s better to state it forthrightly.

                

Article 2.  Composition of the Commission

 

                § 2.1.  Membership.  The Commission shall consist of [nine] voting members, [nominated by the Mayor and confirmed by the City Council.  In making selections, the Mayor and City Council shall seek input from a wide variety of community stakeholders.] 

 

                Two separate issues in this brief provision: How many members, and how should they be selected?

 

                The HRC Report says that most review boards have a membership between 7 and 9 members – but some are smaller and some are much bigger.  The larger the membership, the easier it may be to have members from a wide range of groups in the community.  But the larger the membership, the more diffuse responsibility is – members of smaller boards tend to be more invested in the work – the more difficult logistics are, and it may be that the more difficult it becomes to fill the Commission.  Personally, I’d probably opt for membership of 7, but I suspect the Task Force will be happier with 9.  It could, of course, select any other number it wants.

 

                As for method of selection: Selection by the Mayor, subject to Council approval, is the most obvious method; it is, so far as I am aware, the way members for other boards and commissions in Ann Arbor are selected, and I think it’s the most common way members of police oversight bodies in other cities are selected.  I also think it’s the best method.  An alternative is election (as with the Detroit Police Commission).  But election puts a burden on potential members – there may be plenty of people willing to accept an appointment who would not be inclined to run.  And I believe it is easier to achieve balance and diversity on the Commission if the members are appointed.  Another possibility is that the Commission itself would select its own members (after the initial selection).  Such self-perpetuation is the way most charitable boards are selected,  but such boards “can become insular and unresponsive to the needs of constituents if their ranks are not regularly refreshed.”1  But note that as drafted the next section gives the Commission the responsibility for making outreach efforts to ensure diversity.  

 

                There are other methods that the Task Force might consider for the selection of at least some members.  For example, in Berkeley, California, each Council member chooses a member

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1 Ellis Carter, Nonprofit Law Jargon Buster – Voting Members vs. Self-Perpetuating Boards, http://charitylawyerblog.com/2011/04/26/nonprofit-law-jargon-buster-voting-members-vs- self-perpetuating-boards/ (2011).

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of the Commission.  (We could make it that each pair of members from a ward pick one

member.)  In some cities other government entities besides the Mayor, Council, or City manager – including the Human Rights Commission or the Police Department – pick some members.  In Kalamazoo, six of 12 members “are chosen from [but I don’t think chosen by] community organizations representing diverse populations.”

 

                I think the best way of getting a truly diverse, balanced slate of membership is to put the matter in the hands of the Mayor and City Council, with a directive to consider input from a variety of sources.

 

                § 2.2.  Diversity of Membership.  In making appointments to the Commission, the Mayor and City Council shall ensure that the overall membership of the Commission reflects the City’s diverse population.  They will ensure that segments of the community that are vulnerable and have been marginalized are amply represented, and that the Commission includes members with a variety of skills, expertises, and life experiences bearing on the work of the Commission, such as people who work or have worked in the fields of mediation, conflict resolution, mental health, housing, homelessness, anti-racism, transformative justice, and law enforcement, and people who have had significant encounters with the police.  The Commission shall make outreach efforts to encourage qualified members of the community, especially members of segments that are vulnerable and have been marginalized, to apply for or otherwise indicate interest in serving on the Commission.  The Commission shall pass on to the Mayor or the Mayor’s designee all applications that it receives.

 

                As I’ve drafted it, this is a more detailed provision than is found in the governing documents of most similar bodies.  (The ordinance creating the Human Rights Commission provides simply that “the Mayor shall appoint persons who, insofar as possible, represent the city's diverse population and are committed to the protection of human rights.”) I believe this type of approach is better for various reasons than designating a seat for each of various groups.  Even without a detailed standard, the reality of politics in the City would ensure considerable diversity on this Commission, and I believe this statement of expectations will make that even more likely.  And I think the use of councils, of the type described below in §§ 2.10 and 2.11, provides a better guarantee of a voice for particular groups.  The directive to the Commission to engage in outreach efforts provides further assurance.

 

                I’ve used the statement of Transforming Justice Washtenaw in drafting this section, with two substantive changes.  First, they mentioned “people who have been incarcerated”; I’ve replaced that with “people who have had significant encounters with the police,” which is more to the point for this Commission.  (A person might have relevant experience, for example, if he or she has been subjected to a stop-and-frisk, whatever happened after that; incarceration as such does not necessarily reflect relevant contact with the police.)

 

                Second, I’ve added law enforcement as one of the relevant types of expertise.  This is, after all, what the Commission is examining.  (It is rather common, by the way, for governing

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documents to require that at least one panel member have prior law enforcement experience.)  I think it would be a mistake to assume that, just because a person was previously engaged in law enforcement, he or she would be too inclined to be an advocate for the police; officers who know how policing should be done are often critical of those who do not act that way.  In any event, having someone with prior law enforcement experience on the Commission may give the Commission not only the benefit of that member’s experience but also some balance and extra credibility. That member would be in a better position to ask hard questions of the AAPD.  And that person would have only one vote on a multi-member body.

 

                § 2.3.  Terms.  The first set of members shall be divided into three classes, one third to be selected for terms expiring May 31, 2020, one-third for terms expiring May 31, 2021, and one-third for terms expiring May 31, 2022.  Thereafter, members shall be appointed for three-year terms.  If a seat becomes vacant, then a new member shall be appointed, pursuant to § 2.1, to complete the term.

 

                Three years seems to be the norm for boards and commissions in Ann Arbor, and it’s at least a common term for oversight bodies in other cities.  I think it’s a good length.  There will be a learning curve at the beginning for new members, and presumably an initial investment of time at the beginning in training.  On the other hand, long terms may scare potential members off.  (I know from having served a 3-year term on a Board; I counted off, “36 meetings to go, 35 . . . .” Counting down from 48 would have been intolerable.)  Under § 12.5(a) of the City Charter, for definite terms commence on the first day of June, so I’ve drafted this so that the first members would serve some extra months to get everything in sync (which does presumably mean that one third of the first set of members would have terms somewhat longer than three years).

 

                However long the term is, I think it’s important that membership be staggered, so that turnover isn’t too sudden.  And staggering will be maintained if vacant seats are filled for the remainder of the term, not for a new 3-year term.

 

                § 2.4.  Term Limit.  No person shall serve on the Commission for more than six years in any nine-year period.  A person who, by virtue of this rule, would not be eligible to serve to the end of a term may nevertheless be appointed, but the seat shall be deemed vacant when the person shall have completed six years of service within the previous nine years.

 

                Term limits deprive the community of the service of people who might have valuable experience and may be difficult to replace.  On the other hand, given the nature of this Commission it is probably best that nobody be on the Commission for too long, at least for an uninterrupted stretch; fresh eyes are good. Section 5.17(a) of the Charter (the provision on boards, not the one on special commissions) provides: “No person serving on such board continuously for six years shall be eligible to reappointment, until the lapse of three years.”  As I’ve drafted the language above, it’s slightly more restrictive – somebody couldn’t serve for five years, go off for two, and then serve for another two or three.  But if, say, someone had served

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for four straight years (completing the last year of a seat that had become vacant and then serving a three-year term), that person could be reappointed, but would go off automatically after another two years, the seat then becoming vacant and so preserving the staggering.

 

                § 2.5. Other Eligibility Requirements.  Subject to § 2.4 of this ordinance and § 12.2(b) of the City Charter, [any resident of Washtenaw County who is not a current employee of, or regular contractor with, the City, and who has not been an employee of or a regular contractor with the AAPD within the last [five] years] shall be eligible to be a member of the Commission.  Adoption of this ordinance by seven members of the City Council shall be deemed to be a waiver for purposes of § 12.2(b) of the City Charter.

 

                Section 12.2(b) of the Charter provides: “An unpaid appointive officer to a board or commission established pursuant to law, this charter, or ordinance shall be eligible for appointment if he/she is a registered elector of this City, unless this requirement is waived by a resolution concurred in by not less than seven members of the Council.”  In other words, absent a waiver, a Commission member has to be an Ann Arbor voter.  And the February 5 Council resolution suggested Ann Arbor residence as a requirement.  We could stick with the default rule.  But many people are genuinely members of our community, and have a great deal to offer, even though they do not live within the city limits.  (This was a point by a member of the public made at the June 12 meeting.)  Indeed, our Task Force has non-City residents as members.  (And I don’t know that all are registered voters, even apart from the youth members.)  It may be enough to require that a member have a significant connection with Ann Arbor – such as living, working, or studying in the city.  Who would want to be a member of this Commission, and would likely be appointed, without such a connection?  I’d even be inclined to say that it’s enough if the person has had such a connection in the past; people are unlikely going to want to serve, or to be sought for service, unless they care about the city.  But as I’ve drafted it, I’ve picked up on a simpler suggestion by Anna Gersh in a document she circulated early on – a requirement of residence in Washtenaw County.

 

                As I’ve drafted it, the ordinance proclaims that (assuming it gets seven votes) it acts itself as a blanket waiver of the Ann Arbor residence requirement with respect to this Commission.  I can imagine the City taking the view that the requirement can’t be waived in that blanket manner, and that there has to be a resolution waiving it in the particular case. If the City Attorney takes that view before we present our proposal, I wouldn’t be inclined to fight much on it; we could drop the second sentence of the proposed provision, and just leave it to City Council, on a case-by-case basis, to provide a waiver if they want to appoint someone other than a registered Ann Arbor voter.

 

                I suppose it makes sense to provide that no current employee of the City is eligible to serve on the Commission. (I have my doubts about a blanket rule, but I’m guessing the Task Force would prefer one, and the February 5 Council resolution prefers that rule, so that’s the way I’ve drafted it.)  Some cities provide that a person is not eligible for a prescribed period after being a city employee.  We could certainly do that; my inclination is against.  Such a

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person no longer is under the thumb of City administration.  He or she may in fact be very feisty and may have a lot to offer.  Restrictions diminish the range of choice for members, and I’m reluctant to impose more than necessary.

 

                How about former employees of the AAPD?  As indicated above, I think there’s value to having at least one member of the Commission with law enforcement experience.  But a former member of the AAPD may be constrained in dealing with former colleagues.  Should this cause a liftetime ban?  I’ve suggested a five-year ban; I can easily imagine circumstances in which a former AAPD officer, after a period off the force, would be an excellent Commission member, and an automatic rule preventing that person from ever serving might be counter-productive.  But the Task Force can certainly take a different view.

 

                § 2.6.  City Council Liaisons.  The City Council will designate two of its members to serve as liaisons to the Commission.  They will sit with the Commission only on invitation of the Commission and only to the extent the Commission believes it useful to secure their advice, but they will have no vote on the Comfmission.  They will not participate in the Commission’s review of individual incidents, unless the Commission, by a two-thirds vote, determines that unusual circumstances create a particular need for them to do so.  No member of City Council shall act as liaison to the Commission for more than six years in any nine-year period.

 

                There is a range of approaches we could choose with respect to City Council participation, from having no participation by Council members at all to having one or two Council members as members (non-voting or full) of the Commission.  I’ve drafted a middle approach, with Council members only as liaisons, and only sitting with the Commission by invitation.  The Task Force can of course take a different view. If the decision is that there should be no participation by Council members, I suggest simply stating in the eligibility section that no Council member is eligible to serve on the Commission.

 

                The advantage of having no participation by Council members is that it maximizes the appearance of independence.  I came on to the Task Force assuming that this would be the result.  I’ve found since that many city boards and commissions have Council members on them, sometimes as full voting members.  I think the experience of the Task Fore has indicated that the political sense and knowledge of Council members can be a useful asset.

 

                So my middle-course suggestion is an attempt to gain the benefits of the Council members’ insights, when they would be useful to the Commission, without impairing the independence, or appearance of independence, of the Commission.  My thought is that Council members would be only liaisons, without vote, and that they would sit with the Commission only when, and to the extent that, the Commission affirmatively invited them to, so that the Commission can have the benefit of their advice.  One can easily imagine this would be so if, for example, the Commission is considering a policy recommendation and has concerns about political feasibility.  It’s unlikely, but I suppose imaginable, that the Commission would need the

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participation of Council members in reviewing individual incidents, so as I’ve drafted it that could happen only if the Commission, by a 2/3 vote, affirmatively decided that unusual circumstances warranted such participation.

 

                If Council members do serve as liaisons, I think it’s best to set the same term limitations for them as for voting members.

 

                § 2.7.  Officers.  The Commission shall have a Chair, a Vice Chair, and a Youth Coordinator [Liaison].  It may also create additional offices.

 

                The Commission shall choose each officer from among its members who have indicated willingness to serve in that office.  Members shall cast secret ballots for the office.  If no member receives a majority of the votes, then there shall be another ballot, with the name of the member receiving the fewest votes deleted; if more than one member is tied for fewest votes, then the one whose name will be deleted shall be selected by lot.  Balloting shall continue until one member receives a majority of the votes.  If two or more offices are vacant at the same time, the Commission shall determine the order in which the selections shall be made, provided that the Chair shall be selected before any other officer.  The Commission may choose to conduct balloting by electronic means.

 

                The terms of each office shall be one year, and any member of the Commission shall be eligible to serve as an officer as long as the member is on the Commission.  A member whose eligibility to be on the Commission will expire before the end of the term may nevertheless be elected as an officer, in which case the office shall be deemed vacant when the member is no longer eligible to serve on the Commission.

                

                If any office becomes vacant before the end of the term, the Commission shall as promptly as reasonably possible elect a member to complete the term of the office, provided that the Commission may in its discretion decide not to do so if the vacancy occurs less than two months before the end of the term.

 

                The Chair shall preside at the meetings of the Commission.  The Vice Chair shall preside in the absence of the Chair.  If the office of Chair becomes vacant before the end of the term, the Vice Chair will serve as Chair until a new Chair is chosen or until the end of the term, whichever comes first.

 

                My sense is that the Task Force prefers that the Commission select its own Chair, rather than that the Mayor or anybody outside the Commission do it.  I think that’s the better choice, to better further the independence of the Commission.  Given turnover on the Commission, I think it makes sense to provide that a term as Chair is one year, renewable (as long as the member remains on the Commission); if it seems appropriate for a person to serve more than one year, he or she can simply be re-elected. (That’s the way the Human Rights Commission works, by the

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way.  City Code, Tit. 1, ch. 8, §1.221.) We could provide term limits for the Chair, but assuming we adopt a term limit for members of the Commission I don’t think that’s necessary, and it would be good to maintain flexibility.

 

                As I’ve drafted this, it also provides for a Vice Chair, because it is important to know who will be acting as Chair if the Chair is unable to be present at a meeting or for any reason no longer is in the office.  And I’m figuring the Commission will for sure want to have a Youth Coordinator or Liaison.  Maybe it will want other officers as well.

 

                I’ve drafted this to provide for replacement elections, mandatorily if the vacancy occurs more than two months before the end of the term and in the discretion of the Commission if less.   (But there would always be a Chair unless, I suppose, the Chair and the Vice Chair both depart with less than two months remaining in their terms.)  Obviously, the Task Force can make different choices.

 

                § 2.8.  Suspension and Removal.  A member of the Commission may be suspended or removed, but only pursuant to §12.12(b) of the City Charter, and only for serious misconduct that makes the member’s continued service on the Commission inappropriate.

 

                As I understand § 12.1(b) of the Charter, members of the Commission are considered “appointive officers” of the City: That provision says, “The appointive officers shall be the City Administrator and Attorney . . . [lots of other people listed] and persons appointed to other offices or to boards and commissions established pursuant to law, this charter, or ordinance.”  And § 12.12(b) says, “Officers appointed by the Mayor may be suspended or removed by the Mayor with the concurrence of at least six members of the Council.”  I’m not worried that this Charter provision will undercut the independence of the Commission.  I think it is very unlikely that the Mayor and six out of ten Council members would agree to remove a member of the Commission for improper reasons, if for no other reason than that the political resistance would be fierce.  I do think it is a good idea to supplement the Charter provision by stating a narrow substantive standard for suspension or removal, and that’s what I’ve tried to do here. If we say nothing about removal, then a general provision of the City Code, Title 1, Ch. 8, § 1.171(3), would apply, allowing the “appointing authority” – which I’m assuming for present purposes is the Mayor on confirmation by the Council  – to remove a Commission member “for cause.”  But that is only a default provision, to apply in the absence of other provisions of law, so we can make it narrower, and that’s what I’ve aimed to do, though I think “for cause” would not be bad.

 

                § 2.9.  Filling Vacancies.  If a seat on the Commission becomes vacant, it shall be filled in accordance with § 12.14(b) of the City Charter.

 

                Section 12.14(b) provides:

 

If a vacancy occurs in an appointive office, except that of City Administrator, such

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vacancy shall be filled within thirty days thereafter, in the manner provided for making the original appointment: Provided, that such time may be extended, for not to exceed sixty days, by council resolution setting forth the reasons therefor.

 

We don’t have to say anything on this, but I thought it might be useful to point to the proper Charter provision.

 

                § 2.10.  Youth Council.  The Commission shall convene an Ann Arbor Youth Council on Policing, composed of youths residing in Washtenaw County between the ages of 16 and 21 years old, inclusive.  The Commission shall create basic rules for the organization and operation of the Youth Council, and it may allow the Youth Council to supplement those rules.  The Commission shall make particular efforts to secure the participation on the Youth Council of youths from marginalized and vulnerable communities, and youths who have had significant encounters with the police.  The Youth Coordinator [Liaison] will assist in the organization and operation of the Youth Council, and will facilitate communications between the Commission and the Youth Council.  For each meeting of the Commission, the Youth Council may designate one of its members who may sit with the Commission and participate fully in its discussions.  The Commission may in its discretion award a stipend to members of the Youth Council for their service.

 

                The idea for such a Youth Council emerged from our own experience on the Task Force.   I think everyone probably agrees that for this Commission it is essential to engage youth and to hear from them.   But it is difficult or impossible for young people, with their quickly changing lives, to make a genuine commitment to a multi-year term on the Commission.  Given the investment of time and learning curve, I don’t think it’s advisable to have special one-year terms for a youth member.  Moreover, it seems unwise, on various grounds, to designate one person as the voice for all youth in Ann Arbor.  Creating a broad-based group that will be able to participate in the work of the Commission seems much more likely to be useful.  This section indicates one possible role for a Youth Council – actual participation in Commission meetings.  Subsequent sections indicate other roles – participation in community engagement activities, and consultation on matters of policy and practice affecting youth.  As I have drafted this, the Youth Council does not have a vote, because its members are not Council members.  But I think the vote is secondary; I expect the Commission will not have closely divided votes that often, and what is more important is that youth have a voice and a place at the table.

 

                Lori raised the possibility of a stipend; it may be useful especially to encourage young people of limited means to participate. (This would be one more reason not to have youth members of the Commission as such, because under the Charter members of Boards and Commissions serve without compensation.)  In a sense, the idea is that the members of the Youth Council are consultants to the Commission, and consultants can be paid.  I can imagine arguments against doing this.  But we don’t have to resolve the merits; all we have to decide is whether the Commission should be empowered to award a stipend.

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                § 2.11.  Other Councils.  The Commission may convene Councils of other demographic groups if, in the judgment of the Council, doing so will assist the Commission in advancing its mission.

 

                There may be various groups for which such Councils may be useful; I’ve drafted this to give the Commission broad authority to use such Councils.

 

Article 3.  Responsibilities and Powers

 

                § 3.1.  Building Community-Police Communications, Understanding, and Relations.

 

                            § 3.1.1.  General.  For a police force to able to perform its vital function in a way that is both effective and fair to all segments of the community, it is crucial  that there be good relations between the police and the community, especially segments of the community that are vulnerable and have been marginalized. To build better relations, it is crucial that there be mutual understanding, and for mutual understanding it is important that there be good communications.  Furthermore, successful policing is impaired to the extent the police are called on for unnecessary or inappropriate reasons.  Accordingly, the Commission is charged with the responsibilities of (a) fostering better communications, understanding, and relations between the AAPD and all segments of the community, and (b) fostering conditions that minimize to the extent possible unnecessary and inappropriate service calls to the AAPD.  The Commission shall be pro-active in discharging these responsibilities, and it may take any action not prohibited by law that, in its discretion, it believes will help it do so.  Such actions may include, without limitation, conducting meetings in any format (including listening sessions, discussion circles, and educational sessions) with community groups and with the community at large, with or without police participation.  In conducting these actions, the Commission

 

                (A) shall consider whether information that it learns from them suggests that it should make any recommendations, pursuant to § 3.2 of this ordinance, as to changes in practices and policies bearing on the City’s exercise of the policing function;

 

                (B) shall, through the Youth Coordinator [Liaison], work with the Youth Council to organize events that are youth-oriented and to secure the participation of youth in other events as appropriate;

 

                (C) may coordinate with other Councils that the Commission convenes to organize events oriented to the groups that such Councils represent; and

 

                (D) may secure such professional and expert assistance as it deems appropriate.  Such assistance may be secured from professionals and existing organizations and within the Ann Arbor community or from other persons and organizations, as the

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Commission deems best.

 

                The sense of our May 3 meeting was that pro-active efforts aimed at improving communications, understanding, and relations should be a significant focus of the Commission, and this view was voiced at the May 31, June 11, and June 12 sessions as well.  Part of the hope is that, if the police hear community concerns, and if the community learns about police practices and constraints, all presented in forums aimed at constructive communication, better understanding may follow. Throughout the Task Force’s process, both the police and community members have emphasized another concern.   A recurrent problem is that too often service calls are made for unnecessary or inappropriate reasons, putting the police in a position in which community tensions are likely to be aggravated; the term “racism by proxy” is sometimes used. This is a difficult problem to combat, but the Commission should be enabled to address it.  I have drafted this section in a way to give the Commission a broad set of responsibilities and broad powers to try to fulfill it.

 

                            § 3.1.2.  Police Leadership.  When there is a vacancy in the position of Police Chief, the City Administrator shall consult with the Commission early in the process of recruiting a new Chief, and the Commission shall organize public sessions to discuss needs for the position.  Finalists for the position shall meet with the Commission or its members and with the public; provided that, so long as the fact of the candidacy is confidential, the meeting with the Commission or its members shall be closed and no public meeting shall be held.  The City Administrator shall consult with the Commission before making a recommendation to the City Council.  The City Administrator may choose to use a similar procedure in hiring other senior leadership of the AAPD.

 

                This could be a separate heading, but for simplicity I’ve kept it under the community engagement heading.  It provides for engagement with both the Commission and the public.  I assume, though, that candidates will often come from other departments and insist that their candidacy remain confidential until such time as they are selected for the position.

  

                § 3.2.  Reports and Recommendations Concerning Policies, Practices, and Compliance.

 

                            § 3.2.1.  General.  For purpose of this § 3.2, the term “police-related policy” means any policy or practice of the AAPD, and any other policy or practice of the City or any of its agencies to the extent that it governs, or otherwise bears on the work of, the AAPD  The Commission is charged with the responsibilities of examining and assessing, according to such priorities as it may determine, all police-related policies  and the degree of compliance with them, and of making reports with recommendations for improvements.  Such reports and recommendations may concern, without limitation,

 

                (A) Recruitment, hiring, promotion, and union relations;

 

                (B) Training and education of police personnel, including on matters such as

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de-escalation, implicit bias, and the use of force;

 

                (C) Budget needs and allocation;

 

                (D) Public education, communications, and outreach efforts by the AAPD;

 

                (E) Procedures for handling complaints and determining discipline;

 

                (F) Non-law enforcement approaches that may reduce the demand and need for police interventions; and

 

                (G) Strategic planning.

 

                            § 3.2.2.  Access to Information and Materials.

 

                                        § 3.2.2.1.  General.  To enable the Commission to perform its functions under this § 3.2, it is critical that the Commission have broad access to relevant information and materials – which, as used in this ordinance, means information and materials that state or reflect policies or practices of the AAPD, and any other policies and practices of the City and any of its agencies to the extent that they govern, or otherwise bear on the work of, the AAPD.

 

                                        § 3.2.2.2.  On Request by the Commission.  The AAPD, the City Administrator, and the City Attorney, as the case may be (“the producing officer”), shall, except to the extent prohibited by federal or state law, the City Charter, or a collective bargaining agreement, provide the Commission with all relevant information and materials that the Commission requests.  If the producing officer believes that some requested information or materials, though relevant, cannot be produced because of law or collective bargaining agreement, the producing officer shall describe the information and materials withheld and state with particularity the reason why it cannot be produced.

 

                                        § 3.2.2.3.  Without Need for Request.  At least every three months, the AAPD shall report to the Commission describing (a) any significant developments bearing on the AAPD’s performance of its functions, including any significant changes in policies or procedures, and (b) any complaints lodged with the AAPD, including the substance of the complaint and the process and substance of the AAPD’s response to it.

 

                                        § 3.2.2.4.  Confidential Production.  Production of information and materials to the Commission shall be made in confidence only if that is necessary by reason of law, collective bargaining agreement, or overriding public policy.  If the producing officer believes that production must be in confidence, the producing officer shall so indicate, and shall state the reason with particularity.

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                            § 3.2.3.  Issuance of Reports.

 

                                        § 3.2.3.1.  Special Reports.  The Commission shall issue a special report at any time it deems appropriate concerning any police-related policy.  Such a report may assess the degree of compliance with the policy, and it may make recommendations for improvements.  Such recommendations shall be addressed, as appropriate, to the AAPD, the City Administrator, the City Attorney, the head of any City agency, or the City Council.

 

                                        § 3.2.3.2.  Annual Report.  The Commission shall issue an Annual Report summarizing its activities over the past year, responses by City officials to its reports, and its plans for the following year.  The Annual Report may also make recommendations for improvements in police-related policies and compliance.  If the Commission believes that amendments to this ordinance would help make it more effective, it shall make appropriate recommendations.

 

                                        § 3.2.3.3.  Public Reports; Confidentiality.  Reports shall ordinarily be issued to the public, but the Commission shall take care not to make public release of information that should remain confidential by reason of law, collective bargaining agreement, or overriding public policy, or that has been provided to the Commission in confidence by a member of the public.

                

                            § 3.2.4.  Response to Recommendations.  If a report issued under this § 3.2 makes recommendations to the AAPD, the City Administrator, the City Attorney, or the head of any City agency, that person or entity (“the responding officer”) shall respond to the Commission in writing within 30 days, stating with particularity (a) the extent to which the responding officer accepts the recommendations, (b) the actions, if any, that the responding officer has taken or will take in acting on the recommendations, and (c) to the extent that the responding officer does not accept the recommendations, the reasons why.  If either the Commission or the responding officer desires, the responding officer shall also discuss the matter with the Commission in person.

 

                For the most part, this section is an attempt to reflect matters on which there appeared to be a consensus at the May 3 meeting – that the Commission should have broad authority to make reports and recommendations as to any policies and practices governing the AAPD, with some particular areas, such as training, highlighted, and that the Commission would have real teeth if  (a) it has access to the information it needs, (b) it can make public reports of its findings and recommendations, and (c) when it makes a recommendation, it can expect that City and police administrators respond, explaining whether they are adopting the recommendation and, to the extent they do not, why not.

 

                I have defined “police-related policies” broadly in this draft, to include not only policies and practices of and governing the AAPD itself but others that bear on its functioning.  For

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example, human resources policies might govern staffing; the policies of other departments might govern certain circumstances in which the police are deployed, and might determine when interventions by agencies other than the police are called for.

 

                As drafted, this section would give the Commission authority to report and make recommendations concerning any matter of police-related policy and practice.  The City Council resolution of February 5 suggested that we consider providing for “[m]utual development with AAPD of a Policing Strategic Plan, including community input.”  I have not included a provision for that, because ultimately I think it’s not a good idea; if the Task Force disagrees, a provision for this can be added.  Instead, I have included specific mention of the Commission making reports on strategic planning.  I have a few reasons for thinking it’s not a good idea for the ordinance to require a mutually-agreed strategic plan.  It appears to be an instruction to agree.  But what if the Commission and the AAPD (as supervised by the City Administrator) disagree? If that happens, and very plausibly even if it doesn’t, then it’s likely that the so-called mutually developed report would be just a bunch of broad and vague pronouncements, meaning little.  That is especially so if we just say, in effect, “Agree on a strategic plan.”  We could say, “Agree on a strategic plan doing A, B,  C . . . Z,” specifying the matters on which there has to be agreement, but then that just increases the chance of there not being genuine agreement.  Beyond all that, if there is a strategic plan and it has actual force, then the Commission has in effect become a part of the administration of the AAPD.  Apart from the fact that this would be a significant alteration of the administrative system (raising a possible Charter issue), I think it’s a mistaken role for the Commission, defeating its essential purpose.  We already have a civilian body that is part of the hierarchy of City administration that has administrative control over the police – the City Council – and we don’t need another. The Commission is supposed to be a body outside City administration, with the ability to examine, prod, and criticize, not effectively part of administration.  It is appropriate for the Commission to comment, critically or favorably, on any strategic plan for the AAPD issued by the City, and it is appropriate for the Commission to issue its own report indicating what strategic plans there should be; if they agree, all well and good, and if they disagree then the Commission will have highlighted issues that must be resolved politically.  But I hope we’ll avoid instructing the Commission and the AAPD to agree.

 

                As I have drafted it, the Commission would have access to all information on police-related policies except when this is not possible by reason of state or federal law, the City Charter, or a provision in a collective bargaining agreement.  (These are not in the unlateral control of the City Council.)  We will have some indication from the City Attorney of circumstances in which one factor or the other precludes disclosure to the Commission.

 

                I am convinced that, though transparency is an important aim for the Commission, there are circumstances in which the Commission should be able to receive information in confidence.  This becomes even more apparent with respect to individual incident review, because some people will come to the Commission only if they can do so in confidence.  But it is also true on the other side – there are some matters (aspects of counter-terrorism policies, for example) that it would not make sense for the City to disclose publicly, but that could be presented to the Commission in confidence.  As between the Commission being able to receive the information in

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confidence and not receiving it at all, I think the former is plainly preferable.  I do not believe that breaches of confidence are inevitable, or even likely.  In my own experience on the University Committee, we routinely received information in confidence, and there was never a breach.  Members of the Committee recognized their obligation and took it very seriously.  So far as I am aware, this has not been a problem with other police oversight bodies around the country.  I believe in the wise saying that the only way to make a person trustworthy is to trust the person; I believe that the Commission should have the opportunity to show its trustworthiness, and so help build an atmosphere of mutual trust, by receiving information in confidence when necessary.

 

                I’ve picked up on a suggestion made by Dick Soble that the Commission should be required to file an annual report.  I’ve included in the draft a provision that the Commission can include in the annual report any suggestions it may have as to changes in its own governing ordinance (such as an enhancement of any of its powers) that would make the Commission more effective.  I did not include a provision that the City Council would promptly consider any such suggestions, because I don’t think it’s necessary – if the suggestion is plausible, it will almost certainly be considered promptly – but a provision to that effect could easily be included if the Task Force thinks it would be useful.  In any event, this draft provision is meant to reflect the fact that the Commission will learn as it goes, and can work to achieve whatever improvements in the ordinance may be necessary.

 

                The draft would require a particularized response – not just an acknowledgment of receipt or a perfunctory brush-off – to any Commission recommendations.  The responding officer would have to say what was being done in response to the recommendation – and to the extent the recommendation was rejected, why.  And the Commission could follow up in person.

 

                As I said at the outset of my commentary on this section, I believe that the combination of the Commission’s broad access to policy-related information, its broad authority to issue public reports, and the obligation on the part of City officers to respond in detail to Commission recommendations, gives the Commission real teeth.   The City might not do everything the Commission wants, but the Commission will frame the debate.  And it will not be ignored.

 

                § 3.3 Incident Review.

 

                            § 3.3.1.  General.  An important function of the Commission is to review the actions of the AAPD in and with respect to individual incidents.  This function extends both to the officers involved in the incident and to those who examine it for disciplinary or other purposes.  For simplicity, this § 3.3 refers to a Complaint as a request for incident review, and the Complainant as a person who files a Complaint, because most often the power of reviewing incidents will be invoked when there has been a complaint about police conduct.  That will not always be so, however.  For example, the Commission can examine incidents on its own initiative; a member of the public may call a particular incident to the attention of the Commission with questions or even a commendation and not a complaint; a police officer may call an incident to the

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Commission’s attention because the officer believes consideration of the incident will advance the public good.  Commission review of incidents is important for at least four reasons. First, when the facts are disputed, such review provides a finding, without need for litigation, by a body functionally independent of the AAPD and City administration of what happened.  Second, whether or not the facts are disputed, such review allows the Commission to evaluate what happened, expressing its view as to whether the actions of the officers involved in the incident and of those who examined it were appropriate and justified.  Third, such review enables the AAPD and City administration to understand better reasons for community concern, and it enables members of the community – both those involved in the incident and others as well – to understand not only what the police did but also what justifications they may have had for doing so.  Finally, such review allows the Commission to determine, whenever it concludes that the AAPD’s actions were not optimal, how they may be improved in the future.

 

                I think a section of this sort, expressing the reasons for incident review, is not absolutely essential, but it can be very helpful in setting the tone.

 

                            § 3.3.2.  Initiation of Review.  Any person may file a Complaint, and may do so in any manner, orally or in writing.  The Commission shall facilitate initiation of review by providing an email address, a website, a telephone number, and a mailing address for initiation of review.  It shall post on an easily accessible website a simple Complaint form, and the AAPD shall also keep copies of the form and provide them on request.  The Commission shall also seek to make copies available at each branch of the Ann Arbor District Library.  The form shall be offered only for convenience, and shall not be required to file a Complaint.  The Commission itself may also initiate review of an incident.

 

                I think it’s important to make the initiation of review as flexible as can be.  There are a few aspects of this.  First, the filing of a Complaint should be as easy and accessible as possible.  Second, any person should be able to file a Complaint, meaning, for example, that it would not have to be a person who was involved in or personally affected by an incident, and it could be a police officer.  Third, a Complaint should not be necessary; if the Commission learns of an incident that is of concern, it should be able to act without waiting for a Complaint.

 

                            § 3.3.3.  Procedural Choices in Filing of Complaint.  When review of an incident is initiated by the filing of a Complaint, the Complainant shall have the following procedural choices:

 

(A) The Complainant may choose to file the Complaint anonymously or not.  If the Complainant files the Complaint anonymously, the Commission shall proceed to act on the Complaint without attempting to determine the identity of, or to make further contact with, the Complainant.  If the Complaint is made without revealing the identity of the Complainant, the Commission shall presume that it is made anonymously.

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(B) The Complainant may choose to file the Complaint under seal or not.  If the Complaint is filed under seal, then neither the Commission nor the City, nor any agent of either, shall disclose publicly that the Complaint has been made or the substance of it, except that in its Annual Report the Commission shall state the number of Complaints so filed in the past year.  The Commission shall treat a Complaint as having been filed under seal only if the Complainant explicitly makes that choice.

 

                (C) If the Complaint is not filed anonymously or under seal, the Complainant may choose to filed the Complaint openly or confidentially.  If the Complaint is filed openly, the Complainant will have the option of appearing before the Commission, or the members or Committee designated to act on the Complaint, at a public session, and the Commission shall make no attempt to conceal the identity of the Complainant.  If the Complaint is filed confidentially, the Complainant will have the option of appearing before the Commission, or the members or Committee designated to act on the Complaint, at a closed session, and the Commission and the City, and the agents of both, shall take care not to disclose publicly the identity of the Complainant or to disclose information that would facilitate discovery of the identity of the Complainant.  Until such time as the Complainant clearly indicates intention to file the Complaint openly, the Commission shall presume that a Complaint is filed confidentially.

 

The Complaint forms made available pursuant to § 3.3.2 shall state these choices clearly and give the Complainant a chance to choose.  In addition, if the Complaint is not filed anonymously, a member or representative of the Commission shall attempt promptly to communicate with the Complainant and explain the Complainant’s options.

 

                I’ve drafted this to give the Complainant a wide choice in how to proceed.

 

                Occasionally, a Complainant may want to be anonymous, meaning that even the Commission will not know who the person is.  (When I was on the University Committee, we received at least one anonymous complaint; I think it might have been from a police officer.)  I don’t think there is any problem with that, though of course it means that the Commission will not hear from the Complainant in person.

 

                I’ve also drafted this to allow the Complainant to file the Complaint “under seal,” meaning that the substance of the Complaint would not be discussed publicly.  This may be a novel provision, and perhaps the Task Force won’t like it, but I think there can be reasons why the Complainant would have reason to say in effect, “I want you to consider this, but I don’t want it publicly known that somebody has made the complaint.”  It may be, for example, that the Complainant is afraid that even if her name were not disclosed as part of the Commission’s process, some people would be able to infer it from the substance of the Complaint.  Note that the decision on anonymous or not would be independent of the decision on under seal or not – a Complaint could be anonymous and under seal (the Commission doesn’t know who filed and doesn’t reveal publicly the substance of the Complaint); not anonymous and under seal (the Commission knows who filed but doesn’t reveal publicly the substance of the Complaint);

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anonymous and not under seal (the substance of the Complaint is discussed publicly, but the Commission doesn’t know who filed), or not anonymous and not under seal (the Commission knows who filed and the Complaint is discussed publicly).

 

                Assuming the latter possibility – not anonymous and not under seal – the question still arises as to whether the Complainant by filing the Complaint must reveal her identity publicly.  I feel quite strongly that the answer should be negative.  It may be that the Complainant had an encounter with the police about which she wants to complain, and she is happy for the matter to be discussed publicly but only if her name is not revealed; she might, for example, have been stopped by the police in circumstances that she would find embarrassing.  Or it may be that the events underlying the police involvement are ones with which she does not wish to be associated publicly; for example, she might be complaining that the police mishandled her allegation of a sexual assault.  On the University Committee, we routinely got complaints of both sorts, and we treated all complaints as presumptively confidential.

                These are important choices, and they usually need to be made at the outset, so I think it is important that they be explained to the Complainant, not only on a Complaint form but also personally, very promptly.

 

                            § 3.3.4.  Time for Initiation of Review.  There is no time limit for filing a Complaint or for initiation of review of an incident.  The Commission will exercise appropriate caution in trying to determine the facts of an incident that is no longer recent, but it shall act on the recognition that no matter how old an incident is it may hold lessons for the future.

 

                If incident review were part of a disciplinary process, then there would be a need for strict time limits. But I think that the principal values of incident review are to learn the truth and to draw lessons for the future.  There should therefore be no time limit on when the Commission can consider an incident, though of course what it can and should do may be limited by the passage of time.  So, for example, I believe it would be perfectly appropriate for the Commission to ask questions about the Aura Rosser incident such as: Was the shooting an appropriate response to the threat?  What should the policy be on use of firearms in such a case?  After a fatal shooting, should the City or the AAPD make a private statement to the family of the deceased, expressing compassion and sympathy?

 

                            § 3.3.5.  Referral of Matter to Police Chief.  Promptly after receiving a Complaint, or after deciding on its own initiative to review an incident, the Commission shall refer the matter to the Police Chief for a report; provided that, to the extent the Complaint or inquiry concerns conduct of the Police Chief, the matter shall be referred to the City Administrator.  (References to the Police Chief in this § 3.3 shall apply to the City Administrator instead when a matter is referred to the City Administrator.)

 

                            § 3.3.6.  Report by Police Chief.  The Police Chief will report to the Commission in writing, stating the Police Chief’s determinations as to: (a) the facts of the incident; (b) whether there was any inappropriate conduct by the police; (c) any

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discipline that has been or will be imposed; and (d) any changes in policies or procedures that ought to be made as a result of the incident.  Except to the extent prohibited by federal or state law, the City Charter, or a collective bargaining agreement, the report shall include all documents related to the incident  (including statements by the officers involved), all video evidence, and descriptions of any tangible evidence; provided that, if the Police Chief believes that some information or materials related to the incident cannot be produced because of law or collective bargaining agreement, the Police Chief shall describe the information and materials withheld and state with particularity the reason why they cannot be produced.

 

                I think a provision like this is critical, providing broad access to information relating to an incident.  (This provision is comparable to § 3.2.2.2, dealing with information requests for the purposes of making policy reports and recommendations.) As I have drafted it, the Commission would receive all materials related to the incident except to the extent prohibited by state or federal law, the Charter, or a collective bargaining agreement; these, unlike ordinary City ordinances, are not subject to change by the City Council acting on its own.  I am hoping we have a good handle by the time we submit our report on what kinds of information would not be passed on under this provision.        

 

                            § 3.3.7.  Timing of Report; Interim Report.  The Police Chief shall make the report required by § 3.3.6 within 30 days of receiving the referral under § 3.3.5, provided that (a) if ongoing disciplinary proceedings preclude the Police Chief from making the report in that time, then the Police Chief shall make the report within 14 days after conclusion of those proceedings, and (b) in extenuating circumstances, explained in writing by the Police Chief, these time limits may be extended, but only for a reasonable time.  At any time, the Police Chief may make an interim report, and the Police Chief shall do so if unable to make a final report within 45 days of the referral.

 

                The Collective Bargaining Agreement puts time limits on the AAPD’s consideration of complaints for disciplinary purposes.  Ordinarily, even if the Chief reported while there was time remaining, I believe it would be difficult for the Commission to consider the matter fully and make a recommendation for discipline while time to determine discipline in the particular case

still remains.  Personally, I do not find this troublesome.  I believe the principal function of the Commission in all cases is forward-looking – what do we learn about what should happen in the future in comparable situations?  That applies not only to what, if anything, officers involved in an incident like this should do but also to how supervisors should respond; the Commission might, for example, express an opinion as to the adequacy of discipline that was imposed.

 

                            § 3.3.8.  Further Information and Discussion.  At any time, before or after the Police Chief makes the report required by § 3.3.6, (a) if the Commission has information that it believes is material to consideration of the incident, it may pass that information on to the Police Chief, and (b) if the Commission believes that further information will be material to consideration of the incident, it will ask the Police Chief to present that information, and if the information is in the possession of the AAPD, or

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could be secured by the AAPD by reasonable efforts, the Police Chief will include that information in the report required by § 3.3.6 or in a supplemental report.  After making the report required by § 3.3.6, the Police Chief shall, if either the Police Chief or the Commission wishes, discuss the report in person with the Commission.

 

                If, as provided below in § 3.3.10, the Commission gathers information bearing on the incident – for example, statements from the Complainant and from bystanders – it should be able to pass that on to the Police Chief.  As drafted, this section also gives the Commission broad power to secure information bearing on the incident from the AAPD, and not only information that the AAPD already has but information that it could obtain “by reasonable efforts.”  I think it is hard to draw a more precise standard than that.

 

                            § 3.3.9.  Confidential Production.  The provisions of § 3.2.2.4, with respect to confidential production of information, shall apply to production of information under this § 3.3.

 

                The ability of the Commission to receive information in confidence is, in my view, especially important in the context of incident review.

 

                            § 3.3.10.  Information Gathering by the Commission.

 

                                        § 3.3.10.1.  Opportunity to Meet with the Commission.  The Commission will give any person (including the Complainant, assuming the Complaint has not been filed anonymously, and any police officers involved in the incident) who has information bearing on the incident an opportunity to provide that information in person in a meeting with the Commission or members or representatives.  This meeting will be open or confidential, as the person wishes, except that when a Complaint is filed under seal any meetings relating to it shall be closed.  The meeting shall not be recorded, unless the person asks that it be. [The Complainant shall ordinarily be given an opportunity of having this meeting within [two weeks] of making the Complaint.]

 

                I think one important function performed by the Commission is giving Complainants a chance to make a statement to an independent body.  Some may wish to do so openly, and others not.  We can provide that the opportunity shall be very prompt – say, within two weeks – if we want, but we have to be wary of putting too much of a time demand on Commission members.  There presumably won’t be Commission meetings that often, and so the only way to guarantee that prompt an opportunity would be if it were before less than the full body.  We might also decide that, although it is important that the Commission communicate promptly with the Complainant after the Complaint is filed, it is not essential that the opportunity to make an open statement be before the next meeting of the Commission.

 

                                        § 3.3.10.2.  Questioning of Officer.  Ordinarily, given the report required by § 3.3.6 and opportunities for follow-up, the Commission should not need to meet with the officer or officers involved in the incident.  If, however, the Commission

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believes that, because of the unusual nature of the case, it is essential for it to question an involved officer about the incident, and the officer does not appear before the Commission voluntarily, the Police Chief shall instruct the officer to appear, to make a statement, and to answer questions.  In such a case, the officer shall retain all rights, including the Garrity right (protecting the officer against use of the officer’s statement in a criminal case against the officer) and the Weingarten right (allowing the officer to be accompanied by a union representative), and if the officer is represented by counsel, then counsel may accompany the officer.

 

                This is a particularly delicate matter.  We must assume that ordinarily an officer involved in an incident will not make a voluntary statement to the Commission, at least if there is any possibility of civil or criminal liability.  The officer may be ordered to speak, and then he or she can preserve the right against use of the statement against the officer in a criminal case, but that would still leave the officer exposed to use of the statement in a civil case.

 

                I believe that the issue is less important than might appear at first.  Most often, the Commission will not need to compel a statement directly from the officer.  In many cases, video evidence will demonstrate clearly enough what happened.  The department, in investigating the complaint, will presumably take a statement from the officer if necessary, and the substance of that should be made available to the Commission, so the Commission will have the officer’s version of the incident, and the Commission can, if it wishes, pose follow-up questions through the Chief.  Taking a direct statement from the officer will rarely be essential.  (On the University Committee, we rarely if ever questioned the officer involved directly, and I don’t think we were hampered.)

 

                I’ve tried to steer a middle course here, giving the Commission the power to cause the Chief to compel the officer to appear, but providing that the power be exercised only in unusual cases, for good cause.

 

                                        § 3.3.10.3.  Commission Requests to Third Persons; Investigators.  If the Commission believes that third persons, such as bystanders, have information material to its review, the Commission may request that such persons provide that information.  If the Commission deems it appropriate, it may use the services of an investigator in conducting its review.

 

                The Complainant, of course, has been willing to present the Complaint to the Commission, and the draft provides that the AAPD is legally mandated to present relevant information to the Commission.  How about third parties, such as bystanders?  This draft authorizes the Commission to request information from such people but does not authorize the Commission to compel unwilling people to provide it, as by subpoena.  At this writing, I am uncertain whether the City even has the power to authorize the Commission to issue subpoenas.  Even apart from that, I think it is probably unwise to give the Commission the power.  Note that, at least except for rare cases, that power would only be useful to secure information from people who are not affiliated with the AAPD and are unwilling to give the information voluntarily.  (If

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they’re affiliated with the AAPD, then the mandates of the ordinance would require production of the material without need for a subpoena, at least if it’s material that is connected with official business; if they’re willing to provide the information voluntarily, no subpoena is necessary.)  I think it would be very troublesome to give the Commission the power to compel evidence from, say, a bystander who really does not want to get involved.  Moreover, a subpoena is not necessarily self-enforcing; it might require litigation, which would be expensive.  I am going to try to gather more information, but for now my sense is that the Human Rights Commission Report (pp. 16-17) was right in saying:

 

Although some boards have subpoena power, most of them seem rarely, if ever, to use it.  When police departments’ leadership works with civilian boards by sharing information, answering questions, and requiring officers to cooperate with the boards’ supplementary investigations, boards are able to function well and tend not to need subpoena power.  Conversely, if there is little cooperation, boards have problems getting the information they need to do their job well.

 

                            § 3.3.11.  Voluntary Sessions.  If the Commission believes it might be useful, it may facilitate sessions in which persons involved in the incident and others with an interest in it (including representatives of the AAPD) can participate on a voluntary basis, the aim being to achieve fuller mutual understanding without recrimination.

 

                Whether the police, and complainants, would consent to such sessions is an open question.  But I think they should be available to the Commission.  I’ve avoided using the term “restorative justice” here, because I think it might be controversial, but we certainly could use it if the Task Force wishes.

 

                            § 3.3.12.  Incident Reports by the Commission.

 

                                        § 3.3.12.1.  Issuance of Reports.  When the Commission has completed its review of an incident, it shall issue a report to the Police Chief, the City Administrator, the City Attorney, and any other city officer it deems appropriate.  Except in cases filed anonymously, the Commission shall also issue its report to the Complainant, and except in cases filed under seal it shall issue its report to the public.  The Commission may also issue an interim report at any time if it deems that appropriate.  The Commission shall not, however, issue any report to the Complainant or to the public before completion of any disciplinary proceedings with respect to the incident.

 

                I think it’s important that for every complaint it receives, the Commission should issue a report, and ordinarily these reports should be public, except where necessary to protect confidential information.

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        § 3.3.12.2.  Contents of Report.  The Commission’s final report

with respect to an incident shall state its determinations as to:  (a) the facts of the incident; (b) whether there was any inappropriate conduct by the police; (c) what the response of the AAPD and, if appropriate, of the City, should be or should have been; and (d) any changes in policies or procedures that ought to be made as a result of the incident.

 

                Part of the function of the report is to provide an independent finding of the facts when they are disputed.  Often, the facts will not be genuinely in dispute, and often, even if they are to begin with, video evidence will resolve the matter.  I think that in general the more important function is evaluative – did the police act properly here, and if not, what should be done to prevent a recurrence in the future?  Indeed, I found on the University Committee (which did not have the benefit of body camera evidence) that sometimes we could exercise that function even when the facts were in dispute.  (“We cannot tell for sure whether the Officer said what the Complainant says he did, but if he did that was improper.”) Ordinarily, as noted in the comments to § 3.3.7, the Commission would probably not be able to make recommendations for discipline in the given case, but I don’t regard that as troublesome, given what I think should be its future-looking orientation.  The Commission certainly could express an opinion as to whether the discipline, if any, imposed in the particular case was appropriate for a case of this sort, whether an apology of any sort is warranted, and what the departmental practices should be going forward.

 

                                        § 3.3.12.3.  Confidential Information.  The Commission shall take care not to disclose confidential information (including, where applicable, the name of the Complainant) in a report.  The Commission’s reports should ordinarily avoid identifying police officers by name.

 

                I think usually there is no need to disclose the name of an officer in a Commission report.  But the Commission should be aware of the name, whenever the name is known, because it should be alert to patterns of behavior.

 

                                        § 3.3.12.4.  Response to Report.  If the Commission’s final report recommends action by the Police Chief, the City Administrator, the City Attorney, or any other City officer, that person or entity (“the responding officer”) shall respond to the Commission in writing within 30 days, stating with particularity (a) the extent to which the responding officer accepts the recommendations, (b) the actions, if any, that the responding officer has taken or will take in acting on the recommendations, and (c) to the extent that the responding officer does not accept the recommendations, the reasons why.

 

                This is comparable to § 3.2.4, dealing with responses to reports making policy recommendations outside the incident-review context.  Here, as in that context, I believe that the requirement of particularity in a response ensures that the Commission cannot be ignored.  

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                                        § 3.3.12.5.  Discussion of Report.  If the Complainant wishes, the

Commission shall afford the Complainant an opportunity to discuss the report with the Commission or with members of the Commission, in an open meeting if the Complainant wishes, within 30 days of the time the report is issued to the Complainant.  If either the Commission or a responding officer wishes, the Commission shall discuss the report and the responding officer’s response to it with the responding officer; such a meeting shall be held openly unless the Complaint was filed under seal or the preservation of the confidentiality of information requires that the meeting be closed.  After the meetings called for in this § 3.3.12.5, the Commission may, if it deems it appropriate, issue a supplemental report.

 

                I believe an opportunity for a post-report follow-up may be very important for some Complainants.  Some might not understand or accept the report; the opportunity for face-to-face discussion may be important in imparting understanding or at least in achieving some degree of closure.   On the other side, this section as drafted prescribes that either the Commission or a responding City officer may initiate a meeting to discuss the report and the response.  Such a meeting can reinforce the Commission’s power to cause City officials to focus on its report, and can lead to a productive discussion.

 

Article 4.  Operations and Support

 

                § 4.1.  Committees and Assignments.  The Commission may create committees, and it may assign functions to committees, or to one or more individual members, as it deems appropriate; provided that any report issued by the Commission shall be approved by the Commission as a whole.  At all times, a committee, or at least one member of the Commission and an alternate, shall be assigned to monitor newly filed Complaints, so that a member of the Commission can ensure that an attempt to communicate promptly with the Complainant (except in the case of a Complaint filed anonymously) is made, as provided in § 3.3.3.

 

                § 4.2.  Meetings.  The Commission shall meet at least once every [month].  Meetings shall be held openly except to the extent necessary to preserve the confidentiality of information, or when a Complaint filed under seal is being discussed.

 

                I am supposing that there will be sufficient work for the Commission to do that frequent meetings would be appropriate – but a requirement of too frequent meetings would put an undue burden on Commission membership.  I’m suggesting monthly meetings.

 

                § 4.3. Facilities and Staff Support.  The City shall provide the Commission with suitable facilities for the conduct of its meetings and other business.  The City shall also provide the Commission with the services of an administrative liaison to assist with logistical matters, such as posting the schedule of meetings and ensuring that they are properly recorded.  The Commission may secure the services of such additional personnel for assistance as, in its discretion, it deems appropriate.  Such personnel may

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include, without limitation (in addition to counsel, as provided in § 4.4), one or more of the following:  additional logistical support staff, a researcher, an investigator, consultants, and meeting facilitators.  Such services shall be provided on a part-time, contractual basis.  The City Administrator or a designee shall ensure that such contracts are properly entered into and maintained (with respect to such matters as payment, tax withholding and reporting, and record-keeping for freedom-of-information purposes), but neither the City Administrator nor any other City officer shall, except as provided in § 4.4, participate or attempt to limit the choice of, or attempt to exercise supervisory control over, such personnel.

 

                The City generally provides logistical support for boards and commissions.  That’s good, but I think we’ve learned that the Commission should be able to supplement City-supplied logistical support with (part-time) staff that reports directly to the Commission.  In addition, the Commission needs to be able to control the hiring of part-time staff to perform various other functions.  Because the Commission is a City agency, these would be City contractors, so the City has a valid interest in making sure that the work is maintained on a proper basis.  But I think it’s important that City officers not have a supervisory role over such contractors.

 

                § 4.4.  Counsel.  It is crucial for the functional independence, and thus for the success, of the Commission that it has its own legal counsel.  The Commission shall therefore select one or more attorneys to advise it on a continuing basis. [The Commission’s selection shall be subject to the approval of the City Attorney, which shall not be unreasonably withheld.]

 

                Members of the Task Force know that I believe strongly that independent counsel is crucial to the independence of the Commission.  I do not believe that it makes any sense for a Commission that is supposed to be exercising oversight over a police department to rely for legal advice on the same attorneys who are representing the department.  I could go on at great length, but won’t until such time as it might be necessary; for now I’ll just say that numerous cities around the country have recognized the importance of giving their oversight bodies independent counsel.  Some cities provide some constraint on the oversight body’s ability to choose counsel.  I don’t think it’s necessary, but I think it would be tolerable to make the choice of the particular lawyer or firm subject to the approval of the City Attorney, so long as approval cannot be unreasonably withheld.  It’s important that the Commission’s attorney be capable and responsible, and recognized as such by the City Attorney; this provision (which I’ve put in brackets) might help assure that the Commission’s attorney is treated with proper respect.

 

                § 4.5.  Budget.  The City shall appropriate each year, for the use of the Commission, no less than [2] tenths of 1% of the amount appropriated in that year for the AAPD. [Any unexpended funds shall be held in reserve, for the purpose of contracting for periodic extensive outside audits of the operations of the AAPD.]

 

                Tying the Commission’s budget to that of the Police Department seems to be a relatively simple way of providing some assurance that the Commission will be amply funded; it is one that

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some cities use (and it was suggested by a member of the public at the June 12 meeting).  Each tenth of a percent of the AAPD’s budget would give the Commission around $27,000 as of now.  I don’t think that in most years the Commission would actually need that much.  One possibility is to say that excess funds could be used for occasional audits.  I’m not sure if it would be wise to tie that money up rather than allowing it to be used for other purposes.

 

                § 4.6. Training of Members.  The AAPD, in consultation with the Commission, shall devise a series of programs for training new Commission members regarding the operations, policies, and practices of the AAPD.  Each new member shall be required to engage in such training programs, totaling no less than six hours within the first six months of the member’s tenure, as the Commission may prescribe.

 

                The Commission’s ability to exercise close and credible oversight over the AAPD will be enhanced if the Commission’s members understand the operations of the Department.  So it seems important to require some training.  But we have to be careful, because too extensive a training requirement will be a burden on Commission membership.  I have drafted this to create a minimum six hours of training, leaving it to the Commission to determine the precise requirements.

 

                § 4.7.  Additional Procedures and Rules of Operation.  As provided in Title I, ch. 8, § 1.171(4) of the City Code, the Commission shall have the power to make rules and regulations concerning the administration of its affairs as shall not be inconsistent with laws, the City Charter, or the City Code – including, as examples, rules on the conduct of the Commission’s meetings, governing whether remote electronic participation shall be allowed, and the maintenance by the Commission of its own means of communication, such as a website and Facebook page.

 

                I’ve lifted the language of the provision of the City Code giving commissions the power to make their own rules.  I’ve thought it useful to emphasize that power here.  I’ve used some examples from our own experience of operational matters that the Commission should be able to decide on its own, without having to seek approval from City administration.

 

                § 4.8.  Confidentiality Statement.  Each member of the Commission, and every person who renders services to the Commission, shall sign a statement, on a form prescribed by the Commission, promising to maintain and protect the status of confidential information.

 

                § 4.9.  Relation to Other City Law.  To the extent that this ordinance conflicts with any City law of any type (including, without limitation, any ordinance, rule, regulation, or executive order) other than the City Charter, this ordinance shall prevail.

                I think it would be useful to ensure that this ordinance stands on its own, and is not limited by any other City law (other than the Charter) that might be in conflict. This would apply to open-meetings requirements imposed by the City; such requirements would apply except

when, under the ordinance, preservation of confidentiality is necessary.

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