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HomeMy WebLinkAbout35-City Attorney ~ o o i, TO: C I T Y 0 F SAN B B R N A R 0 I N 0 INTEROFFICE MEMORANDUM Civil Service Board CC: Dennis A. Barlow, Sr. Asst. City Attorney Chief Dan Robbins, San Bernardino Police Department August 28, 1990 FROM: DATE: RB: Mediation Agreement between the Police Deparblent and the NAACP The question has arisen whether the Mediation Agreement entered into between the San Bernardino Branch of the NAACP and the City of San Bernardino by the Mayor and the Police Chief in October 31, 1989, is an enforceable document. Although executed by the Mayor and the Chief of Police the Agreement was never approved by the COmmon Council of the City of San Bernardino. The Charter gives the Mayor general supervision of all City employees (Charter Sections 50 and 52) but that does not include the general or specific power to enter into agreements which bind the City. In fact, although the Charter specifically gives the Mayor the power to "see that all contracts. and agreements with the City are faithfully kept and fully performed. ." (Charter Section 52), there is no reference to any power to independently enter into those agreements. In fact the second paragraph of Section 34 of the Charter relating to the recording of votes on the making of contracts, clearly anticipates Council action on contracts. In addition the Agreement itself uses numerous vague and indefinite terms which would make enforcement difficult if not impossible (such as "policy," "maximize," "sufficient members," "substantially increase," "long-term goal," "within budgetary constraints," "if possible," and "explore the feasibility.") Finally, the terms of the Agreement provide no enforcement process other than a monitoring program. (paragraph IX). This is not to say that the Agreement has no value. It is what it appears to be: An agreement between the NAACP and the Police Department, with the help of the Mayor, entered into after extensive negotiations and in good faith, to help the Police Department be more aware of minority concerns, and to set forth goals and objectives, within budgetary constraints, to address. those concerns. As such it is a very valuable document, and a basis up w h future cooperation can build. > DAB/ses/NAACP.mem August 28, 1990 ..3S - . o o \ JAMES F. PENMAN City Altorney CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY August 17, 1989 Opinion No. 89-26 10.39 TO: Captain D.A. Robbins RE: Citizen participation on Shoot Review Board ISSUE You have inquired whether a private citizen may be appointed and serve on the Police Shoot Review Board in conjunction with Police Command staff. CONCLUSION A private citizen may legally serve on the Public Shoot Review Board, but in doing so, serious liability concerns are raised. We therefore strongly recommend against such a practice. BACKGROUND Recently several police shootings have occurred in the City of San Bernardino, raising in segments of the Community, concerns about the Police Department. In an attempt to allay these fears and to assure that the review of shootings by the Police is impartial, it has been proposed that a local private citizen serve on the Police Shoot Review Board along with police command staff. It is not entirely clear what the exact functions of this Board would be in this context, but we assume for purposes of this opinion that the Board would review the facts and circumstancea surrounding each shooting incident, including reviewing reports of interviews with witnesses, and would make reports on such incidents to the Department. It would also maintain statistics related to such shootings by calendar year including the race and sex of the person shot, as well as a comment on the conduct of the individual shot. We are assuming that the Board would not have access to Police Officer personnel files or records of any citizen complaints. 1 CITY HALL 300 NORTH '0' STREET. SAN BERNARDINO, CALIFORNIA 92418 (714J 384-5355 .,t!!J-. - o o \ Opinion No. 89-26 Formal OpinJ.on to James F. Penman August 17, 1989 Page 2 ANALYSIS The first issue to be reviewed is whether a shooting incident and the reports developed therefrom are confidential. It is clear that such records do not come under the types of records covered by Penal Code Section 832.5 relating to investigation and retention of citizen complaints, since under our understanding of the proposal, an investigation would occur even without a complaint being filed. The California Public Records Act (Government Code Section 6250 et. seq.) makes the policy statement that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (Government Code Section 6250). Government Code Section 6253 then proclaims that public records are open to inspection and gives every person the right to both inspect and take copies of such documents. However, Government Code Section 6254 exempts certain records from the otherwise imposed disclosure requirement. Pertinent to the present discussion are the provisions relating to preliminary drafts, or notes, provided that the public interest in withholding outweighs the public interest in disclosure (Subd.[a]); interagency or intraagency memoranda not retained in the ordinary course of business, , provided again that the public interest in withholding outweighs the public interest in disclosure (subd.[a]); records pertaining to pending litigation or filed claims (subd.[b]); personnel, medical or similar files, the disclosure of which would be an unwarranted invasion of privacy (subd.[c]); or records of ongoing criminal investigations (subd.[f]). Although in individual cases facts may be ascertained that would bring the information within the statutory exemption, it cannot be concluded that all such information is so protected from disclosure. In San Francisco Police Officers Assn. v. Superior Court (1988) 202 CA3d 183, the court considered a civilian Office of Citizens Complaints (OCC) established by initiative by the voters of San Francisco to review citizen complaints against the San Francisco Police Department. The court upheld the procedure adopted by the OCC which allowed the complainant to be present during the fact finding process, concluding that such a process was not confidential (at pg. 191). The court, however, did 2 o o Op~n~on NO. 89-26 Formal Op~~on to James F. Penman August 17, 1989 Page 3 overturn the compla~nant's r~ght to rece~ve the hear~ng off~cer's findings and the final recommendation of d~scipl~nary action. Since such determ~nat~ons were confidential under Penal Code Section 832.7. Although not discussed, the court impl~edly approved the operat~on of a C~tizen Board ~n such matters. The court also noted ~n. passing that such a Board would not be allowed access to Pol~ce Officer personnel records ~n reaching ~ts determinations (at pg. 191-192). It must be concluded that a c~tizen may legally sit on a Pol~ce Shoot Board and participate in ~ts review of the facts surrounding pol~ce-~nvolved shootings. We also caut~on ~n th~s regard that the Leg~slative Counsel ~n an opin~on related to th~s ~ssue (#15711), took the pos~tion that a c~t~zen rev~ew board could only be establ~shed by a Charter City pursuant to leg~slative author~ty. Therefore such a process would requ~re an authorizing ord~nance. Despite its be~ng legal to do so, the C~ty must carefully rev~ew whether or not such pos~t~on ~s in the c~ty's best ~nterest. The whole purpose of c~t~zen part~cipation on such a Board ~s to lend impartiality to the proceed~ngs. In so do~ng the ~ndividual would not feel the same constraint as would C~ty employees to keep the facts ascertained confidential. Certainly such a Board could determ~ne that, on balance, a part~cular shoot~ng was just~f~ed even though certain incons~stent test~mony was discovered which was contrary to the conclusion reached. If that confl~ct was disclosed publ~cly by the c~t~zen member, the City could f~nd itself in a very d~ff~cult liabil~ty s~tuat~on even though the shoot~ng was found to be and was ~n fact justified. Even ~f the shoot~ng was not found to be just~f~ed and the officer d~scipl~ned, what is revealed by the c~t~zen member and the way ~t ~s revealed would have a great bearing on the issue of l~abil~ty, the amount of l~ab~l~ty and any defenses that the c~ty m~ght have ava~lable to it. Certa~nly a c~t~zen member, presumably not trained ~n law, could, when reporting the investigation to the public, emphas~ze less important areas and deemphas~ze other more important areas, all to the detr~ment of the City. Of course, as an ostens~ble representative of the community, the person's desire to reveal such facts, if noth~ng else but to allay the commul')~ty' s concerns, would be overwhelm~ng. 3 . o o Opinion No. 89-26 Formal Opinion to James F. Penman August 17, 1989 Page 4 In this regard, we should note the Attorney General's caution in reviewing the role of public officials in investigating citizen complaints against police officers that "they are required by Penal Code Section 832.7 to maintain the confidentiality of such complaints and are precluded from disclosing the contents thereof to members of the public." (71 Ops. Cal. Atty. Gen. 1,5). The result could be that if such facts were revealed, the City would bear the additional liability for the unauthorized revelation. Another concern that must be discussed is the tendency of all public agencies, boards or commissions, once established, to expand and broaden their authority. Certainly, once a citizen member is appointed, the desire will develop to have a total citizen Board. The Board will eventually, no doubt, wish to review other incidents of alleged Police misconduct and not just Police shootings. In addition, a decision of such a Board, especially having citizens as part of its members, would tend to include recommendations for discipline. Such recommendations would not be appropriate without a thorough review of the personnel file of the officer involved, and as discussed above, such access is prohibited by Penal Code Sections 832.5 and 832.7. As an alternative and if it is not already being done, a review of each shooting could be made by the District Attorney. We are aware that this procedure is followed in other areas. Of course, such a procedure would be subject to the concurrence of the District Attorney. Respectfully submitted, ~~ Sr. Asst. City Attorney Concur: JAMES F. PENMAN .~ " Mayor Council Members City Clerk City Treasurer City Administrator 4 o o o '". - . " o o . 90 JU'.. , ~E6YAll&l AGREEMENT ","" . -_. '. w ';l.. ,..... ." '. . ,...:: . .... & - - -., . ~"- .,:, I' Sll. l::':.41'JNI In the Fall of 1988, the NAACP, San' Bernardino Branch, and the City of San Bernardino agreed to participate in a series of _dlatlon sessions to address Issues and proposals reqardlng relations between police and minority citizens. Convening and leading these dlscussi,ns was a Senior Regional Mediator fr.. the Community Relations Service, (CRS) U.S. Department of Justice. . The talks addressed the following areas: Incidents which were under review by the Police Department and District Attorney, efforts to Il9rove cit Izens' confidence In the handling of citizens' COlll!1alnts regarding alleged pOlice misconduct and excessive use of forc.; efforts by tfi. City of San Bernardino and Its Police Department to recruit qualified Black ana other minority candidates for police officers; pollctes and practices related to assignments for Black and other .Inorlty officers; opportunities for advancement and promotton of Black and other .Inorlty officers; policies and practices related to supervision and discipline In response to alleged racial slurs and discriminatory behavior; efforts to Increase positive officer contacts with minority citizens and efforts to I.prove nce relations within the Pollce Department. The participants considered' it essential to explore sources of tension and misunderstanding, to clarlfj official policies, procedures and practices, to eXllllne tile needs a~ responsibilities of both the Pollce Department and the minority coaauntty represented and to find ways of fulfilling those responsibilities and improving relationships. The Police Defartment's policies with respect to personnel, training, citizen comph nt investigations and use of force were carefully reviewed and openly discussed. This extensive dialogue resulted in greater understanding of overall Police Department operations and an appreciation of community concerns by all participants. The efforts of the following persons have contributed to this Agreement for enhanced police-community relations: Cltv OffiC;ill1l NAACP. San Bernardino Branch Official. Willie Clark, President Mar" Johnson, Fo~r President and current Board ReIber VIllie Porter, 1st Vice President Morsell Johnson, 2nd Vice President Marvin L. Brown, Mellber V. R. Holcomb, Mayor Evlyn Wilcox1 Former Mayor Daniel A. Rooblns, Chief Donald J. Burnett, Former Chief Vayne Harp, ~taln Michael Lewis, Captain Larry RIchards, Captain Dave ThOllas, Former Captain Consuelo Ramirez, Chief's Secretary ~. fffmt of J'Wtf: C un ons ~. Vennont McKinney .1- ~ 'J..2~.. 90 c-~~:'l - ~~ - IT ...L..-" ~ --: - --- ..J'> 1 ~ "- o o o . c - ThereforeJ ln the lnterest of enhanced_police community relations, the City of San aernardlno and NAACP, San Bernardino Branch, enter Into the followlng Agreement: J. AffIRMATIVE ACTION The San Bernardino Police Department rllffl",s that its policy is to maxlmize the recruitment, appointment, retention and promotion of qualified .inorities in suffici.nt nuabers so as to substantially increlSe the IIlnority composition of City elllployees so thlt It IIOrt nearll reflects the racial and .thnic composition of the population of the ity of San Bernardino. In furtherance of this policy, the long-terll goal shall be to have the raCial lIakeup of the San Bernardino Pol Ice Department reflect the lllke up of the City by: Nonsworn by 1990 Sworn by 1994, and lIinillally meet the racial lIake up as r.flected In the 1980 census and lIaintain that representation in accordance with future census reports. The goal is to fnl Vluncies, as they occur in order to obtain an empl01lllnt level refled he of the cOlllllunity deqraphies. This goal . is bued on the aVlihbl1ity of lIinority undidates on the hiring eligibility list in accordance with the City's personn.l ordinances ana pollcies for sworn and nonsworn personnel. . Th. hiring objective established Is a goal rather than a quota. Nothing her. shall be interpreted to require the hiring of persons who do not meet the employment requirements. Th. terll .goal. shall lIean a target figure for hiring or any other relevant ellpl01lllnt purpos.. In order to lIeet this goal, the San Bernardino Police Department shall carry out, within budgetary constraints, an aggressive and specifically delineated recruitment plan. If budget constraints exist, oth.r sources of funding would be sought. Thls plan w111 include, but not lh.ited to: (a> expansion of advertisements in newspapers with high circuhtion in the IIlnority cOlllllunlty and NAACP will solicit donat.d media coverage of police progrllls, where pOSSible; (b) utl1 ize NAACP members and other minority cOlllllllnity members, if possibl., and ISsign minority officers to lIake presentations and perforll oth.r recruitment duties; (c) develop public s.rvic. announcelllents for both radio and cabl. access television and hav. .inority officers, the Chi.f and Mayor mak. recruitment announcements; (d) develop brochures to includ. 1!1ctures of .1nority personnel; (e) phce applications at educatlonal facilities, community centers an~ other locations in the .inority community; (f) the NAACP and the Police Department will jOintly support an annual law enforcement career day; (g) explore the feaSibility of a police ca'et progra. to attract youtfi into polic. work and enhance positiv. pottee-colllllunity relations; (h) pursue the establishMnt of tutorial support to prospecth. polic, appliunts in pre'plratlon for taking exallinations; and (i) attach study referenc. list to the application. -z- . - o o o - 1 - - - " o o . II. USTlNCl A. A writt.n proc.dur. w111 b. dev.loped for the oral exaaination proc.ss for the position of polic, offlc.r, .ntry l.v.l Law Enforcem.nt Trainee (LET). " B. Reduc. to writing the content of the exulnatlon questions that will be asked of candidates vying for the position of UT. . , C. Both the written Civil Service Law 'Enforcement Tralne. examination material and oral board questions will b. reviewed for cultural neutrality by experts such as recognized certifi.d psychologists. D. Oral board composition will includ. wo.n and minorities. Modification to the corporal/training officer prOllOtional process w111 be pursued to provide for outside raters to accolllllOdate the representation of wolllln and minorities if necessary. ' E. The Chief of Polic. w111 aSSign members to the oral board who, in his judgellllnt, indicate they will be impartial as to race and ethnic origin and w111 support the Affinaative Action policies of the City and of this Agreement. PROMOTIONS A. The Police Department will make availabl. to all personnel seeking promotion, prolllOtional preparatory .at.rial and training information on how to be successful in achieving promotion. The NAACP will initially prOVide a fonut to assist in developing care.r flans and career develop.ent support to enhance promotiona opportuniti.s. The Department will alke every .ffort to achieve minority representation in promotional ranks equal to the minority ratio in the community. Th. NAACP, the Police D.partment staff, and the City's Affirmativ. Action Officer will ...t with the Civil Service Exaainer to discuss promotional processes that .ight i.prove the opportunities for minority advancement. III. B. C. D. .~ IV. TRAININt A. The NAACP and the Police Department shall develor a mandatory Cultural Awareness Training prograa for po ic. personnel. -3- .. . o o o ..- ". v. VI. VII. - c o . ASSrGNHf:NlS A. Assignments will be based on .ost effective utilization of the skl1ls and talents of p.rsonnel and not governed sol.ly by senorlty or date of application. CITIZEN COMPL~INT PROCES~ A. The Departllltnt reaffinu its Co.ttment to hlntaln an open and honest process for handling citizen complaints. Develop a pamphlet explalnlnt the citizen cOlplaint process. Language explaining he disposition a clttzen can expect when tbe investigation has been completed will be included. These pamphlets and citizen complaint fonu can be made available to the pUblic at cOlllllunltl service offices, etc. The U.S. Justice Dep'artllllnt, COIIIIUnity Relations Service will provide examples used by other Police Departments. After extensive dialogue on various I!rOllosals to involve citizens in the management process of citizen cOllplaints against police officers fr~ the initial filing of a complaint through an evaluation of the Police Department's disciplinary decisions, the parties agreed to further stUdy civilian oversight/police review approaches designed to enhance the level of citizen confidence in the Pollee Department. The review of other cities' approaches will be conducted in conjunction with the current review of the role and responsibflities of the Police CODlllission with respect to the handling of citizen c~laints. Recommendations will then be submitted to the Mayor and City Council. USE OF FORCE AND RACIAL SLURS A. The Police Chief/Administration will continue to communicate and diligently enforce the Department's Use of force Policy and reiterate the Departlllent's policy that racial slurs will not be tolerated and appropriate disciplinary action will be taken if violations occur. The Police Dellartment agrees to pursue the establ ishlllent of a 'o11ce Shooting Review Board composed of po11c. cOlllland staff with lIinority citizen participation after further exploring the legal ramifications to see if it is poSsible to do so. Additional mediation w111 occur belween the po11ce del!artllltnt and the NAACP related to this issue iDllltdiately after ratification of this agreement. B. C. B. -4- ~ ",. o. o o o VIII. POLICE/CITIZEN INTERACTION A. Poltc. Department and NAACP wtll Jotntly sponsor events g.ared toward pol tel offtcers and .tnority communtty parttctpatton. Th. Pol tel Department wtll educate thl communtty on Department polictes and procedures when dealing wtth the pUblic. The Police Department and NAACP will jointly develop programs to educate the public regarding appropriate behavior as well as thlir rights and res~onstbiltties when confronted by an officer of the Pol tce Department. This 1nforllltlon should receive wtdest dtsse.lnation - news articles, videos for community groups, .tc. A representative of the Polic. Department w111 attend various events in the lIinority communities as often as possible. When an issue of controversy develops of concern to the NAACP and the Pol ice Dejlartment, one w111 contact the other as soon as practical. The NAACP agrees to ascertain 1nfonnat ion about the community's concerns. Th. Polic. Department wtll provtde a copy of all news releases to the NAACP stmultaneously w1th release to the press. The NAACP will make every effort to discuss communtty concerns with the Police Departllltnt before taktng a publ tc position. When the NAACP is in a posttion to support ttie Police Department or its actions, tt will make this support known to the community. . . . - IX. .' o o B. C. D. E. ~ A. A conniltee w111 be establ1shed composed of representatives from the NAACP, San Bernardino Branch, the Chief of Poltce and staff, and the Mayor and staff to meet at least quarterly to review the implementation and progress with respect to this agreement. NAACP, S4e Bernardi ranch -S 'J"iI .. """f.J ' . .--: .. 1t. - / ~/' 1J1d~' t.' ~.unJ rd Melllber ~-:1;{' /".c.. ~ '1 ' Sen or eg onal Hldta or Community Relations Senic u.s. Department of Justice OCft6t.. ;1; /./," '/ -5- J Witnessed by: