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200 S. Anaheim Blvd. Suite #733 Anaheim, CA 92805 Tel: (714) 765-5162 Fax: (714) 765-5164 www.anaheim.net COUNCIL AGENDA REPORT City of Anaheim OFFICE OF THE CITY MANAGER DATE: FEBRUARY 18, 2014 FROM: OFFICE OF THE CITY MANAGER SUBJECT: PUBLIC SAFETY BOARD ATTACHMENT YES ITEM # 06 This item is for informational purposes only. BACKGROUND: In September 2012, Anaheim staff was requested to research police citizen review board models. As a result of that request, in January 2013, a staff report was presented to the City Council that provided background information and research to date on different models utilized by other communities. At the January 15, 2013 meeting, the City Council directed staff to continue to research models and return to City Council at a later date with an implementation plan. SUMMARY: The City of Anaheim already has a number of boards and commissions where the community participates in a variety of municipal services and functions including planning, library, community services, budget and technology, and public utilities. However, while public safety is the basis for nearly 2/3 of the general fund budget, and is among the most critical services the City of Anaheim provides, there is no comparable body with which to further community involvement and input. Therefore, based on a comprehensive review of different models, the City Manager is establishing a pilot Public Safety Board (PSB). The overarching purpose of the PSB will be to increase public input regarding fire and police services, as well as better understand and appropriately integrate the public’s performance expectations into the goals for those agencies. The PSB would work directly with the City Manager and participate in reviewing such items as fire and police budgets, staffing levels, service delivery mechanisms, police and fire policies and practices, and certain critical incidents, such as police officer involved shootings, in-custody deaths or use of force incidents. Specifically, the Anaheim pilot board will incorporate a blended approach involving community members, while also drawing upon the expertise of a professional and independent external auditor with extensive experience in the examination of public safety practices. This blended approach encompasses from other models in that community stakeholders are involved in the process of reviewing public safety issues, and also involves a professional investigatory auditor who will function in a more deliberate and proactive role in concert with the PSB. ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 2 of 7 Intended benefits of Anaheim’s combined PSB and external auditor approach include: • Increased transparency and community engagement in the delivery of public safety by including Anaheim residents to a greater extent than current practice • The PSB and the external auditor will both provide recommendations on a variety of public safety practices in order to promote accountability, improve transparency, and delivery of service • Further enhancement of community-oriented policing, which utilizes problem solving strategies through community engagement and collaborative exchange of ideas • The PSB will have access to an independent, external auditor who has extensive experience with public safety matters with other municipalities and agencies The pilot structure affords the flexibility to readily implement adjustments during the pilot period. At the conclusion of the pilot period, an assessment of this model will be conducted with recommendations developed regarding next steps. DISCUSSION: The purpose of the PSB pilot is to involve the community in determining what will ultimately work best for Anaheim and its residents; therefore, nothing should be considered as set in stone at this early juncture, but rather is a starting point. The following provides an overview of the initial roles and responsibilities for the PSB and the external auditor. Initial Role and Responsibilities of the Public Safety Board The Public Safety Board will be comprised of Anaheim community members working directly with the City Manager, Police Chief, and Fire Chief. The PSB will review both the Police Department and the Fire Department operations and practices to develop recommendations to enhance services. It will also be involved in reviewing critical incidents, such as officer involved shootings and use of force cases. Regarding the latter, the PSB will work with the external independent auditor who will respond to police incidents in real time, thereby enabling the PSB to receive timely information that is appropriate and relevant to their roles. The PSB will conduct meetings that can either be open or closed to the public, but will insure they provide an open public comment period at all meetings in order that the public have a consistent opportunity to share comments. The PSB will be provided information regarding fire and police policies during early stages of policy development and PSB recommendations will be provided directly to those operationally responsible for public safety. The PSB may also issue recommendations to the City Manager who will address them with the Chief of Police and Fire Chief and, as appropriate, the City Council. ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 3 of 7 The PSB, working in conjunction with the external auditor and the City Manager, shall prepare annual reports which may include information pertaining to: department and needs, number of complaints, response time and recommendations, and identification of standards by which the public measures the Police and Fire Departments. Again, these are only suggested responsibilities; the pilot PSB will discuss and define more specific deliverables. While the City Manager will make changes as necessary to help develop the role of the PSB to best suit Anaheim, there is no intention to disband the PSB without bringing that item to the City Council. The City Manager will appoint nine members and manage the initial pilot program. Members shall be appointed using a lottery system, with representatives to be drawn from the four neighborhood council areas in Anaheim. Other methods of independently establishing the membership will be evaluated as part of the pilot, including having members selected by a panel of active/retired judges. At a minimum, the selection criteria will include residency in the neighborhood area, ability to pass a background check (including criminal history), and willingness to sign confidentiality/non-disclosure agreements. As with the majority of Anaheim’s community boards, there will be no salaries or stipends provided to the members. Members will be subject to filing annual Statements of Economic Interest pursuant to provisions of the California Political Reform Act of 1974. The PSB will be established under the City Manager’s authority. This is intended to provide flexibility in order to make necessary modifications to improve the operations and effectiveness of the model, and/or adjust the membership or roles/responsibilities as needed. Furthermore, establishing the PSB under the City Manager helps ensure that the privacy protections that are required under the law are maintained. Role and Responsibility of the External Auditor The City of Anaheim currently contracts with a professional external auditor, the Office of Independent Review Group (OIR Group), which currently only provides historical audits of critical incidents. Under the pilot program, the scope of the external auditor will be expanded to allow for real time monitoring of critical incidents and investigations by utilizing professional external resources that can be called upon for matters such as officer involved shootings or use of force incidents. The external auditor is specifically designed to be an independent entity and will work under the City Manager’s Office to monitor ongoing administrative investigations such as those that are currently conducted by the Anaheim Police Department. The external auditor will also interface with the PSB and provide recommendations on practices, procedures, training, equipment, and potential reforms to assist public safety in areas that may need improvement. The OIR Group is led by Mr. Michael Gennaco who has more than 12 years of experience investigating police misconduct cases and he has reviewed over 500 officer involved shootings in Los Angeles County. Mr. Gennaco previously served in the Office of the United States Attorney as the Chief of the Civil Rights Section. In addition to Mr. Gennaco, the OIR Group is staffed by a team of attorneys with considerable experience in criminal law, civil rights, and auditing internal investigations to ensure they have been conducted thoroughly, objectively and fairly. The OIR Group has extensive experience ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 4 of 7 providing services to a number of public agencies throughout California, including the County of Orange, Los Angeles Sheriff’s Department, Pasadena Police Department, and other municipalities. Summary of Legal Considerations: Staff gave particular attention to researching other California-based models of citizen boards or commissions engaged in reviewing public safety operations. This is due to the fact that, in addition to reviewing budgets, staffing, and service delivery, the PSB will be expected to review critical incidents such as officer involved shootings and use of force incidents. This comparison was important as the laws governing public safety operations vary from state to state, and California laws dictate what the scope of authority is for such a body, as well as what limitations exist. The following section clarifies several legal aspects that must be considered when entertaining the role and authority that such a board might exercise. California Laws – Conducting Criminal Investigations The District Attorney's Office is the legal entity that performs/reviews criminal investigations of an officer involved shooting in Orange County and is responsible for assessing any criminal culpability under the California Penal Code. In Orange County, the District Attorney’s office conducts criminal investigations of officer-involved shootings. As part of that investigation, the District Attorney’s Office uses its peace officer powers to collect and process evidence, interview witnesses, and request and obtain search warrants. District Attorney investigators then present the results of their criminal investigation to the District Attorney’s office prosecutors for a determination regarding whether the shooting is a criminal violation of the California Penal Code. In cases of conflict or when the Attorney General finds an abuse of discretion in the criminal determination of the District Attorney, they may conduct the investigation and make the prosecution determination. In Orange County, only the District Attorney or Attorney General is entrusted with making such a determination of whether an officer- involved shooting violates the California Penal Code and initiating a criminal prosecution. The only time citizens can be legally involved in a criminal determination is as part of a jury panel or grand jury. Further, in California, conducting criminal investigations of officer-involved shootings typically requires peace officer powers the ability to seek and obtain evidence through legal process, the ability to detain and make arrests) that civilians do not possess. Therefore, it is important to understand that citizen-based boards do not and cannot conduct criminal investigations. Moreover, while it may appear that boards in certain other cities are themselves conducting investigations, our review and discussions indicate that these cities are actually using sworn police officers, independent auditors or investigators to conduct investigations. Nonetheless, there are clearly important roles where citizen- based boards can review and recommend changes to associated administrative practices or policies, as opposed to being directly involved in the criminal investigation. Finally, the disciplinary/grievance processes that affect personnel actions involving represented employees are set forth in the contracts between the respective employee groups and the City. Federal and state law prohibits the City from unilaterally changing the terms and conditions of employment set forth in these contracts. ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 5 of 7 Like a number of other agencies, the Anaheim Police Department (APD) utilizes both internal and external resources to investigate police incidents resulting in great bodily injury, lethal use of force, in- custody deaths, and officer involved shootings. APD does conduct their own administrative (not criminal) investigations to determine whether an officer’s actions were in accordance with department policy, and to identify and address any weaknesses, failures, or shortcomings that could be eliminated or minimized through improvements in training, equipment, tactics, or policy. However, APD is also somewhat unique in that it has engaged an auditor in recent years to examine select cases and provide a review using skilled resources who are independent of the agency. There are no laws or legal barriers that prevent using such resources to complement an agency’s administrative review process. The current proposed pilot program seeks to couple those external resources with a citizen based component. Bill of Rights and Confidentiality Laws The Peace Officer Bill of Rights (POBR) is a California law that became effective in 1977. There are provisions in the POBR which govern how administrative investigations are conducted and provide certain protections to peace officers during the course of the investigation of a complaint that alleges misconduct. POBR also places restrictions on how and when interviews of officers are conducted and timelines in which these investigations must be completed. The provisions of POBR take precedence over any rights or authority granted to a civilian based board that might be in conflict. We found this to be consistent in all the California models we reviewed. Further, privacy and confidentiality laws in California regarding peace officers’ personnel files and investigations of alleged misconduct and subsequent case decisions related to these laws significantly limit the information that can be made public and shared with community members. Under state law, police personnel files and discipline imposed on police officers is not public information and cannot be shared publicly. Although such records may be revealed in a court case in certain circumstances, the Penal Code both limits what information can be disclosed and requires that 1) a motion must be made for the records establishing good cause for their production, and 2) a judge must review the records in camera before anything can be revealed and must issue a protective order restricting the use of the information disclosed. Sometimes this proves frustrating to those who seek greater transparency and information regarding the outcome of a complaint. However, all employers of public safety personnel must abide by the laws of the state of California. The Firefighters Procedural Bill of Rights Act is a California Statute that went into effect in 2008. Similar to POBR, firefighters’ have certain due process protections on the job when subject to an alleged misconduct investigation. While the intent of the pilot PSB is to review fire budgets, fire service delivery mechanisms and practices, the Fire Chief is the responsible entity for reviewing alleged misconduct of a fire employee. Comparison of the Role and Authority of Various Public Safety/Review Boards Staff reviewed over 20 California agencies with review boards or auditors. We limited our review to California agencies since those are the laws under which we must operate. Of those California agencies, of which many have citizen involvement, we recognized the following: ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 6 of 7 Title/Description of Board or Agency The name or description of a group does not provide an accurate understanding of its role. Staff’s research determined that there are a variety of names, titles or descriptions used for groups whose role also involves examining alleged misconduct by police officers. The description of the body doesn’t necessarily provide an accurate picture or understanding of what they do. Although the description of some of these bodies implies they have investigative powers, which may lead the public to believe volunteer board members have the ability to investigate alleged police misconduct, staff has found that is not the case in California. Also, bodies in California that do actually have investigative powers utilize a professional, trained independent investigator and/or utilize Internal Affairs Officers to conduct their investigations. Subpoena Power While some bodies have been granted subpoena power, the practicality of this can be misleading. Although some cities have given these boards subpoena power on paper, if the person subpoenaed does not voluntarily comply, there is no practical means of enforcement. The board would have to petition a court to secure compliance, which is costly, time consuming, and likely to be ineffective. Investigative Powers Again, despite their title, we determined that civilian review boards are not authorized nor equipped to conduct criminal investigations in California. Furthermore, as previously noted, these bodies cannot determine criminal culpability. Unfettered Access Due to California laws, unfettered access to police personnel files and investigations is not provided to citizens. California confidentiality laws dictate the information that can be shared regarding police personnel files and investigations. Our research has shown unfettered access is provided to independent investigators or professional staff that review public safety investigations. Review Process The professional groups and review boards researched all provide a form of public safety review, assessing or monitoring completed internal investigations for fairness and completeness. Additionally, through the review process, boards may identify public safety procedures or training that may enhance public safety service. Ultimately, citizen based public safety boards can play a significant role in improving the quality of life in our community, as well as enhance the transparency of government processes. And, while boards may not conduct investigations, research also indicates that a majority of boards bring significant value to their role of reviewing public safety by developing recommendations to their governing authority, providing annual reports, and conducting community outreach. Therefore, based on our research of California-based Boards and Commissions, the Anaheim pilot Public Safety Board is constructed to meet the needs of our community, while following the structure and legal considerations of review boards in California. ---PAGE BREAK--- PUBLIC SAFETY BOARD FEBRUARY 18, 2014 Page 7 of 7 CONCLUSION: The City has embarked on extensive research in response to feedback from the community and the City Council. The level of research involved contacting other agencies, community members, and attending two National Association for Civilian Oversight of Law Enforcement (NACOLE) conferences. Virtually every community that utilizes some form of citizen review has adopted an approach that differs from other communities, even where the fundamental model or system is similar. This reinforces the importance of adopting a model that will ultimately be designed and structured to meet the needs of the Anaheim community and operate in a legally appropriate manner. The resulting model of a PSB and external auditor outlined is consistent with the City’s commitment to improve transparency, engage the community in meaningful review of our public safety services, and foster greater trust and confidence in the Anaheim Police and Fire Departments. Furthermore, this pilot program is intended to allow the City an opportunity and time to assess the efficacy of this model and make any necessary enhancements. The City Manager plans to open the application period for the PSB and work towards placing members by Summer 2014. During this time period, selection of members will occur, along with the commencement of PSB related training. IMPACT ON BUDGET: Sufficient funds to establish a pilot Public Safety Board are in the FY13/14 City Manager’s budget. Respectfully submitted, Marcie Edwards City Manager Attachment: 1. Comparison Chart