Subcommittee on Police Department Accountability and Oversight
Police Department Accountability and Oversight Draft Recommendations
Board or commission with between 7 and 13 members
Boards established in the Alameda City Charter currently have between five and seven members. We feel that a larger number of members is necessary in order to get representation from as many impacted communities as possible.
Core powers established by City Charter
A Police Oversight Board needs to be written into the City Charter. This will provide the longevity, strength, reliability and legally sound effectiveness the community needs. In places where such a board was not written into the charter, it was in short order made largely ineffective by political erosion of rights and powers. If we are to have accountability -- and the members of the subcommittee are in complete agreement that we need accountability -- it must be effective.
Accommodations for member participation
The Alameda City Charter specifically denies compensation to those serving on charter-established boards. This means that many people cannot participate in city boards because of the time commitment; if you are working multiple part-time jobs, you may not be able to afford to give up work to be able to regularly attend meetings and do the work required to prepare for those meetings, and especially the work required for participating in hearings about complaints. A board that pays members a stipend for their time will be a board that can have representation from all parts of the community, and without that representation, no accountability board will win the trust of all members of the community.
The board should have full-time support staff, including some administrative aides to help with the details of hearings, and at least one data analyst. In other cities, there have been positive results from having a staff data analyst who will determine what police activity data needs to be collected, and review that data to help guide policy, both on an ongoing basis and in response to complaints. We recommend that this person be attached to the accountability board to keep them free from conflict of interest with the police department while also allowing them to benefit from the guidance of all the viewpoints of the board.
Administrative aides will handle such things as receiving and properly documenting complaints; scheduling rooms for meetings and hearings; assembling information packets; receiving, labeling, and filing documents for evidence; scheduling witness testimony; submitting evidence requests.
Independent from the police department
Not co-located at police department
The board should be independent of the Police Department and should not share space with the Police Department. Independence is an important feature to prompt public trust and accessibility.
Strongly community driven
The board should be largely community-driven, aiming to meet the accountability needs of the community, including those who are rarely represented at the city governmental level.
Commitment by city manager
Just as the Taskforce has benefited from the support of the city manager, the board’s strength will be determined by the actions of the city manager in maintaining it and giving it power.
Free from political influence
In no way should the need to have strong community connections mean that the process of getting onto the board should be a political process. We recommend the board be appointed to avoid the need for campaigning and fundraising.
Residency requirement & Homeless persons invited
As with other city positions, the members of this board should be made up of people who reside in Alameda, both those with permanent homes, those who face housing insecurities and those without. Because the homeless population is significantly over-policed in many places, representation on the board would help the board have a broader perspective on the real lives of the community. The board should determine criteria for establishing whether a recently evicted or homeless person is a resident of Alameda, including last known permanent address and social/familial ties to the city.
- Member is not an employee of the city
- Member is not an employee of the police force
- Member is not a member of the police union
- Member is not a sworn officer
The point of an oversight board is to give citizens a voice in how they are policed. Therefore, we believe that appointed members should not currently be sworn officers or members of the Police Union. Those members should be chosen to represent members of a wide range of demographic groups in Alameda. There are many discussions still to be had about the details of who can serve on the board and what the demographic makeup of the board should be, but in order to preserve the impartiality of the board, it should be made up of members of the community, rather than law enforcement.
We recommend members of the board serve two-year terms, with a two-term limit. This will ensure that a wider range of voices are heard. We recommend against long terms or unlimited numbers of terms in order to give more voices a chance to be heard.
Removal from the board
The board should make provisions for removal of board members. There should be a review of membership on the board when a member’s circumstances change (such as being sworn in as a police officer, taking a job with the city, deciding to run for office, or moving out of Alameda). In addition, there should be a process for removing members of the board who do not or cannot fulfill the goals of the board, by a supermajority vote of ¾ of all other members. In order to prevent lengthy attempts at removal for political reasons, the board should establish a cooldown period between failed removal actions.
In order to keep board seats from remaining vacant and to prevent a lack of quorum from keeping the board from doing its work, vacancies should be filled promptly by the city manager.
Chair of the board
As in all other charter-established boards, the chair should be chosen by a vote of the board on the charter-designated date.
****Board alternates to ensure quorum (no details on this, let’s discuss)
The board should have a broad set of powers to investigate where appropriate.
Power to make policy recommendations
In response to complaints, the board should have the power to remove existing policy and recommend redefined policy so that the behavior in the complaint is not repeated. At its heart, this is about not just accountability for the individual officer or officers involved, but a commitment by the department to police better based on evidence.
Power to make recommendations even in unsustained complaints
At times, it may be discovered that while a complaint could not be sustained against an officer because the incident in question was in accordance with policies and procedures, the nature of the incident is such that the board wants to make a recommendation about the policies and procedures and make some changes in how the police department handles future incidents. An example of this might be around policy on handling hate crimes. While an officer’s actions may be in accordance with department current policy, it is very possible that policy may need revision.
Power to make recommendations in response to data analysis or changing social environment
We have also seen good reviews of using that data in an Early Warning System, where problematic patterns of police behavior can be spotted early and addressed proactively before there is a major incident. It is better to pay a lot of attention to small problems early than to try to address a big problem later. Alameda does not currently use such software with civilian participation, but it is being used to success in neighboring jurisdictions. This would be a valuable way to catch weaknesses in training or understanding of the role of police before they turn into major incidents.
Power to receive complaints against the police
In order to remove barriers to accountability the board should be given the power to receive complaints directly. Ideally, complaints directed to the police should automatically be sent to the board without being reviewed by the police first.
Power to receive complaints against non-sworn personnel of the police department
Not all members of the police department are sworn officers, but the public perception is that they are all “the police.” So the board should be empowered to receive and handle complaints against all employees of the police department.
Where the complaint is about an agency outside of the Alameda Police Department (Alameda County Sheriff's office, East Bay Regional Park Police, etc.), the board should make a referral policy, and also a follow-up policy to confirm that complaints to those agencies are being handled properly. There cannot be accountability for agencies outside jurisdiction, but when official boards follow up on complaints they tend to be given more careful consideration.
Power to advise on type of discipline
The board should have the power to advise the police department on appropriate discipline for offenses against which they find that there was improper behavior. In addition, the board should establish a policy for how subsequent complaints against the same personnel will be handled, in particular how they will be handled if the advised discipline was not carried out.
Power to recommend dismissal/reassignment
Current laws and union contracts set limits on disciplinary actions. This should not stop the board from making the recommendation that such action be taken, including recommending, where relevant, that the subject be ineligible for re-hire within the department.
Authority to investigate complaints
In order to provide a fair hearing, the board should have the authority to investigate complaints, and additional powers that will enable that investigation to be thorough and fair.
Ability to monitor police internal investigation
Where a parallel Internal Affairs investigation is being carried out, the board should have the responsibility to monitor that investigation and its findings in order to ensure that it is being conducted fairly, and evidence both in favor of and against the officer involved is being reviewed.
Power to review internal affairs file
The Internal Affairs file may contain information not specifically requested by the board which sheds light on the incident in a complaint. The board should have the right to review that file, though not to make it public.
Power to re-open closed investigations
When the board comes into existence, there will be a history of complaints and investigations made about those complaints. The board should have a limited power to reopen some investigations and pursue resolution and justice as necessary.
Mandating complaints about the police filed with any department be forward to the Board
In cities where there is no requirement that complaints about the police be forwarded to their accountability board, such complaints get buried and hidden from oversight. This does not serve justice.
Explore scope of subpoena power with advice from the city attorney
In order to properly conduct an investigation, the board may need to obtain documents such as security camera footage from private businesses or residences, camera phone video from individuals, or other evidence. The ability to subpoena those documents will substantially improve the power of the board to hold a fair hearing. Further advice from the city attorney’s office is recommended here.
Access to police body camera or vehicle camera footage
The board should be given access to unedited body camera and vehicle camera footage of incidents as a routine part of the investigation into incidents. The board should consider these videos confidential material, but also should have full access.
Power to compel police attendance at hearings and establish penalties for officers failure to cooperate or attend hearings
In cities where participation in hearings by the oversight board is optional, we see a pattern of law enforcement choosing never to participate, thus cutting off the ability of the board to make meaningful change.
Power to adopt its own rules for its own operating procedures
All current charter-established boards have the right to operate under clarifying rules and regulations.
Ability to recommend trainings and training memos
The board should have the ability to recommend either specific training or suggest subject areas for ongoing training for the department.
Systems of accountability for management staff
While officers on the streets are more easily identified by the public when they overstep authority or worse, a system which does not see these problems as systematic will fail. Management staff should also be accountable for their actions and to a degree the actions of those they supervise.
The board should establish a clear process for filing a complaint, including establishing who can file a complaint, who they can file a complaint against, whether complaints can be dismissed, making special accommodations for complaints in litigation or where criminal charges are being pressed. Standards for when an investigation starts, how long the investigation may take, and how soon a hearing should be scheduled should be established. Information on this process in plain, easy to understand language should be published.
Establish who can file a complaint
The board should establish who can file a complaint, including making allowances for complaints that may at least initially be anonymous. They should establish protections for complainants and witnesses, including whistleblower protections for officers or employees of the police department who make complaints about others, and anti-retaliation protections for all. Because the existence of criminal charges pending may affect the ability of a person to make a complaint, there should be special provisions for such a complaint allowing the investigation and hearing to be conducted after criminal proceedings are complete.
Special Provision for Complaints in litigation
In many cities, oversight boards are ignored in favor of civil litigation. We find this process, while helping one person find some justice, does not meet the desire we have for this board to act proactively to address future injustices. Therefore we recommend that the board make special provisions for complaints in litigation, and encourage complainants to both continue with their civil suit while also making a complaint to the board so that investigation can be done and changes can be made to police policy. We hope that moving forward, more complaints can be handled at the board level without needing to put complainants and the city through a lengthy civil lawsuit procedure. This can only happen when all members of the community feel that they will get justice and fair treatment through the board.
Justice delayed is justice denied, so we recommend the general requirement that an investigation into the matters of the complaint be substantially complete within 90 days of commencement. But also because some cases are more complex and require more work, we make the provision that the board may vote to extend the deadline for completion.
Hearings should be held promptly. We recommend that a hearing be scheduled within 14 days of the completion of the investigation. Provisions should be clearly established for postponement requests.
In order to maintain not only fairness but a very strict appearance of fairness, the board should set a recusal policy that errs on the side of removing those with the possibility of a conflict of interest from a position to judge. In addition to self-recusal, the policy should allow the complainant to request the recusal of a member of the board, providing reasons for that recusal.
Board Acquisition of Evidence
Board operating procedures should:
- Address rules of evidence
- Address right to cross examine
- Provision for continuances
- Require witness testimony to be under oath
- Set a standard for the burden of proof
- Provide for designating documents as public or confidential
Written findings required
Findings from the investigation should be provided in writing. Findings in writing can be checked for factual accuracy, they can be given in identical form to both the complainant and the defensive party(ies), and they can be referred back to by all parties.
- Right to have an attorney
- Right to have a non-attorney advocate
- Right to request mental health support at hearing/investigation
- Right to accessible access to hearing room and evidentiary materials
- Interpretation provided when needed at hearings
Rules for Obtaining Police Evidence
The board should have broad powers to get evidence from the police department. - This includes clear, fast access to complete video evidence, penalties for police withholding of evidence, and provisions for interviewing officers. The policy of the board should reflect the importance of this evidence being turned over, and penalties for failing to turn it over
Justice for All
In order to make a more just society, the board should provide for models of investigation and hearing that are not modeled directly from criminal or civil legal proceedings. Where possible the focus should be on restorative justice and mediation, finding a way to hear community voices and make positive change in policing, rather than models of punishment and uneven power. The board should review the city’s Sanctuary City policy to determine how best to support immigrants’ ability to come forward regardless of the status of their documentation.
The board should create a strong, broad non-discrimination policy including race, nationality, religion, veteran status, sexual orientation, gender identity, HIV status, economic status, or housing status.
Above all else, the board should promote transparency in the process and in the culture of the board. Materials should be in plain language rather than legalese, and should be easily accessible.
One of the responsibilities of the board should be educating the public on their rights and the complaints process, and protecting the right to make complaints, including offering protections against retaliation and assistance with any disabilities or language barriers in filing a complaint, and whistleblower protections.
Board materials must be available in multiple languages, including both languages spoken by residents of Alameda and languages spoken by those who work, visit, or worship here.
Materials should include information on how to file a complaint and what the complaints process will be like, know-your-rights information in general, and know-your-rights information for youth.
The board should make a plan for outreach to the most-affected communities, such as Black residents and the homeless.
Reshaping the police
The goal of the board is not just accountability, but a re-shaping of the police department to meet the policing needs of the community. To that end, the board should have an active role in hiring for the department at all levels. That includes participation in oral boards/hiring for officers, and input into the hiring process for the police chief. This can build bridges of cooperation between the community and the department.
The board should, as part of its regular work, perform an annual review of the police department’s Policy Manual and Procedures and determine which policies and procedures need revision of removal/replacement.
The board should be accountable to the public, as much as it holds the police accountable. They should produce an annual report to the public on board work, including an evaluation of the board’s effectiveness and follow-up surveying on participant experience. They should be active participants in NACOLE (National Association for Civilian Oversight of Law Enforcement).
Please take the community survey here to share your feedback on the subcommittee recommendations. A report of the preliminary recommendations from all five Subcommittees can be downloaded here(PDF, 765KB).