HomeMy WebLinkAbout1997-02-13 TranscriptionFebruary 13, 1997 Council Work Session page 1
February 13, 1997
Council Work Session
9:30 AM
Council: Nov, Baker, Kubby, Norton, Thomberry, Vanderhoef, Lehman (10:15 PM).
Staff': Atkins, Helling, Woito, Karr, Winklehake, Dilkes, Holecek.
Tapes: 97-31, all; 97-32, all.
Police Policies and Procedures 9%31 S1
Nov/Steve, do you want to start with a little update here?
Atkins/Yes. Give me a moment to get settled here. I have a number of Rems I would like
to bring you up to date many of which are a follow up to the Saturday, February 1
meeting. First of all you asked that we go back to the records and do the '95 and
the '94 calls for service. That work is underway. It does require hand sorting and if
I recollect, '94 is on microfiche. We indicated we would like to get it done in 30
days. We will update you in two weeks. It is a lot of work. So I wanted to let you
know it is underway. We will give you a definite schedule shortly.
Kubby/And Steve, it is not just number of times where weapons were reported to be
drawn but who and age and training.
Atkins/Let me move onto the next item with respect to that. We have prepared and will
be getting out to you very shortly. By shortly, in the next couple of days. We did
the '96 based upon the terms that you just- And we will do the same thing for '94
and '95. But that is going to come out as a separate report. That one is, for all
practical purposes, finished and we will get that out to you. We did receive from
the Johnson County Sheriffa copy of the Use of Force Policy, substantially the
same. I will get a copy out. I will just put all the together in a packet if that is
okay. I will send that out to you. I think we recall, so we prepared for you a profile
of those officers that are field training officers. I think that was asked. We did the
document anyway. That is also being prepared for you. The claims request, I think
it was Ernie asked for other cries, that is going to take some time. We just simply
don't know how long that will take. It is just to kind of let you know that we have
made the request, there is some confidentiality issues and so forth. Just to let you
know that that is being prepared. I really can't give you a schedule on that. The
Chief has also prepared update memos on the watch commanders and how they
undertake complaint review. That will be coming out to you shortly. When I say
shortly, again, in the next couple of days. Two items that I think are important to
you. I spoke this morning with Pat White. Pat was unable to prepare a letter
indicating where he was with respect to the release of the DCI Report. However,
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he said I can verbally report this to you. The individual that he works with in the
Attorney General's Office is Jeff Farrell and he represents the DCI. The request for
this information and anything associated with it evidently must receive his blessing.
Pat indicated to me, again in a telephone conversation this morning, that Mr.
Farrell will look at the Shaw report. He will consider a response tailored to this
case because their current policy is no release of information and he indicated it
may take about three weeks before we get a report back or he gets a report back
from the Attorney General. And finally, privately we showed the council members
photographs from the DCI Report. Pat indicated to me today that those can be
released and be made available for public review and we will figure out some way
to do that. And that is all I got.
Baker/Steve, did you say that this Jeff Farrell will consider the release of an amended or is
going to release an amended?
Atkins/Will consider. Their policy, Larry, remains is that it would not be released.
Baker/So Pat has made that request of him?
Atkins/Pat has asked Jeffrey Farrell to review these circumstances and see what he would
release. Whether it is the complete report or not, I just simply don't know. I am
just telling you that it is being reviewed now by someone in the Attorney General's
Office.
Baker/Okay. The council had talked previously about council formally requesting that and
we haven't done it as a council.
Arkins/You have not. I mentioned to Pat that Freedom of Information request is at least
on your table and he said okay. That was it.
Baker/So we could go ahead and do that regardless.
Atkins/If you choose, you can do whatever you want. I just wanted to alert him that you
were thinking about that.
Baker/(Can't hear) up front.
Kubby/Because it could be a parallel process with what Pat is doing kind of informally
with the Attorney General's Office and that we could formally may have some
influence on what they decide.
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Atkins/I am assuming that as you move-
Baker/(Can't hear) that the council officially request that?
Norton/I would like to.
Kubby/Yes.
Vanderhoef/That is fine.
Kubby/So Linda, that is DCI's policy. Is there any state or federal law that allows them
that kind of discretion at~er a case is closed?
Woito/
There is. If you will recall, the cover memo for the Internal Affairs report that I
released in October cited the case law that indicated that although by statute, state
statute, that DCI Report is confidential. There is case law that indicates where
there is an allegation of misconduct, the court or the custodian of the record,
which would be the DCI, could attempt to redact or edit those portions which they
wanted to keep confidential, for example, maybe the name of a person who really
restricted confidentiality and they would take their name out of it. But where there
is an allegation of police misconduct, that confidentiality can be waived.
Kubby/So even with our Freedom of Information Act request, those things would still be
removed? That if someone made a statement with the trust of confidentiality, that
that information can still be removed?
Woito/
That-The courts indicate that, yes, and that is why I did a minimal amount of
retraction prior to the release of the Internal Affairs. There are two cases and they
are cited in that memo and I didn't bring that memo with me. But, it is Iowa case
law. And that same discretion is available to the DCI as was available to me.
Nov/Linda-
Woito/R. $. has it right there.
Nov/Under that it appears that the DCI can say because of the current case law, we have
released all we will release. They can deny any further release.
Woito/They have released very little except through Pat White. I mean they haven't
released the report.
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Nov/I understand that. I am just saying they may have the right to refuse, may have the
right to say this is all.
Woito/They may. And we could- That could be challenged in a court of law.
Nov/Thank you.
Atkins/Can I ask, Linda, if a governmental body such as a city council makes a Freedom
of Information request, that information is then given to the city council as a body.
Is it then automatically public?
Woito/I don't know.
Atkins/Okay. I am saying it is unusual-
Woito/They might release it under certain conditions.
Atkins/A governmental body making a request of another governmental body seems to be
some kind of unusual circumstances and you have certain confidentiality
requirements. Can you see what I am saying?
Woito/I know but the whole premise of the case law that I cited in our Internal Affairs
review-release would waive it for all purposes because Chapter 22 is a release of
information to the public. And we would be simply requesting it as a member of
the public.
Arkins/Okay.
Woito/The fact that you are a political body means that you may have more political clout
to assert and get what you want. But legally it is not going to make any difference.
Atkins/My concern is that you request it, it is given to you. Oh by the way, you are still
bound to the confidentiality of a governmental body.
Woito/No. If they release it, they- I would think they would release it under case law to
the public.
Arkins/Okay.
Kubby/And that is the understanding.
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Atkins/I assume that is what you all are saying.
Vanderhoef/Could they do it the other way?
Woito/Release it as confidential information?
Vanderhoef/To a government body and still putting a cap of confidentiality on it?
Woito/I suppose that might be a way to split the baby.
Norton/Does it enhance our chances of getting it if we ask for it to be private as distinct
from public?
Woito/Oh, I wouldn't do that ifI were you. I don't think that is-
Atkins/My point is that you have been criticized for not taking such action and then if you
do take such action and are given the information and can't do anything with it,
you are still not any further along.
Kubby/It might be- I mean, I would still want to have access to it even under those
conditions but my intent of supporting us doing this and I thought it was clear that
it would be public information.
Nov/This is what I understood. We were asking for it as public folks who wanted it to be
released.
Woito/Right. I mean arguably the DCI could release it to another law enforcement agency
such as the Police Department but then R. J. would be in the same pickle in terms
of whether he had discretion to release it and you have just gone in a circle.
Thornberry/Haven't they released it to the FBI for their investigation?
Woito/I don't know. I am sure they have made it available to the FBI.
Thornberry/That is another governmental body.
Woito/And that is a criminal governmental body.
Kubby/And people would agree with you with that.
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Woito/I mean it is a federal authority capable of doing criminal investigations and making
recommendations on criminal activity.
Nov/And they may also say while there is still this criminal investigation pending, we
won't release any more.
Woito/They could. They could wait. They could say we will wait and ai~er that we will
reconsider it. And that may well be one of the scenarios that we see.
Baker/A quick follow up. Staff, you gave us a list of information that is forthcoming,
sometime in the past there was a request made to provide not just the experience
of the training oi~icer but a complete break down of the department.
Atkins/Oh, yes.
Baker/Age and experience of every- sort of get a profile of the entire department. Is that
coming?
Arkins/It is on my list. I just simply didn't put a check mark next to it. Yes, we do have
that also.
Baker/Okay.
Kubby/Isn't that something the accreditation process just looks at to get an understanding
of the department?
Atkins/We prepared that a little while ago and yes, I will make sure that goes, too.
Baker/So, we don't need names, just age, number of years on the force.
Arkins/Yeah, we did that, yes. ! am sorry, I just missed that on my list.
Baker/And that is coming?
Arkins/Yes.
Baker/Good, okay.
Nov/Also rank. Not just number of years but position in the hierarchy.
Woito/So you want it without names?
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Atkins/We did not do that.
Woito/Do you want age?
Nov/The captains, the years of experience-
Woito/Age and gender.
Atkins/We have age. I don't think we did gender. We did years of experience. We did not
do it by rank. I am assuming we can add those easily enough. Okay. So the
positions, adding gender and rank. All fight, we will have to redo that and get that
to you. Okay.
Nov/Okay, any other comments to follow up on Steve's comments. We are going to start
with Dee Norton on individual council members questions. Dee, are you ready?
No~o~ Yes.
Nov/Okay.
1. Norton/Them seems to be a lot of agreement that the policies regarding building
search, open doors that were applied in this particular case are similar to those in
many other communities across the state and perhaps further. It also seems to be
agreed that those policies were largely derived from the program at the Iowa Law
Enforcement Academy (ILEA) and reflect the training given there. Am I okay so
far?
Woito/Yes.
Norton/Now, we do know about the policies. We do not know the detailed practices in
other communities, that is how they would in fact dealt with exactly a similar
situation. We obviously don't know that for sure. What concerns me as I look at
the ILEA program or training with respect to crimes in progress, this may have not
been reported that way but it seems to have been dealt to some extent with in that
way. And more specifically with respect to building search I want to read a few
points from there and then ask concluding questions. It says, "Extreme caution
should be used in approaching and deploying at the scene." Just to highlight.
"Robbery calls count for 21% of the annual police death toll. The officer should
not rush in haphazardly but should analyze the scene and wait for assistance. The
basic rule of robbery is . Do not enter the location initially. There are too
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many disadvantages. Who is the defender? How many are there? If you can't
verify, the officer may need to approach the building and if possible, look inside.
This can be extremely dangerous. It should be a last resort. Any other way of
verification is much better. Entering the area risks a shoot-out with a danger to
bystanders. It is difficult to distinguish between suspects and bystanders. Use
caution." There is more under Building Searches. "It is not always easy to
determine why the building is open. It is dangerous to make assumptions. Always
check a building like it is occupied. If there is any other reasonable option, do not
go it, especially if you know someone is inside. Verbal challenge." It doesn't say
anything other than just the word. "There are many reasons for doors to be open.
One of the most common is owners forgot to lock up." Now, just given that
sample of guidelines, what I am going to try to ask is this. Do you think that our
applications of those policies, our implementation, if you wish, of those policies,
right, on the occasion, was wise and appropriate and in line with these policies?
Was it a wise application?
Winklehake/I think you are reading two different things as well.
Norton/Part of it is in there from Crimes In Progress and part of it is from Building
Searches. But they all have that same tenor.
Winklehake/Part of what you were reading was from Robbery, right?
Norton/This is a- well, part of it was under Robbery Calls, Crimes in Progress and part of
it was under Building Searches. But they all seem to me to have the same general-
Winklehake/Robbery is quite different though than the other ones.
Norton/Well, was this call- was this being treated that way to some extent. The officers
seem to say so.
Winklehake/When you go on a bank alarm, one of the things you don't want to do is go
it.
Norton/Okay.
Winklehake/Okay. I mean that is the last thing you are going to do because you have
people inside, hostage situation. When you are doing a building search or going to
check for crime in progress, a burglary. Again, you will have- The officers will
respond to the location and evaluate what they are seeing, what is going on and
then make some decisions whether or not to proceed and what the next step is
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going to be. One of the things you talked about-verbalization. There are two
different thoughts on verbalization and again, it is going to be the individual who
needs to make that decision based on what they have in front of them at that time
and their perception.
Norton/I still ask the question. Do you think, given those guidelines and if you want to
limit it to just the ones I read under building searches. Do you think it was a wise
and appropriate application of those principles in the present case?
Winklehake/I believe the officer used some of the principles that were there. Obviously it
could have been done better because somebody was killed.
Norton/All right, a follow up. Why not- What is the matter with- It emphasizes cover to
considerable extent here because you don't know what is happening. What is the
matter with a bull horn from a protected position and say were are concerned, let
us know? What is the matter with that?
Winklehake/That is an option. It is generally one that is not used.
Norton/It just strikes me as unbelievable that it is not used. Why do we have to move into
the verbal challenge if you take dogs in?
Winklehake/Because there you are sending the animal in and they will bite somebody.
Norton/I understand there. Here you are sending an officer in. It seems to me analogous.
You are sending an officer in with a gun e.g. a bite of considerable consequence.
Winklehake/Hopefully they are not going to shoot someone.
Norton/Okay. But it seems to me there that they use warning. It just seems inconsistent
not to use warning when some other form of checking out goes on. So I just- Well
I still- That is a deep concern to me about, you know, all the policies seem to me
fairly well articulated. Now I don't know how those-that training actually impinges
on people. I don't know to what extent it is checked on and I am not quite clear,
and I will come back to this later after my time is up, about how it is reflected in
the training that we get during field training. Do people get actual simulated or real
experiences in building searches following these principles?
Winklehake/The field training that is done is in real situations generally.
Norton/None of them are set up, in other words? They could be simulated, couldn't they?
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Winklehake/In field training, the process we use are real situations.
Norton/Well, I will come back.
Woito/But we're recommending that we do actual simulated training. My answer to your
question is slightly different. I think the application for the building search in this
case was not wise and not proper-not prudently used because of the result.
Norton/I have- I will be back. Thank you.
Nov/Karen.
2. Kubby/I have some questions about the internal report and in looking through it again,
I realize that there are a couple- I don't know how helpful or not these things
would be but wonder why they are not in there and one of them, there is not
sketch of the crime scene. There is no- I mean, in a traffic report you kind of have
a sketch of what happened and there is no real outline of where, exactly where
people were. People talk about it in narrative but there is no sketch. Is that is
something that is typically left out of internal investigations?
Winklehake/Internal investigation, it could be. In this case it wasn't. We did not have
control of the crime scene once we gave it to the DCI. We did not go in and make
measurements or anything else that you would typically do for a crime scene
sketch. We did not do that. We secured the scene for the DCI so their crime lab
could do their work and I can't tell you whether or not they did it, the sketch. I
have not seen the DCI report.
Kubby/It seems like- I don't know how helpful it would have been for the internal
investigators from the narratives. To ask people to say here is the building, where
were you such and such. It seems like a fundamental.piece that is missing. The
other question is, is it- that there is no report from Gillaspic himself. There is a
statement but there is- He was still on the force and he made no report and why is
that?
Winklehake/The night that this occurred, he was in no condition to make much a
statement at all and we had mental health officials with him at that time. After the
DCI took over the investigation, they handled all of the investigation, including
statements from Gillaspic and we did not go back other than through his attorney
and he had an attorney at that time and that statement to the DCI with Pat White.
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Kubby/Is it because he was on administrative leave and that people on administrative
leave don't do duties?
Winklehake/Oh, no. Administrative leave, you can ask questions and everything else. In
this case there was also an attorney involved in it immediately. If we are going to
ask questions, we are going to have to go through that attorney.
Kubby/I understand about emotional distress and not being expected to write the report.
But he was on leave for quite awhile and it seems that it would be important for
one of the main players here to make a report, even if it is after.
Winklehake/The report was made to the DCI, their investigation.
Kubby/Through an interview?
Winklehake/Yes.
Kubby/Yeah, I still don't- Just I don't find that answer satisfactory but I got the answer,
an answer.
3. Nov/I am going to pass on this one. No, I am not going to pass on this one. I still have
got questions on definitions. In one instance we are saying burglary and another
instance I heard Dee Norton say robbery. Can you give us the dictionary definition
of why those things are different?
Winklehake/A lot of people use them interchangeable. There are different penalties.
Woito/Criminal law.
Winklehake/If you want to-
Woito/It is criminal law and Dale can state it better than I can.
Nov/Tell me how we can do it.
Woito/Robbery is when you are in a building and you encounter someone who is
committing a theft. Burglary is someone enters a building with intent to steal.
Burglary or robbery is a far more heinous crime and ordinarily there is some threat
involved. This was not called in as a robbery.
Nov/All right.
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Woito/You explain it. You are the former cop.
Helling/The main distinction is that robbery is from a person and burglary would be from
the building.
Norton/Premises.
Nov/Okay. So if a robbery came in he would ask a person inside that building to hand
over the money or whatever. If a burglar came in, we assume the building did not
have any person in there other than the burglar.
Winklehake/If an individual is in a building when the burglar arrives, there is an enhanced
penalty for that.
Atkins/Burglary can accelerate to robbery based on those circumstances.
Winklehake/Your classic example would be a bank robbery, where someone goes in a
bank and robs the bank. A burglary is breaking into your home or business.
Nov/Okay. But if someone broke into the business while I am working there, it then
became a robbery?
Thornberry/If it is confrontational.
Winklehake/It could be either.
Nov/If it is confrontational. But ifI didn't know about it and I just continued working
somewhere, then it wasn't?
Woito/I think that sounds fair.
Nov/Thank you. Go ahead.
4. Thomberry/In the ILEA trainer on Building Searches, if there was an open door you
should consider the building occupied. And let me read one little paragraph,
"When asked to whether the officers should or should not identify themselves or
announce their entry," going back to Dee Norton's question." stated that
announcing or identifying themselves eliminates the element of surprise." In any
event, the option to announce or identify themselves is just one item on the
checklist found in the handbook and covered in the ILEA training and is ultimately
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left up the discretion of the officer based on the circumstances confronting the
officer at the time. I think that is an important consideration of the officer
investigating any burglary, robbery situation. In Karen's questions which were
pretty good, you stated, Karen, that anytime a gun is drawn it should be done
because the officer feels endangered and I have a question regarding that if you
could help me out with this. Anytime a gun is drawn, it should be done because the
officer feels in danger. If there were a injured deer, which most of the weapons
drawn incidents come from, do you feel just because they have drawn their
weapon, there should be down time after dispatching this animal or is it just within
the confines of another person?
Kubby/I personally would say if you have to shoot an animal, that there is some
physiological changes that go on when you are taking a life, whether it is a human
life or a deer or a dog and that maybe the down time should be a different- I am
not a physiology- a doctor, I am not a psychologist to know if that is appropriate.
But in my mind it would he appropriate to have some amount down time after that
situation. I would find it and I think most people would find it somewhat
disturbing to have to do that.
Thomberry/Some people would and some people wouldn't and I believe that the people
that would be opposed to using a gun at any time or feel threatened by the use of a
gun probably wouldn't be police officers and I think that during- Larry.
Baker/
Well, I was going to say I would like to have an opportunity where we can ask
each other questions about our own feelings. I don't know how much time we can
spend cross examining each other. I would rather-
Kubby/Well, I mean this is an idea that I have had for one of the solutions, one of the
things we can do. Maybe we can talk about it more then. But-
Baker/I am not sure how fruitful that is going to be.
Kubby/Well, I feel fine about answering Dean's questions. If that is how he wants to use
his turn, that is up to the discretion of-
Baker/I don't feel fine about us cross examining each other. I would rather deal with
people in front of us. I do want to deal with us but at another format.
Nov/All right, is there any feelings from other people about this style of question?
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Lehman/Well, I think you are going to get some incidental comments of that kind. But by
and large it ought to be focused on the people in front of us and on the issues I
think. I don't have any-
Kubby/It could be at the discretion of the individual council member, how they choose to
use their turn.
Norton/No big problem.
Nov/We will try and focus on the facts.
Kubby/We should let Dean finish if he wasn't finished. I mean, if we are going to change
the rules, we should at least let him finish.
Nov/Are you finished?
Thornberry/Yes, I am.
Nov/If you have more to say, Dean-
Thornberry/No (can't hear).
5. Vanderhoef/In your memo, Linda, on page 18 where it is talking about the
"stonewalling position" and how that appears and that how defensible or not
defensible it is after an incident, some description which this certainly is and you
had stated in your opinion that the city took action and the Police Chief took
action to change the policy on the open door and because of the type of case that
we have here, that it is stated by Mr. Gillaspic that he flinched. I find this an
unusual kind of situation and we read in the rest of your literature that our open
door policy is compatible with the training from the state and with other police
departments. So are we to assess from this one case of the stated flinch, that our
policy and practice must forever be changed? In other words, do we have to
always announce or do something different because we have changed this now?
And I am not saying that we shouldn't have some new training ideas or practices
to happen. But I do have a concern for our officers that maybe in the way we have
written the new policy, are we protecting our own officers and the people around
us. Where I get into this is with the idea of securing and then trying to find an
owner or someone to respond and the length of time that this takes and where is
the line that we can change and move from what this new policy is saying to
incorporate it with what has been the regular practice. In other words, without a
warrant or without written or verbal consent.
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Woito/You have focused on only one affirmative step-
Vanderhoef/On this particular one, yes.
Woito/
That the city and the Police Chief took and I outlined several affirmative steps and
I did not specifically call out the PCRB which is pretty obvious. But I am not
saying that you have to live forever with this new open door policy. I think that is
one of the things that still needs to be discussed and if there are pros and cons of
the current policy, if you are going to use it, we may want to obtain written
consent and I am suggesting that we go to- If you have enough resources, you go
to the three business calls that VanWyck suggested and try and learn more
information. I am not saying that simply because we have taken one affirmative
step in terms of changing the open door policy, that you are forever locked into
that. I am not saying that at all. I pointed that case out to you simply to, as an
educational point, for you people as policy makers and learning constitutional law.
It is an important factor for you to know.
Vanderhoef/Yeah, and I find this line in here because we made the change.
Woito/It doesn't mean you are locked into it.
Vanderhoef/And if the policy that we changed to now, R. J., maybe you can help me out
with this a little bit on how the officers feel about this now because the policy has
changed and right now they have all of these steps that they must go through and
there is still times that personally I would want to be able to make an assessment of
the situation and the old policy might be more appropriate.
Woito/That is up to you as far as I am concerned.
Vanderhoef/Well, R. J.
Winklehake/At the present time with the policy we put in place, there are some downsides
to it. Is one obviously that if an owner is in the building and something happened
with you, we are not going to be able to make that contact for some time. That is
one downside. The other one is it is a little bit more time consuming because you
have to have somebody there and they are trying to reach somebody. You always
have the possibility that the information we have is outdated and that is the largest
that we had with trying to get names of people to call. That is almost outdated
from the time that you have it. Then I guess that is a decision that from your stand
point, from city council, is one that I guess I would look for guidance. Do we want
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do this kind of activity where we will not search a building unless there is a very
obvious break in such as the windows, the door is kicked in, coffee strewn about
the place. You see somebody. Obviously then the officer are going to take some
action. Until then, at the present time with the policy in place, they won't. They
will try to contact you or somebody that is in the management of that company to
come down before they enter the building.
Vanderhoef/So you are saying that they are going to have to have some powerful
evidence that will make them have an assessment that they must go in.
Winklehake/Under the policy, that is one thing that has to be there. Other wise they can
still contact the supervisors, the supervisor can come down and make a decision
about entry into a building.
Vanderhoef/So you are going to get a second opinion.
Winklehake/There is additional steps to go through before they would ever go in a
building.
Vanderhoef/Okay.
6. Baker/R. J., this is a question for you as a follow up to a statement made at the last
meeting. Whether intentionally or not, an answer given at the last meeting would
have led, I think, most people to believe that the Human Rights Commission
reviewed police policies and procedures and signed off on them. We now
understand that their perception of what they did is different than what might have
been what the public, council might have been led to believe was said. So can you
tell me what is your understanding of the role of the HRC prior to this and did they
not review the policies and procedures? If they didn't, that is one thing. But do
you think that is an appropriate role for them in the future?
Winklehake/The information that I had taken from was a group of policy statement that
are in our policy procedures manual and I ask them to review those. That is what
they reviewed. My expectation when I took that to them was to review that in light
of the HR Commission and the function that they perform because most of those
statements are things of how we deal with people, things we do. They did review
those and I did have those returned to me. When I said they reviewed it, that is
what I am talking about. That is what they reviewed. I understand from the letter
we had that in the letter it says they did not take any formal action. My
expectations were met when I got the information back from them along with
some recommendations that they had made. That was all that I expected and that
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what was done. And I certainly didn't make that statement to mislead anybody
because my expectations of having taken that, I thought it was a good thing for the
HR Commission to review that. They did. My expectations were met and that is
what I said and if that is misleading, I am certainly sorry about that. My
expectations were met when I received that back. I was not aware that they were
expecting to see a finished document after that. Their recommendations were, I
think, only three things and we have implemented them in certain stages.
Baker/Do you see a role for them in the future in reviewing policies and procedures?
Winklehake/For the same kind of statement, I don't have any problem with anybody
reviewing those, quite frankly.
Baker/I assume the PCRB would be in a position to review that on a continuous basis?
Winklehake/I would imagine.
Baker/All right, that is all I got for right now.
Nov/(Sneeze) My apologies, it came out so fast.
7. Norton/I have three questions that were in the set that were answered in the book but I
am not sure that I am still fairly clear. I want to hear a little more elaboration in the
answers that were given. #53, 54, & 55 if anybody wants to refer to the book. And
I will just read them all and then you can comment on other questions. How in the
world can it be that no voices were heard at the door despite the fact that a
conversation was going on as a matter of a few feet away? And apparently that
was true, Kelsay was there first and then again when he and Gillaspic later were on
the scene. It must have happened two times according to what I can see. Did
anybody actually look through the north window which according to Jay Shaw
gives you a view behind the door in question? And I have not understood yet
whether that was actually occluded at the time by some items inside the building or
not. I know some windows were but was that one? I have not heard yet whether or
not that was actually used and was there really genuine evidence of forced entry.
Now I understand pry marks but I think again Jay pointed out that the deadbolt
was back which hardly suggests a forced entry. Now can you respond to those
three questions somehow?
Winklehake/Yes. As far as hearing the voice, I have no idea. I was not there. The officer
said that when they listened to the door, they did not hear a voice. Beyond that, I
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can't give you an answer. I was not there. I don't know how come they didn't hear
anything.
Norton/It would have been a good question to ask Gillaspic the morning before he left for
Fairfield, wouldn't it at least? There is a question about why he wasn't interviewed
by the DCI before he lef~ town.
Winklehake/Oh, I don't know what the DCI asked. I know they did talk to him. I have
never seen that report.
Norton/Okay, well that is another issue we will get to.
Winklehake/I have never seen that report. So I can't tell you what they asked on that
morning. The window, I think you seen some photos-
Vanderhoef/Yes.
Winklehake/And you look at that east window, you are talking about the-
Norton/I am talking about the north.
Winklehake/The north window.
Norton/North. The window from the north I think is the one that is in question.
Winklehake/You look at the wall. When you see that wall by the door, there is an area
where the wall comes in from the door, protrudes into the building, then goes
across. Then I believe there is another small out cropping until it gets to the
window and then comes back to the window. If you look in the window, you will
see there is some son of an object, I guess it is a bend of some son. I don't know
exactly what that is but you can see it on the photo from the inside of the building
and there is also some equipment that was there. We don't know to any of degree
of certainly as to exactly where Eric Shaw was seated or if he was seated.
Norton/We know where the phone was.
Winklehake/We know where the phone was. It was somewhere dose by but we don't
know if that phone was extended or not because we cannot tell.
Kubby/It might be helpful to have the pictures here right now since they are public-
released to the public. That we could point to the window.
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Noaon/Okay, but what I am trying to get out is is it clear that every possible way of
looking into the building was indeed tried?
Winklehake/My understanding is that the officers had- Kelsay had looked in the north in
this area and he looked in here and when they came back both- I can't say both. I
believe Kelsay walked by and Gillaspic did as well over here. Do you want me to
bring this over there?
Kubby/Point to the noah window from the inside.
Winklehake/This is the noah window.
Kubby/Right but from the inside so you can see the blockage. And there is no date. We
know what the date is.
Norton/This is related to my earlier question about patience and exploring every
opportunity and that kind of thing and that is why I am-
Winklehake/What you are looking at here- Here is the door (can't hear).
Atkins/R. J., I don't think we are picking it up on tape. I think you will have to lean a
little closer.
Winklehake/What you are looking at is the door and the window and this is Gilbert is out
here. So this is the noah side. This is the noah side looking noah from inside the
building. Here is the door and what I am talking about right here from the door
frame to the edge of the door, I mean the wall. Now you look across here, you see
this comes out just slightly, it goes over to here. Now, when you see this wall,
what you are looking at, I believe, is this and this is not a good picture here. But
you can see there is an object here. That is this gray object on the inside. Now
when you have the wall comes out, you also have this piece of equipment, what it
is, I don't know and then a step ladder which is folded up against that wall. Which
the opening that you can see is here and depending on where the individuals here
with all of this equipment, this table was also- that is one of the items that was
moved.
Norton/Now there are no windows looking in this other plane, okay.
Winklehake/They are here. Now if you go-
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Norton/Which would give you a view parallel to the wall in which the door was open.
Winklehake/If you look in here, you will see this is the north or east wall. What you see
along the east wall are a number of vending machines that are blocking the
windows. If you look at the window, this appears to be a piece of plywood. I can't
tell you if it is plywood or the back of the vending machines.
Kubby/I don't know if you want to go through, if other council members want to see all
of that.
Vanderhoef/I have seen them.
Kubby/I know but with the explanation. And the people who are here to listen may want
to view those now since they are public documents.
Woito/Dee, in answer to your question, Kelsay looked in the north window, walked
around and looked in the east window, came back around and looked in the north
window again and when Gillaspic showed up, he looked in the north window.
Zacharias did not because he was off to the west and had walked back to the
police car.
Norton/Well, I would like to, while I am here, get one more quick one.
Woito/And I- This is speculation. But it is possible that during that time Butitta was
talking on the other end and Shaw was listening.
Norton/It is possible.
Woito/I mean that is a possibility. We don't know that. We will never know that.
Nov/All right, Dee had one more question here on signs of forced entry.
Norton/Well, I asked about that question. Can you comment on that? They saw the pry
marks but did they look at the deadbolt.
Woito/Kelsay stated, he stated that there were signs of old pry marks as well new pry
marks on the door jam and the strike plate.
Winklehake/Where is the deadbolt? It is not unusual to have the deadbolt dosed or open.
Norton/Unused in other words.
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Nov/Okay, moving on.
NortoW Can I ask one more or move on? Go ahead, I will take it. I have one other that I
would like to ask and that is this overtime question. How many hours-
Nov/Can we move on? That is really another question.
Norton/All right, that is a different one. I will take a turn next time.
Nov/Thank you.
8. Kubby/And I have a series of questions that relate to what Dee just asked that gets into
4th Amendment issues. I have a series of either five or six questions that all relate
to the answer given. Can I ask them all? I would like to be able to ask them all at
once and not have the answer be disjointed by time.
Nov/Go ahead.
Thornberry/You can have the mic.
CHANGE TAPE TO REEL 97-31 SIDE 2
Woito/Specifically there's U.S. Supreme Court case that says it applies to commercial
property and the more recent Iowa Supreme Court case implies that it applies to
property, personal property and realty.
Kubby/So my understanding is on the perception of officers at the scene at the time that
they suspected some criminal activity going on inside because of the marks on the
door and that's why they decided to enter to investigate. That they looked, they
didn't see anything. They heard, they didn't see anything. But they or didn't hear
anything, but they saw the pry marks and that's what instituted them taking a next
step, is those pry marks.
Woito/Not necessarily. It was a combination of both. The open door, security check
which is a slightly different animal under the 4th Amendment, and some evidence
of criminal activity. Possible criminal activity.
Winklehake/One of the activity things, also the number of burglaries that were there.
That's why they were out there because it was a large number of burglaries and
they're looking for burglaries.
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Kubby/So for example Kelsay earlier found a door open in another place, in a salon
across the street that was typically found to be open once in a while, so there was
no suspicion. There were no other signs. He didn't go in with this building check
there. He just closed the door again. Correct?
Winklehake/That was a building he was very familiar with.
Kubby/Right. So he goes on his surveillance and building check and finds a door that is
open that has lights on and that in his estimation has some old and some fresh pry
marks, and he's there because of the number of burglaries so what is it that makes
him decide to call back up and to enter and to the officers to go forward. Is it
because possible criminal activity? Would they go if it was just a building check
and they didn't suspect any criminal? Would they have done to that particular step
of entering with their guns drawn?
Winklehake/Go ahead.
Kubby/I mean do you go into if there's an open door and you don't there's any criminal
activity, why go in?
Winklehake/Okay. What they were doing at that time was still assessing what they were
dealing~ They felt there could a threat there. They were assessing what they were
doing and they pushing the door open to see what's there. The next step. Go
ahead.
Kubby/I mean from Pat White my remembrance of Pat White's press conference, he was
saying that they were following procedures as stated, well, I guess it's not stated.
In that the pry marks at the perception of the officers at the time but that was one
of the big things that made it seem logical to Pat White for them to go forward
with starting to enter the building. Why else would you enter that building? Under
what conditions would it be appropriate for officers to go into a building that has
an open door?
Winklehake/They see somebody injured. They see somebody in the building taking
property. In this case, they were opening the door to see just what they have there.
Kubby/Okay. So their suspicion that there could be criminal activity because of events
that had happened in the prior months with burglaries in that area. And because of
some physical evidence perceived by the officers at the time.
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Winklehake/As they understood it, yes. That would be correct.
Kubby/So, I guess I'm having a hard time understanding the possible criminal activity that
they were wanting to get more information about to see if that was true or not that
that makes the 4th Amendment kick in a different way. And that was there any
evidence on August 30th of those five exigent circumstances that allows an entry
without a search warrant or consent? That's a question for Linda.
Woito/The first- I have to preface my answer with what I believe this entry can be
characterized as both an emergency aid entry which requires a lower standard of
evidence than the exigent circumstances which requires probable cause.
Kubby/Please explain the first part of your comments. How is there any evidence that this
was an emergency entrance?
Woito/The emergency aid exception as outlined by Professor LaFave and as recognized in
some states, specifically as a building security check is an attempt to protect life
and property. And that's recognized by a three states. It was specifically rejected
by the 1 lth Circuit. There are no cases in Iowa on it. But the emergency aid
exception to protect life and property recognizes a building check where you have
nothing more than an open door.
Kubby/If there's only three states that have this, I understand you're saying there's no
case law on it in Iowa, but why does that allow us to act on it or have it be an
appropriate act when there are other discretionary options on how to deal with this
situation?
Woito/It has never been raised in Iowa even though the practice is long standing, because
the ordinary legal procedure where it is raised is where someone goes, an officer
goes in to do a security check where there's a door left open at night and it's not
supposed to be open. The officer knows that. They go in to try and find out who
the owner is. And in the meantime, they stumble upon contraband, illegal weapons,
and the person, the owner or the tenant is charged criminally. In that context, the
owner or tenant will move to suppress that evidence, exclude it as being illegal
under the 4th Amendment because the entry itself was illegal. Those are the
contexts where you get the cases. That has never presented itself in Iowa and I
suppose the answer is, until someone raises it in a court, answers it yea or nay,
Iowa law enforcement officers have consistently used the practice because certain
segment of society has demanded it.
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Kubby/So you're kind of saying that unless there's a test case, you can violate the 4th
Amendment?
Woito/No, I'm not saying that. I'm saying that there are, aside from these other three
cases, this Professor LaFave who is a recognized expert on the 4th Amendment,
has recognized the security building check for an open door since 1978. And the
American Bar Association standards in 1980 recognized it as a valid exception to
the 4th Amendment.
Kubby/But unless you have a specific case as you outlined that you've got your five
exigent circumstances plus-
Woito/This emergency aid doctrine. Only it doesn't mean that I as a lawyer am
comfortable with that, but legally, that's the situation.
Norton/Is there a reasonable officer aspect to that at all? I mean.
Woito/Yes.
Norton/Determining what that situation is.
Woito/
Probable cause you need evidence to believe criminal offense is being or has been
committed. In terms of the emergency aid doctrine, you only need to show that a
reasonable officer has reasonable grounds to believe that either property is need of
securing or a person is in need of protection.
Kubby/I'm not a huge stereotypical property rights person. This doesn't feel right to me.
Woito/It doesn't feel good to me either.
Kubby/And I know that in the past-
Woito/That's the result of my research.
Kubby/That you talked about tactics, changing some tactics if we want to recognize the
ability to go in because there's no case law in Iowa. But that really speaks to the
method, not to what we feel is a legal entry.
Woito/No, I still think if we're going to do building checks with an open door, I want a
written consent from that owner.
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Norton/Like a prior blanket.
Woito/That we don't have to face whether that entry was consensual or not so there isn't
any question.
Kubby/All right, but we, I guess that leads to a whole other way of how we deal with that
because I may feel the need to say yes you can go in but I guess I'd need to think
about how comfortable I'd feel about our policy being that you give a blanket
consent under any circumstances on the front end.
Nov/We're not discussing policy changes. We're asking questions. I understand how you
feel and I understand how she feels, but I'd like to pursue questioning and then
hopefully get to the point where we're going to actually implement policy changes.
Woito/In the case law from the states that do recognize it, have two elements: that they
see an open door and they. feel that the property needs protection, the second one
is they have no reason to believe that the owner would not consent to their entry.
That's the Alaska case on point.
Cubby/Okay.
Nov/Ernie, do you have a question for staff?
Lehman/Well, I apologize for being late, but I was defending council at a service club
meeting which I had made earlier and as you pointed out, I didn't check my
calendar.
Nov/And as I pointed out, he's not going to do that again.
Lehman/I hope you're fight, Mom.
9. Lehman/I guess I just have you know a couple of questions. There are clearly pry
marks on the door. Is that correct?
Winklehake/That's what I've been told.
Lehman/And this is in an area where we've had some burglaries in large numbers.
Winklehake/Yes.
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Lehman/Was it reasonable for our off~cers to assume that there might be something going
on unusual with an open door in this area?
Winklehake/I believe it was.
Lehman/Do you believe that officers acted in a reasonable fashion?
Winklehake/I believe it was reasonable to the time that gun went off.
Lehman/Thank you.
Baker/A good question, though.
Nov/Good question, but it's good aftersight.
Lehman / Oh, I am not saying it's right at all.
Nov/I'm not arguing with you. I'm just saying that part of our answers in all of these
cases are 20-20 vision after the fact and there's no way we can get around that.
Only two people who actually knew exactly what happened when and one of them
is not here to tell us.
Lehman / Naomi, my point is, there are going to be some changes in policy. There already
has been some, but I think we have to look at the policy that was in place at the
time.
Nov/Yes.
Lehman/And if it was reasonable and if they did act inappropriately, I need to know that.
There's no question in my mind that we change policy. I mean I think there are
policies that we have to change and some of those policy changes are probably
going to be, are probably going to be detrimental to the Police Department.
Nov/Okay. We can talk about policies later.
Lehman/I'm sorry.
Nov/Let me move on to a question.
Winklehake/Can I just add one thing?
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Nov/Certainly. Go ahead.
Winklehake/When I said it was appropriate what they had done, reasonable, it was
reasonable but could we have done things better? Yes.
10. Nov/I heard that Ames has enacted a new policy. I don't know how recent it is. But
they have asked a business owner, all business owners, to ring in to the police
department whenever there is somebody who is working there late at night. Just
call. Just let us know one of the employees is there. What so you think about that?
Winklehake/We've already given that out to "Walk of the Stars." That was one of the
handouts that we had at the table, the booth that we had. And I've also talked with
the Chamber of Commerce about having that put in Reflections as a reminder to
people about doing that.
Nov/Have you had anyone do it?
Winklehake/Call in?
Nov/Yes.
Winklehake/Yes we have, even before we put that out. I can't tell you that anyone called
in as a result of that, but I do know people who have called in prior to (can't hear).
11. Thornberry/Let's get an actual scenario that happened in Oklahoma City several years
ago. I'm in the restaurant business and a lot of the burglaries or robberies turn in to
nasty situations as you probably know. Looking through the windows of a
restaurant, you can see the dining area. You cannot see the kitchen area or the
office area, the cooler freezer or walk in areas. In Oklahoma City several years
ago, we had at the close of business several people walked in as they're taking
trash out the back door. Came in. Put all of the employees that were currently
there closing the business for the evening in the walk in cooler. Had the manager
open the safe. They then proceeded to put the manager in the cooler. Shot
everybody in the head and killed everybody. Went out the back door and they were
gone. Given that in my, and this can happen in any restaurant at any time, and it
happens a lot. I have hold up buttons here and there throughout the store and if the
wires are cut the alarm goes off, so it's either going to get pushed, an alarm is
going to get pushed or a wire going to get cut and the alarm is going to go off. It's
wired to the security system and then they call the Police Department as you
probably know. Given that this alarm is, say this incident happens, this scenario
happens in a restaurant locally. The alarm goes off'. The officers go to the scene
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where the alarm has gone off. They attempt to contact the contact person on the
card. There's no answer. Given the current policy in Iowa City, the new current
policy, what do you do?
Winklehake/I expect the officers would contact their supervisor. The supervisor would
come to the location and make a decision whether to go in to the building at that
point. Given the set of circumstances that it was just at closing, I would expect
that the supervisor would authorize the officer to go in.
Woito/Well if they saw mutilated bodies in there.
Thornberry/No. They an see nothing. You look through the windows and you see the
dining room. You can't see in the back. You can't see in the kitchen. You can't
see in the back. You can't see anything. Everything looks normal, all open doors
are closed and locked.
Baker/Closed and locked?
Thornberry/Yeah, the front doors are locked because he had just locked them. They are
talking the trash out the back. They come in the back door, whatever. They close
the backdoor, it is an automatic lock door.
Winklehake/It is automatically locked, it becomes a much harder decision.
Thomberry/Yes, it does.
Winklehake/I assumed that when we talked about it, that door was unlocked and then
supervisor, I think, would make the obvious decision to go in. If they are locked,
you are going to try to reach somebody and-
Thornberry/Yeah and you can't reach. The manager is opening the safe.
Winklehake/You are probably not going to have anybody going in that building.
Kubby/You don't have any evidence.
Lehman/No reason.
Thornberry/There is no- Other than the alarm. The alarm has gone off. All right.
Kubby/You call the second and third person on the list.
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Thomberry/You can't raise anybody and how long is this going to take and how many
lives are you putting at risk? This happens in the restaurant business a lot,
throughout the country.
Winklehake/I can give you a very vivid example of that in the department I worked with.
They had Brown's Fried Chicken. I believe 6 or 7 people were killed there. An
officer did go to that location, did check the building, did not see anything and let~.
About four hours, three hours later one of the parents showed up-
Thornberry/Is this the one in Chicago or-
Winklehake/Palatine, Illinois.
Thornberry/Yes, right.
Winklehake/And that was where the officer had gone, did drive around the building,
didn't see anything unusual and lefL
Thornberry/This is what I don't want to happen and I don't- You got to weigh the two.
And I just wanted to know, with this knew policy, like say you even suspect so.
Well, an alarm has gone off. What do you do? And if the current policy is you do
nothing, you surround the building and wait for everybody to bleed to death.
Kubby/Are there employee cars in the parking lot still?
Thornberry/No, the employees don't park in the parking lot. They park offof the lot so
that the customers can park in the lot.
Kubby/Then an officer should know that so they can look around and see if other cars
that don't look like residential cars, do a license check. If there are-
Thornberry/We are talking a lot of time.
Kubby/But in your scenario, people are-
Nov/Let R. J. answer. We are not hearing him with everybody talking.
Winklehake/I am sorry. When you said the officer should know. There are a lot of
assumptions of things the officer should know. But many times they are not going
to know. They don't know who works where, who drives what and the chances of
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them knowing that are very slim on unless they have the opportunity to meet with
you and see your business, talk to you. That is a problem.
Thomberry/So under the current policy, it would be a call of the shif~ supervisor or
whatever?
Winklehake/Doors are locked. There is no sign of any problem inside. An alarm went off.
It is going to be get a hold of the owner, get a hold of somebody from the
business. Get the alarm company to come and they got a problem, they figure out
what is wrong with your lock.
Nov/Or possibly have a pre-signed consent to go in if the alarm goes off and you cannot
get anyone.
Winklehake/The presence policy, we don't have that.
Nov/But we could.
Winklehake/That could be an alternative, yes.
Nov/Do you have anything else? Dee-
Vanderhoef/I was just going to add one local thing, the fumigation of a local restaurant
where we had a person die recently in Iowa City and this could have been an open
door situation if someone happened to be checking the doors. I don't know
whether it was or not. But that is another instance that if an open door had been
found at that time and somebody waited to get a hold of somebody versus going
in. Might have found that young man soon and taken him out. So that is not here
or there.
12. Vanderhoef/I would like to talk a little bit about canine unit. Have you ever worked
with a canine unit or had one in your police force?
Winklehake/Never had one on a department although we have worked with canine unit in
the past.
Vanderhoef/Okay. And what is your assessment of them?
Winklehake/I think they serve a very definite purpose and I think there is a very good use
for searching, building searches and also narcotics. Dogs can be trained to do a
number of things and if you have a well trained dog, good handler, they are
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certainly an asset to the department. And in fact we have a thing that I had given
Steve that we have to put in another form for proposal of starting a canine unit.
Vanderhoef/What would be the downsides of having a canine unit? Are there any?
Winklehake/A canine unit? Obviously there is cost, taking care of the animal, food. You
have to have a vehicle to transport the animal. The individual officer, generally that
is what their duties are. They are assigned to that animal all the time. The
experience in the past for canine units is that they have a working life of maybe 5
to 7 years. The dog usually lives longer so you end up needing- The canine handler
generally takes another, dog has to be put down. The recommendation generally is
that you provide a place at the resident of the dog handler to be able to take care
of the dog. You don't put him down at the animal shelter. Which means you have
a cost of building a kennel run and that kind of thing. Beyond that, I think they are
a useful device, one that we could certainly use. The proposal is that we would
seriously look at that.
Woito/There are liabilities. They do bite people and you will incur claims from people
who are bitten. A number of the departments that I talked to have experienced
that. And one county abandoned their canine unit because the place where they
were kept by the handler, kids would tease the animal and the animal would bite
them then. There were just too many claims. So they abandon the canine unit.
Vanderhoef/So what risk do we have of a well trained dog in pursuit of unreasonable
force?
Woito/In my mind, it is better to send a dog in in terms of police safety than sending an
officer in who can get killed by someone inside.
Winklehake/Canines can be trained different ways. For instance, in a building search, a
dog can go in and bark when they locate somebody or go in and bite. Of course
the handlers and trainers don't like to go in and bark because if you do have an
armed assailant, then they shoot the dog. But if you are going to have somebody
shot at, it should be the dog I would say.
Woito/I would prefer that, yes.
Vanderhoef/Either one is a good choice. Thank you.
Woito/And I think one of the things you have to balance as a council is protection of life
versus property. I mean that is your balancing act.
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Kubby/Can I ask a follow up question while we are on the topic? How often in the last
three years would a canine unit have been more effective than if we had used
different tactics? I mean if we end up changing tactics for going in for a building
check or for criminal activity, does that have some of the same advantages of the
canine unit in terms of protecting officers as well as people in the building, whether
they are criminals or owners or have rightful reason to be there. I mean those are
another way to look at it but instead of a canine unit, we can look at changing
tactics as well as the combination of the two.
Winklehake/You are asking which is better?
Kubby/Can changing our tactic have some of the same advantages of a canine? I am-
maybe it is not a question. Maybe that is a comment.
Norton/It might preclude the need, in other words. If you appropriately change tactics, it
might preclude the need for the canine.
Winklehake/I think what it comes down to though is somewhere along the line the
decision is made to go into a building. Now which is better, doing it with an armed
officer or with a dog?
Norton/In that case, why couldn't you call a sheriff? He has a canine unit, doesn't he?
Winklehake/The sheriff has a canine unit. However that canine unit is not always
available.
Norton/There is a certain sense that might be an option without- In other words, would
help support their expense without bearing a whole new set of expenses. We could
occasionally make use of that in situations where it was really needed.
Winklehake/That could be an option although I don't know if we had a canine unit, I
think we would use that canine unit so much, that it would not be a viable
alternative to expect the sheriff to come in with their dog every time we would
want an animal.
Norton/I take it would be fairly rare if you follow the substantial changes. I think it would
be rare that you would need it.
Kubby/Or else we maybe need information to know that.
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Council/(All talking).
Norton/If we make the changes we are talking about, it would be rare. Where you sit
tight in many cases. That is still the point of all of the training is sit tight, don't-
Nov/Okay, moving on. Larry-
13. Baker/Question for R. $. In trying, for me to understand how you supervise your
department, one of the things I need to understand how you evaluate your
department. How you evaluate your own personnel. ARer, without dealing with
the specifics of this incident, but let's say there is an incident that requires an
internal investigation, police officers involved. You have to review their actions.
Now assuming that the policies allow a range of decisions and actions on the
scene, isn't judgment a criteria for you evaluation of that officer? That is, in that
range of actions and this is easy in hindsight, I recognize that. Clearly some actions
are better than other actions. So atter the fact, when you are evaluating your
officers, how much latitude in your own mind or legally do you have to say that
the officer's judgment was not as good as you could have, should have, would
have reasonably expected in that situation and therefore the officer ought to be
censored in some form. How do you evaluate actions after the fact? And how
much latitude and how much freedom do you have to evaluate the judgment of
your officers?
Winklehake/The purpose of an internal affairs is to decide whether or not the officer acted
appropriately. What you are going to do there is look at that range of decision
making that they may have and various tools that they have available to them. And
there is a judgment issue that comes into play. Did you make the proper judgment
given the set of circumstances you were dealing with? That is certainly a criteria
that is used when you make a discipline decision. When you are looking at the
criminal end of it, you need to have violation of criminal law and that would not
necessarily be internal affairs. There is a decision early on in the conduct of the
officer. When you are going to do an internal affairs, you need to decide whether
or not there is going to be a criminal investigation or you are going to do an
administrative investigation. Administrative being your internal affairs. If it is a
criminal investigation, all of the other fights that everybody else has applies to that
officer as well. In the administrative hearing, the administrative review, if the
individual who is assigned to do the internal affairs- For instance Captain Harney is
investigating or asking somebody to give them an answer and you are the
individual who is refusing to answer. What he would do is tell me about that. I
would come in and give you a direct order to answer that question. If you refuse to
do it, that is insubordination and that is a whole other issue. We do use judgment,
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for instance, even though you may have used tools that are appropriate. However,
in an instant that would be under investigation, it was not the proper one for you
to use given the set of circumstances. That is judgment. And that is where we
exercise our judgment with respect to your actions.
Baker/
Okay, now, procedurally the internal investigation is done by the captains or a
lower level than you and you review their findings? Are you involved in the actual
investigation?
Winklehake/Generally I am not involved in the investigation. When we get an internal
affairs, we have had a number of officers and I think somewhere you asked for
information as well as to who had done internal affairs before. We have had
captains, lieutenants and they may request additional assistance from anyone with
certain areas of knowledge that they feel in necessary. Definitely a person doing
the internal affairs will do that investigation, they keep me appraised as to what
they are -where they are at, how are they doing, are we proceeding because they
do have a time table. They may request additional time but we try to get that done
within 30 days.
Baker/In your position, do you have the authority to disagree with an internal finding, an
investigation finding?
Winklehake/Yes.
Baker/And Steve, you have the ability to disagree with R. J.?
Atkins/Yes.
Baker/Okay, thank you. That is all.
Nov/Dee-
14. Norton/I was- I started on this question earlier. Would you elaborate a little bit on a
question that came, I think, at our February 1 meeting, about overtime and spell
out for me just how long Kelsay was on duty that day and why was it apparently
so long? Can one sign up for overtime at one's discretion?
Winklehake/There is a number of different ways that you come up to overtime. For
instance, if you are an officer and you are working and you have a call. Let's say
you are working day 1, and you have a call in the last 45 minutes and it is going to
take you two hours. You work that case. So that is unplanned overtime.
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Norton/I understand.
Winklehake/Another situation that we need to pay overtime for that we do not control is
court time.
Norton/I understand.
Winklehake/The court appearances are set and we need to pay the time for that.
Norton/Those are clear.
Winklehake/There is also some overtime that we know that we are going to have. For
instance, d.t. Friday Night Concert, various traffic enforcement efforts. Those need
to be posted. The officers volunteer to work those and then we have a labor
contract that says we should try and equalize the overtime. The way you do that is
take a look at how much overtime someone has worked verse the people that are
requesting it and the people that have requested it. Those individuals who have
worked the least amount of overtime are entitled to work that under equalization.
Norton/I understand all of that and it seems reasonable. But I am asking here is a person
that just walked in and said I want to do some burglary walking or door checks.
Apparently as far as I can see, it was just strictly voluntary. It wasn't anybody
assigned him or wasn't matching up hours and he had already worked a lot that
day.
Winklehake/He had worked an eight hour day on burglary investigation. He had been
assigned to the investigation within a few days before this incident. He had worked
from midnight to 8:00 doing nothing but burglary patrol as well as some other
police officers. That night he had signed up, had already signed up for the Friday
Night Concert which he had to fulfill that. When he came back to the building, he
was in the locker room changing, Lieutenant Johnson was also there at the time
preparing to go out on the street and he discussed it with Officer Kelsay and he
said if you want to, let me know, I would like to have you go to work.
Norton/So he was invited to.
Winklehake/Lieutenant Johnson was there, yes.
Norton/So Kelsay was invited to go out on that extra. I thought he volunteered for that.
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Winklehake/I cannot tell you the exact word. I have not asked the exact words. Did
Johnson say if you want to, you can. Did Kelsay say I would like to.
Norton/Does somebody have to authorize it?
Winklehake/Lieutenant Johnson did.
Nov/While you are following that one, will you also find out if this was a general
question? In other words, is anyone available to do this tonight and then he
volunteered. Or was it directed to him?
Woito/I recall it was directed to him.
Winklehake/The only two people who were there were Johnson and Kelsay.
Nov/Okay.
Winklehake/Lieutenant Johnson was in charge of the investigation.
Norton/Karen, I got more but go ahead.
Kubby/I want to go back to a training question and explore a little bit about where
ILEA trains officers to have their fingers (can't hear). And I know that during
training at the firing range, they are taught to not have their finger on the trigger
when they are changing positions so that there are no mishaps. And it is my
understanding that in a street situations, that that is left to the officers discretion. I
want to confirm if that is true and what the City Attorney's advice is on our local
training for that.
Winklehake/Could you repeat what you just said?
Kubby/Is it true that it is the officer's discretion when a weapon is drawn outside of the
firing range as to where their finger is in terms of on or off the trigger7
Winklehake/Whenever the officer is transit, going from one location to the other, the best
safety mechanism is not to have the finger in the trigger because if you slip and fall,
you have a discharge. However, when you are approaching something, you are
going to do something, you are going to take some action. Again, that is an
officer's discretion because it is based upon your perception of a threat.
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Kubby/What, what- I am making the assumption that if Gillaspic flinched and the gun
fired, that it means that his finger was on the trigger.
Winklehake/I just don't know.
Kubby/I don't know if that is true or not because if it is not, that means he had to
physically put his finger on the trigger and pull it.
Norton/We don't know, do we? We don't know where it was.
Kubby/I don't know. I guess that's a question I want to put out there to have staff find if
any of the documentation has that answer. I don't rec_all Gillaspic specifically
stating or being asked if he remembers if his finger was on the trigger site. I've
gone through it a couple of times that maybe another somebody looking could find
a yea or nay to that. But I guess for my question let's assume that it was on the
finger, his finger was on the trigger and he flinched and it fired. Under the
circumstance, that I've just been told in my previous questions that there may be
suspicion of criminal activity, there's a combination of the building check and
possible, exploring to see if there was criminal activity. Would it have been an
appropriate use of that discretion at that time to have his finger on the trigger, any
of the officers to have their finger on the trigger?
Winklehake/It would be appropriate use of their discretion to make that determination
based on what their perception was of what they were doing.
Kubby/Was there any questioning by Fort and Sellers or Patrick White to any of the
officers about what was their perception to establish? To me it seems kind of
important. What is your perception of the danger of that situation and where was
your finger? To me those would have been important questions to ask and I'm not
sure that they were.
Woito/
Part of the answer to that question, Karen, is based on the experience of the
officer, the experience of the department. Entry into a building where you don't
know if anyone's in there but you assume someone is, is a very dangerous situation
because the officers in their experience are confronted with burglars, with knives,
crowbars, etc. and their own experience and their training that it's hazardous will
all go into their own perception of whether an imminent danger or even a possible
danger is going to be confronting them.
Kubby/I guess.
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Woito/I mean so it's based on the evidence that they're seeing, but it's also going to
based on their training, what they've been told by their trainers about be careful of
this, be careful of that, and their own experience. I mean if they've gone in as R.J.,
R.J. had a friend and R.J. can certainly speak for himself, had a friend who was
killed in an entry like that, and his heightened sense of, his sense of danger would
be much more heightened perhaps than someone who never heard of such an
incident.
Kubby/Right. And so it kind of gets to how often has that happened here in Iowa City.
Woito/I don't know.
Kubby/I know that we have some information, because one of the things I want to
establish is that if officers are feeling in danger when they're on calls because of
events that have happened over the last five years, say, that's why one of the
questions I asked was how often has a weapon been drawn upon an officer so I
can get a sense of how dangerous do officers see the community to be, whether
that weapon is directed at them or not, there's still the sense of danger. And the
answer is really based on seized weapons versus weapons that were observed and
it was only cutting instruments ifI remember correctly and firearms. It didn't
account for crow bars or baseball bats or other things that weren't cutting
instruments or firearms.
Woito/
I have an anecdotal answer. In speaking with the officers generally and you know
we see them regularly in our office. They tell me that in the past five years that
they are confronting a lot more violence and a lot more dangerous situations than
they were five years ago. I don't know if they can tick off, I mean if you talk to all
60 of them if they could all tick off 5-10 things that were different, but I've asked
the same questions of the officers tell me, I don't want to hear statistics just tell me
what your experience is.
Kubby/Do you think that it also in your questioning, in just conversation with officers,
that they're drawing their weapons more often as maybe a result of that
atmosphere?
Woito/
That was not a specific answer I got. I said you know if there's more drawing of
weapons, tell me why. I don't know that there is but why. Please explain it to me.
And the answer was, the dangers that are perceived or are faced out there are
greater. There're more dangers.
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Kubby/Would it be, because one of the things that I was kind of surprised at when Pat
White was asking Gillaspic that how often in the last year had you drawn your
weapon, and he said about 20 times that he's drawn his weapon. And I asked some
seasoned officers who have been on you know 15-25 years how often in your
career have you drawn your weapon, and it was less than that. And that concerned
me that that was a lot of times. And even if we cut it in half because his guess was
totally off, that still seemed a lot compared to what other officers, an officer who
had been on the force for a long time or had been recently retired had said to me.
And so maybe it would be important information to ask of officers how often are
you drawing your weapons. I mean we'll have that information from now, from
October on, but to get an anecdotal sense, to know if there's a trend on our end as
a result of or in conjunction with the trend out in the community as a way, just
because officers feel more in danger, I guess. That would help me make some
more logical decisions about these policy questions, you know, if that's how
officers are feeling they need to be reacting. If other officers are not pulling their
weapons that often, drawing their weapons that often or if there are only a few
who are, I guess I want to know what are their perceptions. Are they just
substantially doing it? Is it because of they missed some training or we just need to
spend more time with those officers on different tactics? I think those are
important, that anecdotal if we can't get it on paper is important to know. I think
because I'm really concerned not only about the way we provide police services in
the community but also the safety of our officers, that if they're feeling unsafe out
there, I need to understand.
Winklehake/A very important segment of what you talked about is the type of call when
the call comes in. We have a number of calls, reported person with a weapon, with
a gun, that the officers are responding to. And when they respond to that, there's
going to be a heightened awareness and they are going to draw a weapon and if
you're going in to a situation where somebody's supposed to have a gun running
amuck with it, you're going to draw your weapon. It may turn out that person
threatened somebody with a gun and never saw the gun. But when the officers
responding to it is a man with a gun, a person with a gun call, they're responding
to that call, there's a certain perception or expectation that when you call in to the
police department that you're telling the truth and we need to respond to that call
appropriately and if what you're saying is correct. So there's a heightened
awareness from that standpoint when the officer goes.
Kubby/All right, but those will be recorded, reported because it was drawn in the
presence of people according to what you said last time.
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Winklehake/The officers when we were going through the 94-95 data to see if there's a
trend and ages, that's one of the things I think you had asked for last time around,
we're doing that. And I recall what you said about Officer Gillaspic. The
information reports that I have to date don't indicate 20 times.
CHANGE TAPE TO REEL 97-32 SIDE 1
Kubby/Experience level, his peers in terms of experience on the force, are doing that as
well, I'd like to know that.
Vanderhoef/Karen, may I? I've thought about some of the same concepts and what
strikes me though unless it's straight out anecdotal to ask each one of our
policemen as to how much danger they feel they are in, their role as a police
officer.
Kubby/Did you find it?
Vanderhoef/That's asking each person to have, to say something about it and they have
their own personal standards. And when we get into this kind of information,
officer A has standards of this that frighten him. Officer B has standards of this
that are quite different from A. So I'm not real sure the kind of things that you're
asking for, how useful it's going to be for me.
Kubby/How else do we assess what kind of-
Vanderhoef/I am not sure.
Kubby/Different tactics we need to be and training we need to provide to provide either a
safer comfort level so that the weapons don't have to be drawn as often or to just
have guidelines or to state to help decide if we just need to state that that
discretion's going to be full or there's going to be some guidelines plus discretion.
So I guess I'd like to explore it and then we may not it useful the conclusion I'm
drawing.
Vanderhoef/But what strikes me as coming forth in all of this though is that we have to
have some measurement there of what is perceived as dangerous.
Nov/We're going into this back and forth thing that we said that we weren't going to do
today and I would like us to move on to questions to staff and we will have council
back and forth time just that we shouldn't interpose.
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Vanderhoef/What I would say then, please, is-
Kubby/If it is relevant to the discussion, it seems very reasonable.
Vanderhoef/What I'm saying right now is that to ask staff to put together some
information that we haven't set standards on I think is inappropriate right now.
Kubby/But if we have lots of officers drawing guns that we don't know about, then I
mean isn't that relevant?
Lehman/Wait a minute, I'm next in line.
Nov/That's what I'm trying to say. Let's move on.
16. Lehman/I think we talked about this two weeks ago Saturday. I personally do not
recognize the relevance of how many times an officer draws his gun. I care very
very much how many times he fires his gun. And I cannot believe that an officer
who draws his gun without his finger on the trigger is very bright. Would you
comment on that R.J.? If you're going to draw your gun.
Thornberry/It's a club.
Kubby/Wow.
Lehman/You'd better have your finger on the trigger.
Kubby/That sounds pretty dangerous.
Lehman/Now wait a minute. Then carry a toy pistol.
Norton/You keep it outside the trigger guard for most times. You only put it in when
things are imminent.
Lehman/You don't draw it unless there's a reason.
Woito/The training indicates both. The training video.
Lehman/And the training, I have problems with that too. But I can't imagine an officer
drawing his gun, he wouldn't draw it unless he felt there was some imminent
danger. If he felt there was an imminent danger, why wouldn't he have his finger
on the trigger?
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Winklehake/The only reason he may not is because they're moving and for their safety
and other people, they would not have it in until they get to a place where they feel
comfortable as far as cover and expect to have to take some action. That would be
the only reason.
Lehman/But I look at the record and we've had this horrible thing happen, but the record
of this police department, I don't know how many times they draw their guns. You
know I guess I really don't care. But their record has been almost impeccable,
except for one big problem and it was a big problem. It's a horrible problem. It's
something we have to deal with. It's something that tears our insides out. But
overall I think that we've done a good job and I don't think it's a matter of how
many times we draw our weapons or whether or not we have our fingers on the
trigger. Sorry about that.
Nov/Okay.
Kubby/(Can't hear) frequent instances before this in recent history that the community felt
was inappropriate that the officers drew their weapons.
Nov/Can we move on, please?
Kubby/There was disagreement on that.
Nov/Are you ready? Go ahead.
17. Thornberry/Staying with this just a moment, just as a follow up question to Karen and
Emie's question, do you have normal officers, I mean officers who normally work
the night shift and officers who normally work the day shift?
Winklehake/Yes.
Thornberry/Are there more incidences of drawn weapons in the day time or the night
time?
Winklehake/More incidents in the evening and late night than days.
Thornberry/Why? Because of the element out there?
Winklehake/The nature of the work. The nature of the incidents that they're dealing with.
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Thomberry/Okay. What is the most tense call that an officer may respond to? Would it be
a robbery in process, or would it be a domestic dispute? Cfiven those two. I don't
know if them are any more that are any more dangerous or any more.
Winklehake/From my own perspective, the one that I think would be more tense, would
be the domestic. That's my personal feeling on that one. And I don't know what
you could ask individual officers. They may give you the robbery. You're asking
which I believe, I think the domestic because it's one on one dealing with two
people and generally in a domestic, if I'm dealing with you and you and I are not
agreeing as to what conduct you're going to follow, the other person will take
your side and be behind me. Domestics and traffic stops are the most serious
officer, the two most serious things for them to deal with where they get hurt.
Kubby/They're most vulnerable then?
Winklehake/Those two situations. Traffic and domestic.
Woito/And the courts recognize that.
Thomberry/Now are there, on traffic stops it's usually one officer involved with the
vehicle, is that?
Winklehake/Additionally generally them is one officer and whenever we have a traffic
stop, the practice has them to dispatch a second car as a backup unit.
Thornberry/Other than a minor traffic stop for violation or always?
Winklehake/A traffic stop.
Thornberry/Really?
Winklehake/Traffic violation a second unit starts until the first officer says everything's
okay.
Thornberry/Are there, on a domestic dispute then, is there always more than one officer
assigned to that domestic dispute?
Winklehake/We automatically assign at least two to that.
Thornberry/And as far as drawing weapons are concerned, there's no, is there any
situation that calls for drawing weapons more than others in the context of
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domestic disputes, car stops, burglaries, robberies. Is there any propensity for the
officer to draw their weapon more ot~en on those types of calls? An open door,
burglary in process, a domestic dispute. Is there any?
Winklehake/A burglary in progress, an open door, probably would lead to a drawn
weapon faster than a domestic unless you receive information that a domestic is
also there's a weapon involved. It may be possible then that the officer would have
their weapon drawn.
Kubby/But we don't keep stats on that kind of thing, which we could do once we start
collecting statistics. We could relate the drawing of weapons to the kind of
incident which would be useful in helping us focus different training or more
training be useful.
Thomberry/Well I just go back to the situation where the officer feels that he must use
the type of force necessary to control the situation whether it be a night stick,
whether it be his voice and it progresses through the different 1-2-3 as we've read
and the gun being the last resort. But I agree with Ernie that when that gun is
pulled, when he feels that he has gotten to the level that that gun is pulled, he is
not moving, he is not going from station to- You know, he pulls that as a last
resort, the gun is not a club, it is a weapon and to fire that weapon, you got to pull
the trigger. So when they get to that point, you need to use that weapon as it was
designed.
Kubby/But then the question may-
Thornberry/I can't think we should tell-give direction as to whether an officer has their
finger in the trigger guard or outside the trigger guard.
Nov/Okay, we can, at some point put that direction in if everybody agrees on it.
Thornberry/We are not the experts and we are not in the situation.
Lehman/That is policy and that is not what we are really talking about.
Woito/In terms of use of a weapon, it is also a part of the display of force that is used to
try and control the situation, far short of actually being fired.
Thornberry/I understand. Just the display of a weapon-
Woito/Yes, yes.
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Thomberry/Might change a situation.
Woito/Right and it is a higher level of a voice or-
Thomberry/I understand.
Nov/I think we all got that much understanding. Do you have any follow up? Dee-
18. Vanderhoef/I was going to pass but something just crossed my mind. I am learning a
lot by asking a lot of questions here and I appreciate the answers that I am getting.
I felt that I have great forward answers from you folks and I do appreciate that.
And as we start talking a little bit and getting off subject, and I try not to, it strikes
me that we are going to be, we and I am talking about council, reacting to some
policy and procedures. I am beginning to get a sense for myself that policy is one
thing that I see as important for council maybe to see. Procedure I am beginning to
see how much less and less I know about filling a police department, about what
their procedure ought to be. And I would just like a candid response from you as
to how you and your police officers might feel about a group of individuals who
care a lot but who are not trained in police work to be setting procedure for your
officers.
Thornberry/It would be real candid here.
Vanderhoef/I am serious. This is really something that bothers me.
Winklehake/As an overview to policy, I think the city council needs to set a policy
guidelines for the department to try to follow. This is what the city would like.
And then through the City Manager's Office and department heads, that we put
together the policies internally for us to be able to carry out the general policy that
you are trying to accomplish. In that policy then there will be procedures that we
need to follow in order to get that policy done. Those procedures may be affected
by the County Attorney's Office as far as taking cases to court, the City Attorney's
Office because of maybe a city ordinance we are going to try to enforce. Those
procedures need to be done internally and they can be changed rather quickly
depending on the situation that we are faced with. There is a new city ordinance
comes into place, we may need to change a policy as far as our procedure to get
that enforced or to be able to enforce it, do whatever is necessary with that. But
generally overall, I think it is not different from what city councils do. You set the
tone for the general policy of the community and that is certainly an oversight that
needs to be there. I think then your desire to go in a certain direction is always
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communicated to the City Manager who in turn let's his department head know
this has to be done. As far as individual policies, some of the policies may not
make any sense to you unless you have a City Attorney or somebody else sit down
and say this is the reason you need to do that and there are many things that we
do, seems to me that it would be much easier if we did them another way. But
there are certain requirements that are in place that we have to follow as well. But
I think policies within the department, we set the policies based on what the
direction of the City Manager and city council are.
Vanderhoef/Just as a comment then. My perception of what is happening in our
community is that the community is asking council to set a lot of procedure kinds
of things and that they have some assessments out there of what they expect the
Police Department to do in certain procedural ways and I don't know how we
communicate to them that procedure is not what I personally think and I don't
know about the rest of you folks whether you see it that way or not. But I see
procedure is not our domain. Our domain is policy and you are in charge of
procedure and I hope our constituents understand this that we cannot be setting
procedure. The professionals-
Atkins/May I comment on that?
Vanderhoef/Please do.
Atkinsd I don't want to sound like this is a lecture but cities are very complex institutions.
You have multiple missions. How many of you know how to repair a broken water
line. I can assure you I don't other than you expect them to be- Because of the
health, safety, and welfare of your community is at risk when the water line is
broken and you have an expectation and the expectation is the critical word that
your employees are prepared to deal with those types of issues. I may take a bit of
exception to what you say, Dee, in that I think you are entitled to some
expectation with respect to, and maybe the word procedure isn't right. Maybe it is
technique. How we go about things. Bottom line is you people pay for it. I mean
you authorize the taxes and you authorize the budget that gives the money to the
Police Department to send the officer to ILEA. And so I do think you have- It is of
some importance to you that the policy is you want a well trained Water Division
in your Public Works Department just as well as you want well trained police
officers. I think you can establish certain expectations. I think the difficulty oRen is
how that ends up being communicated and I strongly suspect out of all of this
debate, a year from now, we will be doing things differently. And to me that is
technique and you have an expectation there and that is okay.
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Council/(All talking).
Vanderhoef/Finally boils down and is enacted and how they get to meeting our policy is
not where I see that we are there and like we have said, there have been several
ways to get to the same kind of thing and some may be better than others and
some may take assessments on the situation at that time and that is where I am
feeling that we, as councilors, are not down to the nitty gritty of it.
Atkins/I think that is a debate that you-
Nov/We may or may not be down to that nitty gritty someday.
Council/(All talking).
Kubby/With engineering. Procedural things and direct them to do procedural things
differently all the time. Part of that is discretionary on the council. But if there are
four votes to get into the devil of the details to make sure that that policy is lived
out-
Vanderhoef/The policy yes.
Kubby/(Can't hear) procedures all of the time in all areas of the city at our discretion.
Atkins/When you debate procedures and live out the policy, whether you know it or not,
you are changing it along the way. It just happens very subtly.
Nov/We will continually make these changes and we will continually ask why this
procedure? Why not that procedure and we will ask for justifications and we may
change.
Thornberry/Yes but in following your same scenario, Steve, in the Department of Public
Works, when they are putting a pipe down, laying a pipe across the street and they
are doing it with a crane, with a cable. It is not our purview really to tell that crane
operator what the diameter of the cable should be to carry that pipe.
Lehman/Why not?
Thornberry/That has got to be- Because I am not in that department and I don't have that
expertise. Okay. As I don't have the expertise in every department as you know.
That is why you have department heads of each department.
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Atkins/So you appreciate it. Cities are complex organizations. It is a difficult task for you.
Norton/Let's pass it around. There are lots of exceptions. I will talk about them in a
minute. Let Larry have a turn.
Nov/Moving on.
Kubby/After Larry, could we have a break?
Nov/Yes, that is what I was about to say. After Larry, we shall have a break. Go ahead,
Larry.
Baker/Are you sure you don't want to break before this?
Nov/Oh.
19. Baker/R. J., my last question was about your role in general in evaluation of
personnel, just generally it works. This is a question about your specific actions
after the Shaw shooting and before I ask you this specific question, I have to
comment about the word perception because it is part of the question I am going
to ask R. J. The past four months I have been talking to individual police officers
privately and confidentially. I haven't talked to, you know, a majority of the
department but I think a lot. And one of the perceptions that is consistent
individually that comes from those officers is, I have heard this in various forms,
the people in Iowa City don't see the same Iowa City that we see. That the
public's perception of Iowa City is one form of reality but we deal with on a daily
basis would surprise most people in Iowa City. This goes back to the officer's
perception from their jobs and how they respond to the public that they have to
deal with. Most of us have nothing to do with the Police Department. They deal
with, and I will be crass about this, a very different kind of population most of the
time. And that shapes their perceptions of their jobs. But the specific question to
you, R. J., is right after that shooting, the first public meeting that this council had,
there was a 2 1/2 hour public discussion about the police department from
members of the public. A very critical harsh representation in that public's mind of
what the Iowa City Police Department did in general. They weren't talking just
about the Shaw Shooting. They were talking about the department. In subsequent
meetings, that perception was narrowed down to the Shaw incident. I mean the
complaints, the questions, the actions of individual officers and you and Steve and
everybody else. My question to you is have you watched, you personally, watched
all of those public discussions? Are you aware of what happened that first night?
How aware is your department of that public perception that is being presented?
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And what have you done individually as a supervisor of that department to talk to
your department about how they could, should respond. How they might amend
their behaviors if you think it is necessary? What have you done to address to your
department a perception of that department by certain members of this community
and I mean it as specifically as possible. How did you talk to them? Where there
written directives? How did you talk to your department after the shooting?
Winklehake/For the most part, in regards to that particular meeting, what we have done is
I have addressed a number those issues with the supervisors here is what people
said, here are things that you need to be aware of. Address a couple of things with
individual officers that were brought up with respect to language that is used,
perception of how they are treated. There were some of the issues that quite
honest, one was 20 years ago. Can't do anything about that. There was a couple of
them about perceptions of how people are treated and we always have to be
reinforcing the fact that how you deal with people and to treat them equally, the
same, with courtesy regardless of what the incident is. Those kind of things are not
just because of that but have been continuously discussed with individual
supervisors. When they have individual complaint, they deal with it one on one
with the officer. When we dealt with these particular issues, we had a staff
meeting. We spoke at one point about these kind of issues. I spent a great deal of
one and one time with individual officers as well. That has been an on-going
process, particularly after the shooting with respect to the different kinds of
complaints that we have had. We have had individuals for other parts of our
community call about some of the people who made comments. They added their
comments to that with respect to what credence to give to some of the folks. And
even that, when people say well, that is just so and so. Yes, but it is still a citizen in
the community and deal with that particular issue. So those are on-going kinds of
things. I don't know if that gives you an answer or gives you an idea.
Baker/When you say staff meeting, what constitutes a staff meeting?
Winklehake/A staff meeting is supervisors and that would be a staff meeting. We
discussed a lot of different items. And some of the individual information about the
Shaw shooting was provided along with just general comments about some of the
concerns that we have. For instance, language when you deal with somebody/Just
because you are drank doesn't mean that you can go ahead and start using
language that you should not be, period.
Baker/Have you ever- You say you have talked to individual officers. Have you ever had
a meeting with a large group of patrolmen, patrol officers? Give me a sense of who
in your department has heard from you?
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Winklehake/Supervisors, individual officers. I am dealing with officers daily, every day.
To list off the names- At one point or another I talk to about every officer in the
department.
Baked
Have you had those discussions since the shooting? In so many words said, if these
things had gone on, this is a leading question, I apologize. If these things have
gone on that is totally unacceptable and there will be punishment if we find out that
this is-
Winklehake/And the individual- If this is going on, it can't go on. It is inappropriate,
period. For instance, swearing. We don't do that. The supervisors, if you hear that,
it has to be reported and you can expect discipline.
Baker/So you are trying to make the department more sensitive to public perception of its
performance.
Winklehake/We always try to.
Baked I realize that. Sometimes, you know-
Winklehake./The general comments come- Yes, we always try to do that.
Baked Thank you.
Nov/To follow up, before we take, are any council members on a strict time line?
Baked 12:30.
Nov/12:30. Anybody else? Okay. We are going to take a short break.
[Council Break 11:40 to 11:50 AM]
20. Norton/I first want to just make a comment about the issue of policies and practices
and procedures. I do not think that we are involved in specifying the details of
police procedures. What I am concerned about is are we following and
implementing the procedures that we have adopted as spelled out in the ILEA
program and in our field training and that it still seems to me is our responsibility
whether we may even disagree with some of those policies. But are they being.
properly focused on the people who are in the field? Are want to reiterate, again,
what it says. If there is an other, this is under Building Searches now, not under
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any other category. If there is any other reasonable option, do not go in, especially
if you know, and I wrote or think, if you know someone is inside or suppose think
would be the same thing. So, I am very deeply concerned about implementing that
policy which is taught by the Academy. I am curious about how we supplement
that training in our field training because I see categories in our field training that
talk about exigent circumstances under search and seizure. That is the closest I can
come. They talk about that and they talk about when to use a consent to search or
explain reasonable expectations of privacy. It sounds like we attend to some of
these matters but how are they being implemented? That is my question again, how
are we implementing those policies and how are we supplementing them in our
field training?
Winklehake/Field training is generally given immediately after the Academy. So what the-
Karr/R.J. mic on? (Can't hear)
Nov/Just hang it up a little higher.
Lehman/Hook it on your mustache.
Nov/I have the same problem. I keep moving around.
Lehman/You don't have a mustache.
Winklehake/I also have been told I have to speak up more for the camera people. The-
Generally the field training is done immediately aRer the officer has gone through
the law enforcement academy so that the information that they get from the Law
Enforcement Academy is still fairly fresh in their minds. We, as Linda had pointed
out, and I think I mentioned it as well, we do not set up scenarios for them to go
through. Field training is take the call, handle the call based upon the information
that you have and the field training officer will make the judgment as to how well
you are following the proper procedures. Field training gets into procedures more
than training that you would have at the Academy. That is a basic level. The field
training now is taking that and implementing it and putting it into practice on the
street. and the field training is evaluating how well you are doing that. If you are
not doing it, the field trainer immediately brings that to your attention, that is on a
daily basis. The field training supervisor is the person that is in charge of the field
training also meets with the field trainer and the trainee to evaluate how well they
are implementing the policy, procedures and so on that we have in respect to how
they are actually answering the call. So the training that we do is based up on the
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Law Enforcement Academy, then taking it and putting it into practice during the
field training, period.
Norton/What do we say to them about the legal aspects of these issues? What do we say
to officers in training about the legal aspects of this kind of search? Do we discuss
any of the issues that Linda is now researching?.
Winklehake/The legal issues that you are talking about, unless they are in that field
training, the issues that Linda has researched, unless they are located in there, are
not going to be a topic for discussion unless there is a call and something occurs
where they are going to go into that kind of thing with the County Attorney's
Office perhaps because to the type of call they have handled.
Norton/Well, one last question. Was Gillaspic right in saying that SOP was to not issue a
verbal warning?
Winklehake/No because when you are talking SOP, I am assuming it is written down.
Norton/Well, that is- I don't know. SOP's in the army were always written down as you
well know.
Winklehake/SOP is not a term that I generally use and we usually do not use in the
department.
Norton/Well, it is in the standard operating procedure could be a standard practice, could
be a policy that is written out. I think it probably could be either. But at least that
was his words.
Winklehake/What he is saying there, I believe, is if you are going to enter a building and
you think there is a burglar in there, you are generally not going to know because
you want the element of surprise.
Norton/I don't see anything in the training where they are actually clear about when that
should be used or not. I understand in certain cases when you have a suspect in
mind, I understand that. But this is a case where you don't know what is in there.
Winklehake/And when you look at the building, you are always assuming it is occupied. It
doesn't necessarily mean by the person who is suppose to be in there. And that
means that you have to have a reason for a higher level of concern whatever action
you are going to take because somebody may be in there. You have to be prepared
for the burglar, you have to be prepared for the-
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Norton/I am aware of that. I am saying what do you say to them about verbal warning?'
Are they to do it or are they not or is it discretionary?
Winklehake/It depends on the situation and from that standpoint, yes it is discretionary.
Norton/Okay.
Nov/Okay, Karen.
21. Kubby/I want to follow up on a question that Dean had asked on February 1 to Linda
about who would you have called in other than the DCI if anybody and why and
you answered I would have called a department, a law enforcement department
that I knew and trusted and that is all I am going to say right now. Would you
elaborate on that a little bit? I guess I am having trouble seeing how having
another, a different outside agency doing an investigation, at that point in time
anyway, would have helped us have more information. Because you shouldn't have
been exposed to their or been involved in their investigation because you might
need to be legal representative for an employee or the city as a client. So how
would that have really made any difference in terms of communication?
Woito/Prior involvement by the ICPD with the DCI permitted Iowa City- The DCI
treated us as sort of the client and the report ultimately was ours. This time, for
some reason, the DCI took a different tact and decided the DCI report was not
ours, it was their investigation alone.
Kubby/Is that a discretionary thing or a change in their overall policy or-?
Woito/I don't know. And so, I mean, R. J. and I were both surprised to find out that all
of a sudden this thing, although it was suppose to be taken out of our hands from a
criminal standpoint, was they attempted to take the entire thing out of our hands
for all purposes which was very frustrating. I mean it was the tail wagging the dog.
Kubby/So, an advantage of a different outside agency at that time had been that we could
have better communication?
Woito/Yes.
Kubby/And we have had different communication with the DCI in the past?
Woito/Yes.
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Kubby/I wonder, have we ever explored that with them as to why this was treated
differently? Is it because of the magnitude of the incident?
Woito/I don't know. R. J. talked to them.
Winklehake/When we contacted the DCI, I fully expected that we would be given the
report. We had been given reports in the past on other incidents where they
worked with us. But that was usually on a joint investigation such as a homicide.
Whenever there is a homicide, we will call the DCI and because we want the
additional staffing to be able to explore all leads quickly as possible and in this
particular case, we invited them to come in. I, police department, I approved the
decision to have them come in and investigate what we had done, one of the
members of our department. They gave me a chronological- Something happened
in the past where they gave a report to a police department and the police
department gave it to the newspaper, the newspaper published it verbatim. They
decided they are not going to even have that happen again. In this particular case,
they said the report would go to the County Attorney because he would be the one
that would be making a decision on prosecution. I have expressed my dislike for
that policy to the agent in charge. Obviously it hasn't changed and from the way
the Attorney General is talking, it may not change. But as far as calling somebody
else in, if God forbid we were having another situation like this, my first choice is
DCI. They have the best equipment, the best trained people to be able to do that
kind of investigation, and that would be my choice to call in. I realize the thing that
Linda is saying, but strictly from the investigation stand point or the ability to be
able to perform that investigation, I believe they are the best ones to do that.
Kubby/If, what's his name, Jerry-
Woito/Jeff Farrell.
Kubby/Who is representing the DCI at the Attorney General's office at the State of Iowa
says no to releasing the report, the Freedom of Information Act requests that we
are going to be making will go to Tom Miller, who is this person's boss, right9. So
he could be overruled by someone in the same office.
Woito/That's right.
Kubby/Is there any advantage, Linda, in your mind when there is a situation of this level
to having the internal investigation be done by any outside of the department,
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another law enforcement agency to come in and do the internal investigation? Or in
addition to?
Woito/Did you ask do I see merit in it? Is that your question? Yes. I see some merit in it.
I haven't really thought about whether I would have recommended this, except
that this, my original response to the PCRB was to be an ad hoc response to serve
as an external internal affairs review.
Kubby/Internal to the institution but outside of that part.
Woito/Right. Give them this document. Give them the rules and the policies and say go at
it and review it. But the council chose to take a much more formal approach to the
PCRB. And in terms of turning it over to another outside agency~ I guess they
there would be some merit to that. I haven't really thought that through.
Winklehake/Your outside agency would be the DCI.
Woito/Not necessarily.
Norton/It could be the Cedar Rapids Police Department.
Woito/You could ask another, for example in some counties, they have their own internal
affairs. I mean if something like this happened there, they would not go to the
DCI. They would have their own Internal Affairs Department do it. But then
they're a much bigger agency.
Nov/Also if talk about Internal Affairs and internal investigation, the word does not apply
to another department being asked to come in and investigate us.
Kubby/Well, I'll ask my question in a different way. If we were trying to establish, when
something of this magnitude has happened, it really is a traumatic thing for
everybody involved and is there merit in having an outside agency help establish
whether policies and procedures were followed correctly? And that would lead to
disciplinary decision.
Woito/I think in terms of being an outside objective neutral entity that we all felt we could
trust, I think the answer is yes. And Larry's concerns have always been in terms of
the internal review by you and what we're doing now. The perception is always
going to be you know you're my clients. My report may be deemed a cover up of
something and I think there is merit for an outside review, especially in something
as horrendous as this incident.
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Norton/We were thinking in the the PCRB, just an incident comment, I haven't made too
many. We were thinking in the PCRB procedures of actually joining somebody
from the the PCRB, some representatives from that body. Right? Perhaps with the
people to try to give the investigation all the credibility or at least more credibility
perhaps than it might other wise have. I think that is still a consideration.
Woito/Yes. I think so.
Kubby/I guess my last question on this subject is do you see any merit in having, I guess
really- I have really have two, I lied, I am sorry. I will ask the first one and try to
remember the second one. Do you feel like there is any merit at this point in having
an outside law enforcement agency having review this whole thing from dealing
with the burglaries in the south part of town all the way through council dealing
with it? Is there any merit to that at this point in your mind as our lawyer.
Woito/At this point, I would rather have the PCRB do that. I think that falls within the
jurisdiction of what you, what I see them doing and what you see them doing.
Kubby/Okay. And lastly, we have been asked by members of the public to think about
asking Pat White to have an entity different and higher than he to look at the
criminal aspects of this again. In your mind, are there any merit to that?
Woito/Apparently there is some attorneys and I haven't done any research in this at all.
But there is some common law that would permit a grand jury to be convened at
the behest of a citizen. The problem, there are no rules of procedure. There is
really no case law. There is no case law in an (can't hear) in Iowa. And then the
question is if Pat White refuses to be the prosecutor giving the grand jury
information, does the county have authority to hire an outside prosecutor, I have
no idea. And who would be giving them advice as to what the law was? I mean
they can't be a vigilante. This country rejected vigilantism in more than 200 years
ago. So-
Kubby/Is it legally possible for the grand jury to convene themselves? I have been told
that by a few lawyers.
Woito/
I have been told that by a few lawyers and some judges that they believe at
common law, that that is possible, Then you have a problem with who presents the
case, where does the money come from to pay them? I mean, who pays for the
court reporter?
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Kubby/The logistics of living out and convening itself.
Woito/And whether the 6th Judicial District would do that. There are a whole series of
unanswered questions.
Atkins/And isn't there also a question of secrecy because they do conduct themselves in
secrecy? It is all sealed so it would never get out.
Woito/Right.
Thornberry/Could I get a clarification to the answer to Karen's question that was a follow
up to my question at the last meeting regarding my question to you. In retrospect,
what other agency would you have called in if not the DCI? You said that there
was another agency that probably should have been called in. What agency would
that other than the DCI?
Woito/There are several other law enforcement agencies that I think could have been
objective and done a good job.
Thornberry/Who would they be?
Woito/Well, the one that I am obviously the most familiar with and have the most trust in
is obviously Polk County Sheriff's Office.
Kubby/Because of your past-
Woito/Because they know- Yes, because I have worked with them for 8-9 years and I
trust them.
Thornberry/Over the DCI?
Woito/Well, I mean, just in terms'of my experience and their approach would not be this
is our report and we can't have it. If we requested it, it should be our report.
Nov/Well, we understand all of that and as R. J. said, in previous practice, the DCI had
behaved that way. So we were not prepared for them to behave badly this time.
Woito/And I can have 20/20 hindsight that is perfectly clear that we obviously didn't
have.
Nov/Okay, Ernie's turn.
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22. Lehman/My turn. I don't think anybody was more frustrated than the council in not
getting information and I know we all were, whether it be R. J., Linda, Steve,
council. We were very very frustrated to not have the information and having the
public ask us questions. I guess my question is do you believe and this is for R. J.,
you and Linda both. Do you believe there was any agency in the state that would
be more impartial and more fair than the DCI?
Woito/I don't- I don't know.
Winklehake/I don't believe so. I think the DCI is impartial, fair as they can be and they
will, if there is a- something wrong they are going to tell you.
Woito/The reason I hesitate to answer that, Ernie, is I haven't seen their report. So in
terms of my own-
Lehman/I am just asking about impartiality.
Woito/In terms of my own information and what I know from having talked to the
officers, I don't know what their investigative techniques look-
CHANGE TAPE TO REEL 97-32 SIDE 2
Woito/Question.
Lehman/Do you trust them?
Woito/As far as I know, I would trust them but I mean I. have no reason to distrust them
other than their lack of sharing information.
Lehman/I totally agree with that, absolutely.
Woito/I mean, I don't have any-
Lehman/And I think, R. I., and I agree with you R. J., from what little I know, I think
they probably are the most impartial organization in the state to investigate the
situation like we had. But it is just horribly frustrating the lack of information.
Norton/I find it incredible that they are not a established procedure in the state or perhaps
in the nation for investigating incidents in which a member of the police force is
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alleged to have been involved. I find it weird that an entity has some degree of
freedom as to where they go for an independent investigation.
Woito/That is because the U.S. Supreme Court generally views that as a local decision. I
mean, policing is a local matter.
Winklehake/In Iowa, the answer is the DCI.
Norton/Automatically?
Winklehake/Generally.
Norton/Generally but I mean not automatically?
Winklehake/No because some departments will do their own investigation. Other
departments may ask the county to do their investigation.
Norton/I can see that. It just seems to me to be unreasonable.
Woito/Waterloo asks Blackhawk County.
Winklehake/I spoke to them and actually in reality they call the DCI into it.
Norton/Maybe it is something that needs to be pursued legally.
Lehman/Just an observation. I think had we asked the county or some other jurisdiction
to do this investigation, we would be subject to a lot more criticism than we
already are. I think the DCI probably-
Nov/That is hard to know.
Lehman/No, no, no. I am just- My own perspective. I am not speaking for you.
Kubby/It is just hard to general- Because you are going to ask a law enforcement agency
and some people would say that any quasi-person is automatically a kind a part of
the brotherhood anyway. And so there is always going to be that tension no matter
what we do. But the important point is there are choices.
Norton/We should ask New York City. They have lots of experience.
Thornberry/Would you trust them for a minute?
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Norton/No but they have had plenty of experience trying to figure out who should do
invent an investigation.
Thornberry/Well, you are going to be in Washington, D.C. You might as well- They have
got an average of one killing a day in Washington, D.C. They must have some
expedence.
Nov/Okay, Dean, do you have something?
23. Thomberry/I don't think this is set up to be a witch hunt and I surely don't want it to
be. We are after answers of an incident (can't hear). And I am fairly well satisfied
ifI don't- if there aren't any additional questions that the public hasn't wanted
answered that hasn't been answered. There are going to be questions forever and I
guess we could have these meetings weekly and continue asking questions. I don't
have anymore at this junction, I guess.
Nov/At some point after we have been around, we are going to have to decide that
questions from the public will be cut off'. Now we may have to set a date of some
sort so we don't carry on too long. I just everybody to think about that.
Vanderhoef/I am going to pass.
Nov/Larry.
24. Baker/Yeah, a quick question about training. This is for R. J. Is there anything in the
ILEA or the ICPD training that highlights for an officer the potential danger of
police work at the end of a shift when fatigue and stress are most likely? In other
words, is there something, are officers made more aware of the fact that- I mean,
common sensically you are coming off of an 8 hour shift, you have been through
stressful situations and you are called into another stressful situation, is this
experience highlighted for a special training? Of for example, that particular night I
understand Gillaspic had been involved in another violent confrontation and at the
end of his shift it is very stressful, should he or should any officer be more- have
they been sensitized to be more alert, careful? What do you do about that as an
issue? Or is it an issue?
Winklehake/In regards to the Law Enforcement Academy, I cannot say with any degree
of certainly as to what their training is in respect to that. With regards to the
training that we have here, I think the only thing that comes dose is the fact that as
a general practice, we do not like to have officers work more than 12 hours or so
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at any given time in a row. And that is simply because of fatigue. But that is the
only thing that I can think of that comes close and that is a policy, a practice if you
will. Not a policy, but a practice that has been given the supervisors that we want
to be very careful. We don't want people working 16 hour days and I have used
the 12 as the number. That we use 12 hours in a row. Beyond that we don't want
people to work. We prefer that they not work. But as far as actual sitting down
policy written out and we train people that we do not work more than that, no,
that is not the case.
Baker/
An officer wouldn't- An officer's training, her or she wouldn't through the end of
the shift go into a situation as part of this mental checklist that we keep talking
about be more self conscious about their decisions that it is late, I am tired, I need
to be more aware of my psychological physical condition. Or it is just assumed that
they are sensitive to that?
Winklehake/I don't know if it is safe to say that it is assumed that they are aware of that.
The field training officer may well talk about fatigue as a factor during their
training. But I cannot point to that location and say this is where we talk about it.
Baker/You said they may well talk about it but you don't know for sure whether it is
talked about.
Winklehake/It is not spelled out.
Baker/Okay.
Winklehake/It may be something they discuss but I cannot point to it and say we do that
everytime that we train somebody.
Baker/Would you go back and ask those officers, field training officers if this is ever part
of their training?
Winklehake/If they could remember it, yeah, we can ask that question.
Baker/Okay, thank you, that is it.
Kubby/Are we going to stop at 12:307
Nov/I would like to stop at 12:30 or shortly after because Larry has to go. I would like
some indication of how many more questions council members still have.
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Norton/I can ask more questions. It is somewhat like Dean says, it could go on endlessly.
I am willing to defer at the moment. I assume questions come up Tuesday night, is
that- wait a minute, is that Wednesday night?
Baker/Next Wednesday night.
Norton/Next Wednesday night is the next we visit this matter?
Baker/We could sort of- That is where we have questions and the public is allowed to ask
questions?
Norton/Yes, so I take it there might be some additional come up there,
Baker/Maybe we need to just impose a deadline on ourselves saving an hour for ourselves
to wrap up. Anything else address individually but open it up to the public after
that?
Nov/I am trying to get an idea on what we have here today.
Norton/I am going to pass, Naomi.
Nov/Is there anyone- Larry, you for example, do you have ten more questions or three
more questions?
Baker/I have three more questions but they do not have to be asked today.
Kubby/Most of my questions have to do with policy changes.
Nov/Well, I would like us to give us some time today to try and wrap up general
questions and then talk about policy changes the next time we get together and
give out public discussion time to do policy changes or questions based on' what
they want. But I would hope that we can wrap up questions and if Larry is the only
one who really has a couple more questions.
Baker/No, I mean it is not my turn.
Nov/Okay.
Kubby/Dee, did you pass?
Norton/I passed.
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Nov/All right, go ahead.
25. Kubby/This is a question about wearing vests. If you are in uniform and on duty,
should you have a vest on?
Winklehake/Sorry.
Kubby/If you are a uniformed office on duty, is part of your uniform a vest?
Winklehake/For the uniform, yes.
Kubby/You should always be wearing your vest when you are on duty in uniform?
Winklehake/It depends on the assignment. For instance, I do not require that captains to
where a vest.
Kubby/How about patrol officers?
Winklehake/We provide them one. It is not mandatory that they were it. However, we
provide one for them and they are encouraged to wear it whenever they are on
duty.
Kubby/So what about, for example, Kelsay was out specifically to do door checks and to
be on the scene in an area where there are lots of burglaries. And he did not have a
vest on. What about uniformed officers, plain clothes officers?
Winklehake/The detectives, the uniformed investigators- I am sorry. The plain clothes
investigators, they are not required to wear uniforms. They have the same option
as the uniformed officers. We provide one for them. There are occasions where
they are going to be involved in entry on a felony warrant or something, I will tell
them I want you to wear that vest. Now you ask about Kelsay that night?
Kubby/I am just thinking if you are out there because there are lots of burglaries, maybe it
would have been a wise-
Winklehake/Are you asking my opinion? I think he should have had it on. I think he is
foolish not to have it on.
Nov/Were the other officers wearing them?
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Kubby/Gillaspic was.
Norton/Yes, they were.
Nov/The other two were?
Winklehake/Yes, the other two were. Oh yeah, yes they were.
Kubby/Have you talked to Kelsay about that?
Winklehake/Pardon?
Kubby/Have you spoken with Kelsay about that?
Winklehake/Have I about that particular issue? I haven't. I don't know if Lieutenant
Johnson has, I don't know. I have not spoken to him about that particular issue.
Kubby/Thank you.
Lehman/Just a comment. I would like to thank R. J. and Linda and Steve. I think you
folks have been forthright. This is not a- This is a very difficult time for.us. But I
think you have answered our questions in very forthright manner and maybe there
will always going to be more questions. But I thank you for your sincerity and
your forthrightness.
Vanderhoef/I will just add to everybody.
Lehman/And Dale, I am sorry. Dale, you don't talk very much.
Helling/You don't ask very much.
Lehman/You know, I was told one time, if you don't have anything to say, don't talk.
And you follow that rule.
Council/(All talking).
Nov/Larry, do you have a couple of questions that you can wind up?
Baker/I don't want to start them tonight. They are lists or questions I can ask- At this late
time I don't want to start them. They are lesser consequence questions I can ask
privately.
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Nov/You don't feel you could wind up in five minutes?
Baker/No. I cannot wind up in five minutes.
Nov/Okay. We are going to say left over questions from Larry are going to be done in
private.
Baker/I am not the only one I am sure.
Nov/I am just asking you because I know you wanted to go. Now, is there anyone else
who would like to ask some more questions?
Kubby/I guess I want to clarify how we are going to deal with the requests to answer
written questions that we have received from the public.
Nov/Do you feel those questions have not been answered in this discussion and therefore
must be answered in writing?
Kubby/Yes and no. Some yes, some no.
Woito/There will be 4th Amendment questions of use of the gun that we will be asked, I
am sure.
Nov/But what about the questions in writing that we have received up to now? Do we
want to answer those in writing is the basic question?
Kubby/That is for all to decide. And my inclination would be yes, although I think some,
maybe many of them have- I haven't taken the time to go through everyone of
them like in the last couple of days to really like strike out-
Norton/I have gone through. There are a few but I think we have answered most whether
they have gotten the answers, I don't know. I would have to ask for the transcript
of these proceedings to try to relate some of the answers to their questions.
Nov/I agree with Karen that most of them were probably answered but I have not gone
through the entire list.
Kubby/I would like that to be done.
Nov/Okay. We can do that. Dee, you not want to do that today, right?
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Norton/No, we are going to have to sit-
Kubby/Or that we don't as council have to answer them because we are not- We would
just ask them of staff. But to me it would be sufficient to go through and strike out
answers that have been obviously- questions that have obviously been answered
and if there is a question about whether that question has been answered or not or
how thoroughly, put it in writing and send it back to the public that asked.
Thomberry/I think there are some questions, Karen, that can't be answered. Have you
stop beating your wife yet questions that really have not answer.
Kubby/I didn't say that.
Norton/I am not sure this is a task that can be left to the staff though. Questions like what
does the city council mean by healing.
Nov/I think we have to answer-
Council/(All talking).
Kubby/There are some that are council questions.
Baker/Like there are some questions, I can go through those lists and say well, we didn't
get to those that are valid questions, turn it over to the staff and please respond to
this. Some of them I would just say I don't want the staff responding to in my
opinion.
Nov/Larry, I would like some of these questions answered from council since they were
directed to council. I don't mind the staff proposing an answer. But I really would
like us to review the answers to be sure that they are answered in our tone. Would
that be okay?
Kubby/So how do we decide which ones will be- Each need to go through and check off
the ones we fill have been answered? What is the process?
Vanderhoef/Why don't we compare lists on Wednesday? Let's run through them and just
check the ones we think maybe haven't been and let's see how we compare.
Kubby/So I think that we had the original long list from Citizens For Justice, a
supplemental short list from Dave Moore from the Citizens For Justice and maybe
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two more sheets of them. So we need to make sure that we have them all. Plus
other individual members of the public who may have submitted some.
Baker/How is it you want to answer these questions, as a council or as individual council
members? I mean on some questions you might get seven different answers.
Kubby/Well, I guess we will talk about that on Wednesday.
Nov/Yeah, I think we have to develop some way to do this as a cohesive body rather than
individuals because everybody knows individuals are going to have individual
answers. I don't believe that is the way they were presented. I believe that from
what I was reading, they were presented as something to be answered by the
council as a body.
Thornberry/So we should talk about these before hand or during that time we come out
with a definitive answer?
Kubby/It was suggested that we each go through the questions and check off the ones we
feel have been answer and see if there is a common group that we need further
response to and we will start that process.
Woito/Does anybody have them all gathered in a pile?
Kubby/I think I do.
Nov/I think we have them all gathered in a pile.
Council/(All talking).
Norton/My questions are based on some of those that we got. So I think we have to run
down it together and see. But it is quite a long task to run through it and see
whether we have dealt with it appropriately at all or if we can. It could be long.
Nov/Okay, make it at home.
Vanderhoef/(Can't hear).
Nov/And we will come back on Wednesday.
Woito/Put them all together?
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Nov/Steve.
Atldns/A quick question for you. Would you just reconfirm how you want to conduct the
meeting on the 19th? I just want to make sure to get it set up.
Nov/This is what we are trying to do now?
Arkins/Okay.
Nov/This is what we are trying for. We are not exactly cohesive yet. We have decided-
We have decided that we are going to check off public questions at that time. So
we are now saying that we are going to do that first. Right? Okay. I would like us
to also say at that meeting we have that night as a public question time, after
tonight the public question time is no longer available. We have to somehow close
it.
Norton/At~er Wednesday night?
Nov/Yeah, I am suggesting that we somehow set ourselves a date. We can release this to
the newspaper, please get your questions in before Wednesday or on Wednesday
because we are going to set policy changes or procedure changes and we want all
these questions before that. Now just some way that we can keep moving. Does
this sound reasonable?
Norton/My only question is this. If we come in and start reviewing these questions, there
are 63 of them on one set and there are probably that many flooding around in
other letters, many of which have been dealt with. But that is going to take quite a
time to go through those and let's suppose we identify 12 that we think have not
been explicitly considered and the answer would be in materials that are publicly
available. At some point somebody has to form, the council collectively has to
formulate a response. Now when do we do that?
Nov/Is that what you want to do? This is all being discussed. Do you want to?
Norton/I assume that we ought to try to do that. I guess that is what we have been asked
to do.
Kubby/I would prefer that as much time as possible on Wednesday be devoted to us
listening to the public.
Nov/That is the general idea.
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Kubby/That even if we have to have another short meeting or assign someone that
everyone by a certain date on council goes through those questions and checks off
what we think has already been answered and identify which questions we want
council to answer without staff providing a base line answer. And assign a council
member or two to compile that and present it on Wednesday. We don't need to do
all that work in public. That doesn't seem like a good use of public time.
Nov/That is what we are not understanding here. I said mark it and bring it. Dee said
discuss it on premises. And I want to know what everyone is thinking.
Norton/We ought to identify the subset that needs to be answered and then assign
someone to draft a tentative council answer, circulate it among us and see if it
works. I will be happy to work on that.
Nov/Will you bring your copy with your markings and with your name on it and just turn
it in on Wednesday and if everybody else will do that, we will not spend discussion
time on Wednesday but we will have a stacked of marked questions from each of
us which the staff can then go through and see what kind of answers they may
propose. But I would like their answers to be proposals to us.
Norton/So we mark those as whether we think or whether that question is answered. We
will just say we think it has been answered, if necessary, where. And otherwise,
these are ones to be answered and okay.
Nov/And without our answering them on premise on Wednesday.
Norton/Do you want a drat~ answer too?
Kubby/So we do that work on our own, we bring them on Wednesday to compile so that
most of Wednesday night will be public input?
Norton/Yes.
Kubby/And then do the work of answering unanswered ones or the unanswerable ones
later.
Nov/Okay.
Vanderhoef/I still have one question.
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Thomberry/Later on that day or later on at another-
Norton/Occasion.
Vanderhoef/Okay, so we are going to hear from the public prior to us having any
conversation about policy?
Norton/Yes.
Nov/If we have out list available to the public as it says 20 some changes. They may
comment on those and they may-
Kubby/And we should have copies to them here.
Nov/And they may also comment saying these 20 changes are not enough, you ought to
add this one. They can say that.
Vanderhoef/Yes, that is fine but we as a council are not going to have any conversation
about those-
Norton/Those 22 plus.
Vanderhoef/Prior to the public input.
Norton/Couldn't we start that evening with them because I thought there were several
beyond the 22 that have been proposed since the 22 were developed. Wouldn't we
have to start by running over those before then we turn it over to the-
Kubby/They can be available to the public just like the 22 are. So that if we have the most
of the 22 and anyone who wants to propose additional ones can put them on paper
and those can be made available to the public.
Norton/Wait a minute. This is not as though we have agreed on these 22 all together.
Lehman/Dee, I think the changes in policy are going to be an on-going thing.
Norton/True.
Lehman/A continual process. So whether or not we get them all gone over on Wednesday
night, I don't think makes a whole lot of difference. We need to constantly peruse
those things and them are going to be more changes coming up.
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Nov/Yeah, I heard even more of them today and I think those will all be picked up. I see
all these staff people taking notes. Can we agree that Wednesday night is the end
of public questions on the Shaw case so that we can move into policy changes at
our next meeting.9
Council/(Yes).
Kubby/I am tentative to say yes because it matters- There may be some area that none of
us have explored and if that is true-
Norton/We can always change our mind then.
Thomberry/It takes vote four votes to- If something else comes up later, I am sure-
Lehman/Karen, I agree with you but this thing is never ever going to be over and thank
God it won't be because I think it is something that we have to remember forever.
But at some point in time I think we owe it to our staff and the public to have
some sort of closure. Not that it is over because it will never be over. But we can
keep it going forever.
Kubby/I just gave it a tentative yes.
Nov/All right, a tentative yes is what we need now and I am not saying questions on
police practices in general are going to stop at that point. I am just saying
questions on what happened on that particular occasion has been answered as
much as we can answer them at this point. So I would like the general public to
know that next Wednesday is the end of answering questions about that particular
occasion because we may never have more information on it. If we have more
information on it, then we may change.
Thornberry/When the DCI report is made eventually available to the public and we get a
copy of it, that may raise questions that we may want to revisit. A question on the
policy changes, 20 whatever. We have to had a chance to discuss those amongst
ourselves. Are we going to be doing that before we just say there are policy
changes that some of us may not agree with?
Nov/We say they are proposed. We may or may not adopt them but if the public would
like to comment on the proposals or propose something else, we are listening.
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Kubby/And I would encourage any council member who has additional ideas, to put them
on paper so that they are available on Wednesday for the public to look at and
maybe comment on. That would be helpful for our discussion if we do get down to
deciding how we want to do it.
Nov/That is a good idea.
Atkins/Don't go away.
Kubby/Procedure for the public.
Atkins/I need to understand how you want the meeting to be set up, structured,
conducted. Are you going to have a sign-in? Are you going to fill out cards? Just
what do you want done because how we set this up, I suspect you may get a
decent size crowd. Folks are going to want to show up early, get signed in. We
want to make sure we can accommodate all of that.
Nov/We do want people to sign in if they intend to speak. We will accept cards, questions
on cards, comments on cards. It is okay if somebody would like to comment
without standing at the microphone and facing the camera.
Atkins/Okay. Now, just so I understand. Joe shows up, signs in to speak, that means you
will getting this list, we will give you this list, you will call Joe and Tom and Dick,
right down the line and they will come from the audience and that is how you
intend. So signing in is a request for time to ask a question, right?
Nov/That is right. A request for five minutes, that is what it is or less. We are going to
really bang the gavel on this one. I expect a lot of people to talk. I expect no more
than five minutes.
Atkins/How we set it up, so people need to know that coming in. I ask a question or
make a comment, I am limited to five minutes. So they know that.
Nov/I will accept three minutes if the rest of council wants to go along with that.
Norton/I thought we were trying to focus on questions?
Kubby/And comments about policy.
Norton/Suggestions.
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Atkins/So questions and or comments. They will come to the microphone, you may ask a
question on a card we will have made available, you would answer those after
everybody who has signed up has had their opportunity to do their thing.
Kubby/Maybe go back and forth.
Council/(All talking).
Atkins/We will have a list. We will have a list of names in front of you and you are calling
them off. As you call them off they come to speak. When that is finished, you then
are given cards from other people who chose not to speak.
Kubby/I guess I am suggesting that five speakers and then a card question depending on
how many we get. So we bounce back and forth.
Atkins/You need to think about it.
Nov/That is my question. Are we willing to go along with three minutes rather than five?
Norton/If we are going to get any variety, I would say three.
Vanderhoef/The card situation, a lot of times if those questions get read and get
answered, we might be able to do each one of those questions in say one minute or
so. That is on real specific questions and if those were already answered, it might
speed up what then comes to the microphone or give people an opportunity to
come back toe the answers if they are specific answers that they want from staff.
Norton/Why are we going to cards? I forget.
Kubby/People don't want to come to the mic to make comment or-
Norton/They could read it off their card, can't they?
Kubby/In case they don't want to appear on camera for what ever reason.
Woito/How soon ahead of time are you going to make this list of sign up?
Atkins/I'm assuming we would have, if the meeting starts at 7:00, I'd assume we'd start
accepting people signing about 6:30.
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Kubby/And people could sign up during the time that the meeting was going on as well.
The sheet should say what an ending time is, I mean where we do when we're
starting at 7:00, let's say it's 10:00 or 10:30 and there's still 20 people on the list,
because there's a good chance-
Woito/There might be people at home watching and then come down.
Nov/(Can't hear) shorten this time frame. If they really want to be sure everybody has
turn.
Lehman/Absolutely.
Thornberry/May I suggest that if there's, if somebody mans the desk out front till 5:00 or-
Karr/We're going to get requests the minute you're off the air to sign up.
Woito/To sign up immediately. So why not let them sign up now?
Thornberry/That's what I was thinking. We could start accumulating questions.
Somebody might get up off 5:00 and be walking past and they come in and write
down a question, why not accept it?
Atkins/I am not saying write down the question.
Woito/They just write down their name.
Atkins/Write down their name.
Woito/We just need their name.
Karr/I think Dean's asking why not leave a question if they want.
Norton/They could do either.
Atkins/Or leave a question.
Norton/Do they sign up for a particular hour or just a random time?
Woito/No. I think immediately, people are going to start coming in to sign up.
Kubby/It's first come, first serve.
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Thomberry/If they're not there, we go on to the next one.
Atkins/I would not open it to soon. I mean, pick a time that sign up begins on a certain
date or something such as that.
Norton/Like Monday.
Atkins/Other wise I think you could have-
Woito/Monday is a holiday, we are closed.
Nov/I don't want to say Monday. If we are going to say you must here, you can't phone
in, you cannot pop in, you must here on that night, 6:30.
Thomberry/I guess I am asking if they have a question and would just assume have
somebody else ask the question. If they wrote their question on a 3 X 5 card-
Kubby/They can leave that anytime.
Nov/Okay, yes. But I think that if you are going to sign up, you should be here and sign
up.
Atkins/I think you owe it to the folks that come. I mean they are the ones that I think that
made the effort to come down here and address you and ask you questions.
Norton/They can ask first, in other words.
Atkins/I think they certainly should have a priority because they are here.
Kubby/Well, if you sign up today at 5:00 and at 7:00 on Wednesday we call your name,
you are not here, you missed your turn.
Thornberry/That is right.
Atkins/Forever.
Kubby/Unless you come in later and then sign up later at the end of the list.
Atkins/Okay.
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Kubby/Presence is still a requirement. I mean, how else would it work?
Nov/It is still a little ponderous.
Vanderhoef/I would like (can't hear).
Kubby/I like Dean's idea.
Thomberry/Well, there are questions that might want to be asked that they would just
assume not.
Kubby/We agreed on the question part.
Atkins/Someone poses a question, we will see that it is written down and made available
to you.
Thomberry/On a 3 X 5 card.
Nov/All fight, on a card is fine. At the top of the sign list in big red letters, please print.
Big red letters so that we don't get scribbles that we can't read.
Norton/And when is the sign up sheet available, fight away?
Nov/No.
Kubby/We are still deciding that.
Nov/I don't think so.
Kubby/There are two people who want to do 6:30 and-
Norton/I think 6:30 is a little late.
Kubby/And two people say now and Ernie and Dee need to decide where they are.
Lehman/I really think this sign up probably should be up here. If they sign up and they are
here and they want to sign up.
Council/(All talking.)
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Norton/I don't see why it can't be somewhat earlier so that people who are coming don't
have to rush down here at 6:30 and sit around now for another extra 1/2 hour. In
other words or 6:00. Why can't they sign up sooner. I don't see that would be a
big problem.
Nov/Do you 6:00?
Thomberry/They get off work at 5:00 and they are walking by and they want to go home
and get something to react and come back.
Norton/Sign up at 5:00?
Thomberry/Sure.
Woito/Marian is still going to get a lot of calls between now and then.
Lehman/You see, I have no problem with folks calling in and putting their name on the
list at 12:50 today if they are going to be here that night and they want to speak.
Woito/I agree.
Norton/I think they should sign up now.
Council/(All talking).
Kubby/There are four people to sign up immediately. If you are not present when your
name is called, you can still sign up but your name goes to the bottom of the list.
Nov/You must be here and physically sign your name. You may not call in. This is not an
option. There must be a physical presence.
Lehman/No, Naomi, I disagree with you. I think if somebody wants to speak at night, and
they want to call in and tell us now and be on the list, I have not problem as long
as they are here that night.
Kubby/If they are not here, they can't speak anyway.
Nov/I think we are going to tie up staff time on the telephone. I think this is unfair. I think
there should be a sheet to sign and if someone comes in and signs it, I would go
along with today but I will not going along with spending staff time on the
telephone.
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Norton/I am re-thinking too because I think, Naomi, otherwise people who happen to be
watching this will have a big advantage in terms of signing up early. I would put a
sheet out Tuesday morning and be done with it. Tuesday morning.
Kubby/At the minimum to have a sheet at the information desk now. But I have no
problem spending staff time to get the calls or take the e-mail requests.
Norton/Let them sign up- When should that sheet drop, today, tomorrow or Tuesday?
Lehman/Put it out right now as far as I am concerned.
Thomberry/Have the sheet at the information desk inside the Civic Center and they can
come in.
Karr/I would prefer they come to the City Clerk's Office.
Lehman/Okay, that is fine.
Kubby/We should make sure the Information Desk folks know that.
Norton/When should they start? I would like to give some time for a thing to be in the
paper or something so that just people who happen to be viewing have other wise
a substantial advantage.
Lehman/One thing that I have heard about that fmstrated me personally. I have heard and
I have read in the paper the talk about sweeping things under the rug. I don't
sweep things under the rug. My wife doesn't let me. And I think we have really got
to let anybody who wants to speak to us, speak to us.
Norton/No doubt. The question is when do they start signing up? I have no problem.
Lehman/We make it as convenient for them as possible. We insist that they be here in
order to speak.
Norton/True. I have no problem with any of that. Ernie, it is just when do we start?
Today?
Council/(All talking).
Lehman/I don't care. I just think they have to have that opportunity.
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Atkins/Let me give you a target. 8:00 Tuesday morning, the 18th, this sign up sheet is
available and anyone who wishes to come in an sign up. Now pick it apart.
Norton/That is my thought. That would be my thought, too.
Woito/It would be my preference to do it late today or Friday morning.
Kubby/I agree with Linda and Dean Thomberry.
Lehman/And they can do it over the phone.
Norton/No, no. No.
Council/(All talking).
Nov/I am sorry, I don't want that. I want somebody to come in.
Kubby/(Can't hear) to agree on one way or another.
Lehman/Probably not. We can't get two people to agree on anything.
Thomberry/Put the sign up sheet in Marian's office, she requested as opposed to the frout
desk. The City Clerk's Office is right around the comer. She would rather have it
in her office than at the front counter, that's fine and have the sign up sheet
available-
Kubby/3:00.
Thomberry/3:00 PM is fine today.
Lehman/Today, I agree.
Norton/All right. Let's go with it.
Nov/All right, I hear three- four for 3:00 PM today.
Norton/Yeah.
Kubby/Are phone calls accepted.9
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Thomberry/No, they must come down and sign in.
Nov/I am sorry, I insist, no phone calls.
Kubby/Well, we don't have four. I think there is two of us.
Norton/Come down.
Lehman/Yeah, I will take phone calls.
Atkins/3:00 PM today, sign up sheet available, must come in.
Lehman/I got to go home and feed my dog.
Nov/Okay, one more question before we adjourn. I think perhaps this arrangement with
these people at a table but turned the other way, facing the audience, might be an
easy way to handle our questions. The public questions can be addressed to either
council or to any of these staff people who are sitting up on the platform and
facing the audience. What do you think?
Kubby/I would like staff to be conscious of that and do it the way-
Atkins/I think three of us: R. J., Dale and myself sit there and Linda certainly has her spot
over there.
Kubby/I listen better when I see faces and I would appreciate the way-
Lehman/Could we put R. J. in the lobby?
Atkins/So I understand how the conduct-These are questions to you. You will defer them
to us if necessary. I mean you may say, Steve, would you please answer, R.J.,
whatever. These are questions to you. I don't intend to engage in a debate with
someone at the microphone.
Nov/We will specify that these are not debates. These are questions.
Atkins/Even if it is a debate, questions to you, we will take it to the staff person.
Norton/And we can get help from you if we need it, yeah.
Atkins/That is fine. That is what I understand.
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Nov/All right. Is there anything else that people want to do, want to change, anything.
Lehman/I just kind of want to go home and feed my dog.
Nov/Okay, bye Ernie, we are adjourned.
Kubby/Thank you all.
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