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HomeMy WebLinkAbout1997-04-29 TranscriptionApril 29, 1997 Special Council Work Session page 1 April 29, 1997 Special Council Work Session 6:00 PM Council: Nov, Baker, Kubby, Lehman. Norton, Thomberry, Vanderhoef. Council: Atkins, Helling, Woito. Karr, Winklehake, Hamey, Mitchell, Holecek. Tapes: 97-70, all; 97-71, all. Proposed PCRB Ordinance 97-70 S1 Nov/Potential Board which will receive citizen complaints about the Police Department. We are going to start with a little background information. This is Linda Woito, our City Attorney. And then there will be council discussion and then we will have input from the general public. Woito/Good evening. Thornberry/Good evening. Woito/Nice to see you here again and we are hopefully in the last stages of this PCRB business together. You have what I am going to be presenting on the overhead, you have in hard copy. You cannot hear me, Dee? Norton/Just needs a little bit more microphone. Woito/You should have a hard copy of the materials that I am going to be presenting on the overhead. Nov/Is the camera picking that up okay? Woito/ Can everyone see that? Camera? The PCRB, this is a background of where we have been (Overhead: PCRB Background - Where We Itave Been). We began discussions on this matter in September of 1996 and the council discussed it over the various months. We initially began with an idea but the common the themes have remained throughout and I have listed them here. This will help not only you refresh your memories but also the people who have not been intimately involved with this at every stage of the game, to sort of play catch up and know what we have done. The common themes that we have talked about in terms of a citizen compliant review process and providing some kind of external accountability of the Police Department to the council and the citizens as to how it performs overall. One common theme that you all agreed on is you want mediation available to the citizen and the police officer at anytime in the process whether that is at the very beginning, as the process continues. As you all know, cases This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 2 settle on the court house steps and even if you get into the process, it is my understanding you all want mediation to be available even at the very end. You want a simple complaint process. You want it available at a neutral site and something that people can do without the assistant of a professional or a lawyer. #3 You want a thorough investigation into all citizen complaints regardless of the nature of the complaint, against conduct committed by or suffered by sworn police officers. In terms of investigation of all citizen complaints, there should be no screening process initially as to whether they are frivolous or non-frivolous. The PCRB Board powers, you have consistently requested that they review. They have the authority to review police investigations of all citizen complaints. The Board should also have the authority to comment on those investigations. For example, was the investigation accurate? Did it ask the right questions? Has the police investigation overturned every stone that was relevant and looked at all the appropriate policies and laws? The third thing is the PCRB, you wanted the Board to have power as a general matter to review police practices and procedures and written policies and to report to you from time to time and at least once a year. You want the PCRB to keep a central registry of all complaints which will again give you an overview of the big picture of what complaints come in. They should be logged in, what their disposition is, what their status is at any time and how they are resolved. That will, again, flag for you certain problem areas if you see a repeated concern in a certain area or with a certain officer. Finally you have talked about a Board composition. You want it diverse, representing the community. We talked about having a law enforcement officer on the Board and also an attorney. Having discussed the Board composition with all the attorneys in my staff and with some of the council members and also the attorney in Des Moines that I have been working with five members might be somewhat more manageable and we have all agreed that sometimes an attorney being on the Board is not necessarily a plus because they may tend to dominate a group and perhaps we should consider the requirement for an attorney not being on the Board. Having gone through several drafts and discussions, my original draft went out to you March 13. We discussed this at length on April 1. We then discussed it again on April 8. I subsequently did additional research, finally figuring out how the ideas of our original starting point, which I have just shown you, began to take form in terms of putting some flesh on this skeleton of being a real law. That was my job to turn your ideas and policies into law. Having researched some the complex law, I think you all understand we are breaking new ground. There is no Citizen Review Board in Iowa such as we are proposing now. Iowa laws are complex and they don't always fit together in terms of trying to fulfill our goals. However, having done additional research and work, it is my opinion that we can still do a proposed Police Citizen Review Board and we just need to streamline it. (Refers to handout: PCRB - Streamlined). So we are finally getting down to the This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 3 wire of being able to fine tune what originally started out as an idea and is taking shape and I think we are ready now to really get down to fine tuning it. The PCRB process which I have provided in a flow chart which I will show you in a minute. Let me focus on the changes that I have made since we talked April 8. We talked about bifurcating, separating out the personnel matters and the disciplinary matters in order to keep as much of this information in the public domain. So I recommend as a result of my legal research that we must add one additional duty to the Board to comply with constitutional law. And that is if the Police Chief does an investigation of a citizen complaint and the facts are found to be sustained. For example, if there is a use of a baton, for example against someone's knees, five to ten times their lower back. A complaint is made. If the Chief finds that those facts are accurate, then the ultimate conclusion from that in a factual sense is that the conduct is inappropriate. Therefore the complaint would be sustained. If that finding is in anyway adverse or critical of the police officer's conduct in terms of employment law, and this is required under U.S. constitutional cases going way back to the 1970's, the Board will be required to give what we call a name clearing hearing. It can be a very simply informal heating. It doesn't have to be legalistic at all. But it simply means that the Board will have to provide the officer who is involved and whose name and reputation and integrity are being questioned, they must have an informal hearing with the Board to give their side of the story. Conversely, the Board will also give its same notice and invite the citizen to come to that informal hearing to hear the citizen's side of the story. So it will be a simply factual exchange. There is no need to make it overly realistic and get lawyers or anything like that involved. The second thing we need to do to streamline is to delete from the Board's powers and duties any matters relating to access to personnel files, any duties to review or recommend discipline. However, in order to try and keep as much external accountability as possible with this Board in terms of fulfilling your original goals, I suggest, and the attomeys agree that the Board may suggest discipline. They will not be getting a recommendation from the Police Chief in this streamline version. The Police Chief will continue to independently do his own internal affairs report, investigation, as he has all of the time. That will remain confidential and dealing with personnel matters until the very end of this entire process. However, if in the course of evaluating the facts of a particular allegation the Board feels compelled to suggest a certain discipline is appropriate, we think you can give the Board that authority. The Board as well as the public on the last statement of ways to avoid the pitfalls is the Board will have to wait until the process is entirely complete to have access to the Police Chief's internal investigative report and that will be only after review by Police Chief, City Manager, and the City Attorney in terms of removing confidential material which was precisely the process that we applied in the Shaw internal affairs This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 4 investigation. And whether, to the extent in which that information can be made available to the public depends upon applying a balancing test which the Iowa Supreme Court tells us how to do. Kubby/That means the Board or the complainant cannot go to Steve to say I don't know what the past discipline is but I know what the Review Board has said was not appropriate behavior and x, y, and z should happen? Woito/The citizen can always do that with Steve, I think, but that particular step is not in this process as such. Kubby/Including the Review Board? Woito/ Correct. We have- In this streamline process, we have narrowed the Board's authority in terms of reviewing employee personnel records, reviewing prior disciplinary matters. Kubby/I understand that but there is still, I guess- Woito/ I think in terms of a process, Karen, the Board could leave its factual investigation and review of the Police Chief's investigation open until the internal affairs process has run its course. If misconduct is found by the Police Chief or the City Manager, then discipline would be imposed and then this material, to the extent permitted by Iowa law, would then be available to the public as well as the complainant and the Board. Kubby/But you are not talking about parallel systems. I mean, in certain ways, you sound like you are. That somehow the internal affairs report is different than what the PCRB looks at. Woito/That is true. It is different. Norton/At some point you will elaborate how? Kubby/Yeah, we wanted to stay away from parallel but I will wait until the chart. Maybe it will become clearer when you go through the chart. Woito/Ironically enough, Dennis, do you want to jump in here? You don't have a speaker. Dennis Mitchell/I had the opportunity to speak to Professor Samuel Walker, University of Nebraska, this afternoon. Last Friday I faxed him a copy of our revised This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 5 ordinance along with Linda's memo and other materials. And during a brief conversation this afternoon some of the things that he noted- He agreed that the Police Chief should have the power to take immediate action, for instance. Instead of having to wait 45 days for this process to run its course, in an egregious case the Police Chief should have the power to act immediately and impose discipline. Getting back to parallel investigations, one thing he noted is that those are very common today. You have got the internal affairs unit doing their investigation and then if you have a Board, the Board doing its own separate investigation. And part of that is so the Police Department can continue to, you know, investigate their own, do their internal investigation and they are not kind of hamstrung. There is no- They don't have to wait x amount of days for the PCRB or whatever to get done with their investigation. Nov/However, weren't we talking about letting the internal investigation come first and let the PCRB receive that report before they did or did not start their investigation? Mitchell/Right. I am certainly not advocating parallel investigations but to ascertain extent you are going to have some of that. Norton/Let's get that clear right now because it seems to me a fairly central point and I thought we were reaching the point where a complaint came in and the police investigated and then the Board took a look at that investigation, reacted if necessary, and decided whether there was sufficient there, whether they had additional questions, whether they wanted the police to do additional, whether they wanted to do additional with a sequential thing and except conceivably in very rare and heavy duty circumstances, they would not be doing their own investigation. They would be looking at the results of the internal investigation. Is not the case now? Woito/ It is my understanding that you wanted this profess streamlined and you want, I think, you want to avoid some of the major pitfalls. I think you have Home Rule authority to grant the Board access to confidential personnel files. But there would have to be such close scrutiny and restrictions on that Board to assure that that process was- That you maintained the integrity of those confidential records and in terms of your overall goal of what you want, which is to give the City Council and the City Manager an overall picture of how the police is operating as a whole, not just each individual officer's personnel problems, it seems simpler to remove the personnel matters from the Board's authority at this juncture and that is how I Kubby/But that is a separate issue from parallel investigation. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 6 Norton/That is not responsive to my suggestion. Kubby/Maybe we just need to go through the flowchart so we know what the new, the latest version is. Norton/We are certainly not- We are not arguing to look at the details of the personnel record. I don't think any of us are at all. We want to look at the report and comment whether it looks sufficient enough. Woito/Okay. Nov/Let's limit this. Let's not get into an involved discussion of what materials they are going to see. Are you ready for the flowchart or whatever we are calling it? Woito/I am. Nov/Okay, let's see if we can move this along. Woito/This is what I am referring to as a streamline PCRB (Overhead: Police Citizen Review Board ("PCRB") Follow Chart for Processing Complaints [Complaint can be "filed" by Citizen, City Manager, City Council, Police Chief, Board]). This does not try to track what happens when the Board reviews police practices or policies generally. I mean they can do that at anytime. They can convene themselves and much of that will be done in public. This flow chart is for how to deal with complaints. I think one of your primary thrusts is how to be responsive to the community that we are investigating complaints. They are being tracked and monitored all the way through and they are being reported to a Board and that Board will review them. So Stage 1 will remain the same. There has been some comment among you as to whether a complaint can be defined by something that is initiated by someone other than a citizen. And I think I have heard you speak about the Board should always act upon a request by the council to investigate a serious matter, the City Manager or the Police Chief and I think you have decided on a simple majority vote that the Board could initiate a complaint. So for this purpose I have defined a complaint to be filed by the citizen, a City Manager- the City Manager, the City Council, the Police Chief or the Board. Now I realize the primary thrust of this whole process is to try to address citizen complaints. But you can certainly, even on your own- You already have the authority for the City Manger or the Police Chief or the Council to send a complaint to that Board. I am just trying to make it clear. The complaint goes to the Board, there is a central registry. The Board then sends that complaint to the Police Department for an investigation of the complaint, the factual allegations, This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 7 did x, y, and z happen. Did someone use vulgar language or did they not? Were they rude when they issued me a speeding ticket? Factual allegations. The Police Department will then do the investigation and provide a report to the Police Chief. The Police Chief will review it, if he thinks more work needs to be done, he will do his own job and then he will issue a public report to the Board saying this was the complaint filed, these are the allegations, these are the findings of fact which I find to be true and the officer acted inappropriately or appropriately. The complaint is sustained if the officer acted appropriately, the complaint is not sustained if the officer acted appropriately. Norton/There are degrees in there, I take it? Woito/ No, there are not degrees and I am- I mean, I hate to say this but I am following the process that all of the Citizen Review Boards that I talked to, the attorneys, all used this method and- Nov/Would it be all right with the council if we go through the entire flow chart before we get to questions? It might be a little bit easier for the general public. Woito/Now this public report that the Police Chief is giving to the Board will be on the factual allegations of the complaint. It will not include investigation of the police officer in terms of legal misconduct or disciplinary matters. That process will continue on as the Police Chief must do his duty on his own motion or you know, if something happens in the Police Department, the Police Chief is going to do an internal investigation if he thinks it is appropriate anyway regardless of this Board. And the guestimated time is 45 days, that is purely arbitrary. You can change it and it should be stated in the final ordinance that is a timeline that we try to achieve but it is not set in stone. Also in a narrative that you have, I have explained that you put language into the ordinance that says nothing herein this entire process will interfere in anyway with the Police Chief's ability to step in and discipline an officer promptly without waiting for the Board to receive a citizen complaint report. I think he needs that authority to act quickly, especially in light of your overall goal of assuring response to police misconduct. That is your external accountability. A copy of that report goes to the police officer, the City Manager and the citizen. The Board then reviews that and this is a new law that I just described a little earlier. If the result of the Police Chief's report is to find that the officer, regardless of whether it is sustained or not sustained, if the Police Chief's findings in anyway stigmatize the officer in terms of their employment status, their integrity, their reputation, their honesty, then the Board must give a name clearing hearing which I talked to you earlier. It can be an informal hearing, it can be calling the officer in and heating the officer's side of the story at the same time that the Board hears the cifizen's side. I mean that will This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 8 be up to the Board to decide. If there is no stigma attached, if the Chiefs report is not critical of the police officer's conduct, the Board may do a simple review without a hearing on the record. In either case, let me- If the Board finds- If the Board disagrees with the Police Chiefs finding on the allegations and believes the officer's conduct is inappropriate, the Board would still go ahead and do the name clearing. I have left the powers with the Board that you have agreed on before to do additional investigation. For example, send-tell the Police Chief we need additional information from this person or this record, to do additional information by the Board themselves, and to in probably unusual situation, hire an external or independent investigator to do additional investigation. Also, under this Stage 4 for the Board Review, the Board may suggest discipline. It is not required to do so and it is purely gratuitous. The Board may suggest also changes in any police practices which it believes appropriate and this report is going to the city council which of course is ultimately responsible for the performance of the Police Department. For example, there might be one particular set of factual allegations in the complaint. That particular concern may be a building search problem like we had before and the Board might make specific recommendations to the council, to you, and to the Police Chief and City Manager on recommended changes. This is a public report on the complaint that goes to you, the city council. 'Copies to the citizen, the police officer, the Police Chief and the City Manager. That is the end of the process. However, after any internal affairs investigation the Police Chief is investigating because it warrants it, if there is a finding of misconduct and discipline is imposed, then we go through the process of trying to make as much of that information available to the public but that is not a given. It has to be reviewed on a case by case basis. That is the simplified streamline version of the PCRB. Lehman/I got a couple of questions. Nov/Now it is time for questions. Lehman/At Stage 3 you referred to the Police Chiefs report separately from the internal investigation report. Now it appears to me from what I heard you say earlier, the internal investigation primarily is going to be directed towards discipline. Woito/Correct. Exactly. Lehman/In other words, the facts of the case will be presented in the Chiefs report. Woito/Correct. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 9 Lehman/The internal investigation. To me the internal investigation report is the whole ball of wax, really. In your scenario right here, we are talking about only that portion of the report dealing with discipline. Is that correct? Woito/Correct. Lehman/Okay. Woito/And perhaps prior discipline. Lehman/Okay. Norton/But will it include interviews, for example? Interviews with people involved in the situation. Lehman/This is just the Chief's recommendation. Norton/Because this is all the Board is going to see, I am very curious about the extent of the material that is presented to the Board. If it is too (can't hear) we won't be able to proceed. We need to know what- Woito/The Board will get a thorough investigation of all the facts of the complaint and it will include people interviewed, police office. Norton/Complete transcripts of interviews, for example. Woito/Yes. I mean, going back to Stage 2 up here the Police Department and the Police Chief will do all of their in-depth investigation into that citizen complaint and if the Police Chief thinks that misconduct is afoot, then it is incumbent upon him to do a more thorough investigation of his own into possible discipline and misconduct. Norton/That part of it will not be there and I understand thaL I just want to make sure that everything else will be. Woito/Yes. Kubby/So when we were talking about parallel investigation, it is really the internal investigation with these things removed. With facts about the police misconduct and about disciplinary matters reviewed. It is not a separate investigation. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 10 Woito/Correct. It has been bifurcated, edited, removed, kept separate for over-arching and legal confidentiality concerns and trying to protect the integrity of personnel records. Kubby/So I guess when I hear the term police misconduct, maybe I am just reading those words of a lay-person. If facts about police misconduct are not part of the public report from the Chief to the Board, how do they understand the Chief's conclusion about the complaint is sustained or not sustained? Woito/The Chief's narrative has to be explanatory as to what the facts were alleged, what the facts were that he found and in terms of communication, those facts need to speak for themselves. Ultimately- Kubby/Okay, so we jut put a label on it that this was not appropriate or this was appropriate. Woito/Yes. Kubby/The words sustained or not sustained. Woito/Yes. Kubby/It would be nice to have a different word. People get confused about the word sustained. Does that mean it is okay or not okay? Maybe we can think about that, too because we want to use plain English. Woito/ I know. Believe me, I went back to this kicking and screaming but all of the attorneys that I talked with I said- I haven't even been able to get a copy of one of these citizen complaint reports except from Des Moines. I did get one from Des Moines but those are done by the City Manager and they use the very same language. "Your situation your daughter was missing, the call should have been elevated to a priority one status and officer- the dispatcher erred in judgment. Although the mistake was not malicious, it was not up to the standards expected by the Police Department, your complaint has been classified as sustained by the Police Department." This means that the acts complained of occurred and were inappropriate. Now, I think those facts are plain and they will have to speak for themselves. Nov/The ordinance will have a page full of definitions. Lehman/No but this is of a format that will be presented to the Board under the Police Chief's report? This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 11 Woito/Correct. Lehman/It was inappropriate. Woito/Yes. Lehman/Okay. Norton/And what happened, right. I am concerned that the errors of omission and errors of commission and degrees. That there is some nuance in there. Woito/Well, I think you are going to have to trust your Board to be savvy enough to say okay, we don't agree with the Police Chief and we want you to do more investigation or we want you to look at would this have been more appropriate or- I don't know. I have enough faith in five reasonable people or seven to come up with those appropriate questions and degrees of concern. Baker/I have faith in five qualified people if they have enough information to ask questions and this is what is not clear in my mind about what they're getting despite the previous five mim~te discussion. They are getting a narrative of the investigation from the Police Chief. But they are not getting transcripts of the interviews. Norton/I think they are. Lehman/I think they are. Woito/They can. Kubby/I guess I felt my question was do they get the internal affairs report minus the police misconduct statement and the disciplinary matters and I thought the answer was yes, which means it would have all the transcripts, all the reports. Norton/Minus the heavy duty personnel stuff that we are not suppose to get into, yeah. Baker/Which comes into the evaluation of discipline, right? Woito/Right. Baker/Which is I thought where we were last time we talked. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 12 Norton/Well, she is saying we can't get into that part. Baker/ Well, that was one of my questions about the Board can suggest discipline but we would- I thought we reached a conclusion last time in that the Board ought to stay out of the discipline arena because they won't have access to the standards by which you impose various kinds of discipline. Norton/Wouldn't it be possible, Larry, to get into the discipline in the following way. You would say according to having read the ChieFs report and officer x was involved and officer y was also involved and very little is said about officer y. Couldn't you say in your report it seems to us officer Y's behavior ought to be scrutinized. In other words, you could imply more ought to be done with respect to officer y without saying what. Lehman/Well, I agree with that. That is not a suggestion of discipline. And I agree with you, Larry. Without access to personnel files and history of an officer, that Board would be very hard pressed to make a suggestion on discipline. I think suggestions- Baker/I thought we steered away from that last time. Lehman/I think we have and I think we should. I have a question. Woito/We can take that off. I am just trying to keep more teeth in it than it had last time. Thomberry/I don't think that Board has anything to do with discipline because like they have been saying, three strikes and you are out. The Board is not going to know if they have had two strikes. Woito/No. Kubby/But that- It doesn't have to be that way. It could may be that, Dean, the fact of discipline is suggested, not the kind or degree because they won't have access to that information. Thomberry/I don't think it would be even appropriate for them to mention any form of- Norton/They need to. All they could say is this guy was involved more than it seems from the record or more than you found. Baker/The assumption is that if the finding is that the conduct of the officer/officers was inappropriate or unjustified, some sort of discipline will follow. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 13 Norton/Presumably. Baker/The Board doesn't have to suggest that. The finding will suggest that. It may be just a reprimand whatever. But if you find inappropriate or unjustified actions based upon the policies of the Department and that is the Chief's finding, then I would assnme that some sort of discipline would follow. Now it doesn't have to be suspension or stuff like that. Thomberry/Could be completely up to the Chief, isn't it? Norton/Yes, it is. We wouldn't know anything about it until much later. Thomberry/The PCRB doesn't have anything to do with that. Shouldn't have anything to do with it. Baker/If we are focusing on the review powers of the Board. Thomberry/The review of the procedures. Baker/Of the procedures and conduct. Thomberry/Not of discipline. Baker/Not of conduct. This is what- We are blurring that line again, it seems like this discussion. Norton/Well, I don't think so, Larry. I think it is perfectly clear that the Board ought to be able to say we think this officer's behavior was inappropriate despite- and the Chief didn't find that. Now what he does about that is his business. Kubby/That is different than discipline. Norton/That is different but it certainly implies that discipline might ought to follow in our- But it is up to him what he does. Woito/It is up to you. I mean this is your Board. It is up to you whether you want the Board, based on the information that they have and they reviewed and having worked with the Police Department, do you want them to make suggestions or comment on proposed discipline? Thomberry/No. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 14 Lehman/No. ? / No. Kubby/Yes. Norton/Depends on how. Baker/To say that in our opinion the facts of this case would lead us to believe that the conduct was inappropriate, unjustified or whatever. The Board ought to have that right. Norton/Yes. Baker/That obligation. Lehman/That is not a suggestion of this one. Vanderhoef/No. Baker/Is a statement of their position based on their review of the facts regardless of what the Chief says? Norton/Right, they ought to be able to do that. Baker/That ought to be clear that that is a right of the Board. Vanderhoef/Then I have got a question. If we are going to go forward with that and the Police Chief has already made his statement, he has imposed his discipline- Baker/He hasn't imposed it yet. Woito/He might have. Vanderhoef/That is what I am saying, he may have. Then if this is the scenario, what is left for the PCRB to do but to concur that yes, discipline was necessary. There is no way to suggest or change or do anything else. Then my question is why are we reviewing it? Norton/Because there is a case fight in front of us, Dee, that (can't hear) very specific. But let's suppose the Chief has found some officer's behavior inappropriate, and This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 15 he said and that is his conclusion. And he found some other officer's behavior not inappropriate or didn't say anything about it. And the Board reviewing said hey, somebody else is involved here. So there might be things- You don't have to say what to do about it, you just make a finding if you think he was involved or the person was involved in some inappropriate way and the Chief has to deal with that subsequently if he chooses to. Baker/You have officers in the same incident where some are disciplined and some are not. Thomberry/You are still going to be looking at the Police Department investigation. You don't think he is going to be looking at everybody involved during his investigation? Norton/Ordinarily, you certainly hope so. Thomberry/Of course he will. Kubby/He is suggesting they are drawing a different conclusion than the Chief has about the same set of facts. Lehman/Or they could ask for further information and think this is part of the job. Woito/Yes, definitely. It is part of their job. And the whole theory of this is that the Board is providing- Nov/To ask for further information. Woito/ The Board is providing the city and you with a checks and balance system which is independent of you as a political body, it is independent of the Police Chief and the City Manager. It is a Citizen Review Board and I think you want input from the Board on a variety of things to the extent that we don't get mired into problematic personnel problems and I think that- I mean, that was why the four lawyers when we talked about it suggested leaving in the Board could comment or suggest discipline, knowing full well they have no authority and that they don't have all of the information. But it was seen as a checks and balance for the overall good of the community and the city council. But it is up to you. Thomberry/I don't think that they have all of the information. If they are not provided access to all of the information, personnel matters, of all of the officers involved in any incident, they should not comment on the type of discipline. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 16 Lehman/Dean, I think you are right but they could say in view of the facts, it appears that discipline is appropriate. Council/(All talking). Thornberry/This is after the Police Department investigation. Norton/Right. Right. Thornberry/Okay. And if the Chief determines that under the circumstances of the incident that no discipline is required and the PCRB, reviews the investigation and comes to a different determination, what do they do? Woito/ Dean, may I answer your question? That is the kind of information and review and independent input that the council wants and needs in order- There might be- They should- Some of those things might send up red flags and that is the purpose of this Board. It is to give you information. Okay, here is an independent body. They see the facts this way. They might say this justifies a five day suspension. And then it is up to you as overall supervisors and it is up to the City Manager to say wait a minute, maybe we ought to look at this a little closer. This is intended to assist you in oversight of the Police Department which was one of the original goals that we started out with. Not micro-managing, not getting into the details of every single personnel issue. But looking at the big picture. Thornberry/My question remains. Nov/Say your question once more and let me try to answer it. Thomberry/If the Police Chief, after the internal investigation concludes that no discipline is necessary and the Board upon review of the police investigation determines that they think there should be discipline, what does the Board do? Norton/You try it. Nov/Let me try it. If the Board does not agree with the Chief, what do we do? The City Manager has the next step. If the City Manger receives a report from the Police Chief that says yes or no and then receives the opposite report from the Board, he would be obligated to investigate this case a little bit more thoroughly and make a determination based on both opinions. Kubby/Assuming the timing was right. That the discipline was already imposed by the time the PCRB made that determination. Then even with that, it is still valuable This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 17 because we can see when there are disagreements. Is there a pattern to the kind of disagreement, a certain kind of situation? And that helps us have oversight even if nothing can be done about that. Having that information that there was disagreement is helpful in us having oversight. Norton/A simple- another answer to Dean is that the Board comments go back to the Chief as well as well as to the City Manager and the Chief might re-think his position and do something additional or different than he had previously contemplated and the City Manager, between the two of them will work it out and if they continue to ignore the Board report I suppose they would feel it in some sense down the line at some point when you evaluate them. Nov/It is possible that just a hearing by the Board will create a different answer from a Chief of Police or from a police officer based on the kinds of comments that the Board would make during that hearing. They wouldn't even have to suggest discipline. It might just happen that way. Thomberry/Conversely then, the Chief gives discipline and the Board thinks it shouldn't have given discipline. They do not and should not and cannot say that guy has got too much. He was disciplined far too severely. They don't know because they don't know the officer's personnel file. Woito/Dean, may I ask if that one instance- Thornberry/If one is right then the other. Woito/ That is only one instance. What you are going to be looking at is a year's worth of a picture of what happens in each instance. You are right, there is nothing- You get the information, you have no power. I mean the Board has no further power. It is information that you put into your banks up here and into the annual report and then you look at the big picture after a year and you use it. I mean, that is all. That is all it is. It is just informational, big picture information. Baker/If the degree- CHANGE TAPE TO REEL 97-70 SIDE 2 Baker/The Police Chief over a significant issue are so far apart and it will come to the council at one form or another whether it is a regular channel or not. The council always has the power to evaluate the City Manager at any time, not just once a year. If you feel strongly that some injustice has been done one way or the other · This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 18 on a serious issue, the council can always act, not to the Police Chief but to the City Manager. Woito/Right. Thornberry/I am just saying if it is one way, then it has got to be the other. Norton/It could happen, Dean, that the Board's comments change the Chief's mind and he may- Thornberry/I don't think that they- They can review but I don't think that they should suggest. Kubby/I like keeping that in and if there aren't four people who want to do that, I would be willing to have it say the Board may suggest the fact of discipline, you know, whether there should be discipline and not necessarily what the degree or form of that discipline comes. But I think that is a- Thornberry/You may not know whether there should be discipline or not depending on the personnel file of the individual. Baker/The degree of discipline is what you don't know. Nov/You don't know. You can, however, say based on these facts we think the Chief of Police should not have applied discipline to this officer on this day. Now the Police Chief may say based on all of my records, I don't agree with you. That is as far as it goes. Norton/I still think you focus your comments on the- your judgment of the appropriateness of the behavior of these various people in the various circumstances. That is what you talk about is the appropriateness of their behavior. Thomberry/Of that specific incident on that specific day. Nov/Right, that is all you can- Norton/Either appropriate or not or could have been better or so on. Thomberry/But it is still going to be the Chief's. Norton/His call. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 19 Nov/That is right. Okay- Steve has a question. Atkins/I want to try something, Linda. If I read this when the Chief would issue discipline, it would go to the Board for review and the Board can then- Woito/No, the Board does not review discipline. Atkins/He has issued a report and issued discipline. They can happen- Woito/After the fact. Atkins/The Board must review the matter before the discipline is issued? Woito/No. I have changed that. I have streamlined that. Atkins/Back it up again. The Chief prepares a report on a circumstance, an incident. The Chief makes a judgment that discipline is in order, discipline is issued. Woito/Correct. Atkins/So now the deed is done. Woito/Correct. Atkins/The officer now knows that discipline is- It then goes to the Board of Review for them to look at and they have an opportunity to comment as you just went through, whether they believe that discipline is appropriate or not, not enough. Nov/They don't know what that discipline is. Woito/They might. They might. What I have done is take out their obligation to review that. Kubby/Can it be- Woito/Go ahead, what is the matter? Atkins/I want to walk through this because what I just heard it appears that I am going to be involved in the discipline of the same officer possibly three times. If you will see where I am in a minute, like we were talking the other day. So the Chief issues a report, issues the discipline. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 20 Lehman/Which is approved by you. Atkins/One, it is approved by me. I haven't got to that yet but it is approved by me. It then goes to the Board of Review, the PCRB. They review, they can comment and then there is a Board public report that is put forth with respect to that complaint. Here is my concern. The moment the Police Chief issues discipline, it is immediately subject to the grievance process of which I am part of that process. I am the last step before it goes to arbitration. Woito/That is why I took you ought of this process. Atkins/Yeah, I thought you did. I don't think they did and that is where I am trying to end up at. Kubby/Okay, we are at #2. Atkins/So the Chief issues it. The moment discipline is issued it is subject to the grievance process which is supervisor, department director, City Manager, arbitration. Woito/Can't change that. Atkins/You can't change that. That is in the labor agreement. So I would be involve in the review of the discipline with the Chief initially, page 3. I could possibly be involved in the discipline through the grievance process and I heard you say that referring it to me, Linda has taken me out of it but in the earlier draft, I could have also been involved in it a third time. I am nominally involved in it twice. Woito/Right but you will be- Atkins/Does it not- Let me finish because there is another point, because there is another element. If the discipline involves demotion, suspension or termination, it could go to the Civil Service Commission for an open hearing. Woito/Yes and that could be- Atkins/At that time I could be called upon to testify and offer my comments. Three times. Woito/That is correct. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 21 Norton/The Board didn't have anything to do with that. Atkins/No. Woito/That is the way it is now. Atkins/No, the PCRB is not involved. Norton/We haven't done anything to you except issue a report in the middle here that may muddy the water. Kubby/You do those three things now. You are reviewing discipline now. You are reviewing grievances now and you could be called to testify before the Civil Service Commission now. You are doing three times now. Norton/And you would have the virtue of the Board's opinion. Woito/But this does give- Atkins/Wait a minute. I am trying to understand (can't hear) with me. Nov/Let me see if I can clarify. I was the one who put you in there again. Did I misunderstand that you were going to review all of the discipline anyway whether there was a PCRB report or not? Atkins/There is an inevitability of- Department directors cannot issue major discipline without my approval even if it is run it by me. More often than not, it involves Dale who is the overall administrator of our personnel system. I am informed of those things. And they will tell me the discipline and I will either accept it, reject it, whatever. Nov/And you are making an assumption that you would have accepted or rejected it before you heard anything from the PCRB and I was making an assumption that you might have heard their agreement or disagreement with the fact that there had been discipline before you actually made a final decision. Atkins/I have no trouble listening to what they are saying. What I am saying to you is the moment discipline is issued to an officer- Woito/You have two appeal processes. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 22 Atkins/You have an opportunity to file a grievance immediately. Forget the PCRB, I can do that. Kubby/Maybe it is an issue of timing. We want the Police Chief to have the ability in a very intense situation to impose discipline immediately if he thinks it warrants that. Maybe when those cases aren't before us, there could be something where the PCRB process could go through Stage 4 before that discipline is imposed. Woito/ I am not going to recommend that at all. I don't believe that we have any authority to interfere with the rights under the Union contract. Those were negotiated in good faith by both sides. I don't think we have any authority to- Nov/This has nothing to do with the union contract. This is just a day that the police officer is actually given the discipline. Must he be given the discipline before the Board hears it or not? Woito/No. What I am trying to deal with is maintain the ability of the Police Chief to impose discipline in a faster fashion than we envision steps 1, 2, 3, and 4 taking and I want to make sure that option is open. Norton/I think we understand that. Nov/Let's move it faster. Let's take out the 45 days and put in 25 days. Woito/That is purely arbitrary. Stick in any number. Norton/No matter what number you put in there, in general the discipline would be issued at the end of the process, not early. Only in rare circumstances would the discipline be imposed very early by the Chief and that option, you say, has to remain. But isn't it true that ordinarily it would come later after the PCRB has reviewed the investigation. Woito/R. J., I don't know. Nov/Let's let the Police Chief answer that. Woito/I mean, this is all new for us. You have to remember that. Nov/R. J., under normal circumstances without a gross misconduct, how quickly is a police officer disciplined? This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 23 Winklehake/It would vary depending on, like you said, depending on the circumstances, how many interviews you have. On internal affairs many times it is going to take up to 30 days simply because of days that people are available for interviews, getting the citizen interviews done. It all takes time. we are usually running right around 30 days to get that done and that is usually pushing it. Nov/All right, 30 instead of 45. Thomberry/A follow-up question. After you investigation is done, R. J., how long after your investigation is completed do you administer discipline? Winklehake/The part that we were just talking about as far as the internal affairs, we try to get that done within 30 days. The next step is when they give the report to me, I will review that and that will vary depending on whether I think I need to talk to other people. I may want to talk to the officers involved. I may want to talk to some of the witnesses involved and occasions I have gone out to where this supposedly happened and gone over that. It varies. Sometimes it can be within a couple of days. Sometimes it may be a couple of weeks. Again, depending on how many times, the days off. Thornberry/Then you get with the City Manager and the two of you decide the discipline? Winklehake/These things usually don't happen in nice clean set locks. The City Manager most of the time is aware of an internal investigation. I will have discussed it with him. I have many times discussed it with Personnel and with Legal before we ever get to the point of making that decision. And we may sit down and say here is what we have, now here is what I plan to do. Thomberry/So once you determine that discipline is necessary and say for example, that it is a one day suspension. You notify the employee. They can immediately go to the Civil Service. Woito/Correct. Thornberry/Okay. So while this is going on, what is the PCRB doing? Sitting around? Woito/No, they are proceeding with their investigation. Thornberry/I don't see them as an investigative body. They are not investigating anything. He is doing his internal investigation. He has come to the conclusion that one day suspension is in order and the employee- They tell the police officer, This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 24 the City Manager and the citizen, is that right, at one time what the outcome is going to be? What the- Woito/The Board is still reviewing the complaint filed by the citizen or whoever and is going to comment to you. The report goes to you, the city council, and you can do with it what you want because you want their input. Thomberry/Theyhave got a complaint. They have done their investigation. At the end of that investigation, there is a conclusion that the officer gets one day suspension. And the officer doesn't agree with it and goes to the Civil Service. He wouldn't go to the PCRB. Woito/One of the reasons why we are here tonight and that we have been talking about this for so long is sometimes those things don't play out publicly in front of the Civil Service Commission or over in the Johnson County Court House or in a civil trial. When those things don't play out, you and the public are frustrated because that drama out justice has not played out publicly. This is an attempt to provide a way for you to receive information that is-has been investigated and you do get input from an independent Board. Thornberry/When- Since personnel files cannot, should not and cannot be made public knowledge. Is that correct? Woito/That is the general rule. Thomberry/Then what is this playing out before the public. I don't understand what is being played out before the public. Woito/What happened when someone comes and complains to you, we have talked in terms of your overall goals of having a response to that citizen complaint and having it investigated and you want it reported to you. You want it reported to the Board, you want it reported to you. Thomberry/Once the Board, it says, Stage 5, Board public report on citizen complaint to city council, 45 days. Before that Board review. The citizen, the police officer and the City Manager are- After Stage 3 1 don't understand what is going on. I mean, the PCRB reviews it and either concurs or disagrees. Nov/Or disagrees. Woito/Disagrees, right. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 25 Thomberry/Which really doesn't make any difference anyway because things are going to play out anyway. Woito/But they might not play out as happened in the Shaw incident. They might not play out publicly. Thornberry/I don't see- Are we doing this in case a Shaw incident happens again? Woito/I think the thrust of this was clearly a Shaw incident. I mean that is up to you. I am not trying to- Kubby/Any kind of excessive force incident may- Some of this stuff what the Police Chief is doing and the internal investigation and what happens with the Board could be happening at the same time and that the Board's conclusion can be heard before R. J. has finished his process. Norton/I would like to try to amplify that a little bit because- Let me try this sequence and follow the Chief's series of time. Suppose a complaint comes in and it takes 30 days for investigation. That seems to me high. I am trying to distinguish a little bit and I want to talk later about the difference between an incident which triggers an investigation and a complaint which triggers an investigation. Many investigations proceed without any explicit complaints. Woito/For the Police Chief, yes. That is part of- Norton/We need to distinguish those statements. Let's take a complaint comes in. Let's assume it takes 30 days for the internal investigation. It goes to the Chief, the Chief is reviewing it, digesting it, looking at other things. Let's suppose it takes him two weeks to do that and formulate his report or his comments on the internal investigation. The report that he is ostensibly going to send to the Board. Now, will you necessarily have imposed the sanction, your chosen sanctions as of that time. Or will you, in some cases, be able to wait for the Board to review your report and comment? I understand that heavy duty cases, you may feel that it is necessary to do the sanction early and the Board is going to be proceeding after the sanction has already been imposed by you. Could it be that you would wait to impose a sanction until the Board has commented? Winklehake/You could wait. Norton/Yeah, that seems to me that might be a common scenario. Thomberry/Why wait? This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 26 Norton/He just might want to wait for the additional information that the Board might offer. Thornberry/The Board is going to get the information that he has given them. Kubby/They may draw different conclusions from those facts than R. J. Norton/You mean read between the lines differently- And they may ask for additional information. Sarah Holecek/Can I back up a couple of questions? Dean, you asked a question about what would happen if there is a day of suspension imposed and the discussion went as to whether something would play out in public forum or not. That gives the opportunity for the officer who has been sanctioned, to make the judgment call as to whether or not they want all of that information to play out in the public forum. You are allowing the person who has got the protected personnel and confidential files to make that judgment call. Often times, except in egregious cases, it usually does not happen. So you won't have that dual system going on. But in some instances it may. And then the next question was about, Dee. Norton/Pardon me, I am sorry. I was making a note here. Go ahead. Holecek/And you had asked the next question and the discussion began, I believe, on how discipline is imposed. I think, if you would look at the initial draft, I found it to be something of a problem that we were going to wait 105 days to impose discipline. That is not only arduous for, you know, your Police Department who has got to be making the decision but it needs to be made in a timely fashion. It is also not fight or fair to the officer who is awaiting that sort of determination. Your next question is whether or not the police determination- the Chief's determination as to discipline would occur prior to the Board's review. If I recall the discussion at about a half hour, you were making a lot of comments about whether or not it would be appropriate for the Board to make comment or suggestions as to discipline. And now we have gone back a ways so that you are saying that you would like the Board to make comment or suggestion as to discipline or at least not have the Chief do it first. Norton/We are never talking about the nature of discipline. We are talking about the nature of behavior exhibited in the incident. That is a difference. People keep confusing that with the- I don't give a damn what the punishment is. I want to know what happened and whether x and y were involved and to what extent. It is only the behavior I am concerned with. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 27 Holecek/The examination of the factual basis is what the Board is in charge to do. Kubby/Whether or not the Board looks at discipline, their conclusion could impact R. J.'s decision about discipline. Holecek/And I think the ultimate response to that is that if there is any divergence between the action taken by the Police Chief and what the Board recommends, then that sends up a red flag for you in making an assessment as to the performance of the Police Chief and the department as a whole and that is the ultimate function that you are looking for. Kubby/Does waiting to have the Chief impose discipline until Stage 4 is completed violate the spirit of or the letter of Chapter 20? Holecek/I feel it is inappropriate to hamstring the Police Chief or the City Manager in that situation. Kubby/I am not saying they have to. I am saying in an egregious situation, I think everyone has agreed. You need to act. I am talking about more less egregious situations. Holecek/In a less egregious situation I think that- Kubby/We're not at 105 days anymore. What is the cutoff?. Holecek/But I think a swift response to inappropriate behavior in the workplace is an important thing to keep in mind. Baker/And we all agree with that and we haven't agreed on the number of days the process is suppose to take. We know it is going to be short. Then we talked about 30 for the first block of investigations, 15 after that. It ain't going to be 105. It shouldn't be more than 60. Work down from that. Nov/Hang on just a second, Larry. 60 sounds unreasonable. Larry just said 60 days total time elapsed. I am asking does that sound reasonable? Holecek/Are you requiting the Police Chief to have the Board's response before imposing discipline? Council/(All talking). This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 28 Kubby/Not requiring them. Norton/No, not requiring that. Nov/That is what we need to set out here. Holecek/Let me pose this scenario. That I think if the Chief has any question about the reaction to his discipline or his investigation, he would be prudent to wait the Board's reaction rather than impose discipline. So you are not requiring him to and you are also not hamstringing him to. You are allowing him to make that determination based on the response he may get from the Citizen's Review Board. It is prudent. Helling/I thi~k I can answer your question in terms of the impact on Chapter 20. The answer is no. Chapter 20 would only come into play after discipline is imposed and up until that time it really doesn't. Furthermore the contract we negotiated with police does not have a discipline clause in it. Discipline is permissive at least thus far according to PERB. We would not negotiate into the contract in the future a disciplinary clause that would be in contrast or somehow inconsistent with what you do with the PCRB. Only after the discipline is imposed that the individual then have the right to aggrieve itself. Baker/Okay but we are still talking about two definitions of discipline here and they keep getting blurred. One is which is a finding of fact. The actions were inappropriate, therefore, discipline is approphate. That is the report that goes to the PCRB. Now, what form that discipline takes doesn't go to the PCRB. The PCRB comments on the facts of the case and do they come to the same conclusion as the Chief. It is either inappropriate or appropriate. The Chief still has not articulated the specific discipline, just said the facts of this case lead to me to the conclusion that the officer's conduct was inappropriate. Vanderhoef/We can also say at that point just what we were getting here. That it is prudent to let him say I have imposed discipline without saying what it was or I have not at this point and I will. Lehman/I really agree with what you are saying. I think that if the Board says the actions were appropriate or not appropriate, that is all they need to say. The officer's actions were inappropriate, that automatically infers discipline is appropriate. And I think all the Board really- make a finding of fact and agree the actions were appropriate, they were not appropriate, period. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 29 Baker/They can say- The Chief can come with a recommendation and say a narrative that says here are the facts and from this I think the officer was justified or there was no grounds for- The Board can disagree with that. All right. Now, beyond that I think we seem to agree, the Board doesn't have anymore power. Lehman/Right. Kubby/And no one is suggesting that they have power. But I like the idea of giving them the option of commenting about discipline if they choose to. Baker/I agree. Kubby/And there may only be one of two people who want to do that. Baker/But what I am saying is if they choose to disagree with the findings of the Police Chief, they have made a comment about discipline. Kubby/It matters if it has been imposed or not or I mean, it matters. We can't think of every little case. That is why we need to have this work for general. Baker/We have already agreed the egregious cases are handled promptly. As a policy before discipline is imposed, we would like to see it go through this process of there is a complaint. Norton/That is what I would like to clarify. Nov/However, I don't want this to be a single person commenting on discipline. I don't want a Board member to comment. I want a majority to comment. Baker/Any individual could comment, the Board has a position. Nov/The Board position must be a majority. Baker/Absolutely but you are not going to say that an individual Board member can disagree with the Board. Of course they can. Nov/They can but when it says the Board may suggest discipline, it does not mean one or two people. Baker/It is the majority of the Board. Nov/Right. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 30 Norton/I would like to be sure I understand the general conclusion with respect to the timing of the Chief's imposition of sanction. It certainly is possible that he may have laid on the sanctions before the Board completes it review. That certainly is possible. Woito/That is correct. Norton/It is certainly is possible that he may wait to do so until after he hears the Board. Woito/That is true. Thornberry/That is his option. Norton/Either way the Board goes ahead and does its work and its affect may be felt in different ways, sometimes if a specific case if it is timely and sometimes in a more general way if it is after the fact. Woito/Correct and that will simply be information passed on to you and to the City Manager. Nov/Let's hear from the Police Chief. Can you get along with this? Winklehake/I am trying to figure out the whole thing. I got a question. One, is the report that I make to the Review Board, is that a public document? Woito/Yes. Winklehake/Okay, so I am going to tell them that it is either sustained or not sustained. Woito/Yes. Winklehake/But there is no recommendation for discipline. Woito/Correct. Winklehake/Then we can wait until the Citizen Review Board reviews that and possibly makes a recommendation for what? Baker/They will either agree with you sustaining or not sustaining. Winklehake/There is no recommendation then for discipline. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 31 Thomberry/No. Woito/No. Kubby/Well, it matters what we decide about keeping that in or not. You are saying both ways, Larry. Baker/I am saying that they will agree or disagree with the finding of the Chief whether it is sustained or not sustained. From that discipline will follow- Thornberry/Or the lack of discipline. Or it may have already been imposed. Baker/Right but they can still disagree. Thomberry/That is correct. Kubby/Are there any council members besides myself who want to keep in, under Stage 4, the fourth bullet, the fourth triangle? Thornberry/No. Kubby/Board may suggest discipline but are not required to do so. Vanderhoef/No. Lehman/No. Kubby/You are saying that saying we agree or disagree is telling you the same thing. But I disagree with that. Baker/If you say that the complaint, if the Boards say regardless of what the Chief says, the complaint is justified. The Board is saying there ought to be some discipline. Thomberry/The Chief decides. Kubby/I understand. I guess I want it that if the Board chooses, that it be much more clear and direct about that. Baker/They can do that. Kubby/Not if we take it out they can't. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 32 Baker/They can also say- But they can't say, well, we think five days- They can't be specific because they have the access to those records. Kubby/But I am suggesting the fact of discipline, not the degree or the (can't hear). Council/(All talking). Thornberry/Sustaining or not sustaining. Nov/We are all talking at once. Thomberry/Sustaining or non-sustaining is the same thing. Kubby/And I am disagreeing with you and I just want to see if anyone else disagrees with that stance because if not, we can close that discussion and move on to whatever the next thing is. Baker/ Depending on how the Board frames its position, they would certainly say our view is these facts indicate inappropriate behavior. Now if you want to go ahead and say one more sentence beyond that, at least we think discipline ought to be imposed, I have no problem with that. Norton/Me neither. Baker/It is implicit. If you want to make it explicit, that is fine. Kubby/I want to make it explicit. Thornberry/I think they should not know. They do not know whether discipline should be administered or not based on prior experience. Baker/Any incident that you find inappropriate determines, deserves some form of discipline. Norton/But Dean says look you may say this person, you may conclude, the Board may conclude that this person's behavior was let's say mildly inappropriate in the circumstances. But that person may have never had a flaw in their record as Dean is saying. Therefore to say discipline ought to be imposed might be wrong. I guess I would rather just stick to the facts and your conclusion about inappropriateness or appropriateness of behavior. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session Lehman/Dee, discipline may be appropriate. Norton/Could be may, okay. Thornberry/Yeah. Norton/Discipline should be considered, okay. Kubby/Do you mind the word discipline being used by the PCRB in drawing their final conclusions? Lehman/I don't mind as long as we don't tell the Chief or the City Manager that discipline must or must not be imposed. I think if it is appropriate- Kubby/Okay, where are you? Norton/I will go with keeping discipline in as long- Council/(All talking). Woito/There are four who say- Nov/We are still all talking at once. If we concur with Karen, we want to say that the Board may use the word discipline. They may say we believe that this particular complaint is not justified and we think you should never have put in discipline. They can say it. It means nothing, I am sorry. The Chief still does what he believes is right and that is- Thornberry/Sustained or not sustained means the same thing. Woito/That is what I have here. I think it says it right here. The Board may suggest discipline. It says may. Nov/It says may. I would leave it as may. They may or may not. Woito/They may suggest or comment on discipline and in some instances, the Police Chief will already have imposed discipline and if you ask the Board to ignore that fact, when the public knows about it- Baker/We are not asking them to- Woito/Yeah, I don't think you are asking them to ignore it. page 33 This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 34 Vanderhoef/I think our word really is the problem because when we talk about may suggest that, to me, indicates that they have the authority to recommend a discipline and I can read it the other way and I can see where people are seeing it both ways. Woito/Okay. Vanderhoef/That is why I think the language here is very very confusing. Woito/We can say the Board may comment on discipline but has no authority to recommend discipline. Norton/I agree with Dee. That gets confusing. As soon as you say may suggest discipline, it says like you are going to say one day or two days or five days or $500. Vanderhoef/That is not possible. We have got to take that out. Kubby/It seems like we are micro-managing right now. We have an understanding of what we need and it is the attorney's job to make the language suit our policy decision which we have made. Vanderhoef/Sometimes we re-read it so often that it seems right and it isn't. Woito/Discipline if appropriate. Nov/Okay, listen. Did everybody hear what she said? Kubby/No, I did not. Nov/Please repeat. Woito/The Board may suggest discipline if appropriate. Lehman/Yeah but I can interpret that we may suggest the amount. Thornberry/Yeah and I don't think that should be in there. Council/(All talking). Nov/Let us ignore that for the moment and move on. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 35 Vanderhoef/Let's just leave it out. Council/(All talking). Vanderhoef/How about this? Nov/You can re-word it tomorrow. The Board may suggest whether discipline is appropriate or not. Thornberry/Why even have that in there? Why do you have to have that in there? Why can't you just sustain or non-sustain? Kubby/Dean, you have been outvoted. We need to move on. Thornberry/Okay, let's take a vote then, Karen. I didn't see the vote. I am sorry. What were we voting on and how many were voted? Council/(All talking). Kubby/Five people. Norton/It has got to be worded differently. Let's go back to the drawing board and try to word it differently so it doesn't say anything about (can't hear). Council/(All talking). Thomberry/That is three. If there are four others- Kubby/No but during this last couple of minutes I heard Dee Vanderhoef say that if the interpretation was as I was stating it and not- Thornberry/Ask her what she meant. Nov/What Linda was saying is that- Council/(All talking). Vanderhoef/Linda has a wording that I would like to hear one more time, the very last one. Please, Linda. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 36 Woito/The Board may suggest or comment- May suggest whether discipline is appropriate or not. Kubby/How about saying the fact of discipline, not the degree, form or manner of discipline or whatever? Woito/Okay. Kubby/The fact of discipline because that means either present or we are not talking about detail. Thomberry/What was that again? Kubby/The fact. The Board may comment on the fact of discipline, not about the degree or form of discipline. Nov/No, the fact of discipline is awkward. They may suggest that discipline would be appropriate or they may not. They may choose to suggest. That is all we are saying here. Kubby/It seems like we do have a common understanding of what we mean by it. I would suggest that we let the attorneys give us a couple of options that will appear in the final ordinance that we can then choose. Norton/Yes, I think so, too. Lehman/Good but simple terms. Norton/I have a couple of drafts that I will drop in your hopper. Nov/All right. Woito/Thank you. Nov/We can worry tonight about the exact words. I think we hear a majority saying that the word discipline should not be entirely removed, It would be appropriate to leave it in. Lehman/I have a question. Nov/Yes. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 37 Woito/Yes. Lehman/Linda, you say if the Chief's report is critical of the officer's conduct, there must be a heating. I don't understand that. If the Chief say yes, this conduct was inappropriate and the Board agrees that that conduct was inappropriate and nobody complaints about anything, why does there have to be a hearing? Woito/ Because there is a body of constitutional law that goes back to the early 197-'s that says that when you conduct in your employment area is criticized and that that criticism affects your integrity, your overall standing in the community, your reputation, that you have the opportunity to appear before your employer or someone who is reviewing your conduct to give them your side of the story to clear your name of any adverse implications that you have done anything wrong. You were dishonest, you somehow used vulgar language when you shouldn't have, you whatever. Lehman/Yeah but the Chief is making the determination. If the Board concurs in his determination, they have made no finding whatsoever. They .just agree. The officer still has his, through proper courses, he can still complain about that. I just do not see why if the Board agrees with the Chief, why there would be anything further to it. Woito/Well, I am saying that if the- Lehman/The Board didn't find this. They just concurred with the Chief,s findings. Woito/But you have given the Board review power to review what the Police Chief,s report not the allegations of a compliant, of inappropriate behavior. You have given that Review Board the authority to review that, look at it and say this investigation by the Police Department was adequate, go back and ask more questions, you know, there is something missing here. Lehman/Couldn't this be at the request of the policeman rather than having to do this? Woito/This is a constitutional mandate that that officer has a right to demand an informal name clearing heating. All it has to be is a simple meeting with the Board or a member, a panel of the Board and the police officer. Lehman/Can he waive that right? Woito/He can waive that right, he can. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 38 Lehman/I think that should be implicit in the ordinance because many times the officer may not want to discuss this any further at all. He may be perfectly happy with the discipline and requiring a hearing could be very detrimental to him even more so than the discipline. Kubby/How does this happen now in the clearing process? Lehman/Civil Service. Atkins/Yeah, I have a question, Linda, on that name clearing. What is the result for the name clearing hearing? Woito/ If the Police Chief- Let's take the Citizen Review Board out of this. If the Police Chief finds, does an investigation and finds and officer is guilty of some kind of inappropriate behavior. The Police Chief gives the officer that hearing now. It is a very informal hearing required under procedural due process. Calls him in and says- It is what you call a pre-determination hearing. It is the same thing as a name clearing hearing. Gives the opportunity to the officer to say hey now wait a minute, in terms of your investigation, R. J., you didn't look at this fact and now let me tell my side of the story in terms of this and this and this. It is a chance- The whole concept of procedural due process is to make sure the facts are accurate. That is all it is. Atkins/And I have a question. What if the name clearing hearing is at my expense? Woito/Your expense. You, as City Manager? Atkins/I am just saying the person comes to the microphoneand said this is my name clearing hearing and by the way I didn't do any of those things, he did or she did. I don't know where we would go with that. It seems that we continue to build allegation on top of allegation. Woito/The Board's authority doesn't go to reviewing you. Atkins/Okay. Woito/The Board is given a very narrow focus. They review the conduct of an incident as the Police Chief has investigated it. Atkins/I don't understand the name clearing. I understand the concept of the name clearing hearing. It is what is said at the name clearing hearing that may allege things that require further investigation. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 39 Kubby/Well, that is part of the Board's purview, too. Atkins/That was my question. Is that a name clearing hearing could become almost slanderous. Woito/No, no, no. Eventually you will hopefully read my narrative which explains this. Atkins/Is that public, by the way, Linda? Woito/Yes. And obviously we threw this together in a very short time frame because Monday and Tuesday, this is what we did. Nov/This is a public open meeting. Woito/The Board will do that hearing with the common law privacy and defamation concerns as a citizen and a police officer in mind and must comply with Iowa law. Nov/But is it a public open meeting? Woito/That will be decided by the Board on a case by case basis. The police officer may request a closed hearing. The citizen may request it. It is going to depend on the concerns of the parties. Thomberry/If the citizen requests a public and the officer requests a private hearing, is it split or is it closed? Woito/I can't answer that, Dean. Nov/It is closed. Woito/It depends- Kubby/It is up to the Board. Thornberry/If the two parties request it closed, it is closed. Nov/It is my understanding that if an employee asks for a closed hearing, he gets it. Thornberry/I was just wondering if the half is open and the other half is closed. Lehman/Can I ask a question? This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 40 Woito/But this is not really a performance evaluation of the officer. Nov/It sounds like anytime you criticize his conduct, you are evaluating his performance. Thomberry/On a name clearing. That means his name was besmirched. Right? Woito/That is right. Thornberry/To clear his name, you got this hearing and in that respect then he could request a closed hearing because it is personal. Woito/And if he can assert a reputational interest, the Board would probably close it. Kubby/But it is up to the Board? Thomberry/Probably or he could request it and they would have to? Woito/Dean, I can't answer all of those questions. They are going to have to comply with the law. Holecek/There would be a case by case analysis as to the- Back to the question of the citizen asking versus the police officer. You would do a balance of the interests and rights at stake as well as the personal reputation at stake of each person. The Board is going to have to balance that, deciding whether or not it should be opened or closed. In assessing personal right to privacy as well as the Iowa law of open meetings. There is going to be a balancing test. Most of them probably will not need to go through that type of an assessment. It would be clear cut. That is a possibility. Lehman/I would like to see this section that that can be waived by the officer if he chooses. In other words, he doesn't have to have this hearing if he chooses not to have it. Nov/Well, that is the same question that Dean was asking. I£the citizen complainant asks for this hearing and the officer says no, I don't want a hearing, they still have to go through the process of making a decision. Lehman/Naomi, I agree with you but if there is a sanction against the officer, chances are the complainant is satisfied. Nov/Maybe. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 41 Lehman/Chances are he probably is. He is not going to contest it. If the officer does not want to go through this in a public forum, he should be able to say hey look, I accept my discipline and I do not want to go through a p.h.. I don't think he should be required to as it says here. Baker/ Can I stop? Can we ask a procedural question just about us tonight? This is suppose to be a public hearing as well as open up to the public. There are lots of questions we might have. When are we going to suspend our discussion and open it up to the public? Nov/I was thinking we are about there. I was thinking maybe two minutes more of this. We are going in circles. Thornberry/Ernie has got a question that should be answered and I happen to agree with his assessment of that. Norton/Let them check that out and clarify for us, yeah. Put that in your hopper to clarify. Woito/It is waivable but it would have to be a voluntary waiver. Lehman/Just put in there so it doesn't make it mandatory. Kubby/I have another questions about hearing. Norton/Go ahead, you have one, too. I will come after you. Kubby/Are there any other circumstances where the Board can have a heating? Whether conducting generalized heatings about police procedure which I assume the answer is yes. I want them to be able to do that. Woito/Yes, this flow chart does not in anyway change the original concepts of our guiding principles which I was going to go through in the public session of the Board taking public input in a public forum for general review of police practices and procedures. I mean they would no doubt be open. When they start focusing or targeting on an individual police officer, the Board may need some legal advice as to whether they are treading on thin ice. Kubby/Okay because that was in before that one of the options for the Review Board was they could hold that p.h. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 42 Woito/It is still in here. If we get to the public portion, I will go through what I believe you have agreed on as the guiding principles. Kubby/Okay. Nov/All fight, before we get to that, we have a sheet here on a city wide ombudsman- ombudsperson from Municipal Investigation of Cincinnati. Would you please explain that one so that we can get some public comment on that concept as well? Woito/Yes. CHANGE TAPE TO REEL 97-71 SIDE 1 Woito/And I have taken some information from Cincinnati in terms of how they function and right now the transparency has escaped me. Nov/Well, just talk about it. Baker/Before she talks about it, can I ask are there four people who seriously want to consider an ombudsperson? Kubby/Not as a replacement for the PCRB. Nov/I think we have to at least consider it. Norton/Not independent. Vanderhoef/I think we have to consider it. Kubby/Maybe in addition to but not in replacement of. Baker/I agree not in replacement of but I wouldn't put it in addition too either. Norton/It doesn't give you any independence. Are you still trying to find that? Nov/All right, let's just read it. Woito/Let me just talk about it. The Cincinnati approach is to have a city employee act as an investigator and liaison to the citizen and receive complaints regarding any serious misconduct and they define serious misconduct and I am not presenting you with all that detail. I mean this is just a concept and the ombudsperson would be staffed by the City Manager and this would not only act upon allegations of This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 43 police inappropriate behavior but other serious misconduct by employees in general and the idea being that it creates sort of a person out there in the field dealing with citizens who could then report to the City Manager and ultimately to you. It is a much simpler process, obviously, than what we have talked about with the PCRB process but it is broader. However, I suppose you could narrow it to only focusing on police complaints. Kubby/But it doesn't live out our value of oversight or independence if it is through the City Manger's office. Woito/To the extent that they are a city employee, is, they are not independent. They are not civilians, they are not citizens sitting on an independent board. Nov/It is possible though that we could have this employee as an employee of the city council rather than an employee of the City Manager. We can write this however we choose to do it. Woito/And you could rotate them so that someone doesn't get ingrained into being part of the system. That is what they do at the state level and at the University level. They bring someone in for a period of three years and then they rotate them out and then they bring someone else in. It is certainly an option. Thornberry/It could be another little line down from city council like Library Board, Airport Commission. Woito/City Manager, City Attorney. Thornberry/City Attorney. Woito/Yes, it could be directly reportable to the council, it could. Norton/I want to get a question in here not with respect to ombudsman but with respect to this procedure because I am certainly interested in a Review Board. The Chief's report goes to the Board and it also goes to the officer and the citizen. And I am reviewing that that report is essentially the internal investigation without the personnel issues aspect, without stuff that is from the private record? Now is there a provision for the citizen or the officer to tell the Board before they are finished with their review their opinion? Suppose the citizen is perfectly satisfied with that report. Woito/The person is satisfied with the Police ChieFs report to the Board? This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 44 Norton/Yeah, in other words, if they were doing it by themselves, they might not even appeal. They might be satisfied with that report. Is there anyway for the Board to know that? Couldn't there be a period of 5-6 days or something where they indicate their response so the Board will have their view before they start spinning their wheels? Woito/I was trying to streamline this process and the Board always has the option of requesting or having a meeting with the citizen. I don't think that is ever precluded. Norton/But it just would be nice, it seems. Without slowing anything down, the Board has got their report and they have started to digest it. But five days later or a week later they had a comment from a citizen and/or the officer both either for or against it. Nov/We don't need to get into that. That is something that the Board can decide to do. You are getting into too much procedure. Norton/Okay. Nov/They can ask for that if they want to. Holecek/What I would suggest also, Dee, if you allow that to occur then you are allowing it to be truly generated by the citizen. You are eviscerating the function of also looking at the way the Police Chief has done his work with the internal affairs investigation. Woito/And also you are saying only the squeaky wheel gets the oil. That only the most loudest citizen gets attended to and I don't think we want that. Norton/They are all looked at. Go ahead. They are all looked at. Nov/Can we move on to public comments? Woito/Yes. Nov/We are going to limit public comments as much as we have not limited council. Woito/Do you want me to go through the guiding principles that you have agreed on? Nov/No, let's just move directly into public comment. I think that the guiding principles have been here long enough. we all understand it. We need to know if there is This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 45 public support for this kind of thing and we need to start hearing from them. We have put it off. Woito/Okay. I will put up the- Shall I put up the transparency for the flow chart? Nov/Yeah, that would be good. Baker/Naomi, that aren't that many people here that five minutes is going to be a problem. Nov/I understand but we are repeating ourselves and it is time to get someone else to talk and we can give people a chance to say something twice since their aren't very many people here. But we need to start moving along. We don't want to be here all night. Baker/I agree but it is not going to be a problem, Naomi. We don't have (can't hear). Woito/I think I have a direction that you are going with the streamlined PCRB to this- Nov/There are not enough people who want to dump the whole idea but I would like to hear from the general public anyway. Woito/Very good, thank you. Norton/Thank you, Linda. Nov/If anyone in the audience would like to talk about the PCRB or ombuds-office, please come forward, sign your name, state your name and then speak. Kubby/Maybe you could say what the yellow light means. Nov/Oh, are we going to do- All right, we will try it. We are going to give everybody a green light as they start, a yellow light as a warning. What are we saying, one minute? Karr/One minute left. Nov/One minute remaining and the red light is stop, your five minutes are up. Richard Twohy/Where are the lights? Nov/Right here. Tum on the green light, there you go. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 46 Twohy/I am a citizen resident of Iowa City. With regard to the ombudsperson, that seems like a really neat idea by Mayor Novick that the city council have another direct employee as an ombudsperson. I think that really adds a lot to the idea of public confidence in the city council's own general overview person who can look at things generally in the city. That is a neat idea. With regard to the Review Board, a general question. What if the Chief's behavior is in question. As far as I can tell the structure of the Review Board does not address in any functional way that very very important theme. The closest I can see in any of this is one comment on the last page that has to do with the ombudsperson. It says that the chief investigator, when authorized by the City Manager or the council if the City Manager is the object of investigation, may request assistance from city departments. Somewhere along the line if not this particular body, it needs to be talked about that somehow there needs to be an independent citizen review process for the people who are running things in an authority position, I think. With regard to this proposal, the idea of going to an appeal to the City Manager, seems to me like an unnecessary red herring. The Review Board itself is only an advisory suggesting begging organization to begin with. When they are done- The whole idea of then the citizen having five days to go an appeal it all to the City Manager, for what? Nov/We took that part out. Twohy/Great. The idea of a need for a supermajority of six out of the seven to request- Great. And I don't think there needs to be any time limit in terms of discipline either. The Chief ought to have the authority. If the Chief doesn't want to wait to pay attention to public input and things necessary, cool. In practical terms, the- On #7, limited powers of the Board, it says in deciding the level of review to conduct the Police Chief report, the Board shall decide a simple majority and then it says four to seven. Suppose only five people out of the seven attend the meting? Does it still have to be four or does a majority of those participating? Nov/It still have to be a majority, even if only five people are attending. Twohy/Okay. I have doubts about B. 7B., at the bottom of the next page about the Fifth Amendment stuff. That just presents a problem I think that may not be applicable. Kubby/Richard, which? Does your say Revised 4/22/97 on the front by chance? Twohy/I am looking at material I picked up what was in front here. Woito/This is the new stuff. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 47 Twohy/I am sorry. Kubby/What is out for the public to look at, Linda? Woito/(Can't hear). Karr/And the ordinance of 4/22. Twohy/Could I just back off and come back again when I read this? Karr/It should be the same ordinance. Kubby/It is the same ordinance, Richard, that you were working from. So if you have further comment. I just wanted to make sure because we had multiple- Woito/Right, the ordinance has not been revised, Mr. Twohy, to reflect the streamlined approach that the council, I think, is going toward. Twohy/(Can't hear). Woito/Yes, yes. Is that not out here? Kubby/It is out here. Holecek/The ordinance, it says 4/22. Karr/There is only one ordinance. Holecek/Right, it does not reflect the flowchart. Karr/No, no, there is only one ordinance though to comment on. Nov/And we will have another ordinance which will be more streamlined. Kubby/We are looking at the flowchart. It is probably the most important part. Nov/Okay. David Baldus/Good evening, I am from Iowa City and I have followed your proceedings for a long time with great interest. And I have just three points I would like to make this evening, two of which are developed in a memo that was handed to you This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 48 earlier this evening, I think dated April 28 where I elaborate on these legal points. I know you have heard a lot of law tonight. I was going to wait until last since you have heard quite enough. First I want to emphasize that we need today, a Citizen's Review Board here in Iowa City as much as we did in the fall when we started that process. And secondly I believe that both the proposal that the City Attorney created dated 22 April and the provisions that she described tonight are both practical, feasible, and doable processes that will achieve, I think, fully the goals of citizen review that we are seeking to accomplish here. And with respect to the many concerns about the mechanics and details, I want to emphasize that we are not writing here or you are not writing here a state law that is going to apply across the whole state of Iowa. You are writing an ordinance for the City of Iowa City and when it goes into application, if problems arise, they can be changed at will by you at any time you choose and I think that is important in terms of putting all these technical concerns into proper perspective. My third and main point is that I believe both of these proposals, 4/22 and one presented tonight are entirely lawful under both state law and the U.S. Constitution. The City Attorney in her memo to you of the 25th in my estimation takes a very conservative approach in advising you of the legal risks that are associated with these different alternatives that you are considering. I don't disparage conservatism and prudence. They are often a virtue. But my feeling is, in this context, I believe that the law of Iowa gives Iowa City a much greater degree of autonomy to deal with these issues then the City Attorney, I think, believes is the case. Remember we are a Home Rule city and that gives us a lot of power and this whole issue reminds me of a debate that arose in 1970's when we were considering the adoption of a Home Rule Charter here for Iowa City and the issue focused on the question of initiative and referendum. And we were told then that we don't have the power to do that. That is has got to be explicitly authorized by state law. That we are going to bump up against a variety of different procedures. The City of Iowa City adopted it. It has never been challenged. And I think the same moral holds with respect to these issues that you are concerned with tonight. Our Home Rule powers in sum are very broad in the absence of specific limitations which I do not see in the state law with respect to any of these options that you are considering. I think that you have the legal authority to press ahead to do exactly what you want to do in terms of the things that are on your agenda here tonight. Thank you. Norton/Thank you. Nov/Is there anyone else in the general public who wants to comment in this? Twohy/I am sorry, I don't understand. Apparently the narrative thing from tonight modifies the ordinance. If so, I might be repeating myself. I didn't see this before. But anyway, on page 8, bottom of page 8 of the proposed ordinance dated 4/22, This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 49 the part where it says- Page 7, I am sorry, at the bottom. The Board shall separate the information into two reports, public and private. Or is that gone? Norton/That is out. Gone. Twohy/Okay. Page 10, the bottom part it says during the PCRB process statements giving by an officer can't later be used in other proceedings. Is that still in there? Nov/Richard, say that more clearly. I didn't follow. Twohy/At the bottom of page 10. During the PCRB process, any statements give by an officer is subject to criminal investigation can not later be used against the officer in a criminal proceeding as provided by the Fifth Amendment. Is that still in there? Nov/We had better get a lawyer to answer that? Dennis Mitchell/Yes it is. Under U.S. Supreme Court case law that any statements they make as far as part of that internal investigation can't later be used against the officer. Basically what you are doing is putting the officer between a rock and a hard place. They can be- As part of their employment, they can be required to answer questions as part of that investigation. The reality is they can't really go ahead and us their Fifth Amendment rights as part of that process. Am I making myself clear? Twohy/I sort of hearing what you are saying but if it is not under oath, it seems to me if have this protection, then a savvy and mean spirited self grandizing officer would say all the necessary stuff here to this Board that can only beg anyway and then it can't be used against him in court. That bothers me. Mitchell/Well, everybody has the Fifth Amendment right. Twohy/Well, then it doesn't need to be in here at all then. If the right exists, then we don't need to doubly say it, right? Mitchell/We re just making it clear. Kubby/And Dennis- Woito/In terms of concerns about using statements from the PCRB process, I have inserted into the new materials that nothing in the- no findings in the PCRB process can be used in other legal proceedings. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 50 Twohy/No findings of the Board? Woito/Yes. Twohy/Cool. So then we don't need this other stuff, do we? Woito/Correct. Twohy/Page 11, the Board may hold general informational hearings which is a neat idea for a community that has other things to do'with its time. Just like you guys do but at least you know, you asked for this. Just in term8 of the general idea of police procedures and all of these things, it is a neat idea to have something a general focus if they can do. But I see a serious problem on the top page 11 where it says the hearings will be public if no particular police officer performance is targeted. I don't know what targeted means but other wise- I mean suppose, we had a recent situation, suppose somebody wants to know what is appropriate for the community generally if you have a plain clothes police officer entering oh, say Dodge Cleaners after midnight, you know. I mean to me that kind of situation is very worthy of public discussion even if indeed it happens to be something that an actual police officer did. So I would hope that this section doesn't turn out to be a back door way of keeping the Board something that has no credibility at all. I mean if there is specific police officer activity that is important in terms of a general issue of police procedures, it certainly ought to be allowed and that shouldn't keep the hearing from being public. Kubby/The way it was written I kind of- As Dee was saying earlier, Dee Vanderhoef, you can read things differently. I was reading that the purpose f the heating is not to say officer #00001 is the target of the public heating. Everyone who has a complaint or a good thing to say, come down. But that if in holding a p.h. by the PCRB about generalized policies and procedures, if someone comes up and makes a statement about a particular officer, that that would get heard. Twohy/I would certainly hope so. Otherwise the whole thing- Norton/I thought it would be generalized in some sense. Lehman/I think we could talk about specific activity but not specific officers. In other words, the specific of entering a building while you are a plain clothes officer does not say who it is or anything else. Is that appropriate or not? I think we can address that. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 51 Twohy/I am just hoping, you know, because people are going to talk about people regardless of- Kubby/They are going to have a personal experience as a way of getting at generalized- Then the Boards job is to generalize. Twohy/I just hope we don't have to, you know, suddenly have to have the heating stop being public because somebody's particular performance was targeted. I mean, you know, because it is not an accusatory hearing. It is a hearing about public policy. So I don't think that that ought to be a limitation. Woito/Yes, I agree. I mean as long it doesn't turn into a grilling and an evaluation session that goes way beyond the scope of what they started. You are going to get names and incidences but hopefully the focus will be on tell us what you think of this procedure, what was your experience and how can we maybe make some changes and improve it. Twohy/So they can talk about some specific people and specific actions as they try to suggest ideas about public policy. Woito/A lot of that if going to be up to the Board's discretion to be savvy and in compliance with the law. Thomberry/Is there something in this ordinance that says that an officer cannot enter a building? Is there something in this ordinance that says an officer or a plain clothes or uniform cannot enter a building after hours once they are closed? Woito/No. The Police Chief has changed the general order on building searches. It is what I call a open door plus requirement. It requires some inditia of criminal activity before the officers can go in or emergency. Thomberry/All right, this is a- Woito/We are in the process of- R. J. and my office are in the process of reviewing all the general orders and the council has adopted certain recommendations that the staff proposed and you agreed to and that was one of them. Thornberry/And a business person such as myself can sign a letter or request that they do SO. Woito/You can always do that. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 52 Thomberry/Because I would like an officer, if they see my business open at night, the doors are open after hours and we are closed. I would like him to go in. Woito/Those matters are not part of this ordinance or the PCRB process. Thomberry/Say what? Norton/It's not relevant to tonight's. Woito/Those issues are not part of the PCRB process. Thornberry/The comment came up about a detective entering a business after hours. Woito/And I think you want the Board as a general matter to have public meeting to get information on concerns that may develop into a pattern or they may not. I mean, it's, you want to hear what the problems are and that.they're being resolved and that's why you want the Board to make recommendations to you. How could the Police Department perform better to your satisfaction and the community's satisfaction. Thornberry/Right. And what I'm saying is that it's going to go kind of on a, you're going to get an overall general attitude as to what we would like our police officers to be and to do. Woito/Urn-huh. Thornberry/There are going to be extenuating circumstances in a lot of instances where this will change. Woito/Yes. And that will be part of the educational process of having the PCRB have open informational hearings. Nov/Okay. If there's someone else from the public who would like to come and we will this comment now and we will take a break and then we'll get back to City Council discussion. Okay. We're taking a break. Richard Twohy/I just want to make one more comment. Lehman/Sure. Nov/One more comment. Okay. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 53 Twohy/Richard Twohy from Iowa City. I am still very much concemed and there are many citizens who also are concemed that we need still to have some, this is a marvelous idea, especially the way it seems to be evolving, but we still need I think to have some means of independent citizen review. Suppose someone files a complaint against the Chief?. Nov/We will take that into consideration. We will see if we can do something. Norton/Oh yes. Boom. Atkins/If you file a complaint against the Chief, it will come to my desk immediately. Twohy/So there's no independent Citizen Review Board? Kubby/I'd like to hear from Linda to say how does that work with the PCRB process as streamlined? Norton/Suppose a complaint came to Steve about the- Steve. Kubby/The PCRB received a complaint against the Chief. Norton/Yes. Or that it implicated the Chief. Yes. Woito/I really didn't include that in my investigation and I don't recall that being part of my charge. As the Board's review authority, I think the way you deal with the Police Chief is he's an upper echelon employee and it's up, you deal with it in terms of dealing with Steve and R. J.'s protected under Civil Service rules also. But I don't anticipate this Board being involved in investigation into the Police Chief. I think that goes well beyond what your original charge to me was, as I understood it months ago. Nov/Well. Kubby/He's an officer, a sworn officer, correct? Nov/It does go beyond what we talked about months ago, but it wouldn't do any harm to let us say what happens if. And we'll discuss that. Lehman/Don't we already have a procedure in place for that? If we have a complaint against the Police Chief, it goes to Steve. Atkins/Immediately. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 54 Lehman/If we're not pleased with the way you handle that, Steve, you're responsible to US. Atkins/Absolutely. Kubby/But that's not Richard's point. Richard's point is independent oversight of that complaint versus the City Manager's oversight of that complaint. Norton/Well let's just take an ordinary complaint. Let's take any ordinary complaint that comes in may very well in the review that the Board does of that complaint and of the Chief's report on it, the Board may draw some conclusions about the Chief. Kubby/Well, Steve, what's your process? If a complaint of, well let's say the Chief, comes to you, what's your process at that point? Atkins/If there's a complaint filed against a department director, I would conduct an investigation from my office. And I would believe that I have your full authority to gather together whatever materials, the use of whatever personnel is necessary to conclude that investigation. In this case, if it involved the Police Chief, I can almost assure you that it would not involve the, other than interviews, I would not involve our officers in investigating the circumstances. I have to secure my own. If you put this review process in place, I think it's incumbent on me to respect that review process. Woito/And in which case Steve would report, his report would go to the Board for review. Not the Police Chief's. Norton/But am I correct in inferring that there is nothing to preclude that the PCRB from a comment that bears on the Chief in their review? Woito/No. There's nothing to preclude that. I mean the overall, one of the overall goals other than providing for prompt investigation into citizen complaints is to give you an overall big picture of performance of the Police Department. Thomberry/Okay. Break. [Council break 8:20 to 8:20 PM] Norton/Wait a minute. We don't want to do something inappropriate. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 55 Woito/I would like the other members of the council to give me some direction. I mean, with all due respect for the four here. Nov/Let's move through the discussion, because we have to get out of here. I think everybody would like to be home at 9:00 or at least get out of here at 9:00 so let's move. Woito/I have no problem with that. Audience/(Can't hear). Nov/We have- Woito/I understand I am given direction to clarify the language on commenting on discipline by the Board. Nov/Right and we pretty well agreed on the flowchart process. I think a couple of people have suggested a change from 45 days to 30 days. I think in order to do that we should probably suggest that this group not meet only once a month but meet on demand. So there may be an occasional month where they would have to have two meetings and another month they may not have any at all. But if we are going to move this through in a reasonably, how should I say, I guess speedy but streamlined. A reasonably streamlined manner would require that they write by- laws that meetings on demand or meetings as necessary. Woito/And you get a shot at approving their by-laws. Nov/Right and I would like to leave a lot of these little things that we have been discussing such as the number of days to be put into the by-laws. I think we have to give some flexibility as much as we would like to streamline and go into all of the details. There has to be some flexibility given to the community. I didn't hear a specific council recommendation about changing to the five member Board which was proposed by staff. Does anyone here have any comment on that? Thomberry/I think five would be- Norton/I like five. Lehman/I like five. Vanderhoef/That's great. Go for it. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 56 Nov/I hear at least four people say go ahead and design a Board that has five members. Norton/No lawyer? Woito/No lawyer? Nov/That is what we heard, yes. Kubby/Not necessarily that we wouldn't appoint a lawyer but there isn't an earmarked seat, right. Woito/And we still want someone on there with law enforcement experience. Nov/I think that is probably a good idea. Woito/Not an Iowa City employee. Kubby/And that can be broadly interpreted. It could be someone who is involved in the criminal justice system other than being a law enforcement officer. Nov/All right. How are you going to define that because if we say we are not going to set aside a seat for a lawyer, we are not going to set aside a seat for a law enforcement officer, we then have to somehow define this. For example, would you take someone who is currently employed in the parole department? You need to be a little bit more specific. Thornberry/It wouldn't have to- We are not saying that it couldn't be someone with law enforcement experience, right? Nov/No, we are saying we should have some law enforcement experience. Woito/You want someone with experience as a peace officer, a sworn peace officer, who has performed the kind of difficult tasks and dealt with some of the problems that our Police Department deals with everyday. ThornbenT/Exactly. Nov/So, for example, you want someone who is a retired sheriflor something like that? Woito/That qualifies. Thomberry/Or a retired policeman. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 57 Woito/ Yes, we can go to the Code and use the definition of peace officer which is a sworn peace officer, when you appoint them you can argue over that. Whether they are qualified or not. Kubby/So what about adding Mr. Twohy's concern that there isn't any public or any independent oversight if the complaint is against the Police Chief?. It sounded real reasonable to me that if someone complained against the- had a complaint about the Chief that went to the PCRB with a complaint, that the process would be as it is currently in terms of the City Manager's officer conducting the internal affairs investigation. That after that it would still go through the same process. Woito/I have no problem with that as a concept and I assume- Are there four members of the council that want to do that? Kubby/Yes, I think we should. Woito/Okay. Nov/I would concur that we ought to have some way for someone to come to this Board and say the Police Chief did something wrong. Baker/He is a sworn police officer, why would he be exempt? Woito/It is just something that I hadn't really thought about, Larry. I mean it is probably obvious to everyone but me. I don't know. Atkins/Well, the only concern I would have is that asking the individuals to do the investigation. Certainly deal with the complaint. I would have to set up something, a different kind of process. Kubby/You seem to do that now with- Atkins/Yes, I do and that is my point. I would do that now anyway. Thornberry/So it would be your investigation instead of- Atkins/It is not unlike the difficulty you might have if someone filed some allegations against me and you called upon R. J. to do that investigation. I mean you just have to be very careful about- Thornberry/Or Linda Woito. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 58 Woito/I wouldn't recommend that. Atkins/Well, it is very difficult. My point is that it has to be difficult and I think that you know, you just have to be very conscientious about how you- Woito/(Can't hear). Norton/Some provision will be in there for that? Woito/Yes, I just hadn't thought about that. Thornberry/Steve brought up a point that if someone had a complaint about him, it would come- Norton/That is a whole different ball game. Thornberry/I know it is a different- But it was brought up so I thought I would just mention the fact that what if somebody brings up a complaint against anybody? Who do they go to? Steve, right? Atkins/Well, if there was a complaint against the City Clerk or the City Attorney or me. The three of us, you have direct responsibility to conduct it as you see fit collectively. If it is any department director's subordinate employee, it has to come to me. Thornberry/Or the Library Board or the Airport Commission? Atkins/The Library Board or Airport Commission might present some unique problems but I suspect - Thomberry/Maybe that's why this ombudsman might not be such a bad idea. Woito/The Airport and Library Board of Trustees are creatures of state statute. Thornberry/They are still funded by the- Lehman/Complain to the Governor. Woito/You have the power of the purse over them. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 59 Thomberry/And we created the body. Now what if they have a compliant against the PCRB? Atkins/They are your appointees. Thornberry/They come to the City Manager or the city council. Atkins/If there is a compliant about a Citizen Board, while we might as staff members bring it to your attention, those Citizen Board members are appointed by you. They are your appointees. You have that responsibility. Woito/They come to you. Any other questions that you are unclear on, issues? I think we made great progress tonight. I will keep moving on, get a draft ordinance. Lehman/Three pages or less. Woito/Sounds good to me, Ernie. Norton/I have a paragraph. Nov/I would like to hear from the Police Chief before we start winding down and then we go back to council questions. Is there anything here that you think will not work? Winklehake/I asked a couple of questions and I think- I would be interested in seeing what the draft is going to look like. There are a couple of concerns but I don't know exactly what this is going to look like and I think it would be better and less confusing to wait until I see what it is rather than bring up a bunch of issues to everybody at this point. Thomberry/Okay. Nov/Mr. Atkins. Atkins/I don't have any basic disagreement with it conceptually. I do believe we have spent most of our time dealing with the issue of citizen complaint process and that the oversight policy review, accreditation, those matters, in my judgment, I think are bigger picture and I personally think far more important. We haven't spent much time on that and I think it is something we want to give some thought to, whether it is this Board or you create some sort of a separate Board to undertake that review, even if it is on an ad hoc basis. It is just simply food for thought. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 60 Lehman/Steve, wouldn't the accreditation process be a wonderful learning process for this Board? Atkins/I think it is a wonderful learning process for the Department, for the community and R. J. and I have talked about during the process, creating an informal advisory Board. Somewhat of a sounding board for him. It doesn't have to be this group of people. They could certainly serve in that capacity also. Lehman/It would be a tremendous leaming experience for them. Atkins/Oh, I don't think there is any doubt about that. That anybody would choose to be a participant in this PCRB is going to have loads of information to become familiar with. When you think about it, we appoint P/Z Commissioners and we never really ask them whether they knew anything about the Zoning Ordinance and that is obviously one of their real critical duties. Most of those appointees spend their time try into find out real fast what their responsibilities are. I think it is all very doable. Nov/Okay, Mr. Norton, I know you had a couple of more questions. Norton/I have two questions. One and maybe I am not as clear as I ought to be about this. But I am clear about the difference between an incident and a complaint. I mean are we okay that certain situations arise where there is no complaint but an investigation ensues. We have everything here starting with a complaint. But suppose an incident happens and there is no formal complaint. Woito/Right but the complaint is going to be- The definition of complaint is going to be so broadly defined that it can't-It will incorporate what is already existing. The city council always has the authority to direct its boards to do an investigation. So the city council can do it. The City Manager can file a complaint. The Police Chief can say Board, please investigate this and each time you request the Board to act, that is a complaint. Norton/Okay, so that will cover that one, all right. I just want to propose- We are going to leave this for your further review but with respect to the issue of discipline and so forth. My conception is something like this. The Board shall focus it report on the appropriateness. so the behavior exhibited by the officer involved in the incident- Karr/Dee, excuse me, but you are covering your mic with you hand. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 61 Norton/The Board shall focus its report on the appropriateness of the behaviors exhibited by the officers involved in the incident. The Board shall not concern itself with the specifics of possible disciplinarian action but may express its views that disciplinarian action or some sort should be considered. Lehman/Perfect. Thornberry/We have already- Woito/Sounds great. May I have a copy? Thank you. Nov/Okay, do we have any more questions or concerns from the city council. Kubby/I have an additional one in terms of who can make a complaint to the PCRB. If someone is- Is it considered that ifI was a witness to something that I had a concern about, I am considered to be directly affected by that incident? Or only if I was a person interacting directly with a police officer or officers. Woito/I thought we talked about this before and I thought there was agreement of the majority that you wanted it more tied down to being directly affected. Nov/I thought that is what we had, yes. Thornberry/I thought directly affected also- Because the interpretation of inappropriateness is up to the individual that is being affected as opposed to what somebody thought they saw and not the whole scope. Kubby/So a witness to an incident is included in this? Thornberry/No. Nov/No. Norton/They would have to be a signature on the complaint. Kubby/If I witnessed what I believed was excessive force by an officer, I saw it and I was concerned, can I make a complaint to the PCRB that would be investigated? Woito/You can make a request and on the Board's own motion, a simple majority vote, they could initiate a complaint. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 62 Thomberry/There was an incident on a bus that was found to be without merit and that would have triggered the whole thing and hearsay obviously shouldn't be- Kubby/That is not my question. Thomberry/No but I mean the incident from the bus, for example. One person thought it was excessive force, the person that was directly involved knew better. Lehman/Dean, according to what Linda said, the Board would not have picked that up. Kubby/The Board would have decided whether to pick it up. Lehman/They would have decided not to do it. Norton/Do we give the Board the- Woito/The Board- Going back to our original goal, I want to get away from the possibility of us saying when a complaint comes in the door, this is too frivolous, we don't want to look at it. We want to investigate the complaints and the facts will speak for themselves as to whether they are meritorious or not. We have agreed that in the ordinance we say no parking ticket or such similar complaints are appropriate. Kubby/The fact of the ticket but the behavior behind getting the ticket. Lehman/It is not a sworn officer, normally. Woito/I guess it could be. Ordinarily you get the parking tickets from non- Baker/If the person not directly affected does not file a complaint, a witness does, does the Police Department have to investigate based upon a witnesses complaint? The PCRB, Linda, you just said can choose to accept that and ask for an investigation. Woito/Correct. Baker/But they are not required to accept that. Is that true? Norton/Better be clear. Baker/All complaints are investigated but I am not sure you want complaints from second hand participants, for lack of a better term right now. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 63 Nov/They would have to- Baker/It may be that they choose to investigate it but they shouldn't be required to investigate. Kubby/We are getting two different answers. I guess I want to be clear. Norton/Richard has got a point. Richard Twohy/(Can't hear). Nov/Microphone. Twohy/From Iowa City. If it has not been for someone with a t.v. camera as a witness, the Rodney King matter would have never have come to light, I think. The definition of someone who is directly involved ought to, for the sake of healthy public policy, ought to include a personal observer of the situation. Nov/However- Thomberry/Rodney King could have gone to the PCRB. Baker/To file a complaint. Nov/If a witness comes in with a video tape, it is quite different from somebody who says I think I saw an officer misbehave and you had better investigate it. This is not the kind of thing we need. This is quite different. Twohy/(Can't hear). Nov/Okay, we heard you. Holecek/I think it is incumbent upon you to decide. Kubby/I want a witness who say it first, who observed. A true witness to be able to make a complaint and it will be investigated. It may take a day to start and finish it, to say- Atkins/Personally folks, I don't think that is a problem. I really don't. I think if someone observes an activity and they file with a compliant, it is an allegation, it has to be dealt with. You will question the individual who is filing the complaint, what level of knowledge do you have. The person says well, my brother-in-law told me. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 64 It is going to go away very quick. Now did you see this behavior happen, yes I did. Then I think you have is a basis for a legitimate complaint. Nov/The question, however, is do we say the Board may investigate or the Board shall investigate? Kubby/It should be the same status. Thomberry/I have got a scenario. A police officer stopping a car, for example, and a witness saw what they thought was inappropriate behavior. The person in the car may or may not have thought it was inappropriate. Say, for example, a person left town, he is from Chicago. Went to Chicago. You have got- CHANGE TAPE TO 97-71 SIDE 2 Thomberry/Who thinks they saw something inappropriate? What kind of investigation then are we going to- Are we going to go out of state to try to locate a car that- I think we are getting into something that, you lmow- Atkins/I guess my response to you that is someone directly observes an activity, the courts recognize that witness to have some standing and I would think that we would want to give them some reasonable standing. when you begin questioning the individual, it will not take long to find out whether it is a legitimate complaint and deserving of full follow up. I personally, if someone say behavior of a Public Works employee, I want to know about it and I will question the supervisor, question the employee. Normally it is either a phone call or a short note back to the person, thank you, we have dealt with it and if I discipline, I do not inform them of discipline. Baker/ A person claims to have seen misconduct, clear category. A person has heard about it or second hand, heard somebody else complain about the police, they don't want to go. They have got to have seen the incident? Atkins/I think they have to be a first hand observer because again, the test of the court would be you are a witness to the behavior. Thornberry/They are the complainant and if it went to court and would they- Atkins/They become the complainant. Thomberry/They would be the complainant and it didn't even happen to them. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 65 Kubby/But it still affected them. Norton/A complaint is a complaint. Folks got to deal with it. Atkins/I will get complaints in my office. Someone will say, you know, the weeds are too high on this comer. All right, I don't know if the weeds are too high. And that person's mind, they are too high. I would do one of two things, tell the inspector to go out and look at it and tell me if the weeds are too high or I will go by. Then the inspector and/or me- I become the complainant. That is how it works. But I think they all deserve some degree of follow up based upon what kind of information you get. Oh, I think I heard that- You got to give me a little more to go on than just that. Woito/That is what the Board's staff person is for. Thomberry/So you have got a witness that is a complainant. But the person that it happened to thought it was appropriate. Atkins/And the response to that individual says I witness this, we are unable to tie together what you saw and you have to be real- I just need more to go on. Thomberry/And if the person who it happened to is not available to be found, out of town, gone, there is no follow up. Woito/Can we go back to the original- Holecek/I think you are looking at two different issues here and I think I hear a majority of the council saying that they want somebody who has directly witnessed an event to be able to lodge a complaint, #1. #2, the second issue becomes who is going to look into it. Do you want the Chief to look into it and verify whether or not it raises to a certain level of standing or do you want the Board to be that-? Kubby/It should be the same process. Council/(All talking). Norton/The police do it and then the Board reviews it. Woito/No, the Board should- This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 66 Holecek/Decide who is the person to make that determination. And if the Board thinks it should be treated as a full complaint on a simple majority vote as Linda earlier said or it will go through the full process, an internal investigation. Kubby/Once a complaint is made to the PCRB, there is not a majority vote to decide it will be investigated or not. Woito/No Kubby/Everyone that is turned in will be investigated. Thomberry/I think this is getting into the big brother scenario. Norton/No, I mean if a complaint comes in of any sort about a behavior of a police officer, the police investigate. He may not appoint two officers and take 30 days, he may just writer a report on it on the basis of his- And that is what the PCRB sees with their review of it. It may be pretty cursory at that point, too. Woito/What you are looking at is directly observed behavior. That is what you want a complaint filed over. I see one, two, three, four, four and a half, five nods. Okay. Atkins/Honestly, we can make that work. Kubby/We do it now. Council/(All talking). Lehman/Dean, I see somebody beat a dog to death, I should be able to file a complaint. Woito/It works now. Thornberry/My dog couldn't be the complainant. Kubby/But there are reasons why people choose not to be complainants. Thornberry/That is right. They may not want to get involved. Woito/Any other questions? Nov/I think though if we are dealing in this witness filing a complaint, the Board will be able to call the person to whom the officer inappropriately. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 67 Kubby/It will be part of the intemal investigation. Nov/And if that person says they don't want to come in, we may have to drop the whole thing. Woito/But at least the process is going down the track. Kubby/You go as far as you can with the process. Woito/If it leads to a dead-end- Thomberry/You better get this Board of people who don't have jobs. Kubby/They are not doing the investigation. Norton/It has been that active. Thornberry/Big brother is watching. Kubby/In the one place where there was a 6/7 vote for the Board to get involved themselves, is that where it was in the 4/22 version? Woito/Get involved in the investigation at the beginning. Kubby/Are we going to continue to do that? Nov/I have the impression that we were going to drop that parallel investigation kind of concept. Woito/I don't think we ever quite got to a consensus of that. Kubby/That was one of those things that it mattered how it was done and when it was done and how it was decided, whether there was a fourth vote to do it or not. We were going back 4/3-3/4. Norton/It is a tough one. Thornberry/It is not that tough. Woito/Larry, what is your take on the 6/7 majority vote for- Nov/We are down to five people. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 68 Thomberry/Six out of five is going to be a little tough. Woito/I am sorry. Well, it will be four out of five or five out of five. Baker/I have come to the conclusion that a separate investigation by the PCRB should only occur at end of the first investigation, not the parallel. Woito/Okay. Council/(All talking). Woito/So that's out. Okay. Nov/Okay. Kubby/Just for the record, I just want it noted that I strongly disagree. I think to live out the full flavor of independence for this Board, that it's crucial that they have that option and I don't mind it being more than the majority to make it happen. I wouldn't mind that four out of five vote to make it happen. Baker/ I would say that the value of independence is certainly lived out by their ability to call an investigation. At the end of their first investigation, if they're not satisfied, they're still independent. They don't have to accept that, and they can certainly investigate anything they want to at that point. Thomberry/They can ask for more information. Norton/I want to add for the record that I still thought that for them to be involved originally would be joining that investigation, but I don't quite see whether that will work, so that was my original preference. That they wouldn't run a separate investigation, but they might be a participant in the original. But I'm willing to give that up and see what happens. Nov/No. I think we have to restrict (can't hear). Lehman/Linda, if we're in a situation where the Board felt very very strongly they should start an investigation prior to the conclusion of the internal investigation, couldn't they always come to council and ask us for permission to do that? If they felt that strongly. Woito/Yes. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 69 Lehman/I mean that is not an option that is being eliminated. Woito/They could get involved. Lehman/Yes. Woito/I don't know. Kubby/Matters what the bylaws are I suppose. If it would be against their by-laws, they'd have to be changed before we could do that. Nov/The way we have accepted this flow chart, this timeline, that does not exist. Thomberry/That's correct. Norton/Right Woito/True. Nov/This is the streamlined version. Norton/There is no participation in the original investigation. That's the way it is now. Thornberry/That's correct. Woito/That's true. Council/(All talking). Baker/I would agree to that, if the majority of the PCRB wanted to put one of its members into the original investigation, I have no problems with that as a separate investigation that came. Thomberry/I think we ought to let the Police Department investigation do it. Kubby/But Dee's- But that becomes more complicated with the conclusion about personnel and police misconduct. Vanderhoef/It gets all tangled in there. Council/(All talking). This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 70 Norton/That's fine. I'm finessing. Vanderhoef/The PCRB person will be in trouble then with all the personnel issues. Woito/And the council will always request some kind of independent investigation of an outrageous circumstance on your own option. Thomberry/It doesn't have to be in there. Lehman/All right. Kubby/That's cleared up. Woito/That is cleared up and that's the one remaining issue in the back of my mind I was almost afraid to bring up tonight. Kubby/There are a couple of things about policy that when we last talked about policy, there were, I can't remember the number, four or five things that we were putting aside to discuss at a later date and I don't want those things to get lost in the shuffle. Nov/Were they about the PCRB? Kubby/No. Nov/No, something else, okay. Vanderhoef/The recommended policies were in the big book. Kubby/That we kind of said well, there is some disagreement about that way to proceed, we will put them aside. I just want to make sure that they get brought back for discussion. Atkins/The canine unit, I recall. Kubby/There are some things from my memo that got- Norton/Wait a minute, I am losing track of each. Council/(All talking). This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997 April 29, 1997 Special Council Work Session page 71 Atkins/Remember, the 22 items and Karen prepared a memo and council looked at it and said for a later date. I will pull those and find out where we are on those, okay. Nov/Okay. Dennis, did you have anything else you wanted to say here? Mitchell/No, not about the PCRB. Nov/The only topic on tonight's agenda. Kubby/I guess want to make sure that Sarah and Linda don't have other things at this point. Holecek/No, I think everything has been clarified and we have been given sufficient direction to be able to go forward. Woito/Yes. Kubby/Do we need a motion? Karr/It is a work session. Nov/It is a work session, we don't need a motion. Woito/Thank you. Adjourned: 9:00 PM. This represents only a reasonably accurate transcription of the Iowa City council meeting of April 29, 1997 WS042997