HomeMy WebLinkAbout02-23-1999 Communication STEIN, RUSSELL & PUGH, L.L.P.
ATI'ORNEYS AT LAW ~ . ' ' ~
IOWA CITY, IOWA 52244
February 15, 1999
Ms. Eleanor Dilkes
Iowa City Attorney
Iowa City Civic Center
410 E. Washington Street
Iowa City, IA 52240
RE: Police Citizens Review Board
Dear Eleanor:
I thought the Board meeting with you on February 8th went very well indeed and that
this was reflected in the Board's joint meeting with the City Council on February 11th.
All reports from the board members are that they were very pleased with how things are
working. They have a feeling that good faith negotiations will solve the problems we
have discussed.
I will call you on Tuesday the 16th before the Board meets to discuss current status of
our discussions. I am anticipating that you will be drafting language to deal with the
matters we discussed in our meeting on February 8th. I will review this with you by
phone and then get it to the board for their consideration at the soonest possible time.
The Board is willing to prepare information cards or sheets to accompany both the
PCRB complaint form and the Police Department complaint form if that is acceptable to
you. We will present our draft to you when it is ready.
Leah Cohen called me on Friday, February 12th advising that the Mayor has requested
us to present him with a letter explaining why the Board feels it important and
appropriate to have a police officer identifying number before it deliberates on a
pending complaint. I would like to talk to you about this Tuesday as I am expecting the
Mayor would like a prompt reply. I expect the letter I will draft to say that the Board
feels it should be entrusted with this information as it may bear on creditability of a
particular officer concerning a particular complaint. I would appreciate your views on
this. It is my understanding that Mr. Lehman has his own doubts but also wishes to
address strong doubts held by Mr. O'Donnell about whether the Board should have this
information before it deliberates on a particular complaint.
Thanks again for the good meeting. I look forward to talking with you.
Respectfully,
Douglas S. Russell
DSR.glg
cc: Board Members
Sandy Bauer
C:~SRP~.DOUG~PCR B,F 15
COPY FOR YOUR
INFORMAIION
February 16, 1999
Mayor Ernest W. Lehman
Iowa City Civic Center
410 E. Washington Street
Iowa City, Iowa 52240
RE: Police Citizens Review Board
Dear Ernie:
You contacted me on Friday, February 12, 1999, and requested a letter of clarification
concerning the request of the Police Citizens Review Board to have officer identifying
numbers for a particular complaint before the Board deliberates on that complaint. We
understand from our joint meeting with the City Council on February 11th that the
council agrees we should receive identifying numbers for specific police officers and
that the time when we should receive the number is the remaining issue.
The Board wants to receive from the Chief of Police or from the City Manager in their
report on a given complaint, the identifying number of all officers involved and
information about which previous PCRB complaints named that officer or officers. The
Board wants to receive this information before it deliberates upon the Chief's or City
Manager's report.
It must be remembered that the information requested is, in itself, neutral. The fact that
an officer was named in a previous complaint, whether the complaint was sustained or
not, will not prejudice the Board for or against the officer. It serves as a reference back
to the previous complaints so the Board may look at them again for legitimate and
relevant reasons.
The information requested is not for the purpose of proving misconduct by the officer in
a pending complaint because of allegations against him in a previous complaint. The
information requested is not for the purpose of identifying an officer by name or making
his or her identity public. The purpose of the information is two fold. First, to allow the
Board to track the behavior of particular officers over the entire period of the Board's
existence. Second, to allow the Board to make use of the information to determine
creditability of a given officer, where appropriate and relevant to a pending complaint.
The first function may be served by giving the Board the identifying number after the
complaint has been decided upon. The second function may only be served if the
information is received before the Board deliberates on a pending complaint.
The additional standard operating procedures as proposed by the City Attorney and the
PCRB at the joint meeting with the City Council on February 11th address the question
of the proper use of the police officer identifying numbers during Board deliberations. It
is recommended that the Board shall not use the fact that a previous complaint was
filed against an officer as evidence of wrongdoing by the officer in support of a decision
to sustain a complaint. The fact a complaint was previously filed against an officer is
not evidence of wrongdoing and would not be viewed by the Board as such. The fact
that a complaint was sustained is not relevant to the decision as to police misconduct or
creditability, anymore then the fact a complaint was not sustained would affect these
issues.
The reason the Board wants the identifying number as it deliberates is to answer
questions of creditability that may arise. For example, if it is indicated that the officer in
a pending complaint was named in a previous complaint, the Board may look back at
that previous complaint on the issue of creditability of that officer in the pending matter.
Regardless of whether the previous complaint was sustained or not, it may be clear
from records of the Board that the officer had lied in the previous matter or had been
found to truthful in the previous matter. This decision concerning the officer creditability
is proper subject matter for the Board as it deliberates and is relevant to its decision
making.
The Board is capable of using the identifying number of an officer for proper purposes
and not for improper purposes. The Board is capable of avoiding prejudice based
merely on the fact that a complaint previously named an officer. The Board strongly
believes that as long as the City Council keeps the Board in existence that it must trust
the Board to operate within its standard operating procedures with all relevant
information that may properly affect its decisions. As a matter of good faith, the Board
decided early on that it did not want the name of an officer named in a complaint. It
does feel that it must have the identifying numbers of officers named in complaints so
that it may fulfill its duties under the ordinance. The Board believes it must have the
identifying numbers as it deliberates to make fully informed decisions.
Respectfully,
Leah Cohen,
Chair
Discussion draft 2/15/99
Why it would be unwise to further limit the modest powers
granted to the Iowa City PCRB: A thought process
The PCRB was conceived as a response to public reactions to a shooting by an
Iowa City police officer that resulted in the death of an innocent citizen.
There is no national model or protocol for a PCRB; most such boards have
widely diverging origins, powers, focuses, and goals. There is no PCRB
elsewhere in Iowa.
Most existing review boards do, however, appear to reflect aspects of community
standards that citizens wish to maintain or, at least, to acknowledge.
The development of the PCRB took nearly two years, as the city decided what to
do and how to do it.
The ordinance establishing the PCRB was clearly the result of compromise:
It was conceived as a tangible response to a civic tragedy, a response to
what many citizens felt was police behavior inconsistent with community
standards.
But it was also a response that shows clear and appropriate concern for
the rights and responsibilities of police officers.
The City ultimately determined that the responsibilities assigned an Iowa City
olice Citizen Review Board would include a number of powers designed to
hance and confirm the City's commitment to external accountability for the
wa City Police Department:
Review of reports prepared by the Chief of Police in response to written
complaints filed by citizens. (Such review has been restricted to only those
complaints filed using the PCRB complaint form, ~ Issuance of written
reports on each review.
Review of police practices, procedures, and policies; recommendations
about them to the City Council
Maintenance of a central registry of complaints
Preparation of a detailed annual report to the City Council
As the Board has developed its own standard operating procedures, we have
shown a similar sensitivity to potentially "competing" priorities. For example,
we have:
Accepted as a given a "deferential standard of review" in our dealings
with the Chief's reports
Been balanced and judicious in our review of individual reports
Attempted to deal constructively with the existence of two separate
processes for the filing of complaints about sworn police officers.
Invited and accepted public comments, but strived to do so impartially
Conscientiously guarded the confidentiality of all involved in complaints,
including officers.
Although it was clearly a priority that the rights of officers and all others
involved in complaints must be respected, and that appropriate confidentiality
was also considered important, the original ordinance gives the PCRB access to
the identity of officers who are the subject of complaints.
One of the Board's first unanimous decisions was that we did not wish to know
the identity of officers, but would be satisfied to work with a system of unique
but anonymous identifiers of the Chief's own devising.
The Board has reviewed reports on 26 complaints containing over 60 allegations.
It has sustained only three of those allegations, two of which had been
previously sustained by the Chief.
The Board has NEVER released information about any complaint; it has NEVER
released the names of any officers, complainants, or others involved in any
complaint.
Further, we have been very sensitive to the standards of our unique, diverse,
vibrant community and to our role as a "quasi-public" body, characterized--
depending on one's politics and predispositions~as essential to the function of
the community or an intrusive annoyance, as having too much power or too
little, as presuming and doing too much or showing too little effect.
We remain firmly committed to functioning within the guidelines established for
the Board and in the context of the enhanced standards of confidentiality that we
have voluntarily imposed on ourselves.
We feel very strongly that the Council must not take away the Board's ability to
access a unique identifier for each sworn police officer throughout the entire
complaint process. Such information is essential to our work. The City Attorney's
office has confirmed that such access is both appropriate and routine in similar
circumstances.
We are convinced that it would be unwise to dilute the already modest powers
granted to the PCRB, especially without any clear and plausible motivation for
doing so.
Besides further distancing the Board from the information it needs to do its work,
such a decision might very well call into question the city's commitment to
address issues that led to the Board's establishment just a few years ago.
February 23, 1999 ~//'~'%~
CITY OF I0 WA CITY
Douglas S. Russell
Stein, Russell & Pugh, LLP
Engled Building
PO Box 2416
Iowa City, IA 52244
Re: Police Citizens Review Board
Dear Doug:
I reviewed the minutes of the PCRB's February 9, 1999 meeting, which were included in the Council's
agenda packet for this week and noted two instances in which the characterizations of my opinions
require clarification. First, the minutes state that I disagree with the Board's position that it should receive
information about complaints filed with the Police Department. This was not my position when I met with
representatives of the Board. Rather, I reserved judgment until additional information was provided by the
Board and, upon receipt of that information, was agreeable to the Board receiving information about
Police Department complaints.
Second, the minutes state that "The City Attorney feels the ordinance should be changed to exclude [the
right of the Board to name an officer in a sustained complaint]. To the contrary, as reflected in my last
memo to Council, I have stated that guidelines should be put in place to determine when such
identification would be appropriate. At the Council's work session last night, I clarified my opinion on
these two issues and told them I would let the Board know of this clarification.
Very truly yours,
Eleanor M. Dilkes
City Attorney
Cc: Steve Atkins
Marian Karr
Sarah Holecek
R.J. Winkelhake
STE N, RUSSELL & PUGN, L.LP. COPY FOR YOUR
A~O~S AT LAW
INFORMATION
IOWA ~ IOWA
· ~o.o~. ...... ,~,.o,~ February 19.1999 ~,~, ~,-~,o
Ms. Eleanor M. Dilkes
Iowa City Attorney
410 E. Washington Street
Iowa City, Iowa 52240-1826
RE: Police Citizens Review Board
Dear Eleanor:
Thank you for your letter of February 18, 1999. I appreciate your willingness to draft
necessary language for SOP and ordinance changes for review by the PCRB and the
City Council. We would expect to have an opportunity to discuss the language with you
before the matter is submitted to the City Council. I am hopeful that language can be
mutually agreed upon to resolve all the issues we discussed.
Thank you for sending the Hawk Eye v. Jackson decision to me. I look forward to
discussing guidelines for disclosure with you.
I also appreciate your paragraph "for the record ". I agree with your comments.
Liability is but one matter with which you have been concerned in considering these
issues. I am aware, and I believe the Board is aware, that the other matters you list are
important considerations as well. Lines of communications will remain open. The
Board will continue to discuss matters in good faith as I know you have and will.
Respectfuliy,
STEIN, RUSSELL & PUGH, L.L.P.
Douglas S. Russell
DSR.glg
cc: Sandy Bauer
Board Members
C:\SRP\DOUG\DILKES.F 19
COPY FOR YOUR j
February 18, 1999 INFORMATION
Douglas S. Russell
Stein, Russell, and Pugh, LLP
Englert Building
PO Box 2416
Iowa City, IA 52244 ~- --
CITY OF I0 WA CITY
Re: Police Citizens Review Board
Dear Doug:
This letter will confirm that I will prepare an initial draft of the changes to the Board's standard
operating procedures and to the ordinance that were discussed at the joint meeting of the City
Council and the PCRB on February 11. The issues of summary dismissal and identification of
officers will be addressed in the SOPs and the changes to the various deadlines will be
addressed by changes to the ordinance. Perhaps we should aim for having the SOPs and the
first reading of the ordinance amendments on the Council's March 23rd agenda.
We need to discuss the issue of the Board's right, by ordinance, to identify an officer in a
sustained complaint. As I stated when I met with you and representatives of the Board, as well
as in my memo to the Council, I believe that guidelines need to be put in place to determine
when such identification would be appropriate. At first blush, this would appear to involve a
balancing of competing interests similar to that engaged in by the Supreme Court in Hawk Eye
v. Jackson, 521 N.W.2d 750 (Iowa 1994), a copy of which is enclosed for your information.
Although this case dealt not with an officer's identity but with whether a DCI report concerning
an officer's conduct should be released, the construct used by the Court may be helpful to us
here. Because the amended SOPs regarding officer identification in the Board's public repods
will need to reserve the right to name the officer in a sustained complaint, I suspect this issue
will come up when the Council makes its formal decision on the SOPs.
For the record, I feel compelled to comment on your statement at the Board's February 9
meeting that my main concern was one of liability. Clearly, issues of liability are within the
purview of this office. However, the numerous issues that we have had to address over the last
several months have not been ones of liability, but rather, have involved matters of procedure,
procedural due process, ordinance interpretation, confidentiality, the proper use of compelled
statements, etc. My concern regarding the use of an accusation as evidence of misconduct is
not, I believe, an issue of liability, although it is the one that has generated the most debate.
I make the above comments in an attempt to keep the lines of communication open and the
areas of misunderstanding and miscommunication to a minimum.
I will get the proposed revisions to the SOPs and ordinance to you as soon as I can.
truly yours, __
Eleanor M. Dilkes
City Attorney
Enclosure
410 EAST WASHINGTON STREET · IOWA CITY, IOWA $2240-1826 · (319) 356-5000 · FAX (319) 356-$009
............. EC WEEI FEB 1 9
Douglas S. Russell
February 18, 1999
Page 2
cc: Sarah Holecek, First Assistant City Attorney
Marian Karr, City Clerk
Steve Atkins, City Manager
R. J. Winkelhake, Chief of Police
legal\eleanor~Jtr sVu ssel4 ,doc
February 23, 1999 ~~
CITY OF I0 WA CITY
Douglas S. Russell
Stein, Russell & Pugh, LLP
Englert Building
PO Box 2416
Iowa City, IA 52244
Re: Police Citizens Review Board
Dear Doug:
I reviewed the minutes of the PCRB's February 9, 1999 meeting, which were included in the Council's
agenda packet for this week and noted two instances in which the characterizations of my opinions
require clarification. First, the minutes state that I disagree with the Board's position that it should receive
information about complaints filed with the Police Depadment. This was not my position when I met with
representatives of the Board. Rather, I reserved judgment until additional information was provided by the
Board and, upon receipt of that information, was agreeable to the Board receiving information about
Police Department complaints.
Second, the minutes state that "The City Attorney feels the ordinance should be changed to exclude [the
right of the Board to name an officer in a sustained complaint]. To the contrary, as reflected in my last
memo to Council, I have stated that guidelines should be put in place to determine when such
identification would be appropriate. At the Council's work session last night, clarified my opinion on
these two issues and told them I would let the Board know of this clarification.
Very truly yours,
Eleanor M. Dilkes
City Attorney
Cc: Steve Atkins
Marian Karr
Sarah Holecek
R.J. Winkelhake