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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