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HomeMy WebLinkAbout09-11-2001 Communication POLICE CITIZENS REVIEW BOARD A Board of the City of Iowa City 410 East Washington Street Iowa City IA 52240-1826 (319 )356-5041 September 6, 2001 Steve Atkins City Manager City of Iowa City 410 E Washington Street Iowa City, IA 52240 Dear Steve: The PCRB discussed your July 17 memorandum regarding PCRB Complaint 01-01 at its meeting on August 22, 2001. First of all, the Board wishes to make clear that the ordinance makes no provision for a review or appeal of PCRB findings or conclusions, and the Board does not wish to participate in such a review. We would be happy to discuss with you and/or the Chief our comments and recommendations contained in the Board Concerns section at the end of the report. We believe that addressing the policy issues is more important than discussing exactly why we did or did not agree with the Chiefs conclusions. It would be helpful to know specifically what you and/or the Chief would like the Board to clarify. Your memo implied that the City Attorney might disagree with some of the legal conclusions contained in our report. Our attorney outlined both sides of the legal arguments of minor consent and other issues and we weighed the legal arguments in our deliberations. We acknowledge, however, that our conclusions, like almost all legal opinions, are arguable. We believe that our report explained our findings and conclusions clearly. We have authorized our attomey to discuss the legal issues further with the City Attorney if that is desired. Sincerely, John Watson ~RB Board Chairperson I07-10-01 9 prepared by: Eleanor M. Dilkes, City Attorney; 410 E. Washington St.; Iowa City, IA 52240; (319) 356-5030 ORDINANCE NO. 01-3976 ORDINANCE AMENDING TITLE 8, CHAPTER 8 OF THE CITY CODE ENTITLED "POLICE CITIZENS REVIEW BOARD" TO DISTINGUISH, IN ACCORDANCE WITH A C TUA L PRA C TICE, BETWEEN COMPLAINTS MADE TO THE BOARD AND COMPLAINTS MADE TO THE IOWA CITY POLICE DEPARTMENT, TO ALLOW THE BOARD TO COMMENT ON OFFICER ACTION AND POLICE PRACTICES, PROCEDURES AND WRITTEN POLICIES REGARDING AN INCIDENT NOTWITHSTANDING ITS AFFIRMANCE OF THE POLICE CHIEF OR CITY MANAGER°S REPORT IN ACCORDANCE WITH THE REASONABLE BASIS STANDARD OF REVIEW, AND ALLOWING THE BOARD TO REQUEST THAT THE CITY COUNCIL HOLD GENERAL INFORMATIONAL HEARINGS REGARDING POLICE ACTIVITIES. WHEREAS, in accordance with actual practice, Chapter 8 of the City Code entitled "Police Citizen Review Board" should distinguish between complaints made to the Board and those made to the Iowa City Police Department; and WHEREAS, the Board should be allowed to comment on officer action and police practices, procedures and wdtten policies regarding an incident notwithstanding its affirmance of the Police Chief or City Managers report in accordance with the reasonable basis standard of review; and; WHEREAS, rather than the Board holding general informational hearings regarding police activities. the Board should be allowed to request that the City Council hold such hearings. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA: SECTION I. AMENDMENT. The City Code shall be amended by deleting Section 8-8-2 and substituting the following in lieu thereof: 8-8-2: INTENT, GOALS AND GUIDING PRINCIPLES: Ordinance No. ~,-3976 Page 2 A. Investigations into claims of inappropriate conduct by sworn police officers will be conducted in a manner which is fair, thorough, and accurate. B. An annual reporting system regarding complaints against sworn police officers will be established to give the City Council sufficient information to assess the overall performance of the Iowa City Police Department in these matters. C. Citizens may make a formal written complaint to either the Board or the Iowa City Police Department. In accordance with this Chapter the Board shall process only those complaints filed with the Board but will receive reports from the Police Chief bdefly describing the nature of the allegations made in formal written complaints filed with the police department and the disposition of the same. D, The Board will: 1. Oversee a monitoring system for tracking receipt of formal complaints lodged against sworn police officers with either the Board or the Iowa City Police Department; 2. Provide oversight of police investigations through review of such investigations; (Ord. 97-3792, 7-15-1997) 3. Provide the opportunity for a hearing to the police officer if the Board's findings on the complaint to the Board are critical of the police officer, as required by constitutional law, and give the police officer the opportunity to present testimony and evidence; (Ord. 98-3865, 12-15- 1998) 4. Issue a final public report to the City Council on each complaint to the Board which sets forth factual findings and a written conclusion which explains why and the extent to which the complaint is either "sustained" or "not sustained". E, The Board shall have no authority over police disciplinary matters because only the Police Chief or City Manager may impose discipline under Iowa law. F. No findings in the Board's report shall be used in any other legal proceeding. G. The Board shall only review the conduct of sworn police officers and shall only act in a civil, not criminal, capacity. The Board is not intended to be a court of law, a tort claim process or other litigation process. No action of Ordinance No. 0].-3976 Page 3 the Board shall be deemed to diminish or limit the right of any person to file a claim or a lawsuit against the City. H. A complaint to the Board may be filed by any person with personal knowledge of an incident. "Personal knowledge" means the complainant was directly involved in the incident or witnessed the incident. If the person with personal knowledge is underage or otherwise unable to complete a complaint form, the complaint may be filed by such person's designated representative. The City Manager, the Police Chief, the City Council, or the Board may file a complaint to the Board based upon a reasonable belief that police misconduct has occurred regardless of personal knowledge. I. In order to assure that people feel confident in the complaint process, nonpolice City staff shall be available at a public location other than the Police Department to receive complaints, although complaints may also be filed at the Police Department. Formal mediation shall be available to the complainant(s) and the police officer(s) at any time during the process. J, The Board shall not interfere with or diminish the legal rights of sworn police officers, including those rights protected under the union contract, Civil Service Commission, and State and Federal law, Similarly, the Board shall respect the rights of privacy and freedom from defamation shared by complainants and witnesses, as well as those same rights enjoyed by police officers under the law. K. The City Council finds that internal accountability within the Police Department is a valid legislative purpose, and one method of accomplishing such internal accountability is to have the police do their own investigations into claims of inappropriate police conduct. If a complaint is asserted against the Police Chief, the City Manager will investigate the claim and report to the Board and the City Council. L. Investigation of all formal complaints to the Board is a mandatory duty of the Police Chief, and a report of each complaint investigation shall be given to the Board. Such reports to the Board shall include the factual findings of the Police Chief as well as a written conclusion explaining why and the extent to which a complaint is either "sustained" or "not sustained". However, such reports shall not include discipline or other personnel matters. If the Police Chief and the City Manager find the police officers actions constitute misconduct and discipline is imposed by the Police Chief or City Manager, the internal affairs investigation may · Ordinance No. 01-3976 Page 4 become a public record to be released by the City Attorney to the extent provided by law. M. In order to assure external accountability of the actions of the Police Department, the Police Chief shall provide the Board with a report at least quarterly of all formal complaints filed directly with the police department, which report shall state the date and location of the incident and a brief description of the nature of the allegation and the disposition of the complaint. N. External accountability will further be provided by the Board's maintenance of a central registry of all formal complaints. In addition to the central registry, the Board shall provide an annual report to the City Council, which report shall be public and shall set forth the general types and numbers of complaints, how they were resolved. demographic information, and recommendations as to how the Police Department may improve its community relations or be more responsive to community needs. O. The Board shall review police practices, procedures, and written policies as those practices and procedures relate to the Police Department's performance as a whole, and shall report their recommendations, if any. to the City Council, City Manager and Police Chief (Ord. 97-3792, 7-15-1997). SECTION II. AMENDMENT. The City Code shall be amended by deleting Section 8-8-3 and substituting the following in lieu thereof: 8-8-3: DEFINITION OF COMPLAINT; COMPLAINT PROCESS IN GENERAL: A. A "complaint to the Board" or "PCRB Complaint" is an allegation of misconduct lodged against a sworn police officer ("police officer' or "officer') employed by the Iowa City Police Department, where the complained-of activity occurred while the officer was acting in the capacity of a sworn police officer. B. Any person with personal knowledge of the alleged police misconduct may file a PCRB complaint with the Board. In order to have "personal knowledge", the complainant must have been directly involved in the incident or witnessed the incident. If the person with personal knowledge is underage or otherwise unable to complete a PCRB complaint form, the PCRB complaint may be filed by such person's designated representative. The City Manager, the Police Chief, the City Council or the Board itself may file a PCRB complaint based on a reasonable belief that police misconduct has occurred regardless of personal knowledge. The Ordinance No. 01-3976 Page 5 person or official filing the PCRB complaint may hereafter be referred to as the "complainant". C. All complaints to the Board shall be in writing and on forms provided by the Board. Complaint forms shall be available to the public in easily accessible locations, and nonpolice staff shall be available to receive the complaint forms. Assistance may be available to complete the form as designated by the Board. (Ord. 97-3792, 7-15-1997) D. All complaints to the Board must be filed with the City Clerk within ninety (90) days of the alleged misconduct. E. Only those complaints to the Board which do not involve the conduct of an Iowa City sworn police officer or are not filed within ninety (90) days of the alleged misconduct may be subject to summary dismissal by the Board. (Ord. 99-3877, 4-20-1999). SECTION III. AMENDMENT. The City Code shall be amended by deleting Section 8-8-4 and substituting the following in lieu thereof: 8-8-4: FORMAL MEDIATION: A. Formal mediation shall be the responsibility of the Board, and shall be available to the complainant(s) and police officer(s) at any stage of the process upon consent of all involved parties and as provided by the Board. Upon the filing of a PCRB complaint, all complainants shall be informed that formal mediation is available. A complainant may also meet informally with the police officer and the watch commander of the police officer if the complainant wishes to do so. B. If a PCRB complaint is successfully mediated, the terms of the mediation agreement shall be set forth in writing, and shall be kept confidential to the extent allowed by law; but the status of settlement shall be maintained in the Board's central registry for reporting in the Board's annual report. There shall be no retaliation against police officers who choose not to mediate. (Ord. 97-3792, 7-15-1997). SECTION IV. AMENDMENT. The City Code shall be amended by deleting Section 8-8-5 and substituting the following in lieu thereof: 8-8-5: POLICE DEPARTMENT AND POLICE CHIEF INVESTIGATORY DUTIES; CITY MANAGER INVESTIGATORY DUTIES: A. Complaints: The Police Department shall forward copies of all PCRB complaints received to the Board. If the complaint concerns the Police Chief, a copy of the complaint shall also be forwarded to the City Manager. B. Investigation: It shall be the mandatory duty of the Police Chief to do the following: Ordinance No, 01-3976 Page 6 1. Prior to investigation of any PCRB complaint, the Police Chief shall first give Garrity and Gardner advice to all police officers implicated in the complaint, as required by constitutional law. This means the officer cannot be required to waive the officers constitutional right against self-incrimination. However, the officer may be required to answer questions during the investigation as a condition of the officers employment, but any admissions made by the officer cannot be used against the officer in a criminal proceeding. 2. Notif,/the complainant and the police officer who is the subject of the complaint that formal mediation is available at any time during the Police Department's investigation and the Board's review, The Police Chief may also notity the complainant that the complainant may meet informally with the police officer and the watch commander of the police officer if the complainant wishes to do so. 3. Assign the PCRB complaint to designated investigators within the Police Department for investigation into the factual allegations of the complaint. 4. The complainant shall be interviewed by the Police Department and shall be entitled to have a neutral City staff person or some other person chosen by the complainant present during the interview. The police officer is entitled to have a union steward present during any interviews. 5. Investigators will prepare and forward a report of their investigation to the Police Chief, and shall make detailed findings of fact as to the allegations in the complaint, and shall also set forth a written conclusion which explains why and the extent to which the complaint is either "sustained" or "not sustained". C. Legal Advice: If litigation, including criminal charges, relating to the matter of the PCRB complaint is commenced or is being contemplated by or against any party to the complaint, the Police Department, the Police Ordinance No. 01-3976 Page 7 Chief and/or the Board shall consult with the City Attorney and/or the Board's own attorney on a case-by-case basis, to determine whether and how the investigation of the PCRB complaint should proceed. D. Complaints Against Police Chief: If a PCRB complaint is filed concerning the Police ChieFs conduct, the City Manager shall investigate or cause an investigation to be completed. E. Disciplinary Action: Nothing in this Chapter shall prevent the Police Chief or the City Manager from taking disciplinary action prior to the Board's review of the PCRB complaint. (Ord. 97-3792, 7-15-1997) SECTION V. AMENDMENT. The City Code shall be amended by deleting Section 8-8-6 and substituting the foiiowing in lieu thereof: 8-8-6: POLICE CHIEF'S REPORT TO THE BOARD; CITY MANAGER'S REPORT TO THE BOARD: A. The Police Chief shall receive the designated investigators' report within the time frame indicated by the Police Chief. The Police Chief shall conduct a review of the investigators' report, and may do any or all of the following: conduct interviews or request the police investigators to conduct additional investigations; request additional information, or that additional questions be asked; interview or direct that other persons or witnesses be interviewed; request that other documents be reviewed and/or retrieved; and any other investigative matters the Police Chief deems appropriate. B. The Police Chief will consult with the City Personnel Administrator and the City Attorney prior to finalizing the Police Chiefs report to the Board, and shall then foRyard this report to the Board, which shall include the following: 1. Detailed written findings of fact concerning the allegations in the PCRB complaint; 2. A written conclusion which explains why and the extent to which the PCRB complaint is either "sustained" or "not sustained"; and 3. Recommended remedial actions, if any, including amending current policies or adopting new policies. C. The Police Chiefs report to the Board shall not include discipline or personnel matters. D. A copy of the Police Chiefs report to the Board shall be given to the police officer, the complainant, and the City Manager. If the PCRB Ordinance No. 01-3976 Page 8 complaint concerns the Police Chief, copies of the City Managers report to the Board shall be given to the Police Chief. the complainant, and the City Council. (Ord. 97-3792, 7-15-1997) E. The Police ChieFs report to the Board shall be completed within ninety (90) calendar days after the PCRB complaint is filed. The Board may grant extensions from this deadline for good cause shown. (Ord. 99-3877, 4-20-1999) F All investigations shall be performed in a manner designed to produce a minimum of inconvenience and embarrassment to all parties- including the complainant, the police officer, and other witnesses. G. If a PCRB complaint is filed concerning the Police Chief. the City Managers report shall include the same findings of fact and conclusions as required for the Police ChieFs report to the Board. (Ord. 97-3792, 7-15-1997) SECTION VI. AMENDMENT. The City Code shall be amended by deleting Section 8-8-7 and substituting the following in lieu thereof: 8-8-7: DUTIES OF THE BOARD; COMPLAINT REVIEW AND GENERAL DUTIES: A. Complaints: The Board shall forward copies of all PCRB complaints received to the Police Chief for investigation; or where the PCRB complaint concerns the Police Chief, forward a copy of the PCRB complaint to the City Manager for investigation. B. Review Of Police ChieFs Report Or City Manager's Report: 1. The Board shall review all Police Chiefs reports and City Managers reports concerning PCRB complaints. The Board shall decide, on a simple majority vote, the level of review to give each Police ChieFs or City Managers report, and the Board may select any or all of the following levels of review: a. On the record with no additional investigation; b. Interview/meet with complainant; c. Interview/meet with named officer(s) and other officers; d. Request additional investigation by the Police Chief or City Manager, or request police assistance in the Board's own investigation; e. Performance by Board of its own additional investigation; "' Ordinance No. 01-3976 Page 9 f. Hire independent investigators· 2. The Board shall apply a "reasonable basis" standard of review when reviewing the Police Chiefs or City Managers report. This requires the Board to give deference to the Police Chiefs or City Managers report because of the Police Chiefs and City Managers respective professional expertise. The Board may recommend that the Police Chief or City Manager reverse or modify their findings only if: a. The findings are not supported by substantial evidence; b. The findings are unreasonable, arbitrary or capricious; or c. The findings are contrary to a Police Department policy or practice, or any Federal, State, or local law. If, in accordance with said standard, the Board affirms the decision of the Police Chief or City Manager with respect to the allegations of misconduct but nonethetess has concern about the officers conduct or police practices, policies, or procedures, it may so comment in its report to the City Council. If such comments are critical of the officers conduct the Board shall provide the officer a name-clearing hearing pursuant to Section 8-8-7(B)(4) hereof. When collecting and reviewing additional evidence, the Board shall rely on evidence which reasonably prudent persons are accustomed to rely upon in the conduct of their serious affairs. (Ord. 98-3865, 12-15-1998) 3. At the conclusion of the Board's review, the Board shall issue a public report to the City Council concerning the PCRB complaint investigation. Such public report shall include detailed findings of fact concerning the PCRB complaint, · together with a clearly articulated conclusion which explains why and the extent to which the complaint is "sustained" or "not sustained". If the complaint is "not sustained", the public report shall not include the names of the complainant(s) or the · ' Ordinance No. 01-3976 Page 10 police officer(s). If the complaint is "sustained" the Board may include the names of the complainant(s) and/or the police officer(s) if it determines that the public interest in such disclosure outweighs the public harm and privacy interests of the complainant(s) and/or police officer(s). Said determination shall be made in writing and shall state. in detail, the Board's reasons for such determination. The Board shall notify the person(s) whose name(s) it intends to disclose, the City Attorney and the Police Chief (or City Manager if the Police Chief is the subject of the complaint), of its intent to make such disclosure by confidential written communication sent by regular mail or hand delivery at least ten (10) working days prior to such disclosure. In addition, the Board's public report shall not include any discipline or personnel matters, although the Board may comment generally as to whether the Board believes discipline is appropriate without commenting on the extent or form of the discipline· A copy of this public report to the City Council shall be given to the complainant(s), the police officer(s), the Police Chief and the City Manager. (Ord. 99-3891, 7-13-1999) 4. The Board shall not issue a report which is critical of the sworn police officer's conduct until after a "name- clearing hearing" has been held, consistent with constitutional due process law. The Board shall give notice of such hearing to the police officer so that the officer may testify before the Board and present additional relevant evidence. The Board shall be responsible for protection of all State and Federal dghts enjoyed by the officer. The officer may waive the right to this hearing upon written waiver submitted to the Board. (Ord. 98- 3865, 12-15-1998) 5. If the Board's report is not critical of the officers conduct, the Board is not required by law to offer a hearing to the officer. but the Board may hold hearings as deemed " Ordinance No. 01-3976 Page 11 appropriate by the Board. (Ord. 97- 3792, 7-15-1997) 6. The Board's report to the City Council shall be completed within forty five (45) calendar days of receipt of the Chief's or City Manager's report, The City Council may grant requests for extensions to this deadline upon good cause shown. (Ord. 99-3877, 4-20-1999) 7. Nothing in this Chapter shall in any way impede or interfere with the Police Chiefs and the City Managers lawful ability to perform their personnel supervisory duties over sworn police officers, including the ability to impose discipline as deemed appropriate by the Police Chief or City Manager. 8. No findings or report submitted to the Board or prepared by the Board shall be used in any other proceedings. C. General Powers And Duties: The Board shall also carry out the following duties: 1, Maintain a central registry of written complaints filed with the Board or with the Iowa City Police Department. 2. Collect data and do an annual report to the City Council which shall be public and shall set forth the general types and numbers of complaints, disposition of the complaints, the discipline which was imposed, if any, and demographic information. This annual report shall not include the names of the complainants or officers involved in complaints which were not sustained, and shall otherwise be in a form which protects the con~denfiality of the parties while providing the public with information on the overall performance of the Police Department. :l:he Board's annual report may also include recommended changes in police practices, policies or procedures. 3. In addition to the annual report, the Board shall, from time to time, report to the City Council on police practices, procedures and policies, including recommended changes, if appropdate. .' Ordinance No. 0].-3976 Page 12 4. The Board shall adopt procedural rules and bylaws governing the Board's activities, including the receipt and processing of complaints, and such procedural rules and bylaws shall be approved by the City Council. (Ord. 97-3792, 7-15-1997) SECTION VII. AMENDMENT. The City Code shall be amended by deleting Section 8-8-8 and substituting the following in lieu thereof: 8-8-8: BOARD COMPOSITION; LIMITED POWERS OF THE BOARD: A. Board Composition: 1. The Board shall consist of five (5) members appointed by the City Council, who shall be Iowa City eligible electors and shall serve without compensation. The City Council shall strive to appoint members who represent the diversity of the community. Appointments to the Board shall include one current or former "peace officer' as that term is defined by State law. The City Council reserves the right to waive the residency requirement for good cause shown. The City Council also reserves the right, for good cause shown, to waive the requirement that the Board include one current or former peace officer. 2. Following final adoption and publication of Ordinance 97-3792, the City Council shall appoint members to the Board for staggered terms. All appointments shall be for a four (4) year term, except for the initial appointments which shall be as follows: a. One person appointed for a two (2) year term. b. Two (2) persons appointed for three (3) year terms. c. Two (2) persons appointed for four (4) year terms. 3. Training shall be available to all Board members to enable them to perform the duties imposed herein, including training on Iowa's public records and open meetings laws. B. Limited Powers: The Board shall have the following limited powers: 1. On its own motion, by a simple majority vote of all members of the Ordinance No. 01-3976 Page 13 Board, the Board may file a PCRB complaint. 2. The Board shall decide the level of review to give the Police Chief's or City Managers report by a simple majodty vote of all members of the Board. 3. The Board has no power to review police officer personnel records or disciplinary matters except to the extent such matters are made public by the City Attorney. 4. The Board has only limited civil, administrative review powers, and has no power or authority over criminal matters. The Board is not a court of law, and is not intended to substitute as a tort claims procedure or as litigation against the City. 5. If criminal charges are brought or are being considered against a particular police officer(s), the Board's review or investigation may proceed with interviewing other officers or witnesses, or collecting documents, as appropriate. Any statements given by an officer who is subject to criminal investigation cannot later be used against the officer in a criminal proceeding, as provided under the Fifth Amendment to the U.S. Constitution, unless such constitutional right is waived. 6. The Board may obtain outside counsel and independent investigators in order to carry out the Board's duties. 7. The Board may request that the City Council hold general public informational hearings concerning Police Department practices. procedures or written policies. (Ord. 97-3792, 7-15-1997) SECTION VIII. AMENDMENT. The City Code shall be amended by deleting Section 8-8-10 and substituting the following in lieu thereof:. 8-8-10: COUNCIL REVIEW: On or before August 1, 2003 and every two years thereafter the City Council shall evaluate the effectiveness of the Board in light of the goals and principles set forth in Section 8-8-2. (Ord. 97-3792. 7-15- 1997) SECTION IX. REPEALER. All ordinances and parts of ordinances in conflict with the provi- sions of this Ordinance are hereby repealed. O~inanceNo. 01-3976 Page 14 SECTION X. SEVERABILITY. If any section, provision or part of the Ordinance shall be adjudged to be invalid or unconstitutional, such adjudication shall not affect the validity of the Ordinance as a whole or any section, provision or part thereof not adjudged invalid or unconsti- tutional. SECTION XI. EFFECTIVE DATE. This Ordinance shall be in effect alter its final passage, approval and publication, as provided by law. Passed and approved this 10th day of July ,20 01 . City Attorneys Office eleanor~rd~PCRB 7-20rd Ordinance No. 01-3976 Page, 15 It was moved by Champi on and seconded by Wi 1 burn that the Ordinance as read be adopted, and upon roll cell there were: AYES: NAYS: ABSENT: X Champion X Kanner X Lehman X O'Donnell X Pfab X Vanderhoef X Wilbum First Consideration 6/26/01 Voteforpassage: AYES: Kanner, Lehman, O'Donnell, Wilburn, Champion. NAYS: Pfab, Vanderhoef. ABSENT: None. Second Consideration 7/9/01 Voteforpassage:AyES: Champion, Kanner, Lehman, O'Donnell, Pfab, Wilburn. NAYS: Vanderhoef. ABSENT: None. Date published 7/18/01