(TNS) — Mayor Ted Wheeler wants to overhaul Portland, Oregon’s civilian oversight of police, plainly acknowledging that the confusing system doesn’t have “any real teeth.’’
“The structure we have right now isn’t pleasing anybody, isn’t doing what we want and it doesn’t have the public’s trust,’’ he said last week.
Wheeler added the oversight system to his reform list as a wave of widespread public support for police accountability washes over the city and the nation after the killing of George Floyd, spurring a sudden resolve to fix what in the past have seemed like intractable problems mired in political opposition or inertia.
Community activists have urged stronger oversight for at least the past two decades but say they’ve felt as if they’ve been banging their heads against the wall without serious buy-in from the mayor or city commissioners.
But scrapping or revamping Portland’s tangled, secretive and what many insiders say is the misnamed “independent” police review system represents a degree of difficulty arguably unmatched in police change efforts.
Still, two schools of thought are emerging:
One suggests the city contract with a new outside office that would serve as the authority tasked with reviewing all allegations of police misconduct, as well as police shootings and deaths in custody.
The other philosophy calls for strengthening the current system by granting reviewers greater authority and ensuring transparency on police discipline.
Whichever model the city pursues, all agree that to work it must have adequate funding, true independence from the Police Bureau, full investigative power with the ability to subpoena officers and input on policies and discipline decisions.
So far, every recent attempt to strengthen the system has been “an absolute fight,” said City Auditor Mary Hull Caballero.
In 2014, the U.S. Department of Justice demanded a significant reorganization of the “byzantine” police oversight process after finding officers used excessive force against people with mental illness.
Two years later, a community advisory group sent 46 recommendations to the city and Justice Department advocating for an outside board to investigate all citizen complaints against police, the hiring of a police auditor who could recommend discipline with unfettered access to Police Bureau records and identifying officers, their misconduct and discipline on the Police Bureau’s website. None of that happened.
Wheeler in his run for mayor four years ago campaigned on giving Independent Police Review investigators the power to subpoena officers, take sworn testimony and recommend police discipline. The police review office can subpoena witnesses and documents but doesn’t have power to subpoena officers, and its director only can recommend discipline in a limited number of cases.
“I won’t believe it until I see it,’’ said Kristin Malone, an attorney who resigned out of frustration in January as chair of the Citizen Review Committee, a volunteer group that hears appeals of police findings on complaints. One other member also left the committee in the last year for much the same reason.
“As much as I applaud what he is saying and encourage him to say more about oversight and accountability especially, what I really want is the ‘doing,’” Malone said.
Hull Caballero, whose office includes the police oversight system, said significant change will come only with political will.
“Given the new era we are in, the question for the mayor, the chief, and the (police) unions is: Are they willing to give up ultimate control of deciding whether officers violated bureau policy?” she said. “And if so, what should the discipline be?
“If we can’t cut out all steps that are not useful to the final decisions, the system will be as byzantine tomorrow as it is today.’’
How It Works
Three groups now review complaints against police separate from the Police Bureau’s Internal Affairs Division. They are administrative reviews, not criminal investigations.
Two of the groups are under the elected city auditor: the Independent Police Review office and the Citizen Review Committee. The third group is the Police Review Board under the Police Bureau.
The Independent Police Review office, created in 2001, serves as the city’s intake center for allegations against officers, ranging from retaliation to use of force.
Last year, it received 408 complaints from community members, dismissed 155 of them and had 92 investigated. Between June 1 and 8 of this year, the office said it had received more than 2,300 letters and three dozen complaints, most related to force used on protesters.
The office has 15 employees, including a director and seven investigators, and a budget of $2.8 million.
Its staff can dismiss complaints or seek mediation between the person filing the complaint and the officer. It sends serious complaints that could lead to officer discipline to the Police Bureau’s Internal Affairs Division to investigate and monitors those inquiries. More minor complaints go to an officer’s supervisor for review. Its own investigators take on complaints involving high-ranking officers, alleged discrimination or retaliation and street protests.
Completed investigations that could end in an officer’s suspension or those that deal with police use of force filter through the Police Review Board. It issues a finding on whether officers violated any police policies and recommends discipline to the chief if so.
The board has five revolving members: an assistant police chief, a commander or captain who supervises the officer under review, a peer officer of the same rank as the officer under review, the Independent Police Review director or a representative and one citizen representative.
Two more members join the board for reviews of an officer’s use of force, a fatal shooting by an officer or a death in custody: another peer officer and a member of the Citizen Review Committee.
If someone who filed a complaint against an officer isn’t satisfied with a finding by the officer’s commander, the person can appeal to the Citizen Review Committee.
If the committee recommends overturning the bureau’s finding, it goes to the chief. If the chief disagrees with the committee, the committee holds a conference hearing with the chief. If the chief still disagrees, the matter gets kicked to the City Council to decide.
The citizen committee’s finding is still just an advisory recommendation. Committee members were disheartened, for example, when former Chief Danielle Outlaw didn’t support their 2018 finding that a police sergeant violated the bureau’s truthfulness policy when he lied about a law to get a protester to stop filming him and other officers. Outlaw instead concluded the matter was a performance issue and suspended the sergeant for one day.
Volunteers sign up to be on the 11-member committee through the Independent Review office for three-year terms. The current makeup includes five lawyers, nonprofit leaders and others working in higher education. They heard four appeals last year. Aside from hearing appeals, the committee also can recommend changes in bureau policies.
The ultimate decision on police discipline still always rests with the police chief and police commissioner. Wheeler serves as police commissioner. Yet discipline meted out in high profile cases often has been overturned by an arbitrator, leading police leaders to complain they can’t effectively manage their work force when decisions are second-guessed and overturned.
The Portland Police Association, which represents about 950 rank-and-file officers, detectives and sergeants, often has objected to efforts to strengthen the oversight system.
For years, for example, members of the Citizen Review Committee have pressed to use a “preponderance of evidence” standard when they consider a complaint appeal.
The committee must now ask if the findings by an officer's supervisor were "reasonable'' or not – a measure open to wide interpretation and “overly deferential” to the supervisor’s ruling, members have said.
But when the committee drafted a formal report with the proposal, the police union accused the citizen members of overstepping their authority.
Officer Daryl Turner, the union’s president, called their concerns “much ado about nothing’’ and argued in a May 2018 letter that adding a review layer to “second guess an officer’s actions’’ would further complicate a “convoluted and time-consuming process.’’
“We must not forget that our police officers have to endure an already draining discipline process, which includes multiple investigatory bodies, commander reviews, PRB (Police Review Board) reviews, and police chief and commissioner reviews, all of which is subject to CRC (Citizen Review Committee) and City Council review,’’ he wrote.
The proposal never got to a City Council vote.
"Nearly every member of Council had affirmed at one time that the standard of review used by the CRC was unnecessarily deferential to the (officer’s) manager, echoing concerns raised by the community for nearly 15 years. Nevertheless, when the time came to take up the change to the standard of review, no Council member would bring it to the floor, citing reasons that were misinformed at best and disingenuous at worst. This was a grave disappointment to those of us who spent considerable effort drafting the policy change proposal,'' former citizen committee member Daniel Schwartz wrote in his December 2019 resignation letter from the group.
Some previously proposed changes that have languished with little support or faced police union bargaining challenges include giving subpoena power to Independent Police Review to compel officers’ testimony and allowing the Citizen Review Committee to review officer-involved shootings and deaths in police custody.
After two leaders of the committee resigned, partly out of disgust for the lack of support for its proposed new review standard, member Andrea Chiller told city staff at a meeting in March that there’s a feeling “we’ve been participating in accountability theater rather than accountability.’’
Turner has said sufficient levels of police review already exist, citing the three oversight groups.
"We recognize we are held to a higher standard but that doesn’t mean we can give up our rights,’’ Turner told community members on the eve of recent contract talks.
Lack of Access and Transparency
Other significant stumbling blocks to true oversight are the Independent Police Review office’s lack of access to police records and restrictions on releasing what happens to the officers investigated, the city auditor and the office’s director said.
The Independent Police Review office is required to submit public records requests for any police report because it hasn’t been designated as a criminal justice agency, according to Ross Caldwell, the review office’s director.
He said his investigators should have direct access to police reports, as well as the Police Bureau’s Employee Information System, which is supposed to track complaints against officers and their use of force.
The office’s investigators also can’t subpoena police officers to testify. They must ask a sergeant from internal affairs to read a chief’s memo to officers telling them that they must participate in an administrative investigation as a job requirement.
An internal affairs officer also typically sits in when Independent Police Review investigators interview an officer. That shouldn’t be necessary, Caldwell said. The police review office is trying to cut out internal affairs and simply have one of its own investigators read the chief’s memo to officers seeking to be questioned.
The Police Bureau releases a report on the outcomes of the Police Review Board examinations of alleged misconduct but often only elliptically in a twice-a-year summary – leaving out names and most details. Police often cite a clause in the union contract for the secrecy. It says any discipline or reprimand of officers must be done in a way “least likely to embarrass'' them.
“Right now we have these police review boards all done in a top-secret kind of way,’’ Caldwell said. “Right now the system is so hidden from the public.’’
Hull Caballero said it’s been an “uphill climb’’ to make any change to the accountability system. The frequent turnover of police chiefs, she said, also hasn’t helped -- five chiefs in the last four years.
“I appreciate the renewed interest in making the system better, but we had told the community through the (settlement) agreement that we would make it better, and it has been slow going.’’
One change adopted in 2017, mostly due to support from the Justice Department, allows Independent Police Review and police internal affairs investigators to recommend to the Police Review Board whether to sustain a complaint instead of having just the officer’s commander do that.
Last year, 32 officers were disciplined for policy violations investigated under the oversight system, according to an annual report. Thirteen officers received the most lenient discipline, command counseling by a supervisor. Nine received a letter of reprimand. Six faced one- to two-day suspensions without pay. Three were suspended for more than a week without pay and one officer was demoted. Five others resigned or retired pending discipline.
Since George Floyd’s videotaped death, the mayor and city commissioners haven’t taken up any substantive changes to the police accountability framework, instead focusing on doing away with transit police, in-school officers and a gun violence team within the Police Bureau.
But ideas are circulating once again, including creating a fully independent review board with the power to subpoena officers and investigate all complaints against police, essentially removing that role from the bureau’s Internal Affairs Division.
A co-chair of the city’s new community advisory group, Portland Committee on Community-Engaged Policing, which does not have authority now to review individual police misconduct or discipline cases, wants the power to discipline officers and a say in the appointment of police command staff.
Commissioner Jo Ann Hardesty wants the Independent Police Review office eliminated, calling the system “useless’’ and a “waste of public dollars.’’
“Nothing happens unless people are outside pushing policymakers to make change,’’ said Hardesty, who is leading the police reforms charge on the City Council.
Hardesty said she plans to work with the mayor to come up with an entirely new approach.
Other ideas being considered:
- Have a Police Review Board with a makeup that’s not weighted toward police, with an equal number of police and civilian members.
- Make the Police Review Board recommendations and the final discipline public on the Police Bureau’s website with more details of the misconduct.
- Have the state attorney general’s office or a special prosecutor, not the county district attorney’s office, do criminal investigations into police shootings or deaths in custody.
- Revise the Police Bureau’s discipline guide with public input.
Community activist T.J. Browning sat on earlier police review groups and helped create the current iteration.
She said she was surprised to hear Wheeler’s stance last week.
“Not only have we not heard that from City Hall, we also have had a lot of pushback from City Hall,’’ she said.
“What I see happening right now is the police union’s power is dwindling because of public pressure, and that’s what City Hall is listening to right now. They’re listening to us for the first time because there’s too many of us, for the first time.’’
©2020 The Oregonian (Portland, Ore.) Distributed by Tribune Content Agency, LLC.