From: Former members of the Police Accountability Commission To: Deputy City Attorneys Heidi Brown, Sarah Ames, Lisa Rogers and Mayoral Advisor Stephanie Howard CC: Portland City Council, members of the media, and the community July 13, 2024 Deputy City Attorneys Brown, Ames and Rogers and Ms. Howard: In anticipation of the forum being held Monday, July 15 at 5:30 PM, the undersigned former members of the Police Accountability Commission wish to submit these comments and questions. The December 5, 2023 meeting was called specifically as a conversation between PAC and the City, but at that meeting we were not able to complete the list of concerns and questions we s ent. As noted in the November letter to the City, the changes that were made to the PAC plan are far removed from the City's stated values of anti-racism, equity, transparency, communication and collaboration. We hope that you will give careful consideration to t he expertise we acquired in our 20 months studying this issue, listening to the community and deliberating over the best way to serve the community through the oversight system envisioned in Charter section 2-10. We first would like to acknowledge a few changes that were made both within the proposed code and externally as a result of our previous input. THANK YOUS * Thank you for making it so that complainants, and/or people subjected to deadly force or their survivors, are offered a Complaint Navigator from the time they first connect with the oversight system (35D.040 A 10 and 35D.050 D). Code should specify the navigator is assigned to a surviving person or to a family member with standing. * Thank you for expanding the jurisdiction of the staff (Office of Community-based Police Accountability/OCPA) to review all investigations conducted by Police Internal Affairs. (However, this does not fix the broader problem that PAC suggested any incident involving community members should be investigated and adjudicated through the civilian system rather than the Police Bureau.) * Thank you for making it clear that if a complaint contains multiple allegations and any one of them falls under the jurisdiction of the new system, the OCPA will investigate the entire complaint. * Thank you for agreeing to put the oversight system under the Deputy City Administrator for City Operations rather than the one for Public Safety. It's not clear why this change was apparently added to the code and then struck again (redline page 1). With that said, here are some items that either appear to have been added to the new draft as a result of the City's discussions with the collective bargaining units and the US Department of Justice that are of concern: NEW ISSUES ** A new clause repeats language from 35.B.020 B9 which says members of the Community Board for Police Accountability (CBPA) cannot have bias for or against law enforcement. We previously pointed out that the language is unnecessary because the code already requires objectivity. Also, as noted before, similar language in Boulder, Colorado's code was removed after it was ruled to be overly broad. ** The code allows n ames of officers involved in incidents which have been publicly released are allowed to be used in audits ( section 35A.040 E1) . Why are the Board's reports restricted to not include any officer names ( 35A.040 F4 I) ? ** The new code appears to require that if only 11 members of the 21 people on the CBPA are at a meeting, it requires a vote of every single person present to adopt a policy/ recommendation (35B.010 C1). While that may improve morale, it is too restrictive. The City had said they would leave some voting totals out of the code. (Also, [a] the PAC recommended the board should have 33 members in order to handle the expected caseload, and [b] hearings on deadly force require 11 members instead of a more reasonable seven, which is the size of current Police Review Boards.) ** In describing training for OCPA investigators, the City also seems to be selective in what details belong in the code by specifically including "human performance dynamics and cognitive interviewing techniques" (35B.010 F12). Language requiring best investigative practices to be used is more in line with the idea of keeping the code flexible. ** The "redline" version made it seem as if there was a new proposal added, but which existed in the December code and we did not comment on it then. Section 35C.010 A allows the same people who nominate members of the CBPA will also nominate candidates for Director of the OCPA. Currently, the police have no statutory input into the hiring of the Director of the Independent Police Review. Having this nine-person panel, which includes three police designees, take part in a process that is exclusively assigned to the Community Board seems contrary to the non-interference principles in the Charter. (Most PAC members also want to remove the police-designees from the Board nominating process.) ** Language has been added to restrict recordings of interviews to audio-only (35D.010 C1 and C2) There is no clear reason for this with video so widely available these days. ** It is good that the Code clarifies that administrative deadly force investigations are not interference with criminal investigations (35D.030 D). However the same paragraph says that the oversight system has no jurisdiction in criminal investigations, but it needs to be clear that potential administrative violations implicated when an officer is facing criminal charges _are_ subject to investigation. ** Related: In deadly force investigations, which require ensuring separating the administrative investigations from the criminal ones, it doesn't seem to make sense for the OCPA to share its protected files with the Chief and City Attorney (35D.050 C). ** Similarly, the current Code for the Police Review Board has the Training Division review and comment on investigations once they are completed (Directive 1010.10 Section 7.1.1). New language has been inserted to allow them to have access throughout the course of the investigation (35D.050 G). This threatens the OCPA's independence. ** Summaries of cases being presented in executive session should allow for public sessions if the officer asks for one or if the case otherwise falls under an exception to Oregon laws. The way Section 35D.030 E2b is written sounds as if the presentations to the Board will be limited by public meeting laws rather than whether the presentation is made in executive session. We still believe that the Code should also reflect that the officer opting for a public hearing is not the only way that state law allows for that to happen. ** The code should make it clear that individual compensation of CBPA members should not be up to City Council, rather Council should set guidelines for the staff to use (35B.010 I). Council should not have to vote every time the OCPA reimburses a member for expenses, for instance. ** In December, the City explained that the term "Majority Consensus" referring to the CBPA making decisions relied on state law governing Executive Sess ions and added the word "majority" by their own judgment. There is no reference to consensus in ORS 192.660. It is still confusing to conflate the term "majority" with the word "consensus" and Sections 35D.060 C2 and 35D.060 E should be rewritten. We also repeat here other concerns raised in 2023 which were not addressed by the revised code, and were not touched on above. This is not an exhaustive list, please also refer to the letter from former PAC members of November 29. ONGOING CONCERNS *** Former police officers are still allowed to be on the staff, undermining community trust. *** Other than objecting to a case being dismissed without a full investigation, there is no avenue for community members to file an appeal, even though officers have guaranteed rights to do so under law and contract. *** Even though the Charter explicitly says the Board has jurisdiction over "Portland Police Bureau sworn employees and supervisors thereof" (2-1001), the code allows the Mayor to decide whether the system will investigate allegations of misconduct against the Chief. *** The code still requires ride-alongs for Board members despite the fact that this will be a barrier for some in the community to participate, and that such training was not required for the Police Review Board during the most serious lockdown phase of COVID. *** Several provisions which would help improve the Police Bureau and the oversight system were cut from PAC's proposed code, including the concept of undesirable outcomes reviews (looking systemically at incidents rather than just the individual officers), attaching systemic findings to misconduct outcomes (regarding policy, training, equipment and not the individual officer), and removed the requirement for the System to conduct an audit into its operations. *** Cut the number of findings about officer misconduct from four (the national standard and currently used in Portland) to just two. *** Changed the size of panels hearing cases from five to three, limiting diversity. The DOJ required Citizen Review Committee to have at least five members at their appeal hearings. *** Investigators recommend findings instead of letting Board come to their own conclusions which seems to go against the "independent judgment" clause in the Charter. It's also notable that the investigators' recommendations are sent to the complainant, the officer and the Chief before the Board, which makes the final decision, gets to deliberate. *** Rather than requiring the OCPA Director to hire independent legal counsel, the Code requires them to request permission from the City Attorney's office. The City Attorney representing both the police and the police oversight system presents a conflict of interest. *** Neither the officer nor the community member can attend the hearing by the CBPA. Currently the officer can appear at Police Review Board hearings but not the community member. To be fair, both should be allowed in rather than neither. *** The code still requires the Board to go to City Council to expand what kinds of case they will investigate, even though the Charter says they can decide that for themselves. *** Due to restrictions in code, the Board will have to say "Officer A is found out of policy on allegation #1" rather than explaining to the public the nature of the incident being reviewed. *** The City's draft has cut out nearly all references to public input (at hearings, at City Council meetings, etc.). We hope you will be able to address some or all of these issues at the Monday meeting and/or in a written reply. Thank you Debbie Aiona Faythe Aiken Monica Arce Cameron Browne Dan Handelman Katherine McDowell Charlie Michelle-Westley Tim Pitts former members of the Police Accountability Commission signatures after 5:15 PM on Saturday July 13: Je Amaechi Seemab Hussaini KC LeDell Lovisa Lloyd Christian Orellana-Bauer Angie Tomlinson Connie Wohn Notably, Ms. Michelle-Westley's signature was left off the letter on Saturday July 13 due to a clerical error, and Mr. LeDell's was not sent to the City in a timely way on Monday July 15. (note: this was sent to the City 48 hours before the meeting to give time for official consideration.)