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 November 28, 2023 Deputy C ity Attorneys Brown, Ames and Rogers and Ms. Howard: We appreciate that you have agreed to meet with former members of the Police Accountability Commission in public sometime in December. We look forward to that meeting and hope that the end result is a r evised plan to put before City Council. In the interest of making that meeting as fruitful as possible, w e are including a series of questions which we hope you can answer in advance of that meeting. We have also included a "top - eleven" list of concerns a bout the proposed code, which is not at all exhaustive. We hope you will be able to provide feedback on the reasons for the City's proposed changes to PAC's original plan for these items. The remaining items are listed below our signatures. We would like to first explain some general concerns, in regard to the overall proposed city code that was presented to City Council on November 15. The Police Accountability Commission spent over 20 months meeting with thousands of community members, researching the to pic at hand and created a 97 page city code vetted with lawyers to ensure that everything proposed was legally sound and that represented the community’s concerns, as well as concerns raised by the Mayor, police collective bargaining unit leaders, members of Internal Affairs, the Police Review Board and the Citizen Review Committee. The city code we proposed responded faithfully to the will of the voters when they passed Measure 26 - 217 in November 2020. The fundamental disconnect seems to be between the Cha rter language’s recognition that this is a system for use by community members who feel they have been harmed by police and the City’s narrow vision of this as simply an employer - employee situation. We hope that this letter can act as a gentle reminder of the focus of the Charter change and the mission given to the PAC by City Council. General concerns: 1) The PAC's plan was designed to improve community and police trust in the system. If the City’s counter - proposal gets implemented as written, many elemen ts in the PAC - designed system will revert back to the current status quo, which is not working to build community trust. Some of these elements are in direct opposition to the voter approved measure and contrary to recommendations PAC identified in its res earch. One telling aspect of the City’s proposal is the removal of the word “transparency” from nearly everywhere PAC included it. 2) We believe wholeheartedly that our design responded to over 1 , 500 Portland community members via our 23 community engageme nt events and 128 meetings which reached most areas of Portland. The current city code proposal removes many of the recommendations we heard from community members directly affected by police misconduct. The extensive community input PAC considered should be respected. 3) The City implied that the bulk of what was removed from the PAC's plan will be presented to the new Board/Office to consider adopting as Administrative Rules, but the proposed code undercuts their ability to do so by taking away the board’s ability to c reate their own administrative rules and giving the ultimate authority to a Deputy City Administrator to finalize those rules. While we believe releasing the City’s list of draft administrative rules will relieve some of the outcry about the parts of the P AC’s plan that were eliminated, knowing that there is no obligation for the new Board, the new Office, or the City Administrator to implement them only re - affirms our concern that these items should be included in the code. 4) The Community Board for Polic e Accountability (CBPA) has authority to exercise independent judgment in performing all legally assigned powers and duties and no part of the city is allowed to interfere with the Board’s exercise of its independent judgment. Only in this way will the CBP A be an entity that the community trusts. QUESTIONS: Area 1: Duplicative complaint intake and processing Q1. Can the city produce a flowchart of their system? Q2. Where do people file their complaints? Will OCPA receive all complaints and forward some to IA, or will there be two agencies receiving complaints? Q3. Is there a reason why a board that has a budget larger than IPR and Internal Affairs combined would need to limit the number of investigations it should do? Keeping many investigations under the jurisdiction of Internal Affairs threatens the trust the community will have in the system, by keeping police investigating their own. Doing so maintains the status quo which has dissatisfied even Internal Affairs leadership, per our conversations wit h them in our public meetings. Q4. The City Attorney stated that they 'thought' or 'were afraid' that if there were appeals, board members might get upset at each another for coming to different conclusions than one another. Is this based on documented an ger generated when Assistant Chiefs or Internal Affairs controvert findings proposed by supervising officers in the current system? Otherwise, why eliminate a form of checks - and - balances from PAC's plan? If this is based on a 'feeling' and has no legal bas is, it does not justify changing the PAC plan. Q5. For cases outside the Board’s purview where officers can get time off without pay or worse, will there still be a Police Review Board? Q6. For forty years, the basis of Portland’s oversight system has bee n civilian review of Police Internal Affairs, whether it was the Police Internal Investigations Auditing Committee (PIIAC - 1982 - 2001) or the Independent Police Review (IPR - 2001 - present). Why is the only mention of reviewing IA investigations in 35D.030 E3 , limiting the review to the Director making comments on criminal, truthfulness and courtesy allegations? Area 2: Reducing the Board's authority and independence Q7. There are two areas where the PAC proposed expanding/improving the current system and t he City’s response was to remove those areas altogether. Can you help us understand the rationale for (a) removing appeals for everyone when PAC asked to expand appeals to include deadly force cases, and Debbie Aiona 11/28/2023 5:06 PM Comment [1]: Priority #21 Unknown Author 11/27/2023 1:04 PM Comment [2]: Priority #4 (b) removing officer participation in the hearing p rocess when the PAC asked that such participation be retained and expanded to include community members ? Q8. The city says they're looking at the oversight board’s function as "an investigation by an employer into the conduct of an employee for the pur poses of determining if there have been any violations to that employer's rules." If that’s the case, shouldn’t the Board be under the purview of the same Deputy City Administrator as the Bureau of Human Resources (Operations) rather than the Administrator that oversees the police (Public Safety)? Q9. The City decided the specifics of who should be on the nominating committee, but cut out scores of provisions the PAC inserted. The new charter, for example, sets the limit on financial matters before City Co uncil at $50,000, a limit that's currently $5000. What criteria did the City use to decide what details are appropriate for code or not? Q10. The city code as proposed by the PAC includes proposals that were taken out with the explanation that they are mo re appropriate for administrative rules. This leaves the new board with a huge assignment at the beginning delaying the important work of police accountability while they determine many of these rules. Is there a specific reason why this would be preferabl e? Q11. The Community Board on Police Accountability was designed to have i ndependent legal counse l so as to keep and protect its independence and provide another form of accountability for the community. What is the reason for removing this power and a ssigning the City Attorney to assist or even lead the Board in case reviews, arbitration and at the Civil Service Board? How does this relate to the way the City Auditor and the board of Prosper Portland can hire independent counsel and the related code/ch arter provisions? Area 3: Board qualifications, size and functions Q12. Why did the City remove the Office of Community and Civic Life policy that says requirements for advisory board members include people who "play, attend school or worship" in Portlan d, in favor of the older, more restrictive criteria that people must live or work in Portland? Q13. Why was houselessness removed as a potential qualification for Board members? Q14. The City has proposed cutting the Board down from 33 to 21 members based on the caseload over a certain number of years. PAC based the Board size on the number of complaints that were reported prior to the ballot measure passing. Can you share those data and your thinking on this idea publicly? Q15. What is the legal definit ion of the term "majority consensus"? (used in the City's 35D.060 D2) Q16. In addition to redacting names in the periodic public reports, will other content also be redacted? Q17. The PAC proposed a value of continuous improvement for the new system. Why did the city remove the requirement for an outside expert review of the new oversight system after it has been in place for a period of time? Area 4: DOJ and legal considerations Q18. Given that the November 15 vote (and the rush leading up to it) was i ntended to be responsive to Unknown Author 11/27/2023 1:05 PM Comment [3]: Priority #17 and 18 Unknown Author 11/27/2023 12:01 PM Comment [4]: Priority #16 Unknown Author 11/27/2023 12:18 PM Comment [5]: Relates to Priority #11 the DOJ timeline, why did the City Council hearing not include a review of anything from the document containing proposed DOJ amendments? Q19. Has the City set itself up for litigation by not adhering to the terms of the charte r? (Example: Requiring the Board to ask permission from Council to investigate certain types of cases - in City Proposed Code 35D.030 C) ---------------- Top 11 list of concerns based on a poll of former PAC members (some of this overlaps with the quest ions): #1 - Inserted police representatives on the nominating committee for the Board. Their influence will act as a barrier to community trust in the oversight system. #2 - Added prohibition on Board members having pro - police or anti - police bias (similar language led to litigation and legislative change in Boulder). The desire to hold officers accountable when they violate policies is not anti - police. The PAC included sufficient language to address the issue of bias: “Board members must be capable of makin g fair and impartial decisions based on the evidence presented to them in an environment where controversy is common. Fairness includes considering lived experience, the experiences of the community members, and of the police officers involved in the case. ” #3 - Cut prohibition on police being on staff (note [a] that PAC's language is about "police" while the Charter prohibition for Board members covers "law enforcement" more broadly, and [b] this item generated strong feedback from the community opposed t o police being on staff, leading to PAC's recommendation.) #4 - Removed ability to file appeals including in deadly force cases. Any time a life is taken, an extensive and fully comprehensive approach is necessary. #5 - By interpreting a perceived conflict between two areas of the Charter, the City has r emoved the Board's ability to discipline the Chief . While the Mayor should be able to fire the Chief for poor performance, the Board has jurisdiction over misconduct. The Charter clearly gives authority to t he Board to discipline “Portland Police Bureau sworn employees and supervisors thereof.” #6 - The code requires ride - alongs for Board members , which will be a barrier for many people with lived experience to apply, as it will act to re - traumatize them. Alt hough ride - alongs are currently required in the DOJ Agreement for Police Review Board members, now is the time to amend that Agreement. #7 - Delayed access to complaint navigators. PAC intended navigators to be the ones talking to complainants upon first c ontact, but the City's plan assigns them "no later than" when a decision is made to fully investigate. #8 - There is no longer an opportunity to conduct undesirable outcomes reviews ("Sentinel Event Reviews") . Keeping this concept in code will allow for ev aluation of systems that are contributing to unwanted events or outcomes and prevent those systems to continue to harm the community and police department in the future. This is important for a system of continuous improvement which is at the heart of acco untability and building trust for the community. #9 - Narrowed what complaints Board will review to those listed in the charter plus accidental firearm discharge and failure to identify (Related issues: [a] Why were Truthfulness and Courtesy kept as Inter nal Affairs cases ; and [b] the Charter states the Board can investigate cases "as they see fit OR as mandated by City Code." The proposed code interprets that OR as an "AND") # 10 - Cut ability to make systemic findings (Policy Issues, etc.) which do not place blame on any individual. Again, this concept would benefit the Bureau and the community. (Note: PAC is also concerned about the City reducing the nuanced nationally accepted four allegation outcome findings to two which just say "yes" or "no") #11 - C hanged the size of panels from five to three, limiting diversity, as well as requiring 11 to 21 (“a quorum of”) members of the Board to hear serious cases instead of seven or more, and cutting the Board size down from 33 to 21, putting more burden on each individual volunteer member. We look forward to receiving a response to this letter in advance of the meeting to help things go more smoothly and expeditiously. Thank you Debbie Aiona Dan Handelman Charlie Mi chelle - Westley Katherine M cDowell Monica Arc e Faythe Aiken Christian Orellana Bauer Kenneth Lewis Tim Pitts An gie Tomlinson Seemab Hussaini Cameron Browne Signers after Nov. 28 (added 12/1/23) Connie Wohn Lovisa Lloyd Tirsa Orellana Aje Amaechi former members of the Police Accountability Commissi o n Top priority items continued #12. Cut ability to hold public hearings in cases of community concern (relates to hearings in #17 and #18) Unknown Author 11/27/2023 12:04 PM Comment [6]: Priority #21 Unknown Author 11/27/2023 12:05 PM Comment [7]: Priority #20 #13. Removed Board role in officer appeals to Civil Service Board or through arbitration #14. No board involveme nt in appeals for dismissals (City has Director handle these appeals) #15. Investigators recommend findings instead of letting Board come to their own conclusions [Charter says "independent judgment'] (relates to independence in #16 and #23) #16. City h as cut requirement for Director to hire independent legal counsel (relates to independence in #15 and #23) #17. Officers cannot attend their initial hearings, only the Due Process hearing (relates to hearings in #12 and #18) #18. Complainant cannot at tend hearings about their own complaint (relates to hearings in #12 and #17) #19. Board can't say nature of allegations when publicly voting whether officer violated policy #20. Requires Board to get Council approval to expand the types of complaints th ey review [which conflicts with the charter] (relates to jurisdiction in #9 and #21) #21. Keeps police investigating other complaints (specifies truthfulness and courtesy) (relates to jurisdiction in #9 and #20) #22. Removed requirement for settlement figures from lawsuits to be included in annual report (though the PAC's proposal was taken word for word from the DOJ Settlement Agreement) #23. Cut requirement for Director to hire auditor/monitor/inspector - general position which PAC required. (relates t o independence in #15 and #16) #24. The City's Code says the Board's budget will be "equal" to 5% of PPB's [Charter says "no less than"] #25. Administrative rules have to be finalized by a City Administrator [Charter promises independence] (relates to ot her independence in #26 and #28) #26. Administrator, not Director/Board, verifies eligibility of Board members including background check (relates to other independence in #25 and #28) #27. There is no requirement to distribute complaint forms [changed " shall" to "may"] #28. The Board must have a policy about reimbursement of members approved by Council (relates to other independence in #25 and #26) #29. The City’s draft has cut out nearly all references to public input (at hearings, at City Council m eetings, etc.)