Charter change would put Berkeley police oversight into citizen hands (but whose?)

A movement is afoot in Berkeley to increase citizen oversight of the Berkeley Police Department. Photo: David Yee

The Berkeley City Council is slated to vote Tuesday on whether to place a controversial police oversight charter amendment on the November ballot.

The proposal would take oversight of the Berkeley Police Department away from the city manager and, to a large extent, the City Council, and put it in the hands of paid commissioners chosen by a non-elected selection panel. The charter amendment seeks to create a new department — outside the authority of the city manager — with layers of paid staff and the power to set its own budget.

The city is set to spend $740,000 on its existing Police Review Commission this fiscal year, according to the city budget. Much of that goes to the salaries of its three paid staffers. The new system proposes three directors — at least one of whom would be a department head — along with support staff, investigators and access to legal counsel. The cost to taxpayers would likely grow significantly.

Some community members have written emails to urge council to approve the proposal, to allow for “real accountability,” and “give Berkeley’s residents and visitors true authority over the police.” Another wrote that the amendment would “crack open the secrecy and … prevent abuse and militarization.” On the other side, opponents have called the item “an insane proposal” that’s “ill-conceived” and “bad public policy” because it would take key decisions away from the officials elected by, and accountable to, voters — and away from city staff.


In November, council asked the Police Review Commission (PRC) to present recommendations by May about how to strengthen the city’s ability to act on citizen complaints. Officials said the solution might be a ballot measure, or could take other forms. Council members said they wanted the PRC to review what has worked elsewhere, and engage relevant stakeholders, such as the Berkeley Police Association. But for months nothing happened.

Instead, community members including George Lippman, Elliot Halpern and Forrest Liu, as part of a campaign calling itself “Berkeley Community United for Police Oversight” (BCUPO), came up with their own initiative and filed it with the city this month. Lippman, who is Councilwoman Kate Harrison’s appointee to the PRC and is also on the Peace & Justice Commission, and Andrea Prichett, co-founder of Berkeley Copwatch and Cheryl Davila’s PRC appointee, then presented the proposal to the PRC on March 14.

Other commissioners said they felt blindsided by the item, and that the PRC seemed to have abdicated its responsibility to consider an issue of significant community concern. PRC Chair Sahana Matthews — who is part of the charter amendment group — said, during the March 14 meeting, that the PRC hadn’t yet acted on the council referral because “we didn’t have time to craft our own complete ballot measure.” Commissioner George Perezvelez took issue with that position. He said, had that been the case, the PRC should have alerted council. After lengthy debate and sometimes heated disagreement, commissioners formed a four-person subcommittee to review the citizen initiative, and consider a PRC alternative to put before council in May, as directed. That process is now underway.

Meanwhile, Councilman Kriss Worthington put the “BCUPO” citizen initiative on the agenda for a council vote Tuesday night. In his brief council report, Worthington said officials should put the initiative on the ballot “to show that Council supports a community-driven process, and as a sign of recognition to Berkeley community members in their efforts.” It would cost the city $10,000 to $15,000 to put the item on the ballot, he wrote. His recommendation made no mention of the PRC referral, on which he had been the lone “no” vote.

An email from Worthington’s office last week, in advance of Tuesday’s meeting, raised concerns among some city employees, including BPD officers, because it urged support for his proposal, item No. 27 on the agenda. (Most council emails only go to a targeted list of followers, not all city staff.) The email had the subject line, “Yes on Item 27.”

“If this amendment passes, Berkeley will have a new Police Commission that will restore the original people’s mandate for independent oversight of the police department,” said the email, which bore Worthington’s signature.

Worthington later apologized for the email and said it had been sent to all staff due to an intern’s error. He said he had been home sick the day it was sent, and that the email was “not intended to be distributed” to so many. He also told Berkeleyside the email was “not political or illegal” — in relation to rules that limit campaigning by city email — and said support for a vote to put something on the ballot does not translate into advocacy for the policy itself.


What’s in the “BCUPO” police oversight proposal?

Supporters of the charter amendment have said the PRC has been “hamstrung in its efforts to provide oversight,” and that “change is needed.” According to a statement from campaign supporters Monday evening, those limits have been due to “California Supreme court decisions, the Officer’s Bill of Rights and the post-9/11 culture,” which “have all served to diminish the power of civilian oversight.”

The Berkeley campaign has described itself as a “diverse coalition” that includes “educators, retirees, college students, families” and members of the Berkeley chapters of the ACLU and NAACP. One coalition member said 25-50 people have attended organizing meetings thus far. PRC Commissioner Lippman declined recently to share the names of the people or groups who helped craft the language of the amendment. It is based on an Oakland charter amendment approved by voters in 2016, but diverges in significant ways.

What would the Berkeley charter amendment change? In addition to creating a new city department with the authority to set its own budget, the newly formed “Berkeley Police Commission” would directly supervise BPD, determine who could be considered for police chief, and have the final say over police discipline decisions. It would be able to modify the Berkeley Police Department’s budget request to council “within 5% of current staffing levels,” although — like much of the language in the proposal — it’s not totally clear what that would mean. The commission would operate independently, and the city manager would have no “veto power” over the commission’s discipline decisions.

Most city departments and staff — the elected Rent Board being one notable exception — fall under the supervision of the city manager. The city manager acts as a liaison between elected officials and city staff, plays an important role in contract negotiations and confidential matters such as lawsuits, and is generally responsible for hiring and firing, the city budget, and the like. It remains to be seen exactly what it would mean for the Berkeley Police Department to be taken out of that structure and put under the proposed commission, which would have sweeping control.

“The Commission shall have the power,” the charter amendment reads, “to review and modify all written and unwritten policies, practices and procedures of whatever kind and without limitation in relation to the Berkeley Police Department.”

How do local realities reflect national trends?

The issue of police reform has been a subject of significant public concern in recent years, particularly as questions have been raised about how police use force and against whom. But what does the landscape look like in Berkeley? The Berkeley Police Department has not had an officer-involved shooting since 2012. BPD handled 77,429 calls for service in 2016, and received no complaints about excessive force or discrimination that year, according to the most recent annual report from the PRC. From 2012 to 2016, there were 34 allegations of excessive force out of nearly 300,000 calls for service. Just two were sustained by the PRC.


That’s not to say there have been no questions raised about police use of force in Berkeley. Ten years ago, police shot and killed Anita Gay on Ward Street as she reportedly threatened her adult daughters with a large knife after using crack cocaine for days. One of the daughters told police the officer had saved her sister’s life, according to numerous media reports. Still, some community members protested Gay’s shooting and there were reports at the time that a wrongful death suit would be filed.

BPD was later sued over the in-custody death five years ago of Kayla Moore, though a U.S. District Court judge ruled in favor of the city Friday, citing a lack of evidence from the plaintiff. Police, called by Moore’s roommate, responded to her downtown Berkeley apartment for a disturbance. The coroner’s office said Moore’s death was due to “acute combined drug intoxication,” but her family and local activists have said police should have known Moore was schizophrenic and made different choices.

Most of the misconduct findings sustained by the PRC have later been overturned by a judge on appeal, leaving just three sustained allegations against BPD from 2012 to 2016.

According to the most recent annual report from the PRC, an average of 22 complaints a year are submitted to the PRC. From 2012 through 2016, the period reviewed by the annual report, most of those complaints were ultimately dismissed or deemed unfounded.

Within that five-year period, the PRC convened Board of Inquiry (BOI) hearings an average of seven times each year to consider alleged police misconduct. Out of 36 cases reviewed in five years, BOIs sustained 11 allegations of misconduct (though some may have occurred in the same incidents). Most of the misconduct findings were later overturned by a judge on appeal, however, leaving just three sustained findings of misconduct from 2012 through 2016, according to the annual PRC report.

The last time the PRC sustained an excessive force allegation against BPD was in 2013, when it sustained two; it was unclear from available records whether those decisions were later appealed to a judge or overturned.

Most of the complaints to the PRC in 2016 — 10 allegations across five cases — focused on improper procedures, or a category listed as improper arrests, searches, seizures, stops or detentions. Two allegations were sustained — related to an “improper investigation” and an “improper arrest, search, seizure, stop or detention” — but an appeal before a judge was planned.

The issue of who gets stopped, searched and arrested by police has been a central piece in recent years of the national discussion about the critical need for police reform. Numerous analyses have shown that minority drivers and pedestrians across the nation are more likely to be contacted by law enforcement than white ones. That pattern holds true in Berkeley, too, though a draft analysis by the Center for Policing Equity — set to be completed and presented to the public later this year — found that “racial disparities in BPD stops and reported use-of-force incidents were low in comparison to many other US police agencies, and much of the observed disparity was attributable to variations in neighborhood crime rates.”

The draft analysis of stop data also offered “abundant reasons for optimism,” its authors said, though there is room to improve. The authors said more analysis should be done to explain why, for example, Asian drivers in Berkeley were five times more likely than white ones to be searched, and why black and Hispanic drivers were more likely to be searched, but less likely to be arrested, than white ones. The draft analysis, the police chief previously told council, did not take into account all the data BPD already collects or its existing policies and training, and was incomplete at the time the PRC and City Council demanded its release last year in the interest of transparency.

Oversight experts: “least intrusive model” is best

The National Association for Civilian Oversight of Law Enforcement, a Maryland-based non-profit that began in 1995, has identified more than 144 oversight agencies in the nation. In a recent report, it looked at different approaches to the task, and categorized them as review-focused agencies, the auditor/monitor approach, and investigative-focused agencies. Berkeley’s PRC, as well as the proposed Police Commission, would fall into this latter category.

The investigative approach has the most potential to increase the public trust, and the most independence, according to the report. The authors said public faith can wane, however, if reforms aren’t forthcoming, and that the approach may undermine a police department’s own responsibility to maintain discipline and investigate misconduct — because it can “simply blame the external oversight agency when misconduct occurs.” It’s also the most expensive option, authors wrote, because timely, competent investigations require “significant costs and resources.”

The report notes that hiring appropriate investigators may be tough because “they may harbor either pro-police bias or anti-police bias, depending on their own personal background and experiences.”

The authors say it’s more important to find the best fit for a particular jurisdiction than to focus on so-called best practices, since so many factors can come into play. Those include the social, cultural and political issues in a city, as well as police department culture and the financial resources available for oversight.

But there is one concept that always holds true, the authors wrote.

“A jurisdiction seeking to create or update an oversight function should choose the least intrusive model of oversight necessary to accomplish the task,” they found. “Just as the police are expected to only use that amount of force that is proportionate, necessary and reasonable … so it can be argued that jurisdictions creating or reforming an oversight function should similarly accomplish the feat of ensuring police accountability.”

Structure of the proposed Police Commission

Some critics of the BCUPO charter amendment have said they are concerned that commissioners would not be elected, or directly appointed by council members. Instead, a “selection panel” of council appointees would choose the commissioners, then present them to council as a unified slate. The group would have to be approved or denied as one. But if council members reject three slates, the selection panel would get to pick all the commissioners — with no further approval needed.

“Minimum staffing” for the commission would include an executive director, a policy director and an investigations director, an operations support specialist, one or more investigators and “other necessary staff,” all of which are to be full-time positions. The commission would have full authority over the directors, who could be fired at any time by a five-person vote.

“Resources shall be provided for appropriate office facilities, equipment, staffing, information technology support, outreach and other essential requirements,” the proposal reads. The city would also need to provide “sufficient resources” for training related to “the best practices of policing, police oversight, auditing, policy analysis, investigations, and human resources.”

Under the proposal, the city would need to provide meeting space to the commission “capable of accommodating at least 50 people,” despite the fact that current PRC meetings rarely draw more than a handful of attendees. The commission — made up of seven members and three alternates — could create subcommittees at will, and add members of the public to subcommittees as it sees fit. “Public members” would not be paid, but commission members would get $20 an hour for subcommittee attendance, along with $100 per night for regular meetings (not to exceed $1,000 each per month). The stipend would be adjusted each year in line with the Consumer Price Index.

Investigations Section

Commission investigative staff would be able to view any complaints that come into BPD, as well as to the commission itself. The commission and its staff would have access to BPD files on all internal investigations, and would become the lead agency on any investigation it decided to take on. BPD’s internal affairs office “must fully cooperate and assist,” and “must also report … any evidence they develop or encounter about a complaint.”

One attorney who reviewed the charter amendment over the weekend said the language as proposed raises a number of questions about how it might conflict with existing confidentiality laws, and what sort of liability the city might face as a result of commission decisions in general.

The commission would get to decide which misconduct complaints it wanted to investigate — even for complaints sent directly to BPD. Any BPD employee who failed to respond to commission requests about an investigation “shall be subject to discipline, if appropriate,” according to the proposal.

Even if the commission’s own investigators decide to dismiss or close a complaint involving use of force or discrimination, the measure says, the commission could vote to have the case reopened and investigated again.

The commission would continue to hold Board of Inquiry hearings about alleged misconduct. In the instance of a sustained complaint, the chief would recommend “a final discipline.” But if that’s different from what the commission wants, it could send the case to a Discipline Committee, made up of three of its own commissioners, to decide what discipline is right. (Police would still be able to appeal that ruling to the Civil Service Board or “grieve” it under a collective bargaining agreement, as is legally required.)

Several aspects of the proposal are ones the PRC has already been pushing to change in recent years, with no results: lowering the bar for misconduct hearings to the “preponderance of evidence” standard of proof, rather than the “clear and convincing evidence” standard in place now; lengthening the time the PRC has to impose discipline beyond the current 120-day limit; and getting the ability to issue subpoenas and compel witnesses to testify. Under the new law, the commission would also be able to seek a contempt order if someone failed to appear, testify or produce subpoenaed documents.

What happens next?

Although PRC Commissioner Lippman declined to share the names of the authors behind the proposed charter amendment, he said the list of campaign endorsers has been growing. At this time they include the East Bay Community Law Center, the Green Party of Alameda County and the group Justice for Kayla Moore. Lippman said Max Anderson, former Berkeley City Council member, civil rights attorneys John Burris and Jim Chanin, and two elected Berkeley officials — Cheryl Davila and Kriss Worthington — also support the item.

Worthington told Berkeleyside last week he ultimately plans to support a compromise — yet to be published — that would “refine” what’s proposed in the charter amendment. He described the BCUPO item as “basically a good idea.”

It’s not the only police reform initiative that’s been filed with the clerk’s office, however. Russ Tilleman of the Campaign for Police Accountability is circulating a petition for his own charter amendment to create a Police Accountability Board. The elected board would be charged with “controlling the Berkeley Police Department and any other security or law enforcement personnel employed by the City.” The board would be “fully and exclusively responsible for the supervision and control of the Berkeley Police Department and all its divisions.” It would have the power to hire and terminate staff, appoint the police chief and investigate police misconduct. Exactly how the city would pay for it remains an open question.

“The proposed measure does not provide for a specific funding mechanism, but the Board could request funding from the City or other available sources,” Tilleman wrote.

A charter amendment petition requires valid signatures from 15% of the registered voters in the city. That number is currently almost 79,000 people, according to data from the Alameda County registrar of voters. The city encourages campaigns to turn in signatures by May 10 to allow sufficient time for review. Council must take action on all measures for the November 2018 ballot before Aug. 10.

The BCUPO campaign said it is determined to succeed — whatever happens Tuesday night.

“We certainly hope that the City Council will vote to let the people of Berkeley decide this question and place it on the ballot, but no matter what, we are pressing ahead with our campaign to gather 12,000 signatures,” said Diana Bohn, a BCUPO spokeswoman, in a prepared statement Monday night. “We are very excited by the support we have gotten in just a short time and we are preparing to fight for this measure all the way to Nov. 6.”

The group says it will rally at 5:30 p.m. Tuesday, before the 6 p.m. council meeting, at Old City Hall, 2134 Martin Luther King Jr. Way.

See the full council agenda for the Tuesday, March 27, Berkeley City Council meeting. Read more 2018 election coverage from Berkeleyside.