Now onto the next (and sole remaining item) on this special #berkmtg agenda: Interim rules to be used by the new Police Accountability Board and director of police accountability for handling complaints against @berkeleypolice. There are two alternatives. THREAD. #berkmtg
@berkeleypolice There are 3 major differences btw director + board versions: (1) who may file complaint (board wants witnesses + board to be able to file); (2) extension of timeline from 90 to 180 days; (3) board would like complainant to stay in room during hearing + ask questions #berkmtg
@berkeleypolice Director Kathy Lee says she is "not opposed to making the process more accessible and less intimidating for complainants" but parted from the board in terms of the process. #berkmtg
@berkeleypolice She says the city attorney is still analyzing the legality of whether the complainant could stay in the room during the hearing. She says her goal was to approve interim regs ASAP so ongoing investigations could proceed. #berkmtg
@berkeleypolice PAB Chair Ismail Ramsey says nearly 85% of voters approved the PAB: The message there was clearly to discontinue "business as usual" and move forward with enhanced powers. #berkmtg
@berkeleypolice Chair Ramsey says the full board voted unanimously in support of the three changes outlined above — to establish legitimacy up front and to have a fair process. #berkmtg
@berkeleypolice Chair Ramsey says the Berkeley Police Association has not weighed in: "We still actually don't know what their position is on this." #berkmtg
@berkeleypolice PAB Vice Chair Michael Chang: We are trying to shift (what was the PRC) into a modern commission + to comport w/those standards. The interim regs will "reflect that modern standard" of symmetry between complainant and officer, allowing witnesses to file complaints, etc #berkmtg
@berkeleypolice "We're not trying to gum up the system or slow it down at all," Chang says. "Think about this very carefully and consider that this came through a lot of thought." #berkmtg
@berkeleypolice Public commenters, speaking for the past 30 minutes or so, have been nearly unanimous in their support of the board regulations for more robust oversight. They say stronger board regs reflect the will of the public. #berkmtg
@berkeleypolice Part of the issue right now — from a process standpoint — is that 10 people have filed complaints with the new PAB and the clock is ticking on the deadlines. Without interim regs, PAB staff cannot investigate the complaints. (cont.) #berkmtg
@berkeleypolice Certain aspects of the board's new rules would trigger a legal requirement called "meet-and-confer" where the police union would come to the table with the city to bargain about proposed changes to working conditions. It's required by law. (cont.) #berkmtg
@berkeleypolice The PAB director has put forward a version of interim rules that would not require meet-and-confer, but said she is open to considering the board's ideas once interim regs are in place. #berkmtg
@berkeleypolice Still unknown which way council will go, with two options on table. Getting back to council comments now. #berkmtg
@berkeleypolice "We need to pass interim regulations tonight," says Mayor @JesseArreguin. "There is a time limit in which decisions need to be made." He says he supports the board regs but "it's a question of when we can implement them." #berkmtg
@berkeleypolice @JesseArreguin He says board recommendations 1 and 2 can move ahead tonight but that #3 is still an open question legally and requires more legal analysis: "We cannot violate state law." The one-sidedness of the process raises due process questions for complainants, he says. #berkmtg
@berkeleypolice @JesseArreguin He says council does need to defer #3 (questioning by complainants and their presence in hearings) pending further legal analysis and meet-and-confer, or risk all the new rules being challenged, meaning Berkeley would not be able to hear any complaints at all. #berkmtg
@berkeleypolice @JesseArreguin CM @loridroste asks: How is an eye witness defined? She says that's not clear in the documents. Chair Ramsey says the common meaning would be someone who actually observed things themselves. #berkmtg
@berkeleypolice @JesseArreguin @loridroste Ramsey says his view is that anyone who has firsthand knowledge would qualify, e.g. they heard a noise or saw something; it would not include hearsay or someone opining on a hypothetical. #berkmtg
@berkeleypolice @JesseArreguin @loridroste Next question from CM @loridroste: What happens if an aggrieved party didn't have a problem with an interaction or they don't want to be engaged in a prolonged interaction with PD. What happens then, do we have to compel an aggrieved party to participate? #berkmtg
@berkeleypolice @JesseArreguin @loridroste PAB Director Kathy Lee says the board has subpoena power but that it would have a "hard time" compelling anyone to participate or making anyone attend a hearing with police. #berkmtg
@berkeleypolice @JesseArreguin @loridroste CM @loridroste asks whether eyewitnesses can file any type of complaints or only regarding the more serious concerns. "There's no limitation on the type of complaint that an eyewitness can file," says Director Lee. #berkmtg
@berkeleypolice @JesseArreguin @loridroste CM @loridroste asks for clarification on the timing element. Board chair says establishing a fair process out of the gates outweighed the value of having interim regs that did not have these key components. The PAB director says she was the one concerned about timing. #berkmtg
@berkeleypolice @JesseArreguin @loridroste CM @TaplinTerry: "This has been challenging, a lot of this is close to home for me." He says he's proud of the city's record of civilian oversight as well as the standards upheld by BPD. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry CM @TaplinTerry says he sees the consent of the aggrieved party as central to any complaint process. So he's concerned about the proposal for eyewitnesses to be allowed to file complaints. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry Re: the number of PRC complaints filed and sustained, the director says in 2018 and 2019, there were 12-15 complaints. Years prior, closer to 20. A complaint could have 1-10 different allegations of misconduct. Sustain rate was "quite low," 2% to 5%, PAB director says. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry CM @RashiKesarwani asks a process question about meet-and-confer: If the police union has a view that is different from our view, who decides whether we meet-and-confer or not, or does that have to be litigated? #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani At times we do have to litigate that, says Farimah Brown, city attorney: "Ultimately it does end up in a court of law." #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani Former HR Director LaTanya Bellow (now a deputy city manager): The BPA issued notification to the HR department July 22 requesting meet-and-confer over potential regs because they had been participating in the meetings. That is how the 3 key issues of concern came up. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani CM @RashiKesarwani says she agrees with Droste as far as defining eyewitnesses for clarity as a "percipient witness," and that complaints should be limited to either that person or the aggrieved party themselves. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani CM @RashiKesarwani asks why the board shld be able to initiate complaints (by vote of 5). PAB Vice Chair Chang says it's common w/modern complaint processes at state + federal levels, gives discretionary authority to PAB: "That's not to say that we are going to run amok" #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani "I think the thought here is to have robust oversight," says PAB Chair Ramsey: If the board becomes aware of misconduct, it should be able to launch a probe on its own. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani PAB members say they are not aware of other city police oversight agencies that have that sort of proactive investigative authority, but he say it's common at state and federal levels, with "major caselaw and precedent." They don't have agency names though. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani One more process question from CM @RashiKesarwani: If aggrieved party does not want to be involved, would we allow the board to subpoena someone who doesn't want to be involved? #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani Board Chair Ramsey says the rules being suggested here would not let the board subpoena people (other than police) for testimony; the board can only subpoena for books and records. The charter allows broader subpoena power, but the board is not asking for that. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani There are seven complaints sitting in the queue right now. The charter requires the PAB to complete investigations within 120 days. The director can extend that timeline if need be; Lee has already extended one by six weeks: There's flexibility but not a lot, Lee says. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani CM @KateHarrisonD4 says there must be some flexibility regarding who can file complaints, including on behalf of children or people with severe mental illness. But she agrees those people should be witnesses with firsthand knowledge of some kind. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 This is an employment case, it is not a criminal trial, says CM @KateHarrisonD4: She says it is "deeply offensive" that someone would not be able to face the person they are charging w/misconduct, but accepts it's an issue that would trigger the meet-and-confer process. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 CM Susan Wengraf says she's confused about instances where the board initiates an inquiry but is also the decision-making body: Is that a conflict of interest? #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 Under the former (PRC) rules, the PRC would get the investigation going, Lee says. PRC staff would gather documents, interview officers and civilians. Board members are charged with keeping an open mind and considering all the evidence: "That's what they're held to." #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 In that instance, the board would have a truth-seeking role, rather than being an advocate for a particular outcome, says Chair Ramsey: "It would remain in its role as an… objective, independent factfinder." #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 CM Wengraf suggests that family members should be allowed to file complaints in the event of a death investigation. The mayor says that's a good point: "We just have to think about the ramifications of that concept." #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 Taplin puts forward a substitute motion asking for clarifying language related to the consent of the aggrieved party; Droste seconds it after Harrison rejects it as a friendly amendment. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 "It's hard to craft rules that encapsulate every possible scenario," says Mayor @JesseArreguin, especially people who may have immigration concerns or fears about retaliation, or people experiencing mental illness. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 How do we screen frivolous complaints? asks CM Wengraf. She doesn't want frivolous complaints to flood the board. Are there safeguards in the process already? she asks. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 Chair Ramsey says the PAB director can ask the board to close complaints without a hearing, administratively. PAB Vice Chair Chang: "It's important to keep the gates open here," adding that there are safeguards in place. "All people should have access" and be heard. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 "I think we need to keep the gates open," says Interim PAB Director Lee. "It would be incumbent upon staff to do their due diligence," and maybe hire another investigator if need be: "I'm willing to see how it will play out and to allow the complaints." #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 Main motion carries unanimously. #berkmtg
@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 See pp. 43-44 re: what was approved for interim PAB rules: (1) aggrieved parties AND eyewitnesses can file complaints now (that's a change from PRC rules), and the board can initiate more investigations; (2) it's now a 180-day filing period #berkmtg
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@berkeleypolice @JesseArreguin @loridroste @TaplinTerry @RashiKesarwani @KateHarrisonD4 Item 3 (p. 44) re: testimony at hearings — seeking an expanded role for the aggrieved party (and their representation) — is on hold pending further legal analysis and the meet-and-confer process. #berkmtg
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