Title
Recommendation to Provide Direction to Staff Regarding Police Accountability. (Police 10031130)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
With events of conflict throughout the country, the need to strengthen community policing is of utmost importance. As part of this effort, in August 2020, the City Manager appointed the Community-led Steering Committee (Steering Committee) on Police Reform and Racial Equity to make recommendations on the future of policing and systemic racism in Alameda. There were five subcommittees established to focus on task specific recommendations. The five subcommittees were: Unbundling Services Currently Delivered by the Police Department; Review of Police Department Policies and Practices; Police Department Accountability and Oversight; A Review of Laws that Criminalize Survival Systemic; and Community Racism/Anti-Racism.
On March 16, 2021 the City Council considered recommendations from the Community-led Steering Committee and provided direction to the City Manager to follow-up on 22 action items that focus on the Alameda Police Department (PD) and other City of Alameda (City) programs and policies. On May 8, 2021, the City Council met to consider a referral on related matters, and provided eight additional action items for follow-up (see Exhibit 1 Work Plan for full list and status of each action item). The recommendations contained in this report are part of the continued effort by the City to implement the recommendations from the steering committee and direction of City Council. Nearly all of the action items have been completed.
This staff report is focused on the recommendations from the Steering Committee and the direction from City Council regarding independent oversight of the Police Department. The action items in the Work Plan, approved by City Council, include funding a Police Auditor and reviewing and presenting options to City Council for community oversight of the Police Department.
After evaluation, staff are recommending two action items as a first step. 1) the hiring of a Police Auditor/Advisor who would report to the City Attorney and 2) for the Police Department to achieve and maintain accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA).
BACKGROUND
Government is trusted with the responsibility to facilitate an environment where its residents and visitors may live, work, and play free of crime and/or the perception of crime. The City relies on several internal and external institutions, including the Alameda Police Department, to accomplish this goal. The basic mission of the APD is to create the smallest footprint while applying procedural justice - respect, voice for others, neutrality in decision making and having a trustworthy process - when:
• Preventing crime,
• Intervening in crime, and/or
• Enforcing crime violations
Procedural justice is a term derived from a report written by a Policing Task Force convened by former President Obama. The Task Force members were subject matter experts on best practices in policing. The four tenets of procedural justice are:
• Respect,
• Voice for others,
• Neutrality in decision making, and
• Having a trustworthy process
With the consent of the community, APD staff exercises authority to effectively carry out its duties. At the same time, it is important to underscore that unchecked authority and a lack of accountability could lead to a loss of community trust. To ensure this authority is handled with the highest regard for community trust, police staff are hired through rigorous standards which include written aptitude testing, physical abilities testing, in-person interviews, background checks, psychological assessments, polygraph examination, and medical testing.
After being hired, prospective officers then attend a police academy to receive basic instructions on all topics of law enforcement if they have not already done so. These topics include, but are not limited to, ethical decision making, crisis intervention, basic criminal law, report writing, vehicle operations, use/de-escalation of force, patrol techniques, handling in-progress crimes, crowd control, critical incidents, missing persons, traffic enforcement, crime scene follow-up, lifetime fitness/wellness, and laws of arrest.
To successfully graduate from the police academy, prospective officers must demonstrate a clear understanding of these topics through mastery and various testing. The California Commission on Peace Officer Standards and Training (CA POST) sets specific standards on minimum scores necessary to pass each test. Prospective officers who fail to meet scoring standards, after the opportunity to remediate, are removed from the academy. Those who graduate will, then, participate in a 19 week in-field training assessment program where they must demonstrate the ability to apply the skills they learned in a sterile police academy/training environment to real life field duties in the community.
Public safety initiatives and mandates are never stagnant. New legislation and court decisions occur routinely and relevant changes must be incorporated into practice without unnecessary delays. As legislation and case law change, along with societal expectations, so does the need to maintain up-to-date training, policies, and procedures on service delivery. This is accomplished through regular and ongoing training. Upon completion of the police academy and field training program, officers (and dispatchers) are required to attend annual Continued Professional Training (CPT) concerning their skills, new legislation, case law, and other topics of relevance to maintain their certification. For example, the CA POST sets specific training requirements with specific hours of instruction to maintain standards and certifications.
Although there are rigorous technical requirements in policing, the overarching principles of public safety demand high levels of accountability. High levels of accountability along with operations that are in line with best practices foster community trust and confidence in its police department. Modern day policing has evolved from a simplistic practice of enforcing basic laws to a very complex and technical profession, requiring adaptive thinking, a guardian mindset, paramount regard for community trust, and an in-depth and up-to-date knowledge of:
• Case Law,
• Criminal and Civil Law,
• Administrative Instruction,
• Risk Management,
• Industry Standards,
• Best Practices,
• Crime Prevention/Intervention/Enforcement,
• Data Driven Strategies,
• Procedural Justice,
• Implicit Bias,
• Force De-Escalation,
• Policy Development,
• Familiarity and Access to Relevant Resource Providers, and
• Knowledge of Community Priorities Among all City Stakeholders.
As stated above, the authority granted to public safety is only legitimate if the community consents to it and has trust in its police department. Currently, the APD has multiple layers of review when assessing the conduct of its officers, including multiple levels of leadership within the Department that will review and investigate risk areas such as use of force, vehicle pursuits, City-operated vehicle collisions, misconduct complaints, arrests, property damage, and overall performance. These reviews also include specific timelines, compliance with policy, conformity with training, assessment of supervision, consideration for policy/training updates, and alignment with industry standards and best practices.
On September 30, 2021, Governor Newsom signed Senate Bill 2, which allows for decertification of officers who engage in serious misconduct. In support of Senate Bill 2, CA POST created the Peace Officer Standards Accountability Division and established the Standards Accountability Advisory Board (Board), a nine-person accountability review board that reviews cases of serious misconduct. This Board is granted the authority to review investigations completed by police agencies and to further investigate other serious misconduct. This Board also holds public meetings to review findings of its investigations. Sustained findings that go through all levels of review result in the de-certification of an officer.
Policing in America continues to undergo significant changes as societal expectations rightfully demand a modernized service delivery model where procedural justice and “21st Century Policing” methods are the operational blueprint. Although the City hires police officers under rigorous standards, provides the officers with ongoing training/professional development, reviews their performance internally on a regular basis, and subjects the officers to state level accountability through the Peace Officer Standards Accountability Division (CA POST), there are opportunities to improve service through additional accountability.
The calls for accountability and reform are rooted in systemic racism and the need to balance the power dynamic associated with police authority. The APD embraces the community’s call for accountability and believes responsible, thoughtful, qualified, proper, and operationally efficient oversight may increase transparency and legitimacy while being a resource. Any imbalanced power within any oversight model could lead to the same breach in public trust that staff is aiming to mitigate and correct. Oversight could provide timely perspective to the APD leadership that could enhance the way service is delivered in the community. At the same time, improvised propositions without careful considerations could significantly and negatively impact public safety, service efficacy, and overall legitimacy.
Staff is committed to developing a vision for public safety in Alameda with systems and processes in place including oversight and accountability that center community expectations.
DISCUSSION
This part of the staff report provides options to address police accountability, considering best policing practices, public safety, and procedural justice for all stakeholders.
Staff has researched accountability models throughout the industry and provides the below considerations to best inform all subsequent recommendations. Success of any model is dependent upon a realistic approach of outcomes with an acute understanding of City and staff capacity. First and foremost, community expectations must serve as the guiding principles of accountability. Overly complicated systems with multiple layers of decision making, coupled with an under reliance on the expertise of subject matter experts will certainly delay timely action and could reduce the legitimacy and the efficacy of accountability and reform.
As part of the analysis process, staff looked to define oversight and accountability. Oversight is synonymous with supervision, direction, management, and administration. These descriptions are consistent with the existing command and control structure in most police agencies. Accountability is synonymous with responsibility, liability, answerability, and reporting. Again, these descriptions are also consistent with the existing command and control structure in policing. While this command and control structure in policing has utility during critical and emergency time sensitive decision-making, most other industries flatten these structures and engage in collaborative decision-making through research and recommendations with real-time access to top decision makers.
Considerations:
To make meaningful change, the City must challenge the status quo of a “chain of command.” Reform initiatives should be a collaborative process that facilitates accountability to the equitable and fair treatment of all persons when the APD delivers service.
To achieve this type of accountability, oversight should not reside in a chain of command that has layers of accessibility to top decision makers. Rather, oversight should be a streamlined process of collaborative guidance that provides actionable recommendations directly to the top of the APD’s chain of command, the Chief of Police, and the City Manager.
• Oversight should have direct access to top decision makers.
Policing is complex. Therefore, anyone tasked with oversight must possess the technical skills and/or have access to subject matter experts in the relevant topics surrounding public safety. This knowledge is foundational to provide recommendations to the APD that align with industry standards and best practices.
• Oversight must be proficient in relevant technical knowledge and/or possess applicable advanced education/experience.
Additionally, oversight must have access to all systems and databases. To effectively make recommendations, review of all relevant data must occur to put the APD decision making into action. The process of oversight should be full-time so that access to the vast data, policies, and procedures within the APD can be reviewed, understood, and compared against industry standards in real time on a regular basis. Recommendations must also be timely and without delay or redundant inquiries. Unnecessary delays will slow oversight/accountability initiatives and, ultimately, fail to meet community expectations.
• Oversight must be full-time and individuals should be selected through rigorous standards.
The community and the APD have an expectation for tangible oversight. A simple installation of oversight for the sake of saying oversight exists falls short of what the community expects. Oversight must provide timely guidance that is in line with industry standards and does not violate City Charter, policies, and/or procedures. Guidance and recommendations must be comprehensive, unbiased, and supported by research/data with formally documented plan(s) of action to the APD.
• Oversight must be comprehensive and recommendations must be attainable.
Based on these principles, set forth below are several options for the City Council’s consideration.
Option 1: Police Auditor/Advisor
Accountability and oversight recommendations would largely be vested in a Police Auditor/Advisor (PAA). The City would hire a PAA who would possess the ability on a full-time basis to access relevant information to make timely recommendations to the Chief of Police on operations, policies, and procedures.
In order to access relevant systems and databases, the PAA should have the background to meet Department of Justice (DOJ) standards and have relevant training, education, and experience as it relates to best practices coupled with a clear understanding of administrative, civil, employer/employee relations, and criminal law. A PAA, operating as a full-time employee, would have the autonomy to efficiently audit systems and processes as part of their regular day-to-day duties.
These audits and recommendations would be on areas of risk and could include misconduct complaints/investigations, vehicle pursuit investigations, use of force investigations, and policy development. The PAA could report directly to the City Manager, the City Attorney, the Chief of Police, or the City Council. Below are descriptions for each reporting structure.
Reporting Structure Option 1a: Reporting to the City Manager
The City Manager would appoint the PAA who would report directly to the City Manager. By the PAA’s reporting directly to the City Manager, there would be no delays in providing direction to the Chief of Police because the Chief of Police reports directly to the City Manager. Accordingly, the City Manager would be able to understand and correlate operational impacts and direction to the Chief of Police. Furthermore, the City Manager would be able to create a collaborative working relationship between the Chief of Police and the PAA. Additionally, the City Manager is the Chief Administrative Officer of the City with the ability and authority to hold the Chief of Police and/or PAA accountable. Finally, this reporting structure facilitates the City Manager’s ability to expeditiously carry out the Manager’s duties in line with the City Charter, including terminating employment.
Reporting Structure Option 1b: Reporting to the City Attorney
The City Attorney would appoint the PAA who would report directly to the City Attorney. The City Attorney and the City Manager are separately and independently appointed by the Council; both report to the Council but they do not report to each other. In this reporting structure, the PAA, under the City Attorney’s stewardship, would provide advice and input to the Chief of Police and the City Manager, and potentially to the City Council as appropriate. This would ensure the PAA is responsive to community input and strengthens the independence of the oversight function. Nevertheless, this reporting structure would require careful coordination between the Chief of Police, City Manager, City Attorney, and PAA to foster a collaborative working relationship.
Reporting Structure Option 1c: Reporting to the Chief of Police
The PAA would report directly to the Chief of Police, resulting in recommendations arriving expeditiously. However, this option may not provide the community with the level of independent oversight it is seeking.
Reporting Structure Option 1d: Reporting to the City Council
The City Council would appoint the PAA who would report directly to the City Council, as do the City Manager and City Attorney. Given the many other issues the City Council must address, this structure could result in delayed recommendations to the Chief of Police. This option would also necessitate a Charter amendment, subject to approval in an election to create this new City Council appointee position. If the City Council has an interest in examining this option further, it would need further analysis.
Option 1 Summary
This option provides for timely direct access to top decision makers and would require an unbiased individual who is proficient in relevant technical knowledge and/or possess applicable advanced education/experience. It is recommended that this position be full-time and the candidate be selected through rigorous selection standards. Under this option, the Peace Officer Standards Accountability Division would still have the authority to review serious misconduct allegations under Senate Bill 2.
Option 2: APD to Achieve and maintain accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA)
This option would permit the APD to engage in self-accountability through accreditation by CALEA, a third-party accreditation agency. CALEA has been in existence for nearly 50 years and is well known for providing the “gold standard” on professional standards and best practices in public safety.
CALEA accreditation is a two to three-year process where, in order to achieve accreditation, agencies must demonstrate their ability to meet professional standards that include internal accountability systems, policy development, informed decision making, preparedness in natural/human made critical incidents, legitimate crime fighting efforts, community relationship building, and independent reviews by subject matter experts. Thereafter, to keep accreditation, agencies must pass annual audits/reviews of agency operations.
CALEA has worked jointly with:
• International Association of Chiefs of Police (IACP),
• National Organization of Black Law Enforcement Executives (NOBLE),
• National Sheriff’s Association (NSA), and
• Police Executive Research Forum (PERF)
The CALEA Board of Commissioners consists of professionals in local, state, and international organizations. Commissioners include diverse experiences such as judicial officers/magistrates, attorneys, city managers, city council members, academia, and police executives.
Achieving CALEA accreditation requires meeting high standards and remaining accredited requires maintaining those standards through audits.
In order to achieve this accreditation, a high-ranking member of the APD would work with the CALEA Commission. Following accreditation, APD personnel would be responsible for maintaining such standards. Under this option, there would not be a separate PAA.
Option 2 Summary
This option provides for timely direct access to top decision makers and would require an unbiased individual who is proficient in relevant technical knowledge and/or possess applicable advanced education/experience. It is recommended this position be a high ranking member of the APD, be full-time, and be selected through rigorous selection standards. Under this option, the Peace Officer Standards Accountability Division would still have the authority to review serious misconduct allegations under Senate Bill 2.
Option 3: Police Auditor/Advisor and CALEA Accreditation
Under this option, the City would hire an individual who would not be a member of the APD to work with CALEA to achieve accreditation. This individual would serve as the PAA as described in Option 1 and be responsible for maintaining accreditation with CALEA.
This would afford the PAA the tools and resources to thoroughly understand APD, its processes, policies, practices, industry standards, and best practices. If this Option were chosen, the City Council would still need to determine to whom this person would report to as described in Option 1.
Option 3 Summary
This option provides for timely direct access to top decision makers and would require an unbiased individual who is proficient in relevant technical knowledge and/or possess applicable advanced education/experience. It is recommended this position be full-time and should be selected through rigorous selection standards. Under this option, the Peace Officer Standards Accountability Division would still have the authority to review serious misconduct allegations under Senate Bill 2.
Option 4: Police Commission
The City Council would appoint a Police Commission (Commission) who would be responsible for accountability and oversight. The Commission would be independent of the APD and have at least three members. Through research, staff has not been able to identify a Commission in the region that operates on a full-time basis. Rather, Commissions meet on a set monthly schedule. Guidance and direction to APD would occur at these scheduled meetings. Because the Commission does not operate full-time, there may be delays in recommendations. Consequently, there would likely need to be a full-time investigative/administrative person(s) or entity to support the Commission. There would also be a need for legal review.
Commission members and its investigative entity should have the requisite backgrounds to ensure they possess the relevant training, education, and experience regarding best practices. There are two regional municipalities that have true Commissions, the City of San Francisco and the City of Oakland. These commissions do not report to a City Manager or City Attorney and this option may require a charter amendment, depending on the scope of the Commission’s authority.
Option 4 Summary
This option provides for direct access to top decision makers and would require unbiased individuals who are proficient in relevant technical knowledge and/or possess applicable advanced education/experience. Recommendations may not be as timely as other options and would be dependent on the Commission’s schedule. Under this option, it is uncertain if the Peace Officer Standards Accountability Division would still have the authority to review serious misconduct allegations under Senate Bill 2. However, it is likely it would.
Option 5: Advisory Commission
An Advisory Commission would be a voluntary, advisory group and could be appointed by the PAA, the Chief of Police, whomever the PAA reports to, and/or the City Council. Like the PAA’s duties, the Advisory Commission would also provide recommendations to the PAA and/or the Chief of Police for consideration. As with a Police Commission, an Advisory Commission would likely not be full-time and would meet based on a set schedule. This could result in delayed recommendations.
Advisory Commission members should have the requisite backgrounds to ensure they possess the relevant training, education, and experience regarding best practices.
Option 5 Summary
This option provides for direct access to top decision makers and would require unbiased individuals who are proficient in relevant technical knowledge and/or possess applicable advanced education/experience. Recommendations may not be as timely as other options and would be dependent on the meeting schedule. Under this option, there do not appear to be any implications on the Peace Officer Standards Accountability Division authority to review serious misconduct allegations under Senate Bill 2.
Option 6: Chief of Police
The Chief of Police would retain oversight and accountability without the need for a PAA or a Police Commission. The City recently hired a Chief of Police from another agency who has vast knowledge and understanding of oversight, accountability, and best practices, having previously worked under federal oversight for nearly 20 years through Hon. Thelton Henderson and Hon. William Orrick III. Additionally, the APD Chief has overseen policy/procedure development where industry standards and best practices were enveloped into final products. The APD Chief has also served as Chair on various risk management boards/hearings, including use of force, vehicle pursuits, vehicle collisions, misconduct investigations, discipline, and early warning systems. Finally, the APD Chief was hand-selected to work with a police commission where he was assigned to be the police commission liaison officer.
At the APD, the current Chief of Police instituted several new layers of review and oversight concerning areas of risk, in line with industry standards and best practices. These practices have certainly begun an organizational culture shift.
Although this option is included, it is not recommended because it may not provide a sufficient level of transparency.
Option 6 Summary
This option provides for timely direct access to top decision makers and the current APD Chief of Police is proficient in relevant technical knowledge and possesses applicable advanced education/experience. The current APD Chief position is full-time and he was selected through rigorous selection standards. Under this option, the Peace Officer Standards Accountability Division would still have the authority to review serious misconduct allegations under Senate Bill 2.
Conclusion
In analyzing the considerations set forth and the above options, staff recommends option 3. Under this option, the City would hire a full-time Police Auditor/Advisor, part of whose responsibilities would be to seek and thereafter maintain CALEA accreditation. This individual would not be a member of the APD and would report to the City Attorney.
ALTERNATIVES
• Direct City Staff to move forward with City Staff Recommendation - Option 3 (Hire Police Auditor/Advisor who would report to the City Attorney and whose duties would include seeking and maintaining CALEA Accreditation.
• Direct City Staff to move forward with other options listed above.
• Direct City staff to not move forward with any of the options.
FINANCIAL IMPACT
Depending on the option selected, there could be an immediate financial impact. The City included $300,000 in the 2022-2023 Fiscal Year budget to provide funding for a Chief Auditor. This funding could also be used to support another option if selected by the City Council. Any cost associated with the option selected would become an ongoing cost and need to be budgeted in future years’ budgets.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
Depending on which option is chosen, the City Charter may need to be amended, for example if the City Council were to appoint the Auditor or if the Auditor/Commission were to undertake independent internal investigations. In addition, depending on the scope of the Auditor’s/Commission’s authority, the City may need to meet and confer with one or more bargaining groups.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines sections 15061(b)(3) (common sense exemption) and 15321 (law enforcement activities).
CLIMATE IMPACT
There are no identifiable climate impacts or climate action opportunities associated with the subject of this report.
RECOMMENDATION
Staff recommends Option 3 - Hire Police Auditor/Advisor who would report to the City Attorney and seek CALEA Accreditation.
Respectfully Submitted,
Nishant Joshi, Chief of Police
Nancy Bronstein, Interim City Manager
Yibin Shen, City Attorney
Financial impact section reviewed,
Margaret O’Brien, Finance Director
Exhibit:
1. Action Items with Status