Court Ruling Hamstrings Police Review Commission: By MATTHEW ARTZ

Tuesday August 31, 2004

Everett Bobbitt says his San Diego law office is adorned with 11 medals, 10 he won in Vietnam and the eleventh—the one he cherishes the most—bestowed upon him by the Berkeley Police Association (BPA). 

“In Vietnam I was just a marine doing my job, here I believe in the issues and I’m proud of creating a precedent that will last a long time,” said Bobbitt, a former police officer. 

Bobbitt has never defended a Berkeley cop, but thanks to a landmark decision he won in San Diego nearly every sustained allegation of police misconduct against Berkeley officers since 2002 has been overturned. 

In the 30-year war between the police union and Berkeley’s Police Review Commission (PRC) Bobbitt has handed officers a powerful weapon both to weaken the commission’s clout further and to tie it up in a procedural morass. 

Bobbitt’s legal triumph in 1999 granted California police officers the right to an administrative appeal of any allegation against them sustained by the state’s 15 civilian oversight boards. A second ruling in 2002 laid out the appeals process and placed the burden on the review boards to prove their case.  

Civilian commissions, like Berkeley’s PRC and San Diego’s San Diego County's Citizens Law Enforcement Review Board (CLERB), are independent of a police department’s internal affairs office—the police department’s internal investigation and disciplinary unit—and their decisions never see their way into an officer’s personnel file.  

Their primary role is to give the public a vehicle to air concerns about the department and express their point of view directly to the officers in question. Police departments nearly universally ignore their rulings, Bobbitt said. Nevertheless, the Fourth District Court of Appeals found that since a sustained allegation could conceivably cost an officer a shot at a promotion or a job opportunity in a different force, the California Police Officer’s Bill of Rights required an appeal. 

The ruling, which the state supreme court declined to review, has had little impact throughout most of the state. Police in Oakland and Riverside haven’t initiated a single appeal. In San Diego County, where the lawsuit was initiated, sheriff deputies have only challenged five sustained allegations. 

In Berkeley, however, the police have appealed nearly every finding, from serious charges of improper procedure to simple discourtesy. And their appeals are nearly always successful. The most recent data collected by the Police Review Commission shows that out of 32 appeals to sustained allegations, 28 have been overturned. 

“Clearly they’re trying to bury the review process there,” said John Parker, executive director San Diego’s CLERB.  

Since the PRC’s rulings carry little weight, he and several PRC commissioners insist the motivation behind the police union’s “challenge everything” tactic is not to clear officer’s names, but to paralyze the PRC. 

With just four staff members, one investigator and a budget of $424,000 several Berkeley PRC commissioners said the commission must divert precious resources from investigating complaints to handling the appeals.  

“It hurts our budget, it hurts the whole process,” said former PRC Chairperson Bill White. 

Each appeal requires a written and an oral argument presented before a three-person appeals panel, handpicked by the city manager, which hears the case in private and doesn’t publicize its decisions.  

Currently, the panel is comprised of Office of Economic Development Director Tom Myers, Senior Human Resources Analyst Margarita Zamora and Hearing Officer Ann Miley. The composition of the review panel has raised concerns among PRC commissioners that the final arbiters might have a bias towards their fellow city employees. 

“They’re supposed to be objective, but they’re judging their own,” said PRC Commissioner Lucienne Sanchez-Resnik, who also argued that the panel’s reliance on the written transcript favored officers. 

“They’re missing a lot of the body language,” she said. “Reading the transcript and being there are two different things.” 

In contrast to the Berkeley system, designed by former City Manager Weldon Rucker, San Diego sends appeals to a civil service commission, where the panel members are selected by elected supervisors and can hear live testimony. 

Carol Denney, the publisher of Berkeley’s satirical newspaper, the Pepper Spray Times, wasn’t present when the Berkeley appeals panel overturned rulings that had been in her favor. She had filed a complaint against an officer who she claimed refused to arrest a man she said assaulted her. She charged that the officer inserted into the police record what she said were false mental health records. 

Denney said she received a cash settlement from the city for the incident, but the review board overturned the PRC’s findings anyway. 

“It’s disturbing that a panel can meet in secret and have the last word,” Denney said. 

Former Berkeley Police Associaton President Randolph Files, however, said there’s a simple explanation for the multitude of overturned rulings: “The PRC has a systemic bias against the police.” Files said he experienced the bias when he was brought before a PRC hearing panel. “There was nothing I could say that the PRC wanted to hear. I was wrong because of who I was.”  

The PRC sustains about one-third of the allegations brought before them—a higher percentage than most other civilian boards. In 2002, The PRC sustained 52 allegations out of 154. Comparatively, in 2003, the Riverside review board sustained 22 out of 107 complaints and San Diego sustained nine out of 99 complaints. 

Administrative review is just the latest in a series of legal battles in which the police have pared down the power of the PRC. 

Created by ballot initiative in 1973, the commission was originally designed to replace Internal Affairs, but a judge ruled that only a charter amendment, not a ballot initiative, could give the commission authority to discipline officers. 

Reduced to a role of advisor to the city manager—who reviews the commission’s findings and controls its funds—the commission wields little institutional power.  

Now, again thanks to Bobbit, the PRC risks losing even more relevance 

Last year, Bobbit won a case, again in the Fourth Circuit Court of Appeals, that closed civilian board hearings in San Diego. Other jurisdictions have quickly fallen into line. Riverside and Richmond have placed hearings behind closed doors, and last month the Oakland Police Officers Association (OPOA) filed suit against the city both to close public hearings and to keep review board findings confidential. PRC commissioners fear that if the OPOA suit is successful, Berkeley Police will also seek legal recourse.  

In 2002 Berkeley police filed a suit to keep PRC findings under lock and key, but not to close hearings to the public. However, after settling other bones of contention with the city, they never pressed the issue. 

“If someone in Berkeley filed a writ in superior court, they could close the hearings,” Bobbitt said. “I’m guessing they’re mostly happy with the way it’s going and don’t want to deal with a public outcry.” 

Asked if the BPA planned to follow through on closing hearings, Files replied, “No comment.”