Superior Court Judge Winifred Smith issued a decision, made available this week, agreeing with the Berkeley Police Association, which had filed suit against the city, that open hearings on complaints against the police violate the officers’ privacy rights.
And so the community and Police Review Commission members are scrambling to address the issue. Should closed-door hearings be held? Should open hearings be held without the presence of a police officer? Should the decision be appealed?
The city suspended its 30-year open hearing process in September after the California Supreme Court ruled, in Copley Press v. San Diego, that public police misconduct hearings conducted by agencies that employ police officers violate the Police Officers Bill of Rights Act. The city argued that the city of Berkeley and not the Police Review Commission is the employing agency and has the sole responsibility for disciplining officers, but Smith rejected that argument.
In a phone interview Wednesday, American Civil Liberties Union of Northern California Police Practices Policy Director Mark Schlosberg, who submitted an amicus brief on behalf of the city, told the Planet that he had asked the Police Review Commission earlier to be prepared with a game-plan already in place in case the city lost in court.
The commission has 40 outstanding complaints.
The PRC “needed to prepare for the outcome,” Schlosberg said. The commission should “go forward and hold the hearings in private … Complaints are in limbo,” he added.
“It’s hard to tell how effective hearings will be without the public, but it’s better than not holding hearings,” he said.
City Attorney Manuela Albuquerque was invited to the Wednesday evening PRC meeting to discuss options, but declined to come, according to PRC Officer Victoria Urbi. She intends to advise the City Council and PRC on their options in a joint closed session on Tuesday.
The public can comment before the council meeting, which will take place at 5 p.m., in the 6th floor conference room at the Civic Center Building, 2180 Milvia St.
At the Wednesday PRC meeting, Urbi outlined the closed-door procedures Oakland has adopted: After a public comment period, the public and press leave the hearing room. The complainant, the subject officers and their legal representatives remain with the hearing panel. Witnesses stay outside the hearing room and are called in only when it is their turn to testify. The parties, representatives and witnesses must all sign confidentiality statements. The final reports are different for the panel, officer and complainant.
“It’s not my recommendation to adopt the Oakland model,” said Commissioner Bill White, calling for a separate meeting to discuss the various possibilities. He said he believes that any changes in procedures would have to go through the City Council, which would have to re-write the ordinance that guides the way the PRC does business.
Audience participant Andrea Pritchett of Copwatch argued against closed hearings, noting that it is the public pressure that is brought to bear on the department that creates positive change in police conduct.
“I don’t want to go to a closed hearing,” she said. “If I had a big issue, I’d go to court.”
Pritchett further said she thinks there may be a way to hold pubic PRC hearings without officers, who might choose voluntarily to attend the hearings in order to present their viewpoints.
Commissioner Michael Sherman said he thought closed PRC hearings might violate the Brown Act, the state’s open meeting law.
Because the city attorney was not present, those questions were deferred. Albuquerque authored a short statement on the decision, but, through a spokesperson, said she would not talk to the press about the various possibilities for future hearings.
Pritchett noted that the planned discussion of the closed hearings in the PRC-City Council closed-door meeting is “kind of ironic” and advised the commissioners: “Please don’t meet under those conditions.”
Copwatch is holding a public meeting Monday to look at various strategies for holding the police accountable, at 8 p.m. at 2022 Blake St.
In other PRC business, the commission voted Wednesday 6-0 to have a “full-blown investigation” of the drug-theft issues in which Sgt. Cary Kent was found to have stolen drug evidence from some 286 sealed evidence envelopes. Commissioner Jack Radisch was absent and Mayor Tom Bates and Councilmember Linda Maio have vacant commission slots.
A newly-hired investigator will assist a commission subcommittee with the investigation, which will go beyond the 900-page police report to try to uncover how this problem might have occurred and whether other officers in addition to the single convicted officer might have been involved.
“We’ll need direction from the city attorney on what we can do in light of the court case,” Urbi told the commission.