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City to Challenge Closed Police Complaint Hearings

By Judith Scherr
Friday May 18, 2007

More than 50 complaints lodged with the Police Review Commission against various Berkeley police officers sit awaiting action at the city’s Police Review Commission offices. 

The commission’s complaint hearings were suspended in September, following the California Supreme Court decision Copley Press v. San Diego. 

Hoping to restart the hearings, the City Council voted 7-0-2 Monday in closed session, with Councilmember Gordon Wozniak abstaining and Council-member Darryl Moore absent, to go back to court and appeal a related local case, Berkeley v. Berkeley Police Association (BPA). 

The court ruling in favor of the BPA is similar to the Supreme Court decision: both say a police officer’s record, including complaints against the officer, are personnel matters that cannot be made public.  

The grounds on which City Attorney Manuela Albuquerque intends to appeal the Berkeley v. BPA ruling have not been made public. In arguments with which the court disagreed, Albuquerque contended that since the PRC does not determine whether or how officers are to be disciplined, which is the city manager’s responsibility, personnel confidentiality is not violated under Berkeley’s complaint system and the Copley case does not apply to the city. 

Given the growing number of unheard complaints against the Berkeley police, the Police Review Commission voted to hold their boards of inquiry behind closed doors until such time as they could again hold them in public.  

This is what Oakland is doing, according to PRC Officer Victoria Urbi, who, with the city attorney, wrote draft regulations for closed hearings patterned on Oakland’s closed hearing regulations. (Oakland and all the other California jurisdictions with police complaint processes suspended open hearings around the same time that Berkeley did.) 

Urbi said that Oakland’s police union sat down with that city’s police commission and agreed on rules to hold complaint hearings behind closed doors. 

In Berkeley, however, “the Association has not weighed in on the [proposed] regulations,” City Attorney Manuela Albuquerque told the Daily Planet, saying that the BPA attorneys said they were going to put a proposal in writing, but never did. 

“They never sent us anything,” Albuquerque said. “I consider them to be obstructionist.” 

“They’ve been using stalling tactics to hold off our hearings,” Urbi said. 

Attorney Jim Chanin, a former PRC commissioner who helped found the commission 30 years ago, agreed: “They don’t want closed hearings,” he said. “They don’t want civilian review.” 

However, BPA President Officer Henry Wellington said they have offered to meet: “We have diligently tried at every turn to see how we can move forward,” he told the Planet, arguing that simply posting a draft on the city’s website or putting in a PRC agenda packet with only a few days notice is inadequate. “No one has asked us to sit down,” he said. 

In an April 24 letter BPA attorney Allison Berry-Wilkinson wrote to Albuquerque saying that if new regulations are proposed, they must be submitted to the BPA under a formal “meet and confer” process that is generally part of contract negotiations. 

PRC Commission Chair Sharon Kidd and Commissioner Michael Sherman both told the Planet they surmised, after the closed-door meeting in which the PRC sat with the City Council, that if the city attempted to hold closed door police complaint hearings, the union would take the city to court. 

Berry-Wilkenson’s letter seems to indicate that: “Please be advised that the Berkeley Police Association intends to exercise its right to meet and confer prior to any proposed regulation changes and will enforce that right, if necessary, through further legal proceedings.”