PRC Plans Closed-Door Complaint Hearing; Expects Police Union TRO

By Judith Scherr
Friday May 25, 2007

On Wednesday evening, the Police Review Commission (PRC) approved 3-1 new rules that will govern hearings involving complaints against police officers and set June 7 as its first hearing date since September—an action commissioners say is likely to get the city back in court facing off against the Berkeley Police Association. 

Commissioners Sharon Kidd, Bill White and Sherry Smith voted in favor of the measure; Kamau Edwards voted against it; Commissioners Mike Sherman and Jonathan Huang were absent and three commission seats are vacant. 

Public Boards of Inquiry, made up of three members of the Police Review Commission, have for some 30 years conducted hearings in public on allegations of police misconduct in the presence of both officer and complainant.  

But since September and the California Supreme Court Copley Press v. San Diego case, Berkeley’s hearings have been suspended. The court ruled that police discipline is a personnel matter and cannot be made public. In the more recent Berkeley Police Association v. City of Berkeley decision, the Alameda County Superior Court ruled similarly that the Police Review Commission would violate officers’ confidentiality rights by hearing cases in public. 

The Berkeley Police Association “will likely try to move to court to try to get a restraining order” to block the scheduled closed-door complaint hearing, Deputy City Attorney Sara Reynoso told the commission, adding, however, that she thinks the city is on solid ground in its right to hold the hearing.  

“We based the regulations on case law out of San Francisco,” she said. 

“The police officers union is probably ready to sue our socks off,” added Commissioner Sherry Smith. 

Through its attorneys, the BPA has said that regulations for closed-door hearings need to be part of the “meet and confer” contract negotiations.  

The PRC has asked for a more informal process. “[The BPA] strategy is to stall our process and they have succeeded,” PRC officer Victoria Urbi told commissioners at their May 9 meeting, according to meeting minutes. 

The inability to hold public meetings is taking its toll on commissioners. Commissioner Jack Radisch told the Planet Thursday that he resigned from the commission in part because he has gone back to work, but mostly because without open public hearings “what we do is meaningless.” 

The commission is also addressing several other hot-button issues: writing policy to respond to issues raised by the theft of drug evidence by former police Sgt. Carey Kent, the alleged theft of cash and other personal property of arrestees by former police officer Steven Fleming, and high-speed police chases through Berkeley streets. 

The subcommittee looking at creating policy addressing police theft issues, however, has hit a snag. While Police Chief Doug Hambleton, not a member of the BPA, has been willing to meet with the commission and respond to questions, the BPA has refused to allow its members to respond to questions. 

Deputy City Manager Lisa Caronna attended Wednesday evening’s PRC meeting to try to resolve the matter, asking two members of the subcommittee on theft issues—less than a quorum so that the meeting can be held out of public view—to meet with the police chief, city attorney and others to discuss what kinds of questions might be acceptable to the BPA officers. 

Caronna said the problem is that the city attorney fears that questioning the officers on policy issues could spill over to personnel issues and could hurt the city’s appeal of the lawsuit or trigger a new case.  

“Anything that relates to individual officer conduct, even matters that are public information, we can’t talk about,” Caronna told the commission. “Our goal is to try to have a discussion. How do we get to the core issues without crossing the line of confidentiality?” 

Moreover Caronna said the possibility of triggering a new BPA lawsuit has to be weighed with other important activities of the eight-member city attorney office. “We have to be careful about the possibility of taking away from the other work the council has directed us to do,” she said. 

“The idea is not to violate the court order,” Reynoso added. 

Commission Chair Sharon Kidd, a subcommittee member, argued that questioning officers is “not about pointing the finger at anybody.” For example, the subcommittee could call in random officers and, in order to formulate policy, ask the question: “How would you respond to an officer who came to work inebriated?” (Unlike Oakland, Berkeley has no specific policy mandating officers to report fellow officers who do inappropriate or criminal acts.) 

But Caronna responded that the question, “ ‘What would you do if?’ crosses the line” into personnel issues. 

Commissioner Sherry Smith said what the commission needs is its own attorney. “There’s not enough championing” of the commission’s work, she said. 

Commissioners expressed concern about the three vacancies on the commission. Reached by phone Thursday, Councilmember Linda Maio, whose commission seat has been vacant for about a year, said she would appoint someone in the next few weeks. Mayor Tom Bates’ seat has been vacant for about six months and Councilmember Betty Olds’ seat, to which Radisch had been appointed, has been vacant for a week.