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COMMENTS ON DISCIPLINE, PERFORMANCE DEFICIENCIES AND DIRECTIVES DIRECTIVES, AUGUST 2017

To Acting Chief Uehara, Capt. Bell, Captain Krantz, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:

We continue to commend the Bureau for putting out "redline" versions, though some problems with that system persist, which we address in the individual comments. However we will repeat here that the top of documents that include both "clean" and "redline" copies of Directives should state so on the first page so a reader knows what to expect.

And in case Acting Chief Uehara missed the comments on the last two Directives, we noted there that we've commented on over 100 Directives over the last four years, some of them 3 or 4 times, in hopes of creating a more professional, accountable and transparent Bureau, while helping de-emphasize violence and conflict.

We highlight several times in these comments how Directive 1010.10 was proposed to be implemented by the Bureau but is being changed following community outcry and City Council action. It is a good illustration of why the PPB should slow down the process and listen to community concerns rather than trying to meet artificial deadlines. [...]
COMMENTS ON DISCIPLINE, PERFORMANCE DEFICIENCIES AND DIRECTIVES DIRECTIVES, AUGUST 2017

To Acting Chief Uehara, Capt. Bell, Captain Krantz, PPB Policy Analysts, Compliance Officer/Community Liaison Team, Community Oversight Advisory Board staff, US Dept. of Justice, Citizen Review Committee and the Portland Police Bureau:

It has only been a few days since we sent our last comments, but we welcome Acting Chief Uehara to this discussion. We have pasted in below Portland Copwatch's comments on three Directives posted for review in August < http://www.portlandoregon.gov/police/59757>, whose deadlines for comment are August 15. In our last email we asked the Bureau to consider posting all Directives either on the first or 16th of the month; we recognize this appears to be the future intent, but we continue to contextualize our request to make this process easier and more accessible within the Bureau's stated goal of better community engagement. We're all volunteers out here and your folks, though they may even be working around the clock on these things, are getting paid.

We continue to commend the Bureau for putting out "redline" versions, though some problems with that system persist, which we address in the individual comments. However we will repeat here that the top of documents that include both "clean" and "redline" copies of Directives should state so on the first page so a reader knows what to expect.

And in case Acting Chief Uehara missed the comments on the last two Directives, we noted there that we've commented on over 100 Directives over the last four years, some of them 3 or 4 times, in hopes of creating a more professional, accountable and transparent Bureau, while helping de-emphasize violence and conflict.

We highlight several times in these comments how Directive 1010.10 was proposed to be implemented by the Bureau but is being changed following community outcry and City Council action. It is a good illustration of why the PPB should slow down the process and listen to community concerns rather than trying to meet artificial deadlines.

We ask again here (and in the comments on Directive 010.00) that the Bureau add letters to section headings (Definitions, Policy, Procedure) so that there are not multiple sections with the same numbers, and to enumerate the Definitions. Our comments below refer to the Procedure section unless otherwise noted.

DIRECTIVE 335.00 DISCIPLINE PROCESS

These are follow up comments to those we submitted in June.

It is very confusing that there are references to the proposed findings in the new draft Directive, but there is no part of the Directive calling on Managers to make such findings (old Section 1, which has been struck).

We continue to believe, as stated before, that having a finding called "Not Sustained" and collectively referring to that finding, "Unfounded" and "Exonerated" as "not sustained" findings is too confusing. We think "Insufficient Evidence" (the old name) or "Insufficiently Proven" would be clearer names for this finding, which means "the evidence was insufficient to prove a violation of policy or procedure." We appreciate that the definitions of the findings now clearly delineate where a preponderance of evidence is needed and for what purpose. However, we continue to believe that the definition of "Unfounded" should be that "available facts do not support the allegation" rather than the accusatory one the Bureau's adopted ("false or devoid of fact"). We failed to comment last time that the end of the Unfounded definition, that "there was not a credible basis for a possible violation of policy or procedure" will get this finding mixed up with both Exonerated and Insufficient Evidence, so at the very least that part of the definition needs to go away.

We appreciate that the Bureau created a stand-alone definition of "finding" as "a conclusion as to whether a member's conduct violated Bureau directives."

The Bureau also created clear guidelines that the Chief should not debrief officers prior to the CRC hearing appeals (Sections 7.6.1 and 8.2.1) per our suggestion. There is also a new section prohibiting the officer's supervisor from imposing discipline before submitting the document to Internal Affairs (Section 2.6) but isn't clear that they have to wait for the whole process to be completed.

We are still interested in knowing whether the issues about training, policy and supervision raised in the "Findings Cover Sheets" are publicly available (Definition). Note that section 2.4 only requires a supervisor to make a discipline recommendation on that sheet, not a finding or identification of such issues.

Nothing was done to clarify how officers with repeat violations might be treated. We noted before that the old Directive specifically said "All recent discipline is relevant, not just discipline for a specific kind of conduct."

We raised a question about the old section (8.4.2) which gave officers a right to "a bargaining unit attorney" at a Police Review Board hearing. Rather than clarify the issue, that item is now gone. (Also gone is the reference to the officer receiving the case file 14 days before a PRB hearing, which we noted is not done for the complainant.)

We also continue to wonder why there's no definition of the "Discipline Coordinator" and whether that person is the same or related to the Review Board Coordinator, the Professional Standards Division or something else.

Observations on other changed and new language include:

--The process seems as if it could speed up since the IA Captain, IPR Director and Assistant Chief now all look at the findings at the same time, rather than one at a time (Sections 3.1, 4.1 and 5.1). However, the IA Captain used to only have 14 days to turn around the file (old Section 2.1.6) but now can take as long as "practicable" (Section 3.1).

--It is made clear in the new document that the IA Captain, IPR Director and Assistant Chief all have the ability to "controvert" the supervisor's proposed findings and discipline (Sections 3.2.1, 4.1.1 and 5.1.1).

--Instructions on sending non-sustained findings to the complainant and officer have been struck (old Section 6.2), as has the requirement for IA to keep original copies of case files (old Section 7.1.2).

--A rather significant change in how a Letter of Reprimand is delivered shows up in Section 7.8. The old Directive had the officer asking for a meeting with an Assistant Chief (old Section 7.2.4), while the new one requires the supervisor to hold such a meeting with the officer. Then the officer can ask for what used to be called a "mitigation" or "due process hearing" and is now called a "pre-determination meeting" with the A/C. Officers can also ask for such a meeting with the Chief when discipline is time off or more (Section 8.5, replacing old Section 8.4.3).

--There is no reference any more to the Chief needing to consult with the Commissioner in Charge on discipline decisions (old Section 8.5.3) even though this is a crucial point of accountability: a civilian overseer of our paramilitary police.


As with other Directives in this set, the "redline" version is imperfect and still required our manual review. In addition to dozens of places where old sections were moved about and/or reworded, Policy Section 5 is shown as being integrated into Policy Section 1 and crossed out at line 5 in green. It is not clear why there are two colors or how this error occurred.

DIRECTIVE 334.00 PERFORMANCE DEFICIENCIES

In our brief comments on this Directive in May, we wondered why the Independent Police Review (IPR) or Internal Affairs (IA) would not have a larger role in looking at patterns of performance problems. The new draft seems to cut out IPR from the ability to review completed investigations (old Section 2.6.8) even though they still have to be informed the investigation is happening (Section 3.1.4) and sign off on the recommended findings and discipline (Section 5.2.2). We strongly believe IPR should also review the investigation before it moves on for findings (likely in Section 4.3).

See our comments on Directive 335.00 for our concerns about the definitions of possible findings.

We are supportive of the fact that the Bureau cut out "inaccurate statements" as an example of a performance deficiency-- this seems more like untruthfulness which is a fireable offense.

Another change about which we have no strong feelings is that Performance Deficiency Investigations can now take 70 days instead of 60 (old Section 2.6.4, new Section 4.2.2).

The package to be submitted by the RU Manager previously specified its contents (investigative report, interview recordings, transcripts and exhibits-- old Section 2.6.7) but now only asks for "development of proposed findings" (Section 5.1.1). The fuller description is much more useful.


DIRECTIVE 010.00 DIRECTIVES REVIEW AND DEVELOPMENT PROCESS

We note here that after the Bureau invited comments on this in April, the Directive was re-named from "Directives Manual." Unless there is a separate Directive which addresses the format for Bureau policies, we repeat our recommendation that all Directives, should put letters on the main sections (Definitions, Policy, Procedure), and Definitions should be numbered.

The last draft also involved not just policies and procedures, but also "rules." That term has been struck from the new version. This leads to a question of what happens if officers fail to follow Standard Operating Procedures (most of which are not made public). We repeat our recommendation here that this Directive should cause all Directives to be clear which Procedures would lead to the non-disciplinary complaint process rather than possible corrective action.

The Bureau appears to have accepted our suggestion not to mention the US DOJ Agreement as the reasons for reviewing policies (old Policy Section 3, new Policy Section 4 welcoming public input, and old section 7.1/new section 8.1.1 regarding officer acknowledgment of new Directives). As odd as it may seem coming from Portland Copwatch, we wonder why there is no longer language specifically welcoming input from Bureau members. After all, we know that roughly 66% of the Bureau's employees do not live in Portland and thus do not qualify as "community members," plus while we may disagree with their input, it could be valuable. (They are mentioned in Section 2.3, but not previously.)

We also acknowledge that the Bureau has begun, and has now memorialized in this Directive, the practice of posting incoming comments (even if de-identified by source, as we suggested). However, the comments are only being shared out at the point where public input is no longer being considered (Section 7, Executive Summary). We strongly suggest this documentation accompany the "Second Universal Review" (Section 4) to give an idea whether comments were incorporated into the revised proposed Directive, and foster ideas. Furthermore, as we have asked many times, we suggest that the First Universal Review (Section 2) include a cover letter explaining why the Bureau is reviewing the document and what possible changes are already being considered, which will prompt more meaningful input. It is also not clear that the Executive Summary (or the Second Review copy if the Bureau adopts our proposal) requires a cover memo such as the Bureau has been using to explain the changes and why they were/were not made.

The new draft's inclusion of the Second Universal Review was another suggestion we made, but we also noted various reasons to extend that time period from 15 days (Section 4.1.1) to 30 days. For one thing, the First Universal Review is less complex because no proposed changes are attached to that document. So, just to absorb the proposed changes and respond is reason enough to extend the time frame. But we also wrote that groups who only hold monthly meetings should have time to participate in the review, which a 15 day window does not allow. We listed the BHUAC, the Citizen Review Committee, the Community Oversight Advisory Board (or its replacement), the Training Advisory Council--which only meets every two months-- and community organizations in our last comments.

We noted also in April that it is not clear exactly who is reviewing the comments. The old document indicated the Strategic Services Division, the "Lead Reviewer," the City Attorney and the Bureau's "executive members" were involved in review. Now the term "Policy Development team" is used in the Definitions section and Section elsewhere, with no membership defined. (It may also be helpful to give examples of "subject matter experts.)

Now on to new observations about this draft unrelated to our previous comments:

--There is a new Section 5 on "Union review." Without getting into the long political argument on this point, we suggest you use the term "collective bargaining unit" instead of "Union." We also object to the collective bargaining units having a separate time period to comment on the Directive after the public period is over. Unless their comments are being included in the Executive Summary document (which is not clear since comments are de-identified), the bargaining units should weigh in along with everyone else. The backdoor negotiations on matters of public discussion leads to the kind of unrest that happened around the PPA contract last October.

--Old Section 7.2 giving Supervisors the responsibility to ensure officers sign the Directives has been struck. We strongly recommend re-inserting it.

--Interestingly tied to our comments attached to the last Directives, the Bureau does seem to want to post Directives all at once on the first or 15th of the month (Sections 2.1.1 and 4.1.1.1 ), but allows other timeframes for "operational needs." We reiterate here that if the Bureau believes community input is truly important, the system will be better set up for community involvement.

--Such system improvements should include both a regular timeline, a clearer listing of posted Directives (right now one must go past the Directives home page to three separate areas to see what is posted), and a means for those without access to the web to respond (such as accepting emailed comments). This should also include allowing people to use formats similar to PCW, which include comments on all Directives posted rather than forcing people to go to multiple sites to post comments in one time frame.

--Section 6.2.1 gives complete discretion on policies to the Chief, but does not mention the role of the Police Commissioner, who should ultimately be able to approve or veto Bureau Directives.

--Section 7.1.1.1 very clearly states that if there objections to the Directive posted for implementation, the Bureau will not receive them. This is also poor policy, as the discovery of flawed legal analysis (such as the "ten times 48 hour rule" that PCW and the AMA Coalition and others recently uncovered) can halt the implementation of unsound Directives. We also believe that Section 7 should call for archiving the Executive Summary so people can examine the input and the Bureau's reasoning up to and past when another revision is made. (Archiving old Directives is still wisely required in Section 10.2.)

--As a caveat to that, there is some benefit to new section 9.2 which allows the Chief to implement a policy with less than 30 days' notice if needed; we hope this will be the case with the Council's revised "new 48-hour rule" once it is finalized.

--The requirement for a "biennial" review of all policies (old Section 6.2) has been cut. PCW strongly suggests a routine review of at least the Directives with the most impact (as listed previously: force, training, mental
health, crisis intervention, accountability and community engagement). The automatic review dates should be listed as a reason for review in Section 1.2.

--That said, listing the enactment date on all Directives is crucial to be sure what is the most current policy (Section 9.1.1).

--We wonder whether County law should be added to Section 1.2.2 on legislative matters affecting policy.

--Also, Section 2.4 refers to "initial" universal review but for consistency should say "First."

One final note: The "redline" version provided by the Bureau is, again, appreciated, but certain sections which are partially or essentially included are not captured by this automated function. We have noted a few examples above where language was moved from one place to another. In addition, for instance, parts of old Section 2.2 are now in 2.1, of 2.3 are in 3.2 and 4.1, of 5.2 are in 7.1. We hope the Bureau can find a way to express these carry-overs to be more clear as to what is being changed or not; this benefits the community and the officers who have to understand what's being modified.

CONCLUSION

Because the Directive on Directives was included in this package, many of our general comments about improving the process have been made several times in this document. Especially with a new incoming administration with Chief Outlaw, we look forward to a more responsive Bureau that takes the time to listen and reach out for more community input into its policies. We note here that City Council took up a debate over Directive 1010.10 after PCW and our allies in the AMA Coalition brought to light serious concerns (which were not discussed with the community, only released quietly during the Directives review). Our activism appears to be leading to a change in policy. To whatever extent there is crossover between the "Policy Review team" and the DOJ Compliance Coordinator/Force Inspector, we hope that the Bureau's annual report will also be presented to City Council as required by the Agreement, but also as good policy.


Thank you again for the opportunity to comment
Dan Handelman, Michelle DeShazer and other members of
Portland Copwatch

homepage: homepage: http://www.portlandcopwatch.org