From: Contra Costa Times
Thomas Peele
1/1/07
An Alameda County judge is expected to rule no later than the middle of February on whether Berkeley’s Police Review Commission can continue to hold public hearings on allegations of officer misconduct, a process that provides a rare glimpse into how the government investigates abuse accusations. The Berkeley commission and a similar body in Oakland stopped public hearings after the state Supreme Court ruled in August that officer disciplinary records are confidential, even when a government entity other than a police department possesses them.
The San Francisco and Los Angeles police departments also halted public hearings of misconduct allegations. In nearly all California cities, such investigations are conducted in private. Police personnel records are not public under state law.
The August ruling reinvigorated the Berkeley Police Association’s four-year legal effort to close the commission’s hearings to the public. In November, the association’s lawyer asked Judge Winifred Smith to rule that the Supreme Court decision closed the matter. Berkeley’s city attorney argued that because the city manager and police chief — not the commission — mete out discipline, the public hearings should continue. “They are two completely segregated systems. The commission does not have disciplinary authority,” said the city’s attorney, Manuela Albuquerque. “The process is very important to running our police department. It is a fact finder in a public setting.”
In court papers, Alison Berry Wilkinson, attorney for the police union, said the Supreme Court’s decision means the review commission’s records are subject to the “confidentiality mandates” of state law. “The reasoning extends to the misconduct investigation process at issue here,” Wilkinson wrote in court papers. “Regardless of whether the investigation is conducted by the police department or the Police Review Commission, it is being conducted by the employing agency — the city of Berkeley.”
Wilkinson also represents the Oakland Police Association in its Supreme Court appeal of two lower court rulings won by the Times that individual police salaries are public records. Oral arguments in that case are expected to be scheduled in 2007. The Supreme Court decision “clarifies and strengthens” state laws passed to protect police by making their records confidential, Wilkinson said. Berkeley’s argument that the review commission is separate from the disciplinary process “is flawed,” she said, because the chief and city manager can weigh the commission’s findings in making disciplinary decisions.
The board of directors of the California Newspaper Publishers Association has approved seeking a member of the legislature to author a bill that would make public records of misconduct allegations that are sustained, said Tom Newton, the association’s general counsel. Such a fight would be “uphill sledding,” against powerful law enforcement unions that have “gotten laws on the books that have been interpreted so narrowly by the courts,” Newton said. He declined to identify potential bill authors. “The public has an overriding interest in (access to) confirmed incidents of misconduct,” Newton said. “We hope we can convince the legislature of that.”
Berkeley’s commission has conducted open reviews of complaints for 33 years. Albuquerque said the process creates accountability for the department and the city because officers know their conduct can be publicly reviewed. “There is a constant feedback loop,” she said. A ruling that the commission cannot continue open meetings would mean that “you can’t ask any questions in public about what your police department is doing.”
A former commission member said the public should be clamoring for reform. “There has been a very real impact on public knowledge about what is going on in police departments,” said Mark Schlosberg, a former Berkeley commission member who is police practices policy director for the American Civil Liberties Union Northern California office. “How can the public otherwise have confidence?” he said. “This is about public access to information from independent investigations.”
The August Supreme Court ruling involved a San Diego County sheriff’s deputy who was fired after failing to make an arrest in a domestic violence case that involved an assault. The deputy appealed to the county Civil Service Commission, but eventually agreed to resign in exchange for the most serious charges being dropped.
The San Diego Union Tribune sought documents detailing the incident and the officer’s identity. It lost in Superior Court, but won an appeal. The Supreme Court then took the case, ruling that even though the commission did not employ the deputy, restrictions on access to records in the deputy’s personnel file extended to other government agencies, setting up the legal showdown between Berkeley and its police union.
