If the allegations are found true, all of the PAB's misconduct findings to date could be voided, the police union has said.
From: Berkeley Scanner
By: Emilie Raguso, 12/05/2022
More than two years after its approval by voters, the Berkeley Police Accountability Board is facing its latest challenge.
Last week, the state's Public Employment Relations Board (PERB) — which oversees labor practices — filed a complaint against Berkeley's Police Accountability Board (PAB) alleging a series of unfair labor practices.
If those allegations are ultimately found true, all of the PAB's misconduct findings to date could be voided, the union has said.
A "fairly arduous transition"
The Berkeley Police Accountability Board has struggled to gain momentum since its formation in July 2021.
Now, two of its nine members have left or are leaving for higher-profile public oversight positions, and a third is poised to do the same.
A fourth member may be replaced due to new leadership related to the November City Council election.
Board staffing has also been in flux: The PAB's former director and sole investigator retired earlier this year. They had both been with the city for more than a decade as part of the Berkeley Police Review Commission, which PAB replaced.
Stability may be in sight, with new leadership now at the helm. A new director was hired in October. And the board recently put forward a proposal for its permanent operating regulations.
But the adoption of those rules by the Berkeley City Council could easily be months away, if not much longer.
And that's not all. Since its launch, the PAB has clashed repeatedly with the city attorney's office — and sometimes the City Council — over a range of thorny legal issues related to the scope of the board's authority, such as whether it can hire its own attorney or launch its own investigations.
Many of those issues are still being worked out.
During her retirement speech in July, the former PAB director said she was proud of the board's work but also felt "a little bit disappointed that it’s been a rougher start than I anticipated. But I guess those are the growing pains of a new agency."
More recently, in a meeting just before Thanksgiving, one outgoing board member described the shift from the PRC to the PAB as a "fairly arduous transition."
Conflict began with dispute over interim rules
PERB's role is to review those claims and decide whether they appear to violate California labor laws.
If so, PERB files its own complaint — which it did last week. That kicks off a process of review in which the allegations would either be upheld or dismissed.
The issues outlined in the PERB complaint date back to 2021 when the Berkeley Police Accountability Board was formed.
One of the PAB's first tasks was to put forward interim regulations about how it would carry out its work. Many of the rules came from old PRC procedures, while others were new.
When 85% of the voters approved Measure II in 2020 as a charter amendment, the vision was a stronger, modern police oversight board with broader investigatory powers and the authority to recommend discipline in the event of police misconduct.
The interim rules attempted to incorporate the new powers. Early on, however, it became clear that the charter language left many questions unanswered.
At times, board members disagreed with each other over how to interpret charter sections. The city attorney's office and the police union had their own takes.
The City Council ultimately tweaked the PAB's interim rules and adopted them in October 2021. That allowed the PAB to hold disciplinary hearings about police misconduct allegations.
The Berkeley police union began raising questions about the board's process in July 2021.
Starting that year, the union said a number of the PAB's proposed interim rules triggered a legal requirement for labor negotiations.
The police union said the city needed to go through a labor practice called "meet and confer" before the interim rules could be adopted.
As months went by, the police union repeatedly asked the city to meet and confer about several changes proposed by the PAB: the expansion of who could file a complaint; the extension of the time allowed to file a complaint; and a broadening of who could question officers and attend misconduct hearings.
The city's position was essentially that it did not need to meet and confer with the Berkeley police union because that had happened before the charter amendment's adoption.
(An attorney from the city attorney's office did tell the Police Accountability Board in late July, however, that meet and confer would be required before adoption of the permanent rules — which raises a question as to why that was not the case with the interim rules.)
In the summer of 2021, an informal meet and confer process began, according to the union, but the city "never scheduled formal meet and confer meetings." The union ultimately filed its PERB complaint in March of this year.
PERB: Berkeley "failed and refused" to meet and confer
Last week, PERB filed its own complaint and delivered it to the Berkeley police union's attorney — Rains Lucia Stern St. Phalle & Silver, PC — and Renne Public Law Group, the San Francisco-based law firm representing the city.
The Nov. 28 PERB filing itself is a minor victory for the Berkeley police union, which has faced its own struggles of late.
The PERB filing describes three unfair labor practice allegations related to Berkeley Police Accountability Board: that the city "failed and refused" to meet and confer with the police union; that this interfered with the union's right to represent officers; and that it also interfered with officers' rights to be represented by the union.
As described by the PERB filing, the allegations related to two areas of "conduct."
The first was the October 2021 adoption by the City Council of the interim PAB regulations.
The second was that, beginning in January, according to the PERB filing, members of the Police Accountability Board began reviewing officer body-camera footage "in the absence of an initial complaint of misconduct from a member of the public."
That highlighted two potential issues: There are rules about when and how evidence such as bodycam footage can be reviewed.
And the police union has said, under the charter, that the Police Accountability Board does not have the power to initiate its own misconduct complaints.
(In July, the city attorney's office also advised the board that it did not have that authority under the charter.)
The PERB filing alleges that both areas of conduct took place without the required legal notice to the Berkeley Police Association and without the opportunity to meet and confer.
PERB settlement conference comes next
The city does not comment on pending litigation.
In a May response to the union's PERB filing, however, the city argued that the union's claims were meritless.
The city also said it had met and conferred with the police union in "multiple" processes; that the regulations "do not generate a significant adverse impact" on working conditions; and also that there had been an "urgent need" to adopt the interim regulations because of state time limits related to the processing of police misconduct complaints.
The city now has 20 days to respond to the PERB complaint. A hearing will follow, likely in the first quarter of 2023, where the parties could potentially reach a settlement.
If they can't, PERB would schedule a formal hearing, similar to a court trial, before an administrative law judge.
After the hearing, the judge would issue a proposed decision, which either party would have 20 days to appeal.
According to the union, sustained unfair practice findings could void PAB misconduct decisions to date.
The union has also asked PERB to issue a "cease and desist" order related to the interim regulations until the meet and confer process can happen, among other remedies.
Because of all of the issues related to the interim regulations, the Berkeley Police Association and the Police Accountability Board have been at odds from the start.
While members of the police department attend PAB meetings and at times make presentations in their official capacity, police union members (acting in that capacity) do not.
Most meetings have had a police union member in attendance to witness the proceedings, but officers have not appeared on camera or participated in the discussion.
The union has previously said that this is due to the ongoing legal issues that need to be hammered out. The union did regularly participate in PRC meetings under the old system.
In her annual report, filed over the summer, former PAB Director Kathy Lee wrote that, while PAB staff and the police union had "sustained a mutually respectful relationship," that had not been true for the union and the board.
"Unfortunately, the Board and the police union were not able to establish a positive working relationship," she wrote. "The union's filing of an unfair labor practice charge with the Public Employment Relations Board … signaled the depth of the union's discontent."
Board Member: "We get bypassed"
The union isn't the only group in Berkeley that's had friction with the PAB.
"The relationship of the Board and the City Council was also put to the test on a couple of occasions," Lee wrote in the annual report.
She did not elaborate on the subject.
But PAB members have repeatedly expressed deep frustration about their lack of input into police-related decisions at City Hall.
PAB Member Deborah Levine summed up that sentiment at a meeting in late September, saying: "We get bypassed."
Since the board's inception, members regularly said they should have had more input into issues like the selection of the city's new police chief as well as the hiring of the PAB director.
And they have been irked when City Council members have brought policing items forward to council without flagging the board or seeking feedback from it.
In one of the more heated public exchanges between a PAB member and the City Council, PAB Vice-Chair Nathan Mizell confronted officials during a Zoom meeting in July shortly before council voted to change a BPD policy against the recommendation of the PAB.
"I hope you really seriously consider what the role of the PAB is in this city — because it’s increasingly looking like a joke to me. And that’s a very sad thing for me to say," Mizell told officials. "It truly is insulting."
Mayor Jesse Arreguín then took a moment to respond to Mizell's remarks, which is not common practice during public comment.
"The council appoints the Police Accountability Board. And they are advisory to the department and the council," the mayor said. "We are the elected representatives of the people of Berkeley. We ultimately set policy for this city."
He went on to say that PAB has an important role in Berkeley and that council appreciates and respects its work. But that doesn't mean they'll always agree.
"They gave us their opinion," Arreguín said. "We considered their opinion. We are making a different decision."
Just before Thanksgiving, the Police Accountability Board took a significant step toward establishing itself and its work going forward.
The board approved a draft of its permanent regulations, which now goes to the city attorney's office for review and would ultimately be ratified by the City Council.
Discussion about what will go into the permanent regulations has been going on for more than a year.
Progress has been slow, in no small part, because the city attorney's office has needed to weigh in on several substantive issues.
And that process has been marked by delays and conflicting reports.
Deputy City Attorney James Chang told the board in mid-July that his office would provide written legal advice about those matters "in a publicly accessible and open format."
The next week, he said the advice would come in a confidential memo. In subsequent meetings, that position flip-flopped, although ultimately the city held that the advisory memo was confidential.
One of the most substantive issues the board is still trying to hash out, pending city attorney advice, is whether it can launch fact-finding investigations.
That's particularly critical because the board has already done so at least twice.
The charter's focus is on misconduct complaints and does not specifically address fact-finding investigations.
In July, staff said it had followed misconduct complaint procedures for the "fact-finding investigations" because no other process exists.
Deputy City Attorney Chang informed the board in July that it did not have the authority to launch misconduct complaints under the charter.
Board members pushed back and said they believe the board should have a legal way to request fact-finding investigations, which would not in themselves lead to discipline.
Short of a charter amendment, which could be a tough sell, the city charter gives the City Council the authority to adopt ordinances to help the PAB do its work.
The city attorney's office said it would analyze the issue as part of the advisory memo.
Chang promised the board the memo would be provided in August or, at worst, before the PAB's September meeting. That didn't happen.
As recently as mid-October, PAB staff said during a public meeting that the memo had still not come in.
"We do need to get the answer from the city attorney’s office so we can decide which way we’re going," the PAB investigator told the board during an update about open misconduct complaints.
"These cases are going to more or less just die on our watch," Mizell told her. "I think that’s going to affect public confidence if we don't clean up that issue quickly."
Questions about legal authority
There have been a number of strained conversations with the city attorney's office during PAB meetings dating back to 2021.
In the early days, PAB members pushed hard for the board to have the ability to seek its own legal counsel, in the case that it disagreed with the advice of the city attorney's office or just wanted another view, for example.
The charter says only the city attorney's office can declare a conflict and allow for outside counsel.
The board has asked for closed-session meetings to discuss certain issues, which the city attorney's office has said generally are not possible under the Brown Act.
In a meeting in September, which started 45 minutes late due to a Zoom access issue, the city attorney's office came onto the meeting to tell the board it should cancel the session in case of a potential Brown Act violation.
The ensuing discussion was hampered by confidentiality concerns raised by the city attorney's office: A staff attorney initially said she could not speak openly about why the meeting should be canceled due to attorney-client privilege.
The board ultimately decided to proceed with its meeting against the advice of the city attorney's office.
Board frustration has been palpable in many of the meetings.
But the recent vote on the draft permanent regulations, just before Thanksgiving, offered a moment of relief.
"Can I just say, That’s one year and a half," remarked Board Member Kitty Calavita after the vote.
"Finally!" said Board Member Julie Leftwich.
But, even once the new rules are in place — which, again, is pending legal review, labor negotiations and City Council adoption — it won't clarify the status of any misconduct decisions made under the existing interim regulations.
That remains to be seen.
And the board cannot hold misconduct hearings if regulations of some kind are not in place. Meanwhile, the clock is ticking.
Despite all the struggles, former PAB Director Kathy Lee tried to leave the board with a message of hope on the night of her final meeting in late July.
That night, she encouraged the board and the police union to find ways to work together.
And she hearkened back to the early days of police oversight in Berkeley, when the Police Review Commission was first approved.
"In 1973, after the PRC ordinance was passed, it immediately went to court, and parts of it were struck down. So, it’s not quite as bad," Lee said. "We’re not in quite as bad a situation this time around, right? Could be worse. Look at the bright side."