January 2017 Warning Bells article

Charter change. What is it? Why did it happen? Why do we want it?

In March of this year, the public will be asked to approve a Charter change affecting discipline for LAPD officers. It addresses the makeup of the members of the Board of Rights. Currently, a Board of Rights consists of three members: two captains or above and one civilian. If this Charter change passes, an accused officer will have the option to choose three civilians for Board members, or the traditional two captains or above and one civilian. In other words, there will be an option to be judged by three civilians if you don’t trust the traditional two captains or above. Everything else in the Board of Rights system will remain the same.

Why did it happen? Morale was down and the League, based on communication with its members, believed that it had a great deal to do with the disciplinary system. So we sent out a survey asking officers of their opinions regarding the fairness of the system:

82 percent of the participants felt the system was unfair.

87 percent felt that the system showed favoritism to certain persons over others.

94 percent believed that higher ranks were treated more favorably than lower ranks.

67 percent felt that Internal Affairs investigations were unfair.

62 percent felt that Boards of Rights were unfair.

68 percent felt that the Chief of Police unfairly influenced the Board of Rights members.

Then, of course, there was the fact that a total of five captains and above who were former Board members filed separate lawsuits against the Chief of Police for retaliation they suffered when they failed to terminate officers who had been sent to Boards with recommendations from the Chief to terminate.

The League looked at discipline systems across the nation and realized that the Board of Rights system established under the L.A. Charter in 1935 is actually the best system out there— that is, if you don’t cheat. And reducing the ability to cheat is why the League is pushing for this Charter change. Captains and above owe their rank, assignment and future to the good graces of the Chief. Civilians do not. Therefore, civilians are more difficult for the Chief to influence. That is not to say that there are not captains who understand that they are to judge the facts objectively and do so because they have the ethical backbone to ignore possible career damage. But it is hard to ignore five separate lawsuits that mention retaliation for not following the Chief’s recommendations.

Even the president of the United States is on our side on this issue. The “President’s Task Force on 21st Century Policing” report expresses in one of its six pillars for law enforcement the notion that internal discipline procedures in police departments should be fair. How can you expect your officers to treat citizens fairly if the officers themselves are not treated fairly by their management, the pillar asks? Sort of a “parents who beat their children will have children who beat their children” type theory. The cycle needs to be broken.

Critics to having three civilians on the Board of Rights claim that the civilians will be more lenient than command officers. It is true that almost all minority opinions on Boards of Rights are written by civilians who recommend either not guilty or lesser penalties than the command officers. That is not because they are more lenient. It is because they are less susceptible to internal LAPD politics and sometimes refuse to go along with the political program. If someone is being lynched, the person who wants a trial is not being lenient. They are being fair. Fairness is what is being sought by the Charter amendment.

The beauty of the Charter change is that it gives the accused officer the choice of which Board configuration will conduct the hearing. Some officers may fear that civilians do not truly understand the job of a police officer. They can choose to have the traditional Board of Rights, two captains or above and one civilian. Other officers may feel that the Chief will try to influence the Board against them because of previous clashes with management. They can choose to have three civilians.

The civilians will come from a pool that has been established by the Police Commission. They are mostly lawyers and arbitrators. What happens if the pool is packed with anti-police types in the future? No problem. Choose the traditional configuration. Officers are never required to pick three civilians if they do not want to.

Similarly, if the Department becomes more and more political, an officer is never forced to pick a Board that has two captains or above in its composition. Maybe this will move both commanding officers and civilians to be more fair to preserve their place in the discipline process. Or maybe future Chiefs will insist that their commanding officers be objective and never retaliate against them for perceived wrong adjudications.

Why do we want it? No matter which way the discipline system drifts, it gives an officer a countermove that will help preserve the fairness that the Charter demands. Section 1070(a) of the Los Angeles City Charter lays down the rule that should permeate the entire system. It mandates a “full, fair, and impartial hearing.” Those are words to live by.

As always, the League is reacting to what the Department does. The system has been rigged, and trying to correct this is why the League filed a lawsuit and promoted the Charter change. The Charter’s Board of Rights system is the best system in the nation; that is, if it was allowed to function as it was intended to function. The League does not want to lose the Board of Rights system, only to protect it from those who would manipulate it.

It will ultimately be determined by the voters, but we owe Councilmember Herb Wesson and Mayor Eric Garcetti gratitude for their assistance and support.

Be legally careful out there.

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