January 2019 Warning Bells article

Giving credit when credit is due

Readers of this column probably know that I am not often complimentary on the actions of LAPD management. This is partly because, as the title of this column states, I am usually warning officers about how to avoid negative contact with the disciplinary system and sidestep career damage. However, fairness dictates that when management does perform admirably, it should be acknowledged, no matter how many
therapy sessions I have to attend to recover (just kidding). Thus, the tale of
the 13 proposals.

Chief Beck, prior to retiring, contacted League President Craig Lally and asked if there was anything he could do for the troops on his way out the door. “You bet!” Craig replied, and we came up with 13 requests of things that were fixable, in our view, that we believed the Chief could quickly correct.

When presented with the list (which Chief Beck referred to as a “demand letter,” humorously, I think), the Chief said he would look into them. A couple of months later, I bumped into the Chief at the Academy and asked him how the review of the 13 requests was going. “They look reasonable,” he said, “but I am going to pass the list off to the new Chief and let him make the decisions. He should get the credit if any are implemented.”

The more cynical among us may have looked at this as the death knell of the list. Not so. Shortly after Chief Moore was sworn in, he arranged for a meeting with the League to address the list. We met with him and Commander Palazzolo of the Employee Relations Group, and went over each request.

It was a frank discussion from both sides. Here are the results.
Request No. 1: Implement an “After a Use of Force School.” It is apparent to the League (and to the Department) that the high numbers of Administrative Disapprovals that are issued for uses of force mean that training is needed. The League has a Basic Rep School, an Advanced Rep School, and has been proposing an After the Use of Force School for a couple of years. The gist of the school would be to prepare officers for what happens after the use of force occurs. Roll Out attorneys, DAs, FID, IG and others would do the training at the one-day school to educate officers on the process after the use of force and how to respond. The Chief said, “Do it.” We are in the process of setting it up.
Request No. 2: Blur officers’ faces in video releases. Our fear is that gang
members are going to use the officers’ faces for retaliation, or the media will show the officer’s faces in controversial uses of force. The blurring of an officer’s face has no impact on the transparency of the use of force. The former president of the Police Commission, Matt Johnson, refused our request. The Chief said he is not opposed to it, but it is a Police Commission decision that he has no power over. We would have to persuade them.
Request No. 3: Rescind Special Order No. 47. In 2009, the Department issued SO 47, which changed the criteria for downgrades. Formerly, a Notice to Correct was required to notify an officer of deficiencies and give him/her a chance to improve before the downgrade was implemented. SO 47 deleted that requirement. This allowed a commanding officer to immediately downgrade a person virtually on a whim. The League sued. We won, partially. The court held that officers promoted before SO 47 were entitled to the benefits of the previous protocol. That resulted in two downgrade protocols: one for officers promoted prior to October 2009 and one for officers promoted after 2009. Commander Palazzolo stated that ERG requires a paper trail of warnings before they will approve a downgrade similar to the prior protocol and believes that giving an officer a notice of his or her defects is mandatory on commanding officers. (There is an exception under both protocols for downgrading an officer if there is an act of misconduct that renders the officer incapable of remaining in his or her position.) The Chief said he agrees with the ERG requirement for a paper trail and does not see a need to formally change the protocol since it is effectively working. We checked with the Officer Representation Section (ORS) and they confirmed that they do not have any cases where a warning paper trail did not exist, although officers with serious misconduct allegations had been downgraded under the exception rule that exists via both protocols.

Request No. 4: Accept Hearing Officer rulings. Administrative Appeals
are only advisory on the Chief of Police. That means an officer can win (get a lesser penalty) at the hearing level and the Chief can accept or reject the hearing officer’s finding. Several years ago, we did a study and it turned out that 87 percent of the hearing officer recommendations for a lesser penalty were overturned by the Chief. We complained, and the ratio eventually dropped to 70 percent being overturned. This effectively makes Administrative Appeals worthless. Commander Palazzolo replied that the recent statistics were now much lower. Chief Moore stated that he thought
officers should have a valid appeal. We contacted ORS. Since Chief Moore has become Chief, three cases have come before him where the hearing officer lowered the officer’s penalty. Chief Moore accepted all three of the rulings. So far, he is batting 100 percent in recognizing the decision of the hearing officer.
Request No. 5: Change mandatory personnel complaints about out-of-policy- pursuits. There is a Manual section requiring that a formal personnel complaint is taken if there is an out of policy pursuit. Conversely, an out of policy use of force does not have this requirement. It can be adjudicated as “training,” with no personnel complaint. Why can’t a pursuit have the same rule? Chief Moore agrees. The Manual section will be changed.
Request No. 6: Appeals for out of policy pursuits. If you get an out of
policy pursuit with a penalty such as “actions could be different,” you do not have an appeal. The out of policy classification cannot be challenged. Chief Moore thinks that an officer should have an appeal. As of now, officers can request an Administrative Hearing for out of policy pursuits where there is no penalty other than the classification.
Request No. 7: Allow ORS to attend Administrative Appeal Chief briefings. After an Administrative Appeal, the Chief of Police is briefed by IA or ERG on the hearing officer’s recommendation. Based on this briefing, the Chief decides whether to uphold the hearing officer’s recommendation or overrule it. ORS does not attend this briefing. ORS feels that they should be present to give the officer’s side of the story, especially when the hearing officer has ruled in favor of the officer. It seems unfair to let only the prosecutor of the case make the presentation outside the presence of the defense. Chief Moore agrees. As of now, ORS can be present at the Chief’s briefing.
Request No. 8: Skelly responses should result in an answer. Most of the time, an officer submits a Skelly Response and never receives any information on whether it was considered, or if it was, why it was not persuasive. It would show officers that Skelly Responses are actually read and considered if there was a response to the Skelly. It would also assist in the determination of timelines for appeal. Chief Moore agrees that there should be a response and it should be dear when the 20 days to appeal begins. Internal Affairs will do so.
Request No. 9: Officers should be loaned to ORS. ORS is swamped with
appeals, interviews and the ever-increasing time spent on rollouts and
their aftermath (largely because of DICVS/BWV). There should be a loan
program. This would not only provide assistance to a busy unit, but also give ORS a chance to look at people with an eye towards finding talent to fill spots when they become vacant. Chief Moore says “no.” There are not enough officers in the field. Specialized units are being harvested for people to provide patrol coverage, and officers cannot be spared.
Request No. 10: Revoke the Rule that only command staff can testify
at Administrative Appeals.
Command staff officers from Training Division are currently the only individuals who are allowed to testify at Administrative Appeals on uses of force. The former rule was that those who are the training officers could testify as to training, but not as to an opinion whether the policy was violated. That rule was appropriate
because it should be the Hearing Officer who decides whether the policy was violated, since that is the object of the hearing. Command staff officers, as a rule, do not do the training. The issue usually is “how was the officer trained?” This can only be answered by those who do the training. Chief Moore agrees that training officers should be allowed to testify. He wants the commanding officer to be present, however. The rule is revoked.
Request No. 11: Civilian hearing officers for all Administrative Appeals. Currently, downgrades are heard by captains and above, and all other hearings are heard by civilian hearing officers. Civilians should be hearing officers for all Administrative Appeals. This would give the Administrative Appeal hearings greater authenticity in the minds of officers
because the hearing officer is not in the Department’s chain of command. It
would also free up command officers to attend to their other many duties. Chief Moore disagrees. He wants the hearings conducted by command staff because they understand the issues in downgrades. The League may address this in the next MOU.
Request No. 12: Stop IA from submitting discipline cases to the DA when a criminal filing is dearly not going to happen. The new DA Brady/ORWITS policy now adds filing requests to its Brady/ORWITS database for sharing with defense attorneys. Internal Affairs routinely run investigations over to the DA to get CYA rejects on criminal allegations even when it is a foregone conclusion that there will be no filing. Under the new DA policy, this now adds an officer’s name to the ORWITS database as presented for a filing. Internal Affairs should recognize this and only take cases over to the District Attorney when there is a reasonable chance that there would be a filing of criminal charges. Chief Moore agrees. IA will stop taking cases over for reject unless there is a possibility that there may be a filing, but, the Chief adds, IA should take care that it does not look like the Department is hiding anything.
Request No. 13: Adopt a policy that requires an officer’s permission for an officer’s BWV being used at roll call for training. Officers should not be embarrassed or held up to spectacle in front of their peers without their permission. Chief Moore agrees. Permission will be sought prior to use.

Conclusion: Did we get everything we wanted? Of course not, but we did get a dialogue on every issue that we brought up. Both Chief Moore and Commander Palazzolo listened to our concerns and had rational reasons (from their point of view) for responding to our concerns. I have been independent counsel for the Los Angeles Police Protective League for 23 years and an officer for 25 years before that, and I can say that I have never seen communication better between the League and command staff than it is at present. This is a good way to start the new year. May it continue.

Now, it is time for my therapy.

Be legally careful out there.

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