August 2021 Warning Bells article

Eliminating the All-Civilian Board of Rights

The groundwork is being laid to eliminate the option of officers to have an all-civilian Board of Rights panel as passed by the voters in 2017.  The Chief does not like them, the Police Commission has their doubts, and the ACLU and Los Angeles Times are doing what ever they can to eradicate them.
An LAPD officer’s right to a Board of Rights hearing is based in the Los Angeles City Charter which was established in 1935 to guard against police corruption through the system of checks and balances.  Section 1070 says that officers may not be suspended, demoted, or removed except for “good and sufficient cause” shown upon a finding of guilt following a full, fair, and impartial hearing before a Board of Rights.  And therein lies the battle.  What is a full, fair, and impartial hearing?
The all-civilian board option was passed under Charter Amendment C in 2017.  It provided that the LA City Council could authorize officers to have that option and it could not be repealed for 2 years.  The City Council did not pass the ordinance until June 23^rd, 2019, and it only applied to discipline cases filed after that date. The section is protected for two years, which time has passed, and now it is open for repeal.  And forces are lining up to make that happen.
The “full, fair, and impartial hearing” requirement of the Charter came into play over the initial question of whether civilians should be involved in the disciplinary process after the Rodney King incident.  Paradoxically, the Christopher Commission in 1991proposed that the traditional Board of Rights panel of three command officers be modified by replacing one of the command officers with a civilian because the command officers were not tough enough on officers.  The idea was to give civilians power in the disciplinary structure, civilian control of a police force being desirable.  In 1992, Proposition F was passed and from that point on a Board consisted of two command officers and a civilian chosen from a pool established by the all-civilian Police Commission.
To everyone’s surprise, civilian Board members in a significant number of cases filed minority opinions disagreeing with the two command officers in favor of the accused officer.  Department politics did not affect the civilians.  Their promotions were not dependent on staying in favor with the chief of police and they could focus on the evidence.
“Full, fair, and impartial hearing” came front and center in 2014 when 4 LAPD command officers, in separate lawsuits, all recited in official lawsuit filing documents that they had been told to follow the chief’s recommendation of termination in Boards of Rights. Their failure to do so had resulted in negative actions against them.  The case for civilians was enhanced from the League’s point of view.  The jury, so to speak, was subject to being rigged.  The League’s answer was Board members who were independent of the chief’s political influence.
From the League’s point of view, full, fair, and impartial, meant neutral civilians.  From the City Council’s point of view, civilian control heavily involved in police discipline was attractive and many cities across the nation had civilian oversight of officer discipline.  Apparently, a marriage made in heaven.  Thus, Charter Amendment C was passed by the voters despite ACLU and Los Angeles Times opposition.
It is incredible that the ACLU is opposed to civilian control of a police department.  Their reason?  Civilians are too lenient.  Not too fair.  Not too independent.  Too lenient.  The so-called champion of constitutional due process is against independent and unbiased fact finders.  Too lenient is not a constitutional issue.  Unfair, biased, subject to external pressure, are due process issues.  According to the New York Times, George Soros contributed 50 million dollars to the ACLU to mount a political campaign across the country to change criminal justice policies.  Perhaps that includes hampering police discipline due process.
The Inspector General filed a statistical overview of the 2019-2020 Boards of Rights on May 11, 2021, at the direction of the Police Commission.  They looked at 47 Boards from June 2019 (when the all-civilian option was in place) through December of 2020.  Officers chose civilian boards 26 times and traditional boards (2 command officers and 1 civilian) 21 times.  Unsurprisingly, the IG found that traditional boards were substantially more likely than civilian boards to agree with the chief that an officer should be terminated.  (57% vs 27%) The League is not surprised.  Disagreeing with the chief can have career consequences for command officers.  Not so for civilians.  This trend existed in the opted boards also.  Traditional boards agreed with the chief’s recommendations 43% of the time while 18% of the civilian panels did so.
Wait a minute!  This means that an examination of evidence at Board’s of Rights on accused officers who the chief would terminate even when the board contains 2 command officers means that 43% of the time, the chief is wrong!  Thank God for Boards of Rights.  Take out the possibility of Department board members who might be concerned about losing promotion points and choose civilians and the chief is wrong 73% of the time.
That is a pretty miserable record.  It does not mean that Boards of Rights (civilian or traditional) are lenient, it means that the chief’s decisions to terminate are faulty when one actually looks at the evidence.  One has to understand that the chief makes his termination decision based on a paper investigation report that he reviews for less than 30 minutes.  The Board of Rights listens to actual testimony and examines each exhibit.  The chief has no time for that deep a dive into each case.  He relies on reports and advice from the Internal Affairs presenters.  The Board listens to evidence from both sides.  Boards are won by the accused officer most times by presenting evidence that was never considered or seen by the chief.  That is called due process.  The right to defend oneself in a meaningful hearing.
The chief considers this an invasion of his power to discipline and rid himself of officers he feels should be gone.  The Los Angeles Times in May of 2020 reported that the chief told them he wanted to concentrate the power to fire officers in his own hands and that board decisions were overly lenient.
The true solution is to have Internal Affairs investigations competent enough to convince Board members that the chief’s recommendation to terminate is sound.  The level of proof is minimal, a preponderance of evidence, which is defined as a 50 percent chance of being true plus the weight of a feather.  Is a requirement to prove guilt at that low standard unreasonable?
And yet, a process that LAPD officers have been participating in for over 85 years and brought into existence to protect officers from political corruption is in the process of being attacked from unholy political cooperation between a liberal newspaper, a Soros backed justice reform organization, anti-police activists, and the chief himself.
From the perspective of the chief of police, he gets more power.  What officeholder can resist that?  From the perspective of the ACLU and other anti-police groups, they already have a chief of police who they have seen take a knee to their political agenda under the control of a mayor who has referred to his officers as “killers.”  Who needs those pesky civilians who make decisions based on evidence?  Get rid of them!
Given the current anti-law enforcement atmosphere caused by the George Floyd murder in Minneapolis, due process rights have never been more important to police officers. The League will fight for the rights of LAPD officers to be treated fairly to whatever extent it takes and whatever the cost.
What we want is a chief of police who acknowledges that his decision to terminate or punish an officer may be wrong and he welcomes a careful examination of the evidence by a Board of Rights.  If after a thorough hearing, if the Board, civilian or traditional, has grounds to not agree with his recommendation, he should say “Thank you for keeping me from making a mistake.”  Justice is what is important, not power or ego.
Be legally careful out there.