Is the Board of Rights system fair?
The Dorner manifesto talks about the fairness of the LAPD discipline system. The Chief said he was going to review Dorner’s case because he wants transparency. I personally received two calls from terminated officers who abhor what Dorner did but both independently stated that Dorner’s description of the discipline system resonated with them. Each said they knew exactly what he was talking about.
Apparently 40 other terminated officers feel pretty much the same way. That is the current number of terminated officers who have contacted the League and requested to be put on the Chief’s list for review of their cases for fairness. Each has a similar story of being railroaded by the system.
All this caused the deputy chief in charge of the Professional Standards Bureau to hold a press conference on Feb. 27 to correct the “misperceptions” that the media has regarding the Board of Rights system.
It didn’t seem to register with the reporters present, but his initial description of the history of the Board of Rights system was right on the money. The deputy chief explained that the Board of Rights process was created when the City of Los Angeles became tired of the rampant corruption in the 1930s. The Chief of Police at that time and his high command officers could force officers to commit acts of misconduct by holding termination over their heads. Vice, gambling and other forms of corruption thrived. When the Board of Rights system was first created, it was specifically designed to deprive the Chief of Police of the ability to terminate an officer.
The reason for this design was to protect officers from political interference. The misinformation referred to by the deputy chief was that the Board of Rights system was somehow biased or skewed against the officer. The deputy chief then went on to convince the media that the Board of Rights system was fair. This is evidenced, he said, by the fact that it is closely watched by the Inspector General and that usually the board decisions are upheld by the courts.
The Board of Rights system could be fair, but for the last few years the Department has consistently outdone itself in the attempt to completely skew the system against the officer. The Department wants to win. End of story.
The poisoned jury pool
An officer going to a Board of Rights draws four names from a pool of approximately 120 command officers. Out of the four, the officer selects two to serve as the sworn members of the board. The command officers are like the officer’s jury pool.
Chief Gates, according to his book, sometimes didn’t like the decision of the Boards of Rights, but he never interfered with the system. Chief Parks was another story. Command officers who found officers not guilty were sometimes treated to personal meetings with Parks to “explain” their decisions. One has to be cognizant of the fact that command officers’ careers are in the hands of the Chief of Police.
Chief Bratton didn’t beat around the bush. “I only send officers to Boards of Rights who should be fired,” he said publicly, and more importantly, he said this to all of his captains and above who serve on the boards. If an officer wasn’t fired by the board member, Bratton threatened to transfer the “problem” officer to that board member’s command. Let him or her deal with the problem. Chief Beck made it clear that this was also his policy.
This puts the accused officer, who has already been found guilty by the Chief of Police, in the position of trying to persuade two command officers, who owe their futures to the Chief, to tell the Chief of Police that his judgment was wrong! Not a pretty picture and a steep hill to climb. Is this fair?
Just in case the command officers don’t get it
Sometimes during the Board of Rights or the Administrative Hearing the accused officer wins a motion suppressing evidence, granting discovery or having an allegation ruled out of statute. Recently, the Department advocate has developed a new technique, a motion to reconsider. It should probably be more accurately called a notice to the Board from the Chief that they have made a mistake. The written motion, with the Chief’s name prominently displayed in the heading, explains to the Board how they have erred and asks for reconsideration. Almost always, the ruling is reversed.
On one occasion, the Board didn’t take the hint and did not reverse the ruling. The advocate took the motion up to the Chief of Police and the Board was ordered to reverse its decision. The League sued. A judge eventually ruled that this was an impermissible action by the Chief and threw out the charges against the officer. The point is that the Department will reach into the Board and fix what it considers to be an adverse ruling. Conversely, if the officer loses a motion, well, he or she is just a loser; no Chief to the rescue. Is this fair?
Interference with representation
The witnesses against and for an accused officer are often other officers. Officers are subpoenaed to testify at Boards of Rights where a member of Internal Affairs (the advocate) questions them under oath. The officers sometimes request to have representation during their testimony because it is entirely possible that they themselves are in danger of punitive action. The Department began denying League attorneys’ access to the Boards to represent these officers. One officer was not even allowed to review a video and previous interview tapes while her attorney was forced to remain outside of the boardroom. Again, the League had to file a lawsuit. Eventually, a settlement was reached allowing the attorneys back into the Boards. Again, the Department was attempting to put the officers at the maximum disadvantage. Is this fair?
Discovery not discovered
The Board of Rights manual, negotiated with the League, requires that discovery be given the officer in a timely manner and lists the items to be given. The Department has recently taken the position that this list is meant to be exclusive. In other words, if it isn’t in the list, the officer doesn’t get it. This was never the intent of the negotiations (I was there), yet this is the official position taken by Department advocates and asserted in court declarations. Again, the League had to file a lawsuit.
In a deposition, the advocate even testified under oath that if exculpatory evidence existed that was favorable to the accused officer and it was not of the type specifically listed in the manual, it would not be turned over to the officer unless the Board ordered the Department to do so. Of course, the officer would not know that it existed, so that order would be highly unlikely.
Discovery is routinely denied on the basis that if the Chief of Police didn’t look at something to make his decision of guilt, then the officer is not entitled to it. Of course, it is the evidence that the Chief didn’t know about that has the greatest likelihood to convince him that the officer is innocent. If the Chief is only shown facts that tend to show the officer is guilty, and the evidence that shows the officer is innocent is withheld and then not shared with the accused officer to be used in his/her defense, the Department will always win. Is this fair?
What to do
In the last couple of years, the League has been forced to file at least seven lawsuits against the Department based on the unfairness in the disciplinary system. (This does not include the many writs and appeals the League files with the courts trying to get Board of Rights convictions overturned.) The courts are not interested in running LAPD, so there is a disadvantage that has to be overcome from the start. There have been some successes and some failures.
What has become increasingly clear is that there is probably no way to keep the Department from constantly trying to tilt the playing field in their favor and against the officer. The only way to solve the problem may be to move the appeal of discipline outside the Department to a system such as binding arbitration, or some other system where the hearing process is independent of Department influence. Unless the much-ballyhooed “transparency” touted by the Chief of Police and the Police Commission is also applied to Department employees trying to defend themselves, there is not much other choice.
Be legally careful out there.
