Why a Civilian?
Congratulations to the Board of Directors and the MOU negotiation team for bringing in a fair contract on time. It took a lot of hard work in the current financial atmosphere to arrive at solutions that everyone could live with. The membership’s 96 percent approval rate speaks to the appreciation of the officers.
Of course, neither side gets everything that it wants. The League attempted to clarify discovery issues that have been plaguing members recently, but the Department resisted. In the end, it was agreed that the hearing officer in Administrative Appeals would be a civilian and the hearing officer would resolve discovery disputes.
The proposal for a civilian hearing officer came from the League. I cannot tell you why the Department agreed* — perhaps to save commanding officers from having to spend time on hearings, perhaps because of pressure from the Police Commission or perhaps none of the above. I can tell you why the League was in favor of a civilian.
If you have been following this column, you know that the League recently filed a lawsuit against the Department in an attempt to force the Department to treat officers more fairly in the disciplinary process. It seems that the Department feels it is necessary to block discovery, attempt to influence Boards of Rights members and hearing officers and otherwise impede an officer’s ability to defend him or herself. Complaining about these issues did no good, so a lawsuit was filed.
The MOU presented another opportunity to correct this situation. Making a civilian the hearing officer seemed to give officers a better chance for a fair hearing. In the past, it was the general opinion of police professionals that civilians did not understand the ins and outs of police work and, therefore, would not understand the issues in police discipline. Because of this, the League was not in favor of a civilian member in the Board of Rights process when it was proposed several years ago in a change to the City charter. However, experience over the years has shown that it is often the civilian who files the minority report in an officer’s favor. It turned out that the lack of experience in police work was balanced by a lack of receptiveness to Department politics, probably because the civilian did not owe future promotions to the Chief of Police. A trait prized by League representatives when selecting hearing officers is independence. After all, an accused officer is asking a Board of Rights or an Administrative Appeal hearing officer to rule that the Chief of Police was wrong in his decision to implement discipline. That is what an appeal boiled down to.
So there is the choice: experience in police matters or independence? Ideally, one finds both qualities in a single selection. That would be a captain or above who is also independent in the sense that he or she relies on the evidence and gives an officer a fair hearing with no fear of being second-guessed by persons of higher rank in the Department. There have been many who have had this independence, but without repeating the last two Warning Bells articles, the Department, through Internal Affairs, is doing everything possible to throttle that independence. So, the counter move is to take the chain of command out of the equation to the extent possible.
It is our hope that the civilian hearing officer, unencumbered by the need to worry about their next rating report from the Chief, will make recommendations based on the evidence presented. Furthermore, the Chief will be in a different position when deciding to disregard the recommendation of a civilian hearing officer, as has been routinely done in the past with lower-ranking command staff.
It is unfortunate that the League has had to explore lawsuits, changes in procedures or other methods to try to circumvent the Department’s insistence on controlling the playing field to an officer’s disadvantage. None of this would be necessary if the philosophy of Internal Affairs management matched the words on its coffee cups: “The truth of the matter.” If one has found the truth, one does not need to fear discovery or fair hearings.
The civilians will be appointed by the Police Commission. In our view, the Commission has the function of ensuring that its officers are treated fairly as much as it has the function of ensuring that the public is treated fairly. We will see if it rises to the challenge.
Be legally careful out there.
*Note: There is currently a dispute between the Department and the League as to whether downgrades were included. It will eventually go to arbitration.
