December 2022 Warning Bells article
The orchestration of the demise of the all-civilian Board of Rights has been in progress for some time. The chief made the plan known in a May 2020 Los Angeles Times article. He felt that he lacked power to control the department because his disciplinary decisions could be overruled by a Board of Rights. Furthermore, all-civilian panels were too lenient in his view. The Inspector General (IG) marched in lock step with the chief’s desires. An initial report analyzing Boards of Rights was filed with the Police Commission in May of 2021. A final report was filed with the Commission on 11/22/22. One finding was, of course, that all-civilian Boards were too lenient. No surprise. Using the IG’s logic and statistical analysis, one could find by comparing the vigilantes in 1860 Los Angeles (who executed suspects without trial) to trial by juries (who participated in trials and examined evidence) that juries were too “lenient” because they executed fewer suspects. Maybe the difference in the execution rate is not leniency. Maybe it is attributed to due process and justice.
A little background. Since the 1930’s, LAPD officers have been entitled to a Board of Rights as enshrined in the Los Angeles City Charter when the Department sustained misconduct charges against an officer. At first, the Board consisted of a panel of three command officers of the rank of captain or above. The hearing in front of the panel required the Department to present evidence against the officer in which the officer was entitled to representation and could put on a defense. The panel decided the guilt of the charges by a preponderance of the evidence standard. Preponderance of the evidence means more likely than not, or 50% probable plus the weight of a feather. Not a high standard.
In 1995, the Los Angeles City Charter was amended to add a civilian to the panel. The panel then was revised to two command officers and a civilian. The civilian was chosen from a pool of civilians established by the Police Commission. The pool was largely filled with attorneys and people with arbitration experience who have gone through a vetting process by the Commission.
Finally, in 2019, the Charter was amended again allowing the accused officer to have a choice between a traditional Board of Rights panel of two captains and above and one civilian, or three civilians from the Police Commission pool. The Charter change gave the City Council the ability to authorize a Board of three civilians by city administration code subject to review in two years. It is the review that is the subject of the IG report. The Department then wrote a letter to be submitted to the City Council recommending the repeal of the three-civilian option for officers.
The IG report extensively examines the BOR procedure and tips it hat to the favorable opinion of League attorneys who feel the civilians are more independent than the sworn Board members, but it falls short on addressing some important factors and is focused on showing that civilians are lenient. It fails to mention the reasons that the three-civilian option came about. Police Commissioner Bonner at the 11/22/22 meeting sounded like he was thinking about the problem from all sides when he stated that the officer’s selection of civilians might be because of a broader erosion in their trust in the system, but by the PC meeting on 12/13/22 that mode of inquiry was apparently forgotten. Instead, Commission Briggs commented that it was a very disturbing report and highlights how good intentions can go astray. Any reference to the officer’s side of the issue was forgotten. The report and Chief’s letter were unanimously approved by the Commission.
Here are the lost points that a fair determination of the issue should have considered in evaluating the three-civilian option for a Board of Rights panel. There are reasons that the all-civilian Board was established, and it was based on serious officer concerns.
The BOR was implemented in the Charter to protect honest officers from corrupt managers.
The BOR was implemented in the Charter to protect honest officers from corrupt managers. In the 1920’s and 1930’s the LAPD was a corrupt department. Prostitution and gambling operations paid for protection and some LAPD officers became bag men for organized crime. Sergeant and lieutenant positions were for sale for $500. The profits were shared by the mayor and the upper ranks of the police department. If an honest officer refused to go along with the program, false charges appeared, and the officer was terminated without recourse. These terminations solved the problem for those who were corrupt, and a warning was sent to other officers who might make waves.
Reform politicians began efforts to establish honest government and one of the changes was to force the Department to put on an evidentiary hearing when an officer was going to be disciplined. There had to be evidence of guilt, not just an official opinion of the chief. This was built into the Charter in the mid 1930’s. LAPD eventually became the least corrupt big city department in the nation.
The Christopher Commission in 1991 recommended a civilian to be on the BOR.
The Christopher Commission in 1991 recommended a civilian to be on the BOR. After the Rodney King incident in 1991, the Christopher Commission did a comprehensive examination of the Department and issued a report filled with recommendations. Civilian input and participation in the disciplinary process was deemed to be desirable. The Commission recommended that a civilian from the IG’s office be added as the third member of a BOR panel stating, “This civilian representative will bring a detached perspective to the case and force a rigorous sifting and evaluation of the evidence.” [Christopher Commission Report, page 176] The recommendation to add a civilian was later implemented from a pool chosen by the Police Commission. Civilian control of the police has always been a tenant of the liberal philosophy, so it is astounding that the Los Angeles Times and the rest of the progressive community appear to have taken the position that too many civilians involved is bad. Beating up cops takes precedent over philosophy apparently.
The 2014 Department report on officer discipline revealed how officers felt about the BOR system.
The 2014 Department report on officer discipline revealed how officers felt about the BOR system. In 2013, terminated LAPD officer Christopher Dorner went on a rampage shooting several people before finally killing himself while under siege from law enforcement officers. Dorner posted a diatribe online complaining of the biased LAPD disciplinary system. Chief Beck ordered an examination of Department personnel on the issue of how officers viewed the system. Over 500 civilians and officers were interviewed. On November 13. 2014, the Special Assistant to Constitutional Policing filed his report.
Among many other complaints, officers expressed the opinion that “people who sit on BOR hearings are beholden to the Chief of Police, which means they cannot be fair or impartial.” [Perspectives on the Disciplinary System of the LAPD, page 7]
Command staff officers owe their assignments and their next promotion to the chief of police. Finding an officer not guilty or disagreeing with the chief’s penalty recommendation requires the intestinal fortitude to tell the chief that his decision was wrong. Not all sworn board members have that kind of courage nor do the rank-and-file officers believe that they do. The civilian board members, however, are not in the chief’s chain of command. They can exercise independent judgment based on the evidence without fear of negative consequences. Disagreeing with the chief’s disciplinary decision is not “lenient,” it is due process arrived at by independent Board members resulting in justice. This report was ignored by IG in the report on civilian Board members as was any consideration of the feelings or opinions of the rank and file.
Four command officers filed separate lawsuits claiming pressure from management to rig their decisions.
Four command officers filed separate lawsuits claiming pressure from management to rig their decisions. How do we know that sworn Board members are subject to pressure from the chief of police to rubber stamp his disciplinary decisions? Four commanding officers said so in their separate lawsuits against the Department in 2014. Whether they won or lost their lawsuit is not the issue, they stated in four separately filed lawsuits that high ranking LAPD command staff communicated to them that when the chief recommended termination, it was to be followed by Board members and officers were to be terminated. Specific details were given in the September 2020, Warning Bells article and I won’t repeat them again, but it should be reviewed to see the extent of the Department’s attempt to control the Board of Rights decisions as reported by actual sworn Board members in their court documents and which were completely ignored by the IG report.
In July of 2020, the League surveyed the LAPD membership regarding morale and other issues, the chief, the mayor, and the City Council monumentally failed the rank and file.
In July of 2020, the League surveyed the LAPD membership regarding morale and other issues, the chief, the mayor, and the City Council monumentally failed the rank and file. The League received a massive response of over 40,000 comments resulting in a 1200-page report. Among the questions posed was “Do you currently feel supported by the Chief of Police?” 86.33% of the officers replied “no.” There were many comments expressing the reasons, but relevant to this article was “Several participants expressed anger over the Chief advocating to remove the Board of Rights process.” Overall dissatisfaction with the Department resulted in this comment “More than one respondent stated that due to the lack of support, they were considering retiring early and/or leaving for a different agency.” IF YOU COULD RETIRE NOW, WOULD YOU RETIRE? 90.53% replied “yes.” ARE YOU CURRENTLY THINKING OF LEAVING LAPD FOR ANOTHER AGENCY? 38.89% replied “yes.” [Nov 2020 Blue Line, pages 31-34] The current retirement/recruitment imbalance testifies to this truth. The Department is unable to replace the officers who have left or retired.
The mayor beat the chief in lack of support for the officers. The survey asked, “DO YOU CURRENTLY FEEL SUPPORTED BY THE MAYOR?” 99.10% of the officers replied “no.” Why? One officer expressed it this way, “The Mayor called the Department “killers” and was on board to defund our Department.” [Dec 2020 Blue Line, pages 30-35] Will the new mayor do any better?
The City Council fared no better than the mayor. The survey asked, “DO YOU CURRENTLY FEEL SUPPORTED BY THE CITY COUNCIL? 99.16% of the officers said “no.” [Jan 2021 Blue Line, pages 32-36]
The IG’s report and the Department letter to the City Council say nothing about the impact these recommendations to deprive officers of independent all-civilian Boards will have on the rank and file. Apparently, the impact on officer morale is unimportant. In the end, officer opinion is all that may matter to the crime problem as they decide whether it is worth the risk of getting out of their cars to do observational police work instead of driving by and waving.
Police work will generate complaints. The 2014 report on discipline found that one-third of patrol officers had a pending complaint. Officer’s believing that they will be given a fair impartial hearing by fair impartial Board members is vital.
The President’s (Obama) Task Force on 21st Century Policing, May 2015, recommends that departments should provide internal procedural justice to employees.
The President’s (Obama) Task Force on 21st Century Policing, May 2015, recommends that departments should provide internal procedural justice to employees. The Department has expended considerable time in training officers for external procedural justice and judging them through Body Worn Video (BWV) on whether they are treating citizens according to those concepts. What is too often ignored is the fact that the president’s report recommends “internal” procedural justice for officers. It says this, “Organizational culture created through employee interaction with management can be linked to officers’ interaction with citizens. When an agency creates an environment that promotes internal procedural justice, it encourages its officers to demonstrate external procedural justice. And just as employees are more likely to take direction from management when they believe management’s authority is legitimate, citizens are more likely to cooperate with the police when they believe the officers’ authority is legitimate.” [Task Force on 21st Century Policing, section 1.4, page 14] In other words, if you want officers to treat people with justice, you must treat the officers with justice. Eliminating all-civilian Boards of Rights will not convince officers that they are being treated with justice. The IG report ignores this.
Constitutional checks and balances.
Constitutional checks and balances. The founding fathers were intelligent educated men who studied history and engaged in extensive debate on what would constitute a wise and effective constitution. They were realists. They recognized human nature. They were familiar with the concept that power corrupts, and absolute power corrupts absolutely. Their genius was setting up a government that was riddled with checks and balances. The existence of the Board of Rights system is the epitome of the concept of checks and balances. The power of the chief has a check. Due process. And due process requires an independent fact finder. Sworn Board members are beholding to the chief. Civilian Board members are not. Which would you choose for a fair hearing?
The Chief should be grateful for the Board of Rights work.
The Chief should be grateful for the Board of Rights work. The IG goes into extensive rhetoric on how thorough personnel investigations are and how many levels of review they are subjected to as they travel up the administrative path to the chief. The reality is that the Chief will spend only 20-30 minutes on a case based on the recommendation of Internal Affairs. The problem is the possibility of garbage in-garbage out. The Chief will not listen to the tapes. The officer’s representative will. The Chief will not cross-examine witnesses. The officer’s representative will. The Chief will not consider other possible witnesses. The officer’s representative will. All of this will be presented to the Board over two or three days. This Board will hear evidence and arguments that the Chief never considered. If their recommendation is different than the Chief’s recommendation, they will write a reason, known as rationale, listing the evidence that they relied upon. In essence, they are telling the Chief why he made a mistake, and why his recommendation was in error. One would think that the Chief wants to be fair. If there are reasons why his decision was wrong, one would think that he would be grateful that the Board examined the evidence much more closely than he was able to do and prevented him from making a mistake. A mistake can be rectified and that means that the system is working. The Chief should not want an officer to be treated unfairly.
The Department should remember its claim of support for the rank and file.
The Department should remember its claim of support for the rank and file. This was a message to the rank and file printed in the Blue Line by the Command Officer’s Association in December of 2020. “We hear you.” It read. “We see you.” “We value you.” “We know who you are.” “We feel it too.” “We are in this together.”
Not so much, it would seem. A fair hearing with independent hearing officers is vital to officers’ morale, especially those who are working on the street.
Instead of complaining about the Board of Rights process, perhaps the chief should be examining the quality of internal affairs investigations. Lesser penalties than proposed by the chief is an indication of a substandard investigation. If there was a quality investigation addressing all the potential facts, there would be no reason for a Board to arrive at a different decision than the chief of police. If they do, it is because the Department has made a mistake, either by misreading the evidence or by failing to discover all the evidence. Improving investigations might be a more laudable goal than attacking civilian Board members.
If the Department can’t convict an officer on such a low level of proof as a preponderance of the evidence, perhaps the officer should not have had the complaint sustained in the first place. A fair trial in front of an independent all-civilian Board is not leniency. It is due process and justice. Officers deserve nothing less.
Be legally careful out there.
