July 2011 Warning Bells Article

Chief of Police Invades Independence of the Board of Rights Process

 Every Los Angeles police officer has the right to appeal a suspension of one day or more to a Board of Rights. Furthermore, the Chief of Police cannot terminate an officer without sending the officer to a Board of Rights, where the officer must be found guilty and the Board must recommend termination. William Bratton didn’t like it and the Police Commission doesn’t like it, but it has been that way in Los Angeles since the 1930s, and for good reason.
The history of the Charter legislation can be found in the first chapter of the Department’s Management Guide to Discipline. The bottom line is that the street cop needed protection from the politicians. It was hard to be an honest cop in those days. If a beat cop reported corruption, he found himself suddenly beset with administrative problems often resulting in termination.
The Board of Rights system was born in the storm of reform against political corruption. Voters made sweeping changes to the Charter starting in 1931. Police officers were given a substantial right to their positions. However, the Chief of Police could ignore the decision of the Board of Rights (called a Board of Inquiry at that time). Because the Chief was appointed by the Police Commission, which was appointed by the mayor, little had changed in regard to protecting officers from crooked politicians. Guess who came to the rescue?
The Management Guide to Discipline states: “In 1934, Lieutenant William H. Parker began to rewrite [Charter] Section 202. Parker was a law school graduate and former assistant to Chief James E. Davis. Parker knew the workings of city government close up. The Shaw brothers presided over a corrupt city, and Chief J. Davis was beholden to the Shaws. Mayor Shaw’s brother was controlling the vice squad and selling sergeant’s tests for $500.
Working with another lieutenant, Earl Cooke, Parker campaigned for the passage of the Charter amendment in 1935. Within two years, a reform mayor was elected and Chief J. Davis was forced to resign. Mayor Shaw became the first big-city mayor in the nation to be recalled from office, and his brother was prosecuted for corruption.”
The idea behind the Charter changes in the ’30s was simple. If you were going to punish or terminate an officer, the officer got a fair hearing where the Department had the burden of proof and the officer had a chance to defend him or herself. The hearing was a buffer between the politicians and the street cop. An officer was to be disciplined on the basis of evidence, not politics.
Did it work? Witness the political fallout from the Perez scandal that rocked Rampart Division. Chief of Police Bernard Parks’ solution was to fire every officer in Rampart CRASH. There were at least 86 Boards of Rights, the vast majority of which resulted in not-guilty verdicts. More recently, Chief Bratton announced to the Police Commission and the press that he wanted termination of at least four of the May Day 2007 Metro officers. Again, an examination of the evidence at Boards of Rights resulted in no terminations. That is the difference between examining the evidence and politics.
Inherent in the value of the Board of Rights is the independence of the panel, which consists of two command staff officers and a civilian. This independence is under assault. Chief Gates stated in his autobiography that he sometimes didn’t like the decisions made by the Boards of Rights, but he never interfered with them. Chief Parks is on record as requiring Board members who found officers not guilty in Boards to have a personal conference with him to explain why. Chief Bratton took it a step further and announced to all the staff officers that when he sent an officer to a Board of Rights, he expected termination because he only sent those to Boards who should be terminated. Furthermore, if they weren’t terminated, they would be transferred to the command of the Board member who had failed to terminate them. Let them deal with the officer, Bratton said. And yet we still had command officers who took their duty of examining the evidence seriously and would render a not-guilty verdict when they thought it was proper.
This brings me to the point of this article. Not content with the above, Internal Affairs has now gone a step further. They are reaching into the Board while it is still in progress. As has been related several times in the past, when a Board rules on a motion in favor of the officer, Internal Affairs reconvenes the Board to “reconsider” the ruling. A written argument is then submitted with Chief Beck’s name prominently on the top informing the Board that they have made a mistake and should reconsider their ruling under the attached argument. This generally has the desired effect and results in a reversal of the ruling. But sometimes it doesn’t.
A recent case, which inspired this article, went down this way. The officer’s representative argued that three out of the four counts charged against the officer were out of statute. (The result of being out of statute is that those charges cannot be considered in the penalty and should be withdrawn.) Internal Affairs argued that they were not out of statute. The Board considered the evidence and arguments from both sides and ruled that the officer’s representative was correct and sustained his motion. A few days later came the motion from Internal Affairs to “reconsider.” The written argument with Chief Beck’s name prominently on top was submitted and the Internal Affairs advocate had a deputy city attorney at his side to argue the legal points. Members of the Board listened to the arguments from both sides, then contacted their own deputy city attorney for advice. After careful reconsideration of all the arguments and consulting with their own deputy city attorney, the Board ruled that its initial ruling that the counts were out of statute was correct. The motion for reconsideration was denied.
One would think that would end it. After all, if the officer had lost the original motion, there would have been no reconsideration. The officer would have had to file a writ in superior court. Not so for Internal Affairs. Internal Affairs went to the Chief of Police. Chief Beck determined that the Board was wrong and ordered it to proceed on all four counts.
So much for the independence of Boards of Rights! The irony is that when Chief Beck was a captain, he was one of the best Board picks on the Department. He cared about cops. He took his job of looking at the evidence seriously. And he was independent. He called it like he saw it. If the evidence showed that the officer was guilty, Beck punished the officer to the extent required, including termination. If the evidence wasn’t there, he made that call regardless of the inevitable trip to Chief Parks’ office to explain why.
Charlie Beck would have been the last one to allow someone to reach into one of his Board of Rights and interfere with the process. What has changed? Where is he getting his advice?
And it is the process that we are defending, because what can happen to one can happen to anyone. This isn’t the ’30s, as people will tell you. All that corruption is gone. Maybe, but under the changes to the Charter that were implemented a few years back, the system in place is starting to look like the ’30s. The Chief of Police has no civil service protection. The Chief is beholden to the Police Commission, which is appointed by the mayor.
If the independence of the Board of Rights system is eliminated, the officer loses the protection from politicians that has been in place for over 70 years. Once the process is destroyed, all we have to do is wait for the arrival of the crooked politician, and it is 1931 all over again. The current mayor and the current Chief of Police won’t be here forever.
There are warning bells to be heard. History does repeat itself. The process must be protected. Yes, the League is likely to file yet another lawsuit on behalf of the process, just as it did over the interference with discovery and representation that was reported last month. The stakes are high. The fight must continue …
Be legally careful out there. v