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The City of Portland, Oregon

Auditor Mary Hull Caballero

Promoting open and accountable government

Clarification for Council's questions about Citizen Review Committee

City Council considered an agenda item this week to appoint and reappoint members to the Citizen Review Committee, which is an 11-member advisory body on police accountability matters. Some Council members raised questions that were beyond the scope of the item and included misinformation. Find the audio of the April 1, 2020, Council meeting here. Item No. 247 begins at 7:14. I wrote the following to correct the record and provide context.

From: Hull Caballero, Mary
Sent: Wednesday, April 1, 2020 4:22 PM
To: Wheeler, Ted <Ted.Wheeler@portlandoregon.gov>; Commissioner Eudaly <chloe@portlandoregon.gov>; Fritz, Amanda <Amanda.Fritz@portlandoregon.gov>; Commissioner Hardesty <joann@portlandoregon.gov>
Cc: Crail, Tim <Tim.Crail@portlandoregon.gov>; Dennis, Kristin <Kristin.Dennis@portlandoregon.gov>; Edwards, Karly <Karly.Edwards@portlandoregon.gov>; Fox, Jamal <Jamal.Fox@portlandoregon.gov>; Greene, Nike <Nike.Greene@portlandoregon.gov>; Lamb, Amanda <Amanda.Lamb@portlandoregon.gov>; Runkel, Marshall <Marshall.Runkel@portlandoregon.gov>; Schmanski, Sonia <Sonia.Schmanski@portlandoregon.gov>; Caldwell, Ross <Ross.Caldwell@portlandoregon.gov>; Walton-Macaulay, Dana <Dana.Walton-Macaulay@portlandoregon.gov>; Konev, Irene <Irene.Konev@portlandoregon.gov>; Reeve, Tracy <Tracy.Reeve@portlandoregon.gov>
Subject: Follow up to your questions about the Citizen Review Committee

Mayor and Commissioners,

I am following up on some questions that came up at the Council meeting this morning related to the Citizen Review Committee. I appreciate Dana Walton-Macaulay doing her dead-level best to respond to the matters raised, but her length of service with the City is short and some of the issues were outside of the scope of the agenda item to which she was prepared to speak.

Commissioner Hardesty’s question about Committee-member viability and frustration:

The Citizen Review Committee is an advisory body. It has two primary responsibilities: to make recommendations to improve Police Bureau policy and operations and hear appeals when a party disagrees with a Commander’s findings on a misconduct investigation. The Committee’s job in an appeal is to decide if the Commander’s findings were reasonable based on the evidence and recommend a different decision be made when the Committee thinks the Commander erred.

Every entity in the City’s police accountability system makes recommendations to the Chief and Police Commissioner, who solely are authorized to decide if misconduct occurred and whether discipline will be imposed. They can and do disagree with recommendations from Commanders, the Police Review Board, Citizen Review Committee, Internal Affairs, and IPR.

Changing the Committee’s appellate standard of review to a preponderance of the evidence standard will not meet the force of the Committee members’ frustration. Although they express it in different ways, they are frustrated that those empowered to make final decisions sometimes don’t do what the Committee tells them to do. I think we can all relate to sinking time into an advisory role and then feeling disappointed when the decision-makers go in a different direction than we’d like. It is not unusual for volunteers to resign from boards for a variety of reasons, frustration with decision-makers being one of them as we’ve seen with the Public Utility Board, the Portland Committee on Community-engaged Policing, and the Community Advisory Board in the Justice Department settlement agreement.    

 If you are serious about easing the Committee’s frustration, then you should be willing to make them decision-makers instead of recommenders. To do that, you must:

  1. Change the Code to give them that authority;
  2. Get approval from the Department of Justice for the change;
  3. Negotiate the change with the police unions; and,
  4. Provide budget for additional staff support and possibly salaries for Committee  members, given the intensive training and time commitment they’d need to take on this role.

It’s my understanding each of you have been asked to do this by Committee members in some form or another, but I’m unaware of any sustained interest on your part in doing so. If I am wrong about that, I would recommend scheduling a Council Work Session to hear from all parts of the accountability system and the public before you change it. As with any system, changing one part affects the others, so you should fully understand the repercussions of policy options before you enact one.

In the meantime, we will continue working on structural and technical barriers to ease access to information for IPR and the Citizen Review Committee, because we are obligated to carry out the Code as it currently exists. I would also invite your help on some issues that reside in State law that constrain our ability to be more transparent about misconduct cases, which is among my priorities to improve the system.

Commissioner Hardesty’s question about OIR Group recommendations:

OIR Group reviews officer-involved shootings and in-custody death cases. They have not made recommendations about the Citizen Review Committee.

Commissioner Fritz’s question about legal advisors at Committee meetings:

The City Attorney’s Office advises the Citizen Review Committee. Questions related to specific appeals must be submitted to the City Attorney’s Office before the hearing to give it time to research and respond. There was a time when Deputy City Attorneys rotated into meetings, but they only advised on procedural and open meetings questions, not on specific matters related to an appeal. You will recognize the process as the same used for City Council meetings in which the City’s attorneys decline to provide legal advice in a public meeting. Most volunteer committees in the City do not have in-meeting legal advisors. Tracy Reeve discussed with me her reasoning to stop sending an attorney to Citizen Review Committee meetings, and I agreed with her decision given the workload in her office.

The Auditor’s General Counsel advises the accountability functions in the Auditor’s Office, including Independent Police Review. The General Counsel does not advise entities outside of the Auditor’s Office and defers to the City Attorney’s Office on matters of Citywide concern, such as open meetings and employment law.

While IPR Director Ross Caldwell and Deputy Director Dana Walton-Macaulay are attorneys, they do not provide legal advice to the Committee. They attend meetings to provide information to the Committee and receive input from it. Other IPR staff attend to provide administrative support. The Captain of Internal Affairs or his designee also attend the Committee’s monthly meetings to receive input on his operations.