Civilian Compliance & Reform Authority – Draft <- This is a vision for sustainable reform. Jo Ann’s testimony for 1 November follows:

31 October 2012

Mayor Sam Adams, City Commissioner Randy Leonard, City Commissioner Amanda Fritz, City Commissioner Dan Saltzman, City Commissioner Nick Fish

Dear Mayor, Commissioners:

The settlement agreement reached, between the City of Portland and the U.S. Department of Justice, Civil Rights Division (DoJ), to address patterns and practices of unconstitutional use of force by the Portland Police Bureau (PPB), is disappointing to the thousands of community members who believed that this process would lead to a publicly accountable police force. It is likely to disappoint anyone who has a desire to see that the culture of the PPB is sufficiently reformed so as to protect and serve our community … without breaking federal laws.

Assistant Attorney Perez declared, in the DoJ Investigative Findings Report (page 27) the current oversight process is a “Self Defeating Accountability System.” Providing PPB with 26 new staff and Independent Police Review Board (IPR) with 3 additional staff, at a cost of over $5.8 million per year, is a slap in the face to unpaid advocates for social justice who have come before City Council, demanding police reform, for more than a decade. It appears that both PPB and the IPR have been rewarded for building and maintaining an inadequate accountability system, one that fails time and time again to hold police accountable.

The proposed agreement seems at odds with the DoJ Statement of Intent (dated 12 Sep 12). Point five, referring to a Community Outreach and Advisory Board (COAB), states:

“Community participation in the oversight of this agreement will be important to its success. A community body will be adopted to assess on an ongoing basis the implementation of this agreement, make recommendations to the parties on additional actions, and actions, and advise the Chief and Mayor on strategies to improve community relations. The body will also provide the community with information on this agreement, its implementation and receive comments and concerns. Membership will be representative of many the many and diverse communities in Portland, including persons with mental illness, mental health providers, faith communities, minority, ethnic and other community organizations, and student or youth organizations.”

Ultimately, it is the public who needs to ensure the City of Portland obeys the Constitution. The settlement agreement gives lip service to community involvement by the people most impacted by police violence in our community. This agreement must be reworked to meet the above intent: to ensure their Constitutional protections, the community needs now to be given oversight responsibilities.

Public oversight of the protection of their civil rights should not be an advisory function. Nothing in this board’s title should minimize the important roles of monitoring city boards and committees as they begin to embrace constitutional safeguards protecting our city’s most vulnerable members.

The proposed Agreement should be changed to reflect:

üThe community must have oversight authority

üReplace ‘advisory’ in the title. Add ‘compliance or oversight’

üThe public must have the authority to ensure appropriate reforms are happening on the timeline laid out by the DOJ

Making former gatekeepers into reformers:

The settlement agreement calls for the Community Police Relations Committee (CPRC) of the Human Rights Commission (HRC) to become the backbone of a newly formed COAB. This is an inappropriate talent pool from which to draw for such a task.

Human Rights Commissioners hold appointments from the very body that has been found complicit in condoning unconstitutional conduct. Over the last six years, this Commission has been absent from any and all community efforts to hold police accountable for inappropriate behavior. Never has the HRC spoken on behalf of any victims of police use of force. Their silence, following the unjustified police killing of unarmed Aaron Campbell, during a ‘welfare check,’ should amply demonstrate that fundamental human rights violations are not their concern, particularly if the perpetrators of such violations are among the entities that appointed them. The HRC never supported community calls to assist, or even publicly comment on, in the DoJ investigation. Never has the HRC held hearings, to investigate whether any human rights violations occur in Portland. This body of passive observers has done little to raise awareness about human rights, let alone advocate for them. An absence of any history of soliciting broad, community participation makes them unfit to now represent the public interest. With no history of outreach or advocacy, these defenders of the status quo are ill suited to reform.

Reliance on HRC and CPRC means the agreement does not cast its net wide when proposing who should monitor the implementation of an agreement. Both the HRC and the CPRC rely on staff that derive their livelihood form the City of Portland. Theirs is a firm allegiance to the very governmental body that now stands accused of engaging in unconstitutional patterns and practices.

The CPRC is not entirely distinct from the HRC, as members of the latter also hold positions on the CPRC. The few members of the public chosen to serve on CPRC have been vetted by the PPB. This body has never connected to community efforts to reform the PPB. In attending their meetings I have witnessed police misleading members of this body: participants, filtered and screened prior to selection, have no history of pushing back for accurate information. While ‘cooperation’ has been their watchword, they follow a police agenda, rather than ascertain the aspirations of the public. This intersection of police/community relations reinforces insular City of Portland processes that allow misconduct to continue, unchecked. They have no history of outreach; have done nothing proactive to solicit community concerns. They have not held hearings on any issue sensitive to police, but which are vibrant in community debate. Public input at CPRC – in the last few minutes of the meeting, when members prepare to leave – rarely, if ever, becomes agenda items for future consideration. Turning this group into an oversight committee will do nothing to enhance public confidence. Rightly so, their mission – as these violations have occurred – was relationship-building, and absolutely not about holding police accountable for violations of the U.S. Constitution.

In order for police to engage in patterns of illegal behavior, they must do so over time and without accountability from anyone in authority intervening to interrupt and correct that behavior. Much like the police union, neither the moribund HRC nor the window-dressing of the CPRC has ever considered that PPB has engaged in misconduct. Even if populated with new members, intent on obtaining justice, these bodies have been constituted as part of an insular process the City of Portland employs to prevent public intervention in identifying or addressing police misconduct.

Ultimately, it is the people’s responsibility for protecting their civil rights. This agreement proposes an inadequate process for bringing the most motivated advocates for reform into the work. The means of electing public members to the COAB is inadequate. It is likely that the City of Portland will rely on its Office of Neighborhood Involvement (ONI) reach neighborhood coalitions (Agreement, page 51). While ONI has the ability to reach out to the grass roots, it has no history of advocating for any change in police practices. Ostensibly appeasing the concerns of property owners, ONI is primarily used by PPB as a one-way vehicle for PPB to download information about its programs. ONI has never convened the public to share their concerns about policing: ONI is another City of Portland apparatus that fails to encourage public participation that might in any way change police practices.

A remedy is weak that relies on advisory committees already established, that have been vetted by PPB, and have no history of advocating for the vulnerable populations most impacted by police violence. Relying on any of the PPB Chief’s existing advisory committees means that the pattern of allowing police to determine who they deem appropriate to receive and provide information will now extend to efforts at reform. Internal advisory mechanisms inhibit the goal of community participation, a provision that the DoJ states is important to the success of this effort.

The proposed agreement relies on those who have histories of, if not actively stymieing calls for accountability, passively engaging in the patterns and practices we seek to remedy.

The proposed Agreement should be changed to reflect:

üAdopt a process that allows the public to choose who will serve on an oversight and compliance authority

üEnsure that such an authority is not reliant on the City of Portland, or any who have been complicit allowing constitutional protections to lapse

ü The authority will raise its on resources to support its work

ü Civil authority will insulate itself from the reporting structures that have allowed these patterns and practices to resist public demands for change

üThe City of Portland shall make available to a civilian authority the data it needs to monitor compliance with this agreement

üMembers of the public, engaged as an authority in monitoring compliance and proposing new ideas, shall publicly convene monthly to review ongoing implementation and take public input, it shall report quarterly to Portland City Council on the progress or lack of progress in implementing DoJ reforms, it shall report non-compliance to the court in a timely manner and propose further remedies

Compliance Officer/Community Liaison (COCL):

The settlement agreement (page 58, paragraph 161) states, in part, “The COCL shall hold open town hall meetings on a quarterly basis where they will present their draft compliance report. The public shall have the opportunity to raise comments or concerns at the open town hall meeting via on-line and/or electronic mail submission.”

While the title implies a liaison relationship with the community, whoever holds this contract is more likely responsible for messaging from City of Portland to the community than for fostering two-way communication between the public and community-based organizations advocating changes to police policy. It appears that the public will be asked to quarterly meetings but will not discuss or deliberate while in attendance. These one-way channels are familiar; they give the appearance of community involvement while silencing community members’ voices.

A COCL position, filled through a City of Portland Request for Proposals, indicates another ‘partner’ in reform will draw a paycheck from the party now charged with violating the public’s civil rights. A liaison may be necessary, but those responsibilities should remain distinct from administering oversight. An engaged public can be relied upon to elect leadership for safeguarding constitutional protections. To know that executive leadership is in the hands of a member of the public, and not an employee of the City of Portland, would do much to build the trust that a restoration of community-based policing requires. If effective oversight is to be obtained, it must have sufficient distance from the perpetrators.

The proposed Agreement should be changed to reflect:

üAllow a community board to elect its own Chairperson

üEnsure the public of all financial means will have direct opportunity to participate in community meetings, by removing language that limits community participation to electronic means

üEnsure that the COCL is a non-voting member of the community board

Quarterly reports to community:

The proposed agreement states these reports will be produced quarterly and will be available on-line. This is inadequate. As we contemplate spending $29 million on reform over five years, it is apparent that a tiny fraction of those monies can improve public involvement, by improving communications with a public sufficiently engaged so as to request hard copies be mailed to them. Many decisions that have allowed unconstitutional patterns and practices to occur have been made without public knowledge. Reform should be no secret kept from the public.

The proposed Agreement should be changed to reflect:

üProvide hard copies of quarterly compliance reports to the public.

Missing from Settlement Agreement – General Civil Rights:

On 8 June 11, at the outset of his investigation, Ass’t. Attorney General for Civil Rights publicly responded to my question as to whether the DoJ would investigate race-based civil rights violations. He assured those present that his investigation would ‘follow the facts,’ and investigate any violation of law. For me, this is part of a long-standing pattern: governmental authorities will agree publicly and then fail to live up to their agreement.

DoJ findings, (Item 2, Community Policing, page 38) recognizes the Mayor “made clear that one of his reasons to call for [a civil rights] investigation of PPB was PPB’s relationships with communities of color.” It was, after all, the Albina Ministerial Coalition for Justice and Police Reform, exasperated by another police killing after years of seeking greater accountability, who first called for DoJ involvement.

Though the DoJ, despite collecting evidence of racial disparity in police practices, declared such civil rights violations beyond the scope of this investigation, it appears that race fell off the table when addressing the reforms needed to ensure that Portland Police are operating in a constitutional manner. DoJ findings (pgs. 38-40) outline a series of recommendations that PPB should implement to address race-based policing.

The proposed Agreement should be changed to reflect:

üFully implementing the Plan to Address Racial Profiling, made law in 2009.

üThe PPB shall conduct department-wide, intensive cultural sensitivity and competence training to include members of the community

üThe Auditor or civilian authority shall document all community contacts, including those described as ‘mere conversation,” and investigate for racial bias

üConduct community education campaigns and inform the public that filing complaints is important and tied to performance improvement

Missing from Settlement Agreement – Engaged City Council:

City Council engagement seems to be absent from this agreement. While responsibility for oversight should now be delegated to the public, the best chances for reform depend on an informed and mutually engaged City Council. It is critical that Commissioners [including the Police Commissioner and the Director of the Office of Equity and Human Rights (OEHR)] are updated at least quarterly on the implementation of any final agreement. Signatories to it, it is important that each member of city council becomes proactive, addressing in a timely manner any flaws or shortcomings of this reform effort.

The proposed Agreement should be changed to reflect:

üRequire a quarterly report to Portland City Council.

üRequire each city commissioner to assign a staff person to attend community oversight board meetings & act as a liaison for community engagement

Missing from Settlement Agreement – Training:

DoJ findings (page 38) reports that police training, particularly around crisis intervention, “as currently delivered by PPB is a police based training lacking important community collaboration,” [sic] and, “There does not appear to be good reason to deny reasonable access to a crisis intervention course to consumers, family members, advocates, or mental health workers.”

The proposed agreement is vague, concerning a directive that the PPB Training Division shall annually take input from the community into consideration. It is better that this input be as highly informed as possible.

The proposed Agreement should be changed to reflect:

üReasonable access to Police Training should be granted to the public, in a collaborative effort to improve results

I am familiar with and in firm support of comments and criticisms which I expect the Albina Ministerial Alliance, Portland Copwatch, The League of Women Voters of Portland, Disability Rights Oregon, Mental Health Association of Oregon, attorney Tom Steenson, and the ACLU will be providing to this proposed agreement.

Please find attached, Portland CCRA 20121001 Draft.pdf. I hope this proposal, for reform authority that draws strength from community involvement, will receive your attention as you pause to incorporate the above concerns. It stems from a collaborative history of the individuals and organizations that have devoted much study to community-based efforts to bring about effective police reform and improve law enforcement.

The DoJ’s 14-month investigation covered much ground. Social justice advocates should be commended for participating in an accelerated review of DoJ findings, doing in weeks what other communities are given six months to accomplish. The public has had less than a week to prepare for a hearing on 74 pages of proposed reforms. The flaws here identified need to be addressed. I urge you to take the necessary steps to finalize an agreement more acceptable to the victims of unconstitutional patterns and practices, an agreement that will more effectively bring justice where it has been absent.

Best regards,

Jo Ann Hardesty

cc Jonas Geissler, Michelle Jones, Jonathan Smith, Attorney General, Civil Rights Division, AAG Thomas Perez