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HomeMy WebLinkAboutItem 22 - Police Review Commission Draft Ordinance Discussion City Manager Office www.santa-ana.org/city-managers-office Item # 22 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report October 18, 2022 TOPIC: Police Review Commission Draft Ordinance Discussion AGENDA TITLE: Discuss Draft Ordinance Establishing a Police Oversight Commission and Provide Direction to Staff RECOMMENDED ACTION Discuss a draft ordinance establishing a police oversight commission and provide direction to staff. DISCUSSION Timeline Below is a timeline of activities associated with recent discussions about police oversight by members of the City Council and Police Oversight Ad Hoc Committee: June 16, 2020 •Mayor Sarmiento, Mayor Pro Tem Bacerra, and Councilmember Penaloza add a councilmember requested item to direct staff to research police oversight and return to the City Council with an informational report. September 15, 2020 •Staff presents an informational report to the City Council relating to police oversight. Topics include history of police oversight, overview of models, subpoena authority, and the Santa Ana Police Department (SAPD)’s complaint process for allegations of police officer misconduct. December 15, 2020 •Staff presents an informational report (topics include more details about subpoena authority, comparative analysis of California cities with police oversight, and community feedback survey results). September 7, 2021 •Staff presents an informational report (topics include analysis of Auditor/Monitor and Investigation-Focused models, examination of Berkeley, Oakland, Riverside, and Anaheim police oversight mechanisms, and eligibility criteria to serve on a police oversight board/commission). Police Review Commission Draft Ordinance Discussion October 18, 2022 Page 2 3 0 1 9 October 5, 2021 •Mayor Sarmiento appoints Mayor Pro Tem Bacerra, Councilmember Hernandez, and Councilmember Lopez to the Police Oversight Ad Hoc Committee. November 2021 - June 2022 •The Police Oversight Ad Hoc Committee meets eight times to study police oversight in detail and return to the City Council within one year with a recommendation. The Ad Hoc Committee works on a draft ordinance to establish a police oversight commission. July 29, 2022 •The City Council holds a work study session and directs the City Attorney to prepare an ordinance establishing a police oversight commission. Draft Ordinance For discussion only, the City Attorney has prepared a draft ordinance (Exhibit 1) establishing a police oversight commission. The origin of the ordinance is the working draft ordinance by the Police Oversight Ad Hoc Committee and staff. Below is a summary of the provisions of the ordinance: •Establishes a Police Oversight Commission with an independent Oversight Director to assist in reviewing the police complaint process and provide a forum to review, evaluate, and make recommendations about police and public safety. •Proposes a police oversight model that is a hybrid model consisting of elements of both the Auditor/Monitor and Investigation-Focused models. •Consists of seven commissioners appointed by the City Council. •Requires that each commissioner do the following: o Take an oath and execute a confidentiality agreement. o Participate in a ride-along. o Receive training. •Requires that the Commission meet within 30 days of all commissioners being appointed. •Provides that the City Manager recommend a budget for the Commission as part of the annual budget process. •Rules and records are to be developed by the Commission, in consultation with the Independent Oversight Director and City Manager. Next Steps At this time, staff seeks direction from the City Council relating to the draft ordinance. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. Police Review Commission Draft Ordinance Discussion October 18, 2022 Page 3 3 0 1 9 EXHIBIT(S) 1. Draft Ordinance (for discussion only) Submitted By: Kristine Ridge, City Manager Approved By: Kristine Ridge, City Manager 55394.00000\40763936.1 ORDINANCE NO. ___ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING ARTICLE IV OF CHAPTER 2 OF THE SANTA ANA MUNICIPAL CODE TO DELETE DIVISION 11 AND REPLACE IT WITH A NEW DIVISION 11 FOR THE ESTABLISHMENT OF A POLICE OVERSIGHT COMMISSION RECITALS A. The residents of the City of Santa Ana are concerned about public safety and have expressed their concern through various means of civil engagement, including participation in community forums on civilian oversight and widespread protests in 2020 as part of the national movement for racial justice and police accountability. B. There have been publicized allegations of excessive force, unnecessary use of force, abuse of authority, and bribery committed by Santa Ana Police Officers which erodes public trust in law enforcement and the community, the Police Department and the City Council are committed to working together to build trust and improve public safety. C. The City of Santa Ana has settled numerous lawsuits concerning allegations against police officers and the Santa Ana Police Department (Department or Police Department) and the settlements are reported to have cost the City an estimated $24 million and the City Council is committed to exploring ways to reduce liability through improvements in police operations. D. The establishment of the Santa Ana Police Oversight Commission will support democratic governance and will lead to an even more professional, well-managed, ethical, and highly functioning Police Department. E. Santa Ana residents and the City Council desire a highly resourced and effective Oversight Commission to improve law enforcement operations and build community trust. F. The Santa Ana City Council is committed to providing the resources needed to properly investigate allegations of abusive police practices, police misconduct, officer-involved shootings, and other serious uses of force and thereby determines it is necessary to ensure the people who conduct investigations have the requisite expertise, establish the credibility of the investigations, and inspire the community’s confidence in their quality and independence. G. Pursuant to the City of Santa Ana City Charter Section 700, the City Council may provide for the organization, conduct, and operation of offices, departments, and other agencies set forth in the Charter and may provide for the creation of additional departments, divisions, offices, and agencies and for their alteration or abolition, for their assignment and reassignment to departments, and for the number, titles, qualifications, powers, duties, and compensation of all officers and employees. 55394.00000\40763936.1 H. Pursuant to City Charter Section 700, the City Council by ordinance may assign additional functions or duties to offices, departments, or other agencies or create additional offices or departments. I. Pursuant to City Charter Section 900 the City Council may establish appointive boards and commissions by ordinance and shall specify in such ordinance the powers and duties of the boards and commissions. THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Article IV of Chapter 2 of the Santa Ana Municipal Code is hereby amended by deleting the existing Division 11 in its entirely and replacing it to read as follows: : CHAPTER 2 ARTICLE IV DIVISION 11 – POLICE OVERSIGHT COMMISSION 2-616. Establishment and Purpose. There is hereby established a Police Oversight Commission (hereinafter referred to as the “Commission”). The purpose of the Commission shall be to improve transparency, increase the accountability of and public confidence in the Santa Ana Police Department, provide for an Independent Oversight Director to assist in reviewing the police complaint process and provide a forum to review and evaluate and make recommendations about police and public safety. 2-617. Police Oversight Commission Membership and Term The Commission shall consist of seven (7) members to be appointed by the city council from the residents of the city. The city council shall appoint members who are fair and impartial and represent diverse social, economic and political interests. The city council shall consider the career and life experiences of Commission applicants and appoint people whose experiences will most benefit the Commission’s ability to carry out its duties and responsibilities and build trust with the community. The City Clerk shall prepare application forms requiring applicants to provide information demonstrating that they meet qualification requirements set forth in Section 2-618. 55394.00000\40763936.1 2-618. Qualifications of Commissioners Qualifications of Commissioners. (a) All members of the Commission shall reside in the City of Santa Ana. (b) Elected or appointed officers and employees serving the City shall not be eligible for appointment to the Commission. (c) Any person who is an employee of any federal, state, county or city governmental entity or agency or any member of the employee’s immediate family shall not be eligible for appointment to the Commission unless at least five (5) years has passed from the date of their separation from the governmental entity with which they were previously employed. “Immediate family” as used herein shall be defined as the spouse, registered domestic partner, or dependent children of the government employee. This prohibition excludes any person who is an employee of any college or university, (member of academia) and any person employed by a non-profit organization. (d) Practicing attorneys who handle, or are members of firms or entities that currently handle, criminal or civil matters involving the Santa Ana Police Department are ineligible to serve on the Commission. Sec. 2-618. – Commissioner confidentiality and training (a) Prior to attending his or her first Commission meeting, each Commissioner shall take an oath and execute a confidentiality agreement stating that they will not divulge confidential information, including identities of witnesses and contents of confidential testimony and documents, either during their term of office or thereafter to ensure that private personnel information and other information subject to state law protections is not released or shared (b) No later than 90 days after appointment, each member shall: 1. Participate in a ride-along with the Santa Ana Police Department and every six (6) months thereafter; and 2. Receive training in relevant subject matters, including but not limited to the police department’s operations, policies, practices, procedures related to: internal affairs investigations, authorized uses of force including the use of deadly force, control devices and techniques, uses of conducted energy devices, handcuffing and restraints, detention and arrest of persons, search and seizure of persons and property, and vehicle pursuits well as the duties, responsibilities, procedures, and requirements associated with all ranks and assignments facilitated by the [Independent Inspector/Director 3. All training shall be predominantly obtained from independent, third-party 55394.00000\40763936.1 bodies or institutions that have experience with internal affairs of police departments and civilian review investigations and audits. 4. Attend training sessions sponsored by the National Association for Civilian Oversight of Law Enforcement or similar entities, or through presentations provided on topics including, at a minimum, constitutional rights and civil liberties, fundamentals of procedure, evidence, and due process, procedural rights and confidentialities afforded to police officers by California law (including, but not limited to, Government Code Section 3300 et seq. and Penal Code Sections 832.7 and 832.8 and Evidence Code Sections 1040-1043, state use of force standards, police union contract, labor rights, in- person Implicit Bias training, and best practices for conducting investigations. Sec. 2-620. - Meetings. The Commission shall hold its first meeting within thirty (30) days after all of its members have been appointed. At such meeting, the Commission shall fix the time and place of regularly scheduled meetings which shall not meet less than once each month. The Police Chief or their designee or other person directed by the City Manager shall attend all regular and special meetings of the Commission and provide regular staff support to the Commission. Sec. 2-621. - Powers and duties of the Police Oversight Commission. To effectuate its purpose, the Commission shall: (a) Review and evaluate the policies, practices and procedures contained in the Santa Ana Police Department policies manual and develop programs and strategies to promote positive police community relations and make appropriate recommendations to the City Manager and the City Council. Within thirty (30) days after receiving such recommendations the City Manager shall submit a response to the Commission. If the Commission is dissatisfied with the response, the Commission may submit its recommendations to the City Council. The City Manager may extend for an additional thirty (30) days the time periods in which they are required to submit their responses to the Commission by giving the Commission written notice of such extension. MENU ITEMS FOR SECTION (b) [There may be other suggested options upon discussion]: (b) Receive, hear and review misconduct complaints against Santa Ana police officers alleging the use of force that result in great bodily injury, discrimination, officer veracity, sexual harassment, and/or sexual assault by on-duty Santa Ana police officers. OR 55394.00000\40763936.1 (b) Hear and review misconduct complaints against Santa Ana police officers where the allegation involves the use of force that resulted in great bodily injury, discrimination, officer veracity, sexual harassment, and/or sexual assault if the Department’s Internal Affairs investigation results in a finding of “unfounded”, “exonerated” or “not sustained” and thereafter by unanimous vote, recommend Oversight Director conduct independent investigation; OR (b) Receive and review all findings from Internal Affairs stemming from misconduct complaints against Santa Ana police officers where the allegation involves the use of force that result in great bodily injury, discrimination, officer veracity, sexual harassment, and/or sexual assault. (1) All complaints to be reviewed by the Commission must be addressed to the Commission and must be in writing on forms supplied by the Commission and shall be signed by the complainant. Anonymous complaints will not be accepted. (2) A copy of each complaint filed for Commission review shall immediately be forwarded to the members of the Commission, the Independent Oversight Director, the City Manager and the Chief of Police. (3) No complaint shall be accepted, reviewed or investigated by the Commission or the Independent Oversight Director if it is not filed with the Commission within one hundred and twenty (120) days of the alleged misconduct by the Santa Ana Police Officer. (4) All Commission discussions with the Independent Oversight Director concerning alleged misconduct of any Santa Ana police officer shall be held in closed session. At least ten (10) days' advance written notice of the date of the meeting in which a specific officer will be discussed in closed session shall be given to the complainant and the named police officer and their legal counsel, if known to the Commission. (c) Receive and discuss reports from the Independent Oversight Director on all incidents of the following: (1) officer-involved shootings, (discharge of a firearm at a person by a Santa Ana peace officer) that results in death; (2) in-custody deaths; (3) uses of force by a Santa Ana police officer that result in great bodily injury of a person. (d) Direct the Independent Oversight Director to independently investigate a complaint of police misconduct as set forth in subsection (b) as authorized by this Division 11 or the City Council provides authorization pursuant to Santa Ana City Charter Section 1100. (1) The Independent Oversight Director shall investigate timely complaints as soon as possible. Pursuant to Santa Ana City Charter Section 1100, the City Council hereby 55394.00000\40763936.1 authorizes the Independent Oversight Director to subpoena witnesses for the investigation. At the conclusion of the investigation, the Independent Oversight Director shall submit a report with findings and recommendations, either orally or in writing, to the Commission. (2) Upon receipt of the Independent Oversight Director’s report, the Commission may: (i) Direct the Independent Oversight Director to investigate the complaint further; (ii) Forward the Commission's findings and recommendations concerning the complaint to the City Manager based upon the Independent Oversight Director’s report. (e) Authorize the Independent Oversight Director to audit complaint files and review policies to ensure best practices are implemented. (f) Advise the Mayor, City Council, City Manager, and Police Chief on community relations issues involving the Santa Ana Police Department. (g) Review any Memorandum of Understanding (MOU) between the City and the Santa Ana Police Officers Association or the City and the Santa Ana Police Management Association and provide suggestions and recommendations concerning negotiations to the City Manager and the City Council. (h) Conduct public meetings to educate the community on the purpose of the Police Oversight Commission and provide a forum for discussions about police policies, practices and procedures. (i) Prepare and submit an annual report to the City Council concerning the Commission’s activities, findings and recommendations. a) The number of investigations initiated during the annual reporting period and data summarizing the nature of the alleged or actual underlying conduct; b) The number of investigations concluded during the reporting period, and, of those investigations, the number that took more than six months to conclude and data summarizing the nature of the alleged or actual underlying conduct; c) The number of investigations pending as of the end of the reporting period and data summarizing the nature of the alleged or actual underlying conduct; d) The number of complaints not sustained during the reporting period and data summarizing the nature of the alleged or actual underlying conduct; e) The number of complaints sustained during the reporting period and data summarizing the nature of the alleged or actual underlying conduct; f) The number of complaints filed against each police officer in each police department during the reporting and data summarizing the nature of the alleged or actual underlying conduct; g) The number of complaints referred to other agencies during the reporting period and the identity of such other agencies and data regarding summarizing the nature of the alleged or actual underlying conduct. (j) Perform such other duties as requested by the City Council. 55394.00000\40763936.1 Sec. 2-622. – Appointment and role of an Independent Oversight Director (a) The City Council does hereby authorize the appointment of an Independent Oversight Director (referred to as Oversight Director in this Section) pursuant to City Charter Section 1100 and in accordance with this Section 1100 shall appoint the Oversight Director. The Oversight Director may be engaged through a professional services agreement or may be hired as a City employee at the discretion of the City Council. (b) The Oversight Director shall assist the Commission in performing its duties and exercising its powers. (c) The Oversight Director shall, in accordance with this division, when directed by the Commission after receiving a complaint covered by this division, conduct investigations of complaints from members of the public alleging: the use of unreasonable force, discrimination, lack of officer veracity, sexual harassment, and/or sexual assault by on- duty police officers of the Santa Ana Police Department and all incidents involving the discharge of a firearm at a person by a Santa Ana police officer, and/or when death or serious bodily injury results from direct police action. In addition to conducting investigations related to complaints, the Oversight Director shall also have the independent authority to periodically request and review general citizen complaints and "use of force" reports or other pertinent documents maintained by, or available to, the Chief of Police to determine whether death or serious bodily injury has been caused by direct police action. No investigations shall be commenced on any incidents that occurred prior to the effective date of the Ordinance adopting this division. (d) The Oversight Director shall conduct all audits and investigations in a fair, objective, impartial and ethical manner, and shall comply with the Public Safety Officers Procedural Bill of Rights (Government Code Sections 3300, et seq.) in interviewing police officers. The Oversight Director shall prepare a written report of each investigation that will constitute the public record and may discuss confidential or privileged information with the Commission in a properly notice closed session. Report shall comply with the provisions of Penal Code Sections 832.5 and 832.7 and Evidence Code Sections 1043 and 1046. After review by the Commission the public record of the investigation shall be posted on the public website for the Commission within thirty (30) days. All disclosures of investigations conducted by the Oversight Director shall comply with California Penal Code Sections 832.5 and 832.7 and California Evidence Code Sections 1043 and 1046, as amended from time to time. The Oversight Director may discuss findings with the Commission and/or the public in strict compliance with California Penal Code Sections 832.5 and 832.7 and California Government Code Sections 3300, et seq. (e) The City Manager or their designee shall assist with advertising the position of Oversight Director and shall prepare the necessary documents to engage the Oversight Director. The City Council shall review all qualifying applications and select no more than three applicants to interview for the role of Oversight Director. The Commission 55394.00000\40763936.1 shall be permitted the opportunity to review the top three applicants and recommend a candidate to the City Council. The Oversight Director shall, pursuant to Charter Section 1100, report directly to the City Council. Sec. 2-623. – Budget and Support for Commission and Independent Oversight Director The City Manager shall make a recommendation to Council, as part of the annual City budget to fund the Commission and any additional labor, consulting, equipment, training or materials necessary for the Commission and the Independent Oversight Director to carry out the duties and exercise the powers set forth in this division. Sec. 2-624. - Rules and records. The Commission shall, in consultation with the Independent Oversight Director and the City Manager develop rules for the transaction of business of the Commission, which rules shall, among other things, include the manner of calling and giving notice of special meetings and hearings and the appointment and powers of ad hoc and standing subcommittees. Said subcommittees may be formed to work on various topics within the scope of police activities. The City Council shall adopt the rules for the transaction of business of the Commission. The Commission shall also keep records of its resolutions, rules, transactions, motions, orders, findings, recommendations and determinations. Except for those items made confidential by California Penal Code Sections 832.5 and 832.7, the records of the Commission shall be open to the public. 2-625. Severability. Should any provision of this division, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determination shall have no effect on any other provision of this division or Chapter or the application of this division or Chapter to any other person or circumstance and, to that end, the provisions hereof are severable. SECTION 3. Section 2-325 of Article IV of Chapter 2 of the Santa Ana Municipal Code is hereby amended to add a subsection (i) to read as follows: Sec-2-235.-Compensation for members of boards, commissions. (i) Police Oversight Commission. Each Commissioner shall receive $50 per meeting with no more than four (4) compensated meetings per month. SECTION 4. The City Clerk shall attest and certify to the passage and adoption of this Ordinance, and shall cause same to be posted as required by law and this Ordinance shall take effect thirty (30) days after its final adoption. SECTION 5. If any section, subsection, sentence clause or phrase or word of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any 55394.00000\40763936.1 court of competent jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Santa Ana hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence clause or phrase or word not declared invalid or unconstitutional without regard to any such decision or preemptive legislation.