ANALYSIS: Portland's Civilian Oversight System, July 2020Portland Copwatch was founded in 1992 with three specific goals, one of which was to advocate for an effective system of civilian oversight for police.
Portland's current system, which includes the "Independent" Police Review, IPR's Citizen Review Committee, and the Bureau's Police Review Board, needs to be streamlined, strengthened and be free of political interference. The US Department of Justice has called the system "Byzantine." We agree. To try to simplify this analysis, we have put a lot of information in the footnotes, which we encourage you to visit.
Commissioner Jo Ann Hardesty has announced her intention to have City Council put a ballot measure forward for the November election which would change the City's Charter (like our constitution) to create the framework for a more powerful system which could transform IPR or create a successor agency.*-1a,b We support the strategy of adding a Charter Amendment but have not yet reviewed the Commissioner's specific plan.
Below is information about the oversight system.
Here are four main things it's important to think about in this short time window (any ballot measure has to be turned into the Council clerk by July 14 for it to make it to the fall election).
1) The main problem with Portland's oversight system is that it remains based in police investigating other police. The "Independent" Police Review only investigates about one out every five complaints-- that is, complaints which receive investigation rather than the 50% of complaints which are dismissed. When IPR does investigate, they are unable to compel officer testimony due to restrictions in the Police Contract and "chain of command" legal analysis which requires Police Bureau members to be involved in the investigation. Currently, the Police Internal Affairs unit, which investigates the other complaints, has to order officers to comply with IPR.
2) A ballot measure could be passed to ensure an oversight system is funded and empowered through a Charter change. Past efforts for strong oversight have been thwarted publicly and behind the scenes by the Portland Police Association. State laws and other hurdles can be dismantled once a Charter section is in place. The hindrances to an effective system include the PPA contract*-2 and state laws around the police "bill of rights," shielding information about misconduct investigations, and more.
3) When the system was thrown out and revised in 2001, we ended up with the IPR, which got rid of some of the useful parts of the old system*-3 while adding some new elements including independent investigation. Changes have had to be made over the years to give IPR more authority. The Portland Police Association's contract, while putting limitations on IPR, acknowledges the civilian authority's existence as part of their disciplinary process.
4) No system is perfect. There is no system in the US that we would recommend replicating in Portland. For a while in the 1990s, the Mayor was in charge of both the Police Bureau and the oversight system. Currently, our elected Auditor is in charge of IPR, which makes it independent of City Council (and to some extent, the Bureau) but is still subject to the direction of the Auditor.
Here's some background information.
In 1982, the City passed an ordinance to create the Police Internal Investigations Auditing Committee ("PIIAC"). That ordinance was forced onto the ballot by the Portland Police Association. They outspent the proponents of the review system 10-1 and the board was able to be established by a vote of 50.1% to 49.9%.
In the year 2000, Jo Ann Hardesty and Dan Handelman of PCW were both on a work group to design an effective review system to replace the old one ("PIIAC"). That work group produced a document which is mostly good but was dragged down somewhat by police representatives and supporters being at the table. It's known as the "Majority report."*-4
The proposal was thrown out by Mayor Katz, who instead let then-Auditor Gary Blackmer design what's now the IPR. However, over half of the effective Work Group recommendations were either initially or over the years added to IPR.*-5 Some of that came from years of scrapping and fighting.
Although IPR was given the ability to investigate cases in limited circumstances, they never did so until 2013. They were given the ability to subpoena witnesses,*-6 but not the ability to compel officer testimony under threat of discipline. This is a crucial nuance because if officers are subpoenaed rather than compelled, they can plead the Fifth Amendment and refuse to testify.
The Citizen Review Committee, the volunteer body made up of community members that hears appeals on misconduct cases, has been burdened from day one by a narrow standard of review, which was inserted due to a backroom deal with the Portland Police Association. It requires them to defer to the Bureau's decision if a "reasonable person" could come to the same conclusion, even if they disagree with it. Lawyers we were working with (and we) all missed this flaw in 2001, which was embedded in the "definitions" section of the code creating IPR and CRC.*-7
However, under the US DOJ Agreement in 2014, the CRC was given the authority to order that more investigation be done on complaints where they find the information inadequate to determine a finding.
Jo Ann Hardesty and Dan Handelman also both sat on two Stakeholder groups to improve IPR/CRC, in 2010 and 2016.
In 2010 it appears there were 39 formal recommendations made.*-8 One of the 22 which were not implemented (or it is unclear whether they are partially implemented) was the CRC standard of review.
In 2016, only four recommendations were made.*-9 During this time, the CRC was overwhelmed by appeals. The stakeholder group was formed after the community pushed back against the Auditor's idea to merge the CRC with the Police Review Board, a body made up of majority police officers, where hearings are held behind closed doors. Any revamp of the current system should ensure public meetings of the CRC and either merge the PRB into the CRC or at least make public the meetings considering police misconduct, discipline and deadly force.
Two of the four recommendations were implemented over the objection of the Auditor and PPA -- allowing public input before votes at hearings. The other two, which also passed at City Council, had to do with expanding the number of CRC members and changing the quorum for making recommendations.*-10
Throughout the time from 2010 until she was elected, Jo Ann Hardesty and Handelman served together on the steering committee of the AMA Coalition for Justice and Police Reform.
Of the five goals of the AMA Coalition, here is number 2:
2. Strengthening the Independent Police Review Division and the
It's notable that when City Council tried giving that power to IPR in 2013, the Chief and the Police Association objected, and the City Attorney ultimately conceded.*-12
In 2006 we (Portland Copwatch) approached the Charter Commission asking that they change the Charter to make IPR truly independent and ensure it has the funding and authority it needs to be effective. The idea was listed in a footnote for future Commissions to consider.
In 2011-12 PCW approached the new Charter Commission-- which included Jo Ann Hardesty-- with a formal recommendation.
SUGGESTIONS FOR CHARTER LANGUAGE ON POLICE ACCOUNTABILITY
* The City of Portland will have an adequately staffed, independent
* The agency will perform intake of police misconduct complaints
* A civilian body attached to the agency shall be made up of
Possible other addition:
? The agency will have the authority to hire independent counsel
submitted January 9, 2012
Despite having an "insider" on the Commission this was again tabled and listed as a future area of review.
It seems Commissioner Hardesty-- broadly speaking-- has the same idea that PCW has been proposing, which is to put something in the Charter to allow for a stronger review system to exist.
The problems in the transition from the PIIAC to the IPR/CRC, and the two year gap between the PCCEP and its predecessor should give pause to the idea of starting entirely from scratch.*-13When the Community Oversight Advisory Board was dismantled in early 2017, that group had made over 50 recommendations to the City-- including major changes to the oversight system-- which fell through the cracks while the PCCEP was designed and implemented. At this time, only one original member of the PCCEP, out of 13 total, is still part of the group after they have been in existence for just 20 months.*-14
Either way, a Charter amendment is a good first step.
It is crucial, however, that the Charter amendment be based on solid legal ground so it can withstand challenges by the Police Association or other opponents.
We hope to be at the table to help design whatever follows from that-- whether or not a ballot initiative passes.
*1a- the City Charter can only be amended by a vote of the people. While community members could have gathered signatures, the deadline for this year has passed. Council has the ability to put the item on the ballot. A Charter Commission is expected to be empaneled later this year but their recommendations would not necessarily include police oversight and would not go to the ballot right away.
*1b- Until July 12, 2020 Commissioner Hardesty is accepting feedback on the idea at https://bit.ly/PPBOversight
*2-see information on the community campaign around the contract at http://www.portlandcopwatch.org/ppa_contract_campaign2019.html
*3- including that 7 of the 13 Citizen Advisors were deliberately chosen from various areas of the City, and that they wrote their own policy recommendations without having to filter them through the staff.
*6- City Code 3.21.210 at https://www.portlandoregon.gov/citycode/article/479686
*7- City Code 3.21.020 (S) at https://www.portlandoregon.gov/citycode/article/640397
*10- Nine more ideas were tabled including the standard of review change, adding three Police Review Board civilian members to CRC appeals, and allowing CRC more than 21 days to hear appeals, a limit which had been put in place in 2014 under the DOJ Agreement. Expanding that timeline was eventually agreed to by DOJ in 2018.
*11- http://albinaministerialcoalition.org/amademands2010.html , which also includes additional recommendations for oversight from the AMA Coalition.
*13- also see the rocky start for Oakland's review system in recent years:
*14- The last original member is co-chair Lakayana Drury.
Portland Copwatch home page
Peace and Justice Works home page
Posted July 8, 2020 (based on an earlier version from July 7, 2020)