City Board That Reviews Police Misconduct Cases Has Conflicts And Lacks Transparency: Former Board Members

Review process subverts intent of board which is detrimental for the public, the ex-members say

The city of San Diego's watchdog over police behavior is allowing officer misconduct to go unpunished and unreported while the board is hamstrung by politics at City Hall, according to former board members.

The Citizens’ Review Board (CRB) on Police Practices is designed to hold San Diego Police Department (SDPD) officers accountable for alleged misconduct and protect police from unfair discipline.

According to two former board members, Lucy Pearson and Benetta Buell-Wilson, the board has a “fixed” and ineffective review process. They said the process subverts the board's intent, something that’s detrimental not just for citizens but for SDPD officers as well.

Pearson was on the CRB for seven years. She was an unpaid volunteer like Buell-Wilson, who served on the board for six years. This year, both women were not reappointed because they asked too many questions about board practices, they said.

"If I see something, I speak up,” Pearson said. “Which apparently has gotten me in trouble."

Buell-Wilson told NBC 7 Investigates the same thing happened to her. She said she made people feel uncomfortable, including other board members and city employees advising the board.

"They didn't like the fact that I would ask questions," Buell-Wilson said.

Buell-Wilson and Pearson claim a lack of transparency and secret decision-making stifles dissent between members and the city. Both women said CRB members who are "pro-police" get the more serious cases, depriving the complaining citizens of a fair hearing.

UPDATE: On Dec. 31 Women Occupy San Diego announced they will be submitting a ballot proposal to the City Clerk January 5, 2016 to make the board "truly independent and transparent." Click here to read more about the proposed ballot proposal.

Under the California Public Records Act, NBC 7 Investigates submitted a request to the city asking for details about cases reviewed during the past two years. The city has not yet responded to the request.

The Review Board was approved by voters in 1988 to help relieve tensions in the city after the shooting death of a police officer by a young black man in southeast San Diego.

Before cases reach the board, SDPD’s internal affairs department launches its own investigations. Their findings and recommendations are selectively forwarded to board members for review.

The public can also file complaints to be reviewed by the members. Those complaints are forwarded to SDPD’s internal affairs department, then selectively forwarded to the board. The Review Board's leadership is then supposed to determine, without any outside influences, which board members review which cases.

Click here to learn more about the complaint process and how to file one.

"We filed 17 complaints with the Citizen's Review Board for 17 different arrests," Stephanie Jennings said. Click here to read the complaints.

In January 2012, Jennings was singing at an Occupy San Diego event to show her support for the protesters. During the protest, the 50-year-old ended up flat-on-her back. She said an SDPD officer claimed she had bumped him, so he shoved her hard.

"He did one of those football shoves,” she said. “He used all of his weight and just shoved me on my back and I just went flying."

Jennings said the officer arrested her and took her to jail, but she and the other protesters fought back by filing complaints with the Review Board. NBC 7 Investigates has learned more than three years after those complaints were filed, the board has not reviewed a single one.

The San Diego City Council, though, did approve a $60,000 payment to Jennings to settle her legal claim against SDPD. Jennings said the money is proof her complaint was credible and deserved the Review Board's full attention.

Click here to read the settlement documents.

"If I can't get answers to things, how can somebody who is poor or living in a community where they don't have access to attorneys, ever going to get a chance at justice?" Jennings said.

Lt. Scott Wahl, a spokesman for SDPD, said the department takes citizen complaints very seriously.

“We investigate all allegations of police misconduct that are brought to our attention,” he said. “As you are well aware, state law prevents us from commenting on police personnel matters.”

According to Buell-Wilson and Pearson, there's a conflict of interest in the role the city attorney plays as the board's legal advisor. They claim Deputy City Attorney Mike Giorgino is compromised because in his position, his office must always protect the city's interest. That means protecting the police department and siding with officers instead of citizens to insulate the city from possible lawsuits.

Pearson recalls the last meeting she attended and Giorgino's reaction to her question, “If there was a conflict, how would it be resolved?”

She said he wouldn’t answer the question.

Ed McIntyre is an attorney and expert in legal ethics and professional responsibility. In preparation for his interview with NBC 7 Investigates, he reviewed the history of the CRB's creation, the current website for the board and various legal documents about it.

"The deputy's primary client is obviously the city of San Diego," he said.

Like Buell-Wilson and Pearson, McIntyre said the City Attorney's Office role appears to be conflicted.

“It is clearly in the interest of the city that the officer's conduct be deemed justified,” he said. "The board should have independent legal advice free from any dual representation and interest of the city."

In a statement to NBC 7 Investigates, Gerry Braun with the City Attorney's Office said the city's charter requires their office "to be the legal advisor" for the Review Board.

Braun declined to talk on camera but said it's about policy, not ethics, and the board’s attorney is "walled off" from other issues, such as police lawsuits, involving others in the City Attorney's office.

He also said that a suggestion of an independent counsel for the Review Board "is an expensive, unwieldy proposition, and it is not required by the law."

McIntyre said the "ethical" wall may not be sufficient "since the deputies themselves all report to the same City Attorney who has ultimate authority over their careers.”

Representatives from the city declined NBC 7 Investigates request for an interview.

In an email, David Graham, the deputy chief operating officer for the city's Neighborhood Services said, “meetings continue to be helpful in providing guidance to the volunteer board, the Executive Director, and policy-makers in ensuring the board is implementing the will of the people outlined in the City Charter.”

Discussions between SDPD’s Internal Affairs Office and the Review Board are confidential, but issues the Board is debating and case outcomes are made public.

Kate Yavenditti is leading an effort to have the City’s Charter Review Committee remake the board. She said the public does not trust it.

“How can they?” she said. “I think people are going to assume that the police are not going to find in their favor, they are not going to believe them.”

She said she is concerned about the expanding power of the Review Board’s executive director, a city employee named Sharmaine Moseley.

In an email to NBC 7 Investigates, Moseley said the board bylaws were in place before she arrived at her position with the city and there have not been any “substantive” changes to her role.

“It’s my job to facilitate the work of the board within the bounds of the law, the City Charter, Board bylaws and Board approved direction,” she wrote.

Legal arguments aside, both Pearson and Buell-Wilson said something has to be done to restore the CRB's credibility.

"It's not an independent board,” Buell-Wilson said. “It's a facade of a board. It's not what people voted for and it's not what people are getting."

Click here to read suggestions from Buell-Wilson, Pearson and another former board member for how the Review Board can be improved.

NBC 7 Investigates' request to SDPD and the city for the following records is still pending:

  • Copies of the CRB annual reports to the Mayor’s office for the past two full reporting years
  • Without providing specific names of cases, the total number of citizen requests to the San Diego Police Department to investigate officer misconduct for the most recent two year time frame
  • A breakdown on what type of citizen’s complaints you received. If there is a log, that would work if you wish to redact the officer's name
  • Without providing specific names of cases, the total number of citizen requests to the San Diego Police Department to investigate officer misconduct for the most recent two-year time frame which Internal Affairs forwarded onto the Citizens Review Board for consideration
  • Please provide a breakdown on what type of complaints were forwarded to CRB. If there is a log, that would work if you wish to redact the officer's name.
  • Again, without specific names, how many of the cases did the CRB render a decision on? Please provide details on the cases in regards to type of case and the board’s decision
  • Was any officer publically sanctioned by any CRB action within the past five years? If so, can you provide details?

Click here to find more information about the Citizen’s Review Board.

Read the full response from Braun below:

The San Diego Citizen’s Review Board on Police Practices was created by a public vote (Proposition G, 1988) to be a City Advisory Board. Its role and responsibilities can be found in City Charter Section 43, Advisory Boards and Committees, specifically section 43(d).

Under Charter section 40, the City Attorney’s office is required to be the legal advisor for all City bodies except the Ethics Commission.

Your “legal ethics expert” may not have been aware that the Citizen’s Review Board is a Board of the City of San Diego, that the public created it as such, and that the City Attorney’s Office is required to advise it.

Under very well-established case law and ethics rulings, a city attorney’s office may ethically represent different sub-entities of a city. They are called “constituent clients”. Otherwise, a city would need different lawyers for each council member, the mayor, each city committee and each of the various boards and commissions of the city. In accordance with this well-established case law and ethics rulings, the attorney who sits with the Citizen’s Review Board is “walled off” ethically from other lawyers in the office with regard to Board matters.

As noted above, the City Attorney’s office is required under section 40 to be the legal advisor to the Citizen’s Review Board. We don’t get a choice. If we don’t do it, we are not doing our job under the City Charter.

Having said that, whether or not to have separate lawyers for the Citizen’s Review Board (as we do with the Ethics Commission) is a policy call -- not an ethical call – to potentially be made by the City Council and the voters. The process would be for the City Council to vote to amend Sections 40 and 43(d) of the City Charter to provide the Review Board with its own lawyers and then present that to the voters. If the voters approve that amendment, then the Review Board would get its own lawyers just like the Ethics Commission.

Read the full response from Graham below:

I was asked to respond to you as the Citizens Review Board on Police Practices and its Executive Director are within the Neighborhood Services Branch of the City, which is under my purview. The Citizens Review Board holds public meetings where the kind of issues, that you suggest in your email, can be heard. Those meetings continue to be helpful in providing guidance to the volunteer board, the Executive Director, and policy-makers in ensuring the board is implementing the will of the people outlined in the City Charter. Hopefully, the following information addresses some of the issues you raise. In addition to the public meetings of the board, I am always ready to meet with any member of the public to hear their concerns.

The City is committed to a fair Citizens’ Review Board on Police Practices. Several changes have been made over the past year to improve the board’s oversight role and more are on the way, including dedicating a full-time Executive Director to support the work of the citizen board.

The new Executive Director has been tasked with three things:
1. Community outreach and assessment
2. Development of operational improvements (revising the board’s bylaws)
3. Completing semi-annual reports

The Board was created by voter initiative. The Board and Executive Director carry out the will of the voters within the boundaries outlined in the City Charter, and the Board by-laws. To generically say that the role of the Executive Director has changed, would not be accurate, but now with the restoration of a full-time Executive Director, the priorities of the board and greater outreach to citizens can be accomplished. Through the initiative that resulted in the City Charter section, citizen volunteers are tasked with providing oversight of police practices including the review and evaluation of citizens’ complaints against members of the San Diego Police Department and the San Diego Police Department’s administration of discipline arising from such complaints.

1. Community Outreach and Assessment
During the City’s fiscal crisis, the position of Executive Director was combined with that of another Board. In FY 2015, the City created a dedicated position for the Executive Director of the Citizens Review Board and appointed Sharmaine Moseley to the position on Feb. 2, 2015. Sharmaine began active engagement with community members and worked with the volunteer board to identify improvements to CRB operations. These improvements were presented to the City Council’s Public Safety and Livable Neighborhoods Committee on Sept. 23, 2015. Changes include:

• A Collaborative Complaint Tracking System
• Website Updates
• And a User Friendly Complaint Form

Future improvements include improving information accessibility, a citizens’ feedback survey and leveraging social media.

2. Development of Operational Improvements
The CRB Bylaws Subcommittee has been reviewing the existing bylaws and on Nov. 24, 2015, the CRB Board approved the revisions. Those revisions will now be forwarded to the Mayor’s Office for consideration. These are just a few examples of the ongoing improvements, based on community input and the work of the volunteer board, that have occurred to ensure the Board is delivering on its mission set out by the voters in the City Charter.

3. Completing Semi-Annual Reports
The Executive Director is completing the 2015 semi-annual reports by Dec. 31. During the period of time that the position was combined, the data was collected, but the reporting lapsed due to workload. The CRB Executive Director has targeted March 31, 2016, to complete and post the previous annual reports to the website. Additionally, the Executive Director will be instituting an annual report that will provide a more comprehensive report of the data to the public.

Looking to the future
Moving forward, the Executive Director has been working closely with members of the community to understand the needs of the community. Additionally, there is active outreach currently going on to recruit new Board Members to the committee. The Executive Director has also focused on attending and speaking at community organizations to help educate the public and improve accessibility to the Board. A recent forum with Thomas Jefferson Law School, is one example of these joint community forums to help raise awareness of the CRB.

The City is always looking to for volunteers to serve on the Citizens’ Review Board. Individuals can call 619-236-6296 or email if they are interesting in volunteering.

Read the full response from Moseley below:

Thank you for contacting me. I’m sorry that I can’t really respond without more information. The City Attorney’s Office is required to be the legal advisor for all City bodies, like the CRB and other commissions, with the exception of the Ethics Commission. I’m not sure what would constitute a secret meeting with the City Attorney’s Office as they are the only legal Counsel for the Chair, the Board and Executive Director. If a board policy has been violated, please provide me with the specific instance so I can review it.

Any concerns regarding the conduct of the Board or Executive Director can be raised at the public meeting of the Board.

The current bylaws were approved prior to my arrival, so there hasn’t been a substantive change to my role since I have taken this position.

Since the formation of the Board, the Executive Director has always been a city employee. It’s my job to facilitate the work of the Board within the bounds of the law, the City Charter, Board bylaws and Board approved direction. My position in Albany was in a different state and a different structure, so that doesn’t apply to my role and responsibility in this position as the Executive Director of the CRB.

I was excited to be selected for this position. I’m passionate about civilian oversight of law enforcement and am an active member of the National Association for Civilian Oversight of Law Enforcement (NACOLE). Since coming here, I’ve met with or spoken to probably over 300 community members and many organizations regarding civilian oversight in San Diego. I’m honored to have the opportunity to facilitate the work of the Board as they try to achieve the mission of efficient and effective law enforcement oversight.

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