Thomas Lloyd Smith, chair of Oakland's Police Commission, addresses the Oakland City Council.
When Oakland voters created a new police commission two years ago, they established a civilian oversight body with the authority to investigate allegations of misconduct, discipline bad cops, and set policy. But crucial details about the commission's authority and staffing were left out of the ballot measure text. Instead, these details are currently being drafted in an "enabling ordinance" by the Oakland City Council.
As a result, over the past several months, Oakland's councilmembers, the city attorney, city administrator, and the new police commissioners have been fighting each other over the legislation's wording with regard to who is assigned the authority to direct the work of central members of the police commission's staff.
At stake, say activists with the Coalition for Police Accountability, is whether the police commission will truly be independent, or whether two city officials — the city attorney and city administrator — will be able to influence its work.
According to Rashidah Grinage, an activist with the Coalition for Police Accountability, the police commission and the Civilian Police Review Agency, which carries out investigations for the commission, need to both have legal advisors who are completely separate from the city attorney due to the fact that Oakland City Attorney Barbara Parker defends police officers when they are sued for police misconduct. This poses a conflict with the commission, because it is tasked with uncovering and investigating misconduct on behalf of the public.
The city attorney also has another role: arguing on behalf of the police chief and city administrator before an arbitrator when police officers try to overturn discipline that the chief and administrator impose on them. In the past, the city attorney had a very poor record of winning these cases, which led many police accountability activists to push for the creation of the police commission so that disciplinary decisions would have a better chance of being upheld.
Furthermore, in multiple meetings of the police commission earlier this year, deputy city attorneys assigned to advise the commission by City Attorney Barbara Parker have repeatedly clashed with the commissioners. In one meeting, a deputy city attorney even advised Oakland police officers not to answer questions about training and policy because they are features of the Negotiated Settlement Agreement, OPD's court-ordered reform program. In response, several commissioners chided the deputy city attorney and discussed the need to hire their own legal advisor.
"Having access to someone who is not a member of the city attorney's office, particularly on these issues, is very important," said Thomas Smith, the chair of Oakland's police commission, at last night's city council meeting where the enabling ordinance was discussed. Smith asked the council to go as far as it could in providing independent staff who work for the commission, not other offices of the city.
But Oakland City Attorney Barbara Parker has pushed back and advised the city council that they should pass an enabling ordinance that gives her office, and the city administrator, a strong degree of influence over the commission.
According to Parker, her office has total control over the hiring of any and all attorneys who represent any part of the city, including the police commission.
Parker hired her own outside legal counsel, Karen Getman of the Remcho Johansen & Purcell law firm, to argue this point before the city council last night.
Getman said that Measure LL, the ballot measure that voters approved to establish the police commission, was very clear in stating that the commission's legal advisors shall be assigned by the city attorney. The only part of the city with a truly independent attorney who isn't answerable to Parker is the Port of Oakland, said Getman, and that's because this is clearly spelled out in the section of the city charter that established the port commission.
"The city attorney is the only attorney for the city," Getman said. "City boards and commissions don't have any independent authority to appoint their own advisor."
Deputy City Attorney Doryanna Moreno and Getman also argued last night that the city administrator should have a strong degree of control over the commission's work by being able to control the newly established Office of Inspector General, a commission staffer who will audit OPD's processes for investigating misconduct and disciplining them, among other things.
Getman told the city council that the new OIG must report directly and only to the city administrator, not the commission.
In fact, the city administrator has complete power over the hiring, evaluation, and termination of the OIG, and the commission has no power other than the ability to make recommendations to the administrator, said Getman.
Councilmember Rebecca Kaplan said during last night's meeting that she found this degree of control by the city administrator over the commission's inspector general to be untenable due to the fact that the OIG will often be investigating policies and practices that the city administrator is responsible for, in addition to the police department. The OIG would therefore be put in a position of having to investigate and criticize their own boss.
"It's really not viable," said Kaplan.
But Dan Kalb, author of the police commission ballot measure and a version of the enabling ordinance, said that he felt Kaplan, as well as members of the Coalition for Police Accountability, were trying to stretch the law too far, possibly in violation of the city charter.
"I think we've pushed the envelope as best we can," Kalb said at the meeting.
Kalb added that he would be happy in 2020 to sponsor another ballot measure to make changes in the charter that would unambiguously state who controls these key commission jobs, but he felt the council should go along with the city attorney's recommendations.
Most of his colleagues disagreed, however.
Kalb's version of the enabling ordinance, which included the city attorney's recommendations regarding the commission's legal advisor and OIG was rejected in a five-to-two vote, with only Annie Campbell Washington siding with Kalb.
Kaplan offered an alternative version of the enabling ordinance that did not give the city attorney and city administrator the same degree of power over the commission's legal counsel and OIG. But this measure also failed, only gaining four votes, with Kalb abstaining and Annie Campbell Washington and Lynette Gibson McElhaney voting against it.
While Gibson McElhaney was a key vote in rejecting Kalb's version of the ordinance, she also expressed hesitation with Kaplan's draft because she felt it hadn't adequately been vetted.
Later, after 1 a.m. and a discussion of the city's midcycle budget adjustments, the council took up the consequential police commission legislation again, this time with Kaplan proposing that Kalb's version of the enabling ordinance be used, but that the two sections determining who appoints and controls the commission's legal advisors and OIG be re-written to make them more independent.
Kaplan recommended that the city attorney still be allowed to appoint the commission's legal advisor, but this advisor be an "outside counsel," meaning a lawyer from a law firm that's hired by the city and not one of the city attorney's in-house deputies.
For the OIG, this new version of the enabling ordinance rejected the city attorney's position that the inspector must be controlled by the city administrator and instead placed the job under the authority of the director of the commission's investigative agency, the Civilian Police Review Agency. The director of the CPRA is hired by and supervised by the commission.
The council approved this version of the enabling ordinance, with only Campbell Washington voting no.
But these features, which promise more independence for the commission from the city attorney and city administrator, come with the risk that the city could be sued under the theory that each violates the city charter's specific assignment of powers and duties. At several points in last night's meeting, councilmembers and attorneys made allusions to a possible legal challenge, coming perhaps from the Oakland Police Officers' Association or perhaps even a city official, to nullify the enabling ordinance.
"I know there's some iffiness when it comes to the legality of these two things, but we need to move something forward," Kalb said to explain his vote.
"This may be challenged and it may delay the work of the commission going forward," said Councilmember Abel Guillen just before the final vote. "But I'm erring on the side of additional independence."