Shining light on police hearings

Today, Sager and Wilkinson discuss state Sen. Gloria Romero’s bill that would restore public access to police hearings. , they debated several cities’ decision to close disciplinary hearings. Later in the week, Sager and Wilkinson will discuss court cases and other issues related to officers’ privacy and public access.

A ray of hope for sunshine
By Kelli L. Sager

Although my comments yesterday bemoaned the sudden retrenching of public access rights to disciplinary hearings after the California Supreme Court decision last year in Copley Press vs. Superior Court, there is a positive development in the California Legislature. Senate Majority Leader Gloria Romero (D-Los Angeles) has introduced a bill that would reaffirm the ability of state and local agencies to return to their pre-Copley practices of allowing public access to police disciplinary appeal hearings. As drafted, the bill would make clear the Legislature’s intent to “abrogate the California Supreme Court Decision” in Copley, and to “restore public access” to meetings and hearings involving peace officer discipline that had been open before the Supreme Court ruling.

This carefully drafted legislation would do nothing more than allow agencies to return to practices that had helped to ensure public scrutiny of peace officer conduct for years, before the Copley decision. Given that fact, and in light of the fact that open proceedings typically occurred only if an officer challenged a preliminary finding of misconduct, one might assume that the organizations representing the state’s peace officers would have no quarrel with it.

That assumption would be wrong.

To the contrary, two such organizations -- the Professional Police Officers Assn. and the Southern California Assn. of Law Enforcement -- have taken their opposition to a new level, threatening state legislators that their groups will oppose reform measures on term limits if the Romero bill is passed. Not surprisingly, Romero immediately spoke out against this wholly inappropriate “bully tactic,” asking her colleagues to consider the bill on its merits rather than giving in to the police groups’ undisguised threats.

If the state’s lawmakers have the courage of their convictions and are willing to act in the best interests of all the state’s citizens, the Romero bill should easily pass. Former U.S. Supreme Court Justice Louis Brandeis said it best when he noted almost a century ago, “Sunlight is said to be the best of disinfectants.” For the public to have confidence that peace officers are being held to the highest standards of professional conduct, and for it to believe that police misconduct will not be tolerated, the disciplinary process must be as open as possible. The need to protect officers against frivolous complaints already exists; a complaint without merit would not result in a preliminary finding of misconduct, and the appeal process -- which is triggered when an officer challenges such a finding -- would not come into play.

Courts already have found that attorney disciplinary proceedings and similar hearings involving insurance agents must be open to the public and press. Surely the public’s interest in accountability of police officers -- whose jobs involve the ability to arrest and to use lethal force--- is at least as great as the public’s interest in scrutinizing lawyers and insurers. Romero’s bill is an important step toward restoring that accountability.

Kelli L. Sager is a partner at Davis Wright Tremaine LLP in Los Angeles. She has represented The Times in efforts to gain access to information about California’s peace officers.

Romero’s sunshine isn’t the best disinfectant
By Alison Berry Wilkinson

An opinion is only as good as the facts on which it is based. Kelli, your support for the Romero legislation unfortunately suffers from a fundamentally incorrect factual premise: that public review hearings occur only when an officer voluntarily elects to challenge a preliminary finding of misconduct. While this may be true in Los Angeles, it is not in the other jurisdictions that would be directly affected by the Romero legislation -- Oakland, Berkeley and San Francisco. In those jurisdictions, the public hearing is an initial proceeding to determine whether to sustain, to not sustain, exonerate or unfound the allegation of misconduct; the hearings are not (as you incorrectly assert) the review of a sustained finding that has already been issued. Moreover, officers in those jurisdictions do not have a choice: They must participate or be fired for insubordination.

The community is not served by public review because an extraordinarily high percentage of the sustained findings are later overturned on appeal. Misconduct hearings are often politically motivated trials initiated by individuals who simply desire to flog rather than hold accountable officers who did nothing more than the job they were hired to do: arrest bad guys and put them in jail. The public hearing process is often invoked with the hope of tarnishing officers with baseless accusations designed to foster a sense of police corruption so effective officers will be rendered useless. It is the use of public review as a weapon that organizations such as the Peace Officers Research Assn. of California (which represents more that 50,000 of this state’s police officers) and the California Police Chiefs Assn. (representing top officials of this state’s law enforcement organizations) seek to stop.

The implication of your argument, Kelli, is that police officers wish to avoid scrutiny and accountability. Nothing could be further from the truth. Police officers know that the very nature of the job demands accountability. The problem with Romero’s bill is that it fails to establish clear, fair and balanced guidelines for the public accountability process. Instead, the legislation would permit the whim, caprice and politics of the handful of local agencies that arrogantly defied Penal Code Section 832.7 in the pre-Copley era to serve as the basis for public review. Endorsing those inherently flawed systems would be a mistake.

If the state’s lawmakers were true believers in accountability, they would accept the offer repeatedly made by law enforcement organizations to jointly design a balanced public review system. On multiple occasions organizations representing the state’s peace officers have communicated that they are willing to work with Romero to craft additional and stronger police oversight, and that they are very willing to discuss the use, structure, authority and training of citizen oversight commissions in California. Those offers have been ignored.

Police officers in California risk their lives daily to fight crime and keep each of us safe. They run toward danger rather than away from it. Perhaps it is time we protect them from the perils of imbalanced, unstructured and politically motivated public misconduct trials.

Alison Berry Wilkinson is a partner at the law firm of Rains, Lucia & Wilkinson in Pleasant Hill, which represents more than 100 public safety labor organizations in California.