New police oversight board now has broader powers for misconduct inquests

Berkeley officials voted unanimously Tuesday to grant stronger authority to the new board that reviews police misconduct complaints.

In July, the city’s new Police Accountability Board kicked off, replacing the longstanding Police Review Commission, which was formed in 1973 and is said to have been the first police oversight board in the nation with investigatory powers.

The creation of the new board — the PAB — was approved by 85% of the voters in November 2020 with Measure II. The new system pledged to provide people with more time to file complaints and grant the PAB more autonomy and authority.

But, although the board began meeting in July, it has been unable to review complaints against Berkeley police officers pending council approval of new interim rules for misconduct hearings. On Tuesday night, the City Council approved those new rules unanimously after a 2.5-hour discussion.

The PAB currently has 10 complaints against officers pending, staff said, along with at least one policy complaint.

See the full Twitter thread of council highlights

Under the new rules, the PAB has twice as much time to complete investigations and notify officers of discipline, 240 days rather than 120.

The new rules also lower the bar for finding that police misconduct did indeed occur, from the more stringent “clear and convincing” evidentiary standard to one that considers the preponderance of the evidence.

In recent years, under the Police Review Commission, allegations of police misconduct were sustained 9% of the time, according to the latest PRC annual report. There have been just two sustained allegations in the past two years. Both were for discourtesy.

There have been no sustained complaints in recent history regarding more serious violations such as excessive force, discrimination or improper stops and arrests. On average, the PRC received 18 complaints a year. (Each complaint generally includes numerous allegations.)

On Tuesday night, council members were charged with considering two versions of the new rules, one that was put forward by the PAB itself and another put forward by Interim PAB Director Katherine Lee.

The City Council ultimately adopted a version of the PAB rules — although officials put off the most contentious aspect of the proposal: whether a complainant, or their representative, can question an officer directly and be present for the officer’s testimony. Under the old system that will continue, at least for now, the complainant cannot be in the hearing room aside from their own testimony.

Critics of the old rules said they created a one-sided process that put complainants at a disadvantage.

The board said it wants to “place the complainant and subject officers on equal footing with respect to asking questions and being present during the hearing,” adding, “However, the Board understands that the City Attorney’s opinion is needed regarding whether the Board’s proposal comports with state law and case law.”

On Tuesday night, Mayor Jesse Arreguín said he wanted to make the change but could not do so at this time because it requires more legal analysis: “We cannot violate state law.”

The city attorney’s office has provided a memo to council members and the PAB regarding the legal ramifications of the PAB proposal, but the city declined to release the document, despite a Public Records Act request from Berkeleyside, stating it is protected by confidentiality.

Council did adopt two other proposals from the PAB: extending the deadline to file complaints from 90 to 180 days and, perhaps more significantly, allowing witnesses to file complaints in addition to “aggrieved parties.”

On Tuesday night, council members clarified that language to limit witness complaints specifically to “percipient witnesses,” those with firsthand knowledge of events. During the discussion, Councilmember Susan Wengraf asked board members if they were concerned about the prospect of frivolous complaints flooding the process.

“It’s important to keep the gates open here,” PAB Vice-Chair Michael Chang told her. “All people should have access” and be heard, he added.

“I think we need to keep the gates open,” Director Lee also said. “It would be incumbent upon staff to do their due diligence,” and maybe hire another investigator if need be, she said: “I’m willing to see how it will play out and to allow the complaints.”

With the adoption of the new rules, the board also gave itself more discretion to initiate investigations into alleged police misconduct — the results of which the board would ultimately also review.

“The Board further expanded their own ability to initiate an investigation, to do so upon a vote of five Board members,” according to Tuesday’s staff report. “Previously the Board could initiate an investigation only in cases involving a death or if no complainant was available to file a complaint.”

But even in those cases where the board itself launches a probe, staff and PAB members said Tuesday, the board is charged with keeping an open mind and considering all the evidence collected by PAB staff and presented in hearings.

In those instances, the board would have a truth-seeking role, rather than advocating for a particular outcome, PAB Chair Izzy Ramsey told council Tuesday night: “It would remain in its role as an… objective, independent factfinder.”

“The thought here is to have robust oversight,” he said.

“That’s not to say that we are going to run amok,” Chang said in agreement.

In response to a question from council, Chang said he was not aware of other city-level police oversight agencies with that sort of proactive investigative authority, but said it is common at state and federal levels and supported by “major case law and precedent.”

Ramsey said the PAB had been unanimous in its recommendations and that board members wanted “to establish legitimacy up front and to have a fair process.”

PAB Director Lee told council Tuesday that she was “not opposed to making the process more accessible and less intimidating for complainants” but had parted from the board in terms of process because the city attorney is still analyzing the legality of whether the complainant can remain in the room during misconduct hearings.

Lee said her goal with her version of the proposal was to get new rules on the books as quickly as possible so pending investigations could proceed.

The Berkeley Police Association, the union that represents officers, has not commented on the adoption of the new interim rules but some have said aspects of what the PAB wants to do could trigger a lawsuit.

The piece of the proposal regarding complainant questioning of officers and their presence during officer testimony is now slated to be debated during confidential “meet and confer” discussions between city staff and the police association, as governed by state employment law.

The association has said it cannot comment on these matters at this time on the advice of its attorney.

Berkeley’s Police Accountability Board has a budget of $1.1 million, according to the current budget book, up from about $770,000 for the PRC.

On Tuesday night, the City Council also approved a new lease with Motorola to purchase updated radios for police and firefighters. (See Berkeleyside’s Twitter thread for highlights of the radio discussion.)

Note: Staff alerted Berkeleyside after publication that the rate of sustained complaints had been misstated during Tuesday’s meeting. This story has been corrected with links to the data.