REPORT TO MAYOR AND COUNCIL NO. 02-4 CA

DATE: October 15, 2002

Current and former members of the City Council requested a review of the citizen complaint processes utilized by the Department of Public Safety. This inquiry stemmed primarily from the fact that the processes, in existence for at least 20 years, have never received review. There was not a concern that anything in particular was wrong, but simply that the processes should be reviewed for currency and comparison to what other entities are doing.

The Office of the City Attorney obtained information from the Department of Public Safety, from law enforcement agencies and from a wide array of sources, which are listed in an accompanying bibliography, labeled Attachment 1.

After an initial overview of complaint processes in general, this Report first reviews current DPS practices in the area of citizen complaints. The Report then discusses the four main types of citizen complaint review procedures, focusing on California (ultimately this proved more useful that a nationwide comparison), and finally makes several recommendations for improving the citizen complaint process used by Sunnyvale DPS. This Report makes no recommendation with regard to establishing any form of citizen oversight, although it presents information on the approaches taken in other California communities if Council ultimately desires to proceed in that direction. The current environment is one of high community satisfaction with the Department of Public Safety, but there continues to be a need to build and improve the relationship with the community in positive ways, such as officer training and community outreach. (Much of that effort is the topic of a different study issue, Critical Communication Skills Training and Building Community Trust.)

Law Enforcement Subelement

Goal 4.1C. Increase and Maintain Public Confidence in the Ability of the Public Safety Department to Provide Quality Police Services.

Policy 4.1C.1: Provide inspection and control of personnel and Department operations which is responsive to citizens concerns.

4.1C.1b. Maintain Internal Affairs policies and procedures.

4.1C.1c. Facilitate the process of handling citizen complaints.

4.1C.1d. Promote public awareness of the Citizen's Inquiry process.

Policy 4.1C2. Provide for assessment of changing community needs and expectations.

4.1C.2a Identify means of measuring citizen satisfaction with police services.

A complaint process is comprised of several stages. The first stage is complaint intake. This stage is closely related to community outreach activities, such as making sure appropriate informational materials exist. It is also helpful if complaints can be received in convenient modes, such as over the telephone and in locations other than at headquarters. All department personnel should be well informed about the complaint process and should be instructed to give citizens accurate and polite responses to inquiries concerning making complaints.

The second stage of the complaint process is recording, classifying and reporting complaints. Early screening also is important, since complaints may be without merit due to ignorance, misunderstanding or unreasonable expectations on the part of the complainant. There needs to be a mechanism to distinguish between complaints against an individual and complaints pertaining to general policies and procedures, and between more serious and less serious complaints. Included in this stage is the level of investigative effort expended and the thoroughness and fairness of investigations. Investigations should include obtaining statements from involved persons, canvassing for independent witnesses and collecting physical evidence, if appropriate. Tape recording interviews is now considered standard practice.

The final stage is timely completion of the complaint investigation and subsequent notification of the disposition. With rare exception, an investigation should take less than one year's time and in many instances less than 6 months. Notification to both the officer(s) involved and to the complainant should be promptly accomplished and the determination clearly stated. Some agencies have moved toward feedback surveys to collect data from both officers and complainants on their experience.

The most common way for a complaint against a public safety officer to be initiated is through a citizen-initiated complaint. Penal Code Section 832.5 requires every agency employing peace officers to establish a procedure to investigate complaints by members of the public and to provide a written description of the procedure. The complete text of the law is found in Attachment 2. Sunnyvale's currently available "Citizen's Guide to Making Complaints, Inquiries and Commendations" is found in Attachment 3. This brochure is based upon the Department General Orders Manual [DGOM] Chapter 6, Part 6.8, dealing with Citizen Complaints and Personnel Investigations, a copy of which is included as Attachment 4. Also provided in Attachment 5 is a copy of the Citizen Inquiry Report form used to collect data from a citizen when a complaint is filed. The statement at the bottom referencing California Penal Code Section 148.6(b) warning citizens about making false complaints against peace officers and advising they could be prosecuted for false complaints at present is crossed out when the form is used. This aspect of the law has been declared void in several decisions. (See People v. Stanistreet, 93 Cal. App.4th 469, 113 Cal. Rptr.2d 529 (2001); Hamilton v. City of San Bernardino, 107 F.Supp. 2d 1239 (C.D. Cal. 2000).) The California Supreme Court will be considering this matter at some unspecified time.

The existing DPS process provides that "any sworn employee whose duties involve public contact may accept an initial complaint against personnel, procedures or policies of the Department" and further provides that "a complainant may be referred directly to the Chief by the City Manager or any elected official of the City." It is not necessary for a complainant to sign a complaint form or to make a complaint in person. The policy then provides for an initial interview and the collection of data, and if it is not possible to promptly resolve the matter, or dispose of it after clarification of procedures and policies, then an investigation is undertaken.

Once a complaint is received it is investigated, depending upon its severity, by a department supervisor or by an individual assigned to the Internal Affairs Unit of the Department of Public Safety. The investigation may be denominated "criminal" or "administrative" (or there may be concurrent investigations) depending upon the allegations of the complaint.

The investigator conducts an appropriate investigation under the circumstances, including the review of any written reports, relevant audio or video tapes, and witness interviews, and prepares a written report for the Chief. All interviews of subject officers conform to the Public Safety Officers Procedural Bill of Rights, Government Code Section 3300 et seq. The length of the investigation varies with the complexity of the matter and the number of witnesses. At the conclusion of the investigation, the Chief reviews the report and makes findings on the allegations. Pursuant to policy, the matter is reviewed with the City Manager. The Chief then communicates the findings to the complainant and to the officer involved. Examples of the letter to the complainant and to the officer are presented in Attachment 6.

Traditionally, Sunnyvale has not made a concerted effort to inform the public about the complaint process, to explain department policies on the subject, to listen to community concerns about police activities or to ensure access to the complaint process. There has been a dearth of easy-to-understand informational materials or materials in languages other then English, few efforts to reach special populations, little facilitation of complaint intake or focused community meetings. This has begun to change as a result of an event occurring in July 2002, as reflected in Attachment 7. Now there is a hotline number and indications of an on-going effort to reach out to the community in terms of printed materials and community presentations.

A second manner in which a complaint process may be commenced is for the Director of Public Safety to initiate a "Chief's Case." Such investigations are undertaken when the Chief receives information about possible misconduct on the part of a Public Safety Department employee, even though there may not be a complaint filed by a citizen. As head of the Department, the Director/Chief assigns the investigation to an appropriate individual and identifies what allegations are to be investigated. Aside from the method of origination, the conduct of such an investigation is the same as the conduct of a more typical citizen complaint. (For the purpose of the remainder of this report, the term "citizen complaint" or "complaints" will encompass both a traditional citizen complaint and a chief's case unless otherwise stated.)

One of four findings typically is made at the conclusion of an investigation: unfounded, exonerated, not sustained, sustained. Penal Code Section 832.5(d) defines both unfounded and exonerated. The Penal Code definitions are:

In the DGOM provisions cited above, the Findings portion reads:

a. Unfounded – Investigation reveals that the act or acts complained of did not occur. This finding also applies when the accused employee was not involved in the act which may have occurred.

b. Exonerated – The act(s) which was the basis for the complaint or allegation occurred; however, investigation revealed that it was justified, lawful and proper.

c. Not Sustained – Investigation failed to disclose sufficient evidence to either conclusively prove or disprove the allegation(s) made in the complaint.

d. Sustained – Investigation disclosed sufficient evidence to prove, beyond a reasonable doubt, the allegation made in the complaint.

To provide perspective on the number and types of complaints dealt with in an average year, statistics from the five year period 1997 through 2001 were reviewed. The information yields the following breakdown in terms of citizen complaints versus chief's cases:

Of the 114 cases during this time period, 37 were considered to be procedural, 14 were labeled as excessive force incidents and 63 were described as conduct unbecoming.

A procedural allegation is a claim that some policy or procedure was not appropriately followed or was inappropriately applied. An excessive force incident is one where the claimant believed the action taken or the force used was inappropriate; the term excessive force does not in an of itself equate to a physical altercation, such as a beating. Conduct unbecoming is a general catch-all, used most often when there isn't any other provision of the General Orders to cite. Conduct unbecoming is often charged in addition to something else, and when the other allegation is not sustained but it is concluded the officer's interaction was in some way inappropriate, "conduct unbecoming" frequently is determined to have occurred.

Out of the 114 cases during the 1997-2001 time period, the only cases in which the allegations were sustained were cases with conduct unbecoming charges; 26 such allegations were sustained. [None of the foregoing statistics include the recently concluded multiple year investigation turned over to the FBI which resulted in an officer's arrest and resignation.]

If the investigation of any complaint results in a determination of wrongdoing or violation of policy, the officer involved may be subject to discipline. Disciplinary processes for the most part are confidential personnel proceedings. As a result, any discipline imposed is confidential and not reported to a complainant.

There has not been an effort over the years to correlate citizen complaints against DPS personnel with any subsequent litigation. There is no legal requirement that a citizen complaint be filed as a precursor to litigation. A quick review of available file materials indicate, however, that very few incidents in Sunnyvale ever develop into cases filed against the City, and few cases were successful. A review of litigation files indicates that for the five year period 1997-2001, there were 8 DPS incidents which resulted in the filing of litigation containing at least one allegation of violations of civil or constitutional rights, false arrest or imprisonment and so forth; most of these lawsuits were not preceded by a citizen complaint. Of the 8, 3 were dismissed [and one was never served after being filed]. Four matters arising in 2000/2001 are still in progress. Of the 4 in progress, only 1 was preceded by a citizen complaint.

The policies for handling citizen complaints for the Santa Clara County Sheriff's Office, the Town of Los Gatos and the Cities of Milpitas, Mountain View, Palo Alto, San Jose and Santa Clara all were reviewed. For the most part, especially with regard to the receipt of complaint information and the conduct of an investigation, procedures are very similar to Sunnyvale's. Some departments are clearer with regard to accepting complaints initiated by any person, whether or not a victim or an eye-witness, and some state concisely that complaints may be submitted by telephone, mail or in person. Mountain View and Palo Alto state that complaints shall be accepted by all employees and forwarded to supervisors. Complaints against any Sheriff's Department personnel may be accepted by "a trained commissioner, member of the staff or volunteer of the Santa Clara County Human Relations Commission" in addition to more conventional channels. A few entities categorize complaints at the outset as either misconduct, procedure or policy. If a complaint focuses on procedure or policy, then it is not investigated as pertaining to a particular officer.

A few department policies include more detail than Sunnyvale's with regard to moving the investigation along in a timely manner and keeping the complainant informed. For example, in Mountain View acknowledgement of receipt of the complaint must occur within two business days. Further "the complainant will be provided updated reports on the progress of the investigation as reasonably necessary to demonstrate the Department's good-faith efforts to complete the investigation and arrive at a disposition in a timely manner." Santa Clara's policy calls for non-criminal intent investigations to be completed within 60 days of being reported and, if not completed within that timeframe, for semi-monthly notification in writing to the employee and the Chief of the status of the case. Palo Alto calls for all administrative investigations to be completed within 30 days of the date the department becomes aware of the alleged misconduct, with the possibility of a time extension. San Jose requires notification to the complainant every 30 to 60 days, depending upon the type of the complaint.

In Milpitas, the term "inconclusive" is used as the finding when an investigation fails to uncover sufficient facts to support or disprove the allegations, rather than the term "not sustained." All other agencies used "not sustained." However, Los Gatos, Mountain View and the Santa Clara County Sheriff's Office have a fifth possible finding: No Finding. "No Finding" applies when the complaint is either withdrawn or dropped, the investigation could not proceed due to lack of cooperation by either the complainant or other witnesses, initial work on the investigation indicates the allegations do not contain any violations or the matter pertains to another agency, or the employee in question has left the department.

Palo Alto has a "Sustained Policy/Procedure" finding for when an investigation discloses that allegations involve a service, policy or procedure, and in such a situation the complaint is sustained against the department and not against the employee.

A notable difference between Sunnyvale and other agencies is the definition of "Sustained" as a finding. All the reviewed entities in the County appear to use a "preponderance of the evidence" or a "sufficient evidence to clearly prove" standard while Sunnyvale's procedures stipulate "sufficient evidence to prove, beyond a reasonable doubt." Thus, Sunnyvale applies the highest level of proof (the criminal standard) to sustain a citizen's complaint. Since the complaint process itself is administrative rather than criminal, the proof beyond a reasonable doubt standard is unwarranted. As between the other standards, the lower one is preponderance of the evidence and the higher one is clear and convincing evidence. Most oversight literature recommends using the preponderance of the evidence standard.

Mountain View's procedure is the only one to include discussion of an Early Warning System. An early warning (EW) system is an administrative system and a relatively new management strategy for identifying "problem" officers, defined as officers who receive an abnormally high number of citizen complaints or have other indicators of problematic performance. An EW system consists of three elements: selection criteria, intervention, and post-intervention monitoring. Certain predetermined officer actions or inactions trigger an early warning system. An EW system provides counseling or training as intervention and is informal in that there is no record of discipline in an officer's file. In Mountain View the system is described as "a pro-active procedure to identify employees who may benefit from intervention before they reach the point of requiring disciplinary action or management referral to an employee assistance program." The log of complaints is reviewed monthly and if there are two or more notable complaints within a 12 month period or other triggering circumstances, then intervention counseling is considered, and if determined appropriate, provided.

Two other differences among local agencies are more significant. In Mountain View there is a staff Board of Review and in San Jose there is a Police Auditor. The Mountain View Board of Review is essentially an internal process involving city personnel who review the investigation results. Most often the Board is comprised of a police captain, an individual of one rank superior to the employee involved, an individual from the employee's division, a person appointed by the President of the Police Officer's Association and a representative of the Office of the City Manager. The Board may hold a hearing and call witnesses. Ultimately, the Board prepares a written finding and disposition of each allegation in the complaint. The Board may include in its findings recommendations for evaluation and/or changes in training and policy. The Board's findings and disposition are advisory to the Chief. The San Jose Police Auditor will be discussed later in this report under Civilian Oversight California Communities.

Policing is a difficult and complex profession. What police do and what they should do, when they are "doing their job" is often much debated. As a whole, the public fluctuates between expecting police to be guardians, servants, enforcers of the law or some combination thereof. It is critical to success that citizens trust that officers will be professional and treat people fairly, equally and with respect. Hence there have been many proposals across the country focused upon the need to identify police practices that build trust, enhance police accountability and reduce police misconduct.

In January 2001 the U.S. Department of Justice published what it considered general principles of police practices that are effective in promoting police integrity. The list is not intended to be absolute standards but rather principles to help departments assess whether they are implementing practices that promote civil rights integrity. A multitude of topics are covered, many of which are beyond the focus of this report. However, those dealing with complaints and misconduct investigations and promoting accountability are set forth in Attachment 8. Among the techniques suggested by the DOJ for these topical areas are (a) broad methods of accepting complaints beyond filing with the law enforcement agency, (b) dissemination of statistical and summary information about complaints (including the nature of the discipline imposed) and (c) public information and feedback including wide circulation of policies and procedures and review by a civilian entity.

In the later part of 1997 the American Civil Liberties Union produced a report stating it is difficult to obtain reliable information to assess the good and bad in a police department. It decried the use of crime rate figures and clearance rate figures, due to the technical problems and the ability to manipulate data; it dismissed arrest rates as subject to too much discretion; and it took the position that citizen complaint rates are important but problematic due to the a lack of information made public and being subject to administrative customs of various departments. The report stressed the need for civilian review for several reasons, which people may or may not agree with:

• Civilian review establishes the principle of police accountability
• A civilian review agency can be an important source of information about police miscon
• Civilian review can alert police administrators to the steps they must take to curb abuse 
• The existence of a civilian review agency, a reform in itself, can help insure that other needed reforms are implemented
• Civilian review is a vast improvement over the police policing themselves

The ACLU has articulated principles for an effective civilian review board. These can be found in Attachment 9.

In November 2000, the International Association of Chiefs of Police prepared a report entitled Police Accountability and Citizen Review. It points out that citizen review is only one tool which can be used to promote and ensure accountability. "It is neither a cure-all nor likely to promote desired results unless accompanied by a full package of accountability-building strategies." The report also notes "In many cases, citizen review proposals are not negative in character but an outreach from the community to help departments respond objectively to difficult internal situations. Many citizens see civilian review as a positive link to their departments."

In Police Accountability: The Role of Citizen Oversight, the author succinctly lays out both the case for and the case against citizen oversight.

Case For Citizen Oversight

Case Against Citizen Oversight

In trying to reconcile the two views the author opines:

Although there is no single model of citizen oversight, and variations abound, most oversight systems fall into one of four types.

Type 1: Citizens or an external agency investigate allegations of police misconduct and recommend findings to the chief or city manager. Persons who are not sworn officers conduct the initial fact-finding investigation of complaints.

Type 2: Police officers investigate allegations and develop findings; citizens review and recommend that the chief or city manager approve or reject the findings.

Type 3: Complainants may appeal findings established by the police or sheriff's department to citizens, who review them and then recommend their own findings to the chief or city manager.

Type 4: An auditor investigates the process by which the police department accepts and investigates complaints and reports on the thoroughness and fairness of the process to the department and to the public.

In California one can find examples of three of the four types. The San Francisco Office of Citizen Complaints and the Berkeley Police Review Commission are local examples of Type 1 systems. The Oakland Citizen's Review Board and San Diego City Civilian Review Board are Type 2 examples. San Jose's Independent Police Auditor is clearly a Type 4 operation.

Given the good representative samples provided by jurisdictions in California, and recognizing they all are subject to the same state statutes as Sunnyvale, it seemed prudent to focus on civilian oversight as it operates in this state. What follows are thumbnail summaries, not at all exhaustive or definitive descriptions, of the various approaches cities have taken.

The Berkeley Police Review Commission (PRC) was created by a voter initiative measure in 1973 and is the oldest continuously operating citizen oversight agency in the nation. The 9 member all volunteer commission is appointed by the city council and holds public hearings of citizen complaints against the police department or its officers. A PRC officer appointed by the city manager forwards each complaint received by the PRC to the police department's internal affairs bureau. (The converse is not true.) Both the PRC officer and internal affairs conduct simultaneous but independent investigations of the complaint. Officers are required to cooperate with the investigation. The PRC officer forwards the investigation results to a Board of Inquiry for a hearing. Three commissioners participate in each Board of Inquiry hearing. After the hearing, written findings are submitted to the complainant, officer(s), city manager and the chief. The PRC cannot make recommendations about discipline; discipline is determined by the city manager. Complainants are informed by mail of the city manager's determination and all complaints filed with the PRC become part of the officer's permanent record, whether or not the allegations are sustained. Any citizen may express concerns about department policies or procedures at full commission meetings held twice a month. Based upon public meetings and citizen complaints, the PRC recommends policy and procedure changes to the city manager and the chief.

The Police Advisory and Review Board was established by an ordinance of the city council in 1992. The intent was to set up an unbiased independent body completely separate from the Police Department to advise the city council, city manager and chief of police on matters pertaining to the administration of the police department. The Board was recreated and reestablished in 2000. It consists of 5 residents appointed by the city council. It is authorized to act as a liaison between the community, the department and the council, and to hold hearings and conduct investigations on citizen complaints concerning specific programs, policies and procedures. Monthly the Board receives a summary of complaints filed, including the number, brief description of each complaint, number of personnel involved and disposition; however, the Board may not undertake investigation of complaints unless authorized by the city manager, and then reports back to the city manager. The Board provides an annual report to the city council of its activities.

Oakland has a 9 member citizen Board, with 3 additional alternate members. All members must be at least 18 and at least one member and one alternate must be under 25. Members are appointed by the mayor, upon recommendation of council members and confirmation by the council. The Board has subpoena powers, its own legal advisor who is not otherwise affiliated with the city and a staff of complaint investigators, including a policy analyst. The Board was established by ordinance for the purpose of reviewing all complaints of conduct by police officers and park rangers filed with the Board or with the police department, conducting fact-finding investigations of the complaints, and making advisory reports regarding the facts and recommended disposition to the city manager. The city manager must respond in writing to the Board and advise it about whether or not the recommendations were implemented as recommended, implemented with modifications or not implemented and the reasons for the action taken. The Board also may recommend policy changes on a quarterly basis.

In 1999 a Blue Ribbon Committee recommended the establishment of a police monitor to have broad oversight powers to review both ongoing and completed investigations of citizen complaints and to encourage procedural and systemic reforms. An Office of Police Accountability was established under the direction, control and supervision of the city manager. The director of the OPA has authority to monitor all investigations conducted by the police department concerning citizen complaints and request further investigation if determined necessary, and to receive all documents needed to conduct such monitoring. The director is to make recommendations for improvements in the complaint process, training needs of officers or other measures needed to improve the process, and to issue an annual statistical report. Citizen complaints filed with the OPA are forwarded to the police department for investigation; the department is to notify OPA of any complaints it receives directly. The director may be present during all interviews and may submit questions to be asked by the interviewer.

In 1982 the Board of Supervisors put the Office of Citizen Complaints (OCC) on the ballot as a voter initiative. A police commission, consisting of 5 members appointed by the mayor, supervises both the OCC and the police department. The commission hires the chief and the OCC director. The commission or the mayor may remove the chief; only the commission may remove the OCC director. The OCC investigates cases filed by citizens alleging misconduct or failure to perform a duty by on-duty officers and prepares findings. If the department's internal affairs division agrees with the OCC findings, the case usually receives a chief's hearing at which the assistant chief presides. An OCC attorney prosecutes the case. The assistant chief can approve the finding and determine discipline, subject to the chief's approval. The commission holds an administrative trial for cases of alleged serious misconduct at which an OCC attorney acts as the prosecutor. OCC also provides policy recommendations to the department, arranges for mediation and provides early warning system data.

San Jose established the Independent Police Auditor (IPA) in 1993. The IPA is an independent agency with a single director and staff, and was established to audit the investigations of citizens complaints of misconduct by officers. The auditor has the authority to recommend that individual complaints be sent back for investigation and also plays a larger role in reviewing the policies and procedures of the police department and making recommendations for change. The office is independent from all other city departments and reports directly to the mayor and city council. Once a complaint is filed with the auditor, it is forwarded to the police department for investigation. The auditor monitors the progress of the investigation and can participate in interviews of witnesses and officers. The final investigation is forwarded to the auditor for review of thoroughness, objectivity an to ensure that the evidence support the finding(s). Public reports are prepared twice a year containing a summary of issues, problems and trends. Between 1993 and 1998 the IPA made 40 recommendations, 38 of which were adopted. Examples of adopted policies include "Establish procedures to address potential bias within the Internal Affairs Unit," "Contact complainants at regular intervals through updates and closing letters," and "Implement policy to standardize format for officer's interview."

Established by ordinance in 1994, the Santa Cruz Police Review Board is made up of 7 residents, each one nominated by a member of the council and subject to a confirming council vote. The CPRB's job is to review police department internal affairs investigations of citizen complaints against officers. After reviewing an investigation report, the CPRB may ask for further information, call for an independent investigation, hold hearings by subpoenaing witnesses and taking testimony, or make a ruling on the internal affairs report. The CPRB determines findings and makes recommendations to the chief. The chief considers the CPRB report in making a decision but has final determination authority as to the outcome of the complaint and notifies all relevant parties. The CPRB sends a copy of its report to the complainant. The CPRB also may make police policy and practices recommendations to the city manager and the city council. Complaint forms, in English and Spanish, are available in at least 20 different locations.

In 2000 the City of Claremont established by ordinance a Police Advisory Commission. This body is composed of 7 citizens appointed by the city council. The stated purpose of the Commission is to provide a forum for community discussion on police issues; make recommendations to the city council, city manager and police chief on police issues; and promote education and communication between citizens and the police department. Among the powers and duties of the Commission are to review and comment on police department policies, procedures and practices, to assist in setting goals for the department, to provide a forum to address concerns, complaints and commendations, to receive reports on the progress or conclusions of investigations, to review and comment on recruitment and training programs, to review customer service programs, community oriented policing programs, crime trends and statistics, and crime prevention programs, and to review and monitor reported data on police stops and police logs to determine patterns of conduct and request information on remedies. The commission does not have the authority to undertake the investigation of allegations related to the actions of individual officers. Claremont also has a Police Facilitator, a volunteer who helps guide people through the city's processes without taking sides.

The Citizen Police Complaint Commission was added to the Long Beach Charter by voter approval in 1990. It is an 11 member body of citizens, 9 of which are nominated by district city council members and 2 of which are at-large, all of whom are appointed by the mayor. The charter amendment authorized the commission "to receive, administer and investigate allegations of police misconduct with emphasis on complaints of Excessive Force, False Arrest, and complaints of Racial and/or Sexual overtones." The Commission is a fact-finding body which is empowered to conduct hearings and, through the Office of the City Attorney, subpoena witnesses and records when necessary to facilitate the fact-finding process. Complaints filed with either the CPCC or the department come to the CPCC's attention. The Commission Investigator, who is appointed by the city manager, may conduct investigations independent from the police department if determined to be necessary. The Commission's findings and recommendations are submitted to the city manager for review and final adjudication.

The Los Angeles Police Commission (LAPC) is frequently cited as an example of an oversight agency that is structurally independent but has not functioned independently of the police department it is responsible for. In 1991 the Christopher Commission concluded that the LAPC had neither sufficient powers nor resources to adequately play an effective oversight role. It recommended the creation of the Office of Inspector General, within the LAPC, with responsibility to oversee the police department's disciplinary process and to participate in the adjudication and punishment of the most serious cases. In 1995 LA voters adopted a charter amendment defining the Inspector General's duties and the first Inspector was appointed in 1996. Significant charter changes adopted in 1999 became effective in 2000. In June 2001 the OIG was given separate duties under a consent decree between the City and Department of Justice not discussed here.

The Inspector General reports directly to the Police Commission. The Inspector General has independent authority to initiate any investigation related to the police department, subject to the Commission's ability to direct that an investigation not be commenced or that an on-going investigation be stopped. The Inspector General is authorized to have complete and unrestricted access to all police department records and employees, and to subpoena witnesses, administer oaths, take testimony and compel the production of documents deemed relevant to any audit, inquiry or investigation. The Inspector General must make available to law enforcement officials any information or evidence obtained which relates to criminal acts, and may not disclose the identity of any employee who complains or provides information without the employee's consent unless absolutely necessary to the investigation and must protect employees from reprisal or threat of reprisal.

The Office of the Inspector General (OIG) serves as an intake point for complaints of police misconduct. With a few exceptions, the OIG does not investigate citizen allegations of police misconduct but forwards the complaints to the department for investigation. The OIG then monitors the status of the complaint as it moves through the system and reviews all completed complaint investigations before they are officially closed. The OIG may refer a complaint back to internal affairs, bring it to the attention of the Police Commission, or take other action such as recommending training for an officer. It also conducts a range of special projects and audits. A wide variety of policy and procedural recommendations have been made. The first annual report of the OIG was issued in April 2002 for 2001.

Since February 1998 the Ombudsman has assumed the responsibility of monitoring complaints involving Los Angeles County Office of Public Safety and Sheriff's Department personnel. Individuals must file complaints with Public Safety, but if a complainant is not satisfied with the outcome of the complaint process, he or she may contact the Ombudsman. The Ombudsman may review the matter or assign a judge from a panel of retired judges to conduct the review. The Ombudsman or judge determines whether additional investigation is warranted. When investigation is complete and a final disposition is made, the complainant is notified in writing by the investigating agency.

The Community Police Review Commission was created by city ordinance in April 2000. It is composed of 9 members appointed by the mayor and council. The stated purpose is to promote effective, efficient, trustworthy and just law enforcement, and to bring to the attention of the city the Commission's findings and recommendations regarding law enforcement policies and practices. The Commission has its own executive director. Among its powers and duties is to advise the mayor/council on all police-community relations issues; receive, review and investigate (through its executive director) written complaints of alleged police employee misconduct; and review and investigate the death of any individual arising out of or in connection with the actions of a sworn officer. Assistance with an investigation from internal affairs may be sought by the executive director, at the director's discretion. Complaints received by and investigated by the department are forwarded to the executive director for review. Once an investigation is determined complete by the director, it is forwarded to the Commission. The Commission is authorized to conduct a hearing on filed complaints and on Commission-initiated investigations if a hearing will facilitate fact-finding. As a body it has subpoena powers. Findings made by the Commission are conveyed to the city manager and police chief. The first annual report issued in 2001 covers the first 14 months of the Commission's existence.

The Citizens' Review Board on Police Practices was established in November 1988 as a result of the passage of a ballot proposition. The Review Board consists of 23 members; anyone 18 years of age who is a citizen of the city is eligible to serve so long as they pass a background check. Members are appointed by the city manager, after a 5 member interview panel makes a recommendation. The Board reviews and evaluates substantive complaints brought by the public against officers and publishes an annual report which presents statistics on the number of complaints filed, the types of allegations, the findings of the police department and the findings of the Review Board. Complaints may be filed directly with the Board or with the department; regardless of where a complaint is filed, it is sent to the department for investigation. After internal affairs completes its investigation, a "team" of 3 Review Board members reviews the entire case. The team then prepares recommendations to the entire Review Board to either agree or disagree with the department's conclusions. A majority of the team must concur in the recommendation for it to be forwarded to the full Board; if a majority cannot, then a new team is assigned. The full Review Board may: agree with the findings with no comment, agree with the findings with comment, disagree with the findings with comment or request additional information. The Board is not authorized to conduct independent investigations. If there is disagreement between the department and the Review Board, final resolution is made by the city manager. However, the Review Board also has the authority to report its findings and concerns to the district attorney, the grand jury and any federal or state authority duly constituted to investigate police procedures and misconduct. Such actions have been taken on a handful of occasions.

San Diego County Citizens' Law Enforcement Review Board

In November 1990, the citizens of San Diego County voted to establish the Citizens' Law Enforcement Review Board. The Review Board is composed of 11 citizens who are appointed by the board of supervisors. The Review Board was established for the purpose of receiving and investigating citizen complaints of misconduct by peace officers and custodial officers performing their duties while employed by the sheriff's department or the probation department. The Review Board is also able to investigate any deaths which occurred while in the custody of, or in connection with, actions of peace officers or custodial officers. The Review Board advises the board of supervisors, the sheriff and the chief probation officer regarding citizens' complaints or deaths, or departmental policies and practices. The Board has jurisdiction over any allegation of misconduct, including: excessive use of force; discrimination or sexual harassment; the improper discharge of firearms; illegal search or seizure; false arrest; false reporting; criminal conduct; or misconduct. It also has jurisdiction to review departmental policies and practices. When a complaint is filed with the Review Board, staff makes an initial evaluation. A copy of the complaint is sent to the relevant department head when the complaint is received. After the initial evaluation the complaint is assigned to an investigator. A report is prepared for the Review Board and the Board may subpoena persons or records. The Review Board may make recommendations based on the report or may hold an investigative hearing on the complaint. The Board's task is to then prepare reports with recommendations for the supervisors and other county law enforcement decision makers. An annual report is prepared.

As can readily be seen from this sampling of civilian oversight in California, there are a variety of approaches. It does not appear at this time there is any reason to institute a civilian oversight program in Sunnyvale. It does appear that changes to and refinements of the existing processes are worth pursuing, however. Pending the success or failure of any revisions, the question of civilian oversight may merit consideration at some time in the future.

The alternatives being recommended should not result in any significant fiscal impact. Most involve revision to and reprinting of informational materials, which are periodically undertaken within the Department's budget. Some suggestions are refinements to commitments previously made. Others recommendations should be able to be accommodated by realignment of operational activities.

Standard Council Agenda posting and publication, including availability in the Library and on the City's website.

1. Direct that the Department of Public Safety take the following steps no later than December 31, 2002 to improve the existing citizen complaint process:

1. Revise the Citizen Inquiry Report form to delete the citation to Penal Code Section 148.6(b) since it has been declared void by more than one court and make other modifications to the form to make it more user friendly.

2. Revise the process so that citizens may file complaints at other than DPS headquarters and possibly with non-sworn individuals.

3. Revise the possible findings so there is a finding of "No Finding," as is used by other local agencies. Consideration may also be given to a policy/procedure finding such as is used in Palo Alto.

4. Establish/clarify/articulate a separate track for complaints that deal with overall procedure or policy rather than specific behaviors of an individual officer.

5. Set general timelines (for example, every 30 days once complaint is filed) for notification to complainants and to officers about the progress of the investigation.

6. Revise the final notification letters to complainants, consistent with legal limitations, so that complainants receive some sort of explanation for the reasons for the decision.

7. Revise the existing Citizen's Guide to Making Complaints, Inquiries and Commendation to reflect changes to the process, such as the new toll free contact number, and revisions noted in 1A though 1F.

8. Produce the Citizen's Guide brochure in appropriate languages and see that it is widely distributed throughout the community.

9. Keep more detailed records of the nature and type of complaints, the time it takes to investigate complaints, personnel involved and the conclusions reached so a more concerted effort can be made to correlate complaints with litigation.

2. Direct that the Department of Public Safety proceed with the community outreach activities outlined in the August 2, 2002 memo, Attachment 7, and report back to the Council on the measures taken no later than June 30, 2003.
   

3. Direct that the Department of Public Safety and the Public Safety Officers Association meet and confer no later than March 31, 2003 over the following matters in an effort to improve the citizen complaint process:

1. Revise the standard used for determining whether a citizen complaint should be sustained from the criminal standard of "beyond a reasonable doubt" to one of the civil standards, either "preponderance of the evidence" or "clear and convincing evidence."

2. Consider implementation of an early warning (EW) system for identifying Public Safety employees whose behavior is problematic.

3. Developing more detailed performance standards and specific unacceptable conduct descriptions rather than relying upon the phrase "conduct unbecoming" for problem behaviors.

4. Consider the use of feedback surveys to collect data from both officers and complainants.

4. Direct that the Department of Public Safety revise the Department General Orders Manual (DGOM) as appropriate in a timely manner to reflect the changes implemented pursuant to Council directives related to this Report.
   

5. Direct that the Department of Public Safety create any additional informational materials which may be warranted as a result of the directives related to this Report, especially recognizing that the DGOM is primarily an internal rather than citizen-oriented document.
   

6. Direct consideration of establishing an internal Board of Review (such as exists in Mountain View), for evaluation of citizen complaint investigations and discussion of the appropriate Department response.
   

7. Do not proceed with the establishment of a form of civilian oversight at this time.
   

8. Adopt some combination of Alternatives 1 through 7.
   

9. Do not adopt any of Alternatives 1 through 7.

Alternatives 1 though 7 as set forth above.

Valerie J. Armento
City Attorney

Attachments:

1. Bibliography

2. Penal Code Section 832.5

3. Citizens' Guide to Making Complaints, Inquiries and Commendations

4. Department General Orders Manual, Chapter 6, Part 6.8

5. Citizen Inquiry Report Form

6. Sample Letters to Complainant and Officer

7. Information Relating to August 2002 Incident

8. Department of Justice Principles for Promoting Police Integrity

9. American Civil Liberties Union Principles

American Civil Liberties Union. Fighting Police Abuse: A Community Action Manual. 1997.

Anderson, David C. "Policing the Police." The American Prospect, Vol. 10, No. 42, January 1, 1999-February 1, 1999.

Chevigny, Paul. Edge of the Knife: Police Violence in the Americas. The New York Press, 1995.

Davis, Robert C. and Mateu-Gelabert, Pedro. Respectful and Effective Policing: Two Examples in the South Bronx. Vera Institute of Justice, March 1999.

Finn, Peter. Citizen Review of Police: Approaches & Implementation. National Institute of Justice, U.S. Department of Justice, Office of Justice Programs. March 2001.

The International Association of Chiefs of Police. Police Accountability and Citizen Review: A Leadership Opportunity for Police Chiefs, November 2000.

Klockars, Carl B., et al. The Measurement of Police Integrity. National Institute of Justice Research Brief, U.S. Department of Justice, Office of Justice Programs. May 2000.

National Institute of Justice Research Report. U.S. Department of Justice, Office of Justice Programs. Use of Force by Police: Overview of National and Local Data, October 1999

U.S. Department of Justice. Principles for Promoting Police Integrity: Examples of Promising Police Practices and Policies, January 2001.

Walker, Samuel. Police Accountability: The Role of Citizen Oversight. Wadsworth Group, 2001.

Weisburd, David, et al., Police Attitudes Toward Abuse of Authority: Findings From a National Study. National Institute of Justice Research Brief, May 2000.

Return to Attachments

(a) Each department or agency in this state that employs peace officers shall establish a procedure to investigate complaints by members of the public against the personnel of these departments or agencies, and shall make a written description of the procedure available to the public.

(b) Complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years. All complaints retained pursuant to this subdivision may be maintained either in the officer's general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer's employing department or agency, the complaints described by subdivision (c) shall be removed from the officer's general personnel file and placed in separate file designated by the department or agency, in accordance with all applicable requirements of law.

(c) Complaints by members of the public that are determined by the peace officer's employing agency to be frivolous, as defined in Section 128.5 of the Code of Civil Procedure, or unfounded or exonerated, or any portion of a complaint that is determined to be frivolous, unfounded, or exonerated, shall not be maintained in that officer's general personnel file. However, these complaints shall be retained in other, separate files that shall be deemed personnel records for purposes of the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and Section 1043 of the Evidence Code. (1) Management of the peace officer's employing agency shall have access to the files described in this subdivision. (2) Management of the peace officer's employing agency shall not use the complaints contained in these separate files for punitive or promotional purposes except as permitted by subdivision (f) of Section 3304 of the Government Code. (3) Management of the peace officer's employing agency may identify any officer who is subject to the complaints maintained in these files which require counseling or additional training. However, if a complaint is removed from the officer's personnel file, any reference in the personnel file to the complaint or to a separate file shall be deleted.

(d) As used in this section, the following definitions apply:

(1) "General personnel file" means the file maintained by the agency containing the primary records specific to each officer's employment, including evaluations, assignments, status changes, and imposed discipline.

(2) "Unfounded" means that the investigation clearly established that the allegation is not true.

(3) "Exonerated" means that the investigation clearly established that the actions of the peace officer that formed the basis for the complaint are not violations of law or department policy.

Commendations received by the Director of Public Safety are forwarded to the employee with a copy placed in his or her personnel file. Your commendation will also be posted on the Department's bulletin board to be read by all employees. Although our employees don't expect to be thanked for everything they do, recognition of exceptional service is always nice. This kind of feedback helps us to know if we are doing a good job.

The Sunnyvale Department of Public Safety is committed to providing the best service possible. Citizen input and feedback is essential if we are to succeed in this goal. If you have questions about specific action taken by the Department. or about how the Department operates, or if you have a recommendation on how we can improve, you may call the Desk Officer at (408) 730-7110, or send your comments directly to:

Irwin I. Bakin
Department o Public Safety
P.O. Box 3707
Sunnyvale, CA 94088-3707

Sunnyvale's Department of Public Safety is unique in that all of the approximately 200 Public Safety Officers train and work in both police and fire services. Each day, we offer professional police and fire services to a residential population of 124,000 and to businesses employing an additional 135,000 people.

In an average year, the Department responds to more than 72,000 calls for service, resulting in over 25,000 reports and 5,500 arrests. They also write about 32,000 citations. In a typical year, fewer than 50 of these public contacts result in some kind of citizen complaint. Additionally, Sunnyvale enjoys one of the lowest crime rates in the nation among cities of comparable size.

The standards of the Department of Public Safety are among the highest in the nation, and our officers are the best trained. As a means of maintaining both high quality service and a healthy relationship with the community, the Sunnyvale Department of Public Safety encourages recommendations from the public on ways to improve our services, welcomes commendations of personnel

who perform their duties exceptionally well, and encourages inquiries or complaints about questionable performance, actions, policies or procedures.

For General Information Call (408) 730-7100
For Deaf Access, Call TTD/TTY (408) 730-7501

An inquiry or complaint can be made by letter, telephone or in person. Any Public Safety Officer whose duties involve public contact may accept an initial inquiry or complaint against personnel, procedures or policies. If the inquiry or complaint is about personnel, you should contact the employee's immediate supervisor. If that supervisor is not available, you may contact the on-duty supervisor. If you are at headquarters or are contacting us by telephone, ask to speak to the Desk Officer. He or she will direct your inquiry to the proper authority.

If your inquiry or complaint appears to be based on a misunderstanding or a lack of knowledge of acceptable or desired conduct, procedures or practices, the employee may offer an explanation. If you are not satisfied with an explanation of acceptable and desirable conduct, procedures or policies, your complaint will be referred to a Manager.

Please be prepared to provide the date, time and location of the event; the names of Department personnel involved (if known); and the name, address and telephine number of any possible witnesses.

Once your inquiry or complaint is received, it will be thoroughly investigated by a person designated by the Director of Public Safety. The investigation will usually

include a review of all applicable reports, policies and procedures, examination of any evidence or medical records and interviews with all parties and witnesses. A simple inquiry might take only a day to complete, while a complex complaint might take two to three months to investigate and review.

The Director of Public Safety reviews every inquiry and complaint. If the Director determines that an employee violated department policies or procedures, appropriate corrective action is taken. The Director's review will also include looking for ways to improve policies, procedures and training.

The Director of Public Safety will review the complaint and findings with the City Manager. This review is to assure that the investigation was handled thoroughly and objectively.

You will receive written notification of the Director's findings. There are four possible findings:

1. Sustained - The allegation made in the complaint was proven.

2. Not Sustained - The investigation failed to prove or disprove the allegation.

3. Unfounded - The investigation shows that the alleged act did not occur.

4. Exonerated- The investigation shows that the alleged act did occur, but was justified, lawlhl and proper under the circumstances.

Q. What happens to an employee if he or she is found to have acted improperly?

A. Some instances require disciplinary action such as a reprimand, suspension, or even termination. Sometimes training is appropriate. If a crime has been alleged, the District Attorney's office will determine if criminal charges should be filed.

Q. Will you tell me what discipline was imposed?

A. State law does not allow us to reveal the specific actions taken to discipline Public Safety employees.

Q. Do I have any guarantee that I will be satisfied?

A. Although we cannot guarantee you will be satisfied, we do guarantee that your inquiry will be investigated thoroughly. You will be allowed to discuss the results with the Director and City Manager. The Department o f Public Safety written policy is readily available to any citizen making general inquiry about how the department processes complaints against personnel, policies or procedures.

A. A proper relationship based upon confidence and trust between the Public Safety Department and the citizens of Sunnyvale is essential to the effective achievement of goals and objectives of the Department. Officers must be free to exercise their best judgment in order to initiate action in a reasonable, lawful and impartial manner. They must, at the same time, protect and respect the rights of all concerned.

B. In order that the Public Safety Department remain responsive to the needs of the public, it must seek out, accept, interpret, and carefully consider any and all expressions of concern with Public Safety practices which are offered by the citizens who come into contact with personnel of the Public Safety Department.

C. All citizens have a vested interest in the effectiveness of the Public Safety Department's manner of discharging its duties. Any Public Safety Department employee who discourages a citizen from providing an expression of concern or from lodging a complaint has caused a disservice to the citizen, compromised the official policy of the Department, and may well be subject to prosecution.

D. An appreciation of the philosophy stated in this policy imposes upon the Public Safety Department a duty to provide a system for: Complaint reception, evaluation and investigation, and a system which provides for corrective measures to be taken when deemed appropriate and, at the same time, protect against unwarranted criticism when the circumstances complained about are found to have been proper.

E. A necessary factor that must exist in the Department's system is a mechanism for careful analysis of the results of a complaint investigation. The mechanism must provide for a review of facts that allows separation of findings between propriety of personnel actions as opposed to the adequacy and continued desirability of existing policies and practices. It can occur that upon investigation of a complaint against an Officer, it is determined that the Officer's actions were within the purview of Department policy and practices. However, upon closer analysis, it is determined that the policy or practice is inappropriate or in need of revision.

Therefore, it is essential to recognize that complaint investigations also provide for inspection and review of Department policy and practice.

1. When the finding is that an Officer acted in conformance with policy or practice, but such practice or policy is found to need revision, the complainant is to be notified of the Department's intent to take action to revise the policy or practice.

A. Whenever an official personnel investigation is conducted for the purpose of determining facts concerning an employee's alleged misconduct, the investigation shall be conducted in compliance with these policies and procedures.

B. The policies and procedures do not apply to supervisors or certain Officers who make spontaneous inquiries during the course of their ordinary duties such as instructing, directing, inspecting, counseling, or the making of informal verbal admonishments (3303(h) GC).

A. California Penal Code Section 832.5 states:

1. "Each department or agency in this State which employs peace officers shall establish a procedure to investigate citizens' complaints against the personnel of such departments or agencies and shall make a written description of the procedure available to the public."

2. "Complaints and any reports or findings relating thereto shall be retained for a period of at least five years."

A. A summarized public notice, "Complaints Against the Policies, Procedures or Employees of the Sunnyvale Department of Public Safety" (Form PS-114), is to be given to any person upon inquiry about Department personnel, policies, or procedures. A supply of readily accessible notices shall be kept in the reception area of the Public Safety Headquarters front lobby.

B. DGOM 6.8 is not restricted or confidential, and is to be made readily available to any citizen making general inquiry about Department personnel, policies, or procedures and about how complaints are processed.

A. Complaints Against Personnel of the Department - An allegation that an employee has committed, or is likely to commit an act which is a violation of law, or official orders, or policies of the Department, or the City.

B. Complaints Against Department Policy or Practices - A criticism of policies, procedures, or actions of the Department including conduct required by law, or official orders of the Department or the City.

C. Personnel Investigation - An investigation concerning an allegation of employee misconduct, the nature of which, if sustained, might result in punitive action such as a criminal charge, or disciplinary action as may be determined appropriate by the Chief.

D. Punitive Action - Any action which may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment. (Government Code 3303)

E. Confidential Notes and Reports - Reports of complaints to, or investigations conducted by, or records of intelligence information, or security procedures of the Department may be deemed confidential and available only to those who can successfully demonstrate a "need to know". (Government Code 6254)

F. Interrogate - To officially seek answers or information which the questioned person may consider personal or secret.

G. Authorized Investigation - A Personnel Investigation which is authorized and directed by the Chief, or an officially designated subordinate.

H. Misconduct

1. Conduct which is contrary to the spirit and intent of the declared standards of conduct as stated in Section 20.00 of the City of Sunnyvale Civil Service Rules and Regulations, City Administrative Policies, Department General Orders, (or)

2. Conduct which tends to compromise services, or reflects unfavorably upon the Department or City, (or)

3. Conduct which constitutes a violation of any statute.

I. Documented Complaint - Any citizens' complaint that has been documented on a Citizens Inquiry Report (PS-127) for further investigation and follow-up pursuant to DGOM 6.8.07.B.

A. In order to effectively discharge the duties and responsibilities of a public service agency, the respect, confidence, and cooperative support of the community must be encouraged and fostered. Individual employees are representatives of the Public Safety Department, and as such, are subject to public scrutiny and evaluation. It is, thus, that they are influential in establishing the degree of public esteem in which the Public Safety Department is held in the community.

B. The Director of Public Safety discharges a responsibility to individual employees, their families, the Public Safety Department goals and objectives, and ultimately the community at large, by insisting that all personnel maintain a standard of performance and conduct which is beyond public reproach. In carrying out his responsibilities, the Director of Public Safety must provide for the thorough and objective examination of circumstance whenever substandard performance, or conduct is alleged, or suspected.

C. Any sworn employee whose duties involve public contact may accept an initial complaint against personnel, procedures, or policies of the Department.

1. Experienced full-time employees who have sufficient knowledge regarding the subject of the complaint should offer an explanation when it appears that the complainant is basing the complaint on a misunderstanding, or lack of knowledge of acceptable and desirable conduct, procedures, or practices of the Department.

2. Employees need to exercise extreme care in their evaluation of a complaint and their capability to accurately convey procedures or practices to the complainant. Whenever there is any doubt concerning an employee's ability or authority to provide accurate information on the subject of an inquiry, or whenever a complainant is not satisfied with an explanation of acceptable and desirable conduct, procedures or practices, the employee shall refer the inquiry or complaint as outlined in DGOM 6.8.07.A.

3. It should be explained to the complainant that the Director of Public Safety is always willing to talk with any citizen, however, it is usually more efficient to first work with the supervisors and managers under the Chief's command. The Chief ultimately reviews all documented complaints and must be satisfied with the thoroughness of the investigation before approving the findings.

4. The Command Officer or designated employee receiving a complaint from a citizen has the responsibility for assuring that Department policies and procedures for investigation of complaints are thoroughly explained and understood by the complainant.

D. A complainant may be referred directly to the Chief by the City Manager or any elected official of the City.

E. Third Party and Anonymous Complaints

1. It is not uncommon for the Department of Public Safety to receive a complaint from a party who was not involved in the actions which gave rise to the allegation(s). Such cases usually involve spouses, parents, neighbors, attorneys, or friends of the person purported to have been aggrieved by actions of an employee of the Public Safety Department.

2. It shall be the expressed policy of this Department that all such allegations which become known to any member of the Department - irrespective of the source of the allegation - shall be treated in the same manner as if the aggrieved party had lodged the complaint directly with the Department.

A. When an employee has determined after an initial interview with a complainant that:

1. The complaint is not based on a misunderstanding, or lack of knowledge of acceptable and desirable conduct, procedures, or practices of the Department, (or)

2. The complainant is not satisfied with an explanation of Department policies and procedures, the employee shall notify the complainant that a Public Safety Supervisor will contact them. The employee will then immediately notify the on-duty Patrol Supervisor of the following:

a. The nature of the complaint.

b. Complainants name, phone #, and address.

c. Case number if applicable.

B. The on-duty patrol supervisor shall make contact with the complainant as soon as practical. When it is determined after an initial interview with a complainant that:

1. The complainant believes that remedial action should be initiated by the Department, (or)

4. A Personnel Investigation is in order due to the seriousness of the charges, even though the complainant is uncertain of the facts (refer to DGOM 6.8.05.C.), the substance of the allegation(s) is to be documented on a Citizens Inquiry Report (PS-127) and forwarded immediately to the Patrol Operations Captain if the complaint is against Patrol Operations personnel, policies, or procedures; or to the Special Operations Captain if the complaint is against any other Department personnel, policies, or procedures. All documented complaints shall be complete and thorough as to the substance of the allegation(s). The complainant shall be notified that an investigation will be conducted into the matter and that they will be re-contacted by the person assigned to investigate the complaint.

a. There is no requirement that the complainant sign the complaint form or make the complaint in person.

b. The Citizens Inquiry Report is a confidential Departmental record until deemed otherwise by a Command Officer.

C. After review of a documented complaint, the Patrol Operations Captain or the Special Operations Captain shall, with the approval of the Police Services Commander:

1. Assign the complaint to a Department Supervisor for investigation and follow-up, (or)

2. Refer the complaint up the chain-of-command for assignment.

A. Assignment of an Investigation - Documented complaints that are referred up the chain-of-command will be reviewed by the Director of Public Safety, or the Director's designee, who shall assign an Investigator for the complaint. Upon assignment, the Investigator, irrespective of his/her normally assigned duties, shall report directly to the Chief, or his/her designee, on any matters associated with the complaint investigation.

B. Nature of Investigation - A Personnel Investigation may be "Criminal", or "Administrative". A Criminal Personnel Investigation is one which results in the review of the facts by the District Attorney for issuance of criminal charges. An Administrative Personnel Investigation is one which results in the review of the facts by the Chief for recommendation to the City Manager of appropriate punitive disciplinary action in compliance with City Administrative Policies and the City of Sunnyvale Civil Service Rules and Regulations.

1. The "Public Safety Officers' Procedural Bill of Rights Act" as enacted by the State Legislature into Chapter 9.7, Division 4, Title I, of the California State Government Code (Sections 3300 et. seq.) shall be observed in any Personnel Investigation conducted which involves sworn employees of the Public Safety Department.

C. Concurrent Investigations

2. If, during the conduct of an in-progress criminal, or administrative personnel investigation, facts come to light which indicate that a parallel Personnel Investigation for Criminal or Administrative purposes is warranted, the Chief may direct that such an investigation be commenced.

D. Immunity

1. No person contacted in the course of a Personnel Investigation is to be advised that a statement will be kept confidential and will not be revealed to a defendant, the Court, District Attorney, etc., nor should any person be offered immunity from prosecution as a condition of giving a statement.

2. In the event that the Chief believes that the importance of a disciplinary action outweighs a possible criminal prosecution, and the granting of immunity from criminal prosecution is vital to the successful conclusion of the investigation, the case shall first be discussed with the District Attorney and only after concurrence is obtained, may the Chief direct that such an offer of immunity be made.

E. Statements

1. Whenever possible, statements obtained during the course of a Personnel Investigation shall be tape recorded. Recording a statement provides for the following:

a. Facilitates the interview process for the investigator by eliminating the need to take detailed notes.

b. Precludes the possibility that a statement may be misinterpreted, or taken out of context.

c. When later transcribed to a typed document, provides for a verbatim statement.

d. Precludes the possibility that the person giving the statement may later deny making the statement, or any part thereof.

2. If a recorded statement is not possible, the interviewee is to be provided a written report containing the statement and asked to initial any corrections and sign it acknowledging the accuracy of the statement report in reflecting what the interviewee had to say.

F. Retention of Personnel Investigation Files

1. California Penal Code Section 832.7 states that Peace Officer personnel records and records maintained pursuant to citizen complaint investigations are confidential and may not be disclosed in any criminal or civil proceeding except by discovery pursuant to the conditions set forth in Section 1043 of the Evidence Code. Penal Code Section 832.5(b) states: . . "Complaints and any reports or findings relating thereto shall be retained for a period of at least five years."

2. The Director of Public Safety shall assure that a secure file is maintained within the Department wherein all files of Personnel Investigations are retained. Information from such files shall be restricted to access by only those employees of the Department deemed by the Chief to have a "need to know".

G. Conclusion of An Investigation

1. The Chief of the Department may direct a Personnel Investigation concluded when:

a. There exist sufficient facts to establish reasonably that a thorough investigation has been conducted and a "finding" can be determined for the allegations, (or)

b. The investigation is stymied due to lack of cooperation of a complainant, or other circumstance beyond the control or scope of authority of the Public Safety Department.

2. A concluded Personnel Investigation may be re-instituted at any time that new information or facts are made known to any member of the Public Safety Department. Such new information shall be thoroughly investigated and the original findings weighed against the new information found and adequacy and validity re-evaluated.

H. Findings

1. A "finding" is the conclusion or result reached in a Personnel Investigation in accordance with the following conditions:

a. Unfounded - Investigation reveals that the act or acts complained of did not occur. This finding also applies when the accused employee was not involved in the act which may have occurred.

b. Exonerated - The act(s) which was the basis for the complaint or allegation occurred; however, investigation revealed that it was justified, lawful, and proper.

c. Not Sustained - Investigation failed to disclose sufficient evidence to either conclusively prove or disprove the allegation(s) made in the complaint.

d. Sustained - Investigation disclosed sufficient evidence to prove, beyond a reasonable doubt, the allegation made in the complaint.

2. A Personnel Investigation will be declared terminated and a determination of the appropriate finding(s) shall be made only by the Chief of Public Safety.

3. Concurrent with the above defined findings for a Personnel Investigation, the Chief shall also give careful consideration to the policies and practices which were involved in the incident investigated and assure that appropriate revisions are made when deemed necessary.

Upon conclusion of an investigation and a determination of finding(s), the Director of Public Safety shall review a report of the complaint, summary of investigation conducted, and findings with the City Manager. The review is for the purpose of assuring the thoroughness and objectivity of the investigation, and appropriateness of the finding(s).

A. Upon completion of the Chief's review with the City Manager as stated in 6.8.09, the Chief of Public Safety shall notify the complainant of the finding(s). The complainant shall also be informed that if the finding is not satisfactory, or should clarification be desired, the Chief should be contacted. If the Chief's explanation is not considered sufficient, or the complainant still takes issue with a finding, the complainant may appeal further to the City Manager.

B. At the same time that notification of findings is given to the complainant, the Chief shall notify the Officer(s) involved in the investigation of the finding(s). If disciplinary action is to be taken, the process for notification of the Officer of the intended action shall be in conformance with Civil Service Rules and City Administrative Policy.

 

Citizen Inquiry Report Form

CALIFORNIA PENAL CODE SECTION 148.6(b): Any law enforcement agency accepting an allegation of misconduct against a peace officer shall require the complainant to read and sign the following information advisory, all in boldface type:

I have read and understood the above statement.

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October 1, 2002

Jane Doe
1234 Elm St.
Sunnyvale, CA 94087

Dear Ms. Doe:

On (month/day/year), you filed a formal complaint with the City of Sunnyvale, Department of Public Safety. Your allegation has been thoroughly investigated. In brief, you alleged that Officer X maliciously kicked the front door of your residence and searched areas within your residence without permission. You also alleged that Officer X used profanity and had an unprofessional demeanor during this call for service.

The following are my findings for the allegations following full review of statements, testimony, and evidence contained in the Internal Affairs Report CR #01-12345.

• Public Safety Officer X allegedly maliciously and vigorously kicked the front door of Complainant Jane Doe’s residence.
  
• Finding Not Sustained
• Public Safety Officer X allegedly entered Complainant Jane Doe’s residence without her permission and searched areas within.
  
• Finding Exonerated
• Public Safety Officer X allegedly had an unprofessional demeanor during this call for service.
  
• Finding Unfounded
• Public Safety Officer X allegedly used profanity during contact with Ms. Doe.
  
• Findings .Sustained

A finding of "Sustained" means investigation disclosed sufficient evidence to prove, beyond a reasonable doubt, the allegation made in the complaint.

A finding of "Not Sustained" means investigation failed to disclose sufficient evidence to either conclusively prove or disprove the allegation.

A finding of "Unfounded" means the allegation has no basis of fact or has been disproved through the investigation.

A finding of "Exonerated" means the investigation revealed the actions within your allegation was justified, lawful and proper.

Should you have any questions regarding the investigation and/or the subsequent findings, please contact Chief Irwin Bakin at (408) 730-7161.

Sincerely,

Irwin I. Bakin, Director
Department of Public Safety
City of Sunnyvale

October 1, 2002

TO: PSO X, Public Safety Officer
FROM: Irwin I. Bakin, Director
SUBJECT: Internal Affairs Complaint Disposition CR #01-12345

The following are my findings for the allegations following full review of statements, testimony, and evidence contained in the Internal Affairs Report CR #01-12345.

• Public Safety Officer X allegedly maliciously and vigorously kicked the front door of Complainant Jane Doe’s residence.
  
• Finding Not Sustained
• Public Safety Officer X allegedly entered Complainant Jane Doe’s residence without her permission and searched areas within said residence.
  
• Finding Exonerated
• Public Safety Officer X allegedly had an unprofessional demeanor during this call for service.
  
• Finding Unfounded
• Public Safety Officer X allegedly used profanity during contact with Ms. Doe.
  
• Findings Sustained

Sincerely,

Irwin I. Bakin, Director
Department of Public Safety
City of Sunnyvale

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On July 22, 2002, the Director of Public Safety and I announced to the community that we, along with the FBI, had conducted a two-year undercover investigation that resulted in the arrest of an officer in the Public Safety department. We launched this investigation and sought the help of the FBI as a result of some information brought to us by members of this community. We took those allegations seriously and dedicated the resources under the Department's control, as well as those of the FBI and other federal agencies on allegations of state and federal law violations. More importantly, the allegations implied a violation of community trust and the shattering of an oath taken by one who has sworn to protect us.

Our Department must retain trust if we are to continue in its tradition of a high- performance, fully integrated public safety agency responsive to its community and its members. The men and women of this department, the Director, and I pledge to do exactly that.

The Director and I have been reviewing our selection processes, our policies and procedures, our ethics training, management and supervision, and community outreach, and in doing so have identified several items for immediate implementation and several more for further evaluation.

1. Community Outreach:

1. Effective immediately, we are initiating a hotline for all to call to pass on any additional information the public may have on this case, or any other information about the conduct of our officers, both positive and negative. The hotline number is 285-COPS. The public may also call the Chief directly at (408) 730-7155.

2. We will evaluate moving the Internal Affairs investigators office out of DPS headquarters and into office space in the community. This could provide the public with more ready access to those who are dedicated to receive and investigate allegations of misconduct.
   Furthermore, the Director has informed the staff of Internal Affairs that they will now report directly to him. The outplacement of this activity has cost implications that we will review with the City Council.

3. We will be publishing a pamphlet in several languages describing the various methods available to contact Public Safety about the actions of members of our Public Safety Department. We will have it available in public places throughout the city.

4. To ensure service quality, Public Safety is considering making calls to those who have had recent contact with the department to get feedback about our service to them. This may require additional resources and will be discussed with City Council.

5. We will be seeking opportunities to appear at neighborhood association meetings, service clubs, and other public forums to discuss the implications of this case, our commitments to retain trust, and providing reports on our progress.

2. Recruitment and Selection: The Director has ordered a thorough review of our recruitment, selection, and hiring standards and procedures to ensure that we continue to hire quality staff that delivers the service excellence that we have come to expect.

3. Training: The department will evaluate additional training in ethics and values to reinforce the highest standards of performance. This, too, will necessitate further discussion with you regarding fiscal impact.

4. Policies and Procedures: Our policies and procedures will be reviewed to ensure that they provide a solid foundation for the continuation of ethical, legal, and safe public safety processes and actions.

5. Management and Supervision: The Director has strengthened the role of management and supervisors throughout the department and directed closer oversight, performance documentation and performance review, and accountability across the board.

6. I have directed the Public Safety Director to increase our efforts to control vice activities in our community.

The investigation leading to the arrest of one of our officers was the result of initial information reported to us by members of the community. That information was the springboard for our investigation and our prompting the investigative support of the FBI. We are dedicated to retaining trust by evaluating and implementing the measures outlined above and reinforcing it through each contact we have with the public. As we move forward, we look forward to your continued support for a high-performance fully integrated Public Safety Department that is responsive to its community and its members.

cc: Executive Leadership Team

• Law enforcement agencies have a continuing obligation to serve the community. One aspect of this obligation is to ensure that agency procedures and actions are reasonable and effective. To fulfill this obligation, agencies should provide a readily accessible process in which community and agency members can have confidence that complaints against agency actions and procedures will be given prompt and fair attention. Such investigations will not only provide for corrective action when appropriate, but also will protect against unwarranted criticism when actions and procedures are proper. A fair and thorough investigation further serves to protect the community, the agency, and its personnel from complaints that are based on misunderstandings or invalid information.

2. Accepting Misconduct Complaints

• Civilians should be provided a full and fair opportunity to file complaints alleging officer misconduct. Civilians should be allowed to file complaints in-person, by mail, by telephone, by facsimile transmission, or, where possible, by e-mail. A complaint form should be offered, but completion of the form should not be required to initiate a complaint. Individuals should be able to obtain and file complaint forms at places other than law enforcement agencies.
• Officers and other employees should be prohibited from refusing to accept complaints, or attempting to dissuade a civilian from filing a complaint. Civilians should not be required to meet with or speak with a supervisory officer as a requirement for filing a complaint.
• Complaints should be accepted from all individuals, including those who request anonymity. Complaints should be accepted from third parties to ensure that witnesses of abuse or misconduct can file complaints as well as victims of such misconduct.

3. Reports of Misconduct

• Law enforcement officers should be required to report misconduct by other officers that they witness or of which they become aware. The failure to report misconduct should be subject to appropriate discipline. Agencies may want to consider installing a confidential hotline for reporting misconduct and ethical violations.
• Agencies should have in place appropriate protection against retaliation for officers who report misconduct.
• Law enforcement officers should be required to report to their agency any instance in which they are: arrested or criminally charged for any conduct; named as a party in a civil suit regarding on-duty conduct; or named as a party in a civil suit regarding off-duty conduct where the allegations are related to the officer's ability to perform law enforcement duties (e.g., improper force, fraud, or discrimination).
• Law enforcement agencies should seek to be notified whenever a court or a prosecutor concludes that an officer engaged in misconduct in the co