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Crossing
Police Lines Two years after a scandal in which two police officers were convicted of raping or sexually abusing more than a dozen women, the EPD has yet to provide a full public accounting of what went wrong.
Many of the women that EPD officers Roger Magaña and Juan Lara victimized had complained to police, but fellow officers did nothing. After a co-worker told Magaña about one woman's complaint, Magaña retaliated against the victim. He ripped off her pants, put his gun to the woman's genitals and said, "If you tell anyone anything about me, I'll blow you up from the inside out," she testified. "Why the hell didn't they listen to me?" That question remains unanswered. This week EPD Chief Robert Lehner balked at a consultant report calling for the department to contract with an outside investigator to provide a thorough internal investigation of how EPD failed in hiring and supervising Magaña and Lara (see sidebar). An independent citizen review board with strong power might have answered the woman's question, but Eugene doesn't have one and it doesn't look like it will get one. The Eugene Police Commission, long criticized as a group of police "groupies," is preparing a recommendation for a weak citizen review board and staff auditor. The board/auditor would be advisory only. The board/auditor could recommend that the police declare a complaint founded, but could not recommend the specific discipline for the officer. The EPD could ignore any recommendations. Eugene police commissioners recommended that the auditor be able to monitor police internal affairs (IA) investigations with full access to documents. The auditor would have the power to require IA to conduct additional investigation or contract with an outside entity to conduct certain investigations. The citizen board would not have these powers to require further internal or external investigation. The board would only be advisory to the auditor.
Portland, San Francisco and Seattle have stronger external review models. In Portland, if the police chief rejects a review board recommendation, the City Council can overrule him. In Seattle, the mayor and council appoint a civilian who conducts investigations and adjudicates complaints. In San Francisco, an external citizen police commission has the final say on disciplining officers for citizen complaints. Members of a Eugene Police Commission subcommittee opposed these more powerful models for independent citizen review, arguing that they were too costly, adversarial and duplicative of EPD internal reviews, and would leave citizens and officers unsatisfied, according to a staff memo. But it's unclear whether a weak advisory only citizen review board will satisfy widespread calls for external review of complaints. In cities such as Minneapolis, police chiefs have ignored such advisory review boards with impunity, leaving citizens frustrated. The subcommittee's draft recommendation goes to the full Police Commission Thursday, May 12, and many crucial details remain unresolved. Here's some big questions: Who hires the auditor? The Police Commission left undecided the key issue of who hires and supervises the auditor. If it's the city manager, the auditor wouldn't provide external oversight. The manager already appoints the police chief and has never publicly disagreed with him. A council appointment would require a charter amendment. The current charter only allows the council to hire a city manager and municipal judge. Another question would be if the council can hire the auditor, can it also order the auditor around and fire him or her at will. The council can fire the city manager at will and can direct him to pursue certain city policies, but can't direct the appointment or removal of other city personnel or contractors, under the current charter. Will there be friction between the auditor and board? In Portland, the auditor is viewed as pro-police and the civilian review board pro-civilian, creating tension. In a controversial shooting case last year, half the civilian review board resigned to protest the auditor's refusal to investigate. The auditor has unexpectedly seized so much power in Portland that the civilian board has been left with "nothing to do," says Dan Handelman a founder of Portland Copwatch.
The Eugene Police Commission appears to be heading toward giving the civilian board no power over the auditor. This could further weaken the already weak civilian review board, making them advisory to an advisory auditor. One commissioner, Maurie Denner, argued for getting rid of the citizen board altogether as too political and costly. But other commissioners said the citizen board component was important to respond to widespread calls for citizen oversight. "It's a broad-based community expectation and desire," said Police Commissioner Carla Newbre. Who will be appointed? A good review model can be subverted by bad appointments, says Handelman. The Portland auditor has the power to launch an independent investigation of an allegation, but has never done so, he says. "The IPR [auditor] is really interested in protecting the city's interests and shielding them from lawsuits rather than finding out the truth." In San Francisco, police reform advocates have been repeatedly frustrated that review board appointments don't include reform and human rights advocates. Handelman says training for citizen appointees can be important. Training should include sessions with human rights, homeless and civil liberties advocates, and not just police tours of the shooting range, he said. The Eugene Police Commission's draft recommendation calls for the mayor and council to appoint members of the citizen review board. The police commissioners are appointed in the same way, but former Mayor Jim Torrey stacked the group with boosters for police funding increases. How open will external review be? A key reason for external review is to increase public confidence in investigations of police complaints. But if the review process is largely secret meetings and documents, it's hard to see how that goal will be accomplished. The Police Commission's draft recommendation says board members will have full access to all documents relevant to a case "in a non-public setting." However the auditor will present its "findings on an investigation for the board's review in a public meeting." Other details of what information can be made public regarding board and auditor activities remain unresolved. Chief Lehner has publicly said the department should release more documents regarding complaints. But that talk hasn't translated into reality, and the city has not significantly altered it's policy of refusing to release almost any document related to complaints against police. The Oregon Public Records Law requires the city to release complaint documents in cases in which the city decided not to discipline officers. But the city has refused requests for such documents. Ironically, the records law allows a conditional exemption from releasing documents for complaints where discipline was imposed. If the city's interest in not disclosing the documents outweighs the public interest in disclosure, the city doesn't have to release the documents. For these disciplinary documents, the city has taken the position that it will not release the documents unless a citizen goes to the large expense in time and cost to sue and a court orders the documents released. City Attorney Sharon Rudnick told police commissioners that the city is "obliged to assert that exemption [for disciplinary records] under the current union contract," according to meeting minutes. The current contract states only, "Personnel files of all employees shall be considered confidential in accordance with Oregon's Public Records law." It's unclear how Rudnick construes that to mean the contract requires the city to litigate against disclosing disciplinary records. It's also unclear why the city would have wanted to secretly bargain away the public's right to know. The union contract is now up for renewal and it's possible the public records provision could be changed. Will the union fight citizen review? So far the police union hasn't come out against the current weak citizen review proposal. But the union opposed a similar review measure in 1998 that failed by less than 1 percent in a charter amendment vote. The current union contract sets detailed disciplinary rules and requires the city bargain for any changes. Disputes on the contract or individual disciplinary actions go to binding arbitration. Efforts to tighten discipline in the past have been thwarted by the police union. In the early 1990s, former chief Leonard Cooke said he was "stunned" by the loose discipline at the department and tried to tighten it. But the union successfully argued in arbitration that such efforts to increase discipline made disciplinary actions illegally inconsistent with past, looser discipline. It remains to be seen just how aggressive the union will be in fighting the creation or operations of a citizen review board. But in the past, the union hasn't been shy about asserting officer rights over public accountability. The union's law firm describes itself as "the bad boys and girls of labor law" on its web site (www.ggfm.com)and features an animation of chomping sharks. Will the chief ignore the review board? Some advisory review boards require the police chief to publicly report his reasons if he ignores the board's advice. The Eugene proposal so far includes no such provision. Will the review board have adequate staffing? Police review boards in other states have been made ineffective by inadequate budgets. In San Francisco citizens passed a ballot initiative in 1996 requiring minimum funding. Will the auditor/review board have the power to compel testimony? At least 16 cities have given their independent review bodies subpoena power or the power to compel testimony and cooperation from police officers and city staff. The 1998 review board proposal recommended that city personnel be required to cooperate with the board and auditor. Will the police continue to threaten complainants with arrest? Right now, the city warns complainants that their records will be checked and they will be arrested if they have outstanding warrants. Citizens and police commissioners have expressed concerns that this unnecessarily frightens away complaints. The EPD has said it has a legal duty to check complainants for warrants. But EPD policy does allow patrol officers discretion in whether or not they do warrant checks for every contact. Many of Magaña's victims had arrest warrants for drugs and prostitution and a city detective testified that he used his discretion in not trying to arrest them while he was gathering evidence for Magaña's trial. A related issue is whether the city will require sworn statements from complainants, threatening them with criminal charges for lying. Some commissioners argued that officers face serious consequences for complaints and so should citizens. But other commissioners expressed concerns that threatening prosecution for lying would frighten away complainants. What reporting functions will the review board/auditor have? In other cities, review boards and auditors track complaints against officers for an early warning system that identifies problematic officers and survey complainants to see if they were satisfied with the process/outcome. In Eugene, the current police union contract sharply restricts how the department uses records of past complaints. Unfounded complaints and even some founded complaints over two years old can't be used for personnel decisions. The city may be able to renegotiate this provision or finesse it by using an early warning system to not discipline officers, but only identify them for additional supervisor attention. How will a review board fit in with the existing Police Commission? Many cities give their review boards the power to recommend policy changes that they discover as needed while reviewing complaints. In Eugene, the Police Commission is supposed to recommend such policy changes, but is often ignorant of what's needed since it isn't involved in investigating complaints. The review board could take over that policy role from the Police Commission. But police commissioners expressed concerns that board members would be overworked or not pay enough attention to policy. The EPD didn't listen to Magaña's victims until it was too late, but the city says it wants more citizen input on external citizen review. The full Police Commission plans to hold public hearings on its draft external review model and issue a final recommendation to the City Council by the end of July.
EPD
Balks at Reforms The Eugene Police and Human Resources Departments have balked at key reforms called for by a recent outside management review. After the convictions last year of officers Roger Magaña and Juan Lara for sexually abusing more than a dozen women, the city paid the International City/County Management Association (ICMA) and the Police Executive Research Forum (PERF) $108,000 for a management review of the police department. A March PERF/ICMA report described an EPD in "crisis" and lacking public trust, adequate supervision, leadership, and internal affairs investigations. "Lack of Eugene Police Department leadership and supervision combined with flawed selection and IA processes created an environment where Magaña and Lara could thrive and go undetected," the consultants reported, recommending dozens of changes in the department. But in a report to the city manger released this week, Police Chief Robert Lehner and Human Resources Dir. Lauren Chouinard largely balked at many of the most significant reforms, refusing to make them a budget priority. PERF/ICMA called for the police to: Expand the EPD Internal Affairs office from one officer to four, including one captain. EPD said it would only add one new sergeant. Contract an outside consultant to oversee EPD to make sure the PERF/ICMA recommendations are implemented. The EPD/HR balked, instead saying they would use the city volunteer citizen Police Commission to oversee reform. The Police Commission relies on city staff for information and has been criticized for it's lack of apparent independence from the police department. Increase supervision of officers by sergeants and lieutenants. EPD said it was "impossible" to increase supervision by busy lieutenants and said sergeants couldn't spare time from their "not discretionary" administrative duties to supervise officers. Hire an outside investigator to conduct a thorough internal investigation of how EPD failed with Magaña and Lara. EPD/HR refused, saying they would instead meet with city attorneys after victim lawsuits against the city for negligence are completed to see if the litigation revealed any additional information. A continuous theme of the EPD/HR response to the PERF/ICMA recommendations was that the police budget wasn't big enough to allow for reform. EPD/HR even put in a plug for a new police station, claiming it can't find space for a few more internal affairs staff. For a decade, EPD has argued that it needs to almost double its budget, claiming it is direly underfunded. But Eugene has about the same number of police officers and police spending per capita as Salem. The crime rate in Eugene has dramatically fallen over the past decade, despite the supposed lack of police. Trial testimony indicated Magaña had plenty of free time, running up cell phone bills of up to $700 a month, often in harassing phone calls to victims while on duty. PERF/ICMA reported that Eugene doesn't appear to have too few supervisors. Eugene has one sergeant supervising six to ten patrol officers, whereas many departments around the country have ten to twelve officers per sergeant. The consultants faulted a key EPD study that the department has used to argue for huge budget increases, noting that the study failed to determine "what the actual need was in terms of personnel hours to handle the existing workload." The consultants noted that they have never met a police department leader who didn't claim his department was understaffed. They said the EPD should hire a skilled consultant to determine if staffing was adequate and "whether or not personnel are used as efficiently and effectively as possible." This isn't the first time the police have cried poor when pressed for reform. Fifteen years ago, the city council told the police to implement a more citizen-friendly community policing plan, but the police union and department balked, claiming they couldn't do it without a massive budget increase. There was little effort then to prioritize the department's budget to match citizen priorities and there appears to be little effort now to prioritize EPD's $30 million budget to support reform. EPD had enough money to add five new staffers last year, reprioritized money to add another manager for detectives, has two full-time PR people, and has squirreled away $30 million from the city budget for a new police station. But the department still claims it lacks enough money to adequately fund Internal Affairs investigations. At the same time, EPD admits it's "extremely important" to add staff to its "severely understaffed" IA unit. EPD/HR claim that the police are already implementing many of the consultant recommendations informally. Many other changes were left for a "strategic plan" the chief is working on. The department's last such document, the community policing plan, has gathered dust unimplemented for more than a decade. Most major changes are left to the city council to provide big budget increases to implement. The departments claim full implementation of the recommended reforms will take "considerable" time and money. The department's response to the consultants report doesn't shed much more light on what's wrong with EPD, but there are a few glimpses. The memo notes, "Some personnel have worked for the police department for over five years and never received a performance evaluation. Merit increases are sometimes processed with nothing more than a note from the involved supervisor that the subject employee minimally meets all standards for the position and is eligible for an increase." In another section discussing faulty sergeant supervision, the memo notes "EPD's best personnel are not consistently interested in promotional opportunities" because of the "benefits and representation rights versus those of line personnel." Over the years, EPD's powerful police union has exacted compensation and working condition benefits that have made it more attractive to be a line worker than a management supervisor. In the early 1990s, the city defeated a union effort to have EPD sergeants and lieutenants join the union to share the benefits. The city argued that the sergeants and lieutenants couldn't be in the union because they were management involved in the supervision and discipline of union members. There's little indication that Chief Lehner, himself a former police union president, is doing much to shake up the department after the Magaña-Lara scandals. His memo notes the amenable and cooperative relationship he has with the EPD police union, a frequent opponent of strict officer discipline. The EPD/HR memo responds to the heavy criticism of the management review with an apparent shrug. "Even outstanding police departments face occasional criminal misconduct on the part of employees," Lehner and Chouinard write. As for reform, "Change is not easy.
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