Joint Committee on Police Oversight

Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library 1. Agenda Subject 1.1. Motion to amend/adopt agenda Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 1. Agenda Type Recommended Action 2. Adopt the Draft Minutes from May 4, 2023 Subject 2.1. Adopt the Draft Minutes from May 4, 2023 Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 2. Adopt the Draft Minutes from May 4, 2023 Type Recommended Action 3. Review of Draft Proposals and Public Comment Subject 3.1. Review of Draft Proposals and Public Comment Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 3. Review of Draft Proposals and Public Comment Type Recommended Action 4. Presentation from HR Director Kerin Durfee on City Discipline Procedures and Public Comment Subject 4.1. Presentation from HR Director Kerin Director on City Discipline and Public Comment Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 4. Presentation from HR Director Kerin Durfee on City Discipline Procedures and Public Comment Type Page 1 of 99 Recommended Action 5. Review and Discussion of the CNA Report and Talitha Consultants and Public Comment Subject 5.1. Review and Discussion of the CNA Report and Talitha Consultants and Public Comment Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 5. Review and Discussion of the CNA Report and Talitha Consultants and Public Comment Type Recommended Action 6. Any Other Committee Business Subject 6.1. Any Other Committee Business Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 6. Any Other Committee Business Type Recommended Action 7. Adjournment Subject 7.1. Motion to adjourn Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library Category 7. Adjournment Type Recommended Action Page 2 of 99  ORDINANCE and CHARTER CHANGE JOINT COMMITTEE Thursday, May 4, 2023 Public Works Conference Room and Via Zoom (Remote) DRAFT MINUTES Members Present: Councilor Traverse (Ordinance Committee Chair), Gene Bergman (Charter Change Committee Chair), Councilor Hightower, Councilor Shannon, Councilor Carpenter, Councilor Doherty Staff Present: Kim Sturtevant (Acting City Attorney), Joseph Dempsey (City Attorney’s Office Staff) Others in Attendance: Council President Paul, Councilor Magee, Councilor Grant, Acting Chief Murad, Chief of Staff Jordan Redell, Dave Maher, Amy Malinowski, Shakuntala Rao, Andy Blanchet, Jessica Oski, Mary Cox Meeting called to order at 6:07 PM. 1.0 Agenda Motion to adopt/amend agenda Motion to Adopt Agenda as is. Motion by Councilor Carpenter, Seconded by Councilor Shannon Final Resolution: Motion Passes Yes: Unanimous 2.0 Review of Committee Materials and Initial Councilor Comments Carpenter: There has been a lot of discussion over the last two and a half years about the potential charter change. I am less familiar with the other conversations happening and I am hoping to get more familiar with the other work that is still being done on this topic. Hightower: I am hoping to clarify what specific changes we are looking to cover before getting into the details so we can cover this is an efficient way. Shannon: I want to examine our current system and identify what we want to change going forward. I was on a committee in 2019 that looked at policies and practices. It will be helpful to see how the current system is not working and how we can address the issues. We also need to think about how these policies will affect the police officers themselves. Maybe the Chief and the union can facilitate getting feedback from the officers themselves. Bergman: I am looking at the resolution that created this joint committee and I believe that the end date of June 1 is simply too soon and we should move it back. I agree with Joan that we need to have a city-specific solution that addresses both officers and others. I think September is a better end date. There will need to be transparency for any potential new body as well as addressing due process. There is a lot of work to be done, whether we change the role of the Police Commission or create some new body to do the work. Page 1 of 4 Page 3 of 99 Carpenter: I am also curious how discipline works in the City at-large? How does the HR Department and HR Committee role compare to that of the police? Traverse: Yes, I believe that we need to create a list of people that we might want to have weigh in on this issue. I know the Police Commission has been working on this and would like to give a presentation on their work. I do have more substantive thoughts, but I would like to allow others from the public to speak. I am hopeful that this committee will find some solutions since there is so much interest in our community right now. From a charter change perspective, I think the two areas that could change would be the sole role of the Chief in disciplining officers and the role of the Police Commission as an appellate body for officers. Other than that, I believe there is a lot of room for ordinance or other changes. Hightower: I think starting with the issue of disciplinary authority first would be smart as that will likely require a charter change. I am wondering what the best way to get feedback from police officers is and how we can do so quickly. I think we need a policy change that will be clear and still give us flexibility. If we do a charter change, I think it needs to be flexible enough so that we can adjust the policy in the future if the City wants to. In short, I think disciplinary authority should be with the Police Commission, but the charter change should be flexible enough to change in the future. 3.0 Public Comment Councilor Grant: I will be sending out a link to some trainings from NACOLE. The trainings go through the best practices and the purpose of oversight. As a police commissioner, I was concerned about incorrect information getting out to the public about police oversight. There are no two oversight bodies that are the same, but there are some general principles for us to look at. A good example is the commission in New Haven, Connecticut. I hope we can review this NACOLE trainings as we go forward. Jordan Redell (Mayor’s Chief of Staff): The Mayor plans to share a memo with the committees and commission on these points. First, we should codify the current policies of the Police Commission to accurately reflect what they do right now. We also need to codify the justice procedures so that officers are treated fairly. Finally, we need to address the current issues with the charter regarding the role of the Mayor as the chief executive of the City. Currently, the Chief has the sole authority over the police department and the Mayor believes that is problematic. Acting Chief of Police Murad: I don’t want to take up too much time with all of the documents available online. Use-of-force is a significant concern, but it is not the lion’s share of the complaints. We receive about 30 valid citizen complaints a year and all of them are reviewed by the Police Commission. Note: These documents are available on BPD’s website or as attachments to the BoardDocs meeting agenda. As far as engaging with the police officers goes, I think it is a great idea to engage with the officers directly and not just me and the BPOA. We need to craft good questions before we put out any survey and I don’t think we are there yet. Thank you. Shannon: When we are talking oversight, are speaking only of sworn officers or of all the employees at BPD? Bergman: I don’t see our charge as being limited to only sworn officers. Shannon: I bring it up because not all BPD employees are in the police union. Page 2 of 4 Page 4 of 99 Chief Murad: Yes, we have an increasing number of professional, non-sworn staff. Currently, all of the employees of the department, sworn or not, are under the Chief for disciplinary matters. We send all citizen complaints regarding BPD employees to the Police Commission regardless of position. The document on the role of the Police Commission is also available on BPD’s website. Andy Blanchet (AFSCME Local 1674 President): I am glad to see we are looking for change and that is what our members are looking for. I represent the union members at the Howard Center. I want to reiterate what Melo Grant said about making sure the public gets accurate information. I am hopeful for future collaboration going forward on this. Councilor Grant: The Police Commission reviews complaints, but the Commission does not always agree with BPD determinations. I think that issue is an important one and an opportunity to improve training, policies, and community engagement. Amy Malinowski: I am here from the People for Police Accountability. I am wondering how we are going to make these forums more accessible and engage everyone. I know it has been said, but I think the Chief should not have sole authority on discipline matters. Dave Maher: I’ve lived in the Burlington area for about 50 years. I suggest to create a peer review board within the police department. The board could consist of several senior officers, HR, and maybe a union representative. Appeals from this board could then go on to an oversight board. This would allow people familiar with police work to review complaints and make a discipline recommendation. This would also reduce the number of complaints going to the oversight board. Hightower: I want to bring up the CNA report recommendations regarding internal affairs. I think it might be best to have HR Director Kerin Durfee speak to how other City departments handle such issues. Andy Blanchett: Workers at the Howard Center feel like we have a lot of oversight. Our members feel that strong oversight and accountability is very important when our members are interacting with police. Shakuntala Rao (Police Commission): I suggest having one or several police commissioners be invited regularly to these committee meetings. Also keep in mind the matter of resources as we discuss the role and responsibilities of the Police Commission. Carpenter: I view the Police Commission as an independent oversight body. I know some people feel that it is not. In 2020-2021 we spent a lot of time on the CNA report. I think it would be helpful to see what that report says about discipline. I am not sure we will have the time or resources to do the same outreach we did a few years ago. 4.0 Councilor Discussion on Next Steps and Meeting Bergman: Councilor Hightower posited that we should start with discipline. Any further thoughts on that? Hightower: I think I can share or present on the CNA report findings on this. I also think we should have HR Director Kerin Durfee present on how discipline works for the rest of the City. Then we can decide on whether we want to focus on just sworn officers or all of BPD. Councilor Grant: We can work on that together. I went to every public engagement at that time and presented CNA findings to the Council when I was a commissioner. Page 3 of 4 Page 5 of 99 Shannon: I can’t attend the next meeting. I would prefer if the next meeting was more informational and outreach-oriented. This topic is evolving and not everyone’s view is the same as it was a few years ago. Traverse: I agree, I think the next meeting should be focused on information gathering. I also agree with Shakuntala that the Police Commission should be an integral part of the process. Are there any other things we should address? Shannon: We should create a website to host all of the relevant documents and videos of meetings. Carpenter: Perhaps the Police Commission could have a discussion and appoint one or more people to represent the Commission in these discussions. Bergman: We have a large number of documents related to discipline that would be good to have included in our information gathering. We have two proposals for police oversight, both that did not succeed, that we could draw from and see what those ideas were. Hightower: The CNA report pointed out some policies that were not best practice and I think HR Director Durfee has a good idea of best practices for the City and how they might relate to BPD. Bergman: I have two points to bring up. For outreach, we had success with the All Resident Voting issue and to do something like that again we will need some money. We will need outreach services and translation services. In terms of discipline, the question of qualified immunity is a cloud over the use-of-force discussion. It has had a dramatic impact on policing in the U.S. on a whole and we should keep it in mind. Hightower: I prefer to not touch qualified immunity, as that is a large issue that we should save for the end given the complexity. I really want to get a good policy done and that is a huge issue. Doherty: I just want to mention that the Vermont State Police has an internal affairs office and it might be useful to review how their office handles such issues. I also think we should look at how the Fire Department handles disciplinary issues as well. Shannon: It might be helpful to hear from the Vermont Criminal Justice Council and hear what they have to say on this issue. Traverse: So for our next meeting: a presentation from Kerin Durfee, a review of the CNA report recommendations, outreach and engagement, and anything else people might think of before then. 5.0 Adjournment Motion to Adjourn. Motion by Council Traverse, Seconded by Councilor Bergman Final Resolution: Motion Passes Yes: Unanimous The meeting was adjourned at 7:32 PM. Page 4 of 4 Page 6 of 99  CITY OF BURLINGTON ORDINANCE ___________ Sponsor: Public Safety Committee Public Hearing Dates: ___________ In the Year Two Thousand Twenty-Two _____________________________ First reading: _________________ Referred to: ___________________ An Ordinance in Relation to Rules suspended and placed in all stages of passage: ______________ Police Oversight and Accountability: Authorities to Police Second reading: ________________ Commission to alter the Police Disciplinary System Action: ______________________ Date: ________________________ Signed by Mayor: ______________ Published: ____________________ Effective: _____________________ It is hereby Ordained by the City Council of the City of Burlington as follows: 1 That the Code of Ordinances of the City of Burlington be and hereby is amended to include Chapter XX: 2 TITLE OF CHAPTER HERE, which shall read as follows: 3 4 Chapter XX Police Commission 5 ARTICLE I. IN GENERAL 6 XX-1. 7 8 (a) The general purpose of this chapter is to support principles of fair and impartial policing within the City of 9 Burlington Police Department by adopting a procedure that defines the role of the Burlington Police 10 Commission in providing community-based input in the following areas: 11 (1) the development of Department policies and procedures; 12 (2) review of citizen complaints involving the Department or its members; and 13 (3) the discipline process. 14 15 (b) Pursuant to Section 183 of the City Charter, the Board of Police Commissioners shall consist of seven (7) 16 legal voters of said city, to be appointed by the City Council with Mayor presiding to serve for three (3) 17 years and until their successors are appointed and qualified. 18 19 20 ARTICLE II. POWERS AND DUTIES 21 XX-2 22 23 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 24 City Charter, review Police Department Policy and Directives as follows: 25 26 (a) At the behest of the Chief of Police or upon the Commission’s own initiative, the Commission shall 27 take up various Police Department Policies and Directives and review, evaluate, and audit these 28 Policies and Directives for their impact on police-community relations. The Commission may also Page 7 of 99  Page 2 An Ordinance in Relation to 29 follow this same process in the development of new Policies or Directives for areas where there are no 30 existing Policies or Directives for the Department. 31 32 (b) From this review, the Commission shall propose recommended changes to the Policies and Directives 33 to the Chief of Police. 34 35 (c) The Chief of Police shall incorporate such changes, except where the changes would violate a state or 36 federal law, regulation, or standard; would violate a provision of the City’s Collective Bargaining 37 Agreement with officers in the Department; would result in a significant deterioration of public safety; 38 impinge upon an important, clearly identified law enforcement practice; would create substantial 39 liability or exposure to liability for the City as confirmed by the City Attorney; or would make it 40 impossible or impracticable for the Department to follow an identified best practice that is followed by 41 either a majority of Vermont municipalities or a significant number of municipalities of the same size 42 as the City of Burlington. 43 44 (d) If the Chief of Police invokes an exception to a Policy or Directive recommendation to either reject the 45 recommendation or modify the recommendation substantially, the Chief shall report to the 46 Commission, in writing and in a timely manner, the specific exception and the extent to which the 47 Chief is declining the recommendation. The Chief shall not be obligated to communicate in writing if 48 the Chief accepts the Commission’s recommendation in whole or substantial part. 49 50 (e) At the Commission’s next regularly scheduled meeting following a letter from the Chief notifying the 51 Commission of a rejection or substantial modification to the Commission’s recommendation, the 52 Commission shall review the letter and may either accept the Chief’s response or appeal the rejection 53 or modification to the Mayor’s Office. In this decision, the Commission may engage the Chief for 54 further clarification, but neither the Commission nor the Chief are obligated to such clarification if 55 either feels satisfied with their prior recommendation or response. 56 57 (f) An appeal to the Mayor shall consist of a letter from the Commission laying out the reasons for its 58 recommendation and understanding as to why the stated exemption does not apply. An appeal to the 59 Mayor must be supported by a two-thirds majority of the Commission. The Chief shall have up to 14 60 days to submit to the Mayor any response to the Commission’s appeal. 61 62 (g) Upon receipt of an appeal, the Mayor may request a meeting with the Chief of Police and 63 representatives of the Commission, which may be more than one but shall not constitute a quorum for 64 public meeting purposes. Such meeting shall not be considered a meeting of the Police Commission 65 and shall not be subject to 1 V.S.A. § 312 but shall be considered a deliberative session intended to 66 inform the Mayor of the deliberative issues. 67 68 (h) The Mayor shall render a decision on the appeal in a timely manner. The Mayor’s decision shall be 69 final and no further appeals or process shall follow. 70 71 (i) Nothing in this section shall be interpreted to restrict or limit the City Council’s independent legislative 72 powers under Section 48 of the City Charter. 73 Page 8 of 99  Page 3 An Ordinance in Relation to 74 75 76 77 XX-3 78 79 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 80 City Charter, compile and issue an annual report on citizen complaints and the disposition of such complaints, 81 officer discipline, and other pertinent initiatives the Commissions deems noteworthy by the second meeting of 82 the City Council in the month of November of each calendar year. Such report shall be drafted with assistance 83 from the City Attorney to avoid the use of private or protected information to ensure that the report can be 84 made public. The report shall not express opinions of Commission members on individual cases or pending 85 or potential litigation involving the City. The report will be published to the members of the City Council, the 86 Mayor and the Chief of Police, and representatives of the Commission and the Chief may present further 87 information to the City Council at the Council’s invitation. 88 89 90 91 XX-4 92 93 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 94 City Charter review citizen complaints as follows: 95 96 (a) A complaint by a member of the public, hereinafter referred to as “a citizen complaint,” concerning the 97 Department or an employee of the Department may be filed either with the Department or directly with 98 the Police Commission. Any citizen complaint filed with the Department shall be forwarded in a timely 99 manner to the Chair of the Police Commission. 100 101 (b) The purpose of the Commission’s review of a citizen complaint is to identify gaps in policy, practice, 102 enforcement, and training where police department activities concern community standards and 103 expectations. The review process under this Section is not a disciplinary process and should not be 104 used as such. 105 106 (c) The Chair and Vice-Chair of the Police Commission shall screen each citizen complaint and, if 107 appropriate, present them to the Commission for review. The purpose of this initial screening shall be 108 as follows: 109 110 (1) To eliminate any complaint that the Chair and Vice Chair agree does not present a valid, relevant, 111 or current issue on which the Commission can reasonably review or investigate; and 112 (2) To screen out discipline or potential discipline issues against an individual officer and to forward 113 those issues to the Chief of Police for disciplinary process consistent with the Chief’s disciplinary 114 authority and the Commission’s role under XX-5. 115 116 If the Chair and Vice Chair refer a citizen complaint to the Chief of Police for discipline and also seek 117 to refer the citizen complaint to the Commission, the Chair and Vice Chair shall stay referral of the Page 9 of 99  Page 4 An Ordinance in Relation to 118 citizen complaint to the Commission until the discipline process, if any, is completed through any 119 grievance process involving the Commission. 120 121 (d) The Commission shall meet in executive session pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 122 313(a)(4) to review all citizen complaints brought forward for review by the Chair and Vice Chair. The 123 Commission shall, by majority vote, direct the Chair to act on each complaint in one or more of the 124 following ways: 125 126 (1) If the allegations do not appear to merit further investigation, the Chair shall close the review 127 and inform the complainant and the Chief of Police that the Commission has elected not to 128 review the complaint any further. 129 130 (2) If the Commission believes further information is necessary, it shall decide by a majority of the 131 Commission how to proceed as laid out in the next section. The Chair will inform the Chief of 132 Police of the Commission’s decision. 133 134 (e) If the Commission votes to seek more information, it will also determine what kind of information is 135 necessary and shall be as specific as possible in its request to the Chief of Police. The Commission’s 136 options are: 137 (1) A review and summary from the Chief of Police or designee in either oral or written form. 138 (2) A request for Departmental documents associated with the complaint, including, but not limited 139 to, officer reports, Departmental reports, and any other supporting documents. 140 (3) A request to view any camera footage associated with the complaint. or 141 (4) Any other specific information associated with the complaint. 142 143 (f) The Chief of Police shall comply with such a request for information in a timely manner, but shall be 144 under no obligation to provide any specific piece of requested information if any of the following are 145 true about the specific piece of information: 146 147 (1) Providing the information would violate a state or federal law; 148 (2) Providing the information would violate an active court order; 149 (3) Providing the information would violate an agreement with a state or federal law enforcement 150 agency or governmental information sharing service; 151 (4) Providing the information would violate or compromise a right of confidentiality held by a 152 third-party; or 153 (5) Providing the information would compromise an on-going case or investigation with the 154 understanding that once such danger ended, the information would be provided unless it would 155 violate another portion of this section. 156 157 Sharing information under this ordinance shall occur within the confines of an executive session 158 pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 313(a)(4) and the Commission’s oversight authority as 159 a part of the City pursuant to section 184 of the City Charter. It shall not constitute a waiver of any 160 right that the City may have to claim an exemption to public inspection and copying of the records 161 under the Vermont Public Records Act (1 V.S.A. § 317). Commission possession or review is pursuant 162 to the Department’s primary possession under the Vermont Public Record Act. Page 10 of 99  Page 5 An Ordinance in Relation to 163 164 (g) If the Commission votes by a majority to challenge any denial of access to the requested Departmental 165 information, the City Attorney shall review the withholding and stated basis and shall issue an attorney- 166 client opinion to both the Commission and the Chief as to whether the withholding conforms to this 167 ordinance. 168 169 (h) The Commission may elect by majority vote to pause a review of a complaint if a pending prosecution 170 or litigation prevent the Commission from receiving critical pieces of Departmental information that it 171 has requested. The Commission shall inform the complainant of the pause and its anticipated length. 172 173 (i) Commissioners shall not communicate with any complainant, witnesses, or other individuals associated 174 with a review, except as such individuals may provide information directly to the Commission during 175 a public meeting or executive session. Any communication necessary between the Commission or a 176 Commissioner and the complainant, witnesses, or other individuals associated with the review shall go 177 through Commission staff, the City Attorney, or conflict counsel. 178 179 (j) The Commission shall draft findings, conclusions, and recommendations from its review. The City 180 Attorney shall assist the Commission in the creation of this report. This report shall be transmitted to 181 the Mayor and to the Chief of Police. This report shall be treated as an attorney-client document and 182 attorney-work product as recognized in Killington, Ltd. v.Lash, 153 Vt. 628 (1990). The Commission 183 may allow a redacted version of any such report to become public without waiving the confidentiality 184 of the underlying report. 185 186 (k) The Commission shall not make any disciplinary recommendations for individual officers in such a 187 report, but the Commission may make recommendations regarding the development or revision of 188 Policy and Directive, enforcement of existing policy and standards, and the implementation of training 189 directed at any issue or concern found by the Commission. The Commission can also recommend 190 larger structural changes and request that the Mayor or City Council consider such changes through a 191 separate, formal communication. The Commission may also recommend that the Chief of Police 192 conduct an internal affairs investigation based on the Report. The Commission may also forward a 193 copy of the report to the Vermont Criminal Justice Council for review and potential investigation under 194 20 V.S.A. § 2403. 195 196 (l) The Chief of Police shall implement the recommendations of the report to the extent possible. If the 197 Chief does not, the Chief shall note the recommendations not being adopted and a short basis for why 198 they are not being implemented. Such notice shall be sent to the Commission and the Mayor’s Office. 199 The Commission, by majority vote, may choose to respond to the Chief’s decision. If the Mayor agrees 200 with the Commission, the Mayor may recommend the adoption to the Chief of Police or refer to the 201 City Council for further consideration or action. 202 203 XX-5 204 205 To effectuate its purpose, the Police Commission shall, consistent with its authority under Sections 184 and 206 190 of the City Charter provide community feedback to potential disciplinary matters and provide grievance 207 process to the Police Department as follows: Page 11 of 99  Page 6 An Ordinance in Relation to 208 209 210 (a) The Chief of Police shall consult with the Police Commission prior to the imposition or non-imposition 211 of discipline against an officer in the Department. The purpose of the consultation is for the 212 Commission to provide any recommendations, input, or information to the Chief it deems necessary to 213 express the Community’s values underlying the incident. This process shall be conducted orally during 214 an executive session pursuant to 1 VSA 313(a)(4). At the discretion of the Chief, this consultation may 215 or may not include a discussion of any proposed disciplinary actions. 216 217 (b) To avoid a conflict with a subsequent grievance appeal as outlined in Section 190 of the City Charter, 218 a pre-disciplinary consultation under this section shall not be addressed to the full Commission but a 219 panel of no more than two Commissioners selected by the Chair who shall act as a consultation panel. 220 Any Commissioner that participates in a consultation panel shall not participate in a subsequent 221 grievance review and/or hearing arising from the particular discipline. 222 223 (c) The Chief of Police shall consider and incorporate the recommendations, input, and information from 224 the consultation panel of the Commission in a manner consistent with the Department rules, directives, 225 and standards, State and National Police Standards and Training, Burlington ordinances, Vermont and 226 federal law, and the Collective Bargaining Agreement. The Chief of Police’s decision shall be the final 227 decision and shall control any discipline imposed on a Burlington Police Department employee, subject 228 to the grievance procedure outlined in Sections 184 and 190 of the City Charter and any active 229 Collective Bargaining Agreement. 230 231 232 233 (d) If a Burlington Police Department Employee elects to grieve a discipline, the Commission shall hear 234 the grievance in accord with Section 190 of the Burlington City Charter and any active Collective 235 Bargaining Agreement. No Commissioner who participated in a consultation panel underlying the 236 discipline being appealed shall sit in review of the grievance. A quorum for a grievance hearing shall 237 constitute a simple majority of Commissioners who are not otherwise conflicted as defined in Section 238 133 of the Burlington City Charter from reviewing the grievance. 239 240 XX-6 241 242 Confidentiality of Records: 243 244 (a) Professional standards of confidentiality with regard to the work of the Commission shall apply to 245 all information presented to the Commission and to work product generated by the Commission or 246 by the City Attorney or conflict counsel. The Commission shall comply with all Burlington 247 ordinances, Vermont and Federal law, and shall maintain the confidentiality of any and all records 248 and documents received by the Commission in the course of their duties. 249 250 (b) The Commission shall, with the assistance of the City Attorney, draft a Code of Conduct and Ethics 251 for the Commission. This code shall include rules for maintaining confidentiality; protocols for Page 12 of 99  Page 7 An Ordinance in Relation to 252 handling confidential information; recusal; ethical standards for Commission members; and 253 procedures for executive sessions. 254 255 (c) Anytime the Commission discusses a specific matter under review, an individual, or a pending 256 complaint, the Commission shall enter into an Executive Session in accordance with 1 V.S.A. § 257 313. 258 259 (d) A Commissioner, upon taking office, shall take an oath or pledge to uphold and abide by the 260 Commission’s Code of Conduct and Ethics. If there is credible evidence that a Commissioner has 261 violated this oath and pledge, the Chair or Vice Chair of the Commission shall report to the 262 Mayor who may temporarily suspend the Commissioner pending a hearing and vote by the City 263 Council with Mayor presiding under Section 129 of the City Charter. A violation of the Code of 264 Conduct and Ethics shall constitute negligence or bad conduct regardless of the nature of the 265 breach, the intent of the breaching commissioner, or the impact of such a breach. Page 13 of 99 Page 14 of 99 Page 15 of 99 Page 16 of 99 Page 17 of 99 Page 18 of 99 Page 19 of 99 Page 20 of 99  MEMORNDUM To: Karen Paul, City Council President Dan Richardson, City Attorney From: Jabulani Gamache and Stephanie Seguino, Co-Chairs, Burlington Police Commission Date: April 22, 2022 Re: Burlington Police Commission Comments on Draft Ordinance on Police Commission Authority The Burlington Police Commission (BPC) appreciates the opportunity to provide comments on the draft ordinance on BPC authority, developed in response to the City’s Resolution on “Police Oversight and Accountability Authorities to Police Commission to Alter the Police Disciplinary System” (adopted 10/18/21 and signed by the Mayor 11/23/21; hereafter the “Resolution”). The Commission’s detailed comments are in red in the draft ordinance. In light of our review, the Commission recommends the draft ordinance be revised and requests that the revision be resubmitted to the Commission for review and additional comment. In addition to our detailed comments, the Commission’s general comments on this draft are: 1. The ordinance should not be so detailed as to curtail the necessary flexibility of the Commission to develop and revise its own processes and procedures. Rather, broad strokes of authority should be identified in the ordinance, leaving the details to be outlined in individual policies developed by the Commission itself within the parameters of its delegated authority. 2. As a global comment on the substance of the Ordinance, the Commission reminds all stakeholders that Vermont law as interpreted by our Supreme Court and as reflected in the Charter, “envisions a police department created by town government, the operations of which are directed by a chief, but which is concurrently and ultimately subject to the authority of town government.” Turnley v. Town of Vernon, 2012 VT 69, ¶ 18 (interpreting the balance of power, under 24 V.S.A. § 1931, between a police chief and the town’s legislative body (emphasis added.)). The Burlington Charter §§ 3-184, 3-185, as currently written, also reflects concurrent authority shared between the City Council and the police chief. But consistent with Vermont statute, that concurrent authority is ultimately exercised by the City Council, which can in turn delegate its authority to the Commission. Specifically, Section 3-185 makes clear that the “direction and control of the entire police force” is vested in the chief of police “except as...otherwise provided” in the Charter. That exception is significant because the Charter also empowers the City Council to delegate what the Supreme Court characterized as its “ultimate” authority over police department operations to the Commission. Charter § 3-184 (“The Board of Police Commissioners shall have such authority and responsibility relating to the management of the Police Department, its services, and facilities as may be delegated from time to time by resolution of the City Council.”). The ordinance must more fully reflect the law, under which ultimate authority over the operations of the police department reside with the City Council and, as delegated, with the Commission. Simply put, neither Vermont law nor the Charter support a notion that the chief’s authority relating to the management of the Police Department, its services, and facilities, is superior to that of the Commission acting under delegation from the City Council. 3. The ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of interest in many circumstances, undermining the independence that is critical to the Commission’s oversight role. The ordinance should reflect that the Commission, where necessary, relies on conflict counsel for guidance. 4. The ordinance should support transparency to the full extent permitted by the law. Page 21 of 99 5. The Resolution appropriates funds for the Commission’s work and expressly authorizes the Commission to “conduct investigations.” That authority is enough for the Commission to conduct investigations, although future appropriations from the City will be necessary to ensure that delegated authority can be exercised meaningfully by the Commission. 6. In numerous places, this ordinance interposes itself in ways that contradicts existing legislation. The City Council sets policy which it delegates to the Commission. In that regard, this ordinance does not include several key components of the Resolution that addresses the authority of the commission. These should be incorporated: a. The Commission is given the authority to retain outside legal counsel to support independent review of complaints. b. The Commission is given authority to investigate the chief or another appropriate authority and requires that any report of findings be returned to the commission. c. The Commission may speak publicly about citizen complaints in accordance with personnel policies and confidentiality requirements. d. The Commission is allocated a budget for legal services and investigations. e. The Resolution mandates that, under the ordinance, the Commission “will have full and unfettered access to the Department’s documentation of the incident, including officer affidavits, all witness statements, other investigative documents, and all videos.” The Resolution, as well as best practices identified by NACOLE and other experts in the field, recognize that this level of Commission access is essential to the Commission’s fulfillment of its mission under the Charter and State law. f. The Commission is fully and indefinitely authorized, under the Resolution and without need of further legislation such as the Ordinance, to initiate audits, reviews, and evaluations of policies, directives, or data in regard to discipline, racial disparities, or other Commission priorities. The Ordinance should recognize this authority verbatim, and must refrain from adding qualifications or restrictions on to it. Page 22 of 99  CITY OF BURLINGTON ORDINANCE ___________ Sponsor: Public Safety Committee Public Hearing Dates: ___________ In the Year Two Thousand Twenty-Two _____________________________ First reading: _________________ Referred to: ___________________ An Ordinance in Relation to Rules suspended and placed in all stages of passage: ______________ Police Oversight and Accountability: Authorities to Police Second reading: ________________ Commission to alter the Police Disciplinary System Action: ______________________ Date: ________________________ Signed by Mayor: ______________ Published: ____________________ Effective: _____________________ It is hereby Ordained by the City Council of the City of Burlington as follows: 1 That the Code of Ordinances of the City of Burlington be and hereby is amended to include Chapter XX: 2 TITLE OF CHAPTER HERE, which shall read as follows: 3 4 Chapter XX Police Commission 5 ARTICLE I. IN GENERAL 6 XX-1. 7 8 (a) The general purpose of this chapter is to support principles of fair and impartial policing within the City of 9 Burlington Police Department by adopting a procedure that defines the role of the Burlington Police 10 Commission in providing community-based input in the following areas: 11 (1) the development of Department policies and procedures; 12 (2) review of citizen complaints involving the Department or its members; and 13 (3) the discipline process. 14 15 This should be expanded to cover all complaints, including internal complaints—those filed by officers or 16 deputies within the overseen law enforcement agency—to provide law enforcement officers with a neutral 17 and independent outlet for reporting both officer misconduct and alleged retaliation for reporting 18 misconduct. 19 20 21 (b) Pursuant to Section 183 of the City Charter, the Board of Police Commissioners shall consist of seven (7) 22 legal voters of said city, to be appointed by the City Council with Mayor presiding to serve for three (3) 23 years and until their successors are appointed and qualified. 24 25 26 Terms should be staggered. 27 28 ARTICLE II. POWERS AND DUTIES 29 XX-2 Page 23 of 99  Page 2 An Ordinance in Relation to 30 31 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 32 City Charter, review Police Department Policy and Directives as follows: 33 34 (a) At the behest of the Chief of Police or upon the Commission’s own initiative, the Commission shall 35 take up various Police Department Policies and Directives and review, evaluate, and audit these 36 Policies and Directives for their impact on police-community relations and public safety. The 37 Commission may also follow this same process in the development of new Policies or Directives for 38 areas where there are no existing Policies or Directives for the Department. 39 40 (b) From this review, the Commission shall propose recommended changes to the Policies and Directives 41 to the Chief of Police. 42 43 (c) The Chief of Police shall incorporate such changes, except where the changes would violate a state or 44 federal law, regulation, or standard; would violate a provision of the City’s Collective Bargaining 45 Agreement with officers in the Department; would result in a significant deterioration of public safety; 46 impinge upon an important, clearly identified law enforcement practice; would create substantial 47 liability or exposure to liability for the City as confirmed by the City Attorney; or would make it 48 impossible or impracticable for the Department to follow an identified best practice that is followed by 49 either a majority of Vermont municipalities or a significant number of municipalities of the same size 50 as the City of Burlington. 51 52 Strike section (c). Per NACOLE, civilian oversight boards typically have no statutory mechanism that would 53 resolve a disagreement. Rather, the process is that the department can either accept or reject policy and 54 directive revision. However, the civilian oversight body’s (i.e., the Commission’s) recommendations are 55 made publicly, so the department would require a compelling reason not to accept and implement the 56 recommendations, just as the civilian oversight body would be required to produce compelling evidence, 57 analysis, and information on national best practices to make it more likely that recommendations are 58 adopted. 59 60 Further, the Commission's existing authority under the Charter 3-184 is broader than reflected here: 61 62 “The Board of Police Commissioners shall have such authority and responsibility relating to the 63 management of the Police Department, its services, and facilities as may be delegated from time to 64 time by resolution of the City Council. Said Board shall notify the Mayor and the Chief 65 Administrative Officer, in writing, of any and all changes, modifications, or additions to the rules and 66 regulations of the Department.” 67 68 This language entitles the Mayor only to "notice" of changes, modifications, or additions. It neither gives the 69 Chief nor the Mayor discretion to reject or change them. 70 71 72 (d) If the Chief of Police invokes an exception to a Policy or Directive recommendation to either reject the 73 recommendation or modify the recommendation substantially, the Chief shall report to the 74 Commission, in writing and in a timely manner, the specific exception and the extent to which the Page 24 of 99  Page 3 An Ordinance in Relation to 75 Chief is declining the recommendation. The Chief shall not be obligated to communicate in writing if 76 the Chief accepts the Commission’s recommendation in whole or substantial part. 77 78 While the Charter does not empower the chief to reject Commission recommendations, the Commission 79 acknowledges the value in setting a process under which it can receive and evaluate feedback from the Chief 80 on proposed changes or additions to existing policy before finalizing those changes. This language is a helpful 81 starting point for that advisory dialogue between the Chief and the Commission to precede the Commission’s 82 exercise of its ultimate authority. Nonetheless, the draft should substitute “in a timely manner” with “15 days”. 83 There should also be a process for the Chief to request an extension to that 15-day feedback window from the 84 Commission. This extension request to the Commission should be made public and should be accompanied by 85 an explanation from the Chief for the need for an extension. 86 87 (e) At the Commission’s next regularly scheduled meeting following a letter from the Chief notifying the 88 Commission of a rejection or substantial modification to the Commission’s recommendation, the 89 Commission shall review the letter and may either accept the Chief’s response or appeal the rejection 90 or modification to the Mayor’s Office. In this decision, the Commission may engage the Chief for 91 further clarification, but neither the Commission nor the Chief are obligated to such clarification if 92 either feels satisfied with their prior recommendation or response. 93 94 Delete section (e). The mechanism described to reconcile differences on policies is beyond what most 95 other oversight bodies have. As noted above, the best resolution mechanism is a high quality analysis 96 on the part of the Commission and a similarly detailed response from the chief. 97 98 99 (f) An appeal to the Mayor shall consist of a letter from the Commission laying out the reasons for its 100 recommendation and understanding as to why the stated exemption does not apply. An appeal to the 101 Mayor must be supported by a two-thirds majority of the Commission. The Chief shall have up to 14 102 days to submit to the Mayor any response to the Commission’s appeal. 103 104 As per above, this section should be removed, or revised, based on review of other ordinances on this issue 105 and on the fact that it interposes the Mayor as final arbiter in a manner that is not consistent with the Charter’s 106 division of authority. In any case, a simple majority would be sufficient since this is merely to request an 107 appeal. 108 109 (g) Upon receipt of an appeal, the Mayor may request a meeting with the Chief of Police and 110 representatives of the Commission, which may be more than one but shall not constitute a quorum for 111 public meeting purposes. Such meeting shall not be considered a meeting of the Police Commission 112 and shall not be subject to 1 V.S.A. § 312 but shall be considered a deliberative session intended to 113 inform the Mayor of the deliberative issues. 114 115 As per above, remove this section. 116 117 (h) The Mayor shall render a decision on the appeal in a timely manner. The Mayor’s decision shall be 118 final and no further appeals or process shall follow. 119 Page 25 of 99  Page 4 An Ordinance in Relation to 120 As per above, remove this section. 121 122 (i) Nothing in this section shall be interpreted to restrict or limit the City Council’s independent legislative 123 powers under Section 48 of the City Charter. 124 125 126 127 128 XX-3 129 130 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 131 City Charter, compile and issue an annual report on citizen complaints and the disposition of such complaints, 132 officer discipline, and other pertinent initiatives the Commissions deems noteworthy by the second meeting of 133 the City Council in the month of November of each calendar year. Such report shall be drafted with assistance 134 from the City Attorney to avoid the use of private or protected information to ensure that the report can be 135 made public. The report shall not express opinions of Commission members on individual cases or pending 136 or potential litigation involving the City. The report will be published to the members of the City Council, the 137 Mayor and the Chief of Police, and representatives of the Commission and the Chief may present further 138 information to the City Council at the Council’s invitation. 139 140 Delete “in the month of November.” The Commission produces annual reports in July of each year as do other 141 Burlington commissions. November therefore is out of synch. Further, this type of detail in the ordinance does 142 not permit necessary flexibility in carrying out the Commission’s work. 143 144 As an official commission of the City of Burlington, the Commission is a “public agency” within the meaning 145 of Vermont Public Records Act 1 V.S.A. §§ 315-320. The Commission understands that it has obligations to 146 administer the law consistent with its stated policy that: 147 148 “It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter 149 I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it 150 is in the public interest to enable any person to review and criticize their decisions even though such 151 examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their 152 personal and economic pursuits, which ought to be protected unless specific information is needed to review 153 the action of a governmental officer. Consistent with these principles, the General Assembly hereby declares 154 that certain public records shall be made available to any person as hereinafter provided. To that end, the 155 provisions of this subchapter shall be liberally construed to implement this policy, and the burden of proof 156 shall be on the public agency to sustain its action.” 157 158 Where that law creates exceptions to disclosure that affect the presentation of information called for in the 159 annual report, the Commission understands that the law contains mechanisms to achieve the balance between 160 the public’s right to know and personal privacy. See 1 V.S.A. § 318(e) (allowing for redaction of information 161 that is exempt from public disclosure while other nonexempt information can be disclosed). 162 163 Consistent with the law’s requirements, the report has been and should continue to be a public record available 164 for public inspection and copying. The city attorney should not be involved in the preparation of this report. Page 26 of 99  Page 5 An Ordinance in Relation to 165 Complaint policy and the Vermont Public Records Act should guide the preparation of such reports as regards 166 confidentiality. 167 168 169 However, the ordinance should include language that chiefs must provide a written response as to why or why 170 not they agree/disagree with Commission findings on complaints, and those responses should become public 171 in annual reports. This is key to transparency, accountability, and the independent role of the commission. 172 173 174 XX-4 175 176 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the 177 City Charter review citizen complaints as follows: 178 179 (a) A complaint by a member of the public, hereinafter referred to as “a citizen complaint,” concerning the 180 Department or an employee of the Department may be filed either with the Department or directly with 181 the Police Commission. Any citizen complaint filed with the Department shall be forwarded in a timely 182 manner to the Chair of the Police Commission. 183 184 Delete “by a member of the public, hereafter referred to as a citizen complaint” and “citizen” in last 185 sentence. Maintain current practice and policy in which all Commissioners receives complaints at the 186 same time as the BPD. Add language to provide a process by which the Commission receives transcript 187 of verbal complaints to the BPD within 3 days. 188 189 Accommodate possibility of co-chairs of commission. 190 191 (b) The purpose of the Commission’s review of a citizen complaint is to identify gaps in policy, practice, 192 enforcement, and training where police department activities concern community standards and 193 expectations. The review process under this Section is not a disciplinary process and should not be 194 used as such. 195 196 This deviates from the current complaint policy which was authorized and sanctioned by the police 197 chief and then city attorney. The role of a review oversight body such as ours is to review disposition 198 of complaints as regards not only gaps in policy but also assessment of the extent to which policy was 199 adhered to. Therefore, the ordinance should reflect this role, with the Commission’s purpose being to 200 weigh in on disciplinary issues and in particular to identify cases in which policies were not followed. 201 202 203 (c) The Chair and Vice-Chair of the Police Commission shall screen each citizen complaint and, if 204 appropriate, present them to the Commission for review. The purpose of this initial screening shall be 205 as follows: 206 207 (1) To eliminate any complaint that the Chair and Vice Chair agree does not present a valid, relevant, 208 or current issue on which the Commission can reasonably review or investigate; and Page 27 of 99  Page 6 An Ordinance in Relation to 209 (2) To screen out discipline or potential discipline issues against an individual officer and to forward 210 those issues to the Chief of Police for disciplinary process consistent with the Chief’s disciplinary 211 authority and the Commission’s role under XX-5. 212 213 The Commission should determine its own process for triage of complaints. The full commission receives all 214 complaints now and that should continue. It should be the collective decision of Commissioners on which 215 complaints to review or not. Delete (2). To exclude the commission from complaints that may have disciplinary 216 implications would essentially undermine and negate the role of the civilian oversight body. 217 218 If the Chair and Vice Chair refer a citizen complaint to the Chief of Police for discipline and also seek 219 to refer the citizen complaint to the Commission, the Chair and Vice Chair shall stay referral of the 220 citizen complaint to the Commission until the discipline process, if any, is completed through any 221 grievance process involving the Commission. 222 223 224 225 As per above, this should be struck. 226 227 (d) The Commission shall meet in executive session pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 228 313(a)(4) to review all citizen complaints brought forward for review by the Chair and Vice Chair. The 229 Commission shall, by majority vote, direct the Chair to act on each complaint in one or more of the 230 following ways: 231 (1) If the allegations do not appear to merit further investigation, the Chair shall close the review 232 and inform the complainant and the Chief of Police that the Commission has elected not to 233 review the complaint any further. 234 (2) If the Commission believes further information is necessary, it shall decide by a majority of the 235 Commission how to proceed as laid out in the next section. The Chair will inform the Chief of 236 Police of the Commission’s decision. 237 238 While it is useful to have the complaint process outlined in detail, the Commission is in the 239 process of revising that process based on our experience in the last two years and input from 240 NACOLE. Defining the process is the role of the commission and should not appear in an 241 ordinance since by so doing, it reduces the flexibility of the Commission to revise processes as 242 deemed necessary. 243 244 The current complaint policy should be followed in regards to assessing the level of the 245 complaint (low, medium or high) with the exception that the Commission determines the level 246 of the complaint rather than the chief. The goal of an independent civilian oversight body is to 247 promote transparency, accountability, and trust, the Commission’s role should be able to 248 request an investigation of any complaint, and in particular those it deems high level. Most 249 oversight agencies do investigations of all complaints. 250 251 252 Page 28 of 99  Page 7 An Ordinance in Relation to 253 (e) If the Commission votes to seek more information, it will also determine what kind of information is 254 necessary and shall be as specific as possible in its request to the Chief of Police. The Commission’s 255 options are: 256 (1) A review and summary from the Chief of Police or designee in either oral or written form. 257 (2) A request for Departmental documents associated with the complaint, including, but not limited 258 to, officer reports, Departmental reports, and any other supporting documents. 259 (3) A request to view any camera footage associated with the complaint. or 260 (4) Any other specific information associated with the complaint. 261 262 This section should be revised to reflect the City Council resolution which gives the Commission unfettered 263 access to any information the BPD avails itself of in conducting investigations of complaints. The Commission 264 should have the opportunity to require an independent investigation if it sees fault with an investigation that 265 BPD conducted. 266 267 (f) The Chief of Police shall comply with such a request for information in a timely manner, but shall be 268 under no obligation to provide any specific piece of requested information if any of the following are 269 true about the specific piece of information: 270 271 (1) Providing the information would violate a state or federal law; 272 (2) Providing the information would violate an active court order; 273 (3) Providing the information would violate an agreement with a state or federal law enforcement 274 agency or governmental information sharing service; 275 (4) Providing the information would violate or compromise a right of confidentiality held by a 276 third-party; or 277 (5) Providing the information would compromise an on-going case or investigation with the 278 understanding that once such danger ended, the information would be provided unless it would 279 violate another portion of this section. 280 281 Sharing information under this ordinance shall occur within the confines of an executive session 282 pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 313(a)(4) and the Commission’s oversight authority as 283 a part of the City pursuant to section 184 of the City Charter. It shall not constitute a waiver of any 284 right that the City may have to claim an exemption to public inspection and copying of the records 285 under the Vermont Public Records Act (1 V.S.A. § 317). Commission possession or review is pursuant 286 to the Department’s primary possession under the Vermont Public Record Act. 287 288 Replace “timely manner” with 10 days. The Commissioners have expressed an interest in moving 289 toward best practice as defined by NACOLE in which hearings are held in public session with 290 appropriate steps taken to protect confidentiality as required by policies and the BPOA contract. As 291 written this section is at odds with the goal of transparency and accountability and should be revised to 292 reflect best practices. 293 294 (g) If the Commission votes by a majority to challenge any denial of access to the requested Departmental 295 information, the City Attorney shall review the withholding and stated basis and shall issue an attorney- 296 client opinion to both the Commission and the Chief as to whether the withholding conforms to this 297 ordinance. Page 29 of 99  Page 8 An Ordinance in Relation to 298 299 The City Council resolution delineates the Commission shall have unfettered access to all information 300 the BPD had when it made their disposition of the case. That should be reflected in this ordinance. The 301 ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of interest in 302 many circumstances, undermining the independence that is critical to the Commission’s oversight role. 303 The ordinance should reflect that the Commission, where necessary, relies on conflict counsel for 304 guidance. 305 306 307 308 (h) The Commission may elect by majority vote to pause a review of a complaint if a pending prosecution 309 or litigation prevent the Commission from receiving critical pieces of Departmental information that it 310 has requested. The Commission shall inform the complainant of the pause and its anticipated length. 311 312 (i) Commissioners shall not communicate with any complainant, witnesses, or other individuals associated 313 with a review, except as such individuals may provide information directly to the Commission during 314 a public meeting or executive session. Any communication necessary between the Commission or a 315 Commissioner and the complainant, witnesses, or other individuals associated with the review shall go 316 through Commission staff, the City Attorney, or conflict counsel. 317 318 Section (i) should be deleted. The Commission’s practice is to communicate directly with complainants to: 319 1) acknowledge the complaint, 2) provide a copy of the complaint policy, and 3) provide updates on status of 320 complaint. The language in (i) oversteps the role of an ordinance. Details on how complaints are handled 321 should be in the complaint policy, not the ordinance. The ordinance’s insertion of the city attorney into the 322 work of the Commission creates a conflict of interest in many circumstances, undermining the independence 323 that is critical to the Commission’s oversight role. 324 325 These comments are consistent with NACOLE’s recommendations. According to NACOLE, the complaint 326 process is more likely to be perceived as fair and transparent if complainants receive regular updates 327 regarding their complaint and can obtain status updates at any time. Communicating with complainants by 328 providing status updates throughout the process is one way that civilian oversight agencies can assure 329 members of the public that they are handling their complaints seriously and actively. 330 331 Once a complaint has been adjudicated or after a disciplinary decision has been made, the civilian oversight 332 agency should invite complainants to an in-person closeout meeting. Closeout meetings allow the oversight 333 agency to describe the investigative process, explain how and why decisions were made, and demonstrate 334 that the complaint was resolved neutrally and impartially. In turn, this promotes legitimacy and public 335 confidence in the oversight process. Closeout meetings furthermore provide the oversight agency with an 336 opportunity to collect information regarding how complainants feel about the complaint process as a whole. 337 Once a complaint has been adjudicated or after a disciplinary decision has been made, the civilian oversight 338 agency should invite complainants to an in-person closeout meeting. 339 340 More generally, it is the Commission that should lay out the complaint process in its policy—again, allowing 341 for needed flexibility—rather than stipulating such details in an ordinance. 342 Page 30 of 99  Page 9 An Ordinance in Relation to 343 344 (j) The Commission shall draft findings, conclusions, and recommendations from its review. The City 345 Attorney shall assist the Commission in the creation of this report. This report shall be transmitted to 346 the Mayor and to the Chief of Police. This report shall be treated as an attorney-client document and 347 attorney-work product as recognized in Killington, Ltd. v.Lash, 153 Vt. 628 (1990). The Commission 348 may allow a redacted version of any such report to become public without waiving the confidentiality 349 of the underlying report. 350 351 The ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of 352 interest in many circumstances, undermining the independence that is critical to the Commission’s 353 oversight role. Such reports should continue to be developed with input from conflict counsel only, who 354 shall provide guidance on redaction for purposes of making findings public. 355 356 (k) The Commission shall not make any disciplinary recommendations for individual officers in such a 357 report, but the Commission may make recommendations regarding the development or revision of 358 Policy and Directive, enforcement of existing policy and standards, and the implementation of training 359 directed at any issue or concern found by the Commission. The Commission can also recommend 360 larger structural changes and request that the Mayor or City Council consider such changes through a 361 separate, formal communication. The Commission may also recommend that the Chief of Police 362 conduct an internal affairs investigation based on the Report. The Commission may also forward a 363 copy of the report to the Vermont Criminal Justice Council for review and potential investigation under 364 20 V.S.A. § 2403. 365 366 The Commission should be able to recommend coaching for officers who are the subject of complaints 367 and should be able to provide feedback on proposed discipline. 368 369 Further, this sentence should be deleted “The Commission may also recommend that the Chief of Police 370 conduct an internal affairs investigation based on the Report.” As written, this would require the 371 Commission to engage in decision-making on a complaint before an investigation is actually done. The 372 Commission needs as many facts as possible when determining next steps in and therefore, access to that 373 information, based on an investigation, should be available prior to issuing a report on a complaint. 374 375 (l) The Chief of Police shall implement the recommendations of the report to the extent possible. If the 376 Chief does not, the Chief shall note the recommendations not being adopted and a short basis for why 377 they are not being implemented. Such notice shall be sent to the Commission and the Mayor’s Office. 378 The Commission, by majority vote, may choose to respond to the Chief’s decision. If the Mayor agrees 379 with the Commission, the Mayor may recommend the adoption to the Chief of Police or refer to the 380 City Council for further consideration or action. 381 382 Delete “short” in the second line of section (l). If the chief disagrees in whole or in part with the Commission’s 383 recommendations, he/she should submit a written report to the Commission within 15 days. Requiring a 384 majority vote for the commission to respond to the chief’s decision goes beyond what should be in an 385 ordinance. This should be part of the Commission’s complaint policy. Include a phrase that indicates the mayor 386 will inform the Commission of the reasons for his or her decision with regard to the adoption of the 387 Commission’s findings. Page 31 of 99  Page 10 An Ordinance in Relation to 388 389 This is also one of several examples of a section in the draft ordinance where the Chief’s authority is unlawfully 390 elevated above that of the Commission, subject to arbitration by the Mayor. It is, therefore, inconsistent with 391 the Charter, as interpreted in light of the Supreme Court’s recognition that state law establishes a system in 392 which “ultimate” authority over the direction of the police department rests with Town government, not with 393 the chief of police. See Turnley v. Town of Vernon, 2012 VT 69, ¶ 18. Under Burlington’s City Charter, the 394 City Council “shall make rules for the government of the entire police force” and may, by resolution, delegate 395 that authority to the Commission. Charter § 3-184. The mayor’s authority under the Charter is limited only to 396 receiving notice of the “changes, modifications, or additions to the rules and regulations of the Department” 397 made by the City Council or the Commission as the case may be. Id. 398 399 400 XX-5 401 402 To effectuate its purpose, the Police Commission shall, consistent with its authority under Sections 184 and 403 190 of the City Charter provide community feedback to potential disciplinary matters and provide grievance 404 process to the Police Department as follows: 405 406 407 The Commission requests a legal opinion on who can grieve – complainants as well as officers? 408 409 410 (a) The Chief of Police shall consult with the Police Commission prior to the imposition or non-imposition 411 of discipline against an officer in the Department. The purpose of the consultation is for the 412 Commission to provide any recommendations, input, or information to the Chief it deems necessary to 413 express the Community’s values underlying the incident. This process shall be conducted orally during 414 an executive session pursuant to 1 VSA 313(a)(4). At the discretion of the Chief, this consultation may 415 or may not include a discussion of any proposed disciplinary actions. 416 417 The Commission will reserve further comment on those sections of the ordinance that deal with the 418 Commission’s role in determining discipline until such time as it receives the requested opinion on the 419 question of who may access the appeal process. 420 421 422 (b) To avoid a conflict with a subsequent grievance appeal as outlined in Section 190 of the City Charter, 423 a pre-disciplinary consultation under this section shall not be addressed to the full Commission but a 424 panel of no more than two Commissioners selected by the Chair who shall act as a consultation panel. 425 Any Commissioner that participates in a consultation panel shall not participate in a subsequent 426 grievance review and/or hearing arising from the particular discipline. 427 428 This should be revised such that a 4-person consultation panel reviews discipline, with 3 Commissioners then 429 available to serve on a grievance panel. 430 431 (c) The Chief of Police shall consider and incorporate the recommendations, input, and information from 432 the consultation panel of the Commission in a manner consistent with the Department rules, directives, Page 32 of 99  Page 11 An Ordinance in Relation to 433 and standards, State and National Police Standards and Training, Burlington ordinances, Vermont and 434 federal law, and the Collective Bargaining Agreement. The Chief of Police’s decision shall be the final 435 decision and shall control any discipline imposed on a Burlington Police Department employee, subject 436 to the grievance procedure outlined in Sections 184 and 190 of the City Charter and any active 437 Collective Bargaining Agreement. 438 439 440 441 (d) If a Burlington Police Department Employee elects to grieve a discipline, the Commission shall hear 442 the grievance in accord with Section 190 of the Burlington City Charter and any active Collective 443 Bargaining Agreement. No Commissioner who participated in a consultation panel underlying the 444 discipline being appealed shall sit in review of the grievance. A quorum for a grievance hearing shall 445 constitute a simple majority of Commissioners who are not otherwise conflicted as defined in Section 446 133 of the Burlington City Charter from reviewing the grievance. 447 448 XX-6 449 450 Confidentiality of Records: 451 452 (a) Professional standards of confidentiality with regard to the work of the Commission shall apply to 453 all information presented to the Commission and to work product generated by the Commission or 454 by the City Attorney or conflict counsel. The Commission shall comply with all Burlington 455 ordinances, Vermont and Federal law, and shall maintain the confidentiality of any and all records 456 and documents received by the Commission in the course of their duties. 457 458 (b) The Commission shall, with the assistance of the City Attorney, draft a Code of Conduct and Ethics 459 for the Commission. This code shall include rules for maintaining confidentiality; protocols for 460 handling confidential information; recusal; ethical standards for Commission members; and 461 procedures for executive sessions. 462 463 (c) Anytime the Commission discusses a specific matter under review, an individual, or a pending 464 complaint, the Commission shall enter into an Executive Session in accordance with 1 V.S.A. § 465 313. 466 467 (d) A Commissioner, upon taking office, shall take an oath or pledge to uphold and abide by the 468 Commission’s Code of Conduct and Ethics. If there is credible evidence that a Commissioner has 469 violated this oath and pledge, the Chair or Vice Chair of the Commission shall report to the 470 Mayor who may temporarily suspend the Commissioner pending a hearing and vote by the City 471 Council with Mayor presiding under Section 129 of the City Charter. A violation of the Code of 472 Conduct and Ethics shall constitute negligence or bad conduct regardless of the nature of the 473 breach, the intent of the breaching commissioner, or the impact of such a breach. 474 475 The Commission has indicated it will develop a code of ethics. The draconian language on holding a hearing 476 if a person even inadvertently violates the code (such has by hitting reply to all on an email by mistake, thus 477 violating confidentiality) would deter people from being willing on the Commission. This portion of the Page 33 of 99  Page 12 An Ordinance in Relation to 478 ordinance should be struck, retaining only the first sentence of (d). The Commission questions whether such 479 language applies to any other Burlington commissions. 480 481 Page 34 of 99 Page 35 of 99 Page 36 of 99 Page 37 of 99 Page 38 of 99 Page 39 of 99 Page 40 of 99 Page 41 of 99 Page 42 of 99 Page 43 of 99 Page 44 of 99 Page 45 of 99 Page 46 of 99 Page 47 of 99 Page 48 of 99 Page 49 of 99 Page 50 of 99 Page 51 of 99 Page 52 of 99 l. Office of Mayor Miro Weinberger MEMORANDUM TO: City Council FROM: Mayor Miro Weinberger DATE: December 7, 2020 RE: Police Oversight Charter Change At tonight’s meeting, the Council will deliberate on a proposal to change our City Charter to include a new model of oversight for the Burlington Police Department. This is an important discussion that I welcome. I am committed to forging a new consensus on policing in Burlington that has support from both the community and the police department, and achieving that will require structural reforms to our oversight models and processes for administering officer discipline. Background: Recent changes have been made to disciplinary process Our Administration has taken recent actions related to disciplinary decisions. First, during Chief Morrison’s tenure as Acting Chief she codified into policy the practice begun several years ago that the Chief shall consult with the Police Commission in advance of major disciplinary decisions. Second, this fall, I issued an Executive Order requiring the Chief of Police to formally present to the Mayor and other senior officials all disciplinary decisions for use of force incidents that result in injury to an individual or raise significant public concern before the Chief issues the decision. The Administration supports changing charter to check sole disciplinary authority of Chief These recent steps are not enough. Members of the public have made clear that they want to see greater accountability from its elected officials for police disciplinary decisions, and I agree. Elected officials and Police Commissioners, who are ultimately held accountable for police conduct, should have the opportunity to meaningfully weigh in when problematic police conduct occurs. Further, as I have stated repeatedly over the last year, I find the near-absolute authority over discipline granted to the Chief by our Charter to be problematic and a departure from our typical practice of having democratic checks and balances. In order to address this issue we will need a Charter Change. Charter Change proposed by Councilor Freeman lacks current consensus While Councilor Freeman and I have disagreed on numerous policing issues, I respect her deep commitment to public safety policy and can see that she and her colleagues have worked very hard and diligently on her proposed new language. Unfortunately, it is clear from discussions at the Charter Change Committee and the Joint Committee meeting last week, and from yesterday’s letter that we received from the Police Commission that there remain significant concerns and unanswered questions about the current proposal. The Administration shares many of the concerns expressed by the Commission, and I believe some Councilors have concerns as well. Page 53 of 99 While perhaps Councilor Freeman’s proposal could reach the votes in needs for Council passage, it clearly currently lacks the consensus that would benefit its chances of ultimate success if it were to go on the Town Meeting Day ballot, reach the State Legislature, and get to the desk of the Governor. If the Charter Change does not pass all of those tests, we will have set back the opportunity to make changes to the problematic status quo for a full year. Administration alternative offered in interest of securing consensus by key deadline I have called a Special Meeting of the City Council for Monday, December 14 to give us an additional week for the City Council to initiate the Charter Change process by warning a public hearing on specific Charter Change language (to be clear: I have taken this step because we know the Charter Change For Building Decarbonization needs an additional week of work, and a meeting on that date gives the police discipline charter change additional time as well). If this step does not happen at the December 14 meeting we will lose the opportunity to initiate the charter change process for another year. In the interest of moving us towards a Charter Change on police discipline that could garner broad consensus, the Administration is offering the attached Charter Change language. Our proposal would give the Police Commission and the Mayor the ability to have input on disciplinary decisions, and gives the Commission significant additional investigatory powers beyond what they have today, as well as ultimate decision making authority in disciplinary cases there this is strong Commission disagreement with the Chief. The proposed changes would:  Formalize that the Police Commission will receive and review all civilian complaints of alleged police misconduct, and formalizes a role for the Police Commission in the discipline of Police Officers by requiring the Police Chief to consult with the Commission in advance of administering discipline.  Task the Police Commission to issue a quarterly report on complaints, discipline, and other activities.  Gives the Mayor the authority to review and give input on investigation results or proposed discipline.  Gives the Police Commission the authority to hire an independent investigator to conduct or review allegations into alleged serious misconduct.  Gives the Police Commission the authority to hold a hearing, make findings, and issue a final decision if a supermajority of the Commission continues to disagree with the Chief’s findings and recommended discipline. I would welcome and fully engage in a focused process between Councilors, stakeholders, and the Administration over the next week to review this proposal alongside the Councilor Freeman’s proposal in an attempt to find common ground by next Monday’s deadline. Page 54 of 99 DRAFT CHARTER CHANGES FROM ADMINISTRATION December 3, 2020 ARTICLE 62. POLICE DEPARTMENT 183 Board of police commissioners; composition; terms. The board of police commissioners shall consist of seven (7) legal voters of said city, to be appointed by the city council with mayor presiding to serve for three (3) years and until their successors are appointed and qualified. The composition of the commission should represent the diversity of Burlington’s residents, particularly including members of groups who historically have been marginalized. (Act No. M-18, § 2, approved 3-1-16) 184 Same-powers and duties. (a) The city council shall make rules and regulations for the government of the entire police force and shall fix the qualifications of applicants for positions and service on said force and the chief of police shall furnish the city council with any information they may require concerning the finances of the police department. The chief of police shall be responsible for all expenditures made by the police department and no expenditures shall be made by the department except in conformity with the standards promulgated by the city council. (b) The board of police commissioners shall receive and review all civilian complaints of alleged police misconduct, may review any other complaints against police officers that it deems in the public interest, and shall have a role in the discipline of officers as in section 189 of this Charter. The board shall have such other authority and responsibility relating to the management of the police department, its services and facilities, as may be delegated from time to time by resolution of the city council. Said board shall notify the mayor and the chief administrative officer, in writing, of any and all changes, modifications or additions to the rules and regulations of the department and shall issue quarterly reports on complaints, discipline, and other activities. ARTICLE 63. CHIEF OF POLICE AND CAPTAIN 185 Officers of police force designated. (a) The direction and control of the entire police force, except as herein otherwise provided, shall be vested in a police officer who shall be called the chief of police, and such other ranking police officers as the city council shall authorize, subject to the rules and regulations of the city council. The order of rank and succession within the police department shall be as designated by the city council by regulation. (b) Except as herein otherwise provided, such officers shall have the powers and duties granted to police officers by Vermont law and assigned to them by regulations adopted under section 184 of this Charter. Page 55 of 99 ARTICLE 64. APPOINTMENT OF POLICE OFFICERS 186 Manner of filling vacancies. Whenever a vacancy occurs in any other position, the chief may appoint a successor. (Act No. M-14, § 4, approved 5-19-2004) 187 Force to be maintained; selection of members. A regular police force for said city shall be maintained in the city. No applicant shall be deemed qualified for employment on said force until he or she has been approved by the chief of police. The process for determining the qualifications of and employing police officers shall fully comply with any criteria established by the board of police commissioners and the city’s comprehensive personnel policy manual as the same may be amended from time to time. (Act No. M-14, § 5, approved 5-19-2004) 188 Manner of appointment. The chief shall, from time to time, as the needs of the city may require, appoint from the approved applicants. If the name of the applicant has been on the approved list for more than six months, the applicant shall take and pass a new examination by the board of medical examiners before being appointed. (Act No. M-14, § 6, approved 5-19-2004) 189 Members of force to be retained as long as they remain competent. The members of said regular police force now serving, or who shall hereafter be appointed thereto, shall, after the expiration of the one-year probationary period above provided, and so long as they shall remain competent, efficient and capable in the performance of their respective duties be retained as such, subject to the rules and regulations adopted under Section 184 of this Charter and provided that any member may be removed for cause as hereinafter provided. ARTICLE 65. REMOVAL OR SUSPENSIONDISCIPLINE OF POLICE OFFICERS 190 Chief may remove member for cause; hearing. (a) Whenever it shall appear to the chief that any member of said force has become incompetent, inefficient or incapable from any cause, or is or has been negligent or derelict in his or her official duty, or is guilty of any misconduct in his or her private or official life, or whenever any well-grounded complaints or charges to such effect are made in writing to the chief or the board of police commissioners by a responsible person against such member, the chief may investigate and, after appropriate notice and hearing, dismiss such member from the force, order a reduction in rank, or suspend the member without pay for a specified time period in excess of 14 days, or take other appropriate disciplinary action. In connection with any possible dismissal, demotion, or suspension for more than 14 days, the chief’s notice to the member shall be given at least 48 hours prior to any hearing and shall include a description of the charges being considered. In connection therewith, the chief shall have the power to subpoena Page 56 of 99 witnesses and to administer the oath to such witnesses. The board of police commissioners shall hear any appeal filed in a timely manner with respect to such actions of the police chief. The time of filing an appeal and the nature of the appellate process shall be as determined by such board of regulation. Following its consideration of any such appeal, the board may affirm, modify, or vacate the decision made by the police chief. (b) Before the chief takes any final action or closes any matter alleging that a police officer has been negligent or derelict in their duty or is guilty of any misconduct, the results of any investigation and any proposed response or discipline must be reviewed with the police commission, which may make recommendations to the chief. In addition, the mayor should have authority to review and give input on any investigation results or proposed response or discipline. In connection with any investigation of officer misconduct, the commission and the mayor should have access to all police department materials related to the investigation including tapes, transcripts, investigator’s notes, witness statements, and other documents (c) The board of police commissioners may hire an independent investigator to conduct or review any investigation into alleged serious misconduct, if by a majority vote it determines an independent investigation warranted. The results of that investigation would be shared with the chief who would provide the board with a proposed response, including any discipline of an officer. (d) If after providing input to the chief on the department’s proposed response in any allegation of serious misconduct and giving the chief a reasonable opportunity to amend the proposal, at least six members of the commission continue to disagree with the chief’s proposal, the commission may hold a hearing, make findings, and issue a final decision, which will be considered a final agency action appealable to the Vermont Superior Court. In connection with any possible dismissal, demotion, or suspension for more than 14 days, the notice to the member shall be given at least 48 hours prior to any hearing and shall include a description of the charges being considered. In connection therewith, the board of police commissioners shall have the power to subpoena witnesses and to administer the oath to such witnesses. The hearing will include, at minimum, a right for the accused officer to cross-examine and present witnesses and to be represented by counsel. (be) Whenever it shall appear to the mayor that the chief has become incompetent, inefficient, or incapable from any cause, or has been negligent or derelict in his or her official duty, or is guilty of any misconduct in his or her private or official life, or whenever any well-grounded complaints or charges to such effect are made in writing to the mayor by a responsible person, the mayor may suspend the chief from duty, the city council shall forth with notify the chief of the charges preferred by them, or of the complaints or charges presented by such responsible person in writing, and shall thereupon proceed to consider and investigate the same. It shall appoint a time and place for the hearing of such complaints and charges so made, shall give the chief reasonable notice of the same, not less than 48 hours, and the city council shall have the power to subpoena witnesses and to administer the oath to such witnesses. Page 57 of 99 (cf) If, upon hearing, the city council shall find such complaints or charges to be well founded, it may dismiss the chief from the force, demote him or her in rank, or suspend him or her without pay for a period not to exceed 60 days. The procedures outlined in this section shall control in the event of any conflict with section 129 of this Charter as pertains to the removal of the chief. (dg) The chief may, without notice or hearing for any infraction, violation, or disobedience of any of the rules and regulations of the police department that may seem to the chief sufficient, suspend from duty without pay any member of the police force for a period not to exceed 14 days. (Act No. M-14, § 7, approved 5-19-2004) Page 58 of 99 Page 59 of 99 Page 60 of 99 Page 61 of 99 Page 62 of 99 Page 63 of 99 Page 64 of 99 Page 65 of 99 Page 66 of 99 Page 67 of 99 Page 68 of 99 Page 69 of 99 Page 70 of 99 Page 71 of 99 Page 72 of 99 Page 73 of 99 Page 74 of 99 Page 75 of 99 Page 76 of 99 Page 77 of 99 Page 78 of 99 l. Office of Mayor Miro Weinberger MEMORANDUM TO: City Council FROM: Mayor Miro Weinberger DATE: December 31, 2020 RE: Veto of Charter Change re: Independent Community Control Board and Call for Collaboration and Progress Pursuant to Article 18 – Section 46 of the Burlington City Charter, which authorizes the mayor to veto any action of the City Council, I am returning the “Independent Community Control Board To Oversee Investigation And Discipline Of Police Misconduct Charter Change” (“Charter Change”) passed at the Council’s December 14 meeting to you unsigned and providing you my written objections to it below. I send you this communication while still desiring to find a route to come together and unite behind a proposal that will forge new consensus on this critical policing issue and represent meaningful racial justice for our BIPOC communities. As I detail below, I remain ready to meet with City Council President Max Tracy and other councilors to try to find common ground that would allow me to rescind this veto before you take final action on this matter Monday night. If we cannot find consensus now and my veto is sustained, we must find other ways to make near term progress on the issue of police discipline and reforms that protect and build trust with the public, especially BIPOC communities. Therefore, this letter also includes a plan for implementing improvements to the police discipline system immediately, and bringing a Charter Change for the beginning of the 2022 session should my veto stand after Monday night. Objections to the December 14 Charter Change Proposal My overriding objection to the proposed charter change is that as written it will contribute to the dismantling of the Burlington Police Department and compromise the City’s ability to ensure public safety. In the short-term, placing the Charter Change on the ballot is likely to accelerate the departures of sworn officers from the department. The department is already down 20% from its maximum staffing levels, perhaps the largest reductions of officers of any department in the country since the national protests of last summer. Putting the current divisive and controversial Charter Change on the ballot will give further fuel to this trend, and likely hasten the day in which the City will need to stop staffing an overnight shift and cut back on other basic public safety services that residents expect. Over the medium and long-term, the proposed Charter Change, if adopted, will have even greater impacts on the City’s ability to field an effective police department. The current proposal will cause concerns for prospective police officers and department leaders, because the board appears designed to be hostile to police officers. An Oversight Board should be required to adjudicate discipline fairly and impartially, or hew to defined standards. Further, the removal of the Page 79 of 99 Chief of Police from having a role in all serious disciplinary decisions is unique within all the models we have reviewed, and its impacts on the operations of the department are unknown and a cause of deep concern. A further serious problem of the Charter Change proposal is that it is so detailed that serious errors and unintended problems are likely, and they will be very difficult to react to or fix. As this Charter Change proposal was being developed, the City Attorney and City Councilors recommended that the authors draft critical, broad authorizing language, and leave important details to be set through ordinances in future City Council action. Instead, in a significant break from best practice, the Councilors who led this effort have included large amounts of detailed, new, untested language. As a result, if passed, errors and unintended problems arising out of that new language will be baked into the Charter, making them inherently challenging to respond to and address. Future evolutions and improvements of the new system that the City desires to make are also likely to require charter changes. This structured rigidity is likely to create festering problems and serious challenges for public safety in the years to come. Finally, while I would not veto the proposal over this issue alone, it is also problematic that the proposal does nothing to increase the ability of the mayor to formally weigh in on major disciplinary matters, despite the concerns about this that I raised repeatedly for a year. After months of demonstrations, it is very clear that the public holds the mayor accountable for police disciplinary decisions. To meet this public expectation, the charter should allow some formal role for the mayor in the adjudication of these matters. Offer to meet and withdraw this veto if common ground is found I veto the Charter Change with great reluctance, because I agree that the current charter is problematic and there is urgency to amend it. I believe I was the first Burlington elected official to bring attention and concern, a year ago, to the near-absolute power of the Chief to impose discipline under our current system. Such monopoly of important authority is an aberration in our democratic system, it has contributed significantly to community distrust, and we are likely to face continued disputes over future disciplinary actions until this issue is addressed. Further, it is clear that the Council and Administration agree on many key issues related to police discipline. As stated in my alternative December 7 charter change proposal, I support granting a community board the ability to conduct independent investigations into complaints, subpoena sensitive department information, and overrule the Chief when necessary on disciplinary decisions. While I believe we could achieve the reforms we need through our existing Police Commission system, I am willing to accept and support the Council’s proposed framework of creating a new, independent board if my other concerns are met. Given that we agree on many key issues, it is unfortunate that the Councilors leading this charter change have made no effort to work out our remaining differences and denied our requests to meet and discuss changes before passage of the Charter Change on December 14. I remain willing to meet and to work in good faith to find common ground before Monday’s meeting. I made this willingness clear to President Max Tracy in a phone message earlier today and hope he will accept this invitation for collaboration. An alternative plan that can progress immediately If this final effort to find a consensus charter change now fails and the Council sustains my veto, the problems in our police discipline system will remain, and we must keep working on this issue with purpose and urgency. In such an event, I am committed to taking the following steps to implement Page 80 of 99 immediate improvements to our current system and continue momentum towards future structural changes:  I will work with the City Council to bring forward a resolution soon that immediately delegates new disciplinary authority to the Police Commission, including the authority to conduct independent investigations. We do not need a charter change to delegate this authority to the citizen oversight board that exists today.  I will also work with the City Council to bring forward soon a current year budget amendment granting the Police Commission a budget for conducting such independent investigations.  Ultimately, we will still need a charter change on police discipline. As soon as possible, the Council and the Administration should appoint a new Special Committee of Councilors and Administration representatives that continues to work to find common ground on this issue. This committee should be tasked with hearing from both racial justice advocates and police officers who will serve under a new system, and returning with a consensus proposal by mid- 2021.  To ensure that this consensus proposal can be put to the voters and delivered to the legislature for the start of the 2022 session, I propose that we commit to a Special Election next fall (such a Special Election will also likely be necessary for TIF project bonding authority and perhaps other infrastructure bonding as well).  One of the major short-comings of the Council’s current charter change proposal is that it is unclear what standards the new board would attempt to hold officers accountable to. I propose that the Council and Administration act in January to address that short-coming by requesting that the Police Commission review the current departmental discipline standards and recommend new standards in advance of a Special Election next fall.  While getting police discipline right is critical, we must expand our focus if we truly seek to secure different policing outcomes. I have requested that our Director of Police Transformation Kyle Dodson complete a review of our officer training and evaluation systems and issue recommendations to me and the City Council before the end of his six-month tenure. Further, Director Dodson has been exploring the creation of a process to forge reconciliation between the Burlington police and the BIPOC community, and I have asked him to conclude that work and issue recommendations before his tenure ends. Page 81 of 99  CITIZEN COMPLAINTS FLOW CHART Article 65 §190 of the Burlington City Charter vests disciplinary authority COMPLAINT RECEIVED; for members of the police department in the Chief of Police. When the INFORM COMMISSION Burlington Police Department receives a citizen complaint about an employee’s conduct, Department Directive DD40 states the Chief of Police shall cause that complaint to be investigated as soon as practical. By policy agreement, the Chief will report to the independent Burlington Police Commission on all complaints. According to Mayoral Executive Order, when a police officer uses force INJURY TO PERSON? that results in injury to any person or that raises significant public PUBLIC CONCERN? concern, the Chief of Police will formally review the situation with the INFORM MAYOR Mayor and seek the Mayor’s concurrence with the Chief’s disciplinary determinations. The Chief must obtain the Mayor’s concurrence or other final recommendation before reviewing the case with the Police Commission and must share the Mayor’s views with the Commission. For higher-level complaints, such as those involving an allegation of SERIOUS COMPLAINT? excessive use of force, dishonesty, discrimination, harassment, or other VERBAL BRIEF TO serious misconduct; or for any lower- or mid-level complaint that results COMMISSION in discipline beyond a written reprimand; or for any other conduct for which suspension or termination is recommended, the Chief will provide the Police Commission with a full verbal briefing of the allegations, the Mayor’s views (if applicable), and the Chief’s recommended disposition of the case in executive session. After receipt of the verbal briefing, the Police Commission may: COMMISSION ASSESSES  accept the Chief’s report and recommended action in full or in part; CHIEF’S DISPOSITION  request additional information;  request that the Chief reconsider the action and/or make a recommendation to the Chief about the investigation, process, disposition, or other aspect of the matter, or  postpone action to a later date, but no later than 14 days from the date of initial receipt of the report The Chief may accept or reject the Police Commission’s CHIEF FINALIZES recommendations, but must explain any rejection. If a majority of the DISPOSITION Police Commission disagrees with the Chief’s decision, the Police Commission Chair shall report this to the Mayor. As per the Vermont Criminal Justice Council and Vermont’s Act 56, if the 20 VSA §2401? conduct alleged in the complaint meets the definitions of Category A, CHIEF REPORTS TO VCJC Category B, or Category C conduct in 20 VSA §2401, the Chief will comply with the duty to report described in 20 VSA §2403. Page 82 of 99  USE OF FORCE (UOF) OCCURS Does UOF involve person of color? Notify Mayor. Is UOF applicable to video release? (i.e., does it involve death, serious bodily injury, OC / CEW / firearm / Officer writes UOF report in baton / LLIMs, public attention). Benchmark. Officer uploads AXON. UOF REVIEW MONTHLY UOF REPORT REDACTED VIDEO UOF reviewer looks at officer’s Deputy Chief Operations (DC report to ensure it comports Redaction Specialist (RS) Ops) reviews officer’s written with UOF directive and current redacts video of applicable UOF narrative training UOF reviewer returns report to officer with DC Ops flags for UOF Executive staff reviews notes requesting supervisor review clarifications UOF reviewer forwards to UOF- trained-supervisor for approval DC Ops writes summary RS adds DC Ops’s narrative to -- OR -- flags potentially narrative and breaks redacted video as introductory improper force for supervisor down statistics title card for context review DC Ops and exec ass’t publish RS posts month’s videos to UOF supervisor consolidated summary BPD’s YouTube channel, to reviews narrative as monthly Use of coincide with exec ass’t posting Force Report monthly Use of Force Report UOF supervisor returns to UOF reviewer with notes for clarification UOF supervisor flags for executive staff review or internal affairs UOF supervisor forwards to DC Ops for finalization Final approval by DC Ops or flagged for Chief of Police Page 83 of 99  BURLINGTON POLICE COMMISSION POLICY Role of the Burlington Police Commission in Reviewing Complaints Against BPD Employees Adopted August 25, 2020 Purpose: The purpose of this policy is to support principles of fair and impartial policing within the City of Burlington Police Department by adopting a procedure that defines the role of the Burlington Police Commission in reviewing complaints against agency members. Policy: 1. When a complaint is received by the Burlington Police Department about the conduct of an employee of the Burlington Police Department, the Chief of Police shall cause that complaint to be investigated as soon as practical by an individual or individuals with no interest in or attachment to the issue or officer(s) being investigated. When a complaint is received by members of the Burlington Police Commission, the member of the Burlington Police Commission should encourage the person making the complaint to submit it via the Burlington City website or should personally take the complaint, attempting to capture all the information otherwise contained in the Citizen’s Complaint Form. [See Appendix A] a. All complaints, whether generated externally or internally, are referred to as Citizen’s Complaints. b. All Citizen’s Complaints are documented on a spreadsheet maintained by the Deputy Chief of Administration, or designee. c. Lower-level and some mid-level complaints that are able to be resolved quickly and at first level of supervision, remain as Citizen’s Complaints. d. Some mid-level complaints may be escalated to an Administrative Review (AR). An AR is designed to determine if a complaint needs to be elevated to a Bureau of Internal Affairs investigation or if it is able to be handled without a robust personnel investigation. e. Higher-level complaints will either be an Administrative Review or will be escalated to a Bureau of Internal Affairs investigation. f. Lower-level, mid-level, and higher-level complaints will be categorized consistent with the Burlington Police Officers’ Association Contract, Article XV, section 15.2. [See Appendix B] 2. The Deputy Chief of Administration, or his/her designee, will maintain a written record of each complaint. That written record will at a minimum include: - The name(s) of the employee(s) involved. - The date of receipt of the allegation. - The date of the alleged incident, if known. - The type or nature of the allegation. 1 Adopted 8/25/2020 Page 84 of 99  - The name(s) of the person(s) who investigated. - The final disposition of each complaint. - How the matter was closed out with the complainant. In addition, if the complaint involves an allegation of excessive use of force, or an allegation of dishonesty or other serious misconduct, the written record will include: - All action taken in response to the complaint. - Identification of all witnesses, documents, evidence, or other information obtained or consulted in the course of the investigation. 3. The written record of each complaint will be considered confidential. Each Commissioner shall have access to the written records of all complaints upon request to the Chief, subject to the Vermont Public Records Act, and the Burlington Police Officers’ Association agreement. Further information may be available to the Commissioner receiving the records upon the completion of a fingerprint-supported background check and the execution of a confidentiality agreement. 4. The Chief will report to the Police Commission on all complaints against members of the department as follows: - Updates about complaints against employees will be shared with the Commission in Executive Session at the first meeting following receipt of the complaint, unless the matter is of such urgency that a special meeting is required. Status updates on the progress of complaints under investigation will be provided to the Commission, as appropriate, and further detail and access to reports/video/etc shall be provided to the Police Commission in Executive Session at the first meeting after the investigation has been completed. - For lower- and mid-level complaints, the Chief will provide a verbal or written summary of the complaints and their status or disposition in Executive Session. - For higher-level complaints, such as those involving an allegation of excessive use of force, dishonesty, discrimination, harassment, or other serious misconduct; or for any lower- or mid-level complaint that results in discipline beyond a written reprimand; or for any other conduct for which suspension or termination is recommended, the Chief will provide the Police Commission with a full verbal briefing of the allegations and the recommended disposition of the case in executive session. - The Chief of Police, or his/her designee, will report to the Police Commission in Executive Session on a monthly basis regarding any Use-of-Force incidents. The update shall include demographic data about the officer(s) and subject(s) such as gender, age, and race, and also provide a description of incident. 2 Adopted 8/25/2020 Page 85 of 99  - At the request of any member of the Police Commission, the Chief will make the written record available for Executive Session review by the Police Commission, as well as any audio or video footage, written materials, evidence, or other information related to the allegation. - The Chief of Police, in consultation with the States Attorney’s Office, will make the determination of if a complaint needs to be referred outside the Department for investigation of possible criminal conduct. If the complaint has been referred outside of the Department for investigation of possible criminal conduct, the materials will be made available to the Police Commission in Executive Session once a determination has been made that the materials may be disclosed to the Police Commission without adversely affecting any possible prosecution. 5. After receipt of the report described above, the Police Commission may: - accept the Chief’s report and recommended action in full or in part; - request additional information; - request that the Chief reconsider the action and/or make a recommendation to the Chief about the investigation, process, disposition (including recommending a range of sanctions for the misconduct), or other aspect of the matter, or - postpone action to a later date, but no later than 14 days from the date of initial receipt of the report. 6. The Chief may accept or reject the Police Commission’s recommendations. If the Chief rejects the Police Commission’s recommendations, the Chief shall explain to the Police Commission why the recommendations were not accepted. If a majority of the Police Commission disagrees with the Chief’s decision, the Police Commission Chair shall report this to the Mayor. Police Commission members should take care to avoid unauthorized disclosure of confidential information. To that end, any Commissioner may consult with the City Attorney’s Office to obtain advice related to, among other things, the use and disclosure of confidential information. 7. The Chief of Police is responsible for reporting any misconduct of Burlington Police Department employees that falls under 20 VSA 2401 to the Vermont Criminal Justice Training Council. 8. Whenever the Police Commission becomes aware of allegations of misconduct by the Chief of Police, or if the Police Commission has concerns about the performance of the Chief of Police, the Police Commission Chair shall report this to the Mayor in a timely manner. In the event that the Chief of Police has engaged in misconduct pursuant to 20 VSA 2401, the 3 Adopted 8/25/2020 Page 86 of 99  Police Commission Chair shall report this to the Chair of the Vermont Criminal Justice Training Council. 9. The Police Commission shall report to the Burlington City Council twice each year regarding this policy. The report shall include a redacted summary of the number, type, and disposition of complaints reported to the Police Commission. 4 Adopted 8/25/2020 Page 87 of 99 Discipline- City of Burlington Page 88 of 99 Contracts, Policy and Directives • The City has 4 contracts which include discipline clauses with its respective unions • The Personnel Policy Manual applies to all City employees • Department Directives are permitted and covered in the Policy Manual. • The Burlington Police Department has 29 Directives. Violations of any of these directives can result in disciplinary action. ) Page 89 of 99 Comprehensive Personnel Policy Manual • The policies contained in this manual apply to all City employees. • Section 1.2 PURPOSE • The purpose of this Personnel Policy Manual is to combine in one place the personnel policies and benefits applicable to City employees, with the exception of the School Department and those employees covered under a collective bargaining unit. If these policies conflict with any policy contained in the contracts of any bargaining unit recognized by the City, the contract shall supersede these policies for any member of that union. Page 90 of 99 City Policy Violations • There are two primary sections in the Policy Manual that are used in the discipline of both union and non-union employees. • Most prevalent is Section 8 which outlines the expectations around employee behavior and Section 12 which outline the policies pertinent to the use of City property. • Any violation of policy can be grounds for progressive discipline. https://www.burlingtonvt.gov/ (2019) Page 91 of 99 Department Directives • 1.3 DEPARTMENT DIRECTIVES Departments may develop their own "Department Directives" for the administration of their Departments and are encouraged to use a similar employee involvement process. Department Directives, or rules which are deemed necessary for the orderly and efficient administration of Departments, shall be consistent with these personnel policies and procedures and shall be filed and made available in the administrative offices of such Departments for reference by employees. Department Directives shall not introduce or create benefits or costs not provided for by contract or approved by the Board of Finance and consistent with the appropriation intent and budget. Copies of all Department Directives shall be sent to the Human Resources Director. The Human Resources The Director shall provide interpretation as to whether Department Directives are considered consistent. Said interpretation is subject to appeal to the City Council. Page 92 of 99 Contracts and Progressive Discipline • IBEW- ARTICLE 12.1 • BFFA- ARTICLE XVII (17.1-17.6) • BPO- Article XV (A-0) • AFSCME- ARTICLE XV (15.1-15.8) https://www.burlingtonvt.gov/ (2019) Page 93 of 99 BPOA Contract • ARTICLE XV Quality Control, Performance, Counseling, and Discipline • Lower-level infractions of policy and procedure typically result in coaching, training, or counseling prior to imposing discipline. • Mid-level infractions or repetitive lower-level infractions are generally handled at the lowest possible level beginning with a letter of reprimand or admonishment and progressing into more substantial discipline such as suspension. Page 94 of 99  BPOA Contract • Higher-level infractions may result in more substantial discipline. These kinds of infractions could include things such as veracity issues; harassment; excessive force; knowing associations with targets of investigation or criminals; abuse of authority; failure to follow orders; political activity restrictions; etc. • Mid and High-Level Infractions can result in a written reprimand, reassignment, demotion, unpaid Suspension, or Dismissal. Page 95 of 99  Discipline Process Issues at a low level, for example, are expected to be resolved at the lowest level. Issues like late paperwork, tardiness, or mistakes with low impact are resolved by a coaching, more training, or even a verbal notice of reprimand. Higher levels of discipline involve written reprimands which involve a more formal meeting between a manager or department head and HR- with union representation if appropriate (non-union discipline does not require a representation). Discharge involves the HR Director, the City Attorney’s office and the department head. For police it also involves the Mayor’s office. All employees are entitled to appeal discipline decisions through the grievance process. Page 96 of 99  Grievances A grievance is sustained when an article of any contract is perceived by an employee as a contract violation. For example, a step one grievance is sent to a supervisor or manager due to a scheduling issue that involves seniority. If the grievance cannot be resolved at Step 1, it moves to a Step 2 grievance which works differently depending on union affiliation. AFSCME- IBEW: HR Director or HR Policy Committee BPOA: Police Commission BFFA: Fire Commission A step 2 grievance is not necessarily a high-level infraction- it is a disagreement on the CBA. If the grievance cannot be resolved at Step 2, which is rare, the issue could go to arbitration. Page 97 of 99  Discipline Process- Grievance • All employees Union and Non-union are entitled to a pre-termination hearing. If union, this is often referred to as a Loudermill hearing which is part of the "due process" requirement that must be provided to a public employee prior to removing or impacting the employment property right. In such a hearing the employee has a chance to provide additional details prior to termination. • If/ When an employee is involuntarily discharged (terminated), they have the right to appeal the decision per section 9.4-9.5 of the police manual. The appeal is heard by the Human Resource Policy Committee. Page 98 of 99 Questions? Page 99 of 99