This is Why More Police Department Transparency is Needed

[Taxing Matters]

A report by BuzzFeed that highlights how the New York City Police Department (NYPD) handles disciplinary matters of its officers shows why strong transparency policies are needed to ensure public confidence in the police that serve them. You can read the article here:
https://www.buzzfeed.com/kendalltagg...Em#.xtpq3QLG4p

The article is troubling not just for the fact that the NYPD appears to keep officers employed who knowingly lied on reports and in court, who physically assaulted citizens, were corrupt, or committed other offenses that I think most people would say should warrant firing of a cop. Cops have tremendous power and ought to be held to high standards. NYPD appears to not want to uphold those high standards. But just as troubling is the NY state law that shields the records of these proceedings from public scrutiny. California and Delaware are the two other states that provide such strong secrecy laws for police personnel records. So two of our largest states appear to not care for transparency and accountability and instead opt for laws that let police departments keep officers on the job who ought not be there. How can the public have confidence in the good officers when the bad ones are not terminated. I hope that good cops would be just as outraged by this as I am but somehow I think most cops will quickly defend keeping those records secret.

[cdwjava]

There are good reasons for many of the protections provided under CA law, not the least of which is personal safety. I cannot speak as to the state of those law in most other states, only in CA. I do not defend malfeasance at all and have both investigated and recommended the termination of officers who have been guilty of violating law or policy. But, having completely transparent personnel records can be a disaster both for an officer's career (even if cleared of all wrongdoing), and his or her personal safety as there tends to be a good amount of personal data included in those records. Officers involved in high profile incidents often have their careers ended even if ultimately found to have committed no wrongdoing. The public outcry is often too great to resist even if there was no legal or policy violation. The media perception becomes the reality and a career is over. Releasing heretofore confidential info to include past accusations and other personal info as many public access activists in CA are seeking, would serve only to further cool the ardor of officers out here. As it stands, the perception of career survival (with pension reform must now extend to 34 years or more) now relies largely on keeping one's head low and doing as little as possible.

I agree that bad officers should be terminated. I don't know of any officers that might say otherwise. But, since an accusation can be just as good as a sustained complaint in the public's eyes, I still support the general concept of confidentiality of personnel records. As part of the consent decree LAPD originally entered into more than a decade and a half ago, officers who suffered a mere accusation - even if later determine to be unfounded - were denied promotions and transfers; this was euphemistically known as "where there's smoke, there's fire" even without any proof or sustained allegations. The criminal element discovered that the threat of complaints was good for retaliation, so complaints flew ... and when the courts overturned the possibility of civil or criminal action for a false allegation against officers, complaints skyrocketed. It chilled proactive actions by the LAPD for some years and crime rose. To some degree we see that chill recurring state and nation wide when slanted headlines compel agencies to cast their people aside for political expediency.

Oh, and those law enforcement records CAN be accessed through legal process (Pitchess), so it's not like they are forever concealed without an avenue to reveal them. Fortunately, Pitchess allows for an in camera review by a court prior to the release so as to determine if there is actually something relevant in the record that might concern the legal matter at hand.

It would seem a no-brainer that officers engaged in clear lies should lose their jobs since these become Brady issues and render officers incapable of effectively performing their duties. Most crimes should also be grounds for termination. Sadly, there have long been tales of NYPD and many other east coast departments maintaining personnel whose actions would warrant termination or even prosecution elsewhere. When I was first considering entering into law enforcement, I had considered moving to my wife's hometown, Philadelphia. But, after a conversation with some of her family who both lived and worked there (one IN law enforcement) I was told that it was not the best place to be working as an honest cop. It was more than depressing to hear such a thing, yet I know that such cultures still exist here and there even if I have never worked within such a culture.

[Taxing Matters]

There are good reasons for many of the protections provided under CA law, not the least of which is personal safety. I cannot speak as to the state of those law in most other states, only in CA. I do not defend malfeasance at all and have both investigated and recommended the termination of officers who have been guilty of violating law or policy. But, having completely transparent personnel records can be a disaster both for an officer's career (even if cleared of all wrongdoing), and his or her personal safety as there tends to be a good amount of personal data included in those records.

A well crafted disclosure law would prevent personal information like home address, phone number, etc., of officers from being made available to the public. But the public should have, at a minimum, ready access to records showing which officers have been found to be guilty of misconduct, what that misconduct was, and what discipline the department imposed. In NY, the public cannot even get this basic information. I am a firm proponent of transparency in government. A democracy can only thrive if the citizens can hold their officials accountable for their actions, and they cannot do that if they cannot get the information needed to see how their government functions. When I was a revenue officer for the IRS, most of my not personal personnel information was available to the public for the asking with a Freedom of Information Act (FOIA) request. I too had concerns for my safety; revenue officers are the ones who seize property to collect delinquent taxes and are frequently threatened and sometimes assaulted. But safety is no good argument against making available records of misconduct and discipline against an employee. The only reason to hide that information, IMO, is to shield public officials from accountability, thus giving space for corruption and abuse to thrive.

Officers involved in high profile incidents often have their careers ended even if ultimately found to have committed no wrongdoing. The public outcry is often too great to resist even if there was no legal or policy violation. The media perception becomes the reality and a career is over. Releasing heretofore confidential info to include past accusations and other personal info as many public access activists in CA are seeking, would serve only to further cool the ardor of officers out here. As it stands, the perception of career survival (with pension reform must now extend to 34 years or more) now relies largely on keeping one's head low and doing as little as possible.

I would agree that in the case of accusations that have not yet been sustained that some greater care in release of that information needs to be considered. I would say the same thing about criminal suspects who have been arrested but never tried, too. But I would still require police departments to keep records of accusations and release the statistics of the number of accusations, the type of misconduct alleged, and how many of those allegations were sustained to help the public get a sense of how well the system might be working. I would also prohibit confidential civil settlements by the government, too. If the government is going to pay out thousands or millions of dollars for misconduct, the public has a right to know the details of that.

[B]I agree that bad officers should be terminated. I don't know of any officers that might say otherwise.

I've heard police unions give lip service to that exact sentiment, but then when it comes time to implement procedures to actually hold bad cops accountable, what happens? Almost invariably the police unions are adamantly opposed to those efforts. So forgive me if I take that sentiment with a bit of a grain of salt.

Oh, and those law enforcement records CAN be accessed through legal process (Pitchess), so it's not like they are forever concealed without an avenue to reveal them. Fortunately, Pitchess allows for an in camera review by a court prior to the release so as to determine if there is actually something relevant in the record that might concern the legal matter at hand.

That’s not good enough. That helps a litigant, but it worthless to the general public in getting information to determine how well their government is functioning. You need access to ALL the misconduct records, not just piecemeal access that might drip out to the press in the course of litigation, to do that.

Sadly, there have long been tales of NYPD and many other east coast departments maintaining personnel whose actions would warrant termination or even prosecution elsewhere. When I was first considering entering into law enforcement, I had considered moving to my wife's hometown, Philadelphia. But, after a conversation with some of her family who both lived and worked there (one IN law enforcement) I was told that it was not the best place to be working as an honest cop. It was more than depressing to hear such a thing, yet I know that such cultures still exist here and there even if I have never worked within such a culture.

You probably made the right choice. I used to live the Philadelphia area. The amount of state and local government corruption, including the cops, the courts, the highway departments, and pretty much any other government official was truly disturbing. While I was there a major scandal unfolded that resulted in a number of Philadelphia municipal and state court judges being convicted in federal court for corruption related to taking bribes from Philadelphia area unions to get their members off on charges they faced. I would like to say I was shocked by that, but in Philly that wasn’t surprising; government corruption, unions, and organized crime all seemed to go hand-in-hand. And I have no reason to believe it is any better today than it was back when I was there. Government in NJ and NY were in much the same boat. And it is corruption like that, also found in places in the south, that lead a lot of people to be suspicious of cops and tend to think they are all corrupt and cannot be trusted. And the way to help combat that problem starts with shining a bright light on the activities of the cops so that the public can hold them accountable. Keeping everything in the dark allows the mold of corruption to grow and thrive.

[cdwjava]

A well crafted disclosure law would prevent personal information like home address, phone number, etc., of officers from being made available to the public. But the public should have, at a minimum, ready access to records showing which officers have been found to be guilty of misconduct, what that misconduct was, and what discipline the department imposed.

That's what Pitchess is for. To allow unfettered access to personnel records (even just disciplinary records) can result in unnecessary motions and litigation even before matters get to court and unduly muddy the political waters through public disclosure. Such matters can just as easily end a career when they receive undue media coverage, and unrelated accusations and allegations can further muddy criminal cases beyond what they may normally become. I have seen cases revolve around an officer's actions alone, and not at all around the actual actions of the offender. Distraction can be an effective defense tactic. Perhaps if we could trust our employing agencies to support us when we have done nothing wrong, the prospect would be less daunting. But, in today's environment when agencies freely let officers go to make their political lives easier - damn the RIGHT thing to do - trust is at a minimum even from the employees. If the employer had the officers' backs, then, maybe I could support more openness with regards to internal investigations.

Then, of course, there are those internal investigations which are little more than political witch-hunts and overturned (sometimes years later) when the matter goes to court. I know a good many officers whose careers went out the window as a result of politically motivated internal investigations, and eventually won modest settlements against their past employer having the findings of the internal investigation overturned or expunged entirely. But, the damage is most often done by then.

Remember, internal investigations have no checks and balances and are subject to largely subjective whims of the investigator of the finder of fact (i.e. the Chief or his or her designee). Court comes well after the fact, and too often after the career is ruined as a result. Granted, not all investigations are rigged, but, the possibility is there - particularly with citizen review boards who often lack any legal or police experience and act on political motivations rather than objective ones.

Transparency is fine and dandy, but when you are on the receiving end of a politically motivated hit, the "finding" of that investigation can ruin you even if eventually cast aside years later.

I would agree that in the case of accusations that have not yet been sustained that some greater care in release of that information needs to be considered. I would say the same thing about criminal suspects who have been arrested but never tried, too. But I would still require police departments to keep records of accusations and release the statistics of the number of accusations, the type of misconduct alleged, and how many of those allegations were sustained to help the public get a sense of how well the system might be working. I would also prohibit confidential civil settlements by the government, too. If the government is going to pay out thousands or millions of dollars for misconduct, the public has a right to know the details of that.

In CA we have to report to the CA DOJ the nature and number of investigations, and their conclusions. We also have to inform complaining parties of the general results of the investigation, though specific penalties are not generally permitted.

It is also not that difficult to discover the results of civil payouts ... at least out here. But, with something like 9 in 10 claims that are paid being paid as a result of an out of court settlement without admission of guilt, it can be hard to determine if the payout is an act of contrition or a cost of doing business. Cities regularly settle to avoid litigation even if they might ultimately prevail. Pay now, save the cost of litigation and two or three years of negative headlines.

I don't know that there are too many confidential payments out here ... I honestly haven't found too many where the terms are entirely undisclosed or unable to be uncovered. Public records laws tend to allow that info to pop up somewhere and many news agencies tend to find it, anyway. But, I am not at all opposed to open records of settlements. Since fiscal responsibility is covered under our CPRA and Brown Act regs., I don't know that the info could be entirely concealed out here anyway.

I've heard police unions give lip service to that exact sentiment, but then when it comes time to implement procedures to actually hold bad cops accountable, what happens? Almost invariably the police unions are adamantly opposed to those efforts. So forgive me if I take that sentiment with a bit of a grain of salt.

I've heard many strange things. But, if you can't trust the process, you have to be skeptical. As I mentioned previously, in some agencies internal investigations can be politically motivated. I know of a couple that I was involved in first hand. One career was ruined as a result, even though she reached an out of court settlement in the end and a court ruled ruled in her favor on the matter of her punishment.

As I said, I don't know any officers that want to work with criminals. Officers who violate internal policies, those can vary. Not every act of malfeasance supports termination, and often when a union complains about an investigation it is because they see that the process is unfair in some way. Remember, the union acts as the defense bar for the officer - they are legally bound to advocate for the officer. Sometimes that means they might have to hold their nose as a collective organization, even if the individuals within it silently hope that the officer's penalties are upheld.

That’s not good enough. That helps a litigant, but it worthless to the general public in getting information to determine how well their government is functioning. You need access to ALL the misconduct records, not just piecemeal access that might drip out to the press in the course of litigation, to do that.

If the process was systemically honest and not subject to political bias and subjective interpretation, I might agree with you. As I said, I have seen careers ruined because of unfair accusations (from inside and out) and biased investigations. In most agencies, I believe the process is objective and largely fair. But, the ultimate decision belongs to a political appointee or elected representative (police chief or sheriff) and can reflect a political expediency rather than objective fairness. To freely release info that can be untrue and unduly harmful serves little purpose other than to humiliate or inflict harm on a particular officer.

You probably made the right choice. I used to live the Philadelphia area. The amount of state and local government corruption, including the cops, the courts, the highway departments, and pretty much any other government official was truly disturbing.

So I have heard.

While I was there a major scandal unfolded that resulted in a number of Philadelphia municipal and state court judges being convicted in federal court for corruption related to taking bribes from Philadelphia area unions to get their members off on charges they faced. I would like to say I was shocked by that, but in Philly that wasn’t surprising; government corruption, unions, and organized crime all seemed to go hand-in-hand. And I have no reason to believe it is any better today than it was back when I was there. Government in NJ and NY were in much the same boat. And it is corruption like that, also found in places in the south, that lead a lot of people to be suspicious of cops and tend to think they are all corrupt and cannot be trusted. And the way to help combat that problem starts with shining a bright light on the activities of the cops so that the public can hold them accountable. Keeping everything in the dark allows the mold of corruption to grow and thrive.

It is a sad statement that those areas that have been historically corrupt have done so little to affect positive change in the long run. That is a failing from above and below, I'll grant you. I am all for open government in most all its forms, but, I have to draw the line at the release of individual personnel info that can be subjective and political in nature, and that often lacks any truly objective due process or arbitration. It can be a quite oppressive thing to face politically motivated accusations and find yourself fighting for your career knowing that if you lose, you lose everything. Adding the public release of those accusations or initial findings, that would be simply traumatic and serve no practical purpose.

Summaries of the nature of complaints and their conclusions, even a range of penalties set down, sure - all for that! Individual personnel records, no.

[Taxing Matters]

Summaries of the nature of complaints and their conclusions, even a range of penalties set down, sure - all for that! Individual personnel records, no.

Then there is no real accountability if you cannot reveal that Officer Jones lied in grand jury proceeding and that his department only gave him a slap on wrist rather than the termination Officer Jones deserved. If federal employees can withstand having information about their misconduct made available to the public, surely state and local employees can withstand that, too.

That internal investigations might be politically motivated by the department is actually another reason for real transparency. Let's see the process and the evidence against the officer. If it's trumped up, let that come out in public, too. BTW, your assertion that the internal process is politicized and thus cops are either pegged guilty or not punished based on something other than the evidence of their misconduct is exactly why independent review panels outside of the control of the police department is a good idea. The federal government does that for a number of agencies, including the IRS. Yet where I’ve seen that idea proposed for local police departments, often I see the local cops almost uniformly opposed to that. And yet you say they cannot trust their internal investigators either. What then would you propose? Simply do nothing about misconduct and hide it all from the public? That would serve your purpose of protect the good cop, but also all the bad ones too.

If the internal process is corrupt, then fix it. Shine a light on that process and do what is needed to avoid the department politics taking over, even if that means using an external investigation agency to do it. But that is not a good reason to hide from the public the results of the those internal investigations and what punishment is meted out.

[PTPD22]

[QUOTE=Taxing Matters;1064228That internal investigations might be politically motivated by the department is actually another reason for real transparency. Let's see the process and the evidence against the officer. If it's trumped up, let that come out in public, too.[/QUOTE]

Two words: Darrin Wilson. Don't think any investigation could be more publicly scrutinized than that one. How did that “transparency” of the “process and the evidence against the officer” – that completely exonerated the officer and proved that allegations of misconduct were outright lies – work in that case? He not only lost his career (which by ALL accounts he was very good at), he was forced to move his family out of fear for their safety.

You know, about 10 times more people die from preventable medical errors than police related deaths of any sort. Not diseases or injuries – PREVENTABLE errors. Who reviews those incidents and determines what remedial or disciplinary actions are appropriate? Is there a need for a rep from the Church of Scientology or some self serving “community activists” on those review boards to ensure they are “unbiased” and “transparent?” No, those boards are made up of experienced DOCTORS who are actually knowledgeable about the complexities of the medical profession.

[cdwjava]

It is not so easy to change the internal investigation process as confidentiality also shields the investigations and results from internal personnel. Officers are told that discussing the investigation or discussing the incident at all can result in discipline up to and including termination. The internal trauma can be debilitating. When I suffered politically motivated claims of malfeasance (potentially criminal and certainly likely to end my career if sustained) I was prohibited from speaking to anyone at all besides my legal representative. I could not explain to my wife and children why I was so pissed off and acting out, I couldn't talk with a therapist or my minister, I had no release. This is NOT uncommon for many officers subject to political investigations. The agency may seek to nail the offending officer on a policy violation rather than on the internal hit he is being investigated for as it solves their problem. He talked, he's fired ...no need to show that he violated policy. In my case, my attorney negotiated a deal allowing me to speak with my pastor and my wife on the matter, and ultimately ALL the allegations were determined to be unfounded (as the investigation was done by an outside agency and not internally ... which would have been tough since I WAS the IA investigator! (They also violated my POBR rights but I lacked the fiscal resources to sue over that matter ... $25,000 retainer just to play.)

I don't know how it is in other states, but in CA money talks, and defending yourself against false allegations and politically motivated claims is nearly impossible unless you are indepentently wealthy, or you have a large association willing to foot the bill (and most cannot).

Most associations - and, certainly, most officers - lack the resources to actually sue over the internal investigation process, so correcting the process is a matter of political will.

Darrin Wilson is the incident that came to mind during my thinking on the matter. I also have personal experience to draw from as I was a union rep and union President for the better part of a dozen years and engaged my city in a pretty fierce battle concerning their persecution of an officer.

[L-1]

Taxing,

I wish things were as clean and simple as you believe them to be. Sadly, they are not.

The purpose of the law enforcement complaint process is to address actual misconduct on the part of an officer. Misconduct is when an officer violates the law, a a department policy, rule or regulation, or the orders of a supervisor.

However, over the years people have misused it for other purposes. Instead, they have misused the police complaint process as an alternate means of achieving political, social, moral change in government. As a result, many personnel files are filled with complaints that do not allege actual misconduct against the officer himself, but instead reflect dissatisfaction by members of the public with things the officer may have been involved with, but were beyond his control. Later on, these allegations have been used to publicly discredit the officer, assassinate his character and derail his career by making the complaints know but withholding the findings. This is known as the “Where there’s smoke there’s fire” tactic. In order to protect the officer from such blatant misuse, the California Legislature declared police personnel files to be confidential.

A good example of this involved one of my officers several years ago. An old girlfriend went off the deep end, became mentally disturbed and alleged that he raped her. Local law enforcement conducted the criminal investigation into her allegation and I conducted the internal affairs investigation. Both agencies determined the two of them hadn’t seen each other in 10 years, that he was 40 miles away from her with numerous witness at the time of the supposed crime and he was exonerated. Over the next several months she made five separate rape allegations against him. All were investigated and all were determined to be false and that he was nowhere near her.

Nonetheless, the officer still has six Internal Affairs rape investigations in his personnel file. Were his file to be made public and if someone wanted to discredit him or his employing agency, all they would have to do is publicize that he had been investigated for rape six times and then demand to know why he was still employed as a police officer, while withholding the fact that he was innocent and the complainant was a head case.

FWIW, I conducted internal affairs investigations for many years. In my personal experience, probably 85% of the complaints received from the public were without merit. Instead of alleging actual misconduct, most were either:

1. Unhappy because enforcement action was taken against them or someone else.
2. Disagreed philosophically with the law or a department policy and wanted us to substitute their personal beliefs for the law.
3. Misunderstood what the law or their rights were.
4. Had no factual (or reasonable) basis for believing the allegation to be true (false or imagined violation but real in their mind).
5. Blatantly false complaint made in retaliation against and officer for some official action he had taken against them or someone else.
6. False complaint made by arrestees against arresting officers, hoping to use it to get the prosecutors to drop the criminal case against them.

OTOH, probably 85% of the internally generated complaints against police officers (cop against cop) wound up being sustained, because cops understood what actually constituted misconduct and did not make such allegations lightly.

In addition to politically motivated investigations cdwjava mentioned, some agencies practice management by accusation. I spent many years working in an agency where if two people didn't get along, one would initiated a complaint against the other, taking just enough information out of context to initiate a full fledged internal affairs investigation. For years, I/A was kept hopping by officers who fueled morale problems by misusing the internal affairs system to initiate what turned out to be bullshit complaints against each other. Were the I/A complaint files of any of those "victim" officers to be made public, the public would be clamoring to know why cops with so many complaints of serious misconduct are still employed, when i fact, none of the allegations were true and they were simply made by other officers as part of a power play within the ranks.

Shining a light on such matters doesn't offer clarity because the public and the media are too impatient to sort through the minutia, digest the facts and read a lengthy and thoughtful analysis of what really transpired, or to accept the truth if it does not fit their preconceived notion of reality. The mantra of the media is "If it bleeds, it leads" so only the sensational gets the headlines and the facts are lost. As Mark Twain once put it, you have to go over the story with a divining rod to find the truth.

As PTPD22 mentioned, the case of Darren Wilson is the perfect example. Investigation after investigation determined that Wilson did nothing wrong and that Mike Brown was a strongarm robber who attacked Wilson and attempted to take his gun. Yet to this day, the media and public still revile Wilson as the villain and Brown as the hero. Where is the shining light of clarity there?

[cdwjava]

To reiterate what L-1 points out, external complaints are very often an expression of frustration. No one listened to them, they didn't get the service they wanted, they didn't like the outcome, or maybe they just don't like the police. I'd have to agree that some 85% of external complaints were unsubstantiated or unfounded, and some 85% of internally generated complaints (by peers) were sustained. I have stories similar to the ones mentioned by L-1 and entirely agree that the release of these records can paint a damning picture that is entirely false.

[Taxing Matters]

No, those boards are made up of experienced DOCTORS who are actually knowledgeable about the complexities of the medical profession.

And generally very overprotective of their own profession. You know how many doctors who commit malpractice ever have action taken against their medical license? Very, very few. The same is generally true for states in which lawyers are the only ones reviewing the alleged misconduct of lawyers, too, btw. I won’t exempt my own profession from that criticism. It is for that reason in my state that the lawyer disclpline process includes not just lawyers on the panel but members drawn from the general public too. And the Supreme Court publicly releases the written determination of the review panel in every case in which discipline is actually imposed and maintains a freely available web site that the public can search any lawyer and determine what his/her disciplinary record is. I strongly supported those changes. Exposing the profession to public review helps to ensure the integrity of the profession and holds legal profession and the Court accountable for how lawyers are regulated and disciplined.

You can point to a few specific cases where publicity screwed the professional careers of an officer. You can't prevent all instances of that. And in the case of Wilson, it was not the release of personnel documents that did that to him, so you cannot blame rules meant for transparency for that.

As I stated from the outset, I suspected that cops would defend the protection from release of even the limited information I suggested we ensure gets released: records of those officers who have been determined after their department’s investigation process to have committed misconduct and what discipline was handed out to that officer, and I see that the police officers of this forum have done just as I predicted. I have not advocated for release of ALL information from personnel records, just that related to officer misconduct. I guess that blue line is so tight that good officers would rather protect the bad ones than allow the public to see what happens to those bad officers. The public needs to have a way to see what their public officials do and hold them accountable for the decisions they make, like the decisions to retain on the force officers whom most would say should be fired: those that lie, those who abuse suspects, those who cheat their department out of money, etc. How can the public do that if you hide the information needed to do it?

Let me ask you officers this question: how would you propose to give the public the information to hold official accountable if you protect ALL information about a police officer? Do you actually have any workable solutions that would provide useful information, or are you just giving me a knee jerk reaction that release of this information must be a bad thing and the public be damned? The federal government generally does not disclose records of mere allegations of misconduct against its employees but will release records regarding significant acts of proven misconduct; not every detail is released, but the general nature of the misconduct and the action the agency took is typicall available to the public. If the federal government can do that, why can’t state and local governments do that too?