(former) CM GORDON AMENDED DRAFT (AUGUST 20, 2021) of CHAPTER 172. - POLICE CONDUCT OVERSIGHT

As the Council is considering a more recent proposal to amend the police conduct ordinance, I humbly offer this work product from last year, which I drafted with the help of some key community advisors and with input from city staff.  The underlining indicates new language and the strikethrough marking indicates language to be removed. I hope that it might be helpful. 

Former CM GORDON's AMENDED DRAFT, AUGUST 20, 2021

 

CHAPTER 172. - POLICE CONDUCT OVERSIGHT^[3]

 

Footnotes:

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Editor's note— Ord. No. 2012-Or-061, § 1, adopted September 21, 2012, amended the title of Ch. 172 from "Civilian Police Review Authority" to "Police Conduct Oversight." See also the Code Comparative Table.

172.10. - Police conduct oversight system established.

For the purposes of (1) assuring that police services are delivered in a lawful and nondiscriminatory manner, (2) assuring that effective accountability for policing is supported through appropriate supervision and management (3) contributing to the Mayor receiving early warning information regarding potential future risk of civil liability (4) providing to the public meaningful participatory oversight of the police and their interactions with the citizenry and (35) investigating complaints of misconduct on the part of officers of the Minneapolis Police Department and making recommendations regarding the merits of such complaints to the Mayor chief of police, there is hereby created an office of police conduct review and a police conduct oversight commission, with duties and authority as described in this chapter. (90-Or-043, § 1, 1-26-90; 90-Or-188, § 1, 7-27-90; 2003-Or-028, § 1, 3-21-03); 2012-Or-061, § 2, 9-21-12)

172.80.20 - Police conduct oversight commission.

(a) Composition. The police conduct oversight commission shall be comprised of a minimum of seven (7) members, four (4) of whom shall be appointed by the city council, and three (3) of whom shall be appointed by the mayor, subject to the approval of a majority of the city council. If more than seven (7) members are appointed to comprise the pool of commission members, the city council shall appoint the eighth member, the mayor the ninth member, subject to approval by a majority of the city council and alternating thereafter. All commissioners shall be appointed in conformance with the open appointments as outlined in Minneapolis Code of Ordinances Title 2, Chapter 14.180. In order to stagger the expiration of terms, the original appointments of commissioners shall be for terms of one (1) or two (2) years, as determined by the city clerk. Thereafter, appointments shall be for two (2) years. A chairperson and vice-chairperson of the commission shall be elected by a majority of the appointed members. In order to stagger the terms of the chairperson and vice-chairperson, the initial appointment of the vice-chairperson shall be for one (1) year. The vice-chairperson shall only have chairperson duties in the absence of the chairperson. In the absence of a chairperson or vice-chairperson, the chairperson or vice-chairperson may designate an acting chairperson to serve until the next board meeting or until a chairperson is duly appointed. If the chairperson or vice-chairperson are unable for any reason to designate an acting chairperson, the commission shall appoint an acting chairperson to serve until the next board meeting or until a chairperson is duly appointed. The acting chairperson shall have full authority to conduct actions of the chairperson. All members shall continue to serve until their successors have been appointed. A majority of the members shall constitute a quorum. Minneapolis Police Department employees shall not participate in any manner in the selection of police conduct oversight commissioners.

(b)  Qualifications. All members shall be residents of the city. Residents currently or previously employed by the Minneapolis Police Department are ineligible to serve as members of the commission. The office of police conduct review may establish additional required qualifications.

(c)  Minimum training requirements.

(1)  All members must participate in an annual training session as arranged by the Minneapolis Department of Civil Rights.

(2)  All new members must complete training in the following subject areas as arranged by the Minneapolis Department of Civil Rights: police use of force, Minnesota Government Data Practices Act, Open Meeting law, the Minnesota Public Employee Labor Relations Act, ethics and conflict of interest.

(3)  Within two (2) years of appointment, all new members must complete the portions of the Citizen's Academy as determined by the Minneapolis Department of Civil Rights. Members will be compensated fifty dollars ($50.00) for each Citizen's Academy session attended.

(d)  Removal. Any member of the commission may be removed, by vote of a majority of the city council and approval of the mayor, for incompetence, neglect of duty, misconduct or malfeasance, or failure to participate in and complete minimum training requirements. Any vacancy occasioned by resignation, death, or removal of a member shall be filled for the balance of the unexpired term by appointment by the mayor subject to approval of the city council.

(e)  Compensation—Limitation. Each member shall be paid fifty dollars ($50.00) for each day when the member attends one (1) or more meetings, and shall be reimbursed for expenses incurred in the performance of duties in the same manner and amount as other city boards and commission members. The total amount of per diem and reimbursable expenses payable under this section shall not exceed the total annual budget allocation for such costs.

(f)  Authority. The commission shall meet once every month at a regularly scheduled time and place for the purpose of conducting any business necessary to the operation of the commission, and to assign panels for the subsequent month. The commission may meet at such additional times and places deemed necessary by its members, or on the call of the chairperson. The commission may:

(1)  Conduct programs of research and study, in conjunction with office of police conduct review staff appointed by the director of the office of police conduct review. Research and study includes programs that analyze Minneapolis Police Department practices, internal controls, compliance with applicable law and regulation relating to police policy and procedure and other related matters, to ensure that police services are delivered in a lawful, effective, and nondiscriminatory manner for the purpose of ascertaining how the objectives of this chapter may be attained and sustained. For this purpose, all members of the police conduct oversight commission must have access to all private data which they determine may be relevant, including but not limited to data classified under the MGDPA or other authority as "private", "confidential", or "non-public that is generated by the office of police conduct review.

(2)  Collect, review and audit summary data and compile aggregate statistics relating to programs of research and study such as patterns of behavior related to complaints of police officer misconduct, and present results of such analysis on a periodic basis to the public safety subcommittee of the city council, mayor, and/or chief of police.

(3)  Make recommendations to the city council, mayor, and/or chief of police relating to Minneapolis Police Department officers, practices, internal controls, compliance with applicable law and regulation relating to police policy and procedure and other related matters contained within a program of research and study, or for purposes of potentially providing early warning of risk of civil liability.

(4)  Facilitate outreach and training as a result of the research and study process.

(5)  Regularly meet with the Mayor so as to establish communication about: a) the goals of police oversight generally, b) the impacts of discipline decisions on effective oversight, c) potential civil liability, and d) for  Ccontributing to the performance review appraisal of the chief of police.

(6)  Create and implement a community outreach program and coordinate outreach activities with the Minneapolis Commission on Civil Rights.

(7)  Submit periodic reports to the public safety subcommittee of the city council regarding the activities of the commission.

(8)  Establish, amend and repeal rules and procedures governing its own internal organization and operations in a manner and form consistent with this Code.

(9)  Form subcommittees to assist in fulfilling its duties and responsibilities.

(10)  Request from the mayor and city council the appointment of such staff as is necessary to carry out the duties of the commission.

(11)  Request from the city attorney the appointment of an independent attorney when the city attorney may be in conflict due to its handling of all civil liability legal defense cases.

(g)  Facilitation of research and study. The director of the office of police conduct review may designate one (1) or more analysts to facilitate the police conduct oversight commission in programs of research and study. The analyst may:

(1)  Conduct periodic research and study directed by the police conduct oversight commission.

(2)  Establish a follow-up process to monitor the disposition of results communicated to the police conduct oversight commission and appraise the commission on the effectiveness of corrective actions taken or the acceptance of the risk of not taking action.

(3)  Submit an annual report to the police conduct oversight commission, mayor and city council indicating research and study projects completed, major findings, corrective actions taken by administrative managers, and significant findings which have not been fully addressed by management.

(4)  Conduct special reviews and programmatic reviews at the request of the mayor, city council, internal auditor, city departments or boards and commissions.

The analyst for the office of police conduct review shall organize and administer programs of research and study to operate without interference or other influence that might adversely affect an independent and objective judgment of the analyst. In the event of alleged or suspected impropriety, fraud, or misappropriation or misuse of city funds, the analyst for the office of police conduct review shall seek advice from the city attorney, the joint supervisors director of civil rights, and, as appropriate, conduct an investigation and report any suspected criminal activity to appropriate law enforcement authorities. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 9, 3-21-03; 2012-Or-061, § 9, 9-21-12; Ord. No. 2017-076 , § 1, 12-8-17)

(h) Independent Counsel. In order to avoid conflicts of interest or the appearance of conflicts of interest, the City Attorney shall appoint an independent counsel to advise and support the OPCR and PCOC. There shall be a firewall between the independent counsel and the City Attorney's Office.

172.20.30 - Scope of authority, office of police conduct review. (moved to come under Commission)

The office of police conduct review shall consist of a civilian unit be established under the authority of the director of civil rights, and will not employ any persons with duties that currently are, or formerly were, supervised by the Minneapolis Police Department. and an internal affairs unit under the authority of the chief of police. For duties outlined in this chapter, the director of civil rights, and not the chief of police, shall be construed as to hold Mayoral delegation authority with respect to the city charter. The office shall receive complaints that allege misconduct by an individual police officer or officers involving any of the following:

(1)  Use of excessive force.

(2)  Inappropriate language or attitude.

(3)  Harassment.

(4)  Discrimination in the provision of police services or other discriminatory conduct on the basis of race, color, creed, religion, ancestry, national origin, sex, disability or age or sexual orientation.

(5)  Theft.

(6)  Failure to provide adequate or timely police protection.

(7)  Retaliation.

(8)  Any violation of the Minneapolis Police Department's policy and procedure manual.

(9)  Criminal misconduct. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 2, 3-21-03; 2006-Or-064, § 1, 6-16-06; 2006-Or-114, § 1, 10-20-06; 2012-Or-061, § 3, 9-21-12)

172.30. - Complaint filing, preliminary review and investigation.

(a) Complaint filing. Any person who has personal knowledge of alleged misconduct on the part of a Minneapolis police officer may file a complaint with the office of police conduct review by submitting said complaint by means of any readily available method approved by the office. The office shall endeavor to facilitate the complaint filing process by providing multiple and accessible avenues for the filing of complaints. Absent extenuating circumstances deemed sufficient to warrant untimely filing, no person may file a complaint if more than two hundred seventy (270) days have elapsed since the alleged misconduct. Complaints may be filed anonymously.  The office of police conduct review may initiate its own complaint when investigation is warranted and no other complainant has filed.

(b)  Complaint review. All complaints shall be jointly and collaboratively assessed and preliminarily reviewed by supervisory staff of the office from both the civilian unit and the internal affairs unit. A Subject to reconsideration, a complaint may be declined dismissed with no further action required pursuant to the authority and discretion of the office if, on its face, it fails to allege a violation within the purview and jurisdiction of the office. A complaint may also be referred to another more appropriate governmental agency or, in the case of allegations which rise only to a potential "A" level infraction under the police department's adopted discipline matrix, may be referred to a program of mandatory mediation instituted by the office of police conduct review or directly to the officer's supervisor for coaching. Such complaints may also, pursuant to the authority and discretion of the office, be referred for formal investigation pursuant to subsection (c).

(c)  Complaint investigation. All other qualifying complaints shall be formally investigated by the office. through assignment to an investigator or investigators from the civilian unit and/or the internal affairs unit. The office shall endeavor to complete any reviews and investigations as promptly and efficiently as possible. Any complaint alleging criminal misconduct by an officer shall also initially be referred to the internal affairs unit of the Minneapolis Police Department, which will only investigate the criminal charge – directly or through an independent police agency – and, if no charge will be filed, immediately returned to the office of police conduct review for resumption of the personnel misconduct investigation. Complaints not alleging criminal misconduct may be assigned to the civilian unit at the formal request of a complainant. The investigative report shall be in a format designated by the office and all final reports shall be reviewed and approved by supervisory staff. of the office from both the civilian unit and the internal affairs unit. The investigative report shall not include any recommendation or conclusion regarding the merits of the complaint.

(d)  Procedural discretion and decision making. Any procedural issue related to the duties and authority of the office for which supervisory staff from the civilian unit and the internal affairs unit is unable to reach agreement upon shall be referred to the director of civil rights and the chief of police, who shall jointly determine the matter. In the event the director and the chief are unable to resolve the issue, a designee of the mayor may mediate, and if necessary resolve, the issue.

(ed)  Mediation and Restorative Justice. Upon the joint direction of supervisory staff of the office of police conduct review from both the civilian unit and the internal affairs unit, a A complaint may be referred to mandatory mediation or restorative justice, subject to the agreement of the complainant and respondent, and in accordance with administrative rules established by the POLICE CONDUCT OVERSIGHT COMMISSION. upon preliminary review of the complaint or at any other time in the course of investigation when deemed to be appropriate. The mediation shall proceed according to procedures adopted and instituted by the office of police conduct review.  To reflect their professional role as neutral, no Mmediator and or restorative justice facilitator shall be neutral trained mediators unaffiliated with the office of police conduct review, the police conduct oversight commission, the civil rights department, the police department, or[GCA1]  any other department of the City of Minneapolis. 

(fe)  Firewall. Information from investigations shall be shared only with staff assigned to the office of police conduct review and police conduct oversight commission, unless otherwise specifically authorized by law. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 3, 3-21-03; 2003-Or-112, § 1, 9-12-03; 2004-Or-068, § 1, 6-18-04; 2009-Or-029, § 1, 3-27-09; 2010-Or-022, § 1, 4-16-10; 2012-Or-061, § 4, 9-21-12)

172.35. - Reserved.

Editor's note— Ord. No. 2003-Or-028, § 4, adopted March 21, 2003, repealed § 172.35, which pertained to compensation—Limitation. See the Code Comparative Table.

172.40. - Review panel procedure.

All final and approved investigative reports shall be forwarded to a review panel for the purpose of making recommendations regarding the merits of the complaint to the chief of police. Mayor.

(1)  Each review panel shall be comprised of four (4) three (3) panelists. Two (2) of the panelists shall be from the pool established in 172.60 (below),  sworn officers of the police department holding the rank of lieutenant or higher assigned by the chief of police or the chief's designee members of the and two (2) the third panelists shall be civilians a member of the police conduct oversight commission, who will serve as the panel’s chair, and be responsible for submitting the written findings adopted by the panel. 

(2)  All panels will be assigned by the director of civil rights or the director's designee. chair of the police conduct oversight commission under parameters and timelines established through administrative rules.The panels shall be scheduled on an as-needed or regular basis by the office of police conduct review. Each panel shall appoint a chair, although the office of police conduct review shall designate whether the chair of each panel shall be a civilian or officer member on a rotating and equal basis.

(3)  The panel shall review and discuss the investigative report but shall and may take no testimony from witnesses or parties unless a request from the panel is specifically approved by the office of police conduct review.

(4)  The panel shall issue its recommendation within three (3) seven (7) business days of the panel review, which shall be returned to the office of police conduct review and promptly forwarded to the Mayor chief of police. The recommendation shall be in a format jointly approved by the office of police conduct review and the police conduct oversight commission, shall be signed by all panelists, and shall include a recommendation as to whether each allegation is supported or not supported by a preponderance of evidence and whether discipline is warranted or not warranted along with reference to the investigative evidence which supports the recommendation. And a The recommendedation may include considerations for range of discipline, including whether transparency goals warrant that discipline should be imposed to ensure a public record of the disposition. Discipline may include all actions taken in response to a sustained complaint, including terminations, suspensions, letters of reprimand, warnings, and coaching terminations, or any other action that is taken in response to the complaint.  Alternatively, the panel may return the investigative report with a request for additional information, which shall be identified with particularity.

(5)  The recommendation shall include the votes of each panelist, and in the event the panel is evenly divided on any recommendation, such division shall be noted may include explanation of internal disagreement.

(6)   The standard of proof necessary to recommend that an allegation be sustained is preponderance of the evidence, which is the same evidence standard applied by civil juries in lawsuits against the city for police misconduct, and therefore supports an early warning process for liability risk. Preponderance of the evidence means that the greater weight of the evidence supports the decision.

 

 

(7)  The office of police conduct review shall provide written notice to the officer of the review panel's recommendation. The office shall provide written notice to the complainant of any allegation not sustained in the review panel's recommendation. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 5, 3-21-03; 2012-Or-061, § 5, 9-21-12)

172.50. - Request for reconsideration by complainant.

(a) Within fifteen (15) days of receipt of notification of either 1) a dismissal, or 2) the review a panel's decision recommending that a complaint not be sustained, a complainant may submit a written request for reconsideration to the office of police conduct review.

(b)   Reconsideration of a dismissal will be reviewed by the chair of the police conduct oversight commission (or delegate), who will have discretion whether to bring the matter to a vote of all members of the police conduct oversight commission.

(bc)  Any request for rReconsideration of a panel decision, shall be jointly and collaboratively reviewed by supervisory staff of the office of police conduct review and the chair of the police conduct oversight commission (or delegate). from both the civilian unit and the internal affairs unit. If the review determines that the request for reconsideration alleges newly discovered and relevant evidence or information not previously available to the complainant panel, the complaint may be remanded for additional investigation by office staff and reconsideration by the designated review panel. The review panel may sustain, reject or modify its prior recommendation regarding the complaint. Alternatively, the complaint and new evidence or information may be forwarded directly to the chief of police pursuant to section 172.70.

(cd)  The office of police conduct review shall provide written notification to the officer of the request for reconsideration and its outcome. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 6, 3-21-03; 2012-Or-061, § 6, 9-21-12)

172.60. - Review panel civilian appointments.

(a) Composition. The pool of civilian review panelists shall be comprised of a minimum of seven (7) members, four (4) of whom shall be appointed by the city council, and three (3) of whom shall be appointed by the mayor, subject to the approval of a majority of the city council. If more than seven (7) members are appointed to comprise the pool of civilian review panelists, the city council shall appoint the eighth member, the mayor the ninth member, subject to approval by a majority of the city council, and alternating thereafter. All civilian review panel members shall be appointed in conformance with the open appointments as outlined in Minneapolis Code of Ordinances Title 2, Chapter 14.180, except as provided in this section. In order to stagger the expiration of terms, the original appointments of civilian panelists shall be for terms of two (2), three (3) or four (4) years, as determined by the city clerk. Thereafter, appointments shall be for four (4) years. Minneapolis Police Department employees shall not participate in any manner in the selection of review panelists.

(b)  Qualifications. All members shall be residents of the city. Individuals currently or previously employed by the Minneapolis Police Department are ineligible to serve as members of the pool. The office of police conduct review may establish additional required qualifications.

(c)  Minimum training requirements.

(1)  All members must participate in an annual training session as arranged by the Minneapolis Department of Civil Rights.

(2)  All new members must complete training in the following subject areas as arranged by the Minneapolis Department of Civil Rights: police use of force, Minnesota Government Data Practices Act, Open Meeting law, the Minnesota Public Employee Labor Relations Act, ethics and conflict of interest.

(3)  Within two (2) years of appointment, all new members must complete the portions of the Citizen's Academy as determined by the Minneapolis Department of Civil Rights. Members will be compensated fifty dollars ($50.00) for each Citizen's Academy session attended.

(d)  Removal. Any member of the review panel pool may be removed, by vote of a majority of the city council and approval of the mayor, for incompetence, neglect of duty, misconduct or malfeasance, or failure to participate in and complete minimum training requirements. Any vacancy occasioned by resignation, death, or removal of a member shall be filled for the balance of the unexpired term by appointment by the mayor subject to approval of the city council.

(e)  Compensation—Limitation. Each civilian member shall be paid fifty dollars ($50.00) for each day when the member attends one (1) or more meetings or panel reviews, and shall be reimbursed for expenses incurred in the performance of duties in the same manner and amount as other city boards and commission members. The total amount of per diem, payment for file review, and reimbursable expenses payable under this section shall not exceed the total annual budget allocation for such costs. (90-Or-043, § 1, 1-26-90; 2003-Or-028, §§ 7, 8, 3-21-03; 2012-Or-061, § 7, 9-21-12)

172.70. - Disciplinary decision by the Mayor.

Upon conclusion of the panel review process, the office of police conduct review shall forward the investigatory file and panel recommendation to the Mayor chief of police for the Mayor’s determination of discipline, which shall be made within thirty (30) days of receipt, subject to the following exception: if the subject employee could be subject to discipline that requires a pre-discipline hearing, and that employee is on statutorily-protected leave for any period during the thirty (30) days following receipt of the panel recommendation, the deadline is tolled during the time that the employee is on statutorily-protected leave. Once the statutorily-protected leave ends, the chief must make a disciplinary decision within thirty (30) days of the end of statutorily-protected leave. The Mayor, upon making his or her determination of discipline, shall return the determination and file to the office of police conduct review. For any allegation which the review panel recommends to be supported by a majority vote, the chief shall notify the review panel and the office of the reasons for such determination through issuance of a written memorandum explaining the basis for the decision, including the relevant facts, policies and law supporting the decision. To the extent permitted by Minnesota Statutes, Section 13.43 and other applicable law, the police department shall make the decision and memorandum immediately available to the public via a departmental or city website and shall make copies available for physical inspection. If the disciplinary determination required pursuant to this section is not timely issued the complainant shall be entitled to a remedy from the police department consisting of a two hundred dollar ($200.00) penalty payment, with such penalty doubling in amount upon each subsequent thirty-day delinquency. (90-Or-043, § 1, 1-26-90; 2012-Or-061, § 8, 9-21-12; Ord. No. 2020-045 , § 1, 8-14-20)

172.85. - Confidentiality.

The members, staff, and contractors of the office of police conduct review and the police conduct oversight commission shall comply with all of the provisions of the Minnesota Government Data Practices Act, Chapter 13 of Minnesota Statutes. All members and contractors, paid and volunteer, shall sign a contract agreeing to comply with the provisions of the Minnesota Government Data Practices Act, currently Chapter 13 of Minnesota Statutes. In return, the city will afford to such member or contractor the same legal protection that any other agent or employee of the city receives who performs duties within the scope of employment. (2006-Or-114, § 2, 10-20-06; 2012-Or-061, § 10, 9-21-12)

172.90. - Requirement of cooperation by the Minneapolis Police Department and all other city employees and officials.

Office of police conduct review staff shall have full, free and unrestricted access, to the extent authorized by law, to the records of the Minneapolis Police Department in order to conduct investigations of police misconduct; facilitate research and study projects for the police conduct oversight commission; and conduct special reviews and programmatic reviews at the request of the mayor, city council, internal auditor, city departments, or boards and commissions. The failure by any official or employee of the Minneapolis Police Department or by any other City of Minneapolis employee or official to comply with lawful requests for information or access shall be deemed an act of misconduct. (90-Or-043, § 1, 1-26-90; 2003-Or-028, § 10, 3-21-03; 2012-Or-061, § 11, 9-21-12; Ord. No. 2017-076 , § 2, 12-8-17)

172.95—172.190. - Reserved.

Editor's note— Ord. No. 2012-Or-061, §§ 12—23, repealed §§ 172.95 through 172.190, which pertained to Civilian Police Review Authority. See also the Code Comparative Table.

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