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Councilmember Jack Evans
A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Citizen Complaint Review Act of 1997".
Sec. 2. Findings.
The Council of the District of Columbia finds that:
(a) The District of Columbia has delegated to its Metropolitan Police Department the vital task of protecting the safety of all persons and property in the District of Columbia. The task is difficult, dangerous, and sensitive.
(b) Most members of the Metropolitan Police department perform their duties with diligence,devotion, and sensitivity. From time to time, however, some members of the Metropolitan Police Department may not act in accordance with the high standards of conduct that the people of the District of Columbia have a right to expect of them. On other occasions, honest misunderstandings arise between police officers and members of the public with whom they interact.
(c) Because police officers have been given extraordinary powers, it is essential that there be an effective and efficient system for reviewing their exercise of those powers. It is also essential that both police officers and members of the public have confidence that this system of review is fair and unbiased. It is also essential that members of the public be aware of this system and have easy access to its processes.
(d) The need for independent review of police activities has been widely recognized across the nation. Effective independent review enhances communication and mutual understanding between the police and the community, reduces community tensions, deters police misconduct, and increases the public's confidence in their police force.
(e) Some complaints against police officers involve serious charges requiring formal proceedings, but many can best be resolved through conciliation, mediation, or other dispute resolution techniques. An effective and efficient review mechanism should encompass a variety of procedures for dealing with different complaints in an appropriate manner.
Sec. 3. Purpose.
It is the purpose of this act to establish an effective, efficient and fair system of independent review of complaints against police officers in the District of Columbia, which will:
(a) be visible to and easily accessible by all segments of the public;
(b) promptly and thoroughly investigate claims of police misconduct;
(c) encourage the mutually agreeable resolution of complaints through conciliation and mediation;
(d) provide adequate due process protection to officers accused of misconduct;
(e) provide fair and speedy determinations in cases that cannot be resolved through mediation;
(f) render just determinations;
(g) foster increased communication and understanding, and reduced tension, between the police and the public; and
(h) improve the public safety and welfare of all persons in the District of Columbia.
Sec. 4. Independent Office of Citizen Complaint Review established.
(a) There is hereby established an Office of Citizen Complaint Review, hereinafter referred to as the Office, under the administration of the Executive Officer of the District of Columbia Courts, subject to the supervision of the Chief Judge of the Superior Court.
(b) Initial funding for a period not to exceed eighteen months shall be provided from funds identified by the Metropolitan Police Department. Subsequent funding shall be obtained through the budgetary process.
(c) The Office shall be headed by an Executive Director who shall be under the supervision of the Executive Officer of the District of Columbia Courts.
(d) The Office shall be staffed with one or more individuals having judicial or administrative law qualifications who shall perform duties as complaint examiners for all matters coming before the Office. Complaint examiners shall be appointed on a contract or part-time basis as may be determined by the Executive Officer, subject to approval of the Chief Judge of the Superior Court.
(e) The Office shall be staffed with complaint investigators on a contract or part-time basis as may be determined by the Executive Officer, subject to the approval of the Chief Judge of the Superior Court.
(f) The Executive Officer shall engage such other personnel as may be needed by the Of lice.
Sec. 5. Authority of the Office.
(a) The Office is authorized to establish policies and procedures for receiving, investigating and resolving complaints filed against members of the Metropolitan Police Department, on or off duty, while exercising police authority; to review and determine the disposition of such complaints; to educate the public and the police about the importance of improving communication between them; to conduct studies regarding police-community relations and regarding the causes, nature, extent, and prevention of police misconduct; and to inform the Financial Responsibility and Management Assistance Authority, the Mayor, the Council, the Executive Officer of the D.C. Courts, the Metropolitan Police Department and the general public about its activities and its findings.
(b) The Office is authorized to obtain the investigation and findings of fact with respect to citizen complaints that allege one or more of the following:
(c) Except as otherwise provided in this Act, the Metropolitan Police Department and the Mayor are prohibited from maintaining any system other than that set forth in this Act for processing and taking action with respect to citizen complaints alleging the conduct specified in subsection (b) of this section against members of the Metropolitan Police Department, where the alleged misconduct is directed towards any person not an officer of the Metropolitan Police Department.
(d) The Office shall promulgate such rules and regulations as it deems necessary to carry out its functions. Such rulemaking shall be carried out in accordance with the Administrative Procedure Act (D.C. Code § 1-1501 et seq.).
(e) The Office is authorized to recruit, train, and certify qualified volunteers to assist in carrying out the mediation, investigation, and determination functions set out in this act.
(f) In January of each year, the Office shall prepare an annual report summarizing its activities during the prior calendar year.
(g) The Office is authorized to apply for and receive grants to fund its program activities in accordance with laws and regulations relating to grant management.
Sec. 6. Executive Director and staff.
(a) The Executive Director shall have full responsibility for the supervision and direction of employees and volunteers of the Office, and shall ensure that all rules, regulations and orders of the Office are properly carried out and that all records of the Office are properly maintained.
(b) The Executive Director may designate other employees or volunteers of the Office to assist him or her, or to act on his or her behalf, in carrying out any of the duties specified in this act.
Sec. 7. Outreach and intake.
(a) The Office shall prepare and distribute through governmental and non-governmental channels informational posters and pamphlets about the citizen complaint procedure established pursuant to this act. Such posters and pamphlets shall be printed in English, Spanish, and such other languages as the Office deems necessary to effectuate the purposes of this act. The Office shall regularly publicize the availability of its services through such other means as it deems useful.
(b) Any person having knowledge of alleged police misconduct may file a complaint with the Office on behalf of the victim.
(c) Complaints must be received by the Office within 30 days from the date of the incident or after a complainant became aware, or should with reasonable diligence have become aware, of the facts giving rise to the complaint, but in no case later than five years after the incident occurred.
(d) Complaints received by the Office shall be screened by the Executive Director, who may request additional information from the complainant. Within five days of receipt, the Executive Director shall take one of the following actions:
(e) The complainant and the subject police officer shall be notified in writing of the Executive Director's action. If the complaint is dismissed, the notice shall be accompanied by a brief statement of the reasons therefore, and the complainant shall also be notified that the complaint may be brought to the attention of the Chief of the Metropolitan Police Department, who may require that the complaint be investigated and that appropriate action be taken.
Sec. 8. Referral to the United States Attorney.
When, in the determination of the Executive Director there is reason to believe that the misconduct alleged in a complaint or disclosed by an investigation may be criminal in nature, the Executive Director shall refer the matter to the United States Attorney for the District of Columbia for possible criminal prosecution. The Metropolitan Police Department, the complainant, and the subject officer shall be notified in writing of the referral, and a record of such referral shall be maintained and the disposition of the matter shall be ascertained and recorded. If the United States Attorney declines in writing to prosecute, the Office may resume its processing of the complaint following resolution of the criminal case.
For the purpose of D.C. Code § 1-617.1, the receipt by the Independent Office of Citizen Complaint Review of an oral or written complaint shall not constitute knowledge or cause to know of acts, occurrences or allegations contained is such complaint. For the purpose of D.C. Code § l-617.1, the Metropolitan Police Department shall be deemed to know the acts, occurrence or allegations at the time the complaint file is received by the Metropolitan Police Department.
Sec. 9. Conciliation or Mediation.
(a) At any time in the course of a complaint proceeding, the Executive Director or one of the parties to the complaint, may suggest or propose terms for the conciliation or mediation of the matter.
(b) The conciliation process may consist of face-to-face meetings with the parties, verbal apologies or assurances, written undertakings, or any other terms satisfactory to the parties. Terms of conciliation shall remain confidential except as to summaries or selected terms which the parties may agree to make available to the public.
(c) At the discretion of the Executive Director or upon recommendation of a complaint examiner, a complaint, other than one charging excessive force, may be referred to mediation.
(d) If a complaint is referred to mediation, an initial mediation session shall be scheduled for the earliest convenient time, and the complainant and the subject officer shall be notified in writing of the date, time and location of the initial session.
(e) If a complaint is not disposed of by mediation, the Executive Director shall refer the complaint for investigation.
(f) Mediation may be conducted by trained volunteers certified by the Director of the Multi-Door Division of the Superior Court or contracted for by the Office subject to the approval of the Chief Judge of the Superior Court.
(g) The complainant, the subject officer, and the mediator shall be present at mediation sessions. No other persons may be present or participate except upon such terms as determined by the mediator. An interpreter may be present when needed and shall be provided by the Office when timely requested by a party. When the complainant is a minor or is an adult who, because of mental, physical or emotional condition cannot participate competently in mediation, a parent, guardian, conservator or other responsible adult must be present.
(h) The mediation process shall continue as long as the mediator and the parties believe it may result in a resolution of the complaint, except that it may not extend beyond thirty twenty days from the date of the initial mediation session without the approval of the Executive Director. The mediation process shall terminate when the parties sign an agreement resolving the complaint, or when either party announces its unwillingness to continue mediation, or when the mediator concludes that further mediation would not be useful.
(i) No oral or written statements made in mediation proceedings may be used in Office or disciplinary proceedings, or in civil or criminal litigation.
(j) If an agreement resolving the complaint is signed, a copy will be provided to the Office and placed in the complaint file. It shall not be a public document and shall not be available to the public under the D.C. Freedom of Information Act.
(k) If an agreement resolving the complaint is signed, the complaint file will be
(1) The Chief of Police will monitor the conduct of the police officer to determine that the police officer has complied with the terms of an agreement reached after mediation.
Sec. 10. Investigation, review by complaint examiner, findings and determination.
(a) If a complaint is referred for investigation, the Executive Director shall cause an investigator to be assigned to the matter. If the complainant refuses to cooperate in the investigation, the complaint may be dismissed.
(b) The Executive Director is authorized to cause the issuance of subpoenas compelling the complainant, the subject officer, and other witnesses to respond to written or oral questions and to produce relevant books, records, or other evidence as may be necessary for the proper investigation of the complaint. Such statements shall be given under oath or affirmation.
(c) When the investigation is completed, the results shall be summarized in an investigative report. The investigative file shall be evaluated as to adequacy by the Executive Director and assigned to a Complaint Review Judge or complaint examiner who shall review and determine the merits of the complaint based upon the investigative file. The Complaint Review Judge may, if deemed necessary or advisable, request additional investigation, convene a fact finding conference, or take such other action as will lead to a fair and expeditious resolution of the complaint or of any particular issue raised by the complaint.
(d) The Complaint Review Judge may use methods of conciliation or mediation as may be available and appropriate in any matter.
(e) Upon review of the investigative file and in the absence of a resolution of the complaint, the Complaint Review Judge shall make written findings of fact regarding all material facts relating to the incidents, acts or allegations of the complaint and shall determine, on the basis of a preponderance of the evidence, whether each allegation of the complaint should be sustained or dismissed, or and whether the record discloses other misconduct not directly related to the immediate allegations but within the general authority of the Office. The Complaint Review Judge shall make written findings and shall make recommendations as to determine the appropriate charge or charges growing out of such facts as related to the list of offenses published in Metropolitan Police Department General Order 1202.1 (Disciplinary Procedures and Processes). The Complaint Review Judge shall not determine whether disciplinary proceedings are or are not initiated. With respect to each charge, the Complaint Review Judge shall make one of the following determinations:
For the purpose of this Act, the Complaint Review Judge's determinations of fact are final and not subject to review or reversal by any Court, Department, Agency or person. A complaint review judge is a retired or senior judge of the Superior Court who is certified by the Chief Judge as being available to serve as a complaint review judge. Service as a complaint review judge shall not be considered as service to the Superior Court of the District of Columbia or as a Superior Court Judge. Service as a complaint review judge will be compensated by the Office and not by the Superior Court at the same per diem rate that senior judges are compensated when sitting as Superior Court judges. Compensation received as a complaint review judge shall not effect or diminish the right to receive pay or annuity from or pursuant to service or retirement as a Superior Court judge.
(f) If the complaint record discloses misconduct that is not within the authority of the Office, the a record shall be sent to the Chief of Police, who shall take appropriate action.
(g) A copy of the completed complaint file shall be forwarded to the Metropolitan Police Department for further processing.
Sec. 11. Responsibilities of the Metropolitan Police Department.
(a) Upon receipt of the complaint file in a matter which has been sustained, the Chief of Police shall cause the file to be reviewed by a tribunal of three police members designated for such purpose.
(b) The police tribunal assigned to review a citizen complaint file shall obtain the subject officer's personnel file and upon consideration of the prior record of the subject officer, the tribunal is authorized to take one of the following actions:
(c) When any action is taken by the Complaint Review Tribunal other than recommending acceptance of the Office's recommendations, the Metropolitan Police Department shall, after consultation with the Office, notify the complainant and the subject police officer of the action recommended and provide an opportunity for a written protest of the recommended action to be addressed to the Chief of Police. The Chief of Police shall give full consideration to such protest before taking final action with regard to the complaint.
(d) The decision of the Chief of Police as to the assessment of penalty shall be final with no further right of appeal available in the matter. The Chief of Police, however, may reopen any closed matter in the interest of fairness and justice.
(e) Notwithstanding any other provision of this Act, an officer shall not be terminated for misconduct except through the process of a regular trial board and a due process hearing in accordance with the provisions of D.C. Code Sec. 4-118.
Sec. 12. Community review and audit committee.
There is hereby authorized the establishment of a community review and audit committee which will conduct quarterly or other periodic audits of the Citizen Complaint Review process and will advise the Financial Responsibility and Management Assistance Authority, the Mayor, the Council, the Executive Officer of the D.C. Courts, the Metropolitan Police Department and the general public of its evaluations and recommendations.
Sec. 13. Effective date.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, override of the veto by the Council), approval by the Financial Responsibility and Management Assistance Authority as provided in section 203(a) of the District of Columbia Financial Responsibility and Management Assistance Authority Act of 1995, approved April 17, 1995 (109 Stat. 116; D.C. Code § 47-392.3(a)), and a 30-day period of Congressional review, as provided in section 602(c)(1) of the District of Columbia Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 813; D.C. Code § 1-233(c)(1)), and publication in the District of Columbia Register.
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