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Councilmember Sandra Allen
Councilmember Sandra Allen introduced the following bill, which was referred to the Committee on _____
To establish a Police Conduct Review Board for the District of Columbia.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Police Conduct Review Board 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. That task is difficult, dangerous, and sensitive.
(b) Most members of the Metropolitan Police Department perform their duties with diligence, devotion, and sensitivity. However, from time to time members of the Metropolitan Police Department do not act in accordance with the high standards of conduct that the people of the District of Columbia have a right to expect from 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 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 civilian review of police activities has been widely recognized across the nation. Effective civilian 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 require formal proceedings, but many can best be resolved through 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 civilian 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 mediation and conciliation;
(d) provide adequate due process protection to officers accused of misconduct;
(e) provide fair and speedy hearings in cases that cannot be resolved through mediation:
(f) foster increased communication and understanding: and reduced tension, between the police and the public; and
(g) improve the public safety and welfare of all persons in the District of Columbia.
Sec. 4. Police Conduct Review Board established.
(a) There is hereby established a District of Columbia Police Conduct Review Board, hereinafter referred to as the Board.
(b) The appropriation of such funds as may be necessary to carry out the provisions of this act is hereby authorized.
(c) The Board shall be composed of seven members, who shall be appointed by the Mayor with the advice and consent of the Council. All members shall be residents of the District of Columbia. No member shall be an active or retired member of the Metropolitan Police Department. The Mayor shall, from time to time, designate one member of the Board to be the Chairperson.
(d) Members of the Board shall be appointed for terms of three years, except that of the members first appointed, three shall be appointed for a term of three years, two shall be appointed for a term of two years and two shall be appointed for a term of one year. Any person appointed to fill an unexpired term shall be appointed only for the unexpired portion of that term.
(e) A member may be removed for good cause shown by the Mayor with the concurrence of a majority vote of the Board or by a Board shall be regulation establish procedures for good cause removal of a member.
(f) No member shall serve more than two consecutive terms; provided, however. that a member shall serve until his or her successor has been appointed.
(g) A majority of the Board shall constitute a quorum. Decisions shall be made by majority vote.
Sec. 5. Authority of the Board; compensation.
(a) The Board is authorized to establish policies and procedures for obtaining and resolving complaints filed against members of the Metropolitan Police Department or Special Police employed by the District of Columbia government: 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 research and studies regarding police-community relations and regarding the causes, nature, extent, and prevention of police misconduct; and to inform the Mayor, the Council, the Metropolitan Police Department and the public about its activities and its findings.
(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 complaints alleging the conduct specified in subsection (b) of this section against members of the Metropolitan Police Department or Special Police employed by the District of Columbia government. where the alleged misconduct is directed towards any person not an officer of the Metropolitan Police Department or Special Police employed by the District of Columbia government.
(d) The Board 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 Board is authorized to recruit, train, and certify qualified volunteers to assist it in carrying out the mediation.
(f) The Board may by regulation require the Metropolitan Police Department and other District agencies to post such notices, and maintain such forms, in public areas of their facilities as the Board deems necessary to effectuate the purpose of this act.
(g) In December of each year, the Board shall transmit to the Mayor and the Council an annual report summarizing its activities during the prior fiscal year, including its outreach activities, an analysis of the number and nature of, and trends in, complaints received and their disposition; a list of police officers against whom a determination of misconduct has been made and the discipline that has been imposed in each case; and such recommendations as the Board deems appropriate with respect to the improvement of police-community relations, the prevention of police misconduct, and the improvement of the Board operations. Each member of the Board shall have the right to include a separate statement of his or her views in such report. Copies of the annual report shall be made available to the public at reasonable cost. A notice of the publication and availability of the annual report shall be published in the District of Columbia Register.
(h) The Board is authorized to apply for and receive grants to fund its program activities in accordance with laws and regulations relating to grant management.
(i) Board members who are not otherwise employed by the District of Columbia government shall be compensated for their reasonable expenses incurred in carrying out their duties as Board members.
Sec. 6. Executive Director; staff and volunteers.
(a) The Board shall employ an Executive Director, who shall serve at the pleasure of the Board, and such professional, investigative and support staff as may be authorized through appropriations. The staff shall be employees of the District of Columbia government and shall be subject to the provisions of the Merit Personnel Act (D.C. Code § 1-601.1 et seq.).
(b) The Board may recruit, train and utilize volunteers for any staff position except the position of Executive Director.
(c) The Executive Director shall have full responsibility for the supervision and direction of employees and volunteers of the Board, and shall ensure that all rules, regulations and orders of the Board are properly carried out and that all records of the Board are properly maintained.
(d) The Executive Director may designate other employees or volunteers of the Board 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 Board shall prepare and distribute through governmental and non-governmental channels informational posters and pamphlets about the police complaint procedure established pursuant to this act. Such posters and pamphlets shall be printed in English, Spanish, and such other languages as the Board deems necessary to effectuate the purpose of this act. The Board 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 Board on behalf of the victim.
(c) Complaints must be received by the Board within 180 days after a complainant became aware, or should with reasonable diligence have become aware, of the facts giving rise to the complaint.
(d) Complaints, received by the Board shall be screened by the Executive Director, who may request additional information from the complainant. Within thirty 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 reason therefor, and the complainant shall also be notified that he or she may bring the complaint to the attention of the Metropolitan Police Department, which may investigate the complaint and take appropriate action.
Sec. 8. Referral to the United States Attorney.
When, in the determination of the Board, there is reason to believe that the misconduct alleged in a complaint or disclosed by an investigation was criminal. the complaint shall be referred to the United States Attorney for the District of Columbia. The complainant and the subject officer shall be notified in writing of the referral. and a record of such referral shall bemaintained and the disposition recorded. If the United States Attorney declines to prosecute, the Board may resume its processing of the complaint. If United States Attorney elects to prosecute, the Board may resume its processing of the complaint following resolution of the criminal case.
Sec. 9. Mediation.
(a) 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.
(b) If a complainant refuses to participate in mediation, the complaint shall be dismissed.
(c) If a police officer refuse to participate in mediation, the Executive Director may take one or more of the following actions
(d) Mediation may be conducted by employees of the Board or by volunteers who have been appointed by the Board.
(e) The complainant, the subject officer. and the mediator shall be present at mediation sessions. No other persons may be present. except that: (i) an interpreter may be present when needed, and shall be provided by the Board when timely requested by any party; and (ii) 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.
(f) The mediation process shall continue as long as the mediator and the parties believe that it may result in a resolution of the complaint, except that it may not extend beyond forty-five 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.
(g) No record will be made of mediation proceedings, and no oral or written statements made in mediation proceedings may be used in subsequent Board proceedings or in civil litigations arising out of the same incident that is the subject of the compliant.
(h) If an agreement resolving the complaint is signed, a copy will be provided to the Board. It shall not be a public document and shall not be available to the public under the Freedom of Information Act (D.C. Code § 1-15211 et seq.).
(i) If an agreement resolving the complaint is signed. the Chief of Police shall be notified of the complaint and its successful resolution. but will receive a copy of the mediation agreement only with the consent of both the complainant and the subject officer.
(j) The Executive Director will monitor the parties' compliance with the terms of any agreement. If any party fails to comply, the Executive Director shall report the matter to the Board, and may refer the complaint for investigation pursuant to Board, and may refer the complaint for investigation pursuant to section 10. If the Board determines that a police officer has failed to comply with the terms of an agreement reached after mediation, the Board may recommend to the Chief of Police that appropriate discipline be imposed, and the procedures set out in section 12 shall apply.
Sec. 10. Investigation and hearing.
(a) If a complaint is referred for investigation, the Executive Director shall assign one or more investigators to the matter. If the complainant refuses to cooperate in the investigation, the complaint may be dismissed.
(b) The Board is authorized to issue subpoenas compelling the complainant, the subject officer, and other witnesses to respond to written or oral questions in advance of a hearing, 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 complete, the results shall be summarized in an investigative report, which shall be filled with the Board and served on the complainant and the subject officer. Within thirty days after the investigative report is filed, the Executive Director shall take one of the following actions:
(d) 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 reason therefor, and the complainant shall also be notified that he or she may bring the complaint to the attention of the Metropolitan Police Department, which may investigate the complaint and take appropriate action.
(e) If two or more pending complaints arise from the same incident, or involve the same complainant or police officer, the Executive Director may consolidate the complaints for a single hearing, unless consolidation would prejudice any party.
(f) The Board shall assure that Hearing Officers and Hearing Panels are assigned to cases in a manner that does not allow board members, the Executive Director, or any party to obtain a particular Hearing Officer or Hearing Panel for a particular case.
(g) A Hearing Officer may be a Board employee or a volunteer. A Hearing Officer must be an active or inactive member in good standing of the District of Columbia Bar.
(h) A Hearing Panel shall be comprised of two Hearing Officers and one Board member sitting as Chair of the panel.
(i) The Hearing Officer or the Chair of the Hearing Panel shall be responsible for scheduling the hearing, which should be scheduled for the earliest convenient time consistent with giving the subject officer sufficient time to prepare for the hearing. A Hearing Officer shall make every effort to commence and complete a hearing within thirty days of being assigned to a case. and the Chair of a Hearing Panel shall make every effort to commence and complete a hearing within forty-five days of being assigned to a case. The complaint, the Executive Director, the subject officer, and their counsel (if any) shall be notified in writing of the date, time and location of the hearing.
(j) The Executive Director shall represent the complainant at the hearing. The complainant may also be represented by private counsel of his or her choice, it he or she so desires. The subject officer has the right to be represented by counsel of his or her choice.
(k) At the hearing, every party shall have the right to present, in person or by counsel, its case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross- examination as may be required for a full and true disclosure of the facts. Where official notice is to be taken of a material fact not appearing in evidence, any party shall on timely request be afford an opportunity to show the contrary. All testimony shall be given under oath or affirmation.. Any oral and documentary evidence may be received, but the Hearing Officer or the Chair of the Hearing Panel shall exclude privileged, irrelevant, immaterial, or unduly repetitious evidence. Rulings of the Hearing Officer or the Chair of the Hearing Panel on all questions at issue in the taking of testimony or submitting of evidence shall be binding, but exceptions to such ruling shall be placed in the record.
(1) Upon the reasonable request of any party or on its own motion a Hearing Officer or Hearing Panel may direct by subpoena, issued in the name of the Board, the attendance of any person to give testimony and to produce all relevant books, records, or other evidence at the hearing.
(m) In case of contumacy by, or refusal to obey a subpoena issued to, any person, the Hearing Officer or Hearing Panel shall refer the matter to the Board, which may by resolution refer the matter to the Superior Court of the District of Columbia, which may by order require such person to appear and give testimony or produce books, papers, or other evidence bearing upon the matter under investigation. Any failure to obey such order may be punished by the Superior Court as a contempt thereof.
(n) Any testimony and other evidence, together with all papers and requests filed in the proceedings, and all material facts not appearing in the evidence but with respect to which official notice is taken, shall constitute the exclusive record for decision. A tape recording of all testimony, and copies of all documentary exhibits, shall be made available to any party to the proceedings upon request.
(o) Within thirty days after the conclusion of a hearing. the Hearing officer or Hearing Panel shall make findings regarding all material contested facts and shall determine, by a preponderance of the evidence, whether each allegation of the complaint should be sustained or dismissed, or whether the record discloses misconduct not directly related to the immediate complaint but within the authority of the Board. The findings and determination may be rendered in writing or orally, but if rendered orally they shall be recorded and transcribed. The findings and determination of the Hearing Officer or Hearing Panel shall be reported in writing to the Board and to the complainant and the subject police officer. If the record discloses misconduct that is not within the authority of the Board, the record shall be sent to the Chief of Police, who may take appropriate action.
Sec. 11. Appeals to the Board.
(a) A decision by the Executive Director to dismiss a case may be appealed to the Board, which may affirm the dismissal or refer the case to mediation or for investigation.
(b) Decisions of Hearing Officers or Hearing Panels may be appealed to the Board, which may affirm or reverse the decision. The Board may review the case on the record or it may, in its discretion, hold a hearing to gather additional evidence. If the Board reviews the case on the record, the findings of fact made by the Hearing Officer or Hearing Panel shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the Hearing Officer or Hearing Panel to judge the credibility of the witnesses. If an evidentiary hearing is held, the rules applicable to hearings before Hearing Panels shall apply.
(c) When acting in its appellate capacity, the Board may sit en bane or in panels of five members.
(d) The complainant and the subject police officer shall be informed in writing of the action taken by the Board.
Sec. 12. Recommendations for disciplinary action.
(a) When the Board determines that police misconduct has occurred, or when a Hearing Officer or Hearing Panel so determines and the decision is not appealed to the Board, the Chief of Police shall be notified that determination. Within ten days of receiving such notification, the Chief of Police shall deliver to the Board a copy of the subject officer's personnel file.
(b) After considering the prior record of the subject officer and after providing the complainant and the subject officer an opportunity to make a written or oral submission regarding appropriate disciplinary action, the Board shall recommend to the Chief of Police what personnel action should be taken against the subject police officer. A copy of the recommendation shall be sent to the complainant and the subject police officer.
(c) Within thirty calendar days of the receipt of a recommendation for personnel action, the Chief of Police shall either accept the recommendation of the Board and impose the recommended personnel action. or shall state in writing his or her reasons for disagreeing with the recommendation of the Board and shall specify the personnel action he or she believes to be appropriate, in which case the Chief's statement and the findings and recommendation of the Board shall be transmitted to the Mayor, v. ho shall within thirty calendar days either impose the personnel action recommended by the Board, impose the personnel action recommended by the Chief of Police, or impose a personnel action that is a compromise between the two.
(d) If either the Chief of Police or the Mayor fails to act within the specified thirty day periods, the personnel action recommended by the Board shall be deemed final and shall be implemented. Within ninety days after receiving the Board's recommendation, the Chief of Police shall report to the Board what discipline has been imposed.
(e) Notwithstanding any other law or regulation. the procedures specified by this act shall be the exclusive administrative procedures for the imposition of personnel action upon police officers for misconduct within the authority of the Board.
(f) A police officer upon whom personnel action has been imposed in accordance with this act may obtain judicial review as provided by law.
Sec. 13. Open meetings and records.
(a) All meetings of the Board at which official action of any kind is taken shall be open to the public, except that an portion of a meeting which exclusively concerns internal personnel mattes, deliberations on individual cases, or pending or contemplated litigation between the Board and a private person may be held in executive session.
(b) A list of scheduled hearings shall be posted at the Board's office, and all hearings before Hearing Officers, Hearing Panels, or the Board shall be open to the public. A written transcript or a tape recording shall be kept of all hearings and shall be made available to the public during normal business hours. Copies of such transcripts or tape recordings shall be available, upon request, to the public at reasonable cost.
(c) The Board shall maintain an official record of all complaint proceedings which shall be available to the public. All or any part of a record may be sealed to prevent public disclosure only by order of the Mayor or a court of competent jurisdiction. upon good cause shown. Such order shall be a public record and shall state the good cause which justified the sealing.
Sec. 14. Responsibilities of Metropolitan Police Department and other District agencies and employees.
(a) When any member of the Metropolitan Police Department receives an oral or written civilian complaint regarding a matter within the jurisdiction of the Board, he or she shall promptly inform the complainant that such complaints must be directed to the Board. If such complaint is received at a police facility, the complainant shall promptly be given a copy of any form or brochure that is required to be maintained at police facilities under regulations adopted by the Board.
(b) If required by regulation adopted by the Board, each police facility shall post, in a prominent place in its public area, a notice furnished by the Board informing the public of the remedies available under this act. If required by regulation adopted by the Board, other District agencies shall make available, in their public areas, brochures or complaint forms provided by the Board.
(c) The Metropolitan Police Department and all District of Columbia agencies shall grant to any officer or employee such administrative leave as is reasonably required to attend mediation sessions or hearings under this act, either as the subject of a complaint or as a witness.
Sec. 15. Miscellaneous provisions.
(a) Members of the Board and persons authorized by the Board may administer oaths in connection with their official duties under this act.
(b) Any willful false swearing as to a material fact, on the part of any party or witness in a matter under this act, either by a signed statement under oath or in oral testimony, shall be deemed to be perjury and shall be punished in the manner prescribed by law for such offense. The Board may refer any case of suspected perjury to the United States Attorney for possible criminal prosecution.
(c) The Mayor is authorized to provide compensation for witnesses who are subpoenaed to testify before a Hearing Officer, a Hearing Panel, or the Board, except witnesses who are in the employ of the government the District of Columbia or the United States.
(d) The Chief of Police shall from time to time designate one or more officers of the Metropolitan Police Department, of the rank of captain or above, as liaison to the Board. A designated officer shall be available to testify at hearings regarding police regulations, procedures and practices, and to consult with the board regarding such matters. However, the designated officer shall not confer ex parse with Hearing Officers, Hearing Panels or the Board regarding individual pending cases.
(e) Within thirty days after the effective date of this act, the Metropolitan Police Department shall notify by mail all persons whose complaints were pending before the Civilian Complaint Review Board on the date when it ceased to do business pursuant to section 503 of D.C. Act 11-44, that they may reactivate their complaints before the Board by filing an appropriate request within thirty days after receiving such notice. A form for making such a request, provided by the Board, shall be mailed with the notice. With respect to any such complaint, the 45-day period specified in D.C. Code §1-617.1(b-1)(1) shall be deemed to have commenced on the date that any recommendation for adverse action or corrective action is received by the Chief of Police from the Board. The provisions of this subsection shall not apply to any complaint concerning conduct that has been the subject of a written recommendation to the Chief of Police concerning appropriate disciplinary action.
(f) In any civil action in which process is to be served upon an active or retired member of the Metropolitan Police Department based upon a claim arising out of such member's performance of this or her official duties, such process may be delivered to the Chief of Police or his designate, who shall promptly cause such process to be hand-delivered to an active member at his or her place of employment, or if the member is retired or on extended leave to be mailed to the member's home address by registered or certified mail. return receipt requested. Within ten days of receiving such process, the Chief of Police shall report to the person who provided the process whether such process was hand-delivered or mailed, and shall forward to that person any return receipt that has been or is thereafter received.
Sec. 16. Construction.
(a) This act shall be construed to secure the just, speedy and inexpensive resolution of citizen complaints of misconduct by police officers.
(b) This act shall be deemed to supersede and repeal any and all provisions of law or administrative orders enacted or promulgated prior to the date of its enactment that are inconsistent or conflict with any provision of this act.
(c) The remedies provided by this act are cumulative of any others provided by statute or at common law.
Sec. 17. Effective date.
Sec. 3. This act shall take effect after a 30-day period of Congressional review following approval by the Mayor (or in the event of veto by the Mayor, action by the Council of the District of Columbia to override the veto) 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 either the District of Columbia Register, the District of Columbia Statutes-at-Large, or the District of Columbia Municipal Regulations.
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