Document of Interest Provided By Councilmember Hamann on Civilian Review Boards

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C HAPTER 5: ADDRESSING I MPORTANT I SSUES IN C ITIZEN O VERSIGHT 100 Many oversight advocates and directors believe that hav- ing subpoena power serves no useful purpose. If the oversight body already has authority under Garrity v. New Jersey (see “The Legality of Forcing Officers to Testify”), subpoena power adds nothing. If the oversight body lacks authority under Garrity to compel testimony, there is still little reason to seek subpoena power. Patricia Hughes, executive director of Minneapolis’ Civilian Police Review Authority, and Daryl Lynn, CRA’s chair- person, can remember only one case in which they could have benefited from having subpoena power. Indeed, the Orange County review board, Portland’s city council acting as the Police Internal Investigations Auditing Committee, and the Flint ombudsman’s office have never used their subpoena power. Furthermore, a 1992 city council report in Rochester suggested: The advantage of using the investigative authority of the IA lies in the fact that police officers are required to cooperate fully with the investigation since it falls within the employer-employee relationships. If the investigative authority were transferred to an outside agency, accused officers would be able to have recourse to their constitu- tional rights as citizens to avoid making any state- ment which might tend to incriminate them. THE LEGALITY OF FORCING OFFICERS TO TESTIFY Under Garrity v.New Jersey, 385 U.S. 493 (1967), whoever is the employer of a police officer, including not only the chief but, by extension, the city manager or mayor, can order the officer to answer questions “specifically, directly, and narrowly relating to performance of his [or her] official duties” as part of an internal, noncriminal investiga- tion. Failure to answer questions related to the scope of their employment may form the basis for disciplining and dismissing officers. However, statements officers make under this requirement cannot be used against them in any subsequent criminal proceeding unless the officers are alleged to have committed perjury. Because officers can be terminated if they do not answer administrative questions, internal affairs and citizen oversight investigators typi- cally read them their “Garrity rights”—a guarantee that the information sought will not be used against them in a criminal proceeding but that failure to respond to questioning could lead to disciplinary action. In 1998 the Colorado Court of Appeals in City and County of Denver and the Public Safety Review Commission v.Scott Blatnik and Jerome Powell (97 CA 1662) held that law enforcement officers are entitled to assert their fifth amend- ment privilege before a citizen review board.The court ruled that the Denver Public Safety Review Commission could not compel subject officers to testify during an inquiry into allegations of improper use of force once the officers had invoked their privilege against self-incrimination.The city and commission had sued to compel them to testify after the officers had invoked the amendment.The court ruled that, because the commission was not the officers’ employer, it could not compel them to testify. The court of appeals distinguished this case from a 1997 Federal court case,Pirrozzi v.New York (950 F. Supp. 90 [S.D.N.Y. 1996], aff’d 117 F. 3d 7223 [2d Cir. 1997]), which compelled an officer to testify under threat of discharge. In Pirrozzi, the court found that officers can be compelled to testify as a condition of employment by employers or those representing their employers. Because New York City’s review board is an integral part of the disciplinary process, and because departmental regulations require officers to give statements to the board under threat of termination, subject officers cannot invoke the protection of the fifth amendment. The Berkeley city attorney issued a similar ruling in 1998. Because of the Colorado case, a police officer took the fifth amendment during an interview with the Police Review Commission investigator. As a result, Barbara Attard, the PRC officer, asked the city attorney for a legal opinion.The attorney ruled that, under a California statute similar to the Federal Garrity ruling, officers must testify because PRC acts pursuant to the authority of the city manager, who is the police department officers’ employer.