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HomeMy WebLinkAbout12-20 Amending Chapter 2 of the South Bend Municipal CodeKaren L. White President Sharon L. McBride Vice -President Sheila Niezgodski Chairperson, Committee of the Whole Canneth Lee First District Henry Davis, Jr. Second District Sharon L. McBride Third District Troy Warner Fourth District Jake Teshka Fifth District Sheila Niezgodski Sixth District Karen L. White At Large Rachel Tomas Morgan At Large Lori K. Hamann At Large City of South Bend Common Council 441 County -City Building • 227 W. Jefferson Blvd South Bend, Indiana 46601 South Bend Common Council 4th Floor, County -City Building South Bend, IN 46601 Re: Substitute Bill 12-20 (574) 235-9321 Fax (574) 235-9173 TDD (574) 235-5567 http://www.southbendin.gov Filed in Clerk's Office qtr 0 9 2020 AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ADDING ARTICLE 1, DIVISION 2, SECTIONS 2-12.2.1 TO AND INCLUDING 2-12.2.11 OF CHAPTER 2 OF THE SOUTH BEND MUNICIPAL CODE TO CREATE A COMMUNITY POLICE REVIEW BOARD AND PROCEDURES GOVERNING THE BOARD. Dear Council Members: After many meetings with numerous organizations and community stakeholders and many redrafts, we are submitting Substitute Bill 12-20 creating a Community Police Review Board. The purposes of the Community Police Review Board are to encourage aggrieved persons to participate in the process, to provide an additional just and efficient means to safely, fairly, impartially, and timely conduct investigations of alleged police misconduct and to reach an independent determination of whether those allegations are well founded applying a preponderance of the evidence standard; to identify and address patterns of alleged police misconduct; and, based on information obtained through such investigations, to make policy recommendations to improve the South Bend Police Department and reduce incidents of alleged police misconduct. As you know, the original Bill had first reading in March. Since that time, our country has been through a lot of pain. We have continued, however, to work to submit an ordinance that meets the purposes of our community within the constraints of Indiana state law. It has been a challenge, but well worth the effort. The name of the ordinance has changed, requiring a new first reading. We ask that this proposed substitute ordinance be scheduled for first reading at IN City of South Bend C�.z4) 235-51321 Fax (574) 235-9173 Common Council TDD(574)235-5567 http://wz .Southbendin.gov 441 County -City Building • 227 W Jefferson Blvd South Bend, Indiana 46601 the Council's meeting on September 14, 2020 and the assigned to the Council's Community Relations Committee. Thank you for your attention to this very important matter. We look forward to your support. Sincerely yours, Henry Davis, Jr. South Bend Common Council, Second District Sponsor .Cc.rwit � L�� I✓ Karen L. White, South Bend Common Council, Member at Large Co -Sponsor 100- KAP Lori Hamann, South Bend Common Council, Member at Large Co -Sponsor SUBSTITUTE BILL NO. 1212=20 ' SEP U 8 2020 ORDINANCE NO. IN AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, ADDING ARTICLE 1, DIVISION 2, SECTIONS 2-12.2.1 TO AND INCLUDING 2-12.2.11 OF CHAPTER 2 OF THE SOUTH BEND MUNICIPAL CODE TO CREATE A COMMUNITY POLICE REVIEW BOARD AND PROCEDURES GOVERNING THE BOARD. STATEMENT OF PURPOSE AND INTENT The need to create a Community Police Review Board to provide additional perspectives to alleged police misconduct has been discussed in South Bend for years. The need is more apparent now than ever before. This ordinance creates a Community Police Review Board composed of members appointed by the South Bend Common Council. The purposes of the Review Board are to encourage aggrieved persons to take part in the process, to provide an additional just and efficient means to safely, fairly, impartially and timely conduct investigations of alleged police misconduct, to reach an independent determination of whether the allegations are supported, and to make recommendations based on the evidence gained through those investigations. NOW, THEREFORE, BE IT ORDAINED BY THE COMMON COUNCIL OF THE CITY OF SOUTH BEND, INDIANA, as follows: SECTION I. ARTICLE 1, Division 2 entitled COMMUNITY POLICE REVIEW BOARD" is added to Chapter 2, together with the following sections to read as follows: Chapter 2, Article 1, Division 2- COMMUNITY POLICE REVIEW BOARD Sec. 2-12.2.1 - Purposes. The purposes of the Community Police Review Board are to encourage aggrieved persons to participate in the process, to provide an additional just and efficient means to safely, fairly, impartially, and timely conduct investigations of alleged police misconduct and to reach an independent determination of whether those allegations are well founded applying a preponderance of the evidence standard; to identify and address patterns of alleged police misconduct; and, based on information obtained through such investigations, to make policy recommendations to improve the South Bend Police Department and reduce incidents of alleged police misconduct. Sec. 2-12.2.2 — Definitions (a) "Chief' means the Chief of the South Bend Police Department. (b) "City" means the City of South Bend, Indiana. (c) "Clerk" means the Office of the City Clerk of South Bend, Indiana. (d) "Common Council" means the South Bend Common Council. (e) "Complainant" means a person who files a complaint with the Review Office. (f) "Complaint" means a written complaint properly filed with the Review Office. (g) "Department" means the South Bend Police Department. (h) "Director" means the Director of the Review Office. (i) "Immediate Family" means father, mother, son, daughter, sister, or brother. 0) "Incapacitated person" has the meaning set forth in Ind.Code 29-3-1-7.5. (k) "Mayor" means the Mayor of South Bend, Indiana. (1) "Member" means a member of the Review Board. (m)"Officer" means a sworn member of the South Bend Police Department. (n) "Ordinance" means the Community Police Review Board ordinance. (o) "Person" means a member of the public, regardless of age, citizenship, residency, or any other characteristic of the complainant. (p) Public Safety President" means the President of the South Bend Board of Public Safety. (q) "Review Board" means the Community Police Review Board. (r) "Review Office" means the Community Police Review Office. Sec. 2-12.2.3 Community Police Review Board established; selection process; terms. (a) The Review Board is established and shall be composed of nine (9) Members appointed by the Common Council. (1) All Members shall be current residents of the City of South Bend. No sworn law enforcement officer is eligible to serve as a member of the Review Board. Members shall be selected from nominees submitted by each member of the Common Council, including at large Council members. Nominees may include individuals and representative members of community organizations. No Council Member may nominate more than three (3) candidates for appointment to the Review Board. There shall be at least one (1) Member appointed from each City Councilmanic district. (2) The initial Review Board shall be composed of three (3) Members appointed to a one (1) year term; three (3) Members appointed to a two (2) year term; and three (3) Members appointed to a three (3) year term. (3) After the term of each initial Member is completed, the Common Council shall appoint Members with each Member serving a three (3) year term or until their successors are appointed, but for no longer than sixty (60) days beyond the expiration of their term. Each Member may be reappointed but may not be appointed to more than two (2) consecutive terms on the Review Board. (4) If a Member is unable to complete a term for any reason, a new Member shall be appointed by the Common Council. A new Member shall reside in the same Councilmanic district as the departing Member. Such new Member shall then be eligible to be reappointed for no more than one (1) additional full consecutive tern, if the Member has served eighteen (18) months or more of the original term (b) All Members shall serve at the pleasure of the Common Council. Sec. 2-12.2.4 — Review Board officers, quorum, attendance, and training. (a) The Members shall select one (1) Member to serve as president of the Review Board. (b) Five (5) Members of the Review Board shall constitute a quorum for the purpose of conducting business, and five (5) Members must vote in favor of any item before any action or disposition can be taken. (c) All Review Board Members must attend a minimum of seventy-five (75) percent of the Review Board meetings. The Common Council may replace any Member who fails to meet this attendance requirement within sixty (60) days of written notice to the Member of failure to meet this attendance standard. (d) All Review Board Members must accompany an on -duty Officer of the Department for a minimum of twelve (12) hours per year, and for a minimum of four (4) hours per occasion, in order to observe police procedures first hand. Additionally, all Members must: 1) participate in training and assessment pursuant to the Intercultural Development Inventory (IDI) or similar program approved by the Common Council; 2) have strong community relations experience; 3) participate in the South Bend Police Department Citizens' Police Academy; 4) participate in mediation training; 5) participate in training in best practices in investigations, including a review of video footage of incidents of police misconduct; 6) participate in conflict resolution training; and 7) participate in restorative justice training. The Common Council may replace any Member who fails to meet this requirement after written notice to the Member of such failure. Sec. 2-12.2.5 — Review Board duties. (a) The Review Board shall meet as often as necessary to consider all complaints which it deems appropriate to process and review, but no less than bi-monthly. The Review Board shall set rules for its governance and shall establish its procedures for processing complaints and for ensuring notification to Complainants of the status and disposition of their complaints. (b) If a majority of the Review Board determines that additional information of a specialized police nature is necessary to process a complaint, the Review Board shall consult with one or more consultants of its choice. Sec. 2-12.2.6 — Establishment of Community Police Review Office. (a) The Community Police Review Office is hereby established. Any Complaint against an Officer of the Department alleging that the Officer used profane or abusive language, intentionally destroyed or damaged real or personal property, exceeded his/her authority as a police officer, used unauthorized force, acted in violation of the Department's rules and regulations or orders, or any other perceived misconduct may be filed with the Review Office. In addition, if a Complainant alleges that intimidation tactics are being used to impede the filing of a Complaint, the Complainant shall report this to the Review Office and a separate Complaint will be filed regarding the new information. Each Complaint shall be filed within sixty (60) days of the alleged misconduct giving rise to the Complaint and shall be in writing. Unless the Complainant specifically requests that the Complaint remain anonymous in accordance with subsection (b) of this section, the Complaint, shall be signed by the Person making the Complaint, who shall verify or affirm under the penalties of perjury that the representations contained therein are true. The Complaint may be filed in person, by e-mail, by facsimile or through the mail. Additionally, Complaints may be filed after the expiration of the sixty (60) day time period where the Person making the Complaint was an Incapacitated Person during the sixty (60) day time period or where, upon a showing of good and sufficient cause and upon majority vote of the Review Board, a Person is permitted to belatedly file a Complaint. (b) Anonymous Complaints will be accepted when specifically requested by the Complainant. Anonymous Complaints will be investigated to the extent that sufficient information is provided. However, if the Complainant does not provide contact information, the investigators will be unable to ask follow-up questions that might be needed for a thorough, complete investigation. (c) Any individual personally aggrieved by the act or acts complained of may file a Complaint. A parent or guardian may file a Complaint on behalf of a minor or an incapacitated person. A member of the Immediate Family of a decedent may file a Complaint on behalf of the decedent. The Review Board may, upon a majority vote of its members, initiate an action. (d) The complaint process shall be accessible to all persons regardless of race, national origin, ancestry, religion, color, sex, sexual orientation, gender identity, age, language, disability, immigration status or United States military service veteran status. No Member of the Review Board or the Review Office will ever request information about a Complainant's or a witness's immigration status. Sec. 2-12.2.7 — Review Office Director; staff. (a) The Mayor, pursuant to Ind.Code 36-4-4-3 and Ind.Code 36-4-4-4, with the consultation of the Common Council, shall appoint a full-time Director of the Review Office. The Director shall be supervised and be subject to review and evaluation by the Mayor and the Common Council. The duties of the Director shall include: (1) Managing the Review Office, including its staff; (2) Enhancing communications and good will between the police and residents; (3) Maintaining records, confidential or otherwise, of all Complaints, proceedings thereon, and dispositions thereof, in the Office of the City Clerk with the Clerk providing necessary administrative support. (b) The Director is authorized to adopt such rules and procedures as the Director may deem appropriate for the proper administration and enforcement of this Review Office. All such rules and procedures shall be adopted only after posting of the rules and procedures proposed to be adopted on the City's website at least thirty (30) days prior to the effective date of such rules and procedures. Upon adoption, the Director shall maintain a copy of the rules and procedures on file in the Director's office. (c) The Director shall have the authority to contract with investigators, consultants, and legal counsel, if the City Corporation Legal Counsel is not available, to aid in the investigation of Complaints filed with or processed by the Review Office. (d) The Director shall be in regular communication with the Chief and shall make quarterly reports to the Common Council and the Mayor concerning matters of conduct and recurring issues that are processed by the Review Office. The Director shall also provide periodic reports for publication in the Department's annual report. (e) The Director shall conduct a yearly audit of the number of Complaints filed and resolution thereof and forward that audit to the Chairperson of the Common Council's Community Relations Standing Committee. (f) Staffing and budget recommendations for the Review Office shall be made by the Director in consultation with the Common Council and the Review Board. (g) On a quarterly basis, the Director shall forward a report of each Review Board Member's attendance and each Member's training, as required by Sec. 2-12.2.2(d) of the South Bend Municipal Code, to the Common Council and the Mayor. Sec. 2-12.2.8. - Complaint investigation and hearing procedures. (a) Upon the filing of a Complaint, the Director shall immediately send a copy of the Complaint to the Chief or the Chiefs designee. The Review Board shall table its own investigation for a period of thirty (30) working days to allow the Department to conduct its own investigation and to allow the Chief to take appropriate action. The Chief may request an extension of time to complete the investigation from the Director, stating the specific reasons therefore; however, if deemed appropriate or necessary, the Review Board may order the Director to conduct an independent simultaneous investigation before the end of the investigation conducted by the Department when such an extension is granted. Such action must be authorized by a majority vote of the entire Review Board. (b) After any investigation is returned to the Review Office, the Review Board shall review the investigation conducted by the Department and the action taken or recommended by the Chief, if any. If no investigation is conducted, or if the Review Board does not agree with the action taken or recommended by the Chief, or if the Review Board disagrees with the investigation conducted by the Department, the Review Board will notify the Officer or Officers alleged to have been involved in the complained of incident of the date of the incident. The Review Board may then, by majority vote: (1) Order the Director to investigate the allegations of the Complaint; (2) Conduct an informal administrative hearing on the Complaint; or (3) Order the Director to engage in a process of informal mediation to attempt to resolve the Complaint. (c) If the Review Board determines to hold a hearing, the Review Office shall give written notice to all parties and witnesses at least fifteen (15) days in advance of the scheduled hearing. All parties shall be informed of the right to have legal counsel, or other representative or advocate, to represent the party at the hearing. All testimony at such hearing shall be recorded and given under oath or under penalty of perjury. (d) Upon the completion of the investigation by the Review Office or after a hearing, the Review Board shall make a disposition regarding the Complaint. The disposition shall be one (1) or more of the following: (1) Not sustained (when there is insufficient evidence to prove the allegation(s) made in the Complaint by a preponderance of the evidence); (2) Sustained (when there is sufficient evidence to prove the allegation(s) made in the Complaint by the preponderance of the evidence); (3) Exonerated (when the allegation(s) made in the Complaint are false or not factual, or the conduct complained of was lawful and proper); and/or (4) Withdrawn (when the Complainant requests that no further action be taken on the case). If the Review Board determines that an Officer is exonerated because the Complaint is knowingly and intentionally false, the Review Board shall refer the matter to the St. Joseph County Indiana Prosecutor's office for consideration of charges for perjury, false reporting or similar crime under Ind.Code 35-44.1-2-1 et seq.. The disposition must be made within sixty (60) working days after the Department's investigation, if any, is returned to the Review Office or after the conclusion of the investigation conducted by the Director pursuant to subsection (a) of this section. (e) The findings and disposition of the Review Board shall be communicated to the Common Council, the Mayor, and the Complainant in writing within ten (10) days of the date of the disposition. (f) Any disciplinary action taken against an Officer due to his or her involvement in an incident which resulted in a Complaint being filed with the Review Office shall be communicated to the Common Council and the Review Board for disclosure to the Complainant and the public within ten (10) days after the disciplinary action is imposed. (g) If no disciplinary action is taken, the Review Board shall be informed of that fact with an explanation of the reasons for that determination in a written response within ten (10) days after the determination is made. The written response shall be communicated to the Common Council and the Review Board for disclosure to the Complainant and the public within ten (10) days. Sec. 2-12.2.9 -Subpoena requests. For purposes of conducting an investigation or hearing, the Review Board may, by a majority vote of all Members, request the Common Council, through the Chairperson of the Common Council's Community Relations Standing Committee, to subpoena witnesses and documents, except those documents relating to ongoing criminal investigations, including such public records as are deemed subject to disclosure under the provisions of Ind.Code 5-14-3-3 et seq.. Any such request will be discussed by the Common Council in Executive Session pursuant to Ind.Code 5-14-1.5-6.1(b)(6). At the next subsequent full Common Council meeting following the Executive Session, special or regular, any Common Council member, under the "Special Business" Agenda item, may make a motion for the Common Council to continue the Review Board's investigation by issuing the requested subpoenas. If no such motion is made, or if such a motion is defeated, the request for subpoenas shall be deemed denied but the Review Board's investigation may otherwise continue. If such motion is made and passed by a majority vote of the entire Common Council, the requested subpoenas will be issued pursuant to Ind.Code 36-4- 6-21 and South Bend Municipal Code Section 2-2(i). This power to issue subpoenas shall be enforceable by the St. Joseph County Circuit or Superior Court pursuant to Ind.Code 36-4-6-21. Sec. 2-12.2.10 - Access to Community Police Review Board by Officers; participation of Officers. (a) Any Officer subpoenaed to appear before the Review Board may be represented by legal counsel or other representative or advocate. (b) Officers shall have access to the Complaint process to defend their actions, both during the investigatory and hearing processes. (c) Officers shall be required to cooperate with the Review Board and Review Office as an investigation is conducted, subject to their Federal and State constitutional rights. Sec. 2-12.2.11 Severability If any section, subsection, paragraph, sentence, clause, or phrase in this Ordinance is judicially determined to be invalid or ineffective by any court of competent jurisdiction, such determination shall not affect the validity or effectiveness of the remaining portions of the Ordinance SECTION II. This Ordinance shall be in full force and effect after its passage by the Common Council, approval by the Mayor, and publication as required by law. Karen L. White, President South Bend Common Council Attest: Dawn M. Jones, City Clerk Office of the City Clerk Presented by me, the undersigned Clerk of the City of South Bend, to the Mayor of the City of South Bend, Indiana on the day of 2020, at o'clock . M. m. Dawn M. Jones, City Clerk Office of the City Clerk Approved and signed by me on the day of , 2020, at o'clock James Mueller, Mayor City of South Bend, Indiana