1 APPROVED AS TO FORM AND LEGALITY
C
ITY ATTORNEY’S OFFICE
OAKLAND CITY COUNCIL
RESOLUTION NO. ________________C.M.S.
INTRODUCED BY COUNCILMEMBER JENKINS
RESOLUTION ON THE CITY COUNCIL’S OWN MOTION
SUBMITTING TO THE VOTERS FOR THE NOVEMBER 5, 2024
GENERAL MUNICIPAL ELECTION A MEASURE THAT WOULD
A M E N D C I T Y C H A R T E R S E C T I O N 6 0 4 T O , A M O N G O T H E R THINGS:
(1) SIMPLIFY THE PROCESS FOR APPOINTING POLICE
COMMISIONERS BY HAVING NINE REGULAR POLICE
COMMISSIONERS THAT ARE APPOINTED ONE EACH BY
THE COUNCILMEMBERS AND THE MAYOR;
(2) STRENGTHEN THE INDEPENDENCE OF THE OFFICE OF
INSPECTOR GENERAL BY HAVING THE CITY AUDITOR,
RATHER THAN THE POLICE COMMISSION, APPOINT THE
INSPECTOR GENERAL;
(3) STREAMLINE THE PROCESS FOR RECRUITING AND
HIRING POLICE CHIEFS BY RESTORING THE AUTHORITY
THAT THE CITY ADMINISTRATOR PREVIOUSLY HAD FOR
POLICE CHIEFS AND STILL HAS FOR VIOLENCE
PREVENTION CHIEFS, FIRE CHIEFS, AND THE HEADS OF
OTHER IMPORTANT DEPARTMENTS; AND
(4) CLARIFY THAT THE COMMUNITY POLICE REVIEW
AGENCY CAN INVESTIGA TE ANY ALLEGATION OF
POLICE MISCONDUCT, NO MATTER THE SOURCE OF THE
COMPLAINT;
AND DIRECTING THE CITY CLERK TO FIX THE DATE FOR
SUBMISSION OF ARGUMENTS AND PROVIDE FOR NOTICE
AND PUBLICATION, AND TO TAKE ANY AND ALL OTHER
ACTIONS NECESSARY UNDER LAW TO PREPARE FOR AND
CONDUCT THE NOVEMBER 5, 2024 GENERAL
MUNICIPAL ELECTION
2 WHEREAS, on April 15, 1980, the City Counc il established the Citizens' Police Review Board (hereinafter, Board) with jurisdiction to review certain complaints alleging Oakland Police Department officer misconduct, to conduct fact-finding investigations, and to make advisory reports to the City Administrator; and
WHEREAS, on July 30, 1996, the City Council expanded the Board's jurisdiction to include complaints involving the excessive use of force, and bias based on an individual's legally protected status (race, gender, national origin, religi on, sexual orientation or disability); and
WHEREAS, on November 12, 2002, the City Council passed Ordinance No. 12454 C.M.S., which further refined the Board's powers to inclu de making recommendations to the City Administrator regarding litigated c ases, and enlarged the amount of time for the Board to complete its investigations. The Board, however, was not empowered to oversee Department policy, impose discipline or ad judicate disciplinary appeals; and
WHEREAS, in 2003, Delphine Allen, et al. v. City of Oakland (the Riders case) where multiple Police Department officers violated plaintiffs' civil rights and were found to have planted evidence and used excessive force which resulte d in the Negotiated Settlement Agreement (“NSA”); and
WHEREAS, on November 8, 2016, Oaklan d voters approved Measure LL (83.19%), adding section 604 to the City Charter and establishing: (1) a Police Commission to oversee OPD policies and procedures; and (2) the Community P olice Review Agency (CPRA) to investigate police misconduct and recommend discipline; and
WHEREAS, on November 3, 2020, Oakland voters approved Measure S1, creating a civilian Office of Inspector General, and further defining th e authority of the Police Commission and the CPRA; and
WHEREAS, nearly eight years after the passage of Measure LL and four y ears after the passage of Measure S1, Oakland voters have once again have an opportunity to continue to improve the Oakland Police Commission and to improv e civilian oversight of the Oakland Police Department; and
WHEREAS, the Commission currently consist of nine member (and requires five Commissioners to establish a quorum), but only seven of the mem bers are “Regular Members” with full rights to participate in and contribute to the work of the Commission, while the other two members are “Alternate Memebers” with limit ed rights, even though some of the Alternate Commissioners have historically been some of the most dedicated and qualified to serve; and
3 WHEREAS, this system can become much simpler and more equitable by making all nine Commissioners full, equal members of the body; and
WHEREAS, the City’s eight Councilmembers and the Mayor each currently appoint one member each to a nine-person Selection Panel, which in turn appoint seven of the Police Commissioners (while the Mayor Appoints the other two); and
WHEREAS, this system means: 1) the City has to find nine committed volunteers for the Selection Panel in order to ultimately have nine committed volunteers for the Police Commission (a total of eighteen volunteers) 2) the Mayor has th ree appointments (one member of the Selection Panel and two Commissioners) while the Councilmembers each only appoint a Selection Panel member; and 3) City staff, whic h is already stretched incredibly thin, must support and facilitate two entire sets of meetings; and
WHEREAS, this system can also be made much simpler and more equitable if the City’s eight Councilmembers and the Mayor each directly appoint one of the nine members of the Police Commission; and
WHEREAS, in order “to ensure that all allegations of police officer mi sconduct are thoroughly investigated, and to identify any systemic issue s regarding Department and Agency practices and policie s,” City Charter section 604(f) (5) empowers the Office of Inspector General (“OIG”) to review Police Department practi ces and policies as well as Community Police Review Agency practices and policies; and
WHEREAS, to be most effective in improving constitutional policing in Oakland, the Inspector General needs to be free to offer recommendations for all of the City’s policing practices and policies, but because the Inspector General currently reports directly to the Police Commission, the Inspector General may find it dif ficult to criticize practices and policies the Police Commission may have endorsed or may even have adopted; and
WHEREAS, having Oakland’s independent and elected City Auditor, rather than the Police Commission, appoint the City’s Inspector General wil l increase the OIG’s independence and autonomy, which in turn will bolster the appearance of impartiality and the public’s trust in the office; and
WHEREAS, the Oakland Police Department did not have a permanent Chief of Police from February 15, 2023 to May 11, 2024 – following: 1) a n initial recruitment process by the Police Commission that lasted more than eight (8 ) months; 2) three Commissioners boycotting Police Co mmission meetings to stop a p rocess they believed was being improperly led; 3) the initial submission of a list of candidates to the Mayor that included a candidate the Mayor h ad publicly said would be unacc eptable; and 4) the eventual re-opening of the search; and
4 WHEREAS, this system has proven to be unwieldy and time-consuming, and risks making high-caliber Chief’s of Police reluctant to apply to serve Oakland; and
WHEREAS, recruiting and managing the City executives is a full-time job that requires professional expertise, and the civilians that are bes t equipped to oversee those processes going forward are our professional City Administrators and our elected Mayors; and
WHEREAS, these changes will not only simplifying and improve our processes and make more efficient uses of City resources, they will also reduce the number of tasks that our volunteer Police Commisioners will be mandated to do, allowing them to focus more of valuable their time and expertise on the important work of reviewing and revising Police Department practices and policies, as well as overseeing t h e C o m m u n i t y P o l i c e Review Agency; now therefore be it
R E S O L V E D : That the City Council hereby authorizes and directs the City Clerk, at least 88 days prior to the next general municipal election date, to file with the Alameda County Board of Supervisors and the Registrar of Voters certified copies of this resolution; and be it
FURTHER RESOLVED: That the City Council hereby proposes to amend Charter section 604 to add, delete, or modify sections as set forth below (section numbers and titles are indicated in capitalized bold type; additions are indicat ed by underscoring, deletions are indicated by strike -through type; portions of the provisions not cited or not shown in underscoring or strike-through type are not changed).
The people of the City of Oakland do ordain as follows:
Section 1. Amendments to Section 604 of the Charter of the City of Oakland.
SECTION 604 – POLICE COMMISSION
(a) Creation and Role.
1. There hereby is established the Oakland Police Commission (h ereinafter, Commission), which shall oversee the Oakland Police Department (hereinafter, Department) in order to ensure that its policies, practices, an d customs conform to national standards of constitutional policing. The Commission s hall have the functions and duties enumerated in this Charter Section 604, as well as those assigned to the Commission by Ordinance.
2. There hereby are established a Community Police Review Agenc y (hereinafter, Agency) and an Office of Inspector General (hereinafter, OIG), which shall have the functions and duties enumerated in this Charter Section 604 , as well as those assigned to them by Ordinance.
5 3. Nothing herein shall prohibit the Chief of Police or a comma nding officer from investigating the conduct of a Department sworn employee under his or her command, nor shall anything herein prohibit the Chief of Police from taking disciplinary or corrective action with respect to complaints in vestigated solely by the Department.
4. No later than two (2) years after the City Council has confi rmed the first set of Regular Commissioners and Alternat e Commissioners (collectively , Commissioners), the City Auditor shall conduct a performance audit and a financial audit of the Commission and the Agency. Performance audits shall be conducted at least once every three (3) year s thereafter. Nothing herein sha ll limit the City Auditor's authority to conduct future performance and financial a u d i t s o f t h e Commission and the Agency which may be conducted by an independent contractor selected by the Inspector General, in consultation with the Cit y Auditor, in compliance with the City's contracting processes and procedures.
5. The City Administration shall not exercise any managerial au thority over Commissioners, the Agency Director or the Inspector General, and shall not initiate an investigation for the purpose of removing a Commissioner. Ci ty employees maintain the right to file, and appropriate City officials and/ or staff maintain authority to investigate, complaints alleging violations of app licable Civil Service Rules, City policies, including Administrative Instructions, Me moranda of Understandings (MOUs), and employment laws and regulations. (b) Powers and Duties. The powers and duties of the Commission are as follows:
1. Oversee the work of the Agency and the OIG, and contract wit h professional service providers as authorized by Ordinance.
2. Conduct public hearings at leas t once a year on Department p olicies, rules, practices, customs, and General Orders. The Commission shall de termine which Department policies, rules, practices, customs, or General Orde rs shall be the subject of the hearing.
3. Consistent with state law and in accordance with Section 120 7 of the City Charter, entitled "Oaths and Subpoenas," issue subpoenas to compel the p roduction of books, papers and documents and take testimony on any matter pe nding before it except that the Commission shall not have any authority to issue subpoenas for the purpose of investigating any City employee, including an Agency employee, who is not a police officer. If any person subpoenaed fails or refu ses to appear or to produce required documents or to testify, the majority of the m embers of the Commission may find him in contem pt, and shall have power to ta ke proceedings in that behalf provided by the general law of the State.
4. Propose changes at its discretion or upon direction, by adop tion of a resolution, of the City Council, including modifications to the Department's proposed changes, to 6 any policy, procedure, custom, or General Order of the Department which governs use of force, use of force review boards, profiling based on an y of the protected characteristics identified by federal, state, or local law, or First Amendment assemblies, or which contains elements expressly listed in fede ral court orders or federal court settlements which pertain to the Department and a re in effect at the time this Charter Section 604 takes effect. All such proposed c hanges and modifications shall be submitted by the Commission Chair or her or his designee to the City Council for review. The City Council shall consider the Commission's proposed changes or modifications within one hundred and twenty (120) days of the Commission's vote on the proposed changes, and may approve, modify and approve, or reject the changes. If the Council does not approve , modify and approve, or reject the Commission's proposed changes or modific ations, the changes or modifications will become final.
5. Approve or reject the Department's proposed changes to all p olicies, procedures, customs, and General Orders of the Department which govern use of force, use of force review boards, profiling ba sed on any of the protected ch aracteristics identified by federal, state, or local law, or First Amendment assemblies, or which contains elements expressly listed in federal court orders or f ederal court settlements which pertain to the Department and are in effect at the time this Charter Section 604 takes effect. If the Commission does not approve or reject the Department's proposed changes wi thin one hundred and twenty (12 0) days of the Department's submission of the proposed changes to the Commissi on, the Department's proposed changes wi ll become final. If the Commiss ion rejects the Department's proposed changes, n otice of the Commission's rejec tion, together with the Department's proposed changes, shall be submitted by t he Commission Chair or her or his designee to the City Council for review. The City Council shall consider the Commission's decision within one hundred and twent y (120) days of the Commission's vote on the Department's proposed changes, and may approve or reject the decision. If the Council does not approve or reject the Commission's decision, the Commission's decision will become final.
6. Review and comment on, at its discretion, any other policies , procedures, customs, and General Orders of the Department. All such comments shall b e submitted to the Chief of Police. The Chief of Police shall provide a writte n response to the Commission upon the Commission's request.
7. Review the Mayor's proposed budget to determine whether budg etary allocations for the Department are aligned with the Department's policies, procedures, customs, and General Orders. The Commission shall conduct at least one p ublic hearing on the Department budget per budget cycle and shall forward to the City Council any recommendations for change.
8. Require the Chief of Police or his or her designee to attend Commission meetings and require the Chief of Police to submit an annual report to t he Commission regarding such matters as the Commission shall require, including but not limited 7 to a description of Department expenditures on community priorities as identified by the Commission. The Chief of P olice or her or his designee s hall also respond to requests made by the Commission, through the Chairperson, by a majority vote of those present. The Chief of Police or her or his designee sh all provide to the Commission Chair an estimate of the time required to respond to the Commission's requests.
9. Report at least once a year to the Mayor, the City Council, and to the public to the extent permissible by law, the in formation contained in the Chi ef’s report in addition to such other matters as are relevant to the functions and duties of the Commission.
10. The City Administrator shall appoint and remove the Chief of Police in accordance with Charter Section 503, subject to the direction of the Mayor in accordance with Charter Section 305. However, notwithstanding any other provision of this Charter, prior to appointing a Chief of Police, the City Administrator s hall invite subject- matter experts and community stakeholders, including but not ne cessarily limited to, the Chief of Violence Prevention, the Chief of Fire, the Po lice Commission Chair, and the Police Commission Vice-Chair, to participate in panel interviews of three or more of the final candidates in order to provide feedb ack and recommendations to the City Administrator and Mayor prior to ap pointment.
Notwithstanding any other provision of this Charter or any provision of the Oakland Municipal Code, and acting separately or jointly with the Mayor, remove the Chief of Police by a vote of no fewer than five (5) affirmative votes. If acting separately, the Commission may remove the Chief of Police only after adopti ng a finding or findings of cause, which shall be defined by City ordinance. The Commission must make its finding of just cause by no fewer than five (5) affirmative votes and must follow a process for notification, substantiation and documenta tion which shall be defined by ordinance. Upon removal, by the Commission, by the Mayor, or by the Mayor and the Commission acting jointly, or upon the notice of vacancy of the position of Chief of Police, the Mayor, in consultation with th e Chair of the Commission, shall immediately ap point an Interim Chief of Polic e. No person appointed to the position of Interim Chief of Police shall simu ltaneously hold additional non-sworn employment with the City, or simultaneousl y serve as an elected official or officer of the City. Such appointment shall not exceed six (6) months in duration unless an extension to a date certain is app roved by a majority vote of the Commission. The Commission, with the assistance of the City Administrator, shall prepare and distribute a job announcement, and prepare a list of at least three (3) candidates and transmit the names and rel evant background materials to the Mayor. The Mayor shall appoint one person from this list, or reject the list in its entirety and request a new list from the Commission.
11. Send the Chairperson of the Commission and/or, the Agency D irector, and/or the Inspector General or their designees to serve as non-voting mem bers of any Oakland Police Force Review Board, as permitted by law. 8 12. Hire and/or contract for, by an affirmative vote of at least five (5) members, one or more attorneys to provide legal advice to the Commission related to and within the scope of any of its powers or duties, in accordance with Sectio n 604(i) of this Charter. When considering a candidate for an attorney position, the Commission shall consider the candidate's familiarity with laws applicable to public entities, public meetings, employee privacy, labor relations and law enforcement.
13. Perform such other functions and duties as may be prescribed by this Charter or by City ordinance.
(c) Appointment, Terms, Vacancies, Removal.
1. The Commission shall consist of nine (9) seven (7) regular m embers and two (2) alternate members, all of whom shall be Oakland residents of at least eighteen (18) years of age. Alternate Commissioners shall be eligible to serve on any Commission standing or ad hoc committee, including any Discipline Committe e. To the extent practicable, appointments shall be broadly representative of Oakland's diversity and shall include members with know ledge and/or experience in the f ields of human resources practices, management, policy development, auditing, law, investigations, law enforcemen t, youth representation, civil ri ghts and civil liberties, as well as representation from communities experienc ing the most frequent contact with the Department. The City Council may require, by ordinance, that some or all of the Commissioners have expertise in a specified subject matter.
Background checks shall be required for all Commissioners. Such background checks shall not be performed by the Department. Commissioners shall be issued identification cards, but shall not be issued and shall not dis play, wear, or carry badges that so resemble a peace officer's badge that an ordinary reasonable person would believe that Commissioners have the authority of a peace officer. The following shall not be eligible to serve as a Commissioner:
a. current sworn police officer;
b. current City employee;
c. former Department sworn employee; or
d. current or former employee, official or representative of an employee association representing sworn police officers.
2. Commissioners shall be appoint ed by either the Mayor or by a member of the City Council (hereinafter referred to as the Appointing Authority). Each City Council member shall appoint one (1) person, and the Mayor shall appoint one (1) person, to the Police Commission. Within two hundred and ten (210) days of the enactment of this Section, the Mayor shall appoint three (3) Oakland resi dents as Regular Commissioners, at least one of whom shall be a retired judge or lawyer with trial experience in criminal law or police misconduct, and one (1) Oa kland resident as 9 an Alternate Commissioner, and Appointing Authorities shall submit the names of these their appointees to the Council for confirmation. The Council shall have sixty (60) days after the completion of the background checks and fro m the date of receipt of the Mayor's Appointing Authority’s submission to acc ept or reject each of the Mayor's appointees as Commissioners. The Mayor shall appoint an Oakland resident to fill any Commission vacancies that were previously filled by a Mayor's appointee. If the City Council does not accept or reject an the Mayor's appointee within sixty (60) days after the completion of the background check and receipt of the Mayor's Appointing Authority’s submission, the appointee sh all be deemed appointed.
3. The transition from the Selection Panel model shall occur as follows All other Commissioners shall be appointed as follows:
a. Upon the enactment of this Section, Commissioners who were p reviously appointed as alternate Commissi oners shall immediately become r egular Commissioners, and all Commissi oners shall continue to serve th e remainder of their terms, subject to the e ligibility requirements of this Charter section.
There is hereby established a ni ne (9) member Selection Panel. Within ninety (90) days of the enactment of this Section, each City Council m ember shall appoint one (1) person, and the Mayor shall appoint one (1) per son, to the Selection Panel. The City Council shall, by ordinance, specify qualifications and/or disqualifying characteristics for Selection Panel members. The Selection Panel, with the assistance of the City Administrator, will soli cit applications from those willing to serve on the Commission. The Selection Panel will review the applications, and interview applicants to serve as members of the Commission.
b. Within one hundred and twenty days (120) of the enactment of this Section, the Selection Panel shall, by a vot e of the majority of its members , assign each sitting Commissioner and each vacancy on the Police Commission to an Appointing Authority and shall determine how the terms will be staggered in accordance with this Charter section. Any vacancy that exists on the Police Commission upon the enactment of this Section shall be deemed to have a term that has already commenced, as determined by the Selection Pane l, in order to allow each vacancy to be filled immediately. Within one hundred and twenty days (120) of its formation, the Selection Panel, by a two-thirds (2/3) vote, shall submit a slate of four (4) regular members and one (1) alternate member to the City Council. The City Council may require the nominees to appear before the Council or a Committee of the Council. If the City Council does not accept or reject the slate in its entirety within sixty (60) days after t he completion of the background checks and submission by the Selection Panel, the four (4) regular members and one (1) alternate member shall be deemed appointed. c. Once the Selection Panel has fulfilled the requirements of t his section, the Selection Panel shall be disbanded. Former members of the Sele ction Panel 10 shall be eligible to serve as Police Commissioners, subject to the requirements and restrictions of this Charter Section 604.Each year the Selection Panel shall re-convene, as needed, to designate replacements for the five (5) Commissioner (four (4) regular members and one (1) alternate) vacancies initially filled by the Selection Panel. The Selection Panel shall, by a two-thirds (2/ 3) vote of the members present but by a vote of no fewer than five (5) members, submit a slate of names of such designated pers ons to the City Council for acc eptance or rejection. If the City Council does not accept or reject the en tire slate within sixty (60) days after the completion of the background checks a nd submission by the Selection Panel, all designated replacements shall be deemed appointed. d. Each year the Mayor and each Councilmember may replace her o r his assigned person on the Selection Panel. S election Panel members may serv e up to five (5) years. Upon a vacancy on the Selection Panel, the Councilme mber who appointed the Selection Panel member (hereinafter referred to as the Appointing Authority) shall appoint a replacement. If the Appointing Autho rity does not appoint the replacement within one hundred and twenty (120) day s of the date of resignation, removal or expiration of the Selection Panel member's term, the Selection Panel, by a two-thirds vote of those present but by a vote of no fewer than five (5) Selection Panel members, shall choose a replaceme nt for the vacancy. All such replacements must be confirmed by the City Council.
4. With the exception of the first group of Commissioners which shall serve staggered terms, the The term for each Regular and Alternate Commissioner shall be three (3) years, commencing on October 16 of the appropriate year.
5. Commissioners are limited to no more than two (2) consecutiv e terms, subject to the following exceptions:
a. that a A Commissioner serving the remainder of a term of less than one (1) year shall be allowed to serve two (2) additional consecutive terms. b. A Commissioner whose term has expired may serve in a holdov er capacity, at the pleasure of their Appointing Authority, for no more than one year.
6. The terms of the Commissioners shall be staggered so that th e terms of three (3) Commissions expire each year. T o effect a staggering of terms among the Commissioners, the duration of t he first group of Commissioners s h a l l b e determined by the Selection Panel as follows: Three (3) regular members, including one (1) of the mayoral appointees, shall have an initial term of three (3) years; two (2) regular members, including one (1) of the mayoral appointee s, shall have an initial term of two (2) years; two (2) regular members, includi ng one (1) of the mayoral appointees, shall have an initial term of four (4) year s . T h e a l t e r n a t e member appointed by the Selection Panel shall have an initial term of two (2) years and the alternate member appointed by the Mayor shall have an initial term of three (3) years.
11 7. A vacancy on the Commission shall exist whenever a member di es, resigns, ceases to be a resident of the City, ceases to be eligible due to term limitations, is convicted of a felony, or is removed.
8. Upon a vacancy, if the Appointing Authority for the vacant s eat does not submit the name of a replacement to the City Council for confirmation within one hundred and twenty (120) days of the date of vacancy, the Police Commis sion shall, by a two-thirds vote of those present but by a vote of no fewer than five (5) members, choose a replacement for the vacancy. All such replacements are s u b j e c t t o background checks and must be confirmed by the City Council. If the City Council does not accept or reject an appointee within sixty (60) days a fter the completion of the background check and receipt of the Police Commission’s submission, the appointee shall be deemed appointed. If the City Council rejec ts the Police Commission’s submission, The Polic e Commission shall choose ano ther replacement for the vacancy. For vacancies occurring for reason s other than the expiration of a regular member's term, the Commission shall sel ect one of the Alternate Commissioners to replace the regular member for that regular member's remaining term of office. If the Alternate Commissioner chosen t o r e p l a c e t h e regular member was appointed by the Selection Panel, the Select ion Panel shall appoint another Alternate Commi ssioner. If the alternate chosen to replace the regular member was appointed by the Mayor, the Mayor shall appo int another Alternate Commissioner.
9. All Commissioners shall receiv e orientation and training as required by ordinance, including but not limited to orientation and training in the ar eas of Department operations, policies and procedur es, including discipline proce dures for police officer misconduct and failure to act, Procedural Justice, conf lict resolution, national standards of constituti onal policing, best practices f or conducting investigations, and labor rights and laws.
10. The City Council may remove any Commissioner for cause as provided in Section 601 of the Charter. After a hear ing, the City Council may also suspend any Commissioner for cause by an affirmative vote of at least six ( 6) members of the Council, or rescind such a suspension by the affirmative vote o f at least five (5) members of the Council. A Commissioner who is suspended shall b e ineligible to conduct Commission business, and the Commission shall select on e of the Alternate Commissioners to replace the suspended Commissioner for the duration of the suspension. Any Commissioner may also be removed by a ma jority vote of the Commission only for convictio n of a felony, conviction of a misdemeanor involving moral turpitude, a material act of dishonesty, fraud, or other act of moral turpitude, substantial neglect of duty, gross misconduct in off ice, inability to discharge the powers and duties of office, absence from three c onsecutive regular Commission meetings or five regular meetings in a calendar year except on account of illness or when absent by permission. The Public Ethics Commission shall have the authority to investigate all allegations which, if true, could be cause for removal 12 of a Commissioner under Section 601 of the Charter and to refer the findings to the City Council.
(d) Meetings, Rules and Procedures.
1. The Commission shall meet at least twice each month unless i t determines that one meeting is sufficient in a particular month. The Commission shall notify the public of the time and place of the meeting and provide time for publi c comment at each meeting. The Commission shall meet at least twice each year in locations other than City Hall.
2. The Commission shall establish rules and procedures for the conduct and operations of its business. Such rules shall be made available to the public.
3. Five (5) members shall constitute a quorum. If a quorum is n ot established by the regular members in attendance, the Chairperson of the Commission may designate one or more Alternate Commissione rs to establish a quorum and c ast votes.
Motions on all matters may be approved by a majority of those C ommissioners present unless otherwise specified in this Charter Section 604. (e) Budget and Staffing.
1. The City shall allocate a sufficient budget for the Commissi on, including the Agency and the OIG, to perform its functions and duties as set forth in this Charter section 604, including budgeting for no fewer than two full-time legal advisors for the Agency (hereinafter Agency Attorneys). The budget set-aside for one of the Agency Attorneys may be suspended for a fiscal year or two-year budget cycle upon a finding in the budget reso lution that the City is facing an extreme fiscal necessity, as defined by City C ouncil resolution. The Agency Di rector shall have authority to hire and/or contract with legal advisors subject t o said budget. The Agency, including the Agency Staff Attorneys, may consult with the City Attorney on police-officer investigations and discipline, including related hearings, provided there is no conflict of interest.
2. The City Administrator may assign a staff member to act as l iaison to the Commission. The City shall allocate a sufficient budget for one full-time civil service employee who shall report to the Agency Director and wh ose duties shall include providing administrative support to the Commission, and attending Commission meetings. Within sixty (60) days of the City Council 's confirmation of the first group of Commissioners, the Oakland Citizens' Poli ce Review Board (hereinafter Board) shall be d isbanded and its pending business transferred to the Commission and to the Agency. The Executive Director of the Board shall become the Interim Director of the Agency, and all other staff will be transferred to the Agency.
13 3. After the effective date of this Charter section 604, the Ag ency Director and the Inspector General may identify special qualifications and exper ience that candidates for Agency and OIG staff positions, respectively, must have. Candidates for future vacancies may be selectively certified in accordance w i t h t h e C i v i l Service Personnel Manual, as may be amended from time to time; said selective certification shall be subject t o discretionary approval by the appointing authority and the Personnel Director.
4. The staff of the Agency shall consist of no fewer than one line investigator for every one hundred (100) sworn officers in the Department, rounded up or down to the nearest one hundred (100). The number of investigators shall be determined at the beginning of each budget cycle based on the number of sworn off icers employed by the Department the previous June 1. At least one investigator shall be a licensed attorney. The budget set-aside for such minimum staffing may be suspended for a fiscal year or two-year budget cycle upon a finding in the budget resolution that the City is facing an extreme fiscal necessity, as defined by City Council resolution.
5. The Inspector General shall be hired by and may be removed b y the City Auditor.
The City Auditor shall periodically conduct a performance review of the Inspector General. The Inspector General shall be classified as a Department head, and shall have the authority to hire and fire OIG staff, subject to section 604(e)(7) of the City Charter and consistent with state law, City Civil Service Rules and any applicable collective bargaining agreement. The Inspector General, in cons ultation with the City Administrator, shall have t he authority to organize and re organize the OIG, subject to section 604(e)(7) of the City Charter. Upon the enactment of this Section, the incumbent Inspector General shall continue to serve. The Ci ty Administrator may assign a staff member to act as liaison to the Commission. The City shall allocate a sufficient budget for one full-time civil service employee who shall report to the Agency Director and whos e duties shall include providing administrative support to the Commission, and attending Commission meetings.
6. Upon a vacancy, the Agency Director and the Inspector Genera l shall be hired by the Commission. By an affirmative vote of at least five (5) mem bers, the Commission may terminate the Agency Director or the Inspector G eneral. The Commission may remove the Inspector General only after adopting a finding or findings of cause, which may be defined by City Ordinance. The Commission shall periodically conduct a performan ce review of the Agency Directo r and Inspector General. The Agency Director and I n s p e c t o r G e n e r a l s h a l l b e c l assified as a Department heads, and shall have the authority to hire and fire Agency staff and OIG staff, respectively, including Agency Attorneys, subject to section 604(e)(7) of the City Charter and consistent with state law, City Civil Service Rules and any applicable collective bargaining agreement. The Agency Director and Inspector General, in consultation with the City Administrator, shall hav e the authority to organize and reorganize the Agency and the OIG, respectively, s ubject to section 604(e)(7) of the City Charter.
14 7. The staff of the Agency, OIG and Commission, with the except ion of the Agency Director and Inspector General themselves, as well as one Deput y Inspector General, shall be civil service employees in accordance with Article IX of the City Charter. Civil service staff of the Agency, OIG or Commission m ay not be separated from employment unless such separation is approved by t h e C i t y Administrator. Background checks shall be required for all Agen cy investigator applicants before they are hired by the Agency. Such background checks shall not be performed by the Department. Staff of the Board who are tran sferred to the Agency as discussed in section (e)(2) above shall not be subjec t to background checks.
8. No current or former sworn employee of the Department, or cu rrent official, employee or representative of an employee association represent ing sworn police officers, is eligible for any staff position in the Agency, or the Commission. (f) Investigations.
1. Beginning sixty (60) days after the City Council's confirmat ion of the first group of Commissioners, the Agency shall receive, review and prioritize all public complaints concerning the alleged misconduct or failure to act of all Department sworn employees, including complaints from Department non-sworn employees.
The Agency is authorized to investigate any possible misconduct or failure to act of a Department sworn employee, whether or not the subject of a public complaint, in the discretion of the Agency Director. The Agency shall not be required to investigate each public complai nt it receives, beyond the initi al intake procedure, but the Agency shall investigat e public complaints involving us es of force, in- custody deaths, profiling based on any of the protected characteristics identified by federal, state, or local law, untruthfulness, and First Amendme nt assemblies. The Agency shall also investigate any other possible misconduct or failure to act of a Department sworn employee, whether or not the subject of a publ ic complaint, as directed by the Commission. The Agency shall forward a copy of each complaint it receives to the Department within one business day of receip t, and the Department shall forward a copy of each complaint it receives to the Agency within one business day of receipt. The Agency Director may report to the Commission on the status of written complaints filed with the Chief of Pol ice asserting that Department employees have resisted attempts by the Agency to conduct reasonable investigative tasks. The Agency Director shall submit to the Co mmission each month a list of all investigations it is conducting and shall, as permitted by law, answer any questions raised by any Commissioner regarding such investigations at a Commission meeting.
2. Subject to applicable law and provisions of this Charter Sec tion 604, the Commission, OIG, and Agency shall have the same access to all D epartment files and records, including the Depart ment's Internal Affairs Divisi on (hereinafter, IAD) files and records, related to sworn employees of the Depar tment, in addition to a l l f i le s a n d re c o rd s o f o th e r C i t y d e p a r tm e nts a n d a g e n c ie s related to sworn 15 employees of the Department, as IAD, including but not limited to the same access to electronic data bases as IAD as permitted by law. Requests f or access to such files and records shall be made by a majority vote of the Commi ssion, by the Agency Director, or by the Inspector General. By majority vote, the Commission shall have the authority to request information from the Department, and the Chief of Police or her or his designee shall respond to such requests, as permitted by law.
Commission requests for personnel records shall have, and the Commission's vote shall articulate, a reasonable nexus to one or more of the Commission's powers and duties enumerated in subsection (b) of this Charter Section 604. All those who have access to confidential information shall maintain confidentiality as required by law.
The Department and other City departments and agencies shall ma ke every reasonable effort to respond to the Commission's, OIG's, or Age ncy's requests for files and records within ten (10) days, including but not limit ed to: (1) records relevant to Police Department policies or practices, and (2) pe rsonnel and disciplinary records of Police Department sworn employees, as permitted by law.
3. The Agency shall make every reasonable effort to complete its investigations within one hundred and eighty (180) days of the filing of the complaint with the Agency.
The Agency shall complete its investigations within two hundred and fifty (250) days of the filing of the complaint with the Agency unless the Agency Director, in his or her discretion, makes a written finding that exceptional circumstances exist in a particular case that are beyond the Agency's control. Within thirty (30) days of completion of the investigation, the Agency Director shall issu e written findings and proposed discipline regarding the allegations stated in the complaint to the Chair of the Commission and the Chief of Police. The Agency Director shall issue written findings and proposed disci pline within forty-eight (48 ) hours of completion of any investigation of Level 1 use of force (as defined by Department policy), sexual misconduct or untruthfulness. The City Administrator shall not have the authority to reject or modify the Agency's findings and proposed discipline.
4. To the extent allowed by law and after consultation with the Commission, the Agency shall forward information to other enforcement agencies, including but not limited to the Alameda County District Attorney, when such info rmation establishes a reasonable basis for believing that a crime may have been committed by a sworn Department employee.
5. The OIG shall audit the Department's compliance with the fif ty-two (52) tasks described in the Settlement Agreement in United States District Court case number C00-4599, Delphine Allen, et al., v. City of Oakland, et al., a nd make recommendations to the Department, the Commission, and the City Council based on its audit(s), even after the Settlement Agreement expires. T he OIG may review legal claims, lawsuits, settlements, complaints, and investigat ions, by, against, or involving the Department and the Agency, to ensure that all all egations of police officer misconduct are thoroughly investigated, and to identify any systemic issues regarding Department and Agency practices and policies. The OIG s h a l l h a v e access and authority to review Department data, investigative r ecords, personnel 16 records, and staffing information, as permitted by law, for the purpose of conducting audits of the Department. The OIG shall have access and authority to review Agency data, investigativ e records, personnel records, a nd staffing information for the purpose of conducting audits of the Agency. The OIG's access to personnel records for non-sworn employees shall be limited t o training records.
OIG shall provide written reports of the results of its audits to the Commission and the City Council, and, upon request, shall publicly report on the results of any audits to the Commission and/or the City Council in a manner consisten t with all applicable confidentiality require ments. The Inspector General shall receive orientation and training as requi red by Ordinance, including bu t not limited to orientation and training in the areas of Department operations, policies and procedures, including discipline procedures for police officer misconduct and failure to act, Procedural Justice, conflict resolution, nation al standards of constitutional policing, best practices for conducting investig ations, and labor rights and laws.
6. Upon the occurrence of a Serious Incident, as defined by Ord inance, the Chief of Police or her or his designee shall immediately notify the Agency Director. (g) Adjudication.
1. If the Chief of Police agrees with the Agency's findings and proposed discipline, he or she shall notify the Agency Director who shall notify the Ch air of the Commission of the agreed-upon findings and proposed discipline. The Chief shall send to the subject officer notif ication of the agreed-upon fin dings and intent to impose discipline. The Chief of Police may send such notificati on to the subject officer before IAD has begun or completed its investigation.
2. If the Chief of Police disagrees with the Agency's findings and/or proposed discipline, the Chief of Police shall notify the Agency Directo r of his or her own findings and/or proposed discipline. The Agency Director shall submit the Chiefs findings and proposed discipline in addition to the Agency's findings and proposed discipline to the Chair of the Commission. The Chair of the Com mission shall appoint a Discipline Committee comprised of three Commissioners . The City Administrator shall not have aut hority to reject or modify the Chief of Police's findings and proposed discipline. After reviewing the Agency's submission and after consulting with the Agency Director about the time available under applicable statutory deadlines, the Discipline Committee may require the A gency to further investigate the complaint by notifying the Agency Director, in writing, of the specific issues that need further investigation. After reviewin g both submissions, the Discipline Committee shall resolve any dispute between the Agency and the Chief of Police. Based solely on the record presented by the Agency and the Chief of Police, the Discipline Committee shall submit its final deci sion regarding the appropriate findings and proposed discipline to the Chief of Police who shall notify the subject officer. The City Administrator shall not have the authority to reject or modify the Discipline Committee's final decision regarding the appropriate findings 17 and level of discipline. The Discipline Committee shall not hav e the authority to conduct its own investigation.
3. If the Chief of Police prepar es his or her own findings and proposed discipline and provides it to the Agency before the Agency's investigation is initiated or completed, the Agency may close its investigation or may choose not to conduct its own investigation in order to a llow final discipline to proceed as proposed by the Chief, except that in investigations of Level 1 uses of force, sexual misconduct or untruthfulness, the Commission must approve the Agency's decision by a majority vote. If the Agency chooses not to close its investigation, imp osition of final discipline shall be delayed until the Agency's investigation is completed and the Agency makes its findings and recommendations for discipline. T he Agency shall notify the Chief of its final decision regarding how and whethe r it will proceed within seven (7) days of the Chiefs notice of completion of his or her investigation.
4. All employees are afforded their due process and statutory r ights including Skelly rights. After the findings and imposition of discipline have become final, the subject officer shall have the right to grieve/appeal the findings and imposition of discipline if such rights are prescribed in a collective bargaining agreem ent. Whenever the discipline determination of a Discipline Committee is the subje ct of a hearing before the Civil Service Board or a labor arbitrator, the Agenc y Director, in consultation with the City Attorney, shall decide whether an Ag ency Attorney or the Office of the City Attorney shall represent the City. The Agency Director shall notify the subject officer of the Agency Director's decision no more than fourteen (14) calendar days after the d ate that the subject officer invo kes the right to a hearing.
5. On its own motion and by no fewer than five (5) affirmative votes, the Commission may convene a Discipline Committee for cases involving allegations of Level 1 use of force, sexual misconduct and un truthfulness when either the Agency or the Department have not completed an investigation within two hundred and fifty (250) days of the filing of a complaint or when the evidence upon whi c h e i t h e r t h e Department or the Agency bases its findings does not include available body-worn camera footage of the incident under investigation, or when bod y-worn camera footage of the incident was required under Department policy but such footage was not recorded or was otherwise unavailable. The Discipline Committee may require the Agency to further investigate the complaint by notifying th e Agency Director, in writing, of the specific issues that need further investigation. (h) Enabling Legislation. The Commission may make recommendations to the City Council for enacting legislation or regulations that will further the goals and purposes of this Charter section 604. The City Council may, on its own i nitiative, enact legislation or regulations that will further the goals and purp oses of this Charter section 604. Once the Commission is seated, subsequent legislat ion or regulations shall be submitted to the Commission for review and comment. The Commission shall 18 have forty-five (45) days to submit its comments to the City Council, such time to be extended only by agreement of the City Council.
(i) Legal Counsel to the Commission.
1. The dollar amount for all employees hired and/or contracts a pproved according to section 604(b)(12) of this Chart er (hereinafter, Commission Att orneys), in aggregate, in a single fiscal year shall not exceed the amount budgeted by the City Council for such fiscal year; and such contracts shall be in the form established by the City for professional legal services contracts. By an affirmative vote of at least five (5) members, the Commission may terminate such contracts or, subject to any applicable personnel rules or collective bargaining agreements, terminate such employment.
2. Commission Attorneys shall represent the City as an organiza tion and shall not commence any claim or other legal proceeding against the City o n behalf of the Commission. Commission Attorney s shall respond to any petition or application for a writ of mandate, restrain ing order or injunction brought against the Commission or against Commissione rs in its or their official ca pacity unless the Commission votes to refer the matter to the City Attorney for r esponse. The City Attorney shall act as legal counsel on behalf of the Commission and Commissioners in all other litigation involving it or them in their official capacity in accord with section 401(6) of this Charter.
3. In accord with their role, Commission Attorneys shall not di sclose the confidences of the Commission on any legal matter to any other officer of the City unless:
a. The Commission, either as a body or through its Chair, or the Vice Chair if the Chair is unavailable and the matter is time sensitive, gives Co mmission Attorney informed consent in writing;
b. The Commission, either as a body or through its Chair, or Vi ce Chair if the Chair is unavailable and the matter is time sensitive, refers the same legal matter to the City Attorney pursuant to section 401(6) of this Charter:
c. Commission Attorney, in her/h is professional discretion, determines it is in the best interests of the Commission to consult with the City Attorney; d. Commission Attorney, in her/his professional discretion, det ermines that the Rules of Professional Conduct require referral of the matter to one of the following City officers: City Administrator, Mayor, City Attorn ey, Council president, Vice Mayor; or
e. The legal matter becomes, in whole or in part, the subject of litigation involving the City or any City officer, board, commission, including the Police Commission, or other agency in their official capacity. 19 Section 2. Severability. If any section, subsection, sentence, clause or phrase of this Measure is for any reason held to be invalid or unconstitutional by decision of any court of competent jurisdiction, such decision shall n o t a f f e c t t h e v a l i d i t y o f t he remaining portions of the Measure. The voters hereby declare that they would have passed t h i s M e a s u r e a n d e a c h section, subsection, clause or phrase thereof irrespective of the fact that one or more other sections, subsections, clauses or phrases may be declared invalid or unconstitutional. and be it
FURTHER RESOLVED : That each ballot used at said municipal election shall have printed therein, in addition to any other matter required by law the following:
PROPOSED CHARTER AMENDMENT
MEASURE ___
Measure _____. Shall a measure to amend the Charter to, among other things, have nine Regular Police Commissioners rather than seven Regulars and two Alternates; have the Councilmembers and Mayor each appoint one of the nine Commisioners; have the City Auditor, not the Police Commission, appoint the Inspector General; have the City Administrator appoint the Police Chief; and clarify the Community Police Review Agency’s authority to investigate any police misconduct allegation, regardless of the source, be adopted?
[FINAL BALLOT QUESTION SUBJECT TO CITY ATTORNEY
APPROVAL]
Yes
No
;and be it
F U R T H E R R E S O L V E D : That the City Council hereby authorizes and directs the Clerk of the City of Oakland (“City Clerk”), at least 88 days prior to the November 5, 2024 general municipal election, to file certified copies of this resolution with the Alameda County Board of Supervisors and the Registrar of Voters; and be it
FURTHER RESOLVED : That in accordance with the Elections Code and Chapter
3.08 of the Oakland Municipal Code, the City Clerk shall fix an d determine a date for submission of arguments for or against said proposed Charter amendment, and said date shall be posted by Office of the City Clerk; and be it
FURTHER RESOLVED : That in accordance with the Elections Code and Chapter
3.08 of the Oakland Municipal Code, the City Clerk shall provide for notice, publication and 20 printing of notices as to said proposed Charter amendment in the manner provided for by law; and be it
FURTHER RESOLVED: That the City Clerk and C ity Administrator hereby are authorized and directed to take any and all actions necessary under law to prepare for and conduct the 2024 state general election and appropriate all mon ies necessary for the City Administrator and City Clerk to prepare for and conduct the Nov ember 5, 2024 general municipal election, consistent with law.
IN COUNCIL, OAKLAND, CALIFORNIA,
PASSED BY THE FOLLOWING VOTE:
AYES - FIFE, GALLO, JENKINS, KALB, KAPLAN, RAMACHANDRAN, REID,
AND PRESIDENT FORTUNATO BAS
NOES –
ABSENT –
ABSTENTION –
ATTEST:
ASHA REED
Acting City Clerk and Clerk of
the Council of the City of
Oakland, California
3348289