November 12, 2024
VIA Electronic Mail Only
Mayor Robert McConnell
Councilmembers Loera-Diaz, Matulac, Bregenzer, Arriola, Palmares, Verder-Aliga City Manager Andrew Murray
Office of the City Attorney
RE: Urgent Request to Pull Action Calendar Item 9 (B) “Introduction of an Ordinance Amending Vallejo Municipal Code Title 18, Police Oversight and Accountability Commission (First Reading)” from November 12th Meeting Agenda and Postpone Discussion Until January 2025
I. Introduction
Dear Mayor McConnell, City Manager Murray, City Attorney Nebb, and Vallejo City Councilmembers:
I write on behalf of the American Civil Liberties Union of Northern California (ACLU NorCal), a civil rights non-profit and non-partisan organization. ACLU NorCal is an enduring guardian of justice, fairness, equality, and freedom, working to protect and advance civil rights and civil liberties for all Californians. We work to hold legislators, police, prosecutors, and other government actors accountable to the people.
ACLU NorCal is deeply concerned that the Vallejo City Attorney’s office supports amending the Police Oversight and Accountability Commission (POAC) ordinance, without seeking the input from POAC commissioners, Common Ground or any other impacted community groups.
Since this is an urgent matter, please confirm receipt and respond to this letter by 5 p.m.
November 12, 2024.
II. ACLU NorCal Opposes Discussion of Action Calendar Item 9 (B) on November 12, 2024, Because the Amendment Process Lacked Communication, Transparency, and Community Collaboration
2 ACLU NorCal strongly urges Vallejo city council staff to pull action calendar item 9 (B) from the November 12th city council meeting agenda until January 2025. This postponement will allow: 1) Community members to share input with the POAC commissioners, 2) POAC commissioners the opportunity to review the amendments and make a recommendation to the city council, 3) The incoming Mayor and city council members the opportunity to be part of the discussion since they will have to work with the POAC moving forward, and 4) Address the substantive concerns we list in this letter that deeply undermine and weaken the POAC’s ability to provide meaningful oversight.
We understand that the POAC Commissioners who have already been appointed and sworn in were not consulted to provide feedback on the amended ordinance. These amendments will directly affect the POAC commissioners’ powers and duties, and it is only reasonable for an affected party to be able to provide input about any amendments to the ordinance. We recommend the proposed ordinance should be submitted to POAC so that they could hold at least one public hearing to invite community input and subsequently submit a recommendation to the City Council.
Additionally, calendar action item 9 (B) should be postponed because in January 2025, there will be a new Mayor and councilmembers. With many newcomers, it would display prudent and good-faith governance to withhold the consideration of major amendments to the ordinance until the new Mayor and city council members are sworn in. The new leadership at city hall should have the opportunity to provide feedback since they will be responsible for the robust implementation and effective functioning of the POAC to ensure oversight and accountability of the Vallejo Police Department (VPD.)
Vallejo city government can and must do better in soliciting input from residents and POAC commissioners for there to be meaningful oversight of VPD. Moving forward with this plan of action will not build a good foundation for POAC success. The city has an immediate opportunity to course correct and take the right path towards transparency and inclusion.
III. ACLU NorCal Opposes Amended Ordinance as Currently Written Because it Weakens POAC’s Ability to Provide Meaningful Oversight of the Vallejo Police Department
ACLU NorCal opposes the amended ordinance as currently written and strongly urges city council to not conduct a first reading of the amended title 18 ordinance on November 12, 2024, as there are substantive changes that weakens POAC’s powers and duties to provide meaningful oversight.
Community members report frustration with the city’s failure to provide a detailed staff report.
The proposed amened ordinance would fundamentally weaken the role of the POAC. 3 Transparency is a cornerstone of the California Department of Justice (DOJ) Vallejo settlement agreement. This is demonstrated in the agreement as it states, “The Parties recognize that these outcomes require a partnership between VPD and the community it serves in which VPD is transparent about its processes and provides community members with a voice in its functions.”1 The settlement further states, “This Agreement is designed to enhance VPD’s relationship with its community through increased transparency and public input, improved oversight and accountability systems, and enhanced support for officers through effective policies, training, and supervision.”2
Through these proposed amendments, the city has again violated this fundamental requirement of the DOJ. In addition, the staff report provides no information regarding the dates of the meet and confer or mediation. We recommend that at least one month in advance of the proposed postponed hearing before the POAC, the city publicly disclose the purpose of the Vallejo Police Officer Association’s (VPOA) changes.
Given the lengthy and tragic history of VPD, it is unreasonable and unwise for Vallejo residents to believe the changes were made with their community’s best interest in mind. That is why it would have been helpful if the staff report, or the ordinance would have provided the rationale for the changes made so the public could understand the amendments proposed, even if there was deep disagreement with them. Without any explanation the amendments appear to be a naked attempt at weaking the ability of POAC to be effective and to hold VPD accountable. The City of Vallejo and VPD should welcome and embrace accountability.
Furthermore, ACLU NorCal strongly recommends the following amendments below need to be changed immediately and discussed before any Vallejo city council vote:
A. Chapter 18.02.010 Investigative Report Section E1
• Chapter 18.02.010 section E1 of the amended ordinance makes it no longer mandatory for an interview conducted by the Independent Investigator or Internal Affairs to be video recorded. It is now written in a way that makes video recordings with the subjects or witnesses of an investigation voluntary with the word “may.” Both the Independent Investigator or Internal Affairs and the person being interviewed have to agree to the video being recorded.
• We strongly recommend maintaining a mandatory video recording of interviews conducted by the Independent Investigator or Internal Affairs. Video recording is extremely important because it is another accountability mechanism to evaluate the witness’ demeanor far better than what audio only can capture. Demeanor is important to
1 VPD DOJ Settlement Agreement DOJ Final Executed, at 2 (April 8, 2024), https://oag.ca.gov/system/files/attachments/press-
docs/VPD%20DOJ%20Settlement%20Agreement%20DOJ%20Final.Executed.pdf 2 Id.
4 evaluating credibility and truthfulness. Vallejo city staff should champion being known for wanting an accountability system of credibility and truth. Interviews must remain video recorded for the same reasons police officers have body worn cameras, to demonstrate transparency to the community, document statements, behaviors, and evidence. This accountability procedure should be no different.
B. The word recommendation has been changed to opinion in the sections below
• Chapter 18.03.050 Commission Powers, Duties and Functions Sections A, C, L, M, N, O, P, Q, R, and AD.
• Chapter 18.03.060 Obligations of the Chief of Police and Police Personnel Sections B, C, E, F, and G.
• Chapter 18.03.070 Reports by Chief of Police sections B and C. • Chapter 18.04.030 Duties of the Independent Police Auditor (IPA) Sections C, D, and E.
• Without an explanation from Vallejo city staff as to why these changes occurred, it appears that VPOA is attempting to remove any power, duty, and authority the commission has to make a formal recommendation for policy change that the VPD or City must respond to with an explanation for its acceptance or rejection of a POAC recommendation. If this is not the case, for transparency purposes, Vallejo city attorney’s staff should explain to the community why the word recommendation was removed. • It is our position that replacing the word “recommendation” with the word “opinion” would be a way for VPD to downgrade, ignore and otherwise not take seriously the weight of the commission’s recommendations. A recommendation implies that there will be a formal response from VPD as to whether VPD will accept or reject the commission’s recommendation and then provide their reasoning for it. On the other hand, an “opinion” implies VPD could just hear the commissions opinion and simply ignore it. • It is important to keep the word “recommendation” because the commission does extensive review of best practices research and investigative materials and conclusions, to provide thoughtful and expert recommendations. POAC is not created to merely provide opinions that anyone could make. Instead POAC is formed so that the commissioners would be knowledgeable and thoughtful in their review of departmental policies and practices of VPD to provide recommendations for meaningful oversight.
C. Chapter 18.03.050 Commission Powers, Duties and Functions Sections A , C, and Chapter 18.04.030 Duties of the IPA section C
5 • Chapter 18.03.050 Commission powers, duties and functions section A and C added the word “may” instead of shall which implies the commission can in their discretion provide recommendations. This discretionary language undermines, whether intentionally or unintentionally, and weakens commissions powers and how the commission will be perceived by VPD and the public. “May” makes it a discretionary choice instead of formal duty. It should be mandatory for the commission to provide recommendations regarding all VPD matters presented before them especially concerning serious incident findings, and policy violations of bias incidents.
• The amended ordinance describes the commission as no longer “shall” either agree or disagree with factual findings and proposed policy violation conclusions. It is now in the commission’s discretion of “may.” Removing “may” is important because it gives the impression that it is in the commission’s discretion instead of its formal duty. For meaningful oversight, the commission shall provide recommendations on these matters.
That is the very point of commissions, to provide formal recommendations that must be responded to.
• Chapter 18.04.030 Duties of the Independent Police Auditor Section C added the word “may”. The IPA should be required as an auditor to provide a recommendation for an extra layer of accountability. Vallejo city staff should embrace extra accountability measures, not shy away from it.
D. Chapter 18.03.050 Commission Powers, Duties and Functions Sections H and I
• Chapter 18.03.050 sections H and I added additional discretionary language that was not in the original ordinance and that is unnecessary for meaningful VPD oversight. • This section unnecessarily added language to the ordinance to give discretion to the Chief of Police to forward any written determination by the department that a complaint is unfounded. In the interest of meaningful oversight and accountability, this should be mandatory and not left to the discretion of the Chief of Police. The Chief should welcome forwarding any written determination by the department that a complaint is unfounded.
This provides for greater transparency and efficiency in reviewing allegations of bias incidents.
• Additionally, for section I, when a city department receives a complaint from the public, they must forward it to the commission secretary too, instead of leaving room for discretion with the use of the word “may” for the same reasons listed above.
E. Chapter 18.03.050 Commission Powers, Duties and Functions Sections H and I
6 • Chapter 18.03.050 Commission powers, duties and functions sections H and I extends the time to forward public complaints concerning officer misconduct and other relevant and related items to the commission without justification or explanation. The original ordinance provided a 2-business day timeline. The amended ordinance changes it to 10- business days. Extending the time to 10 days for sharing an initial complaint information is unnecessarily long especially given the California Government Code 3304 (d)(1)3 time clock, i.e., statute of limitations. This law requires that the investigation of an allegation of misconduct must be completed, and subject notified of proposed disciplinary action within one year of discovery of the act, omission, or other conduct. Because of that, there cannot be time wasted in sharing public complaint information. 2 business days is a feasible timeline. A simple email or fax of the complaint received by VPD or any other city department to the commission is straightforward and is not a burden to accomplish substantively or procedurally within 48 hours.
IV. Conclusion
ACLU NorCal urges the Vallejo city council not to proceed with action calendar item 9 (B) because the procedural process that brought this item forward lacked transparency, inclusion, and collaboration. Additionally, the proposed amendments significantly weaken the POAC’s ability to provide meaningful oversight.
The amended ordinance would undermine the POAC. The work of the POAC would be perceived by VPD and the public as merely another opinion to be disregarded on police reform as opposed to a respected, independent commission which will have expertise on policing issues in Vallejo. VPD should be required to formally accept or reject with supporting evidence and reasons for each recommendation.
If Vallejo city staff wants to work in good faith with the community and to collaborate with the POAC, the council should not discuss the action calendar item 9 (B) until January 2025 when the appropriate feedback can be received from the POAC and community before a council vote can be held on the matter.
ACLU NorCal remains a resource to provide legal and policy expertise for Vallejo city staff if you have any questions or want to collaborate to foster building a strong POAC foundation with community trust moving forward. We remain committed to ensure there is robust and meaningful community oversight of VPD.
Best regards,
3 Cal. Gov’t Code § 3304 (d)(1), https://codes.findlaw.com/ca/government-code/gov-sect-3304/. 7 Marshal Arnwine
Legal-Policy Advocate
Criminal Justice Program
American Civil Liberties Union Foundation of Northern California 916-252-7929
[email protected]
CC:
Elinore Regresado
Executive Secretary
City Attorney’s Office
[email protected]
Narcissa Wilson
Executive Assistant to the City Manager
[email protected]
Erik Rzomp
Mayor’s Executive Assistant
[email protected]