Without interference from the Chief of Police or executive head of the police force, and with the full cooperation of both, the Office of Professional Standards must cause, for the Board's benefit, a full and complete investigation to be made of each complaint. The investigation need not be confined to matters set forth in the complaint and may expand based upon facts and allegations uncovered in the investigation. Upon an investigation's completion, the administrator will prepare a report and submit the report to the Board for its review and disposition.
Before recommending action on a complaint or determining that a complaint warrants no action, the Board may hold a hearing, under its rules. Any decision or deliberation about whether to act or not act on a complaint must take place in an open meeting.
If the Board decides that the facts found in an investigation suggest that the executive head of the police force and Chief of Police should promulgate or amend policies, rules, and regulations, the Board should submit its recommendation and reasoning to the executive head of the police force and Chief, with a copy to the Community Police Commission, and must notify the complainant that it has done so.
If the Board decides that discipline should be imposed on the officers or employees under the Chief of Police's management and control, the Board will submit its fact findings and recommendation to the Chief. The Chief and executive head of the police force must presume to be correct and defer to the Board's fact findings and recommendations, absent affirmative proof by clear-and-convincing evidence that the findings and recommendations are clearly erroneous. Absent such proof, within ten days after receiving the Board's fact findings and recommendation - the Chief or executive head of the police must impose at least the minimum discipline that the Board has recommended.
If the Chief or executive head of the police force believes that clear-and-convincing evidence exists that would justify disregarding or modifying the Board's fact finding and disciplinary recommendations, within ten days after receiving the Board's fact findings and recommendation, the Chief or executive head of the police force must notify the Board in writing of any refusal or lesser, alternative discipline to be imposed, detailing the reasons and providing the Board with the clear-and-convincing evidence justifying the decision. Precedents, patterns or practices, and discipline predating this Section's effective date cannot constitute clear-and-convincing evidence justifying any decision by the Chief or executive head of the police force to impose lesser discipline than what the Board recommends, or no discipline.
If the Board then does not agree with the Chief's or executive head of the police force's refusal or alternative discipline, the Board, notwithstanding any provisions of Section 119 of this Charter to the contrary, may, in its discretion, overrule the Chief or executive head of the police force, and order either of them to discipline the officer or employee, up to and including termination. The Chief or executive head of the police force must then comply. Regardless of whether the Board orders the officer or employee's suspension for ten working days or less, the Board shall forthwith certify in writing the fact, together with the cause of the discipline, to the executive head of the police force, who will proceed as may be required under Charter Section 119, but consistent with this Section.
The Board must promptly notify complainants of the status, progress, and disposition of their complaints. If the Board determines that the complaint warrants no action, the Board shall so notify the complainant. The Board will ensure, through the Department of Law as appropriate, that complainants' viewpoints are heard in any arbitration process following discipline.
Termination will be the presumed discipline for racist, sexist, anti-LGBTQ+, anti-immigrant, national-origin-based, or otherwise bigoted conduct, slurs, or language used in the course and scope of employment, or, if the officer or Division of Police employee's language is on a matter of public concern, where that officer or Division of Police employee's interest in commenting on matters of public concern does not outweigh the City's interests, as an employer, in promoting the efficiency of the public services it performs through its employees. The pertinent considerations for weighing these interests include whether the language (1) impairs discipline by superiors or harmony among co-workers, (2) has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, (3) impedes the performance of the officer or employee's duties or interferes with the regular operation of the enterprise, or (4) undermines the City or Division of Police's mission.
In assessing the first consideration, City officials must consider the possibility that inaction by the City could be seen as an endorsement of the speech and impair future discipline of similar derogatory statements. In assessing the second consideration, City officials must consider whether the language is reasonably likely to have a detrimental impact on close working relationships within the police force or undermine trust. In assessing the fourth consideration, City officials must consider the need for the City to preserve the appearance of impartiality, the role and responsibilities of the officer or employee, and, when the role is public facing, whether the danger to successful functioning of the Division of Police will increase. This includes making a reasonable prediction about whether the language, when known to the public, would harm the Division of Police's mission; or undermine the community's respect, trust, or perception that the police enforce the law fairly, even-handedly, and without bias.
Notwithstanding the above provisions, consistent with Charter Section 115-5, the Community Police Commission, at its discretion, has the authority to make the final decision for the City about whether to impose officer discipline where it was not imposed, or to increase discipline when the Commission deems it insufficient. The Chief, executive head of the police force, and the Board must notify complainants of their right to seek ultimate review by that Commission.
Nothing in this Section may be interpreted as depriving city employees of due process.
The Chief, the executive head of the police force, the Board, and Community Police Commission must timely and consistently notify complainants about, and afford complainants, the right to be heard in every step of the disciplinary process, without limitation, from investigation, and through hearings, reviews and internal appeals, arbitrations, and court proceedings. Complainants cannot be excluded from being informed about or from being heard during these processes, and have a right to intervene.
The Board, complainants, and any City taxpayer may take legal action to enforce all terms in all Charter sections related to the Board. The Board may opt, if it deems the Director of Law to have a conflict of interest, to engage outside counsel at the Department of Law's expense.
(Effective November 2, 2021)