(a) Purpose/Scope of Hearing.
(1) The Board shall hear each case during regularly scheduled meetings at which a quorum of members is present. The Board may hear more than one case during a scheduled meeting.
(2) The purpose of this hearing is to review the case pursuant to the procedures set forth in this chapter, in order to reach a recommendation for each allegation identified by the Board members during their review of the case, pursuant to division (f)(2) of this section.
(3) The hearings shall be open to the public but shall not be required to be recorded and broadcast on any medium by video.
(b) Standard of Proof - Dispositions.
(1) No finding with respect to an allegation of a case shall be sustained unless it is proven by a preponderance of the evidence that an act or omission is violation of a policy and/or procedure of the Division of Police.
(2) For purposes of applying the "preponderance of the evidence" standard of proof, officer performance must be evaluated against the policy, procedure, or training that was in effect on the day that, or during the relevant time period during which, the incident occurred.
(c) Presentation of the Division of Police Findings.
(1) At the outset of the public hearing on a complaint, the Division of Police, through a designated representative, shall present the findings of the internal investigation.
(2) The Presentation of Findings shall consist of the following:
A. The Division of Police investigator who was assigned the case and completed the Division of Police investigator's summary shall provide a list of the allegations investigated by the Division of Police, a summary of their investigation, and the Division of Police Administrator's findings and conclusions to the Board. This summary will not necessarily inventory all evidence and investigatory material but should, at minimum, outline the nature of the complaint, the nature of the allegations involved, and the material evidence and facts established by the investigation.
B. Following the investigator's summary, Board members shall pose any questions they may have for the Division of Police relating to the investigation or the findings and conclusions.
C. The Division of Police investigator is not subject to questioning by the complaint or his representative.
(d) Presentation of Evidence.
(1) The complainant shall be entitled to be represented by legal counsel at the hearing and may, with or without the aid of legal counsel, present evidence, including the testimony of witnesses, in support of the complaint.
(2) The Board may, in its discretion, determine that evidence presented is not relevant to the complaint, and, therefore, may exclude the same.
(3) Testimony.
A. In order to fulfill the Board's responsibility for the accurate collection of truthful testimony in official proceedings, it shall have the power to record testimony by videotape, audiotape and/or stenographic transcription.
B. All testimony given before the Board shall be given under oath.
C. The Division of Police shall cooperate with and make a good faith effort to accommodate the Board's request for police personnel to testify at such hearings regarding any specified matter under review. Any member who is on duty and called as a witness shall be released with pay in order to attend the hearing. Any member who is off duty and called as a witness shall be compensated in accordance with the provisions of the applicable collective bargaining agreement for court testimony. The calling of witnesses shall not unduly interfere with departmental operations.
(4) The City Attorney shall be present for the public hearing and may ask questions of witnesses and/or present evidence relevant to the complaint.
(5) The subject employee and/or her or his attorney or representative shall have the opportunity to confront and cross examine any witness who presents testimony before the Board.
(e) Executive Session.
(1) Following the presentation of the cases, the Board may go into Executive Session. During discussions that occur in the Executive Session, no individuals or entities who are not either Board members, Board staff, or the duly elected City Attorney may be present in the room unless invited by the Board. The Board may invite the Division of Police Administrator designee to remain during executive session discussions on cases in order to provide advice and consult.
(2) The Board's discussion shall address the following questions:
A. Findings and evidence that tend to support the Division of Police recommendation;
B. Findings and evidence that tend to not support the Division of Police recommendation;
C. The relevant case law, statutes, and the Division of Police policies, procedures, and training;
D. Whether the Division of Police investigation tends to support the allegation by a preponderance of the evidence. The "preponderance of the evidence" means that, based on all of the evidence, it is more likely than not that a violation has occurred;
(3) When the City Attorney determines that the questions in division (e)(2) have been discussed in their entirety, the City Attorney shall instruct the Board members to end the executive session and return to public session.
(4) Upon completion of deliberation of one case, the Board shall consider all other cases on the meeting's agenda.
(f) Adjudication of Cases.
(1) After consideration of all cases identified prior to the meeting on the meeting Agenda, the Board shall move into the voting process. The Board shall move from the Executive Session back into a regular, public session only (1) upon completion of consideration of all issues presented in the Hearing for all cases on the meeting's agenda, and (2) upon motion by the Chair or another Board Member.
(2) Categories of dispositions: The Board shall vote on a recommendation of one of the following findings for each allegation:
A. Sustained: Preponderance of the evidence supports a finding that the alleged conduct occurred and the officer's actions were inconsistent with law or the Division of Police policy, procedure, or training. A complaint may be "sustained in part" if the investigation revealed sufficient evidence to support a finding of a policy violation on one (1) or more, but not all of the complainant's allegations. A complaint may also be "sustained for a violation not based on original complaint" if the investigation reveals evidence of misconduct that was not included in the complainant's original allegation but arose out of the incident that is the subject of the complaint.
B. Exonerated: Preponderance of the evidence supports a finding that the alleged conduct occurred but the officer's actions were consistent with law or the Division of Police policy, procedure or training.
C. Unfounded: Preponderance of the evidence supports a finding that the alleged conduct did not occur.
D. Insufficient evidence: Preponderance of the evidence fails to establish whether or not the conduct occurred.
(3) Standard of disposition: The Board shall apply the "preponderance of evidence" standard of proof, set forth in division (b) of this section, to each and all of the allegations identified in the investigative file.
(4) Voting.
A. Disposition votes shall be public.
B. Decisions of the Board shall be made by majority vote.
C. In the event of a tie vote, the Board will return to the executive session to deliberate further. If a majority vote cannot be achieved, the Board will recess the case until its next meeting and deliberate anew.
(g) Recommendations: The Board shall make no recommendation regarding potential discipline with regard to a "Sustained" finding.
(h) Final Summary.
(1) The Board Chair, in consultation with the City Attorney and consistent with the recommendation of the Board, shall prepare a Final Summary with respect to each case or matter under consideration, which shall be presented for approval at the next scheduled Board meeting.
(2) The Final Summary shall include the Board's disposition and a brief outline of the evidence that the Board concluded tended to support the disposition and/or recommendation. If the Board's recommended disposition departs from the Division of Police's recommended disposition, the Final Summary shall also include a written justification for the departure.
(3) Any member who does not concur with the recommendation of the Board may prepared a separate dissenting summary for review and consideration at the next scheduled meeting of the Board.
(4) If the Board issues a Final Summary with a "sustained" finding, such finding shall have no binding effect on the Division of Police or Mayor. If the Mayor and the Division of Police, upon receiving and reviewing the Final Summary, determine that there has not been a violation of an established policy or procedure or are unable to take further action due to the time limits imposed by the applicable collective bargaining agreement, the Final Summary shall not be included within a subject employee's personnel file.
(Ord. 74-2020. Passed 10-12-20.)