September 17, 2015

Mayor Tom Butt’s response (copied below) to my September 14 editorial contains many inaccuracies and reinterprets a 31 year old statute to justify violating the rights of citizen complainants, in this case a bereaved family seeking an independent investigation into their son’s death from an officer involved shooting. Even worse, in a city where very few residents are actually aware of the Police Commission, he threatens to remove the one safeguard that allows late complaint submittals. I won’t let him, not without a fight, so let’s deconstruct his house of cards.

Mayor Butt is incorrect, the Police Commission has more than just two powers, it also hears appeals from RPD investigations that don’t involve force or racial abuse. If you believe an officer was rude to you while writing a citation and RPD disagreed with your complaint, you can still appeal to the Police Commission. The Commission is also charged with performing such other duties as requested by the City Council.

The Police Commission has only two powers (1) Review and evaluate the policies, practices and procedures contained in the Richmond Police Department Manual and develop programs and strategies to promote positive police-community relations and make appropriate recommendations to the Chief of Police, and (2) Receive, investigate and hear complaints against Richmond Police officers alleging the use of excessive or unnecessary force or racially abusive treatment and submit recommendations to the City Manager and Chief of Police in accordance with … guidelines.

Mayor Butt’s assertion that I believe 45 days insufficient to file a complaint is also wrong. It is an extraordinarily short window but, as I wrote, the ordinance specifically includes a saving clause allowing late complaints if it they are due to “mistake or excusable neglect”. As long as this exists I believe the 45 days is sufficient and Mayor Butt knew this days ago:

Hunziker thinks 45 days is too short a time and described the response as “out of order” and “absolutely reprehensible,”

Mayor Butt is again incorrect, the Perez family filed their complaints 6 months after the incident, not 8:

Despite the fact that the complaint ultimately filed by the Perez family some eight months after the incident was deemed tardy,

Mayor Butt is grossly mistaken when he writes there is no evidence to support the Perez family’s late complaint submittal was due to mistake or excusable neglect. The Perez family has spoken in many public forums since May 2015 about how they did not learn of the Police Commission until recently. In her submitted complaint of March 23, Pedie’s grandmother explains they had just learned these forms existed. In the father’s June 30 letter to the City Attorney he pleads for reconsideration of the complaint denial citing a bereaved state of mind. These are handwritten documents from the family, not some grandstanding attorney, and Mayor Butt’s assertion that their lawyer should have advised them better is cold blooded and completely speculative:

Without any supporting evidence, Hunziker intimated that a claim was not filed because of a “mistake or excusable neglect.”

The Perez family may not have had detailed knowledge about the Police Commission or the procedures for filing a complaint, but they had retained high profile attorney John Burris by at least September 30, 2014, only two weeks after the incident and well within the 45-day window for filing a complaint with the Richmond Police Commission (“Famed civil rights attorney John Burris to sue city and officer on behalf of Perez family,” September 30, 2014). There is no excuse for Burris not being familiar with the Richmond Police Commission. That’s his job.

Mayor Butt claims I seek an outcome not provided by the ordinance and again that is untrue - I seek strict compliance with the ordinance. My primary goal is to ensure citizen complainants retain the rights written into the statute, specifically the right to a late submittal under the circumstances listed. As I wrote previously, there is precedent for the Commission voting on late claims and, to date, the City Attorney has still not provided access to past files so I can determine exactly how many such instances have occurred over the years.

Mayor Butt also emphasizes that the late submittal exemptions are “guidelines”, implying they can be ignored by the CIAO if the complaint is not timely. This is certainly not the intent nor the letter of the ordinance and seriously jeopardizes the rights of Richmond residents, most of whom are completely unaware of the Commission’s existence. However, it also paints Mayor Butt into a very tight corner since the very same “guidelines” (3.54.080.b) that allow for late submittals also give the CIAO the “sole discretion” to accept or reject claims. You can’t have it both ways Tom.

The late filing was not waived by the  Police Commission Investigative Officer in strict compliance with the ordinance, Hunziker wants an outcome not provided for in the enabling ordinance. The short story is that the Police Commission Investigative Officer (often referred to as the Confidential  Investigation and Appeals Officer – CIAO) has the sole discretion to accept or reject a late claim. This decision is not within the Police Commission’s purview.

The “guidelines” listed in the ordinance include the determination of timely filing of a complaint. If a complaint is not deemed timely filed, there is nothing for the Police Commission to investigate and no basis for agendizing even a discussion of the complaint.

Mayor Butt even seeks to silence the Police Commission and squash the rights of citizens to fair and objective handling of their complaints. If a complaint is rejected and the complainant later speaks before the Commission and alleges administrative mishandling, fairness demands that the Commission launch an inquiry, which is exactly what the Commission attempted to do:

The Police Commission has no authority to even agendize a discussion of the claim once it no longer exists.

Finally, we come to the part where Mayor Butt tries to play gotcha and absolve the City of wrongdoing: 

The Police Commission Investigative Officer rejected the late claim via email to Assistant City Attorney Bruce Soublet on May 21, 2015. That decision was conveyed to the Police Commission by the city attorney on June 3, 2015.

Hunziker’s editorial was based on erroneous information and, unfortunately, falsely vilified members of the City Attorney’s Office who were simply following the law and doing their job

Members of the Police Commission believed, for obvious reasons, that the Perez complaint was rejected by the City Attorney. After all, the letter was sent to the complainant by the City Attorney, on his letterhead, written by him, signed by him, and then emailed by him to the Commission and the CIAO as an FYI. It wasn’t until September 16 that the City Attorney disclosed to the Commission that the CIAO had actually rejected the claim. Here’s why that’s irrelevant and the City is still unlawfully blocking the proper and ethical administration of this complaint:

Dodging Civilian Oversight: In violation of the RPC Operations Manual, the CIAO failed to notify the Commission of his receipt of the March 23 complaint. Against previous direction of the Commission to inform them before issuing any denial letters, on May 21 the CIAO sent one to the City Attorney instead of the complainant (which has never happened before) and did not inform the Commission. And finally on June 3, the denial letter was written and sent to the complainant by the City Attorney. Only then did the Commission learn that the Perez complaint ever existed. 

Invalid Complaint Rejection: The CIAO is required by statute to determine if the cause of a late complaint was due to “mistake or excusable neglect”. Not only is the Perez complaint denial letter silent on this determination, the CIAO himself admitted in the July RPC meeting that he had not inquired about this and had no idea what criteria to apply. The CIAO’s rejection, as emailed to the City Attorney, claimed extent of tardiness as the grounds for denial, which is not a valid reason. The statute’s exemption for late submittals measures cause, not time. 

Justice is still denied in Richmond. The complainant’s rights to due process have been violated and the City’s rejection of the Perez claim is invalid. The Commission was kept completely in the dark on a complaint that involved a questionable fatality while the CIAO and City Attorney collaborated behind the scenes to issue a denial. That’s unlawful, it’s unethical, and it makes a mockery of Richmond’s system of independent police oversight.

I believe the Perez complaint is still very much open and urge our City Council to consider the recommendations in my September 14 editorial. Once we have a new CIAO and have clarified what constitutes mistake or excusable neglect, we can hand the complaint over to the investigator and let him or her proceed as the Police Commission ordinance originally intended.

Felix Hunziker is a Richmond Police Commissioner and Past Chair. These opinions are his own and do not represent an official position of the Richmond Police Commission.

TOM BUTT E-FORUM: Accuracy Denied in Richmond? 

On September 14, 2015, Felix Hunziker published an editorial, “Justice Denied in Richmond,”in the blog Radio Free Richmond, which is copied in its entirety at the end of this email. The RPA apparently shares Hunziker’s opinion, having subsequently published it in their blog.

Because Hunziker serves on the Richmond Police Commission, his opinion carries a certain cachet, and because his opinion is based on inaccurately stated facts, it deserves correction.

Preliminarily, I want to be clear that I believe this incident was a tragedy in every respect for everyone involved, an opinion voiced even by Chief Magnus. 

The department continues to view this incident as a tragedy and we appreciate that the Perez family is still grieving.  We remain committed to providing as much information to the family and the public as we can legally disclose.”

The enabling ordinance for the Police Commission is Richmond Municipal Code Chapter 3.54, which dates back to 1984 (Ordinance 15-84, N.S.) and has been amended several times, most recently 1998. It was originally adopted in response to litigation over police killings and a “violence-prone group of officers known as ‘Cowboys.’” (http://www.nytimes.com/1983/02/13/us/antipolice-suit-focuses-on-a-town-s-ills.html). Eventually, a Federal Court awarded $3 million in damages to the families of the slain men (http://www.nytimes.com/1983/07/07/us/racial-problems-continue-in-a-california-city.html ).

The crux of Hunziker’s complaint is that the family of Richard “Pedie” Perez has been unsuccessful in using the Richmond Police Commission as a venue for investigation of the killing of Mr. Perez by a Richmond Police Officer.

The Police Commission has only two powers (1) Review and evaluate the policies, practices and procedures contained in the Richmond Police Department Manual and develop programs and strategies to promote positive police-community relations and make appropriate recommendations to the Chief of Police, and (2) Receive, investigate and hear complaints against Richmond Police officers alleging the use of excessive or unnecessary force or racially abusive treatment and submit recommendations to the City Manager and Chief of Police in accordance with … guidelines.

The “guidelines” listed in the ordinance include the determination of timely filing of a complaint. If a complaint is not deemed timely filed, there is nothing for the Police Commission to investigate and no basis for agendizing even a discussion of the complaint.

Despite the fact that the complaint ultimately filed by the Perez family some eight months after the incident was deemed tardy, and the late filing was not waived by the  Police Commission Investigative Officer in strict compliance with the ordinance, Hunziker wants an outcome not provided for in the enabling ordinance. The short story is that the Police Commission Investigative Officer (often referred to as the Confidential  Investigation and Appeals Officer – CIAO) has the sole discretion to accept or reject a late claim. This decision is not within the Police Commission’s purview. The Police Commission Investigative Officer rejected the late claim via email to Assistant City Attorney Bruce Soublet on May 21, 2015. That decision was conveyed to the Police Commission by the city attorney on June 3, 2015. The Police Commission has no authority to even agendize a discussion of the claim once it no longer exists. 

Hunziker has some issues with the content of the enabling Ordinance for the Police Commission, and perhaps it should be amended. But only the City Council has that authority.  

Hunziker is a member of the Richmond Police Commission, and he knows that the Police Commission has to follow the law. Hunziker accurately quoted the enabling ordinance for the Police Commission about the prescribed time for filing a complaint:

Per the RPC ordinance, citizens have 45 days following an incident to file a complaint alleging racial abuse and unnecessary or excessive force. This is an extraordinarily short timeframe to file a complaint to a board that most residents have never heard of or believe is associated with the Police Department. Fortunately the statute contains a saving clause, allowing the CIAO to accept and investigate late complaints if “the complainant establishes to the Investigative Officer’s satisfaction that the failure to file the complaint within the required time limit was due to mistake or excusable neglect.” 

Without any supporting evidence, Hunziker intimated that a claim was not filed because of a “mistake or excusable neglect.”

Mistake or excusable neglect — such as not knowing the Police Commission existed? According to their numerous public statements, that’s precisely what happened with the Perez family. They did not file a complaint with the RPC until March 2015, six months after the death of their son.

The Perez family may not have had detailed knowledge about the Police Commission or the procedures for filing a complaint, but they had retained high profile attorney John Burris by at least September 30, 2014, only two weeks after the incident and well within the 45-day window for filing a complaint with the Richmond Police Commission (“Famed civil rights attorney John Burris to sue city and officer on behalf of Perez family,” September 30, 2014). There is no excuse for Burris not being familiar with the Richmond Police Commission. That’s his job.

In any event, the decision to allow a late complaint lies solely with the Police Commission Investigative Officer, not the Police Commission, and the Police Commission Investigative Officer subsequently disallowed the claim, as communicated to the Police Commission and quoted by Hunziker:

“I am writing in response to your recent Citizens' Complaints filed with the Richmond Police Commission concerning the fatal Officer Involved Shooting on September 14, 2014. Richmond Municipal Code Section 3.54.080(b)(3) provides that no complaint may be accepted, investigated or heard if it is not filed within forty-five (45) days of the incident. Moreover, this incident has already been investigated both by the District Attorney and by a neutral investigator retained by the City. Additionally, this matter is the subject of active litigation by attorney John Burris. Even if these complaints were timely, and they are not, I am doubtful that a third investigation, in addition to Mr. Burris's efforts, would add any value.”

Hunziker thinks 45 days is too short a time and described the response as “out of order” and “absolutely reprehensible,” but the appropriate response would be to ask the City Council to amend the ordinance instead of criticizing the City Attorney’s Office for “unlawful subversion of the Police Commission’s authority.” 

Hunziker wrote:

This is an extraordinarily short timeframe to file a complaint to a board that most residents have never heard of or believe is associated with the Police Department. And that’s where our system of independent civilian oversight broke down, beginning with the City Attorney’s unlawful subversion of the Police Commission’s authority.

This edict is not only out of order, it’s absolutely reprehensible for the City Attorney to suggest that investigations into police shootings by the District Attorney and police department render independent citizen review unnecessary, especially in a city that established a board specifically for that purpose. DA’s are prosecutors and, not surprisingly, have generally positive relationships with cops. No sane person believes a complaint against a police officer would receive an objective review unless every fragment of doubt was removed.  

There may be good reasons for the Police Commission ordinance to be reviewed and amended by the City Council, but until that is done, the Police Commission ordinance was followed in every respect, and the Commission was properly advised by the City Attorney’s Office.

Hunziker’s editorial was based on erroneous information and, unfortunately, falsely vilified members of the City Attorney’s Office who were simply following the law and doing their job.

Tom Butt