Citizen's Review Board

Wichita Citizen Review Board Minutes September 24, 2020 4 p.m. City Council Board Room 455 N. Main St, Wichita, KS 67202 Present: Sharon Ailslieger, Dennis Bender, Jay Fowler, Odell Harris, Jr., Jamie Lopez, Shaun Rojas, Timothy Sims City of Wichita Representatives Present: Captain Wendell Nicholson, Jennifer Magaña, Chief Gordon Ramsay, Lieutenant Robert Reichenberger, Sergeant Krys Henderson 1. Call to Order – Chairperson Fowler The meeting was called to order at 4:06 p.m. 2. Approval of Minutes Sims made a motion to approve the August 27, 2020 minutes. Second by Bender. The motion passed unanimously. 3. Public Agenda - 15 minutes is set aside for this portion of the meetings. No one signed up or appeared to present at the meeting for the public agenda. 4. Executive Session Motion by Fowler to move to Executive Session for 15 minutes to receive additional information on the continued review of 19PSB-2391. Item was moved out of order on the agenda to accommodate personnel schedules. Executive Session is necessary, as the discussion will include information involving personnel matters of non-elected personnel, and matters that have a privacy interest of an identifiable individual which are protected under the KOMA rules. Motion passed. Executive Session began at 4:08 p.m. Returned from Executive Session at 4:50 pm. After reviewing the information, the Citizens Review Board did not taken any specific action in regards to the case. 5. Staff Report Update – Captain Nicholson Aug 18 - Sept 13, 2020, the PSB received 17 external complaints and 16 internal complaints. Of those: 1 safety violation, 15 improper conduct, 16 procedural and 1 unnecessary force. Year to date received 161 external complaints and 114 internal complaints. Most frequent classifications for investigations and citations of officers were: 46 rude conduct, 25 good judgement, 26 comply with policy and 28 complete and thorough investigations. Sims asked why the report is titled “Complaints Received Aug 18 – Sept 13,” but includes cases listed with dates received which are outside of the period. It appears those listed in white and yellow are the ones which fall within the date indicated at the top of the report. Fowler clarified that the document is actually a listing of cases received or remaining open. Bender suggested changing the header to reflect accordingly. Sims questioned why there were cases received earlier, but listed as closed. Cases listed in green are considered closed, and were closed within Wichita Citizen Review Board September 24, 2020 Page 1 of 5 the time frame. Bender suggested changing the title to “Complaints Received, Closed or Remaining Open.” Fowler clarified that the last report, titled “Complaints Closed Aug 6 through Sept 8,” is the only report which lists cases for the Board to ask for clarification. 6. Review of WPD FOP Contract – Captain Nicholson Circulated copy of contract for board review. Capt. Nicholson provided brief overview: • Fraternal Order of Police (FOP) is the sole and exclusive representative for the purposes of negotiating collectively with the City of Wichita in regards to wages, hours, benefits and other terms and conditions of employment of the bargaining unit, which includes employees from the rank of crime scene investigator to police sergeant. Ranks above sergeant are not represented by FOP. • Contracts are generally three years, but can be negotiated for shorter terms as deemed by the City Manager in response to an assessment of the economic forecast. • Contract has impact on leaves of absence, promotions, transfers, discipline and grievance. • Officers represented by contract have Weingarten Rights, meaning if the supervisor’s discussion with the officer could lead to suspension or termination or affect the personal working condition, the covered officer can ask a union steward to be present at meeting with supervisor. • Officers sustained for serious violation have the opportunity to a Loudermill Hearing, wherein the employee can present his/her side of the story to the Chief or Deputy Chief even after investigation is complete. • Grievance steps laid out – 1) Go to HR; 2) Arbitration (City/Union each pay 50% of cost); 3) Manager’s consideration of arbitrator’s review; 4) Go to District Judge for review. • Union is selective about what they grieve. Each bargaining unit is unique and different. Wichita’s bargaining unit does not grieve every incident. Since the new FOP president was elected, there have been three officers terminated and no grievances filed. FOP is equally committed to having good officers on WPD. • FOP cannot stop Chief from terminating an employee. Employee has the right to go through the grievance process, but cannot stop termination. Fowler asked if the FOP weighs in formally or informally defining the parameters of conduct. Capt. Nicholson said they do not. WPD supervisors make the FOP steward aware that an investigation is taking place as courtesy only, in case the officer makes contact with the FOP for representation. FOP is present only when the officer requests representation at the meeting with the supervisor which might result in discipline (reference Weingarten Rules). Fowler inquired about the frequency of using the FOP steward during the discipline process. Capt. Nicholson said it depends upon severity of allegation. Sometimes employees receive discipline, and acknowledge the conduct without the need for FOP presence. He indicated that FOP representation is not a hindrance to the investigation. Officer is generally the last person spoken to in the steps of the investigation, and FOP can be present at that interview. Bender asked if participation was optional and if an estimated membership rate could be provided. Lt. Reichenberger said the membership is optional, but estimated 85% of eligible employees are members of FOP. He also stated that other officers not eligible for membership sometimes still join to support charitable work of the organization. Wichita Citizen Review Board September 24, 2020 Page 2 of 5 Sims asked if having the contract is optional, referencing a report from Minnesota where City cut ties with the Union. Capt. Nicholson could not answer the question, deferring to the Manager and Law department, but did say one of the main reasons for the negotiation is wages. Fowler said some employers view the FOP as valuable because it provides a structure. Sims stated that because they were public employees they did not necessarily need a union. Capt. Nicholson said the contract has proved helpful with transfers, and when specialty unit positions open so that everyone is following a uniform manner. Rojas inquired about the numbers listed on the back of the contract copy provided for Board review. Capt. Nicholson explained those are pay steps for individuals represented in agreement. Sims clarified that the agreement was only for commissioned officers. Capt. Nicholson explained that non-commissioned employees and lieutenants are represented by Service Employees International Union (SEIU). 7. Discussion of Criteria for Determination of Classification of Incidents or Complaints – Chairperson Fowler This discussion will address factors the WPD or Professional Standards use to categorize conduct or complaints and how the classification of the conduct may impact the review or findings. Monthly reports list complaints identified with classification types (e.g. excessive force, improper conduct, ongoing, procedural violation, safety violation or unnecessary force) and sub- classification types (e.g. committing a crime, conduct unbecoming departmental integrity, use of good judgement) and a long list of other types. Fowler asked if the Professional Standards Bureau has a standard for putting reviews into a particular type. Some are obvious classification, but others are more unclear (e.g. use of good judgement vs. conduct unbecoming). Capt. Nicholson started by saying the policy and procedure manual includes information on this. Keely is working to get copies of the policy and procedure manual to the CRB members. He agreed, some incidents fit the definitions clearly. In general terms, Capt. Nicholson outlined the investigation process is as follows: 1) Allegation made against officer 2) Sergeant or Lieutenant notifies superior and decides next steps. 3) Classification determined by lieutenant (or supervisor) and Focus Letter generated. 4) Officer is notified allegation was made and given a copy of the focus letter. 5) Witness letters sent to attest to the veracity of the complaint. 6) Supervisor schedules interviews with witnesses. 7) Lieutenant performing the investigation does a finding of fact, creating a list of all contributing factors. 8) Interview with officer is last. All documents shared with officer for review prior to meeting. 9) Levels of internal review are commensurate to classification: a. Classification A’s, B’s, C’s looked at by Captain and Deputy Chief. b. Classification D’s, E’s and F’s looked at by Captain, Deputy Chief and Chief. 10) Once the file is complete, the determination is made and recommendations stated. Captain begins process, but may be overrode or changed by Deputy Chief and Chief. Wichita Citizen Review Board September 24, 2020 Page 3 of 5 Many different subcategories available, but may be another regulation which fits a particular allegation. Possible to be investigated and sustained for something less serious and sustained for something more serious. Rojas asked if when the complaint is made, how much information is given about the types of complaints which could be made. Capt. Nicholson explained that the individual completes complaint form, and then the WPD determines category. Fowler asked when Professional Standards becomes involved. Capt. Nicholson said classifications A, B or C are handled in the field by the bureau in which you work. More serious classifications are handled by PSB. Effectively approximately one year ago, PSB now serves as finders of fact only and no longer makes recommendations as to what the discipline should be. Commanders determine discipline levied based on the investigation results. Sims pointed out that when a citizen files a complaint and states a classification, the WPD appears to change the classification for some but not all complaints. Capt. Nicholson said that what is written on the complaint, including a specific allegation, will be included in the final investigation. Sims stated concern that re-wording the allegation classification could create a misstatement or an error. Fowler cautioned that as a matter of policy, specifics of a particular case would need to be discussed in Executive Session. Lt. Reichenberger explained that the PSB uses a language which encompasses the complaint. Not all persons filing a complaint use wording which exactly fits into the categories, and therefore the PSB does not use the complainant’s actual words. Sims objected that PSB is using their own language in the description of the complaint, thereby rewording the complainant’s words. Fowler clarified that the focus letter is accompanied by a copy of the original complaint from the individual. Lt. Reichenberger confirmed that the focus letter is a brief summary of the violation and notification of the violation and the complainant’s version and language is always a part of the investigation book. Sims reiterated that rewording may change of the allegation. 8. Executive Session – Review of 2 Complaints/Investigations Fowler made a motion to recess into Executive Session for thirty minutes to receive information on 18PSB-3291, the subject of which is identified in the agenda, and 20PSB-2126, the subject of which is identified in the agenda. Executive Session is necessary because the discussion relates to personnel matters of non-elected persons and matters related to privacy interests. Executive Session will conclude at about 6:00 pm. Motion approved. Executive Session began at 5:20. Returned from Executive Session at 6:15. Fowler stated that after reviewing the two cases, the board takes no actions and makes no recommendations. 9. New Business – Chairperson Fowler Next meeting date October 22, 2020 in the City Council Board room. Sims requested a list of cases pending review. Fowler said he received a request for review of 20PSB-3588, a domestic violence case. Sims requested 20PSB-1214 be listed for review. Rojas stated he had the experience of interviewing four new police recruits. He suggested this may be an opportunity available for members of the public to participate, and would be a good Wichita Citizen Review Board September 24, 2020 Page 4 of 5 chance for the CRB members to observe questions asked of the police recruits and the interview process. Bender asked Capt. Nicholson about Goddard Police Department serving as the cooperating agency in the investigation of a WPD officer, rather than the Sedgwick County Sheriff’s Office. Capt. Nicholson clarified that the case is a misdemeanor, and explained that there is a MOU in place with other law enforcement agencies for this purpose. Sims extended appreciation to Capt. Nicholson and WPD staff assisting the members of the Citizen Review Board in a constructive and productive manner. Members stated agreement. 10. Adjourn Rojas made a motion to adjourn. Second by Sims. The motion passed unanimously and the meeting adjourned at 6:19 p.m. Minutes respectfully submitted by Tina Payne, Administrative Aide II, City Manager’s Office. Wichita Citizen Review Board September 24, 2020 Page 5 of 5