Following the defeat of a citizen task force’s proposal for a police oversight commision at a City Council meeting on Oct. 1, legal questions remain regarding aspects of the citizens’ draft and changes in Ann Arbor Mayor Christopher Taylor’s counter-proposal.
The citizen task force drafted a proposal that would create a citizen-led police oversight commission with the power to subpoena records and officer testimony, as well as the ability to examine “any AAPD (Ann Arbor Police Department) information and records,” according to the ordinance.
Calls for police oversight gained momentum following the 2014 death of Aura Rosser, a mother of three who was fatally shot by Ann Arbor police officer David Ried. City Council appointed the task force in January to offer recommendations for the formation of an independent commission to review the practices of AAPD. The task force submitted their proposed ordinance for consideration during a work session in September.
Three councilmembers introduced the citizen task force’s ordinance. Councilmember Sumi Kailasapathy, D-Ward 1, one of the sponsors of the ordinance, said it was the most democratic ordinance she had seen in her six years on the council, though she did say she didn’t feel the proposal was perfect.
The proposal was defeated by the council in a 5-4 vote. The council voted to advance Taylor’s competing ordinance in an 8-1 vote, with only Kailasapathy voting against it, saying it was a “watered down” version of the citizen task force’s version.
“Somebody feels like something is better than nothing, but sometimes that something actually undermines the credibility and the trust that the community needs to have in this commission,” Kailasapathy said. “That’s my rationale.”
Since the vote, Taylor said his ordinance retained most of the important aspects of the citizen’s proposal while ensuring that it adhered to the city charter and AAPD’s collective bargaining agreements.
“It is very important to me that we have an effective, trusted and legally defensible police commission,” Taylor said. “We received the task force’s proposed ordinance. What I did is I went through that ordinance with the city attorney’s office and strove to take as many of the policy recommendations as would meet that standard and strove to put them into law.”
The defeats of the citizen’s proposal angered the task force’s supporters, who began chanting, “Who do you protect? Who do you serve?” as supporters of the task force walked out of the meeting.
In response to the legal questions concerning the police oversight commission at the meeting, task force co-chair Rich Friedman challenged the council to have more patience before discarding the citizens’ proposal.
“With some of the parts where people are very dissatisfied, I think we just have to say, ‘Well, let’s see how it works,’” Friedman said. “Let’s see if the city does what it says it’s going to do. Let’s see if the police department does what it says it’s going to do.”
In both ordinances, the commission would have 11 voting members, including a youth member, with two councilmembers acting as non-voting liaisons. Members would be appointed by the City Council liaisons and approved by City Council. Active duty police officers and city employees are ineligible to sit on the commission, with the task force’s ordinance extending the ban to include any former employees of or “regular contractors” with the city or “any police department.”
The commission in each case would be able to initiate its own review of AAPD practices and conduct, as well as retain independent counsel subject to approval by City Council. Additionally, people filing complaints could choose to remain anonymous.
However, in the task force’s ordinance, the commission could withhold complaints from AAPD, which could potentially conflict with the department’s union contract.
Nancy Niemela, who works at the City Attorney’s Office, said the police department’s collective bargaining agreement requires that employees are notified of complaints against them within two weeks of when the city receives the complaint.
“It provides certain timelines for that investigation, it provides certain disciplines that can be imposed on the officers and then it goes on and provides the grievance process after that, with respect to how the grievance proceeds and then goes to arbitration,” Niemela said.
Taylor’s ordinance avoids this issue by giving residents the option to “transmit information” to the commission through community liaisons instead of filing a direct complaint.
In an email, Leslie Stambaugh, the chair of the Human Rights Commission, which assembled the citizen task force appointed by city council, said while she would have like more assurances that the oversight board will have access to any information it requests.
“I think what is offered is a very good start,” Stambaugh wrote. “Experience will reveal what more is needed and hopefully will also demonstrate the value it would provide.”
The mayor’s proposed ordinance and the ordinance created by the citizen task force both explicitly state the police oversight commission is expected to operate independently of City Council and other arms of city government. However, a memo from City Attorney Stephen Postema cast doubt on just how much autonomy the council could award the police oversight commission.
Postema argued any commission created by the council “is part of the City” from a legal perspective, meaning the commission would not be an independent legal entity.
“Any ‘independence’ by the Commission would be, as with any board or commission, limited to operating the commission within the parameters of any resolution or ordinance setting up the Commission,” Postema wrote.
As a result, the police oversight commission would be subject to the same legal constraints as the rest of city government. That includes the city charter, existing laws and collective bargaining agreements with AAPD employees.
According to Postema, the subpoena power given to the commission by the task force’s proposal is problematic because the city charter does not explicitly give the council this power.
“Because the City Council may not have this power, it would not have the authority to delegate such power to a Commission,” Postema wrote.
Taylor’s ordinance does not include subpoena power. It also differs from the task force’s ordinance in that it states that an investigation undertaken by the commission must begin after AAPD completes an internal investigation.
Kailasapathy took issue with the prohibition on concurrent investigations during discussions at the City Council meeting, and supported allowing simultaneous inquiries.
“I don’t think it’s the intention of the commission to be getting in the way,” Kailasapathy said. “It’s almost two parallel tracks.”
Niemela said there was nothing barring concurrent investigations in the AAPD collective bargaining agreements because “it’s never been an issue before.”
Despite the criticisms from the task force supporters, Taylor said he was hopeful his ordinance would be able to foster trust in the community between residents and law enforcement. The council will take up the issue of funding for the police commission in Taylor’s ordinance at the City Council meeting on Monday.
“I believe that we all share the same goal,” Taylor said. “I believe that we all want a policing commission that provides meaningful commissioner oversight of the police department, and that the commission that will result from the ordinance up for consideration on Monday will have that result. I believe that we all share the same goal of making sure that Ann Arbor police and the citizens that they serve have a common trust and understanding.”