Special Report: DPS Oversight Committee may be in violation of state law

By Stephanie Steinberg, Daily Staff Reporter
Published November 16, 2009

The Department of Public Safety Oversight Committee was created to hold the campus police accountable.

But widespread negligence of internal policies and of the state laws from which those policies are derived raises important questions about how well the body is fulfilling its role.

The Michigan state legislature gave four-year public universities the right to form their own campus police forces in 1990. The act granted campus police the same authority as state police but just within universities’ jurisdiction. As a condition, the law required each institution to create an oversight committee to act as a check on their respective police departments — a committee that can make recommendations for disciplinary actions against officers.

Section 390.1511 of the law, Public Act 120 of 1990, also specified that these committees must be composed of two students, two faculty members and two staff members, all “nominated and elected by the faculty, students, and staff of the institution.”

At the University of Michigan, the Department of Public Safety was created in 1992 and the corresponding DPS Oversight Committee was created the same year to meet the requirements of this state law. A governing set of bylaws was also created to guide the committee’s work and election procedures.

Since then, the DPS Oversight Committee’s track record has shown that in several crucial respects it is neither meeting the requirements of the state law nor following its own procedures. Potential problems exist in the election of representatives from each of the groups, the fulfillment of the necessary student representation, the frequency of the committee’s meetings and the number of grievances reviewed each year.

This catalog of systemic problems calls into question whether a committee tasked with holding the campus police accountable has fulfilled that role and whether it even can.

A LACK OF STUDENT REPRESENTATION

Many of the most serious concerns about the DPS Oversight Committee rest with the two seats devoted to students.

Sometimes vacant for months at a time and arguably filled in a way that violates the provisions of the state law, the two student seats on the committee have historically been mishandled by the committee and by the Michigan Student Assembly, which has been tasked with filling the seats.

Since the committee’s establishment, a formal election involving all students at the University has never occurred, according to MSA President Abhishek Mahanti. Instead, already-elected MSA representatives are appointed to the committee based on an internal application process and assembly-wide confirmation.

Stephen Hipkiss, chair of the DPS Oversight Committee and facility manager at the Harlan Hatcher Graduate Library, said this is warranted because the student body elects MSA representatives.

“The thought there is that they are in fact elected,” Hipkiss said. “They’re elected to MSA, and MSA selects them from there.”

When presented with the state statute and a description of the University’s current practices, independent attorneys The Michigan Daily spoke with disagreed with this theory.

According to David Einstandig, an attorney for Thav, Gross, Steinway & Bennett P.C. in Bingham Farms, Mich., the practice of MSA representatives electing the committee members doesn’t comply with the state statute.

“(The statute) doesn’t say elected by the ‘student representatives,’ it says the ‘students,’” Einstandig said. “It appears that the law is not being complied with. The statute appears not to give the right to elect to MSA. The right is given to the student body. MSA is not the student body.”

Jonathan Jones, an attorney who practices in Southfield, Mich., had a similar stance. He said that state law dictates that all students participate in the election and that the appointment of representatives by MSA denies students their right to vote.

“Unless it’s placed in a formal ballot where the entire student body has an opportunity to nominate someone and/or vote for nominated candidates, then the students are being deprived of the voice that the statute gives them,” Jones said.

Currently, student body-wide elections for MSA happen twice a year.

Einstandig said the University could solve the student voting issue by creating a similar process to elect student representatives on the DPS Oversight Committee.

Mahanti disagreed with the feasibility of holding an election specifically for representatives to the DPS Oversight Committee. If MSA were to do this, he said, it would also have to organize an election for representatives serving on other University committees and that the election would not generate many votes.

“We have enough problems as it is getting voter turnout and enough candidates to fill our slates,” Mahanti said of the election of members to the assembly itself.

But while the lack of student body-wide elections compromises the true representation of students on the committee, the gap between the graduation of representatives in a particular year and the appointment of new students to the committee eliminates that representation altogether.

Former MSA representative Bret Chaness was a DPS Oversight Committee representative who also chaired the MSA Campus Safety Commission. He graduated last December, leaving one student seat on the committee vacant for more than four months — until Cassie Feldman, the other student representative, graduated in May. From that point until Nov. 3 of this year, there were no students on the committee.

In an MSA meeting Nov. 3, the assembly voted to approve two new student representatives: LSA junior Hemant Chaparala and Engineering sophomore Prithvi Murthy.

Chaparala said last week that he was not aware there was no student representation on the committee in previous months. He said the student voice is “critical” to achieve accurate representation of opinions when discussing grievances against DPS.

Because there is no formal process to replace graduating student representatives, it is not clear whether the DPS Oversight Committee or MSA is responsible for making sure the seats are filled. As a result of that confusion, the seats often stay unfilled for extended periods of time.

In an interview late last month before the new representatives were appointed, MSA Administrative Coordinator Anika Awai-Williams said she didn’t know if the student positions had been filled.

Williams said University administrative committees — like DPS Oversight — sometimes inform MSA that they are in need of representatives. But the committee had not done so, which Williams said is why the seats may have been vacant.

“If these seats are vacant … I would say it’s most likely because the DPS Oversight Committee has not informed us that we need to seat MSA representatives for their committee,” she said.

However, Hipkiss — who has chaired the committee for the last 10 years — said late last month that the committee had been waiting to find out from MSA who the replacements would be weeks before the appointments occurred.

Chaness said student vacancies on the committee don’t cause a problem unless a major complaint is filed during the transition period.

“I hope that somebody on MSA is getting word if there has been a complaint or anything, and I hope that they would ask for a student representative before they took further action,” he said, “but unless something comes up, it’s not an issue.”

Yet two grievances did appear before the committee during the six months when both student positions were vacant. Since there were no alternate student representatives, Hipkiss said the committee met with only four members to discuss the grievances.

Einstandig said the University appears to be violating state law by having only four members serve on the committee for half a year.

“It appears then that the requirement of the committee — (the statute) says ‘shall,’ and shall means it must — include two students, and therefore the committee is functioning contrary to the requirement in the statute,” he said.

Mahanti said what occurred this summer was a “special case” and that in the past, both members have not graduated in the same year. But Mahanti said he understands the concern about not having students on the committee.

“In this special case, I do think it’s kind of inappropriate to not have student representation on a committee that does need student representation,” he said.

He added that MSA would try to amend the problem so it doesn’t continue to occur.

University spokesman Rick Fitzgerald said he didn’t know there was a period in the year during which students were not serving on the committee. He said it’s MSA’s responsibility to solve the problem because the University doesn’t deal with the student election process.

“It’s really up to MSA to make those selections for the student representatives,” Fitzgerald said.

Fitzgerald also had a different perspective on the legality of the process than Einstandig and Jones. He said that the law doesn’t spell out a specific process for how to nominate or elect student representatives. Therefore, the University has let MSA handle elections since MSA has an established process for selecting representatives to serve on various committees.

“The University’s position is that that makes MSA’s process consistent with the state law that says ‘nominated and elected,’” Fitzgerald said.

The most recent committee meeting was last August, at the request of someone who filed a complaint. Hipkiss said the committee offered the complainant an opportunity to wait for two student representatives to be seated on the committee before the complaint was reviewed, but the complainant wanted to settle the dispute as quickly as possible, and the University’s General Counsel allowed the complaint to proceed.

“General Counsel advised that if the remaining four could meet, it would be OK,” he said.

But Einstandig said under the statute, the committee cannot make decisions without the student representatives.

“The committee must have those representatives as stated,” he said. “Without them, I don’t see how it could proceed.”

MISSING FACULTY ELECTIONS

Another key concern about the DPS Oversight Committee’s practices is the fact that the faculty seats have not been filled by election in nine years, which runs contrary to the bylaws’ procedures.

According to DPS Oversight Committee’s bylaws, faculty members are supposed to vote for two representatives from a pool of four candidates. These candidates are chosen by a nominating committee of five faculty members appointed by the chair of the Senate Advisory Committee on University Affairs and executive committees of the College of Literature, Science and the Arts, the College of Engineering, the Medical School and the School of Education. Once elected, each faculty committee member is supposed to serve a two-year term.

However, according to a University response to a Freedom of Information Act request on July 17 that was obtained by The Michigan Daily, the last faculty member to be elected to the committee was in April 2000.

SACUA chair and Engineering Prof. Michael Thoulesss admitted in an e-mail interview that SACUA has not held an election for the DPS Oversight Committee since 2000.

“It appears that the DPS Oversight Committee simply fell off the radar screen of SACUA, its previous chairs and the four college executive committees that are also charged with overseeing the nomination process,” Thouless wrote.

He wrote that the terms of office are not clearly stated in the procedures and that since the same elected faculty members are still serving on the committee, “nothing triggered another election or the attention of SACUA.”

Thouless first found out about the election violations in May, when he became chair of SACUA and after he worked on an audit of all the committees SACUA is responsible for.

“When we found the current procedures, I was concerned by the fact that they are vague in places, and the election rules are rather cumbersome,” he wrote. “(They) do not clearly define terms of office and do not make it clear how to ensure all members of the UM community get a voice in the elections.”

Thouless wrote that he has been communicating with the University’s Human Resources Office to rewrite some of the procedures in order to solve some of the problems.

Tim Wood, senior director of Human Resources, said his office is mainly in charge of elections for staff representatives on the committee, but that he didn’t know why there has not been an election for faculty representatives since 2000.

“I don’t know if it’s a lack of interest in people participating or they just haven’t done it,” Wood said.

Thouless wrote that drafting a new procedure may “take some time” and that SACUA may hold an election despite the unclear procedures.

“If it looks like the re-drafting process is going to take too long, and SACUA decides holding a new election is more urgent than cleaning up the rules that govern the DPS oversight committee, we may decide that we need to try and organize one using the existing, but somewhat unsatisfactory procedures,” he wrote.

SELECTIVE STAFF VOTING

Some concerns — including legal concerns — surround the process by which staff members elect representatives to the DPS Oversight Committee. Though staff members have been elected to the committee on a regular basis, voting restrictions and low election participation underscore how staff representation on the committee suffers from flaws similar to those of the student and faculty representation.

The DPS Oversight Committee bylaws mandate that both union and non-union staff members nominate their peers. From there, the University’s Office of Human Resources conducts staff elections for one position each year — alternating between union and non-union groups.

The concerns arise, though, from the fact that only members in each group may vote for their respective labor representative.

Jones said this election policy also appears to violate the state statute because different members of the staff are excluded from exercising their right to vote each year.

But Wood said the election procedure does not breach the law.

“I think we’re confident that it’s appropriate that it’s just a split between the union versus non-union seat,” Wood said. “Each employee has the right to vote. It’s just which election they’re voting in.”

The last staff election was held in June 2009 to elect a union representative. While elections are conducted in a timely manner, there has been a great deal of variation in voter participation during the last few years.

The FOIA response from the University on July 17 reveals that there were 84 votes in the 2009 election for a union representative. However, in 2008, there were 1,521 votes for a non-union representative.

Hipkiss said he didn’t know why there was such a large difference in the votes.

“The election for the (non-union) position seems much more straightforward, and to my knowledge the only one that is announced in the University Record prior to the actual soliciting of votes,” he said.

Wood also did not know why there was a disparity of more than 1,400 votes. He said one explanation may be the difference in the amount of eligible voters. But numbers from a July 2009 Human Capital report show that thousands of more staff members could be voting in each election.

According to the report, the University’s Ann Arbor campus employs 27,464 staff members. About 6,982 staff members belong to a union, and 20,482 do not belong to a union.

These numbers demonstrate a very low voter turnout. And though the number of union and non-union staff fluctuates from year-to-year, there was similarly low turnout in each election. For non-union staff only 1,521 votes were cast in 2008 out of a potential voter pool similar to the staff’s current size of 20,482. And for union staff, only 84 votes were cast in 2009 out of a potential voter pool similar to the staff’s current size of 6,982.

Though these numbers do not violate the state law or the committee’s bylaws, they raise concerns about how aware staff members are of the committee’s existence and how well the voting process reflects the concerns of its constituents.

Fitzgerald admitted that the University may need to look into restructuring the election process for students, faculty and staff.

“Maybe it’s time to kind of look at those established processes and review whether they need some updating or changing,” he said.

SPORADIC MEETINGS

Compounding the problems with elections and representation are concerns about the body’s everyday functioning.

Infrequent meetings, an agenda thinned out by DPS’s internal complaint processes and little awareness of the body have limited the DPS Oversight Committee’s role as a check on the campus police.

According to the committee’s bylaws, the DPS Oversight Committee must meet monthly unless otherwise determined by the committee chair. Hipkiss said the committee meets “as needed” — when a complaint is filed. He added that it’s not unusual for the committee to meet only once a year.

“If there are no complaints filed with us, there’s not much more for us to discuss,” he said.

Chaness said that during his time on the committee, he attended one meeting per semester, which he thought was sufficient.

“It’s overkill if we’re constantly asking (DPS) for clarification on things,” he said. “As long as we’re satisfied with what they’re doing then there really isn’t any need for us to step on their feet and get in the middle of their work.”

Other than presenting information as requested, DPS spokeswoman Diane Brown said DPS does not play a role in the decisions of the committee.

“We’re only requested to come at their request — whenever that is — to discuss whatever it is that they are asking for, and that changes all the time,” she said. “Not that they meet all that often, but we are at their bidding.”

Most of the time, Chaness said the committee heard complaints from people who said they were mistreated by a police officer at a traffic stop or didn’t like the way they were treated while issued a minor in possession.

But in the past, the committee has received more delicate grievances. After four years of inactivity, the committee received its first grievances in 1996. One of those grievances received in 1996, came after John Matlock, assistant vice provost and director of the Office of Academic and Multicultural Initiatives, was arrested.

Matlock was charged with assaulting a DPS officer at the Central Campus Recreation Building, where he was officiating a basketball game sponsored by the Black Volunteer Network — a University student group. Matlock contended that the officers treated him in a disrespectful manner because of his race. The charges against Matlock were eventually dropped.

Following the Matlock incident, the committee looked into why it had not received more grievances. It found that DPS received about 10 complaints each year, none of which were filed as grievances with the committee.

In a 1996 Investigation of Policies and Practices of the Department of Public Safety and Security report, the DPS Oversight Committee recommended that the University’s Office of the General Counsel hire an attorney to advise the committee on legal issues and that the committee receive all complaints and grievances reported to DPS.

Though an attorney has never been hired to provide advice, the director of DPS gives an annual report of all complaints sent to the oversight committee.

However, according to an Oct. 9 University response to a Freedom of Information Act request that was obtained by the Daily, DPS gave no annual complaint or grievance reports for 2007 and 2008. The last known report was for 2006.

Hipkiss confirmed DPS has not yet given a report for 2009.

He added, though, that DPS fields about eight to 12 complaints a year, and the committee deals with an annual average of two grievances each year.

He said the committee doesn’t hear more grievances because people choose not to file them.

“Why they do that is a matter of speculation,” he said.

Chaness said the grievances brought to the committee are usually from people who directly contacted the committee through e-mail or by phone, with the rest coming from DPS.

“Typically, DPS took care of internal stuff, and we didn’t have to get involved because we were satisfied with their investigation and what they came to the conclusion of,” he said.