. 550 Brand St. Providence, RI 02907 (401)228-8212? (401) 228-6998 I Pravida?nae External Review Autharity ?we? REPORT FOR FISCAL YEAR 2006 TABLE OF CONTENTS 1. Letter from the Executive Director and the Chairperson . .. 1 II. Purpose and Mission Statement 2 List of Board Members 3 7 IV. List ofStaff 7?8 V. Data Analysis 9 10 VI. Trends 10 11 VII. Community Outreach 11 Lawsuit Information 11 82 a. Plaintiffs? Memorandum in Support of Declaratory Judgment .. . 13 b. Defendants? Memorandum of Law in Opposition to Plaintiff?s Declaratory Judgment Action . . . 35 c. Declaratory Judgment 57 d. Order Regarding Plaintiffs? Complaint for Declaratory Relief . .. 59 e. Motion for Order Staying PERA Proceedings Pending Appeal 68 f. Order Denying Motion for Stay on Appeal . . . 81 IX. NACOLE Conference Agenda 83 84 X. NACOLE Conference Report 85 99 Kevin E. Deary Acting Executive Director Phone (401) 228-6989 Fax (401) 228-6998 David N. Cicilline Mayor PROVIDENCE EXTERNAL REVIEW AUTHORITY O?icers Chair Paul asweI I Vice Chair Luz Bravo?GIeichez-? Treasurer Philip Secretary Kohei [ski/mm Board Members Stanley A. BIeecker Kenneth Brown Arn'n Coloian Michael Correi'a Mary Kay Harris John Hearn Dr. Arthur Jones Mary Jones RocheIIe Lee David Frederick Price 11432th York City of Providence, RI December 14, 2006 Honorable Mayor and Members of the City Council 25 Dorrance Street Providence RI 02903 Dear Mayor Cicilline and Members of the City Council, Enclosed is the Providence External Review Authority?s (PERA) 2006 Yearly report submitted for your review. This report focuses on the statistical analysis of complaint data and the last years? events PERA has been involved in with the courts. PERA is in the process of conducting a survey with the Providence Police Department regarding the effectiveness of the Law Enforcement Officers Bill of Rights, R.l. General laws Section 42-28.6. I would like to acknowledge Mayor Cicilline and the City Council for your continued support for the of?ce of the Providence External Review Authority and the civilian oversight process. I want to also thank the members of the City?s Law Department who have responded to our questions and needs under the leadership of Joseph Fernandez. l'want to thank the members of my staff at PERA and their contributions to the civilian oversight process this past year. I want to acknowledge the efforts of the PERA Board for their tireless efforts in support of the civilian oversight process. I would also like to recognize the efforts of the Providence Police Department, particularly Inspector Francisco Colon and the Internal Investigations and Inspection Division, for providing PERA with the necessary information to proceed with our investigations and for their ongoing cooperation. . 1 . flir?f?r ?1 (.. Paul Caswell Chairperson ReSp ctfully Stlb?rbtted, Ke in E. Deary gr Acting Executive Director Phone (401) 228-6989 ax (4 01) 228-6998 David N. Cicilline Mayor City of Providence, Rhode Island 550 Broad Street Providence, RI 02907 ?The Purpose and the Mission of The purpose of the Providence External Review Authority (PERA) is to investigate allegations of misconduct on the part of of?cers of the Providence Police Department, to make ?ndings of fact and to make recommendations of potential disciplinary action to the Chief of Police. PERA was established in 2002 by Providence City Ordinance No. 614 (Chapter 2002-3 9), to provide for a system of Civilian Oversight over the Providence Police Department. PERA has the mission and the authority to investigate and conduct hearings concerning allegations of misconduct on the part of sworn of?cers of the Providence Police Department. If you believe that you have been the victim of misconduct committed by a sworn of?cer of the Providence Police Department, you have the right to report the incident to You may contact PERA at the address and telephone number provided above or you can email (PERA) at Pera@providenceri.com Board Members Of?cers Chair Paul Caswell Mr. Caswell was appointed by City Council President John J. Lombardi to a 3-year term in March 2004 and appointed Chair in March 2005. Vice Chair Luz Bravo-Gleicher Former Councilman David Segal appointed Ms. Bravo?Gleicher to a 3?year term in March 2006. Treasurer Philip McKendall Councilperson Peter S. Mancini appointed Mr. McKendall to a 3-year term in June 2005. Secretary Kohei D. Ishihara Councilperson Miguel Luna appointed Mr. lshihara to a 3-year term in April 2005. Board Members Stanley A Bleecker Mr. Bleecker was appointed by City councilperson Rita M. Williams to a 3-year tenn in April 2006. He was born in Providence, Rhode Island. He has a son and daughter and three grandchildren. His primary and secondary education was within the Providence school system including graduation from Classical High School. He is a graduate of Brown University with a Bachelor of Science in Electrical Engineering and obtained a law degree from Boston University. Upon graduation from college he worked for three years at the Westinghouse Electric Company, a company that no longer exists. Upon graduation from law school he went to work for the Providence Law inn of Tillinghast, Collins and Graham for twenty-seven years. For most of those years he was a partner. He currently is a solo practitioner with an of?ce in the city of Providence. Over the years he has held a number of positions in community and charitable organizations including President of the Board of Directors of Alias Stage, board member of Brown University, Rhode Island School of Design, Hillel, Board Member and Vice President of Rhode Island Community Mediation Center. He find that working for PERA as a Board Member to be extremely Kenneth Brown Councilperson Kevin Jackson re?appointed Mr. Brown to a 3-year term in June 2006. Marv Kay Harris Council President Pro Tempore Balbina Young re-appointed Ms. Harris to a 3?year term in March 2006. A board member since 2003, Ms. Harris is the community organizer for police accountability at Direct Action for Rights and Equality (DARE). She joined DARE in 1998 and immediately began working with the DARE police committee to help win public access to hundreds of civilian complaint records that the City refused to give out. Since Joining the DARE staff 111 1999, Ms. Harris has worked within a la1ge coalition to win passage of the nation 3 7th Driving While Black Bill and has organized victims of police brutality to ?ght for systematic change within the Providence Police Department. Ms. Harris training in outreach, leadership development, and strategic development have help win the passage of a city ordinance for the creation of PERA (Providence External Review Authority) that is functioning as an autonomous body to investigate allegations of police misconduct. Harris serves on the PERA Board because she believes it assists in creating both the perception and the reality of a safer community in the City she loves. John David Hearn Councilperson Patrick Butler appointed Mr. Hearn to a 3-year term in January 2005. John Hearn is currently a Providence resident. His parents are Irish immigrants who moved to Providence in 1946. His wife?s grand parents are Italian immigrants who moved to Providence in the 1920?s. He married his high school sweetheart, and they have two children, Amanda and Elliot. Mr. Hearn attended grade school at St. Raymond?s. From there he attended Our Lady of Providence, and graduated from Hope High School in Providence. It was nine years ago that he had an opportunity to take a job in management for a large tile manufacture, Daltile, and he did. Today he handles commercial sales for greater Boston, Southeastern MA and RI. He is on the board of governors at Triggs Golf Club in Providence, and he is on a fund raising committee for Save Sight Rhode Island. As far as his outlook on the future of PERA, he is confident. Kohei D. Ishihara Councilperson Miguel Luna appointed Mr. Ishihara to a 3-year term in April 2005. Kohei D. Ishihara grew up in Rockville, Maryland where he ?rst started analyzing race and oppression through his peer leadership work at St. Andrews Episcopal High School. Kohei moved to Providence, Rhode Island in the fall of 1998 to attend Brown University. Kohei then made the important decision to stay in Providence, RI and work to develop and empower the Southeast Asian community. Kohei is the co-founder and Executive Director of the Providence Youth Student Movement a grassroots Southeast Asian youth organization committed to anti-racist organizing, youth empowerment, and community development (visit He is a founding PERA board member who joined PERA because he wanted to find a way to honor the community struggle for police accountability that started years before the death of Sgt. Cornell Young, Jr. ?This country and nation is responding to terrorism by taking 4 away the rights of ordinary citizens, by denigrating the lives of poor and struggling immigrants, and by building a police state where violence is institutionally enforced to preserve the American status quo." He feels that he is on PERA to enforce justice against police officers who have abused their power, or have used any size, shape, or form of illegal profiling. He sees PERA as strengthening the relationship between the community and the police, and preserving the respect and sanctity of both. In the future, he envision the Providence Police Department and PERA working harmoniously to create alternative forms of policing, and working to build stronger, healthier, and safer communities. Dr. Arthur Jones His Honor Mayor David N. Cicilline appointed Dr. Jones to a 3-year term in May 2004. Dr. Arthur C. Jones is an Assistant Professor of Legal Studies at Johnson Wales University, Providence RI where he has been on faculty since 2001. His teaching and research have been in law enforcement, corrections and parole. Dr. Jones received his ?om The Union Institute Cincinnati Ohio (1999) and has served as a social worker and administrator in corrections for 32 years. He retired from the New Jersey Department of Corrections and Parole after 28 years of service. During his career in New Jersey he served 12 years on the New Jersey State Parole Board. Six (6) years on the Juvenile Panel and six (6) years on the Adult Panel. Dr. Jones also served eight years on the Police Training Commission (PTC). He worked as an Adjunct Professor at Rutgers University, Seton Hall University and several community colleges. Shortly after retiring in 2001, he moved to Rhode Island. He is currently a member of Rhode Island State Parole. Governor Almond appointed him to the Rhode Island Parole Board in June 2002. The Mayor David Cicilline appointed him to the Providence Police External Review Authority (PERA). Dr. Jones is a criminal justice consultant, trainer, educator and practitioner. He is a recognized proponent of the community-based approach to managing the needs of the criminal justice system. He is interested in working with criminal justice planners and law enforcement agencies to improve, police and community relations. He has been active in many professional organizations over the last 32 years. He is a member of numerous criminal justice professional organizations, the Academy of Criminal Justice Sciences (ACJ S), Northeastern Association of Criminal Justice Sciences (NEACJ S), American Correctional Association (ACA), Association of Paroling Authorities International (APAI) American Probation and Parole Association (APPI) The American Society of Crirninologist and is President of the Rhode Island Association of Criminal Justice Sciences (RIACJ S). Rochelle Lee Communications from Thomas P. Whitten, Chairman, Providence Human Relations Commission, dated August 17, 2006, Informing the City Clerk that he is this day appointing Rochelle Lee to the Providence External Review Authority (PERA), for a three (3) year term. Ms. Lee has been a lifelong resident of Rhode Island and has been very active in community affairs in South Providence. Ms. Lee is an urban planner with specialized expertise in residential development financing and management. She has worked with non-profit and community-based sponsors to develop more than $20 million of affordable housing in Rhode Island and Massachusetts. For several years, Ms. Lee managed the Local Initiatives Support Corporation (LISC) program to improve capacity of community development corporations engaged in revitalizing urban neighborhoods. She was Asset Management Specialist for the National Equity 5 Fund's $100 million investment portfolio throughout New England, managing related equity investments in residential property. She is a board member of several organizations including the Mt. Hope Neighborhood Land Trust, the Elrnwood Community Center, Good News Housing, and MUSIC ONE. Ms. Lee is the current board president of the RI chapter of the Association of Fundraising Professionals. She is a Wellesley College alumna and holds a BA. degree from the University of Massachusetts, (magna cum laude), a Masters of Art from Boston University and a Masters of City Planning from the School of Architecture at the Massachusetts Institute of Technology. She was a recipient of a HUD Fellowship to attend MIT and through her Master?s Degree program at Boston University; she studied at the University of West Indies completing graduate teaching practicum-training teachers in Kingston, Jamaica. David D. Marshall Councilperson John J. Igliozzi appointed Mr. Marshall to a 3?year term in July 2005. Mr. Marshall is 47 years of age, married with (2) children? Bryan (18) and emiifer (23). He is employed for 31 years with the Providence College Security Department as a Sergeant on the llpm-7am shifts. He commands approximately 22 officers. He attended LaSalle Academy, graduating in 1975, went to Roger Williams College and CCR1 and is now attending Providence College SCE. He is very active in the neighborhood and well respected by many. He entered the political arena with an unsuccessful bid for the 2002 City Council. He is interested in PERA because he believe that public voices should have a chance for fair actions and it should be known that everyone should be at least heard with interest and understanding. A fair judgment should be always made for BOTH PARTIES in all cases. Mag}: Jones Communications from Councilman Terrence Hassett, dated July 27, 2006, informing the City Clerk that he is this day appointing Ms. Mary Jones to the Providence External Review Authority (PERA), for a three (3) year term to expire in July 2009. Ms. Jones is a lifelong resident of Rhode Island and has been active in community affairs for many years. York from Councilwoman Carol A. Romano, dated July 19, 2006, informing the City Clerk that she is this day re-appointing York to the Providence External Review Authority. Former Providence Human Rights Commission Director Christine Roundtree appointed Ms. York to a 3~year term in May 20 03 that expired. (Ms. York was appointed by Councilwoman Carol Romano to conclude the appointment of Sylvia Pulliman who resigned which expires July 2008) York is an officer and director of York Resources, Inc., a financial investment company owned by her family. She lives in Providence with her husband, David B. Green and their two children, Nyssa, age 21, and Caleb, age 14. She and her husband are also foster parents to Neath Pal, who is grown and lives in Rhode Island. She earned her Bachelor's Degree from the University of Denver, and is a graduate of Boston University School of Law, from which she received both a .D. and a Master of Laws in taxation. 6 She was chosen as a Fellow at the Institute of Politics, John F. Kennedy School of Government, Harvard University. She served in that capacity for the spring semester, 1999. More recently she taught a course on The Elections of 2000 at the University of Rhode Island and was a panelist on radio station WPRO's Political Girl Talk hosted by Myrna Lamb. She was the Democratic candidate for governor of Rhode Island in 1994 and 1998. In 1994 she was the ?rst woman Democratic candidate for governor and the ?rst person to defeat an incumbent Governor in a Primary. Frederick J. Price Communication from Councilwoman Josephine DiRuzzo, dated November 10, 2006, Informing the City Clerk that she is this day appointing Mr. Frederick James Price as a member of the Providence External Review Authority (PERA). (Mr. Price will replace Oscar Vargas, who has been removed from the committee, for the remainder of the term). Mr. Price is a retired prison guard having been employed at the Adult Correctional Institution. He is a life long Rhode Island resident. Artin D. Coloian Communication from Council President Joinr Lombardi dated October 24, 2006, informing the City Clerk that he is this day appointing Mr. Artin Coloian as a member of the Providence External Review Authority (PERA) to serve the remaining term of the Reverend James Cook that expires in March 2008. Mr. Coloian is an attorney and businessman in Providence, RI. Michael Correia Communication from Councilman Joseph DeLuca, dated November 20, 2006, Informing the City Clerk that he is this day appointing Mr. Michael Correia as a member of the Providence External Review Authority (PERA). (Mr. Correia will be replacing Eva Ann Geoppo) Mr. Correia was born in Providence, RI. He resides in the Mount Pleasant section of Providence. He have a 14 yr. old daughter her name is ona. His primary and secondary education was within the Providence School system. He is very active in his neighborhood and well respected by his neighbors. Over the years he has held a number of positions in community organizations. He is currently President of the Providence Crime Watch, which serves the resident of Mount Pleasant, Fruit Hill, and Manton area of Providence. Providence Crime Watch?s mission is to serve the residents of Mount Pleasant, Fruit Hill and Manton through crime prevention programs and activities. When asked to serve as a member of PERA, he was honored. He see PERA as a way of strengthening the relationship between the community and police, and preserving the respect and dignity of both. STAFF EXECUTIVE DIRECTOR Leon Drezek was appointed Executive Director in January, 2005, and resigned in March, 2006, to accept a federal position with the Department of Homeland security in Washington DC. 7 Mr. Kevin E. Dearv He was appointed Acting Executive Director by the PERA Board of Directors on March 27, 2006. Mr. Deary is a retired FBI Agent with 25 years of service to the United States. He has served in numerous communities across America to include Mimreapolis, New Mexico, Miami and Rhode Island. He has conducted numerous federal civil rights violation cases over the years. Mr. Deary has worked in the insurance industry investigating fraud, the tobacco litigation field and the private investigations ?eld to include sensitive government background investigations since his federal retirement in 1994. Due to his 12 years of residency in Rhode Island he is familiar with the ethnic makeup of the various communities. Mr. Deary in his short time has brought PERA through the lawsuit by the OP, developed solid working relationships with the Attorney General?s Of?ce, the Command Staff of the Providence Police Department, especially the Internal Investigations and Inspection Division, and the Rhode Island Chiefs of Police Association, the Roundtable of the Urban League, as well as community organizations throughout Providence. Mr. Deary is developing a Manual of Operations for PERA so its important work can continue on in an organized manner. Mr. Deary has supervised the staff at PERA so that the daily operations move smoothly. He has met with the Mayor and his staff, City Council members, numerous department heads and employees in order that PERA attain its goals within the city. He has assisted in training PERA Board Members as to their expected duties. He continues to meet with community support members and develop new advocates throughout the Rhode Island network. Mr. Roderick J. Kennedy He was appointed as the Investigator under Mr. Deary in May 2006. He brings 25 years of experience with the FBI to PERA. Mr. Kennedy investigated numerous federal civil rights cases in Rhode Island and Massachusetts during his career. Mr. Kennedy is a native of Rhode Island having been raised in Providence and attended Providence public schools and Providence College. He was a US Army helicopter pilot attaining the rank of Captain. Since his retirement from the FBI he has been involved in numerous investigations in Massachusetts and Rhode Island. His father still resides in Rhode Island. In addition Mr. Kennedy brings a strong knowledge of computers and data collection systems to PERA. He has been heavily involved with the IT department of the city in upgrading IT network. Mr. Kennedy is also involved in the deveIOpment of a Manual of Operations for PERA so that investigative staff will have guidelines to follow. Ms. Kathv Gee She was appointed in December 2004, as the Con?dential Secretary of PERA. She reports directly to the Executive Director, which investigates allegations of police misconduct in the City of Providence. Ms. Gee assist the Executive Director and his investigators in handling all duties of the PERA office as they pertain to emergency and non?emergency situations and complaints. She is not only the Confidential Secretary but also the PERA point of contact for the She is a licensed Notary Public, instrumental in developing the PERA website, has produced PERA informational pamphlets and brochures, and runs the overall daily operations of the office with the daily dealings with departments at City Hall. She is also responsible for performance of complex and difficult, duties concerning highly con?dential law enforcement matters. She along with Mr. Kennedy has been developing a data system for PERA and a Manual of Operations guideline. Ms. Gee in her short tenure has deve10ped close working relationships with strategic members of departments at City Hall, which offer expertise to PERA. Ms. Gee accepted the position at PERA because she believes in the mission and purpose of PERA, and is willing to offer her support as well as her skills to make this a functioning and productive organization. 8 DATA ANALYSIS PERA has opened twenty-?ve cases during the calendar year 2005 and have ?fteen pending cases. These cases have been tolled during the period of time when PERA was involved in the lawsuit with the FOP as well as the legal discussions up to the actual declaratory judgment on November 15, 2006. PERA has also received twenty-?ve cases during the calendar year 2006 up to November 21, 2006. The charts indicate the type of complaints received, the numbers of violations and the Providence Police Districts where the incidents occurred. 2005 2006 El 01~lnappropriate Language/Conduct I DZ-Harrassment El D3-Discriminatioanacial Profiling 04-Theft I 05-Excessive Use of Force El 06-Other PENDING EIClosed: Admin. lClosed: No P.C. 2005 2006 Cases Open 25 25 Category 1 Inappropriate Language/Conduct 5 5 Category 2 Harassment 3 8 Category 3 Discrimination/Racial Pro?ling 2 3 Category 4 Theft 0 0 Category 5 9 4 Category 6 6 5 Pending 15 20 Closed: Admin 10 2 Closed: N0. P.C. 0 3 DISTRICTS IUnknown TRENDS The initial trend obvious to PERA staff is the delay in receiving responses from the Providence Police Department (PPD) for requests for PPD reports, officer information, and other necessary information for PERA to accomplish its mission and goals. Initially, meetings were held with the Colonel overseeing the Internal Investigations and Inspections Unit. It was their decision that all requests from PERA go through the IA Inspector. Due to the policy and procedures deveIOpment process the responses from the PPD have been slow. However, knowing the PERA ordinance and Administrative Rules the PPD is aware of time constraints on investigations. Historically this was always one of the major complaints of the Providence community as a whole, the untimely reporting of police misconduct cases. Again, it has been widely known the Providence Lodge #3 of the Fraternal Order of Police (FOP) intended on suing PERA when PERA brought a case forward. This being done and adjudicated the process should be moving forward vigorously. The cases before PERA are in various stages mostly due to lapses in information from the PPD. PERA is certainly aware the PPD has its own ongoing important investigations and problems with manpower but this cannot be construed as an excuse for slow response to requests for information. The process must include PERA in a timely and efficient manner. These concerns are being addressed by the Inspector as well as other members of the Command Staff to develop a better operations procedure. The second trend observed by PERA is that PERA has received several complaints of misconduct against Providence Police officers where it reveals some de?ciencies in the abilities of officers to recognize and conduct themselves appropriately with persons who suffer from a mental ilhiess. The complaints seen thus far at PERA appear to raise two concerns: (1) Officers who raise the bar of an encounter into an altercation that leads to the use of force or an arrest either because they don?t recognize the person has an illness or the of?cer lacks the training skills to quell the situation without a confrontation or arrest; (2) of?cers recognize or suspect that a person may have a mental illness issue but do not care to assist the individual. 10 Thirdly, PERA has observed through its complaint process the public does not know the of?cers name or badge number when they are being contacted. The identi?cation of police of?cers by the public still lacks uniformity. Police officers wear a badge number that coincides with their federal ID number. This number changes, however, with promotion in rank above detective. A program used in other parts of the country has of?cers carry business cards identifying themselves by name, badge number and points of contact, i.e. phone numbers, districts etc. These cards are given out to the public in every circumstance, ticket, west, or simple contact so the public knows whom they are in contact with. It is highly recommended that the Providence PD adOpt the policy of issuing police of?cers business cards that identify them by name and badge number, district and contact numbers and are given to every citizen the of?cer comes in contact with either by traf?c stop, searches or arrests. COMMUNITY OUTREACH PERA continues to expand its efforts in its community outreach program within the City of Providence. Through the assistance of the PERA Board members the staff has attended numerous cormnunity events such as the Khmer New Year celebration, the 25th Anniversary celebration for D.A.R.E., and numerous festivals throughout the summer months. The Acting Executive Director has been welcomed to sit on the Rhode Island Civil Rights Roundtable of the Urban League meetings held at the Urban league of?ces. The Acting Executive Director has also been welcomed to the Rhode Island Police Chiefs Association Roundtable and has been placed as a member of the Minority Advisory Board with Peter Wells of the Providence American newspaper, Joe owlkes of the Urban League, Colonel Dean Esserman of the Providence Police Department, Rusty Serpa of the Bristol RI Police Department and Bob Wall of the R1 State Police. Through these efforts PERA is able to reach organizations such as RI National Organization of Women, RI Commission for Human Rights, Rl Commission of Justice, RI Attorney General?s Of?ce, the Urban League, the Jewish Federation, RI Alliance for Gay and Lesbian Civil Rights, Progresso Latino, and others. Outreach has goals for the future to reach the City of Providence school-age children to help better educate our youth as to their rights in contact with police of?cers. Lawsuit On September 15, 2006 an action was brought by Providence Lodge No. 3, Fraternal Order of Police (FOP) and two Providence police of?cers to challenge the validity of Providence Code of Ordinances 181/2 -2, the ordinance that establishes the Providence Extemal Review Authority (PERA), (CA. No. PC 06?4859). The City of Providence and David N. Cicilline, in his capacity as Mayor of the City of Providence, were also defendants. On October 3, 2006 Plaintiffs memorandum in support of the declaratory judgment was ?led with Superior Court. On October 18, 2006, defendants ?led a memorandum of law in opposition to the plaintiff ?s declaratory judgment action. 11 011 November 3, 2006 a hearing was held before Superior Court Justice Stephen J. Fortunate Jr. where the plaintiff ?s complaint was denied. On November 15, 2006 the court denied the Plaintiff ?s Complaint to invalidate in its entirety Section 18 1/2 -2 of the Providence Code of Ordinances; as provided PERA may conduct investigations and hearings of alleged misconduct and if sustained may make recommendations deemed appropriate and consistent with the disciplinary matrix to the Chief of Police. The Ordinance is not to be construed or interpreted as authorizing PERA to impose discipline directly on any law enforcement officer nor to require the Chief of Police of the City of Providence to impose discipline without affording the of?cer the full protections of the Law Enforcement Officers" Bill of Rights Act, R1. Gen. Laws 42-286-1 et seq. (LEOBOR). On November 28, 2006 Plaintiffs ?led a Notice of Appeal in the Superior Court to appeal to the Supreme Court the Order regarding Plaintiffs? Complaint for Declaratory Relief and the Declaratory Judgment, both of which were entered on November 15, 2006. On December 6, 2006, the RI Superior Court ordered that the plaintiff?s motion for stay pending appeal to the Supreme Court is denied. The casework is enclosed (without appendixes). l2 On October 18, 2006, defendants ?led a memorandum of law in opposition to the plaintiff ?s declaratory judgment action. On November 3, 2006 a hearing was held before Superior Court Justice Stephen J. Fortunato Jr. where the plaintiff?s complaint was denied. 011 November 15, 2006 the court denied the Plaintiff ?a Complaint to invalidate in its entirety Section 18 1/2 ?2 of the Providence Code of Ordinances; as provided PERA may conduct investigations and hearings of alleged misconduct and if sustained may make recommendations deemed appropriate and consistent with the disciplinary matrix to the Chief of Police. The Ordinance is not to be construed or interpreted as authorizing PERA to impose discipline directly on any law enforcement officer nor to require the Chief of Police of the City of Providence to impose discipline Without affording the of?cer the full protections of the Law Enforcement Of?cers? Bill of Rights Act, R.l. Gen. Laws 42-286?1 at sea]. (LEOBOR). On November 28, 2006 Plaintiffs ?led a Notice of Appeal in the Superior Court to appeal to the Supreme Court the Order regarding Plaintiffs? Complaint for Declaratory Relief and the Declaratory Judgment, both of which were entered on November 15, 2006. On December 6, 2006, the RI Superior Court ordered that the plaintiff ?s motion for stay pending appeal to the Supreme Court is denied. The casework is enclosed (Without appendixes). l2 STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE NO. 3, I RATERNAL ORDER OF KEITH and SARRASIN ca. N0. PC2006-4859 PROVIDENCE EXTERNAL REVIEW THE CITY OF and DAVID N. CICILLINE in his capacity as Mayor of the Cityoi Providence PLAINTIFFS MEMORANDUM IN SUPPORT OF DECLARATORY Junorvranr INTRODUCTION This action was brought by Providence Lodge No. 3, Fraternal Order of Police [the and two Providence police officers to challenge the validity of Providence Code of Ordinances the ordinance enacted by the Providence City Council that purports to establish the Providence External Review Authority By the terms of the challenged ordinance, PERA is empowered to "review all allegations of misconduct on the part of sworn officers of the city police department, to investigate such allegations, to conduct evidentiary hearings with respectto such allegations, to render decisions with findings of fact and a recommendation of discipline. lf PERA finds a violation, the Chief of Police is required by the ordinance to impose the disciplinary penalty recommended by PERA. The plaintiff police officers are presently subjects of an investigation and hearing by PERA. The POP represents the interests all Providence police officers. The plaintiffs request a judgment of this Court declaring 181/2?2 invalid and 13 unenforceable. As shown below, the ordinance is in conflict with and violates the Lit-5r Enforcement Officers? Bill of Rights, R.l. GEN. LAWS 4-2?2861 et seq. The General Assembly, exercising its legislative authority over a matter of statewide concern, established LIEOBOR as the sole and exclusive procedure and remedy for permanently appointed police officers in Rhode island who are under investigation for any reason that could lead to disciplinary action, demotion, or dismissal. The PERA ordinance is in conflict with LEOBOR because it purports to provide an alternate forum and procedure for the investigation of and hearing on disciplinary complaints against Providence police officers; moreover, it fails to provide the procedural and substantive protections mandated under LEOBOR. The P'Eli?ta?i ordinance thus intrudes upon the constitutional powers of the legislature pursuant excess of the City?s legislative powers under CONST., Art. 'l3, 2. Alternatively, but equally invalidating, because the General Assembly espressly provided that LEDBOR is the exclusive "remedy? in is preempted by LEOBOR. Finally, the? ordinance also violates the Providence Home Rule Charter because it permits PERA to usurp the duties and responsibilities assigned to the public safety commissioner under the charter. Each of these points compels a declaration that the PERA ordinance: is invalid and thus unenforceable. FACTS AND BACKGROUND Prior to the enactment of LEOBOR in 1976, the disciplining of police officers was left to a crazy-quilt of individual municipal forums, each having rules, procedures, and composition particular to each city and town. See eg. Wee/ts v. Personnel 8d. offt?evt'etv of .Nor'r/r It'r'ngstorwr, 118 13.1. 24-3, 373 A.2d 176 (Rd. 1977) (officer?s dismissal by chief was Upheld by the North il<2ingstown Board of Review); Welsh v. Par-sonnet Bd. of City ofPai-vmdcer, 10] RJ. 14 187 221 A.2d 4-76 (12.1. 1966) (officer?s dismissal by director of public safety was upheld by the Personnel Board of the City of Pawtucltet); How/rind v. Thomas, 98 R.I. 470, 204 A .2d 640 (12.1. 1964) (mayor dismissed officer, after excluding officer?s attorney from interrogation, and city personnel board sustained mayor?s guilty finding but reduced the discipline to suspension); v. Coleman, 82 11.1. 103. 106 A.2d 103 (RJ. 1954) (police discipline reviewed by the statutorily established "board of police commissioners for the city of Woonsocket"). In 1976 the General Assembly, exercising its ?sovereignty over the regulation of police affairs,? v. Pttoh'no, 557 A.2d 1221, 1223 (RI. 1989), enacted LEOBOR to eliminate the ballcanization ofpolice discipline and to establish a uniform statewide system for police-officer discipline. LEOBOR established an exclusive remedy and set procedural and substantive protections?that are in effect to this day. in 2002, the Providence City Council enacted an ordinance, codified as Providence Code of Ordinance which created the Providence External Review Authority. Appendix 2-7.1 was given authority to investigate claims of police?officer misconduct and to ?conduct hearings and make findings of fact with respect to those allegations. Ord. 181/3~ A. 2. PERA ?shall be comprised of 20 members? who are appointed by various cint officials: the mayor appoints 3 members, the president of the city council appoints 2 members, members of the city council appoint 1 member each, and the executive director of the city human relations commission appoints 1 member. Ord. A. 3. The police chicfand the POP do not select any PERA members. PBRA is given authority under the ordinance to adopt rules and regulations. 0rd. A. t1. Consistent with that authority, is required to promulgate a ?disciplinary; 15 1.. The materials included in the appendix to this memorandum l" I In I. .- matrix.? Ord. ti A. 7. in fact, PERA has adapted regulations and has promulgated a disciplinary matrix. A. 8-ltl (disciplinary matrix); 15?25 (regulations). As provided by 0rd. 18l/2?2, after a complaint is filed with PERA, the executive director is to review it and determine if it should be dismissed, forwarded to mediation, or transmitted for full investigation. 0rd. A. 5?6. Full investigations are by civilian investigators who are hired by PBRA. Ord. and A. 2, 6. After the investigator has completed the investigation, the executive director either dismisses the complaint or forwards it to in? hearing. Ord. A. 6. if a hearing is set, 5 members are randomly selected from the 20-member pool to serve on the hearing panel. 0rd. and A. 3?4, 6. Not more than 3 former police officers may be included in the pool of 20, and not more than i former police officer can serve on a 5?member hearing panel. [at PERA has the authority to seelc the issuance of subpoenas by the City Council for the evidentiary hearing, with the attendant power to request contemptsanctions against "anyone who fails to comply with any subpoena so issued. 0rd. 53 iBVz?Efq); A. 6?7. Moreover, subpoena or no subpoena, all city employees are required to respond to ?lawful requests? for information, and "[tjhe failure ofany official or employee to respond to awful requests for such information anti date sl tall be deemed an act ofmisconduct. 0rd. iSVz?Zfr); A. 7. The PERA hearing panel is to ?weigh and consider all reliable and credible evidence" resented at the evidentiary hearing, Ord. 1816?20)), A. 6, and then render a decision based ance of the evidence. 0rd. {5 18% A. 7. if thel i the preponder tearing panel finds police? ficcr misconduct it must issue a written decision with findings of fact and identifying the ?level violation, plus making a "recommendation of discipline. M. The police chief must then :ipline the officer in accordance with PBRA ?s disciplinary matrix, and must supply 16 )linc selected: a written lanation for the discit When a complaint is sustained, findings of fact and the determination shall be submitted to the chiefof police. The chief shall impose discipline based upon the level of violation as found in the disciplinary matrix to be promulgated by t" i" The chief of police shall also provide the authority, the city council, and the mayor with a written explanation of the reasonts) for his/her disciplinary decision. The hearing panel report and the police chief's e>tplanation for his/her decision shall be available to the public provided that the name of the complainant and/or reapondent shall be kept [sic]. Ord. A. 7 (emphasis added). Since the ordinance was enacted in 2002, the 20 members of the authority have been appointed and its administrative positions have been filled. PERA has adOpted regulations and has promulgated its disciplinary matrix. The complaint against the police officers that triggered this action is the first one processed beyond the executive directors preliminary investigation. The complaint against the plaintiff police officers was filed by Darrel Wyche on November 8, 2005. PERA complaint; A. 26?37. PERA sent notice of the complaint and PERA investigation to the plaintiff police officers on March 10, 2006. PERA notices; A. 38- st}. in the notices, the officers were told to contact investigators by March 17, 2006 ?to schedule an appointment for an interview regarding these allegations. PERA informed the officers that the ordinance required them to ?respond to requests for information necessary for PERA to carry out its responsibilities under the Ordinance. Id. On August 25, 2006 PERA sent a second notice to the officers, again demanding the interview? and specifying that their failure to cOOperate may be deemed ?misconduct. PERA notices; A. 43?44. On the same day, sent the officers a separate notice that their PERA tearing would take place on September 21, 2006, and that if PBRA sustains the complaint the fficers "\vill be subject to discipline as set out in the enclosed Disciplinary Matrix. PERA I . . . I 17 )ttces (ot evidentiary hearing); A. 44?47. Plaintiffs and the FOP filed this action to challenge the validity of the PBRA disciplinary scheme and its immediate application to the plaintiff police officers. Rather than engage in litigation over initial injunctive relief, the parties agreed to a stand?still pending the Court?s consideration of the merits of plaintiffs? declaratory-judgment claim. ARGUMENT The PERA ordinance is unconstitutional and ultra vires, and is preempted asvvell, because the General Assembly has declared LEOBOR the exclusive remedy for police?officer discipline. 11. Three theories cascade and intersect here, each drawn from the organic arrangement of state and local government, and all leading only to the conclusion that the PERA ordinance is invalid and unenforceable because the City has no authority to legislatively establish a process that could lead to police-officer discipline. First, the PERA ordinance is because the su bject-rnatter of the legislation police~officer discipline is a statewide concern which is exclusively within the sovereign legislative power of the General Assembly. Municipalities cannot legislate on issues ofstatevvide interest. Marion v. Baird, 635 A.2d 1174. 1177 (RI. 1994). Second, the PERA ordinance is an ultra vires act of the City. LEOBOR is a general law that applies alike to all municipalities. Municipalities are precluded from legislating where the General Assembly has committed itself. See Town of East Greenwich v. O?Neil, 617 A.2d 104, 111 (RI. 1992). Third, PERA ispreemyared by LEOBOR. The General Assembly has expressly provided that LEOBOR is the ?sole and exclusive remedy? in police? officer discipline matters. Moreover, even where there is not eXpress preemption, a municipality may not enact an ordinance that conflicts with a state statute on the same subject. PERA seriously conflicts with LEOBOR, and on that ground is preempted as well. Town of ll/m'ren v. 740 A.2d 1255, 1261 (RJ. 1999). 18 does not matter which of the three intersecting and overlapping theories this Court adopts in its ultimate analysis: all roads lead to Rome. The City simply does not have the authority to enact a PERA?type police?officer disciplinary process, much less one that con?icts with state law and denies the complained-against police officers the procedural and substantive lished by the General Assembly in LEOBOR. the PERA ordinance safeguards estab Thus, the Court should declare invalid and unenforceable. A. Because police-offic Assembly?s power i unconstitution er discipline is that area a matter of statewide concern, the General al intrusion by is exclusive and the PERA ordiu ance is all 1e City on that exclusive power. While the Home Rule Amendment, R.I.CON8T. Art. 13, ?altered the traditional rule that cities and have ?no inherent right to self- government, ll77, it did not Marmn 12. Baird, 635 A.2d at alter the exclusive power of the General Assemb ly to legislate on matt statewide concern. ers of ?Municipalities may not, however, legislate on matters of statewide concern. . Id, quoting Westerty A.2d1262, 12640111989). The Traditionally, municipalities had no inherent right to self-government. [Citations omitted] The 1951 enactment of the home rule amendment, now designated article 13 of the Rhode Isl and Constitution, "altered this traditional View by empowering cities and towns to legislate with regard to all local matters. Id. *2 But the Legislature continue all cities and towns, but which shall not affect the form of or town. R.I. CONST. art. 13, sec. 4. Thus on matters of statewide concern and the bordinate to the General Assembly?s unconditional power to legislate in the same areas. Amico?s Inc. it. Matias, 789 A.2d 899, 903 2002) (emphasis added). 19 There is a ?limited list of matters of statewide concern held to be within the exclusive sovereignty of the state.? Westerly Residents, 565 A.2d at 1264. The ?regulation of police affairs? is clearly on the list, and with it comes the power to establish standards for investigation and hearing of matters involving police-officer discipline [I]t is the state's duty to preserve the public peace and good order, to enforce the laws, to suppress crime and to protect liberty and property; that the police officers who discharge the state?s responsibility in theses reapects, even though they may have been appointed by municipalities under a delegation of power, act for all inhabitants of the state and not merely for those of a particular community; that they are officers who perform a state duty and are subject to full control by the state. Mum) v. General Treasurer of City of Crunsz?on, 108 El. 192, 196, 273 A.2d 660, 661 1971); see also v. King, 120 R.l. 868, 877, 391 A.2d 117, 122 (RI. 1978) (holding that the?home rule amendment -?in no way affected the sovereignty of the state with regard to the exercise of police poWer since police officers, while they may be appointed by the individual city or town, act for all the inhabitants of the state and not only for the residents of the appointing community Brucks/mw v. Paulina, 557 A.2d at 1223 court has held that the state maintains sovereignty over the regulation of police affairs, the conduct of business, licensing, education, and elections?). Conan, Art. 13, 2 empowers "[e]very city and town" to legislate on matters "relating to its preperty, affairs and government but it gives no authority to the city to legislate on a matter of statewide concern.2 Ord. 181/2 is unconstitutional because it constitutes local legislation on a matter of statewide concern that falls within the exclusive To be sure, the legislature can grant permission to a municipality to legislate in areas already regulated by the general laws.? Local No. 799, Inter. Ass?rz of Fire?ghters v. Napolz'rano, 516 A.-2d 1347, 1349 1986). The legislature has, however, extended no such permission to the City to enact a parallel police-officer disciplinary process. To the contrary, the legislature has expressly made LEOBOR the sole and exclusive remedy for police officers facing discipline. '7 20 legislative power of the General Assembly. B. The General Assembly adopted LEOBOR as a matter of statewide concern, and as the exclusive remedy for police-officer discipline. The City?s attempt to legislate in that area is ultra vfres. In the preceding section plaintiffs have shown that the PERA ordinance intrudes upon and thus violates the General Assembly?s exclusive power over matters of statewide concern. Here, plaintiffs show the other side of the coin: that the City has exceeded its own authority in enacting an ordinance affecting a matter of statewide concern. That being so, the PERA ordinance is invalid as ultra vires. As shown above, municipal legislative authority under the Home Rule Amendment, R.I. CONST. Art. 13, 2, is limited to ordinances affecting the ?property, affairs and government" of that city or town. Absent eXpress permission from the General Assembly to legislate in a particular area, the municipality is not empowered to adopt ordinances affecting a matter of statewide concern. The City acts anin vines, and its enactment is invalid, when it purports to act in an area of statewide concern. Town ofEast Greenwich v. O?Neil, 617 A.2d at 11 l. PERA is ultra vires and invalid because the city simply did not have the power to legislate on this matter: In own of Warren v. qumton?th'telzonse, 740 A.2d 1255 (R.I. 1999), our Supreme Court stated "a municipal ordinance is preempted if it con?icts with and not only for the residents of the appointing community, and the statute applies to all cities and towns and does not affect their government. t- The LEOBOR is the exclusive statute governing the disciplinary action (including termination) against state and municipal law enforcement officers. Horizo?fv. Ch}! of Wanvz'ck, CA. No. PC 2003?4264, 2004 R.I.Super. LEXIS 21 (R.I.Super. Ct. 21 January 6, 2004) (Rodgers, 1.) (emphasis added); see also v. King, 120 R.l. at 876, 391 A.2d at 122 (?In a long line of decisions, we have sustained the right of the Genera] Assembly to control the police as an incident of [its] Moots v. City of Hagersrown, 597 A.2d 972, 9275?76 (Md. language, legislative history and comprehensive nature of the Law Enforcement Officers? Bil] of Rights establishes that the procedures provided by the Act are an officer?s exclusive remedy in matters of departmental discipline. rI?lre thode Island Supreme Court "upheld the validity of from a home rule challenge, stating that the enactment of the thirteenth 'amendment inf/{notuvliay affected the sovereignty of the state with regard to the exercise of the police power-since police of?cers, while they may be appointed by the individual city or town, act for all the inhabitants of the state and not only for the residents of the appointing community.? Town ofLincoln 1). Lincoln Lodge No. 22, 660 A.2d 710, 719 (RI. 1995) (quoting King, 391 A.2d at 122). Our high court joined the ?other courts [that] have held that constitutional provisions such as ours do not permit a home rule municipality to impinge upon the state?s sovereign power to control police affairs. Marro v. General Treasurer of City of Cranston, 108 R.l. at 197, 273 A.2d at 663. PERA is therefore ultra vires, an invalid and unenforceable attempt by the City to legislate in an area beyond its authority. C. The General Assembly?s adoption of LEOBOR preempts the attempt by the City through to adopt an alternate remedy in police?officer disciplinary matters. In Town of Warren v. T/tornton?Write/tense, 740 A.2d at 1261, the supreme court outlined two ways in which a local ordinance or regulation may be preempted. ?First, a municipal ordinance is preempted if it conflicts with a state statute on the same subject. it it Second, a municipal ordinance is preempted if the Legislature intended that its statutory scheme 22 completely occupy the field of regulation on a particular subject. Here, assuming that the City had the authority to adopt a police~discipline process (which it did not), PERA is preempted by LEOBOR. Not only is LEOBOR intended to be the sole and exclusive remedy in police?officer discipline cases, but PERA is. utterly and intractably in con?ict with LEOBOR. Accordingly, PERA is preempted by LEOBOR, and is thus invalid and unenforceable. 1. The legislature expressly intended LEOBOR to be the sole and exclusive remedy in. police?officer discipline matters. In enacting LEOBOR the General Assembly eliminated the hodgepodge of local procedures and forums that were then in place to deal with police?officer discipline. LEOBOR established a uniform comprehensive statewide procedure for the investigation, determination, and resolution of police?officer disciplinary matters: ?the Legislature has created a specific statute outlining a comprehensive mode of procedure to govern the investigation of a police officer for misconduct. Town of North Kingstown v. Local 475, Intent. Broth. of Police Ojj?z?cers, 819 A.2d 1274, 1276 2003). LEOBOR applies "[w]henever a law enforcement officer is under investigation it t? i? for any reason that could lead to disciplinary action, demotion, or dismissal 4" it R.I. GEN. LAWS and specifies that the investigation "shall be conducted under the following conditions it it." fol. (emphasis added). These provisions seem clear enough that the legislature intended the LEOBQR procedure to apply ?whenever" a police officer faces a disciplinary investigation, but if there were any doubt about the legislature?s intent, LEDBOR further specifically mandates that its procedures are sole and exciusive: The remedies contained herein shall be the sole and exclusive remedies for all law enforcement officers to the provisions of this chapter. R.l. LAWS 42?28.6?15 (emphasis adde?3 Consistent with the language of LEOBOR, the Rhode Island SUpreme Court has repeatedly held: The Officers; Bill of Rights serves as the exclusive remedy for permanently appointed law enforcement officers who are under investigation and subject to- disciplinary action. In re Denisewich, 643 A.2d 1194, 1196 (R1 1994)(emphasis added); City oonsz? Providence V. McLaughlin 593 A.2d 1345, 1348 (RI. 1991); In re Sobez?z?o, 661 A.2d 80, 83 1995). Moreover, the supreme court has specifically held that LEOB OR "represents the entire body of rights the Legislature intended to apply to police officers in this type of context, Town of Non]: Kingstown v. Local 473, 819 A.2d at 1276, and that ?the Bill of Rights [is] the only source of remedies available to officers being interrogated. Id. The comprehensive nature of the legislation, coupled with the supreme court?s recognition of the legislature?s intent to establish an exclusive remedy, leads necessarily to the conclusion that the General Assembly intended to preempt the field of police-officer discipline with LEOBOR. The City?s attempt to create PERA as an alternate procedure for the investigation, hearing, and determination of complaints against police officers intrudes on the procedures established by the General Assembly and violates exclusivity clause. Accordingly, because the General Assembly has expressly and intentionally preempted the subject matter, the PERA ordinance is invalid and unenforceable. See, e. 3., Wood v. Pecklzom, 80 R.l. 479, 482- 84, 98 A.2d 669, 670-71 (1953) (invalidating town camp?ground ordinance because it "invade[d] a field which the state has intentionally and speci?cally covered and pre?empted?); Town of Glocesrer v. Solid Waste Management Corp, 120 R.l. 606, 608-09, 390 A.2d 348, 349 (1978) (invalidating on preemption grounds a municipal ordinance in con?ict with Waste Management Act). 24 2.. PERA is preempted because it conflicts with LEOBOR both procedurally and substantively. LEOBOR ?was designed to protect the rights of police [officers] threatened with disciplinary action.? v. King, 120 R.l. at 875, 391 A.2d at 12]. It ?was enacted to protect police officers from infringements of their rights in the course of investigations into their alleged improper conduct." In re Denisewich, 643 A.2d at 1196. [T]he Law Enforcement Officers? Bill of Rights i? represents the entire body of rights the Legislature intended to apply to police officers in this type of context The Bill of Rights provides officers under investigation for misconduct with a comprehensive scheme of protection. The statute delineates how an investigation should be conducted and how a hearing should be conducted in the event that the investigation should lead to a recommendation that the officer be punished, and provides an officer a means of appealing an adverse decision by the hearing committee. The comprehensiveness of the Bill of Rights creates a mosaic of procedural protections to officers being interrogated for misconduct f. This, we believe, reflects a legislative intent to make the Bill of Rights to only source of remedies available to officers being interrogated. Town of North Kingstown v. Local 473, 819 A.2d at 1276. PJEERA is preeinptedby LEOBOR because it conflicts with the ?comprehensive scheme of protection" provided by the LEOBOR, a general law of statewide application. PERA is thus invalid and unenforceable. a. PERA conflicts with and violates the plaintiff police officers? procedural rights mandated by LEOBOR. LEOBOR provides Significant procedural protections, safeguards, and rights for the review of alleged misconduct by police officers during the investigative and interrogation process which are not provided for under the PERA ordinance. LEOBOR provides, in part: :Conduct of Investigations. Whenever a law enforcement officer is under investigation or subiected to interrogation by a law enforcement agency, for any 25 . reason which could lead to disciplinary action. demotion, or dismissal, the investigation or interrogation shall be conducted under the following conditions: it it it: The interrogation shall take place at an office within the department previously designated for that purpose by the chief of police; to) The law enforcement officer under interrogation shall be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to- the officer under interrogation shall be asked bv and through pne interrogator; a: a s: vs vs The law enforcement officer under investigation shall be informed in writing of the nature of the complaint prior to any interrogation, and of the names pf all complainants and witnesses; If any law enforcement officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he or she s_h_a? be completely informed of all his or her rights prior to the commencement of the hirerrogation; a a s- :r (or) No public statement shall be made prior to a decisio_n being rendered by the hearing committee and no public statement shall be made if the officer is found innocent unless the officer requests a public statement it (it) No law enforcement officer shall be compelled to speak or testifv before. or be questioned bv, anv non-governmentalaaencv. R.l. GEN. LAWS A. 49?50 (emphasis added). Under 0rd. 18l/2-2, PBRA investigates all allegations of misconduct, and hires civilians (not law officers) to conduct its investigations. Ord._ A. 2.. Upon a finding of probable cause, PBRA initiates its own investigation into the alleged misconduct of a police officer. Ord. 181/2240); A. 6. The ordinance provisions relating to investigations and interrogations plainly violate the express procedural protections and rights of law enforcement officers mandated by (C), and (11). Under the ordinance, the PERA hearing panel is to be comprised of members of the general public. Ord. A. 3-4. All proceedings of PERA hearing panels are to be held in accordance with applicable law governing open meetings. Ord. A, 4, Moreover, all PERA complaints are to be kept on file without regard to subsequent action of the 26 Executive Director and ijRA, and shall be available to the public, provided the name of the complainant and/or respondent shall be kept confidential to the extent required by Jaw. Ord. 181/2420); A. 5?6. The PERA hearing panel report and the police chiefs explanation of the reasons for his disciplinary decision will be available to the public provided that the name of the complainant and/or respondent shall be kept confidential to the extent required by law. Ord. Al. 7. These ordinance provisions relating to the filing and the release of information are contrary to the eXpress provisions of R.l. GEN. LAWS and A. fundamental con?ict between the ordinance and LEOBOR is found in the' initial investigation of a complaint. Under after a complaint is filed, the accused officer is investigated or interrogated by a member of the police department, whose identity and rank are known to the officers under investigation. R.l. GEN. LAWS A. 49. Under the ordinance, executive director initially determines if the complaint should either dismissed, forwarded to mediation, or transmitted for full investigation. Ord. 18%20); A. 5?6. At the discretion of the executive director, the complaint will then be investigated by a civilian investigator who is not required to reveal his or her credentials to the accused officers. Ord. Riva-2(a) and A: 2, 6. The ordinance?s provisions relating to the investigation and interrogation of an accused, officer are therefore in violation of express provisions for tliis stage of the proceedings. Another conflict between ordinance and statute is in the composition of the review panel overseeing the evidentiary hearings. Under R.l. GEN. LAWS and a aw enforcement officer has the right to a hearing before a consisting of three active or retired law enforcement officers. A. 48, 52-53. However, the PBRA committee is vastly different in its composition in' that it has 20 members (selected by various city officials) from which 5 members are randomly selected to serve on hearing panels. Ord. A. 3?4" 9.7 Tire ordinance goes on to stipulate that there cannot be more than 3 former law enforcement officers appointed to PERA and not more than former law enforcement officer can serve on any hearing panel. M. (This means that the hearing panel could very well have no former officers on it.) The ordinance's provisions relating to the hearing committee therefore also violate provisions regarding the composition of the review board.3 Should a complaint be sustained by PERApthe chief of police must impose a discipline in accordance with a "disciplinary matrix" developed by PERA. Ord. 181/2043); A. 7. In contrast, LEOBOR provides specific and profound procedural protections and rights for law enforcement officers facing suspension. R.l. GEN. LAWS 42?28643; A. 62-63. The ordinance is therefore in derogation of the LEOBOR provisions on penalties. Finally, a right of appeal is provided for under LEOBOR, but not under the ordinance. LEOBOR provides that "[a]ppeals from all decisions rendered by the hearing committee shall be to the superior court in accordance 42?35?15 and 42?35?131.? R.l. GEN. LAWS A. The ordinance's lack of any provision for the right to appeal a PERA determination directly conflicts with the mandated right of appeal under LEOBOR. 3. The Rhode Island Supreme _Court has recognized the compelling reasons for the legislature?s composition of the LEOBOR hearing committee: The clear purpose behind the requirement that hearing committee members be "active law enforcement officers is to afford protection to those aligned with departmental violations by ensuring that the hearing committee is composed of individuals who are familiar with departmental practices and procedures during the appropriate time frame. [Citation omitted] Officers carrying out the daily routine of police work contemporaneously with the alleged infraction will be in mgbest osition to iudge another officer?s actions. Thus, the purpose of Eorecting the officers? rights is served even when a committee member, at the time of rehearing, has retired from active duty?provided that member was an ?active law enforcement officer? at the time the committee originally convened to decide the case. In re Denisewich, 643 A.2d at 1198 (emphasis added). PERA strips the charged police officer of this statutorily guaranteed protection. 28 These significant and substantial procedural con?icts between LEOBOR and PERA alone are enough to render PER4 invalid. State v. Barbarian, 80 R.l. 444, 448, 98 A.2d 270 (Rd. 1953) city may not pass an ordinance inconsistent with a statute?). The comprehensive procedural protections provided by LEOBOR lie at its heart. PBRA denies most of those protections. Accordingly, this Court should render a declaratory judgment holding Ord. 181/:? 2 to be invalid and unenforceable. b. PERA conflicts with and violates the plaintiff police officers? substantive rights under LEOBOR by requiring the imposition of a penalty in accordance with the disciplinary matrix created by PERA. Under LEOBOR, police officers facing departmental charges may request a hearing and review by a three?membercommittee.4 Rd. GEN. LAWS 42-2964 and The committee has wide discretion when fashioning discipline after finding misconduct: The hearing committee is not bound by the recommendations of the officer?s departmental superiors. The committee has great discretion to modi in whole or in part the recommended sanction presented by the charging authority. Cid/tone v. Denisewich, 689 A.2d 1062, 1064 (RI. 1997) (emphasis added). LEOBOR also mandates significant restrictions when a suspension is to be imposed. R.I. GEN, Laws A. 62~63. The PERA ordinance conflicts with this statutory mandate because PBRA not only investigates, interrogates, and determines if misconduct has occurred (and the level of the misconduct), but PERA also imposes its own disciplinary matrix from which the police chief I must choose a punishment. The ordinance states: 4. If the LEOBOR investigation results in the recommendation of disciplinary Elation, then the accused has a right to a. hearing before a three?member committee one member chosen by the accused, one member chosen by the charging law enforcement agency, and one member to be jointly selected by the first two members. RT. GEN. Laws 53 A. 52?54. 29 laint is sustained, the findings of fact and the determination shall be hen a comp . . submitted to the chief of police. The chief E11311 impose a disc1phne based upon be romul ated by the level of violation as found in the disciplinar matrix to in accordance with subsection The chief of police 511.311 also provide the city council, and the mayor with a written explanation of the reason(s) for his/her disciplinary decision. 0rd. A. ?7 (emphasis added). The ordinance?s usurpation of LEOBOR is complete: not only does it purport to displace the procedural safeguards and protections provided by LEOBOR, but it purports to displace the substantive safeguards and rights guaranteed under LEOBOR. Perhaps belaboring this point, the well?established law in this state bears repeating: provides an exclusive remedy for permanently appointed law enforcement officers who are under investigation or subject to interrogation by a law enforcement agency for any reason which could lead to disciplinary action, demotion or dismissal. The statute delineates the procedural and substantive rights to which the officer is entitled including notice, a hearing at which he may present witnesses and cross-examine the witnesses produced by the agency, and the right to do novo review in the Superior Court. 1). King, 120 R1. at-87O n.1; 391 A.2d at 119 n.1. Iln Maryland, which has a similar Law Enforcement Officers? Bill of Rights, the Maryland Court of Special Appeals has noted that alternate forums like PERA are untenable in the face of the rights that LEOBOR guarantees police officers: We do not believe that the legislature ever intended to erect a protective shield around a police officer when the officer is confronted by an investigation conducted by a law-enforcement agency and at the same time deny that protection to the officer if the- investigation is made by another type of Commission or agency. Such a result would cause the "Law Enforcement Officers? Bill of Rights" to be little more than a verbaliaing of ?rights" which are devoid of substance. Prince George?s County v. Comm. of Human Relations, 392 A.2d 105, 112.43 (Md.Ct.Spec.App. 1978), vacated as moot, 401 Afld 661 (Md.Ct.Spec.App. 1979).5 5. While the subsequent vacating of this decision due to mootness may have negated the precedential valueof the decision in Maryland, the court?s forceful logic in rendering this - (continued. . .j 30 substantive provision for the imposition of discipline is completely in conflict with the provisions of LEOBOR. Accordingly, this Court should uphold exclusive substantive protections by rendering a declaratory judgment holding Ord. to be invalid and unenforceable. II. The PERA ordinance is unenforceable because it violates Providence?s Home Rule Charter?s allocation of duties to the of Public Safety. The PERA Ordinance purports to limit the authority of the commissioner of public safety the chief of police) when it comes to disciplining the city?s law enforcement officers. 0rd. 18 limits the chief?s authority in disciplining officers to merely picking a discipline within PERA ?s discipline matrix after PERA makes a determination of misconduct and the degree of the misconduct. The ordinance conflicts, however, with the City?s Home Rule Charter provisions concerning the Commissioner?s authority. The charter provides that ?[t]he shall it [bje responsible for the administration and discipline of the police department [and shall hjave the authority to make all rules [which] shall provide for the 4? discipline and control of the members of the police department." Providence Home Rule Charter, Art. X, 1001(a) (emphasis added). This provision clearly establishes the commissioner's complete authority over the ?administration and discipline? of the police force; the PBRA ordinance con?icts with and invades the charter?based authority and purports to place a degree of control over the administration and discipline of the police force in the hands of PERA. . 5. (.. .continued) particular holding cannot be ignored . The holding was subsequently reaffirmed sub sz'teiiti'o when the Maryland Court of Appeals later held that the LEOBOR "procedures are an officer?s exclusive remedy, at least with regard to alternate procedures under local law. Moots v. City of Hagez'smwn, 597 A.2d at 975?76. 31 When there is a con?ict between charter and ordinance, the provisions of the charter prevail over the ordinance: Since the state statutes and the state constitution constitute the organic law of the state and ordinances inconsistent therewith are invalid, it follows that ordinances that are inconsistent with the provisions of the charter are illegal and inferior to the provisions of the charter. Boy-romeo 1). Personnel Board of Town of Bristol, 117 R.I. 382, 385, 367 A.2d 711, 713 1977). "As a result the provisions of the ordinance neither prevail over nor can they be considered a modification of the provisions of the charter." Id. Here, this Court should render a declaratory judgment holding Ord. 181/2?2 to be invalid and unenforceable because the City Council has improperly attempted invade the commissioner?s charter-based powers and to impose obligations upon the commissioner that are inconsistent with the charter?s provisions on the same subject. CONCLUSION For the reasons set forth in detail above, plaintiffs FOP and the two police officers respectfully request that this Court find and hold that the Providence City Council?s adoption of the PERA ordinance intrudes upon the constitutional powers of the legislature pursuant to R.1.CONST. Art. 13, 4, and is beyond the legislative authority of the City under R.I.CONST. Art. 13, 2. Moreover, PERA is preempted by LEOBOR, is in conflict with the police- officers? rights established by LEOBOR, and violates the legislatively-mandated exclusivity of the procedural and substantive safeguards of LEOBOR. Finally, PERA is in violation of the City Home Rule Charter because it intrudes upon the charter?based powers of the Commissioner 32 of Public Safety. Accordingly, plaintiffs respectfully request that this Court rule that 0rd. 181/2-2 is invalid and unenforceable, and enter a declaratory judgment to that effect.? 33 By their attorneys, JONES ASSOCIATES 72 South Main Street Providence RI 02903-2907 Tel: (401) 274?4446 Fax: (401) 274-2805 Joseph I. Rodio it" 1693 Michael W. Murphy if 5402 Ronro URSILLO, LTD. 86 Weybosset Street Providence, RI 02903 Tel: (401) 331?6400 Fax: (401) 331-0436 CERTIFICATION On (Qlogi a true copy of the foregoing was served on all counsel of record, listed below,by g; kgiw) . How. 715 4 R. Kelly Sheridan, Esq. Jason C. Preciphs, Esq. Moi "019m?: Roberts, Carroll, Feldstein Peirce, Inc. Teri Weybosset Street Providence RI 02903 Joseph M. Fernandez, Esq. City Solicitor mat/Q City of Providence Law Department Suite 200 275 Westminster Street Providence RI 02903?1845 34 [690-1219105407 STATE OF RHODE ISLAND SUPERIOR COURT PROVIDENCE, SC. PROVIDENCE LODGE no. 3, FRATERNAL ORDER OF KEITH and JOSEPH SARRASIN . CA. No. PC 06-4859 VS. PROVIDENCE EXTERNAL REVIEW . THE CITY OF and DAVID N. in his capacity as Mayor of the City of Providence MEMORANDUM OF LAW IN OPPOSITION TO PLAIN DECLARATORY JUDGMENT ACTION INTRODUCTION in this civil action the Plaintiffs ask this Court to strike down the civilian review process for the Providence Police Department enacted by the Providence City Council. Although numerous redundant arguments are asserted, the heart of the Complaint is the contention that the Providence External Review Authority (PERA) process is inconsistent with and, thus, preempted by the Law Enforcement Of?cers Bill of Rights Act. (LEOE OR). In their zeal to avoid civilian review at all costs, the OP ignores two fatal legal flaws to this challenge: First, the LEOB OR only applies to investigations and activities undertaken by a ?law enforcement agency? and PERA is not, by de?nition, such an agency. R.I.G.L. 42?28.6?2. Second, the ?nal ?recommendation? by PERA t0 the Chief of Police is just that, a recommendation. Providence Code of Ordinances As a. ?preliminary proceeding not resulting directly in disciplinary action,? the PERA process does ?not have to meet the requirements of the Gig? of Q4 East Providence 1). McLaughiid, 593 A.2d 1345, 1351 (R1. 1991). Consequently, for both of these reasons the Defendants urge the Court to sustain the validity of the Ordinance 181/242 and deny and dismiss Plaintiffs? prayer for injunctive relief. BACKGROUND The Providence Extemal Review Authority, was established in 2002 by Providence City Ordinance No. 614 (Chapter 2002-3 9) to provide a system of civilian oversight over the Providence Police Department. PERA has the mission and the authority to investigate and conduct hearings concerning allegations of misconduct on the part of swom of?cers of the Providence Police Department. In addition, PERA has committed its elf to public education regarding police procedures and constitutional rights. Speci?cally, the Providence Code of Ordinances, 181/?2 (the Ordinance?), mandates, ?The authority shall review all allegations of misconduct on the part of sworn of?cers of the city police department, shall investigate the same, conduct hearings and make ?ndings of fact with respect to those allegations. . .. Investigators hired by the authority shall be civilians who have appropriate prior experience or training.? 0rd. (emphasis added). PERA is authorized to receive complaints alleging misconduct by police of?cers including, but not limited to use of excessive force, inappropriate language or conduct, harassment, theft, and discrimination. 0rd. In addition, PERA ?shall conduct such outreach activities as necessary to inform the public of the authority and its practices. Any outreach shall be conducted with sensitivity to the diversity of languages and cultures present in the city.? Ord. Within thirty (3 0) days of the date on which a complaint is ?led, executive director reviews the complaint and recommends to the authority: (1) the complaint be dismissed; (2) the complaint be fomarded to mediation; or (3) the complaint be transmitted for full investigation. 0rd. PERA provides an informal mediation process to resolve these complaints 'of a more minor nature. 0rd. 1 893-201). Should it be determined that a full investigation is warranted, the complaint is transmitted to a civilian authority investigator. Ord. Upon completion of the investigation, the executive director may either dismiss the complaint or forward it to ?ill hearing. 0rd. In the event of full heating, PERA randomly selects a ?ve (5) person panel ?om its members to consider the matter. rl?he panel shall make all reasonable efforts to complete evidentiaiy hearings and render a written decision Within sixty (60) days of the completion of the investigation. In those instances in which the complainant is othelvvise unrepresented by counsel, the authority legal counsel shall present evidence to the panel on behalf of the complainant. The police of?cer may be represented by counsel and union representatives, may present evidence and conduct cross-examination of witnesses. Id. Within thirty (3 0) days of the completion of an evidentiary hearing, the healing panel issues a written report containing ?ndings of fact, a determination of whether or not the complaint has been sustained by a preponderance of the evidence, if applicable, the level of violation described in the disciplinary matrix1 developed by PERA and the Chief of Police, and a ?recommendation? of discipline. Ordinance, When PERA concludes that the complaint is sustained by the evidence presented, it submits its I The Disciplinary Matrix' is attached to the Plaintiffs Memorandum, App. pp. 8-14. 37 ?reconunendation? to the Chief of Police. Ordinance,-? If, and only if, the Chief concurs with the ?recommendation? and sustains the complaint, he/she shall impose discipline in accordance with the disciplinary matrix developed by PERA and the Chief. Id. In any case, the Chief of Police is obligated to provide PERA, the Mayor and the City Council with awritten explanation of the reasons for his/her decision. Id. ARGUMENT Plaintiffs have advanced two principal arguments in support of their assertion that the PERA Ordinance is legally flawed. First, Plaintiffs contend that the PERA Ordinance is preempted by the LEOB OR. Although broken down into a confusing array of redundant labels,2 which the Plaintiffs concede are ?intersecting and overlapping,? all of these contentions claim, in essence, that the PERA Ordinance is in con?ict with the LEOBOR enacted by the General Assembly and, hence, preempted. Plaintiffs? Memorandum, p. 7. Second, the Plaintiffs urge the Court to interpret the Ordinance as an intrusion on the authority of the Commissioner of Public Safety and, hence, in contravention of the Home Rule Charter of the City of Providence. Plaintiffs conclude their plea for the Court to embrace any one of these theories (or labels) with the curious analogy that ?all roads lead to Rome,? with ?Rome? apparently symbolizing the imperial Capital where of?cers are totally immune from any form of review or oversight by mere civilians at any time or under any circumstances. Plaintiffs? Memorandum, p. The reality, however, is that Plaintiffs are re adbloclced by two clear legal conclusions: (1) PERA is not a ?law enforcement agency? and, hence, not subject to or limited by the LEOB and (2) the PERA process results only in a 7' These include: preemption, matters of ?statewide concern?, and ?ultra wires." QR to the Police Chief; it does not result ?directly in disciplinary action .. . [and does] not have to meet the recuireinents of the City oonst Providence v. McLaughlin, 593 A.2d 1345, 1351 (RI. 1991); R.I.G.L. Ordinance, I. The General Assembly c1 afted the LEOBOR to apply only to activities undertaken by a ?Law Enforcement Agency?. ?The enacted in 1976, is the exclusive remedy for pennanently appointed law?enforcement of?cers who are under investigation by a low?enforcement agar: cry for any reason that could lead to disciplinary action, demotion, or dismissal.? City of East Providence McLaughlin, 593 A.2d 1345, 1348 (RI. 1991) (citing 1). King, 120 RI. 868, 87011. 1, 391 A.2d 117, 119 n. 1 (1978))(en1phasis added). Under this Act, any law enforcement of?cer facing charges that may result in punitive action may 1eqnest a hearing befo1e a committee comprised of ee active law enforcement office1s R. I Gen. Laws 42? 286?1 and 42-286-4. This committee has broad discretion to sustain, modify, or reverse the charges. See 42?286-1 1; see also CuZIzane v. Denisewieli, 689 A.2d 1062, Mg- 072111? 12. Dana 40] A 2d 1288 (1978) (citations omitted?. PERA, as a civilian review board, is not? a law enforcement agency? and, therefore, the LEOBOR does not apply to any of its activities, including its procedural processes. a. By its plain, ordinary terms, the LEOBOR only applies to investigations by a ?law enforcement agency? and not to a civilian review board. The requirements of LEOB OR with respect to the conduct of a Jew. enforcement agency conducting an investigation of a law enforcement officer are set forth in R1. Gen. 39 Laws 42286?2 (?Conduct of investigation?). As the plain language of the statute specifies, LEOBOR applies only to instances where an of?cer is ?under investigation or subjected to interrogation by a law enforcement agency.? Id (emphasis added). Speci?cally, 42?286?2 of the Act provides: Whenever a law enforcement of?cer is under investigation or subjected to interrogation by a law enforcement agency, for a non?criminal matter which could lead to disciplinary action, demotion, or dismissal, the investigation or interrogation shall be conducted under the following conditions (Emphasis added.) in like fashion, literally every single section of the LEOB OR restates and confirms that the Act was intended to apply solely to investigations undertaken by a ?law enforcement :53. agency. The principles by which this statute must be construed are oft?repeated and well? known to the Court. ?When charged with the duty of statutory construction, one must read the'language so as to effectuate the legislative intent behind its enactment.? Gilbona Co. v. Ponies, 576 A.2d 1195, 1196 (R.I. 1990). ?in construing a statute, court must give effect to all parts of the statute, if reasonably possible, in keeping with its declared 3 See, cg, RI. Gen Laws 42-286?4 (?Right to hearing Notice request for hearing Selection of hearing law enforcement agency shall give notice to the law enforcement officer?); (?Conduct of law enforCement of?cer shall provide to the charging law enforcement agency a list of all witnesses?); (?Witness fees?) (?Witness fees, mileage, and the actual eXpenses necessarily incurred in securing attendance of witnesses and their testimonyshall be itemized, and shall be paid by the law enforcement agency if the of?cer is ultimately found innocent?); (?Evidence at hearing Hearing recor (?All proceedings before the hearing committee shall be recorded by stenographic record, the expense of whi ch shall be borne by the charging law enforcement agency?); of hearing committee?) (?In any proceeding under this chapter, it shall be the burden of the charging law enforcement agency to prove, by a fair preponderance of the evidence, that the law enforcement officer is guilty of the offense(s) or violation(s) of which he or she is accused?) (emphases added). 40 purpose. Additionally, the words used must be given their ordinaiy and customary meaning unless a contrary intention appears on the face of the statute. If the language of a statute is plain and unambiguous and expresses a single, de?nite, and sensible meaning, that meaning is presumed to be the Legislature?s intended meaning and the statute must be interpreted literally.? Rhode Island Chamber of Commerce v. Hoe/cert, 411 A.2d 300, 303 (R.I.1980). Here, the plain, ordinary and customary meaning of the words chosen by the Assembly compel the conclusion that the LEOB OR was not intended to apply to civilian review panels or to any other investigative body or process not instituted by a ?law enforcement agency.? The language of LEOB enabling statute is plain, unambiguous and expresses a single, de?nite and sensible meaning: the constraints of the LBOB OR shall apply: ?[vv]henever a law enforcement of?cer is under investigation or subjected to interrogation by a law enforcement agency. R.1. Gen. Laws 42428.60. (emphasis added). The Court should presume the Assembly intended these words to be given their plain, literal and common meaning. Hence PERA, as a civilian review body acting independent from any law enforcement agency, is simply not subject to the procedural and substantive constraints of the LEOB OR. lied the General Assembly intended, as Plaintiffs allege, to make LEOBOR the exclusive avenue by which the conduct of police officers is to be assessed and evaluated by any person or entity, even by civilian authorities, the Assembly could have clearly expressed such intent by eliminating the ?law enforcement agency? limitation. The fact that the Assembly repeatedly and consistently limited the scope of the LEOB OR to investigations and proceedings of law enforcement agencies compels the conclusion the 41 Plaintiffs misapprehend the reach of the Act. For this reason alone, the Court should deny Plaintiffs request for declaratcry relief. b. The Rhode Island Supreme Court has held that civilian municipal review of police activities does not fall Within the ambit of LEOB OR. The Rhode Island Supreme Court has already addressed the precise question presented by this Complaint: whether the LEOBOR applies to a municipal civilian investigation of police misconduct. City oonst Providence v. McLaughlin, 593 A.2d 1345 199]). The. court specifically held that it does not. Id. In McLaughlin, the investigation into an officer?s alleged misconduct began in March 1989 when the East Providence Minority Political Caucus informed the city council of alleged racial remarks made by an of?cer and requested that the council investigate the matter. Thereafter, the City?s affinnative-action of?cer, Onna Williams, conducted a preliminary investigation into the allegations. Id. In September 1989, the af?rmative-action officer ?led a report with the city manager, which report stated that ?the evidence shows an overwhelming preponderance of offensive behavior that is continuous and ?ourishing.? Overall, her report, based upon extensive investigation, concluded that the of?cer had diaplayed conduct unbecoming an of?cer'on numerous occasions and recommended that he be terminated. Id. After the city?s personnel director concurred with her ?ndings, Ms. Williams then submitted a formal complaint to the city?s police department, citing the numerous occurrences set forth in her report. The acting chief of police commenced an internal investigation and, eventually, a hearing was held in accordance with the LEOB OR. 1d. 42 In detennining Whether the af?nnative-action of?cer?s actions violated the officer?s rights under the LEOBOR, the Rhode Island Supreme Conit explained: [W]e note the [hearing] committee?s conclusion that the city failed to handle the matter as prescribed by the Law Enforcement Officers? Bill of Rights. Speci?cally, the committee stated that ?the matter should have been investigated in?house by a member of the East Providence Police Department and from day one, the accused . . . should have been advised that he was under investigation.? We find, as the committee did, that the matter was handled appropriately from the time of [the chiefs] investigation. Pn'or to that time Onna . Williams? investigation Was conducted merely to explore the need for an official investigation. As a preliminary proceeding not directly in discgalz'nary action, Wilifams? investigation did not have to meat the requirements cf?ze Law Ezz?ircement O??iccrs? Bil! Rather Consistent with its holding in McLaughlin, the Rho de Island Supreme Court has subsequently eXpIain ed: Like the ?rst issue addressed above status as a civilian, not a law enforcement agency) the Plaintiffs ignore the plain language of the Ordinance which explicitly provides that the ?nal outcome of the PERA. process is a recommendation to the Chief of Police. Ordinance The Plaintiffs repeat selective quotes from 43 the Ordinance in a vain attempt to convince the Court the otherwise. Plaintiffs? Memorandum, pp. 1, 5, 16, 17, 18, 19. Yet repetition by counsel cannot alter the codi?ed language of the Ordinance, which plainly states that, if the PERA hearing panel determines the evidence supports the complaint, it shall submit ?a recommendation of discipline? to the Chief of Police. To eliminate any uncertainty on the precise language set forth in subsection (3) of the Ordinance, it is reprinted below in full: Findings of feet and determination. Within thirty (30) days of the completion of an evidentiary hearing, the hearing panel shall issue a written report containing ?ndings of fact; a determination of whether or not the complaint has been sustained by a preponderance of the evidence; if applicable, the level of violation described in the disciplinary matrix developed by PERA and the chief of police; and a recommendation of discipline. When a complaint is sustained, the ?ndings of fact and the determination shall be submitted to the chief of police. The chief shall impose discipline based upon the level of violation as foond in the disciplinary matrix to be promulgated by the authority in accordance with subsection The chief of police shall also provide the authority, the city council, and the mayor with a written explanation of the reeson(s) for his?rer disciplinary decision. The hearhig panel report and the police chiefs explanation for his/her decision shall be available to the public provided that the name of the complainant and/or respondent shall be kept [sic]. (Emphasis added.) Ord. The same rules of statutory construction apply to municipal ordinances. Mongony v. Bevilecqua, 432 A.2d 661, 663 (R1. 1981). The court is obliged to interpret a municipal ordinance as valid if possible. Carlson v. Town omeith?eZd, 723 A.2d 1129, 1 131 (R1. 1999). Moreover, it is well settled that ?Courts must construe statutes, not redraft them." Estate ongZee, 383 A.2d 586, 5.88, 119 RE. 786, 789 (1978). See also Bremen v. Wowaloem Inc, 107 R1. 270, 267 A.2d 410 (1970) (?in interpreting a statute [or ordinance], it will not be presumed that the [legislative body] intended to reach an unreasonable result or to have its legislation result in absurdities?); 44 Kayo v. Portington, 681 A.2d 256, 261 (RI. 1996) (?[tjhis Court will not construe a statute to reach an absurd result?). It has been said that ?a golden rule of statutory interpretation [is] that, when one of several possible interpretations produces an unreasonable result, that is a reason for rejecting that interpretation in favor of another which would produce a reasonable result.? 2A Norman J. Singer, Statutes and Statutory Construction 45 :12 at 81?82 (6th ed. 2000);, see also v. Clark, 657 A.2d 1062, 1067 (RI. 1995) (noting that courts will not interpret a statute so as to lead to an absurd result). A corollary of that principle is that-whenever the language of an ordinance is susceptible of more than one interpretation, the Courts should adopt the interpretation that will preserve its validity and effectuate its evident purpose. Nantes v. Town ofBristoZ, 102 RT. 729, 232 A.2d 775 (1967). The Defendants concede there is arguably some tension within the Ordinance with respect to the discretion of the Police Chief to accept or decline the recommendation from the PERA hearing panel, speci?cally, within the four sentences, quoted verbatim above, relating to the Chiefs decision. The ?rst sentence plainly states that the decision of the panel is a ?recommendation? to the Chief. The second sentence simply provides that the, panel?s determination shall be submitted to the Chief. The third sentence, upon which the Plaintiffs myopically focus, states that the Chief ?shall impose discipline? based on the disciplinary matrix developed by PERA and the Chief. The fourth and final sentence requires the Chief of Police to provide PERA, the Mayor and the City Council ?with a written eXplanation of the reason(s) for his/her disciplinary decision." 45 In essence, the Plaintiffs urge the Court to overlook the ?rst and fourth sentences, one of which clearly states and the other implies the Chief is not legally lo erd into implementing the hearing panel?s decision. The Plaintiffs are asking the Court to focus solely on the ?shall impose discipline? language in a single sentence. Clearly, that strained interpretation of the Ordinance would run afoul of multiple principles of statutory construction. Not only must the Court read the Ordinance as a whole and give effect to every section, sentence and phrase, but the Court must inteipret the Ordinance so as to praseme its validity, not undermine its validity. Names 12. Town of Bristol, 102 R.l. 729, 232 A.2d 775 (1967). As the Ordinance clearly states, the outcome of investigation is a ?recommendation of discipline?. Ordinance Next, language that requires the Chief to provide, ?a written explanation of the reason(s) for his/her disciplinary decision,? further clari?es that the Chief retains full discretion as to accept or reject the decision, otherwise, why would the Council have insisted on a written explanation for his/her decision? in fact, the Ordinance can reasonably be interpreted in a manner that both preserves its validity and gives effect to each sentence and section of the Ordinance. The Defendants urge the Court to hold that, consistent with the language of the Ordinance, the decision of PERA is simply a ?recommendation? which the Chief is free to accept or reject. Further, if the Chief concurs with the recommendation, that is, that the evidence supports the ?nding, he has wide discretion under the disciplinary matrices with respect to the precise punishment he may impose. Clearly, however, the Council intended that, if 46 the Chief accepted the recommendation of a violation, the discipline he/she would impose would be drawn from the wide array of sanctions for each level of violation. The Defendants urge the Court to ?nd this constraint on the Chief of Police is_ does not contravene the LEOBOR for at least two reasons. First, the Ordinance requires, if not the Chiefs approval, at least his consultation in the development of the matrix. Ordinance ?18V2?2(s) . .developed by PERA and the chief of police?). Second, the matrix itself has an extremely broad range of sanctions or discipline for literally every level ofvz'oiation. See Disciplinary Matrix, Plaintiffs? Appendix, pp. 8?14. Even for the so-called Category violations the most severe violation the matrix permits a wide range of discipline, from nothing more than training or counseling to termination. Hence, the matrix itself do es not unreasonably constrain the Chiefs discretion. Finally, in any case, the police officer involved would be free to pursue the range of rights and privileges provided to him/her under the LEOBOR once the Chief makes a decision to pursue any discipline against the officer. The civilian review process central to the PERA Ordinance is not preempted hv LE OB OR. a. The General Assembly did not intend LEOBOR to be the sole and exclusive remedy in police misconduct matters. Plaintiffs? preemption argument ignores the plain language of the LEOBOR that the scope and purpose of the act is to impart procedural and substantive limitations on all investigations and proceedings of a ?a law enforcement agency.? R1. (1L. 42?28642; see also statutory citations in footnote 3. The Plaintiffs also inisstate the plain language and evident intent of the ?exclusive remedy? section upon which they so heavily rely. R.I.G.L. This section does not provide that LEOBOR shall be the 47 exclusive process by which the conduct of law enforcement of?cers may be investigated. Rather, it provides that LEOB OR shall be the. exclusive remedy of the for all law enforcement o?icers with respect to all proceedings subject to the LEOBOR.4 As demonstrated above in Section I, the LEOBOR only applies to investigations and proceedings by a ?law enforcement agency.? In short, there is a significant difference between the statutory provision quoted, which places a limitation on the of?cers? remedies, and the assertion that this statement expresses the General Assembly?s intent that LEOBOR thoroughly occupy the ?eld of legislation regarding the review of police activities. Further, the Supreme Court othode Island has already rejected this precise contention. City ofEastProvz?dence v.-M0Leagl2lin, 593 A.2d 1345, 1351 (EU. 199]). In fact, PERA is not the first comprehensive arrangement for the civilian review of police activities in the City of Providence. The District of Rhode Island and, subsequently, the First Circuit Court of Appeals have already addressed the subject matter overlap between a municipal police review board intended to protect the rights of aggrieved citizens and the LEOBCR, ?nding that the two may be reconciled to cc?exist. See Coalition ofBlaclc Leadership 1). Ciaoci, 570 F.2d 12 (1st ca. 1978). Defendants respectfully submit that PERA has been crafted so as to do just that, coexist with LEOBOIR. The civilian review process may occur alone or in addition to the proceedings of the law enforcement agency. 1. Background: Coalition ofBlock Leadership vs. Ctoncz' In 197] black residents of Providence ?led a federal class action suit alleging various civil rights violations committed by members of the police department. After ?1 The applicable language from R.I.G.L. 42?28.6?15 provides: ?The remedies contained herein shall be the sole and exclusive remedies for all law enforcement o??icers subject to the provisions of this eh apter.? (emphasis added}. 48 trial of the matter, a consent decree entered on March 27, 1973, (the ?Consent Decree?), providing a procedure through which a civilian complaint against an of?cer could be ?led, investigated and resolved. Coalition 570 F.2d at 13. In relevant portions, the Consent Decree provided for the investigation of each civilian complaint by the Bureau of Personnel and, thereafter, preparation of?a written report regarding the investigation and a hea1ing on each complaint where, ?the investigating of?cer [?om the Law Enforcement Agency] and any officers complained against shall attend.? (Consent Decree at 3.) The hearing proceeded before a hearing of?cer who, ultimately, was empowered to make a ?nding of either ?guilty? or ?not guilty?, which ?nding was transmitted to the Chief of Police, who was afforded discretion to either approve or reject the ?nding. (Consent Decree at 3-4.) If rejected, under the Consent Decree, the Chief could, in his/her discretion, submit charges against the of?cer in accordance with existing depaitmental disciplinary procedures. In any event, the Chiefs action on the heaiing decision was noted in the of?cer?s personnel ?le and all parties were noti?ed 'of the action. Pursuant to the Consent Decree, records of hearings held were to be maintained for two (2) years ?om the original hearing date and are available to the parti es to the complaint or their representatives. (Consent Decree at 4.) 2. ?Coalition Approximately three years after implementation of the Consent Decree in 1973, the General Assembly enacted the Bill of Rights Act, prompting the Providence police of?cers to move for relief from the Consent Decree. See Coalition ofBiack v. Cirmci, 570 F.2d 12 (lSt Cir. 1978) (?Coalition 49 Coalition I arose after the City and the 1Fraternal Order of Police of the City of Providence moved for relief from judgment in the underlying discrimination action. Id. at 13. The District Court treated this action as a motion to vacate the Consent Decree, . denied the motion, and ordered the parties to negotiate modi?cations to the decree to reconcile the rights afforded under the Bill of Rights Act with the plaintiffs? rights to he free from ?racially disc?minatory conduct.? Id. at 13. On appeal, the of?cers pressed, as one of its two arguments, that equity required the court to vacate the decree because of changes in thelfacts of the case due to promulgation. Id. at 13-14. In support of this argument, the of?cers asserted that the procedures of LEOB OR would make the provisions of the consent decree unnecessary and, that continued application of the decree would ?result in unfairness since providence police of?cers would be subject to different regulations than would the police of?cers in other parts of Rhode Island.? Id. at 14. Ultimately, however, the First Circuit af?rmed the District Court?s ruling, .rej ecting both In so holding, the Court explained: The consent decree at least in part was designed to protect the rights of those citizens who felt themselves to be aggrieved by unconstitutional police misconduct. The purpose of the new state legislation [the LEOB was to protect police of?cers from any irnpairrnent of their rights when their conduct is questioned. While there is obvious subject matter overlap between the decree and the legislation, it is also obvious that neither was developed to meet these dual and partially inconsistent purposes. Id. at 14.5 5 See also Coalition of BlockLeodership v. Cz?oncz', 480 F.Supp. 1340, 1341 [1331.]. 1979) (?Coalition of?cers? request to modify consent decree to require suspension of civilian complaint investigation where criminal charges arise out of the same incident). 50 Here, the situation with PBRA requires the same conclusion. PBRA ?ows directly from Coalition]. However, adopting the court?s pronouncement that a civilian review procedure can co?exist with LEOBAR, PBRA has been speci?cally crafted to do so While protecting the rights of aggrieved citizens. In contrast, LEOBOR is merely intended to protect rights of the officer(s) whose conduct is questioned by the department or who are under investigation by the department. 13. Because the General Assembly did not adopt LEOBDR as the exclusive remedy for police misconduct, the City is free to enact PERA and PERA is not preempted. The powers to the General Assembly with respect to home rule communities are set forth in 4 of Article Section 4. Powers of general assembly over cities and towns. The general assembly shall have the power to act in relation to the property, affairs and govemment of any city or town by general laws which shall apply alike to all cities and towns, but which shall not affect the form of govermnent of any city or town. The general assembly shall also have the power to act in relation to the preperty, affairs and government of a particular city or town provided that such legislative action shall become effective only upon approval by a majoriw of the quali?ed electors of the'said city or town voting at a general or special election, except that in the case of acts involving the imposition of a tax or the expenditure of money by a town the same shall provide for the submission thereof to those electors in said town quali? ed to vote upon a proposition to impose a tax or for the expenditure of money. R.I. Const. an. 4. Meanwhile, the Rhode Island Constitution, Section 2 of Article provides: Local legislative powers. Every city and town shall have the power at any time to adopt a charter, amend its charter, enact and amend local laws relating to its property, affairs and government not inconsistent with this constitution and laws enacted by the general assembly in conformity with 51 the powers reserved to the general assembly. R1. Const. Art. 2. The Rhode Island Supreme Court has held that local ordinance or regulation may be preempted in two ways. First, a municipal ordinance is preempted if it con?icts with a state statute on the same subject. . . . Second, a municipal ordinance is preempted if the Legislature intended that its statutory scheme completely occupy the field of regulation on a pa1ticular subject.? Town of Warren v. horntou-l/Wiitehouse, 740 A.2d 1255, 1261 (RT. 1999). Field preemption prohibits municipal regulations in an area in - which the General Assembly has implemented a comprehensive regulatory framework, thereby indicating its intention to reserve that area solely for state control. Amino ?s Inc. v. Metros, 789 A.2d 899 (RT. 2002.). In Amino ?3 Inc, the court explained that: The issue of preemption has appeared in case after casein which we haVe reviewed a municipality's authoiity under home rule. The dueling issues of local authority and state preeminence often intersect because home role requires an analysis of whether the issue is of local or statewide concern, whereas preemption requires an analysis of whether the issue is implicitly reserved within the state?s sole domain. 789 A.2d at 908. Here, the ?rst method of preemption described in Thornton?Whitehorse is not relevant because LEOBAR does not address ?the same subject? as civilian review and, in any case, there is no con?ict between the two. PERA was designed to protect the rights of those citizens who felt themselves to be aggrieved by unconstitutional police misconduct. On the other hand, the purpose of LEOB OR is to protect police of?cers from any impairment of their rights when their conduct is questioned by a law enforcement agency. 52 .L..L.. Second, the Assembly did not draft the LBOBOR in a manner to support a conclusion the Assembly intended to completely occupy the ?eld relating to review of law enforcement conduct. Rather, the Assembly carefully and repeatedly limited the reach of the LEOBOR to investigations and proceedings by a law enforcement agency. Finally, the Supreme Court has already rejected any conclusion that the LEOBOR preempts a civilian review process, Citj} ofEasr Providence v. Molaughiin, 593 A.2d 1345, 1351 (R1. 1991). There, the Court expressly sanctioned a non-law enforcement agency investigation and determination as a preliminary proceeding to the of?cer?s ?ill rights under the LEOBOR. IV. PERA does not violate the Providence Home Rule Charter?s allocation of dgties to the Chief of Police. Finally, the Plaintiffs argue that the PERA Ordinance impermissibly limits the Police Chief?s authority under the Providence Home Rule Charter. Speci?cally, Plaintiffs contend that the Chiefs authority to discipline of?cers is limited by the language in of the Ordinance which, as quoted verbatim above, purports to restrict the Chiefs discretion to the range of sanctions set forth in the disciplinary matrix, if the Chief concurs with the recommendation. This contention misses the mark for at least three reasons. First, the Plaintiffs? entire argument is premised on Section 1001 of the Home Rule Charter which defines the powers of the Commissioner of Public Safety. See Plaintiffs? Memorandum p. 19. The opening sentence of the Plaintiffs? Memorandum on this point (page 19) falsely equates the Commissioner of Public Safety and the Chief of Police. In fact, the two are not one and the same. The Commissioner of Public Safety is 53 appointed by the Mayor and has overall responsibility for three departments, including the police department.6 Second, there is no inconsistency between the Charter and the PERA Ordinance. The Charter simply provides the Commissioner shall be responsible ?for the administration and discipline of the police department.? Home Rule Charter, ?lOOl(a)(l). Even if the Conit concludes that the PERA Ordinance limits in some manner the authority of the Police Chief, such an ordinance would not, in any way, contravene the provisions of the Charter. There are countless ordinances which de?ne, specify, mandate and restrict the functions of department directors, all of whom haVe de?ned responsibility in ceitain areas?of city government in the City Charter. The fact. that the Commissioner of Public Safety has ultimate authority over police discipline does not negate the authority of the City Council to legislate with respect to that function. To the contrary, the Charter expressly authorizes the City Council to enact such ordinances as it deems necessary to ?implement" the Charter. Home Rule Charter, 1403. To further cement the point, the Charter directs the Commissioner of Public Safety with the responsibility for the enforcement of all laws and ?ordinances? relative to the police department. Providence Home Rule Charter, Art. X. 1001(a)(2). This mandate includes the PERA Ordinance. Third, even if the Court concludes that the ordinance do es restrict the authority of the Police Chief with respect to the range of serrations to be imposed, assuming he concurs with the ?nding of fault, such restrictions are, at best, minimal. Not only is the Police Chief involved in the development of the matrix but, as noted above, the matrix 6 Although previous mayors have always appointed Commissioners of Public Safety, Mayor Cicilline has not ?lled the position and has announced that he will serve as his own Commissioner of Public Safety. 54 itself has an extremely broad range of sanctions or discipline for literally every level of vioiari'on. See Disciplinary Matrix, Plaintiffs? Appendix, pp. 8?14. Hence, the matrix itself does not unreasonably constrain the Chiefs discretion and the City Council has legal authority under the Charter to legislate such constraints. CONCLUSION For reasons stated herein, Defendants urge the Court to deny and dismiss the Plaintiffs? prayer for declaratory judgment and to sustain the PERA Ordinance as a valid, constitutional and enforceable ordinance of the City of Providence. Defendants, PROVIDENCE EXTERNAL REVIEW THE CITY OF and DAVID N. CICILLINE, in 'his capacity as Mayor of the - City of Providence . By their Counsel, Roberts, Carroll, Feldstein Peirce 10 Weybosset Street Providence, Rhode Island 02903 (401) 521?7000 (P) (401) 521?1328 (F) 55 CERTIFICATION I hereby certify that on the 18?h day of October, 2006, a true and accurate 00p}! of the within was mailed, postage prepaid, to: Joseph J. Rodio, Esq. Rodio 8c Ursillo, Ltd. 86 Weybosset St. Providence, RI 02903 Lauren B. Jones. I ones Associates 72 South Main Street Providence, <6 307360 l690-12 (1173/06) STATE OF RHODE ISLAND SUPERIOR COURT PROVIDENCE, so. PROVIDENCE LODGE NO. 3, RATERNAL ORDER OF KEITH and JOSEPH SARRASIN CA. 0. PC 06-4859 VS. PROVIDENCE EXTERNAL . THE CITY OF and DAVID N. CICILLINE, in his capacity as Mayor of the City of Providence DECLARATORY JUDGMENT Final JUDGMENT is hereby entered in the above?captioned matter as follows: 1. The Court denies the Plaintiffs? Complaint to invalidate in its entirety Section 181/2?2 of the Providence Code of Ordinances (the Ordinance?). 2. As provided in the PERA ordinance, the Providence External Review Authority may conduct investigations and hearings of alleged police misconduct and, if the Authority concludes such charges are sustained, the Authority may make such recommendation as it deems appropriate, consistent with the PERA ordinance and disciplinary matrix, to the Chief of Police with respect to the resolution or disposition thereof. 3. The PERA Ordinance shall not be construed or interpreted as authorizing the Providence External Review AuthOn'ty to impose discipline directly on any law enforcement Officer under any circumstances. 4. The PERA Ordinance shall not be construed or interpreted as authorizing or requiring the Chief of Police of the City of Providence to impose discipline Without affording 57' is PROVIDENCE LODGE NO. 3 FRATERNAL ORDER OF POLICE ET AL Page 2 the law enforcement of?cer the full protections of the Law Enforcement Of?cers? Bill of Rights Act. Submitted. By, R. Kelly Sheridan #1976 Attorney for Petitioners Roberts, Carroll, Feldstein 85 Peirce, Inc. Ten Weybosset Street Providence, RI 029 03 521-7000; Fax 521?1328 i n. Ste?hd??J. Fortunate, Jr. Dated: 1 mic 0 At Providence, Rhode Island this day of 2006. CERTIFICATION . 11" I hereby certify that on November i5? 20 06, I mailed a true copy of the within to the following: Joseph I. Rodio, Esq. Rodio Ursillo, Ltd. 86 Weybosset St. Providence, RI 02903 Lauren E. I ones, Esq. I ones Associates 72 South Main Street Providence, RI 02903?2907 MaXford Foster, Esq. Assistant City Solicitor Deparmtent of Law 275 Westminster Street, Suite 300 Providence, RI 02903 ,n 58 9&5:an 307355 moo?12 (118106) STATE OF RHODE ISLAND SUPERIOR COURT PROVIDENCE, SC. PROVIDENCE LODGE NO. 3, FRATERNAL ORDER or KEITH and .- JOSEPH SARRASIN CA. No. PC 06-4859 VS. . PROVIDENCE EXTERNAL REVIEW THE CITY and DAVID N. CICILLIN in his capacity as Mayor of the City of Providence QEDER REGARDING FOR DECLARATORY RELIEF The above?captioned matter came on for hearing before Mr. Justice Fortunate on November 3, 2006 on the Plaintiffs? Complaint for Declaratory Relief. Prior to the hearing the parties had submitted memoranda and had agreed upon a record which was submitted to the Conrt at the hearing. After hearing, and upon consideration of the record, the parties? arguments, and the memoranda submitted, for the reasons set forth in the Court?s bench decision of November 3, 2006, the Court hereby DECLARES: 1. The Com-t denies the Plaintiffs? Complaint to invalidate in its entirety Section 181/2-2 of the Providence Code of Ordinances (the Ordinance?). 2. As provided in the PERA ordinance, the Providence External Review Authority may conduct investigations and hearings of alleged police misconduct and, if the Authority concludes such charges are sustained, the Authority may make such recommendation as it PROVIDENCE LODGE NO. 3, PRATERNAL ORDER OF POLICE ET AL P0064859 Page 2 deems appropriate, consistent with the PERA ordinance and disciplinary matrix, to the Chief of Police with respect to the resolution or disposition thereof. 3. The PERA Ordinance shall not be construed or interpreted as authorizing the Providence External Review Authority to impose discipline directly on any law enforcement of?cer under any circumstances. 4. The PERA Ordinance shall not be constrUed or interpreted as authorizing or requiring the Chief of Police of die City of Providence to impose discipline without affording the law enforcement officer the full protections of the Law Enforcement Officers? Bill of Rights Act. ENTERED as an Order of this Court this l?Sg?Jx?day of 2006, at Rhode Island. smear? if! '1 . {Hon St her J. P0 unatgg?lr. 8 mi. ed By: a. K311 sh? idan #1975 Attorne - efendants Roberts, Carroll, Peldstein 85 Peirce, Inc. Ten Weyhosset Street Providence, RI 029 03 521-7000; Fax 521?1328 PROVIDENCE LODGE NO. 3, FRATBRNAL ORDER OF POLICE ET AL 13006?4359 Page 3 CERTIFICATION +1 I hereby certify that on November 2006, I mailed a true copy of the within to the following: Joseph J. Rodio, Esq. Rodio Ursillo, Ltd. 86 Weybosset St. Providence, RI 02903 Lauren E. ones, Esq. I ones Associates 72 South Main Street Providence, RI 02903?2907 Maxford Poster, Esq. Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 300 Providence, RI 02903 61 STATE OF RHODE LELAND AND PROVIDENCE PLANTATIONS OFFICE OF APPEAL SUPERIOR COURT COURT DISTRICT COURT PROVIDENCE COUNTYMOOSEOIM 1_ PROVIDENCE LODGE #3 ORDER OF 2. CASE NO. KEITH AND SARRASIN PCO 6-1I 859 vs. PROUIDENCE EXCEERNAL REVIEH AUTHORITY THE CITY OF PROVIDENCE _111 111 121W 3. Name ofEnch Plaintiff and Attorney Norrie OfEaclI Defendant and Attorney PROVIDENCE LODGE KEITH '1 AND PROVIDENCE EXTERNAL REVIEW CITY OF JOSEPH SARRASIN RODIO AND LAUREN AND DAVID CICILLINE (R. KELLY SHERIDAN AND JOSEPH M. FERNANDEZ, ATTORNEYS) E. JONESJ ATTORNEYS) 9/15/06 11/15/06 (SEE SEPARATE HOTICE) 11/28/06 Date Case First Filed in Lower Coon/Agent: Date olludgmenUOrder Appealed From Date Appeal Filed PARTIES FILING APPEAL: Trial Court Judge: ?lm of 1:13:11 Pine nrlul Plaintif?s) Pelitioner(s) orney 1mg ppen FORTUNAIO, J. WW1 Defendants Res ndenl(5 SARRASIN LAUREN E. AND JOSEPH J. 4. TRIAL COURT ACTION APPEALED Preliminary injunction CJJ Judgment/Judge DPC Denial FostConviclion [j CON Conviction El CDV Directed Verdict MTR Denial Sentence Reduction Permanent injunction CJU Judgment/Jury El DCF Dependeney?emination CJD DAL Alimony El DSJ Summary Judgment CDS Dismissal/Jurisdiction El PRO Probation Violation I3 1151? Agreed Statement of Facts com Dismissal Merits PTM Pretrial Motion El DRP Original Divorce Petition CTD New Trial Motion Denied Juvenile CUS Custody CTG New Trial Motion Granted PCR Grant Post Conviction JUDGMENT FOR: SENTENCES: El Confinement Suspended [Kl Defendant(s) Special Program Probation El Other Fine/Restitution Defened BAJURELEASE STATUS l:l Personal Recognizance Surety Bond Held In Lieu OfDail Held WilhoutBail [3 Cash Bond El Other 5. TRANSCRIPT STATUS I:l Transcript Will Not Be Ordered Filing Fee Required: [Kl Yes No Trial Court Receipt No. Transcript Will Be Ordered Appeal Filing Fee for Each Appellant or Petitioner: ?50.00 Estimated C0313 Court Reporter:_ 1 A . 11/28/06 LAUREN E. JONES 2M1 {ail-Ar ??a?fL DATE FILING ATTORNEY (Print) REG. NO. /Sl NATUREA - 11.. 1.. LI Eli-I 2 8 i 21 7 ?till STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE NO ., 3, FRATERNAL ORDER OF KEITH AND JOSEPH SARRASIN vs. . CA. No. PC 06?4859 PROVIDENCE EXTERNAL REVIEW THE CITY OF AND DAVID N. CICILLINE, IN HIS . CAPACITY AS MAYOR OF THE CITY OF: PROVIDENCE PLOTICE or APPEAL Plaintiffs, Providence Lodge No. 3, Fraternal Order of Police, Keith LaFazia, and Joseph Sarrasin, hereby appeal to the Rhode Island Supreme Court from the Order Regarding Plaintiffs? Complaint for Declaratory Relief and the Declaratory Judgment, both of which entered on November 15, 2006. By their attorneys, ONES ASSOCIATES 72 South Main Street Providence, RI 02903-2907 Tel': (401) 274?4446 Fax: 274?2805 'e 4. me #214] ur 1?14 1 Joseph J. Rodio 1693 Michael W. Murphy ii" 5402 Ronro URSILLO, LTD. 86 Weybosset Street, #400 Providence RI 02903 e1: 3316400 Fax: 331?0436 63 CERTIFICATION On a true coPy of the foregoing was served on all counsel of record, listed below, by MW it .- Maxford Foster, Esq. Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 200- Providence, RI 02903?1845 R. Kelly Sheridan, Esq. Jason C. Preciphs, Esq. Roberts, Carroll, Feldstein Se Peirce, Inc. Ten Weybosset Street Providence RI 02903 AA . Mugm . a . -r:1E? "l I STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS NOTICE OF APPEAL SUPERIOR COURT FAMILY COURT DISTRICT COURT PROVIDENCE PROVIDENCE LODGE #3 FRAIERNAL ORDER OF POLICE, KEITH LAFAZIA. AND EDSEPH SARRASIN PCO 6 "485 9 VS. AUTHORITY THE CITY OF PROVIDENCE PROVIDENCE REVIEN l?iTR capan'irv as Mavma on PROVTDENO AND DAVTD i-i. Name of Each Defendant and Attorney PROVIDENCE EXTERNAL REVIEW CITY OF AND DAVID N. CICILLINE CR. WEEK 3. Name of Each Plaintiff and Attorney PROVIDENCE LODGE :53, KEITH AND JOSEPH (JOSEPH J. RODIO AND LAUREN l3. ATTORNEYS) I SHERIDAN AND JOSEPH t-l. FERNANDEZ, ATTORNEYS) 9/15/05 ll/15/06 (SEE SEPARATE NOTICE) 11/28/06 Date Appeal Filed Name oTEach Party and Attorney Filing Appeal 30V LODGE #3 FOP. LAFAZIL AND SARRASIN (LAUREN .J AND Roma. ETTOOTEYS) Date Case First Filed in Lower Court/Agency Date ofludgmenti?Order Appealed From PARTIES FILING APPEAL: Plainti??Ts) El Petitioner(s) El Defendant(s) Respondent(s) Trial Court Judge: J. 4. TRIAL COURT ACTION APPEALED IPR Preliminary injunction, CJJ Judgment/Judge El DPC Denial Post Conviction CON Conviction El CDV Directed Verdict MTR Denial Sentence Reduction El IPT Permanent Injunction El CJU Judgment/Jury DCF Dependency/Tennination CJD Default Judgment El DAL Alimony El DSJ Summary Judgment El CDS Dismissalflurisdiction El PRO Probation Violation ASF Agreed Statementof Facts CDM Dismissal Merits l:l PTM Pretrial Motion l:l DRP Original Divorce Petition El CTD New Trial Motion Denied l:l FCJ Juvenile El CUS Custody CTG New Trial Motion Granted El PCR Grant Post Conviction JUDGMENT F0 R: SENTENCES: Ij Plainti?Ts) El Con?nement El Suspended Defendant(s) Special Program El Probation Other El FinefRestitution El Deferred um.? Eta?. {ca .Lflz?x?a? BMLRELEASE STATUS if: El Personal Recognizance Surety Bond El Held In Lieu Of Bail . El Held Without Bail El Cash Bond Other a? a. 5. TRANSCRIPT STATUS "a Transcript Will Not Be Ordered Filing Fee Required: Yes El No Trial Court Receipt No. Transcript Will Be Ordered Appeal Filing Fee for Each Appellant or Petitioner: $150.00 Estimated Cost 3 Court Reporfer,1i'fyl?l?lr'f? l. 11/-Sfilti Laotian E. Joana 2141 2" Wes-:1 can: FILING arroanev (Print) REG. no. ?51 . tum] STATE OP RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE NO.. 3, PRATERNAL ORDER OF KEITH AND JOSEPH SARRASIN vs. CA. No. PC 06?4859 PROVIDENCE EXTERNAL REVIEW . THE CITY OF AND DAVID N. CICILLINE, IN HIS . CAPACITYI AS MAYOR OF THE CITY OF PROVIDENCE NOTICE OE APPEQ Plaintiffs, Providence Lodge No. 3, Fraternal Order of Police, Keith LaFazia, and Joseph Sarrasin, hereby appeal to the Rhode Island Supreme Court from the Order Regarding Plaintiffs? Complaint for Declaratory RelieiC and the Declaratory Judgment, both of which entered on November 15, 2006. By their attorneys, JONES ASSOCIATES 72 South Main Street Providence, RI 02903?2907 Tel: (401) 274-4446 Fax: (401) 274-2805 . uren 13/3636 4? 2141 Joseph J, Rodio :1 1693 Michael W. Murphy ,4 5402 RODIO URSILLO, LTD. 86 Weybosset Street, #400 Providence RI 02903 Tel: (401) 331?6400 Fax: (401) 331?0436 66 CERTIFICATION On a true copy of the foregoing was served on all counsel of record, listed below, by 13153 I. - Maxford Foster, Esq. Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 200 Providence, RI 02903?1845 R. Kelly Sheridan, Esq. Jason C. Pi?eeiplis, Esq. Roberts, Carroll, Feldstein Peirce, Inc. Ten Weybosset Street Providence RI 02903 67 STATE OF ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE NO. 3, FRATERNAL ORDER OF KEITH AND JOSEPH SARRASIN vs. C.A. NO. PC 06-4859 PROVIDENCE EXTERNAL REVIEW THE CITY OF AND DAVID N. CICILLINE, IN HIS CAPACITY AS MAYOR OF THE CITY OF: PROVIDENCE MOTION FOR ORDER STAYING PERA PROCEEDINGS PENDING APPEAL Plaintiffs, Providence Lodge No. 3, Fraternal Order of Police [the Keith LaFazia, and Joseph Sarrasin, move pursuant to SUPER. CT. R. CIV. PRO. 62 and SUP. CT. R. APP. PRO. 7 and 8 for an order staying the on-going investigation and proceedings before the Providence External Review Authority pending plaintiffs? appeal to the Rhode Island Supreme Court. Alternatively, if the Court is not inclined to stay the proceedings permanently during the appeal, plaintiffs move for a stay pendente lite while they pursue a stay on appeal from the Rhode Island Supreme Court. The essential ground for this motion, outlined below, is that if the PERA proceeding is allowed to go forward, the appeals of the individual police officers challenging the validity of the PERA proceedings will be mooted the procedural and substantive rights that the police Officers seek to vindicate will be lost before the supreme court can render its own judgment on the novel issues presented by this litigation and the appeal. Under these circumstances, this Court should issue an order to maintain the status quo by holding actions in abeyance (Q pending the outcome of the appeal. The grounds for this motion, in greater detail, are the following: 1. Plaintiffs have appealed from the declaratory judgment entered on November _15, 2006, by which this Court upheld the PERA ordinance, Providence Code of Ordinances 181/2?2. A copy ofplaintiffs? notice of appeal is attached to this motion. Appendix 13.1 ?7 counsel has advised plaintiffs that H. Consistent with that expressed intention, the day after the judgment entered, PERA issued notices re?commencing the PERA hearing process and alerting the officers to the potential Const. Art. 13, 2 to adopt PERA, and 3) whether PBRA is preempted by the Law Enforcement Officers? Bill of Rights. R.I. GEN. LAWS at 569. The only appellate court to rule on the third issue held that the Maryland LEOBOR preempted a local ordinance. See Abbott v. Administrative Hearing Board, Prince George?s Comfy, 366 A.2d 756, 75960 (Md.Ct.Spec.App.- 1975), cert. denied .280 Md. 727 (1977) ("Where provisions of a locally enacted law and. a law enacted by the State Legislature are inconsistent, and, as here, irreconcilable, a conflict exists. The State law preempts the locally enacted law and is controlling?). The Abbott court was also presented with the argument that ?even if there is no actual conflict, provides comprehensive procedures governing disciplinary aetions involving all police officers in the State, and that therefore the Legislature has preempted this field by occupation. Id. While the Abbott court did not rule on this issue because of its finding of a conflict between statute and ordinance, the court found this argument to be ?highly persuasive. Id. There exists, therefore, a likelihood that the Rhode Island Supreme Court will rule in favor of the police Officers. See Pezzo 12. Farm, 690 A.2d 345, 348 (RT. 1997) an issue of first impression is presented to us, we generally look to other jurisdictions for guidance. In challenging the validity of the PERA ordinance, plaintiffs asserted, among other things, that the procedure set forth in the ordinance con?icts with LEOBOR. LEOBOR outlines a meedure that plaintiffs contend is the sole and exclusive procedure applying to police officers under investigation for misconduct. procedure conflicts with procedure (a point PERA did not dispute to date), in that PERA conducts a full, public investigation using civilians as investigators, the police officer subject to the complaint is required to comply with the investigation or suffer further charges of misconduct, and the public investigation can lead to a full public hearing before a board mostly made up of civilians. 70 6. The sUpreine court has noted that ?irreparable iniury occurs where a later determination would be an ?empty victory. Community Progress v. United Way of Southeastern New England, 695 A211 .517, 523 (RI. 1997), citing In re State Employees? Unions, 587 A.2d 919, 926 (R.I. 1991) (Appendix A). net-6,5 without a stay of the PERA procedure pending appeal, the police officers will most likely incur such irreparable harm. It will do them little good to be vindicated on appeal if they have already been compelled, in order court ultimately deems invalid. When considering a stay motion our courts often look to the federal courts? application of its (identical) Rule 62: A stay will not be issued at the federal appellate level unless the party seeking the stay makes a ?strong showing? that (1) it will prevail on the merits of its appeal; (2) it will suffer irreparable harm if the stay is not granted; (3) no substantial harm will come to other interested parties; and (4) a stay will not harm the public interest. Narragansett Electric Co. v. Horse/2, 367 A.2d 195, 197 1976). Beyond that, our supreme court has recognized that the Horse/'2 standards are not the heal] and end?all, and that there are circumstances in which ?the trial justice?s sound discretion should require that matters? be held in status quo pending review ?i Rhode Island Department of Corrections v. thode Island State Labor Relations Bd, 658 A.2d 509, 510 (RI. 1995). Here, a stay should be granted because all standards for a stay are met and if a stay is not granted maintaining the status quo pending appeal the case will effectively be mooted, at least with respect to the individual police officers? procedural rights. As noted, Rhode Island state courts will often look to the federal courts for guidance when ruling on a motion for a stay. See e.g. Home)?? v. City of Waiwielc Police Department, No. ?71 PC 03?4264, 2004 WL 877574, at (P.C.S.C. March 23, 2004) (where trial court relied Upon federal law for guidance when ruling 011 a? motion to stay). Federal courts in this situation have granted a stay precisely because of the uncertainty presented by .an issue of first impression. In making this determination,-courts have not weighed the four stay elements individually, but rather, together: We find that a more reasonable approachto this issue is to balance all of the equities involved in the case together. [Citations omitted] Such an approach means that the necessary degree of probability of success on the merits of the appeal will vary from case to case and "will vary according to the court?s assessment of other factors. [Citation omitted] If the other three factors strongly favor interim relief, then a court may exercise its discretion to reach an equitable resolution by granting a stay if the petitioner has presented a serious legal question that raises a ?fair ground for litigation and thus for more deliberative investigation." [Citation omitted] Such an approach accords with the general trend in other jurisdictions away from a literal mathematical ?probability? requirement. [Citations omitted] Turning now to an application of those standards to the present case, we conclude that [the movant] has raised a serious legal question and that the hardship factors weigh heavily in favor of maintaining the status quo. if 4: >11 In its reSponse to the motion for stay, the Commission does not dispute [the movant?s] contention that the issue raises on appeal regarding the proper construction of 4 Del. C. 561(b) is an issue of first impression. Moreover, the Commission concedes that this Court has not considered previously the "repeated and continuous? standard Of Section 561(b). Thus, we conclude that me movant?s] appeal presents a substantial question that is "a fair ground for ligation and . . . more deliberative investigation. Kirpar, Inc. Delaware Alcoholic Beverage Control Commission, 741 A.2d 356, 358 (Del. 1998) (emphasis added). This ruling is in accord with federal court decisions granting stays under FED. R. Civ. P. 62 when an issue of first impression was present. See Walsh v. Walsh, 221 F.3d 204, 212 (lst Cir. 2000) ("In light of the many issues of first impression posed by this case, the district court stayed execution of its order pending appeal. Pearce 10. v. EF. Hutton Groups, trio, 828 F.2d 826, 829 1987) District Court granted Hutton Group?s motion for a stay pending appeal i? [when it] found Hutton Group?s arguments that Pearce?s claims were subject to arbitration raised ?issues i of first impression,? and that Hutton Group would suffer substantial harm if'Pearce?s action were not stayed pending appeal and the District Court was later reversed. Washington Metropoiimu Area Transit Commission v. Holiday Tours, Inc, 559 F.2d 841, 844 1977) may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained); United States V. Fourteen Various Firearms, 897 F.8upp. 271 1995) (?The issue on appeal in this case is one of first impression in this circuit. This factor weighs in favor of granting a stay because clear precedent from the Court of Appeals does not dictate the outcome of the substantive issue decided by this court and presented by the appeal. . No substantial harm will come to the other interested parties PERA and the City because if PERA and the City prevail on appeal the only ?harm? will have been a delay in the PERA proceedings. The PERA ordinance was first adopted in 2002 and it was not until 2005 that PERA was finally up and running, leading to this case in the middle of 2006. To date the City and PERA have not shown any strong need to move forward with great speed. Allowing this ?test case? to play out will not harm PERA generally or with respect to the individual case that triggered this litigation. The public interest will also not be harmed for the same reason the appeal of this issue would only temporarily delay PBRA proceedings if the City and PERA prevail on appeal. Because the PERA ordinance is the first one of its kind in Rhode Island, certainly since the enactment of LEOBOR, this case presents an issue of first impression. Likewise, in the 73 event that this Court?s judgment is reversed, without a stay, the plaintiff police officers? statutorily-guaranteed substantive and procedural rights under LEOBOR will be compromised. As shown, this amounts to irreparable harm for the officers. Additionally, delay in the PERA proceedings will harm neither the other party nor the public interest. Plaintiffs respectfully submit that this Court should grant a stay pending appeal because Rhode Island law on the key issrie in this case is unsettled. The likelihood of one party or the other prevailing on this key issue is simply unknowable. The status quo should therefore be maintained to permit the Rhode Island Supreme Court?s ultimate ruling on this issue to be given effect. For the above-stated reasons, plaintiffs request this Court to issue an order to maintain the status quo by holding actions in abeyance pending the outcome of the appeal. Alternatively, plaintiffs request that this Court issue a short?term stay pendants lire to provide plaintiffs with a period of time within which to seek and secure a stay pending appeal from the Rhode Island Supreme Court. By their attorneys, onus ASSOCIATES South Main Street Providence, RI 02903?2907 Tel (401) 274?4446 Fax: (401) 274?2805 ?ue KJOpies {it 2141 Joselmo if 1693 Michael W. Murphy ii" 540?. Ronro 8.: LTD. 86 Weybosset Street, #400 Providence RI 02903 Tel: (401) 331?6400 Fax: (401) 331?0436 ?7/1 CERTIFICATION On 12 i4; (9 C, a true copy of the foregoing was served on counsel of record, and others, listed below, by (614,5th . R. Kelly Sheridan, Esq. Jason C. Preciphs, Esq. Shaw?Q Wluue? Roberts, Carroll, Feldstein Peirce, Inc. Ten Weybosset Street Providence RI 02903 Maxford Foster, Esq. . Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 200 Providence, RI 029034845 75 1 1-D .U, willSTATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS NOTICE OF APPEAL SUPERIOR COURT El FAMILY COURT [l DISTRICT COURT PROVIDENCE 1 PROVIDENCE LODGE #3 FRATERNAL ORDER OF POLICE 2. CASE NO. KEITH LAFAZIA AND iosnpn SARRASIN PROVIDERCE EXTERNAL REVIEW AUSIHORITYE THE thIiTY OF REE Name ofEach Defendant and Attorne)J PROVIDENCE EXTERNAL REVIEW CITY OF PROVIDENCE: AND DAVID R. CICILLINE (R. KELLY 3. Name ofEach Plaintiff and Attorney PROVIDENCE KEITH AND JOSEPH SARRASIN RODIO AND LAUREN . JONES, ATTORNEYS) SHERIDAN AND JOSEPH i'l . FERNANDEZ ., ATTORNEYS) 9/15/06 11/15/06 (SEE SEPARATE NOTICE) 11/28/06 Date Case First Filed in Lower Court/'Ageney Date Appealed From Date Appeal Filed PARTES FILING APPEAL: Tm, Court Judge. Name ?Each Pan? and . . . Attorney Filing Appeal Plaintl?'Is) Pet1t10ner(s) FORTUNATO, J. PROV LODGE FOP: Def ndo 3 Res ndent 5 AND SARRASIN (LAUREN . p0 (J ATT 4. TRIAL COURT ACTION APPEALED [3 Preliminary Injunction CJJ Judgment/Judge El DPC Denial Post Conviction CON Conviction CDV Directed Verdict MTR Denial Sentence Reduction Pennanentinjunction CJU Judgment?mjv DDCF Dependeney?emmation El CJD Derauurudgment El DAL Alimony El DSJ Summary Judgment El CDS Dismissal/Jurisdiction El PRO Probation Violation El ASF Agreed SLaiemcntofFacts El CDM Dismissal Merits El PTM Pretrial Motion El DRP Original Divorce Petition CTD NewTrial Motion Denied El FCJ Juvenile cos Custody El CTG New Trial Motion Granted PCR Grant Post Conviction IUD FOR: SENTENCES: 3 :36 Plaintif?s) El Con?nement Suspended or: I. Defendant(s) Special Program Probation 43; El Oih?l? Fine/Restitution El Deferred T: t: STATUS El Held In Lieu Of Bail Other Surety Bond Cash Bond El Personal Recognizanoe El Held Without Bail 5. TRANSCRIPT STATUS Filing Fee Required: Yes No Trial Court Receipt No. Appeal Filing Fee for Each Appellant or Petitioner: 5 l50.00? Transcript Will Not Be Ordered Transcript Will Be Ordered Estimated Cost 3 Court Reporter: 1/ a ADM E. JONES 2151 i LAUREN Fm nun Mn I?rf . w-E-nhkmu no.4..n 3? il_l_.l_1 JNES RNEYS) CLERK mirror-120 l3 3: 0 I. . lill'lCl'l -l:r ., I -H. STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE 3, PRATERNAL ORDER OF KEITH AND JOSEPH SARRASIN VS. CA. No. PC 06?4859 PROVIDENCE EXTERNAL REVIEW . THE CITY OF AND DAVID N. CICILLINE, IN HIS CAPACITY AS MAYOR OF THE CITY OF PROVIDENCE NOTICE OF APPEAL Plaintiffs, Providence Lodge No. 3, Fraternal Order of Police, Keith LaPazia, and Joseph Sarrasin, hereby appeal to the Rhode Island Supreme Court from the Order Regarding Plaintiffs? Complaint for Declaratory Relief and the Declaratory Judgment, both of which entered on November 15, 2006. By their attorneys, JONES ASSOCIATES 72 South Main Street Providence, RI 02903?2907 Tel: (401) 274-4446 Fax: (401) 274?2805 Joseph J. Rodio 1693 Michael W. Murphy 5402 Ronro URSILLO, LTD. 86 Weybosset Street, #400 Providence RI 02903 Tel: (401) 331?6400 77 Fax: (401) 331?0436 CERTIFICATION On f/L?Fffa/pt a true cepy of the foregoing was served on all counsel of record, listed below, by {fig 4.- Maxford Foster, Esq. Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 200 Providence, 02903-1845 R. Kelly Sheridan, Esq. Jason C. Preciphs, Esq. Roberts, Carroll, Feldstein Peirce, Inc. Ten Weybosset Street Providence RI 02903 78 . . $313.: . . . 79 (1.011. . .1 1.x 3d.r. ub?suiu I withhn bit. .Vl. . on ST AT OF RI-IODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE COUNTY SUPERIOR COURT PROVIDENCE LODGE NO. 3 FRAII ERNAL ORDER OF AND JOSEPH SARRASIN vs. CA. No. PC 06?4859 PROVIDENCE EXTERNAL REVIEW . THE CITY OF AND DAVID N. CICILLINE, HIS . CAPACITY AS MAYOR OF THE CITY OF: PROVIDENCE ORDER DENYING MOTION FOR STAY ON APPEAL This matter came to be heard before Justice Fortunato on December 6, 2006, on plainti??s? Motion for an Order Staying PERA Proceedings Pending Appeal. For the reasons set forth in the Court?s bench decision of December 6, 2006, it is hereby ORDERED: I. Plaintiffs? motion for stay pending appeal is denied. ENTER: PER ORDER: Order presented by Lauren E. Jones [if JONES ASSOCIATES 72 South Main Street Providence RI 02903-2907 Tel: 274-4446 Fax: (401) 274-2805 Plaint?fjir attorney 81 . - . CERTIFICATION On I 04 a tr c3013}I of the foregoing was served on counsel of record, and others, listed below, by 0 . R. Kelly Sheridan, Esq. I ?pi/7 Jason C. Preciphs, Esq. Roberts, Carroll, Feldstein Peirce, Inc. Ten Weybosset Street Providence R1 02903 Maxt?ord Foster, Esq. Assistant City Solicitor City of Providence Department of Law 275 Westminster Street, Suite 200 Providence, RI 02903?1845 82 12?? ANNUAL NACOLE CONFERENCE National Association For Civilian Oversight of Law Enforcement Making Justice Visible Monday, September 251;; hursday 28m, 2006 AGENDA Mondav, September 25th. 2006 10:00 a.1n. 12:45 pm. 1:00 p.n1. 2:30 p.1n. 2:45 p.n:1. 2:45 p.n:1. 6:00 p.m. Registration Pipes and Drums Fanfare Session One Plenary Session Training Session I: David Harris: ?The Place of Civilian Oversight in Preventive Policing? Break/Refreshments Session Two Concurrent Session PolicefYouth Relations Session Three Concurrent Session How to Make Policy Recommendations Opening Reception: Basque Street Party Tuesdav, September 26th, 2006 8:30 a.1n. 8:30 am. 10:00 am. 10:15 a.m. 12:00 2:15 p.m. 2:15 p.m. 3:45 p.m. Session Four Concurrent Session Service Quality Complaints: Diversion Methods for Rapid Resolution Session Five Concurrent Session Training Session II: Ethics in Law Enforcement Break/Refreshments Session Six Plenary Session Featured Speaker: The Honorable B. Winmill, Chief Judge, U.S. District Court, District of Idaho: ?Investigating Yourself, A Tale of Woe? Keynote Luncheon: The Rule of Law in a Time of Terror David Z. Nevin, Esq., Nevin Benjamin McKay, LLP Session Seven Concurrent Session Town Hall Meeting: Establishing Professional Standards for Oversight Professionals and Current Issues in Civilian Oversight Session Eight Concurrent Session Database Tracking Systems for Effective Oversight Break/Refreshm ents 83 4:00 p.m. 4:00 p.m. Session Nine Concurrent Session Training Session Autopsies Other Medical Evidence in Use?of?Force Investigations Session Ten Concurrent Session Training Session IV: Basic Skills for Conducting Reviewing Oversight Investigations Wednesdav. September 27th, 2006 8:30 a.m. 8:30 a.m. 10:00 am 10:15 a.m. 10:15 a.m. 12:00 pm. 1:30 p.m. 3:00 3:15 p.m. 6:30 pm. Session Eleven Concurrent Session Training Session V: Conducting Civilian Oversight Investigations: Implementing/Evaluating the Investigation Plan 8: Interviewing Complaints Session Twelve Concurrent Session Rampart: Lessons for Civilian Oversight Featuring Matt Lait and Scott Glover of the LA Times BrealdRefreshments Session Thirteen Concurrent Session Training Session VI: Conducting Civilian Oversight Investigations, Part II: Case Studies Session Fourteen Concurrent Session Oversight Behind Bars: Bringing Meaningful Review to Jails Prisons Break for Lunch Session Fifteen Plenary Session Dr. Lorie Fridell: Policing Racial Bias: What Jurisdictions Can do to Promote Fair and Equitable Law Enforcement Practices Break/Refreshments NACOLE General Session and Election Evening Reception: An Evening at the Anne Frank Human Rights Memorial and Idaho Historical Museum (Sponsored by Boise State University and Hewlett?Packard Company) Thursdav. September 28th, 2006 8:30 a.m. 8:30 a.m. 10:00 a.m. 10:15 a.m. Session Sixteen Concurrent Session . Perspectives in Profiling (Simon Wiesenthal Center) Session Seventeen Concurrent Session Less Lethal Use of Force, the Law Enforcement Dilemma Break/Refreshments Session Eighteen Plenary Session Closing Plenary Speaker: Michael R. Bromwich, Esq. Conference Concludes 84 Providence External Review Authority NACOLE 12TH ANNUAL CONFERENCE In BOISE, IDAHO REPORT By PERA Staff Training Session One Concurrent Session he Place of Civilian Oversight in Preventive Policing? Panelist David A. Harris: E.N. Balk Professor of Law and Values, University of Toledo, Toledo, Ohio David A. Harris is the Eugene Balk Professor of Law and Values at the University of Toledo College of Law, and former Senior Justice Fellow at the Open Society Institute in New York. Professor Harris wrote a book called ?Good Cops: The Case for Preventive Policing. The book shows that police departments in the U.S. have begun to embrace a new approach to law enforcement, which Harris calls ?preventive policing.? In a series of compelling stories from cities and towns around the nation, Harris shows how preventive policing has succeeded on the ground and has produced something that many thought impossible: police work that both reduces crime effectively, and also respects the civil rights and dignity of citizens. Harris has presented groundbreaking research to the U.S. Senate and other government bodies, and he also does police training around the U.S. Professor Halris has been described by American newspapers as ?America?s leading authority on racial profiling,? and his 2002 book, titled ?Profiles in Injustice: Why Racial Pro?ling Cannot Work,? marked a major turning point in the public debate on profiling in the U.S. His work has become the basis for laws enacted against racial pro?ling in states across the U.S. This presentation attempted to broaden the focus of civilian oversight practitioners and those who study civilian oversight by showing how oversight ?ts into the broader ideas of preventive policing. This section showed how the various oversight strategies in use today fit naturally with several other central concepts in preventive policing. David Harris stated that given the position and the power we give the police we must have civilian oversight. What?s really at stake, nothing less than our democratic findings? The idea of prevention people in law enforcement etc., talk about preventive methods and bringing knowledge back to groups. There is a remarkable receptiveness to these ways of thinking. The purpose of civilian oversight is preventive policing. Core idea at the center of David?s book: 1. Building bridges get people on both sides or divide by building bridges to create relationships. 2. Problem solving-idea of problem base policing instead of looking at each incident individually, view it as a whole. Instead of viewing as a discrete incident, question why is there continuous problems. 3. Internal-civilian oversight. External-account to its command staff. Changes in leadership Changing police culture-probably the most difficult ones to change. This has been a huge problem throughout the years. 85 These are the five key ideas: 1. 2. Where does civilian oversight fit with preventive policing? All take cooperation, a degree of neutrality, and respect (respect from both sides). David feels that we as oversight people are the ones that need to support these ideas in order for the oversight to be successful. Varieties of civilian oversight by Sue Quinn. This is not to say that civilian oversight is an exact science. Quinn says there are many different forms of civilian oversight of police agencies, and no single model that fits every community. Each model has its and weaknesses, evaluated in Quinn?s ?The Varieties of Oversight? on web? site, a clearinghouse for grassroots advocates. But, Quimi says, there are three basic mistakes to avoid: (1) Failure to be adequately infomied, educated and prepared (2) Over-identification with the community, and (3) Over-identification with the police. There are other di?iculties. The initial stage of gathering information and educating the public can be daunting, she says, and burnout is common. The process is long and often community members become ?rustrated and give up. Neutrality and independence, essential to the e?ectiveness of any oversight body, are also ?'agile. Cooperation by the police is not unusual. In addition, critics of civilian oversight have argued that many such boards do not have su?icient powers to conduct full, independent investigations and so are ineffective. Opponents ranging ?om' left political activists to police o?icers have lodged this criticism, which advocates admit applies to some, but not all-civilian oversight. Experts recommend two models of oversight to avoid such tooth- lessens: (1) Independent civilian review boards (as in Minneapolis and Iowa City) with subpoena powers; (2) The power and budget to hire an independent investigator if necessary, and independent auditors with similar powers (as in San Jose). The civilian review board model has the added bene?t of involving pe0ple in the process, roughly analogous to the jury model for criminal trials. Effectiveness is difficult to measure, say advocates. But in Iowa City, for example, witnesses who are reluctant to talk to police continue to come forward with testimony for the city's Police Citizens Review Board, now in its eighth year. The number of complaints has dropped significantly, board members believe police behavior has improved, and the community remains supportive. Advocates in other communities can still expect opposition, says Quinn, especially from law enforcement of?cials and their political supporters, but they should not assume that all police of?cers oppose them. Quinn, a retired probation officer, says people get involved in oversight for various reasons. Many of them are former employees of law enforcement or probation, who see the need for oversight firsthand. In fact, law enforcement of?cials who are supportive, or at least open-minded, can be invaluable in establishing civilian oversight. Still, as Walker has noted, civilian oversight is no panacea. The arduous tasks of education and organization?and what Quiim calls ?respectful vigilance,? modeling what communities expect from the police?is enough to keep activists busy for years at a time. But the problem of police misconduct is not going away. Where 86 4. 5. the movement goes ?om here is a good question, says Quinn, perhaps for activists at the upcoming Miami conference. In order to be success?il you need ?not identi?ed with community or police; respect toward both.? Fair, ?rm, consistent dialogue over clearly de?ned issues. Oversight Activists and Professionals: 0 Have a broad vision I You have the tools, the foresight, and the tenacity. I You are ideally positioned to help your community to focus on prevention policing. Example: Building bridges: Metro, Detroit in 1998-1999 issues was racial pro?ling. Daedre McGhee, one of Detroit?s African American Leaders, decided that the time had come for minority community and the law enforcement to ?nd common ground on the issue of racial pro?ling. McGhee then the associate director of the Detroit Branch of the National Conference for Community and Justice (N CCJ), a national nonpro?t organization with a history of building and advocating fairness in the justice system, saw an Opportunity: the Detroit police department had a new chief, who had changed the leadership in many parts of the organization. Born in the non?pro?t community for many years. It was her feelings that it will always be some disagreement about her feelings. ADVOCATES AND LEADERS FOR POLICE AND COMMUNITY TRUST (ALPACT): This group, based in metropolitan Detroit, organized itself to confront racial pro?ling in 1999. In 2001, it became the vehicle for law enforcement and the community to come together around issues arising from the attacks of September 11. story appears in Chapter 3 of Good Cops, called ?Building Bridges.? This website, sponsored by the National Conference for Community and Justice, Michigan Accountability: Police accountability, where civilian oversight is involved. Accountability to the public, to the rule of law, and to the goal of fair, effective and constitutional law enforcement promises the best possible chance not just to control the behavior of individual of?cers but to create a police culture in which of?cers hold themselves and each other to a high standard of conduct and honesty. The challenge of police accountability is not how to ?get? a few bad of?cers but how to ?x organizations. A single?minded focus on accountability gives us the best chance to achieve real organization change. Police has to be accountable to the citizens they serve (external) and to their compound structure, policies and mission (internal) A world without Police Accountability: No accountability, no trust No trust, no intelligence (no information) ?Us them?, institutionalized Safety for citizens and of?cers is set back 87 The altemative is a loss of credibility and legitimacy incompatible with democracy. This is what happened in the debate over racial profiling by police on roads and highways in the United States. When a substantial number of people question whether police enforce the law fairly, they implicitly question the integrity of all police action. Session Two?Concurrent Session Police/Youth Relations: ?Effective Strategies to bridge the Gap? Panelists: Karen Barbee: Member, Boise Youth/Police Relations Committee, Boise, Idaho Kim Bogucki: Detective, Seattle Police Department, Seattle, Washington Matt McCarter: Coordinator, Youth Services, Department of Parks and Recreation, Boise, Idaho Moderator: Pierce Murphy, Community Ombudsman, Boise, Idaho (a government official appointed to receive and investigate complaints made by individuals against abuses or impulsive, unpredictable acts of public of?cials; one that investigates reported complaints reports findings, and helps to achieve equitable settlements). Civilian oversight agencies and boards have a responsibility to conduct community outreach activities and participate in efforts to resolve con?ict, encourage open communication, and build trust between law enforcement agencies and the many diverse constituencies within their community. Flashpoints and conflict can be diverted or prevented when the police are encouraged to actively engage with disaffected populations, include youth. Panelist described their efforts to open and maintain an on? going dialogue between the police and the youth of their communities. The cuirent relationship between youth and police has been described as negative. Common problems in the relationship have included; a lack of trust, racial and cultural differences, little or no contact, except through police responding to crime?related incidents, and high levels of anger, fear, and hostility between the two groups. The relationship has been described as one of natural adversaries. This hostile relationship discourages open communication between police and youth, which, in turn, further exacerbates the levels of distrust and fears felt by both youth and police officers. Without open communication chances for violence are increased. Officer and citizen safety are threatened, unnecessarily. Public order is also threatened by a negative relationship between police and youth. For example, police giving simple directions to youth to disperse can, without a positive relationship between the police and the youth, lead to violence, property destruction, arrests, court hearings and more. The current relationship between police and urban youth can be dysfunctional and is directly related to increased levels of violence, physical injury to police o?icers, youth, and others, and contributes to disrupting public order. 88 The officers in this strategy to build a bridge between the youths and the law enforcement by doing role-playing and asking questions like: Name one thing you don?t know about me. What will make our contact easier? Being able to take this program in the community and helping the youths to utilize their skills is a form of building bridges and participation and in effort to resolve con?icts. Another program, known as Street SMART (Skills, Mastery and Resistance Training)?is also used in schools to teach kids about gangs. This 27-week curriculum teaches gang awareness and resistance, conflict resolution and positive in?uences. I Betsy Jenkins, who works with a parent advocacy group in Evanston, believes kids need more education. ?There needs to be more outreach from the police department. Officer Friendly needs to be a little more friendly,? she says. When the general public thinks of gangs, it makes an automatic link to African-American and Latino youth. But in fact, many white kids are involved in gangs and many gangs today, especially those in the suburbs, are racially mixed. So why the misconceptions? ?It's the racist society we live in choosing to capitalize on people's fears,? says Matthews of the Chicago Police Depaltment. ?Society at large chose to accept a small group and keep everyone else out," he says. Detective Kim Bogucki has been a member of the Seattle Police Department for over 18 years. Her current responsibilities include working with 10 different demographic communities with an emphasis on newer immigrating communities. Detective Bogucki co?wrote the Donut Dialogue Program with a group of homeless and street involved youth. This program brought this community and the police together to discuss their perceptions, differences and ultimately made each side aware of some similarities. She has also co-writtcn a Role Reversal program with a group of Seattle high school and middle school youths. In addition she put together the ?Life Choices and the Law? Teen Summit, a Summit for teens with 4 workshop: Role Reversal (above) The Law and You (an interactive video with scenarios and discussions) Decision Making (follows the S.O.D.A. concept (Stop, Options, Decide, Act) 3> Street Smart (anti- gang valuing differences) Detective Bogucki was awarded the 2001 Red Cross Heroes Award for her work with Homeless and Street?Involved Youth and Youth Adults and the 2003 Seattle Police Foundation Award for Excellence for the development and implementation of the Donut Dialogues program. Matt McCarter who is currently a Coordinator with Boise Parks Recreation Youth Services Unit. His background is in facilitation, leadership development and experiential education. He managed the Seattle Police Department volunteer program and served as a JustServe AmeriCorps Volunteer. He has merged his work with the youth program and the position with the Department of Parks and Recreation to set up a program to work with youths on a volunteer basis. He has taken the youths out of the streets and put them to work in the parks under a volunteer basis. They stay with the program until they come of age and offered to work in the 89 Parks under a permanent basis. This volunteer program with the youths in the park encourages other youths to participate and it takes them off the streets to help cleaning up the streets. Karen Barbee is a Member of the Boise YouthJPolice Relations Committee. Currently, she is involved in the C-72 service club, National Honor Society, and a member of the Youth/Police Task Force. Session Three ran concurrent to session two Session Four Concurrent Session Service Quality Complaints: ?Tiversion Met/rodsfor Rapid Resolution? Panelist Pierce Murphy: Community Ombudsman, Boise, Idaho Michael Masterson: Chief, Boise Police Department, Boise, Idaho Richard Rosenthal: Independent Monitor, Denver, Colorado Leslie Stevens: Director, Independent Police Review Division, Portland, Oregon John Tellis: Captain, Internal Affairs Division, Portland Police Bureau, Portland, Oregon Moderator Pierce Murphy: Community Ombudsman, Boise, Idaho Police departments, civilian oversight agencies and boards report spending signi?cant amounts of investigative and staff time documenting, investigating, and resolving complaints from individuals not satis?ed with the service they received from a police o?icer. Often these complaints stem from poor communication or unrealistic expectations. Most do not involve corruption, brutality or other serious police misconduct. In this session, panelists from tln'ee different agencies will explain how their police and oversight agencies are working together to respond to service quality complaints. Among other things, session participants will learn about setting criteria for the diversion of cases, designing a system to maximize learning for both officers and complainants, and setting safeguards to ensure that true misconduct does not go undetected. As a result of attending the session, participants will be able to plan the establislnnent of service quality complaint diversion program for their own agency. Michael Masterson is Chief of Police of Boise, Idaho. He leads Idaho?s largest police department, in the state?s Capitol City, with 350 employees, up to 288 of those sworn police of?cers. The Boise Police Department (BPD) is an organization that doesn?t rest on its reputation as a high quality service and community oriented police department. BPD surveyed their residents on the quality of their service and they are always searching for best practices to demonstrate their commitment to continuous improvement. Beginning in April 2005, the Boise City Ombudsman began forwarding certain citizen inquiries from citizens directly to a police captain. This new process was developed cooperatively between Boise Police and the Ombudsman and is referred to as Rapid Resolution Inquiries. The goal was to better serve citizens by putting them into direct contact with a police supervisor who could 90 quickly answer their questions or resolve their concerns. In 2005, the Ombudsman forwarded 58 of these inquiries to BPD. Both the Department and the Ombudsman find this process very successful for everyone involved. The process is credited with greatly reducing the time needed to resolve citizen inquiries, from 51 days in 2004 to 20 days in 2005. The Department is and will continue to be committed to not only providing quality, professional, and ef?cient law enforcement service to the citizens of Boise, but also objective, fair, concerns regarding the actions of officers. Richard Rosenthal currently serves as the Independent Monitor for the City County of Denver. The Of?ce of Independent Monitor (OIM) began operations on August I, 2005. The OIM monitors the Denver Police and Sheriff Department?s handling of citizen complaints, internal criminal and administrative investigations, officer-involved shooting and in-custody death investigations. The Monitor makes recommendations regarding the imposition of discipline and conducts audits of issues of importance to the Departments and the community. The Monitor has limited jurisdiction over uses of deadly force by Fire Department Arson investigators. Prior to June 2005, Richard Rosenthal was Director, Independent Police Review Division (IPR), City of Portland, Oregon, Auditor?s Of?ce. The IPR Director acts as an independent police auditor?monitor-ombudsman for the City of Portland, directly reporting to the elected City Auditor. Responsibilities included: . taking all citizen complaints against members of the Portland Police Bureau, and reviewing and monitoring police internal investigations, ?ndings and imposition of discipline; . coordinating an amrual audit of officer?involved shooting investigations, findings, policy and training; . conducting specialty audits on an ongoing basis; . facilitating the work of the Citizen Review Committee, handling appeals of findings resulting from internal affairs investigations and recommendations regarding case handling and Police Bureau policies. Leslie Stevens is an attorney who has spent over ten years representing local governments. Her experience includes prosecuting criminal cases, handling and advising management on collective bargaining issues and labor grievances, providing legal advice to risk managers and police bureaus on policies and practices, as well as liability defense and civil rights litigation. She is currently the Director of the Independent Police Review Division in Portland, Oregon. Her office is responsible for handling or monitoring the Bureau?s handling of all citizen complaints made against the Portland Police Bureau and for recommending changes to Bureau policies and procedures to promote higher standards of competency, efficiency and justice in the provision of police services. Stevens said she knows taking complaints about police officers can be a thankless job. "There?ll always be those who don?t think it?s working and don't think it can be fair and impartial.? She said her top priority is to improve relations between the city, police and citizens. John Tellis is a 22-year veteran of the Portland Police Bureau and holds the rank of Captain. He is currently assigned to the Internal Affairs Division. During his tenure with the Police Bureau he has worked in the Operations Branch, Investigations Branch, and Services Branch. Additionally he has an extensive background in training and deveIOpment. 91 Session Five ran concurrent to session four Session Six Concurrent Session ?Tizvestigating Yourself, A Tale of Woe? Panelist Featured Speaker: The Honorable B. Winmill, Chief Judge, US. District Court, District of Idaho. The discipline of Federal Judges is done by Federal Judges. They investigate themselves. The Constitution requires this system to preserve the independence of the Federal Judiciary. Consequently, they face the serious problems accompanying any self?policing system. Judge Wimnill presently sits on the Judicial Council of the Ninth Circuit Court of Appeals, The main disciplinary body for Federal Judges in that Circuit. He has explained to us what happens in the absence of the type of independent oversight provided by NACOLE members. Judge Wimnill started his presentation by stating how he truly admired the work of the Civilian Review Board. He thought that it was really phenomenal responsibility. I have been thinking a lot about what it is we have in common. I can think of about two things: He thought our work to some extinct overlaps. He handles a lot of police misconduct claims, and the conduct in the context in section 1983 claims brought against police officers. However, I think more importantly and what is going to explain my discussion here today is that our interest overlap because I share with you an intense interest and the need for appropriate oversight of those charged with enforcing the laws of the United States. Honorable Wininill explained his interest and need for oversight. He began by taking us on a journey to Hollywood. Have you ever wondered what the world would be like without you in it? What if you never lived? What would really matter when the world continue to turn on it?s axis? How will things change for your family, your friends and in your case, your community? What is the promise with the classic perfect movie, ?It?s a wonderful Life,? starring Jimmy Stewart. It?s one of his favorite movies of all times. He doesn?t know how he lived so long without really watching the movie when he ?rst saw it, watching it about 20 years ago. He doesn?t think Christmas ever goes by now without him watching it at least a couple of times. Because he thinks the message is so phenominal. The Jimmy Stewart character, George Bailey, was despondent in his life and had made no difference with everything that he wanted to do had not panned out the way he planned. And he was about to jump off a bridge. The angel named Clarence saved his life. Then Clarence, the angel, then proceeded to show George Bailey what life would have been like if he had never been born. The small town was such a wonderful place to live with him present was grim and dirty place in his absent. His brother, whose life he saved was of course dead. He had no one to pull him out of that freezing pond. His wife was a miserable spinster. Many persons who he had helped in his actual life were without such help in this alternative world and were leading hopeless lives that act in awful conditions. In short we discovered through the process in Clarence?s journey back into this imaginary world that his life truly did matter. The world was a better place because he lived. Judge Wiiunill then asked each of us to put ourselves in the shoes of George Bailey or Jimmy Stewart. He stated, today I am going to be your angel and show you a world that you do not exist. Where there are people like you who do your job, but not on the job doing what needs to 92 be done. And by this I hope to show you the great value of your work. This strange world that you do not exist is the very world that I live in. It is the world of being a Federal Judge. Now to really bring home my point I will put you in a very terrifying place in a Federal Court room. Wait, it gets worse. You are not seated in the back as a Spectator, comfortable and padded seats, but instead you are at the defendant?s table with a very high price attorney sitting beside you with the meter running. This means that you have been sued. But wait, it gets even worse. A large wealthy company is suing you with lawyers who are ?pit bulls.? This large company is known as Corporation.? But wait, it gets even worse. The judge, who is a Federal Judge, ?Judge was appointed for life. He is not accountable to any boss or supervisor who could ?re him. He is not accountable for any voters. Indeed it is unfair whether he is accountable to anyone. He can be removed only by impeaclunent. The same impeachment proceeding used to remove the President of the United States and he seems to scowl at you a lot. But wait, it gets Worse. The attorney turns to you and says that he has heard four rumors about the judge that is presiding over your case. Rumor The Judge went ?duck hunting? with the CEO of MACRO Corporation just a week before they sued you. Rumor The Judge purchase stock in the MACRO Corporation just a week before you were sued. Rumor The last meeting that the Judge attended, ?The Judicial Seminar,? at a very expensive resort, sponsored by MACRO Corporation who also paid all of his expenses. Rumor The judge has had numerous misconduct complaints filed against him for unethical behavior and has even been sanctioned a few times in the past. All four rumors were all bad. I hope you can understand what a horrifying prospect being in court under those circumstances will be. So you direct your attorney to track down these rumors and to see if there is someway that you can get another judge. A week later, your attorney calls and this is his report. Rumor It is true. ?Judge did go duck hunting with the CEO of MACRO Corporation before you were sued. But, the attorney says, it is nothing we can do. After all he related to the Supreme Court Justice Antone Scalia went duck hunting with Vice President Dick Cheney for the time when Cheney had a case pending before the Supreme Court and Scalia refuse to step down. So if Justice Scalia can get away with that surely your attorney can?t ask ?Judge to refuse himself. Rumor Your attorney carmot tell if ?Judge own stock in MACRO Corporation. If he has just bought the shares he does not have to report them until the end of the year, and it would be months before that report will be filed and subject to public review, and once again your relates we have bad presence from the Supreme Court. During his confirmation hearing, the Supreme Court Justice Samuel Aiito when he was a lower court judge sat on a case involving a company known as Vanguard, while he held Vanguard stock. Rumor Your attorney cannot ?nd out who sponsored the Seminar. The sponsors are not disclosed. New rules have been passed just recently requiring disclosure those rules have not come into effect and are not retroactive. 93 Runror It may true. Both attorneys con?rm that numerous misconduct complaints had been filed against ?Judge and the Judicial Counsel may have sanctioned him. But it is not clear whether that had actually occurred. There is no public record of any of this. The decision sanctioning ?Judge was all sealed, and unavailable to the public. And none of those decisions were published. This is the scary world that you don?t exist, that I wanted to describe for you. Now I must say that I don?t know of any Federal Judge who would knowing preside over a case while owning stock in one of the parties. Now if he was absolutely clear that Justice Alito was not aware of that conflict when he actually presided over the case, because he was apparently aware of all of the stock holders. But the real issue here is public transparency. You should not have to rely entirely on the integrity of Judges. You should be able to check it out for yourself. All of these problems that I have mentioned, where Judges stock ownership in one of the parties has misconduct sanctions, an all expense paid functions should be a matter of public record. Available for anyone to check out, but it is not: You should be able to easily determine if your Judge has been sanctioned for misconduct, but you can?t. You should be able to easily to determine if your Judge is traveling to lavish resorts on someone else?s nickel, but you can?t. You should be to easily to determine if your Judge have any financial interest in any party to your case, but you can?t always do that. Why, if there is so little transparency in the Federal Judiciary. I think the answer to some extent is simple, because we police ourselves. There is a word for what results when an institution polices them, and unfortunately to often that word is ?white wash.? I am not talking here about intentional cover?up like ?Water Gate?. These sorts of high profile intentional ?white wash? cases are rare. There is a much more prominent case where members of an institution go easy on their own out of a sincere desire to do what is right. Sincere but misguided, as we shall see in a speci?c example in just a moment. That is the most common type and perhaps the most troubled type of ?white wash.? Of course yourjob as External Oversight is designed to stop that within the institution that this occurs. But you and your External Oversight function do not exist in the land of the Federal judiciary. So why don?t we just hire all of you to come work for us and provide oversight. Wouldn?t you love that job? You can tell Federal Judges what to do and lrow to do it. Tell them when they have overstepped their boundaries. Right, solution, it is that simple. President William J. Clinton appointed Honorable B. Wimnill a United States District Judge for the District of Idaho on August 14, 1995. In addition to his regular Chief Judge duties within the District of Idaho, Judge Wimnill was recently appointed by the US. Supreme Court Chief Justice William H. Rehnquist to serve on the Information Technology Committee of the Judicial Conference. This prestigious committee provides general policy recommendations, planning and oversight of the judiciary information technology program. Honorable B. Wimnill is a graduate of Harvard Law School, and an Iowa State University Undergraduate. He was appointed to the Federal Bench on August 14, 1995. Prior to being appointed a Federal Judge he was a District Judge in Idaho in the Sixth Judicial District in the State of Idaho. Judge Wimnill is very active and has been through out his career on legal councils, different committees, for the Boy Scouts of America and other community activities, in 94 addition to his regular duties as Chief Judge for the District of Idaho. Judge Winmill was recently appointed on the U.S. Supreme Court Chief Justice, William H. Rehnquist to serve on the Information Technology Committee at the Judicial Conference. This prestigious committee provides general policy recommendation, planning and Oversight Judiciary Information Technology Program. Assisting Judge Wimnill and his Presentation is Suzy Headley. Keynote Luncheon: he Rule ofLaw in a time of Terror? David Nevin, Esq., Nevin, Benjamin McKay, LLP Panelist David Nevin, ESQ. is a fellow of the American College of Trial Lawyers. He serves as an Adjunct Professor of Trial Practice at the University of Idaho College of Law and previously taught at the University of Toledo College of Law. The Lawdragon Magazine recently named Mr. Nevin a ?Lawdragon,? one of the top 500 lawyers in the United States. Mr. Nevin received his J.D. (Cum Laude) from the University of Idaho, College of Law in 1978 and his BA. from Colorado State University in 1974. On February 26, 2003, Sami Omar Al~Hussayen was a 34?year-old Saudi graduate student at the University of Idaho, a few months away from completing his and returning home to life as a university professor. On that day over 100 federal agents descended on the sleepy college town of Moscow, Idaho, arrested Sami at 4 am. in the presence of his terrified wife and 3 children, and then farmed out around the community interrogating Middle Eastern students, some of them for ?ve to six hours. Sami was charged with multiple counts of Providing Material Support to Terrorism, and in an 8-week trial in the spring of 2004, acquitted and freed-but not before spending 511 days in solitary confinement. Intended as a high water mark in the war 011 terrorism, Sarni?s case is instead viewed as an example of government overreaching, and is frequently cited in Congressional debates on extension of the Patriot Act. In this address, Mr. Al- I-Iussayen?s lead counsel provides some insight into the surprising intensity of the government?s investigation and prosecution, and considers the value of citizen oversight of police behavior in this most volatile and politically charged area of law enforcement. Sami Omar Al-Hussayen, a native of Saudi Arabia and graduate student in Computer Science at the University of Idaho, is a webmaster whose actions placed him at the center of a Patriot Act lawsuit. Allegedly a major force within the Islamic Assembly of North America, Al?Hussayen ran websites that allegedly recruited, funded, and otherwise supported Islamic terrorists within the United States. Although Al-I-Iussayen claims he merely volunteered his skills in order to run the sites (based in Michigan), the government insists that this and other involvement, constitutes knowing involvement in terrorism?related activities. Al-Hussayen is also defended online by the Electronic Frontier Foundation. David Nevin has defended criminal cases in Idaho, the Pacific Northwest, and beyond for more than 25 years. He has obtained acquittals in a number of high pro?le prosecutions, which implicated issues of civil rights and government overreaching, including the 1993 Ruby Ridge case, and the recent terrorism prosecution on a Saudi Arabian graduate student. Session Eight?Concurrent Session Database racking Systems for E?ective Oversight Panelist Kelvyn Anderson, Deputy Director, Police Advisory Commission, Philadelphia, 95 Florence Finkle is an Executive Director, Civilian Complaint Review Board, New York, New York. Yuri Gregor-av is a MIS Director, Civilian Complaint Review Board, New York, New York. Mike Gunnare is a Senior IT Developer, Denver Public Safety Department, and Denver, Colorado. Over the last 20 years, technology?s in?uence on policing has altered the methodology of oversight. Managing police records, investigating complaints, identifying trends and creating early-warning systems requires careful planning, technical savvy, and the ability to respond to constant change. In this session, information managers from New York, Denver, and Philadelphia will pop the hood open and reveal the inner workings of their systems, consider their and weaknesses, and offer guidance for other agencies looking for both standardized and innovative uses of digital information to achieve effective oversight. CCRB System-Civilian Complaint Review Board conduct investigation independently jurisdiction over the NYPD: Required to have an ongoing education and mediation program staff of a 184. Budget of about $10 million Import of database need to provide info to public about complete Database can notify you or of?ce of problematic of?ces (Softec?company that programmed the database system re: complaints): Where complaint was made How the complaint was made Automatically assigns a complaint number Whether an arrest was made?charges that was 011 report Separate tab for witness Sex, Race, Age The officer screen of this program shows allegations against the officer, rank, and recommendation that were made. Complaint Status-who entered the complaint 3> Recommendation section?what the investigation recommend; second screen-board outcome How many complaints were ?led against of?cer screen The Police Department has access to this complaint data. System captures the work that is performed on the case. Letter is possibly generated from data. Date of Incident-where the incident took place. Interview summary?letter summoning complaint/officer. The system also has a case indicator. It reminds you that the case has not been assigned. In 1973, the National Advisory Cormnission on Criminal Justice Standards and Goals Task Force on Police observed that ?no police agency could maintain internal order if employee misconduct were rampant, just as it could not maintain social order if public anarchy were rampant.? 96 However, in contemporary times, national law enforcement agencies still face the challenges of preventing, monitoring, and addressing police misconduct incidents. Several methods that are used to maintain internal order in police departments include reducing incidents of unnecessary deadly force, identifying substantiated civilian complaints of police misconduct, monitoring routine encounters between the police department and the public, conducting internal investigations, and recommending discipline for officer misconduct. Accordingly, this section of the report provides an overview of how various police departments in the United States are addressing these primary issues. Kelvyn Anderson is a 20-year veteran of investigative work in the public and private sectors, Deputy Director of the Police Advisory Commission in Philadelphia, PA, where he has worked since 2000. Anderson worked as a private investigator from 1995 to 2000, conducting video surveillance and claims investigator for attorneys and insurance companies. Anderson currently serves NACOLE as Webmaster and moderator of the Police Oversight listserv. Florence inkle is Executive Director of the New York City Civilian Review Board. A 1984 graduate of Tuffs University, Ms. Finkle obtained her law degree from New York University School of Law in 1997. She was designated a member of that office?s Asian Gang Unit and from 1994 to 1996 was a member of the district attorney?s Official Corruption Unit. There she helped to build the case against officers of their 30th Precinct, an investigation and prosecution that led to the conviction of thirty police officers on various charges of corruption. Ms. Finkle personally won convictions following three separates jury trials of officers who had committed perjury to cover up their illegal searches and seizures. Mr. Yuri Gregorev has ?fteen years of experience in both the public and private sectors designing and implementing business and communications applications. He served as the database administrator at Vitech Systems, where he designed databases for clients such as Goldman Sachs and McKinsey Company. He is both the programmer for and the administrator of the complaint tracking system. During the last four years, Mr. Gregorev added key new features to the complaint tracking system and through iimovative programming modernized and improved is functionality. In September 2006, became the MIS director. Mike Gunnare currently serves as the Senior IT Developer for the City County of Denver?s Department of Safety. He has worked in the computer industry as an application developer for 19 years, with 10 years of experience in the travel industry and 9 years in law enforcement. Mr. Gunnare received his Bachelor of Science in Computer Information Systems from Arizona State University. Session Nine Concurrent Session with session 8 Session Ten Concurrent Session with session 8 Session Eleven-Concurrent Session Training Session V: ?Conducting Civilian Oversight Investigations: Implementing/Evaluating the Investigation Plan Interviewing Complainants? 97 Panelist Kesha Taylor, Assistance Chief Investigator, Office of PoliCe Complaints, Washington, DC. Jayson Wechter, Investigator, Office of Citizen Complaints, San Francisco, California. Using two case studies presented in the previous investigative session (which will be available in written form and reviewed at the start of this session) participants will work in breakout groups of 6 to 8, discuss how to create and implement and investigate plan, including: b. What documents, physical evidence and witnesses are relevant to the complaint and the issues it raises? 0. How will this evidence he obtained, and in what sequence? d. What are the priorities and the time line for the investigation? e. What obstacles and delays are likely to arise during the investigation and how will they be overcome? f. Due diligence standards for investigations. Utilizing role-playing, we will draw on audience participation to replicate the steps in a successful and thorough investigation, including demonstrations of how to effectively interview complainants in the two case studies introduced. This training offered a breakdown of the interview process, including the progression of the questioning process from general to speci?c, interview techniques, and some basic interview guidelines. The primary goal of an interview is to obtain and record information from the complainant, your subject, and all of your critical witnesses. Your investigation is not complete until this has been accomplished. Successful and effective interviewing is a skill that is learned and while most people learn by watching others, having a good foundation in the principles of interviewing is vital to becoming an effective interviewer. Interviewing a witness means having a conversation. It is not an interrogation. Prior to conducting your interview, you must understand the purpose of your interview, which is to obtain and record information. In an effort to reach that goal, it is important to establish a rapp01t, remain objective, maintain neutrality and objectivity, and listen attentively. The interview should be divided into the following segments keeping in mind that throughout the interview process you are building and maintaining rapport with the interviewee: Introduction/Build Rapport: Establishing who you are and the purpose of your interview. General Questions: Getting the interviewee comfortable with the process and providing an overview of the incident. Speci?c Questions: Going over the scenario asking questions and having the interview expand upon the incident. Detailed Questions: Getting to the finer points and last minute questions that are detail speci?c. Important Reminders-the following things are important to keep in mind when conducting your investigation: Find out, whether they have submitted this complaint to anyone else. Try to get to witnesses as soon as possible. 98 It may sometimes make sense to interview witnesses of lesser importance first and to save the complaining witness for last, so that you have a better understanding of the case and can ask intelligent questions. Interview only one witness at a time. Witnesses, who are minors, pose special problems. You must use discretion and keep in mind that a statement taken from a young child, without an adult present, may look coercive. Do not use any recording devices unless the express procedure of your office/department. Kesha Taylor was hired as the Assistant Chief Investigator of the Office of Police Complaints for the District of Columbia in July 2002. Prior to accepting this position, Ms. Taylor worked with the investigations Division of the Public Defender Service for the District of Columbia for seven years. While there, Ms. Taylor served most recently as a Staff Investigator and as Coordinator of the Internship Program. Ms. Taylor obtained her undergraduate degree in political science and English from the University of Vermont. She also received her master?s degree in higher education from Cornell University. Jason Wechter is an investigator for the Of?ce of Citizen Complaints in San Francisco. Mr. Wechter helped establish San Francisco?s civilian oversight agency, the Of?ce of Citizen Complaints in 1983, and helped shape many of its early policies and procedures. Weehter served the agency from 1983 to 1984, and again from 1998 to the present as a staff and a supervisory investigator, and has drafted policy recommendations relating to crowd control procedures and officer-involved shootings. Wechter began his career as a freelance journalist and investigative reporter, and became a legal investigator in 1979, specializing in complex criminal and civil investigations. Wechter is the author of a September 2004 report issued by the Police Professionalism Initiative of the University of Nebraska at Omaha, Investigating Citizen Complaints is Different: The Special Challenges of Investigating Citizen Complaints Against Police Of?cers. 99