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April 11, 2007

April 11, 2007

Seal of the City and County of San Francisco

SAN FRANCISCO POLICE COMMISSION
AGENDA

REGULAR MEETING

WEDNESDAY, APRIL 11, 2007

5:30 p.m.

CITY HALL, ROOM 400

#1 Dr. Carlton B. Goodlett Place

San Francisco, California

Louise Renne
President

David Campos
Commissioner

Petra DeJesus
Commissioner
Theresa Sparks
Commissioner
Dr. Joe Marshall
Commissioner

Joe Veronese
Commissioner

Yvonne Lee
Commissioner

Sgt. Joe Reilly
Secretary

(CLOSED SESSION)

Roll Call.

1. Public Comment on all matters pertaining to Closed Session.

2. Vote on whether to hold Closed Session. (San Francisco Administrative Code Section 67.10) (ACTION ITEM)

3. Closed Session

a. Pursuant to Government Code section 54957 and San Francisco Administrative Code Section 67.10(b) and Penal Code Section 832.7:

PERSONNEL EXCEPTION: Status and calendaring of pending disciplinary matters (DISCUSSION ONLY)

b. Pursuant to Government Code section 54957 and San Francisco Administrative Code Section 67.10(b) and Penal Code Section 832.7:

PERSONNEL EXCEPTION: Discussion and possible action to accept stipulated dispositions in the matters of OCC case nos. C06-28 SL and C06-029 SL (ACTION ITEM)

c. Pursuant to Government Code section 54957 and San Francisco Administrative Code Section 67.10(b) and Penal Code Section 832.7:

PERSONNEL EXCEPTION: Discussion and possible action to adopt statement of decision denying Motion to Dismiss disciplinary charges filed in case nos. C06-030 SL, C06-031 SL, C06-032 SL, C06-033 SL, C06-034 SL, and C06-035 SL under Government Code 3304(d) (ACTION ITEM)

d. Pursuant to Government Code section 54956.9(b) and San Francisco Administrative Code section 67.10(d):

CONFERENCE WITH LEGAL COUNSEL: Anticipated litigation:

Speilbauer v. County of Santa Clara (2007) 146 cal.App.4th914

(OPEN SESSION)

Pledge of Allegiance; Roll Call,

4. Vote to elect whether to disclose any or all discussion held in closed session (San Francisco Administrative Code Section 67.12(a)) (ACTION ITEM)

5. Public Comment

(Members of the public may address the Police Commission for up to three minutes on items that are within the subject matter jurisdiction of the Commission but do not appear on the agenda. Speakers shall address their remarks to the Commission as a whole and not to individual Commissioners or Department personnel. Under Police Commission Rules of Order, during Public Comment, Commissioners are not to enter into debate or discussion with speakers.)

6. Chief's Report

a. Update on significant policing efforts by Department members

7. OCCDirector's Report (DISCUSSION ONLY)

a. Review of Recent Activities

8. Report and discussion on procedures implementing the use of Hearing Officers for Commission disciplinary cases (DISCUSSION ONLY)

9. Approval of the minutes for the meeting of February 28, 2007 (ACTION ITEM)

10. Commission Announcements (DISCUSSION ONLY)

11. Scheduling of items identified for consideration at future Commission meetings (DISCUSSION ONLY)

12. Adjournment

POLICE COMMISSION

SUPPLEMENTAL RULES GOVERNING
ASSIGNMENT OF POLICE DISCIPLINE CASES
TO A HEARING OFFICER

I. INTRODUCTION

Under Charter Section A8.343, a uniformed member of the Police Department ( Department ) shall not be subject to dismissal or punishment for any breach of duty or misconduct, including any violation of the Department's Rules and Regulation, General Orders, Bulletins, Policies or Procedures, except for cause.

The Chief of Department can impose disciplinary suspensions not to exceed 10 days, subject to a suspended member's right to appeal the suspension to the Police Commission ( Commission ), and have a trial and hearing on that suspension.

If the Chief determines that a member's breach of duty or misconduct warrants discipline in excess of a 10-day suspension, the Chief must file verified charges with the Commission, setting forth the acts that the Chief has determined constitutes a breach of duty or misconduct. In addition, if the Office of Citizen Complaints ( OCC ) sustains a complaint against a member and recommends discipline in excess of a 10-day suspension, the OCC Director may file charges against that member with the Commission, as provided in the Charter.

After reasonable notice, the Commission must afford the accused a fair and impartial trial and hearing on the charges. The accused member is entitled to appear personally and by representative, to have a public trial, and to secure and enforce, free of expense, the attendance of all witnesses necessary for his or her defense. The Department or OCC has the burden of proving a breach of duty or misconduct by the accused member by a preponderance of the evidence.

The Commission may adopt rules establishing the procedures that will govern the trial of disciplinary cases.

II. PROCEDURE FOR ASSIGNING DISCIPLINARY CASES TO A HEARING OFFICER

A. Initial Action on Appeal or Charges;  Request for Public Hearing form. When the Commission receives a member's notice of appeal or a charge filed by either the Chief of Department or the OCC Director, the Commission Secretary shall notify the Commission President and shall include the case on the agenda for the next available Commission meeting. The Commission Secretary shall promptly notify the member, and his or her representative, if known, that the case has been set on the Commission's agenda. That notice shall be both oral and in writing. In addition, the Commission Secretary shall promptly send the accused member, and his or her representative, if known, a  Request for Public Hearing form. A copy of that form is attached to these Supplemental Rules as Exhibit A (TO BE DEVELOPED). The member must complete and return the form to the Commission Secretary within 10 calendar days of the date of the Secretary's correspondence enclosing the form.


B. Initial Commission Meeting on Appeal or Charges. The Commission President shall determine whether the case is appropriate for assignment to a Hearing Officer under these procedures. Notwithstanding the requirement in Department General Order 2.07 that  the subject officer, or his/her designated representative, shall attend each session of the Police Commission at which the pending charges appear on the agenda, the accused member is not required to attend the Police Commission meeting described in this paragraph, either personally or through a representative. The member or his or her representative may appear and indicate whether the member wishes the case assigned to a Hearing Officer. The President will consider a member's request to assign the matter to a Hearing Officer, but retains full discretion to make the assignment he or she deems most appropriate under all the facts and circumstances. If the President decides to assign the case to a Hearing Officer, the President shall announce the assignment at the Commission meeting.

C. Notice of Assignment to Hearing Officer;  Consent to Assignment to Hearing Officer form. If the President assigns the case to a Hearing Officer, the Commission Secretary shall promptly send a written notice to the member and any representative, if known; to the Chief of Police; and, where applicable, to the OCC Director. The notice shall advise the parties that the Commission had assigned the matter to a Hearing Officer. With the notice, the Commission Secretary shall also send the accused member and any representative, if known, a  Consent to Assignment to Hearing Officer form and copies of these procedures. A copy of that form is attached to these Supplemental Rules as Exhibit B. (TO BE DEVELOPED)

If the member consents to have the hearing conducted by a Hearing Officer, the member must complete the  Consent to Assignment to Hearing Officer form and return it to the Secretary within 14 calendar days of the date of the Secretary's notice. If the member timely returns the form, the parties will select a Hearing Officer under the procedures described in Section III, below. If the member does not consent to assignment to a Hearing Officer, the member or his or her representative should inform the Commission Secretary as soon as possible. If the member does not timely return the form, the Commission Secretary shall include the discipline case on the agenda for the next available Commission meeting, and the Commission President shall set the matter to be heard either by a single Commissioner or the Commission as a whole. In cases involving more than one member ( multiple-officer cases ), where some but not all of the charged members consent to the use of a Hearing Officer, the Commission President shall determine the appropriate actions and assignments under all the facts and circumstances.

D. No Reassignment of Case. Once a case is assigned either (1) to a Hearing Officer and a signed  Consent to Assignment to Hearing Officer form is received, or (2) to a single Commissioner or the Commission, that assignment generally will not be changed. In rare cases, where good cause exists, the Commission, through the President, may reassign a case before the start of the taking of evidence. Once the taking of evidence has begun, the matter will be reassigned only where absolutely necessary, for example, the death or disability of the Hearing Officer.


III. SELECTION OF HEARING OFFICER

A. Notice to Select Hearing Officer. Upon receipt of a completed  Consent to Assignment to Hearing Officer form, the Commission Secretary shall send a written notice to the member and, where known, his or her representative; to the Chief of Police; and, where applicable, to the OCC Director. The notice shall state that the matter will proceed before a Hearing Officer, and shall direct the parties to begin the process of selecting a Hearing Officer.

B. Selection of Hearing Officer by Mutual Agreement. The parties shall attempt to select a Hearing Officer by mutual consent from a list of approved Hearing Officers attached as Exhibit C. (TO BE DEVELOPED) In multiple-officer cases, each officer must separately agree to the contemplated Hearing Officer. Any Hearing Officer selected by the parties must be available to begin the proceedings within 90 calendar days and complete the proceedings within 120 calendar days of the Commission Secretary's inquiry regarding the prospective Hearing Officer's availability. Either party may petition the Commission President to allow additional time to complete the proceedings, where good cause is shown, for example, in a case with substantial discovery or pretrial legal issues.

C. Inability to Mutually Agree to Hearing Officer. If the parties cannot agree on a Hearing Officer within 7 calendar days of the Commission Secretary's notice that the matter will proceed before a Hearing Officer, the parties shall notify the Commission Secretary that they cannot mutually agree on a Hearing Officer. The Secretary shall then request a list of 7 names from the California State Mediation and Conciliation Service.

D. Selection of Hearing Officer by Striking Process. Upon receipt of the list, the parties shall alternate in striking names from the list. In multiple-officer cases, the accused members shall designate one representative to exercise strikes on behalf of all of the accused members. The parties shall determine by lot who will strike the first name. The parties shall continue alternating strikes until one name remains. The parties shall mark the list to indicate the order in which names were struck from the list. The parties shall complete the striking process within 7 days of receipt of the list.

E. Action by Commission Secretary. The Commission Secretary shall promptly contact the individual remaining after the striking process. That individual shall be selected only if he or she is available to begin the proceedings within 90 calendar days and complete the proceedings within 120 calendar days of the Secretary's inquiry regarding the prospective Hearing Officer's availability. Either party may petition the Commission President to allow additional time to complete the proceedings, where good cause is shown, for example, in a case with substantial discovery or pretrial legal issues. If that Hearing Officer is not available within the required timeframe, the Secretary shall contact the individual struck sixth from the list, and shall repeat this process until the Secretary has identified a Hearing Officer available within the required time period or has exhausted the list of names. If the list is exhausted, the Commission Secretary shall request a new list of names from the California State Mediation and Conciliation Service, and the parties shall repeat the process until a Hearing Officer is selected.

IV. TAKING OF EVIDENCE BY HEARING OFFICER

A. Initial Conference. Promptly after his or her selection, the Hearing Officer shall schedule an initial conference or hearing on the case, to schedule dates to take evidence; to identify and set deadlines for any required submissions; to set deadlines for any motions; and to address any other matters determined appropriate by the Hearing Officer.

B. Ex Parte Communications Prohibited. No party, nor any party's attorney, representative or other agent, shall contact or have any communication regarding any aspect of the case with the Hearing Officer, any individual Commissioner or the Commission as a whole, including but not limited to contact or communication by telephone, email, in person, or written correspondence ( ex parte communications ), except where all other parties are included in the communication. A party, or a party's attorney, representative or other agent, may have ex parte communications about the case with the Commission Secretary, provided that the communication is limited solely to procedural matters.

C. Open/Closed Proceedings. The hearings for taking evidence shall be held in open session if requested by the accused member on the  Request for Public Hearing form. Otherwise, the hearings will be closed to the public, and all pleadings, records and other documents used in or created as a part of the case shall be confidential to the extent required by law. In multiple-officer cases, where some but not all of the accused members request a public hearing, the Commission President shall determine the appropriate actions and proceedings under all the facts and circumstances and consistent with all legal requirements regarding confidentiality of peace officer personnel records.

D. Applicable Rules. The Hearing Officer shall comply with these Supplemental Rules, and all other rules, procedures and standards that apply to Commission hearings.

E. Authorized Actions of Hearing Officer. The Hearing Officer is authorized to take the following actions:

  1. Set a schedule for hearings, pre-trial submissions and motions;
  2. Direct discovery and resolve discovery disputes, including discovery motions;
  3. Hold hearings to take evidence in the case;
  4. Rule upon all objections presented by the parties. During the taking of evidence, the parties shall make their objections orally unless the Hearing Officer orders or authorizes a written objection or response. During the proceeding, the Hearing Officer is not required to apply the rules of evidence prevailing in the courts.
  5. Hear and decide an accused member's motion to dismiss some or all of the charges for insufficiency of the evidence. The member may bring a motion to dismiss for insufficiency of the evidence at either the close of the Department's or OCC's case or at the close of the taking of evidence proceedings. If the Hearing Officer dismisses all charges, the Hearing Officer shall prepare a report as required in Section V.D., below. If the Hearing Officer denies the motion or dismisses only some of the charges, the Hearing Officer shall provide a detailed explanation of the ruling on the record. Either party may object to the Hearing Officer's decision on a motion to dismiss for insufficiency of the evidence. If a party makes such an objection, that party may include the Hearing Officer's decision on the motion in the objections it raises with the Commission, as provided in Section V.B., below.
  6. Mediate or provide other assistance to the parties in developing a proposed stipulated disposition of the case. If the parties mutually agree to have the Hearing Officer mediate or provide other assistance in developing a proposed disposition of the case, the parties must complete the  Agreement to Use Hearing Officer as Mediator form. A copy of that form is attached to these Supplemental Rules as Exhibit C (TO BE DEVELOPED). As described on the form, the rule prohibiting ex parte communications with the Hearing Officer does not apply during a mediation or proceeding by the Hearing Officer working to develop a proposed stipulated disposition of the case.. If the Hearing Officer assists the parties in developing a proposed stipulated disposition of the case, the Hearing Officer may inform the Commission that the parties have developed a proposed disposition and may, with the Commission's approval, present the proposed disposition to the Commission.

F. Dispositive Motions. Except as provided in section IV.E.5., above, the Hearing Officer is not authorized to hear any motions to dismiss some or all of the charges ( dispositive motions ). Dispositive motions include, but are not limited to, motions raising jurisdictional, statute of limitations, constitutional and Peace Officers Procedural Bill of Rights Act arguments. Rather, an accused member shall file any dispositive motions with the Commission pursuant to the schedule set by the Hearing Officer. The Commission shall set a hearing on any dispositive motions, and shall deliberate and decide such motions as a body.

G. Official Record. The Hearing Officer shall ensure that all proceedings before the Hearing Officer are transcribed by a court reporter. The Hearing Officer shall maintain and preserve all documentary or other evidence as part of the record.

V. PROCEEDINGS BEFORE THE COMMISSION

A. Conditional Close of Evidentiary Proceedings. At the conclusion of the taking of evidence before the Hearing Officer, the Hearing Officer shall conditionally close the proceeding, and shall send written notice to the Commission President and the parties of the date on which the proceedings were conditionally closed.

B. Objections to Hearing Officer Rulings. Within 14 days after the conditional close of proceedings before the Hearing Officer, the parties shall submit to the Commission written objections, if any, to the Hearing Officer's rulings, including but not limited to rulings excluding or admitting evidence and ruling on discovery and other non-dispositive motions. To raise an objection with the Commission, the party must have objected on the record to a decision or ruling by the Hearing Officer at the time the Hearing Officer made the decision or ruling during the taking of evidence proceeding.

C. Argument on Objections; Additional Proceedings Before Hearing Officer. The Commission shall set a hearing for argument by the parties on any objections filed with the Commission. After argument, the Commission shall deliberate and rule on any objections. The Commission may direct that the Hearing Officer exclude certain evidence from the official record of the proceedings, may direct the Hearing Officer to reopen the proceeding and take additional evidence, or may make any other directive as determined by the Commission. If the Commission directs the Hearing Officer to take additional evidence, the Hearing Officer shall hold additional proceedings consistent with the Commission's ruling, and may also admit rebuttal evidence or take other actions deemed appropriate by the Hearing Officer.

D. Content of Hearing Officer Report. After the Commission's ruling on any objections, and after any additional proceedings before the Hearing Officer, the Hearing Officer shall close the hearing for taking evidence, and shall prepare a report on the proceedings for the Commission's consideration. The report shall include the following:

  1. a list of the charges against the accused member or members;
  2. a summary of the proceedings;
  3. a summary of the witnesses, the substance of their testimony, and any demeanor or credibility issues identified by the Hearing Officer;
  4. a list of any other evidence admitted;
  5. a summary of the facts of the case; and
  6. a recommendation about whether there is sufficient evidence in the record to meet the Department's or OCC Director's burden of proof necessary to sustain one or more of the charges. If the Hearing Officer recommends that one or more charge be sustained, the Hearing Officer shall summarize the evidence supporting that recommendation.

E. Deadline for Hearing Officer Report. The Hearing Officer shall complete the report as soon as practical, and in no event more than 45 calendar days after the proceeding for taking of evidence is closed and the transcript of the proceeding is complete. If necessary, the Hearing Officer may submit a written request to the Commission President seeking additional time to complete the report, which the President may grant in his or her discretion. When the report is complete, the Hearing Officer shall serve the report simultaneously on the Commission and all parties, and shall transmit the entire record in the case to the Commission Secretary.

F. Responses to Hearing Officer Report. The parties may submit written responses to the Hearing Officer's report. The parties shall file any such responses with the Commission Secretary within 14 calendar days of service of the report or completion of the transcript, whichever is later, and shall simultaneously serve a copy on all parties. No additional written submissions are permitted, unless expressly ordered by the Commission.

G. Commission Review of Record. After the time for written responses has passed, the Commissioners shall review the entire record in the case, including the Hearing Officer's report, any responses to the report from the parties, the transcript of the proceeding, and any documentary or other evidence admitted during the proceedings.

H. Additional Proceedings Before Commission. After reviewing the record, if the Commission concludes that it cannot decide the matter without hearing live testimony or obtaining additional evidence, the Commission may take live testimony or other evidence on its own initiative. The Commission may examine witnesses and direct the production of papers and other evidence.

The Commission may also take additional testimony or evidence at the request of a party, but only where the party demonstrates that the evidence is (1) newly discovered and could not with reasonable diligence have been located prior to the proceeding before the Hearing Officer, and (2) material and relevant in the matter under consideration.

I. Deliberations and Decision. At the conclusion of the above proceedings, the Commission shall hear argument from the parties and then will deliberate and decide the case. The Commission may not begin deliberations to decide a case until all Commissioners participating in the deliberative process state for the record that they have reviewed the entire record in the case. If the Commission determines that a member is guilty of any breach of duty or misconduct, the Commission shall set the matter for additional proceedings before the Commission to determine the appropriate penalty.

PLEASE NOTE: The Police Commission will be holding a Special Meeting this

month at a location other than City Hall.

1. The Commission will hold its Community Meeting at the Ingleside District, Visitacion Valley Elementary School, 450 Raymond Street, San Francisco, at 6:00 p.m., on Wednesday, April 25, 2007, to hear comments from the public and Ingleside Station Captain Paul Chignell concerning public protections issues in the Ingleside District.

*** SUPPORTING DOCUMENTATION FOR POLICE COMMISSION AGENDA ITEMS THAT ARE NOT CONFIDENTIAL ARE AVAILABLE FOR REVIEW AT THE POLICE COMMISSION OFFICE, THOMAS J. CAHILL HALL OF JUSTICE, 850 BRYANT STREET, ROOM 505, SAN FRANCISCO, CA 94103, DURING NORMAL BUSINESS HOURS. (415) 553-1667

The Commission will hear public comment on all agenda items before or during discussion of the item. Public comment is limited to three minutes for individuals and for representatives of organizations.


(The ringing of and use of cell phones, pagers and similar sound-producing electronic devices are prohibited at this meeting. Please be advised that the Chair may order the removal from the meeting room of any person(s) responsible for the ringing or use of a cell phone, pager, or other similar sound-producing electronic devices.)


*There will be Public Comments on any item before or during discussion of each item.

KNOW YOUR RIGHTS UNDER THE SUNSHINE ORDINANCE
(Chapter 67 of the San Francisco Administrative Code)
Government's duty is to serve the public, reaching its decisions in full view of the public.
Commissions, boards, councils and other agencies of the City and County exist to conduct the people's business. This ordinance assures that deliberations are conducted before the people and that City operations are open to the people's review.
FOR MORE INFORMATION ON YOUR RIGHTS UNDER THE SUNSHINE ORDINANCE OR TO REPORT VIOLATION OF THE ORDINANCE, CONTACT THE SUNSHINE ORDINANCE TASK FORCE: DONNA HALL, ADMINISTRATOR, CITY HALL, ROOM 244, #1 DR. CARLTON B. GOODLETT PLACE, SAN FRANCISCO, CA 94102-4689; OFFICE (415) 554-7724; FAX (415) 554-5163; E-mail: Donna_Hall@ci.sf.ca.us. Copies of the Sunshine Ordinance can be obtained from the Clerk of the Sunshine Task Force, the San Francisco Public Library, and on the City's website at www.ci.sf.ca.us/bdsupvrs/sunshine
Lobbyist Registration and Reporting Requirements
Individuals and entities that influence or attempt to influence local legislative or administrative action may be required by the San Francisco Lobbyist Ordinance [SF Campaign & Government Code 2.100] to register and report lobbying activity. For more information about the Lobbyist Ordinance, please contact the San Francisco Ethics Commission at 30 Van Ness Avenue, Suite 3900, San Francisco, CA 94102; telephone (415) 581-2300; fax (415) 581-2317; website www.sfgov.org/ethics.
Last updated: 9/14/2009 11:34:14 AM