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The Police Review Commission wants the City Council to hire independent legal counsel to evaluate the extent of a possible appeal process by police officers when complaints against them have been sustained by the PRC. 

Against the advice of the city manager and the city attorney, the members of the PRC decided last week that the commission needed to study the issue triggered by a 1999 decision by a Southern California Court of Appeals. The PRC’s vote asks for the City Council to fund the evaluation by the independent legal counsel. 

Because of the June 1999 decision of the 4th District Court of Appeals in the case of Caloca v. County of San Diego, the right of police officers to appeal a civilian review board’s decision of misconduct has been strengthened. 

In Caloca the appeals court reversed the judgment of a trial court that denied four sheriffs the right to an administrative appeal in light of the Public Safety Officers Procedural Bill of Rights Act. 

The appeals court held that the findings of a civilian review board could lead to an adverse impact on the career advancement of a police officer, thereby affording the officer the right to appeal the board’s decision. 

Currently the Police Review Commission presents its findings to the police chief and to the city manager, who hold the authority to determine any discipline to be imposed on police officers. 

While the findings of the Police Review Commission are not used in the discipline of police officers, Berkeley Police Chief Dash Butler said he may consider the PRC findings for promotion and assignments, according to City Attorney Manuela Albuquerque. 

What the chief said about personnel decisions possibly arising from PRC findings is similar to the statement of the sheriff in the Southern California county, which the court found sufficient to trigger 

an appeal, said Albuquerque. 

She told the commissioners that Caloca leaves the door open to the type of appeal required, and that the process may be triggered if the chief considers PRC findings in making personnel decisions. 

Albuquerque and City Manager Jim Keene went to the Police Review Commission meeting to explain the implications of the Caloca decision for the city, and they said an appeal process would require evidentiary hearings and would be “cumbersome.” 

Sgt. Randolph Files, president of the Berkeley Police Association, said in speaking as an employee, “I want the legal due process guaranteed by Caloca.” 

He said the issue is labor related and that the police also are city employees, and they want to have the right to use an appeal process for some of the PRC decisions. 

He said he was not suggesting the Police Review Commission discontinue its business, but that police officers be allowed sufficient time to appeal if necessary. 

In order to avoid what they consider would be a cumbersome appeal process similar to an arbitration with witnesses, Keene and Albuquerque suggested the police chief no longer consider PRC findings for any personnel related purposes. 

Keene said the process would get bogged down in bureaucratic arrangements. 

“There isn’t a thing in Berkeley that doesn’t cost a whole lot more than it should,” he said. 

The commissioners strongly disagreed. 

“To sacrifice the only input we have in the chief’s decision would make our work a total charade,” said Commissioner Claire Zellman, echoing Commissioner Mel Martynn. 

She said to discontinue possible use of the PRC decisions in personnel matters would undermine the ordinance that established the commission. 

Barbara Attard, PRC Officer, said Berkeley’s commission is one of the oldest such agencies in the country. She said the PRC was established in 1973 through a voter initiative seeking commission investigation of all cases of police misconduct. 

The Police Review Commission investigates complaints only when people file them with the commission, and as such the PRC does not necessarily receive all the complaints filed with the Internal Affairs Division. The chief disciplines officers according to findings of Internal Affairs. 

In 1999 Attard said the PRC received 60 cases and held 29 hearings. The other 31 cases were either dismissed or withdrawn, she said. 

Martynn suggested that creating an appeal process for police officers may be the best way to proceed in light of the Caloca decision. 

He noted cases of police misconduct in Los Angeles and New York City and said more review is needed “to prevent egregious behavior. Cost is not the point,” said Martynn. 

Albuquerque said later that the PRC is understating the role of its hearings. Its public accountability process, she said, “has a very significant effect on how officers conduct their official duties.” 

“We have a pretty stellar record,” she said. “You just don’t see brutality cases. We’re not Los Angeles. We’re not New York.” 

But Commissioner David Ritchie said the commission would like to have more influence on police officers than just imparting moral authority. 

He said the purpose of an independent counsel would be to advise the commission on possible alternatives that would satisfy due process under Caloca. 

Ritchie maintained the form of the appeal can be worked out without entering a process as extensive as the city has foreseen.