Office of the Independent Monitor Performance Audit

Transcription

1 Office of the Independent Monitor Performance Audit October 2011 Office of the Auditor Audit Services Division City and County of Denver Dennis J. Gallagher Auditor

2 The Auditor of the City and County of Denver is independently elected by the citizens of Denver. He is responsible for examining and evaluating the operations of City agencies for the purpose of ensuring the proper and efficient use of City resources and providing other audit services and information to City Council, the Mayor and the public to improve all aspects of Denver s government. He also chairs the City s Audit Committee. The Audit Committee is chaired by the Auditor and consists of seven members. The Audit Committee assists the Auditor in his oversight responsibilities of the integrity of the City s finances and operations, including the integrity of the City s financial statements. The Audit Committee is structured in a manner that ensures the independent oversight of City operations, thereby enhancing citizen confidence and avoiding any appearance of a conflict of interest. Audit Committee Dennis Gallagher, Chair Maurice Goodgaine Jeffrey Hart Timothy O Brien Robert Bishop Robert Haddock Bonney Lopez Audit Staff Audrey Donovan, Deputy Director, CIA Dawn Hume, Internal Audit Supervisor Emily Gibson, Senior Internal Auditor, MS Jessica Quintana, Senior Internal Auditor You can obtain free copies of this report by contacting us at: Office of the Auditor 201 West Colfax Avenue, Department 705 Denver CO, (720) Fax (720) Or download and view an electronic copy by visiting our website at:

3 City and County of Denver 201 West Colfax Avenue, Department 705 Denver, Colorado FAX Dennis J. Gallagher Auditor October 20, 2011 Citizen Oversight Board Office of the Independent Monitor City and County of Denver Dear Members of the Board: Attached is the Auditor s Office Audit Services Division s report of their audit of the Office of the Independent Monitor (OIM), including the Citizen Oversight Board (Board), for the audit period January 1, 2009 through June 30, The purpose of the audit was to assess the monitoring process, to make a determination of compliance with relevant ordinances, and to assess other non-monitoring actions regarding the OIM. The audit identified three opportunities to improve accountability and transparency of the OIM. First, the Board should establish a comprehensive method by which to evaluate the Monitor s performance that includes both qualitative and quantitative measurements; only limited qualitative measurements currently exist. Second, guidance regarding ongoing reporting, reporting on re-opened cases, and procedures for publicizing reports in the media should be strengthened. Also, recommendations made by the OIM should require a response from the Department of Safety. Finally, the OIM should improve the quality of outreach efforts with the community and uniformed personnel. Public perception is extremely important and vital to maintaining a safe environment for the citizens of the City and County of Denver. Success in safety requires the cooperation of the City s people. It is the responsibility of City leadership to ensure that the people can place their trust in the City. If you have any questions, please call Kip Memmott, Director of Audit Services, at Sincerely, Dennis J. Gallagher Auditor DJG/dmh cc: Honorable Mayor Michael Hancock Honorable Members of City Council Members of Audit Committee Ms. Janice Sinden, Chief of Staff To promote open, accountable, efficient and effective government by performing impartial reviews and other audit services that provide objective and useful information to improve decision making by management and the people. We will monitor and report on recommendations and progress towards their implementation.

4 Citizen Oversight Board October 20, 2011 Page 2 Ms. Stephanie O Malley, Deputy Chief of Staff Ms. Cary Kennedy, Chief Financial Officer Mr. Doug Friednash, City Attorney Mr. L. Michael Henry, Staff Director, Board of Ethics Ms. Beth Machann, Controller To promote open, accountable, efficient and effective government by performing impartial reviews and other audit services that provide objective and useful information to improve decision making by management and the people. We will monitor and report on recommendations and progress towards their implementation.

5 City and County of Denver Dennis J. Gallagher Auditor 201 West Colfax Avenue, Department 705 Denver, Colorado FAX AUDITOR S REPORT We have completed an audit of the Office of the Independent Monitor (OIM) for the period January 1, 2009 through June 30, The purpose of the audit was to assess the monitoring process, to make a determination of compliance with the ordinance, and to assess other nonmonitoring activities performed by the OIM to identify possible inefficiencies and opportunities for improvement. While audit work identified that OIM monitoring activities are generally compliant with prescribed requirements of the ordinance s broad mandate, opportunities exist to improve the accountability and transparency of the OIM. Specifically, we identified three areas of opportunity to enhance and ensure the sustainability of the OIM program. First, the Citizen Oversight Board (Board) should establish a comprehensive method to evaluate the performance of the Monitor. While limited qualitative measurements exist, the Board should create quantitative measurements to evaluate the performance of the Monitor. Second, guidance can be enhanced regarding the OIM s ongoing reporting, reporting on cases that have been re-opened, and interaction with the media. Additionally, the Department of Safety should respond to recommendations made by the OIM. Finally, the OIM can improve the quality of outreach efforts to the community and uniformed personnel. This performance audit is authorized pursuant to the City and County of Denver Charter, Article V, Part 2, Section 1, General Powers and Duties of Auditor, and was conducted in accordance with generally accepted government auditing standards (GAGAS). Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives. We extend our appreciation to the Office of the Independent Monitor, the Citizen Oversight Board, the Department of Safety, and all personnel who assisted and cooperated with us during the audit. Audit Services Division Kip Memmott, MA, CGAP, CICA Director of Audit Service To promote open, accountable, efficient and effective government by performing impartial reviews and other audit services that provide objective and useful information to improve decision making by management and the people. We will monitor and report on recommendations and progress towards their implementation.

6 TABLE OF CONTENTS EXECUTIVE SUMMARY 1 INTRODUCTION & BACKGROUND 6 SCOPE 14 OBJECTIVES 14 METHODOLOGY 15 FINDING 16 The Office of the Independent Monitor Operates Under a Broad Mandate that is Problematic and Prone to Varying Interpretations 16 RECOMMENDATIONS 29 APPENDICES 30 Appendix A Acronyms Used 30 Appendix B Independent Monitor Biography 31 Appendix C Citizen Oversight Board Member Biographies 32 Appendix D D.R.M.C. Article XVIII Office of the Independent Monitor 34 Appendix E Penalty Table and Disciplinary Matrix 43 AGENCY RESPONSE 50 Office of the Independent Monitor Response 50 Mayor s Office Response 62

7 EXECUTIVE SUMMARY Civilian monitoring of uniformed personnel is a relatively new field in the realm of public safety. In response to citizen concerns regarding the use of force by uniformed personnel and questions regarding the quality of subsequent internal investigations, the City and County of Denver (City) created the Office of the Independent Monitor (OIM) under Article XVIII of the Denver Revised Municipal Code (D.R.M.C.) effective October 2, The OIM became operational on August 1, This citizen-centric agency is staffed by six employees, who serve at the pleasure of the Independent Monitor (Monitor), including three attorneys, a community relations ombudsman, a research analyst, and an office manager. 1 A Citizen Oversight Board (Board) oversees the Monitor. Current OIM personnel and Board members are competent professionals who have a genuine interest in helping improve law enforcement activities in Denver. 2 The Office of the Independent Monitor Operates Under a Broad Mandate that is Problematic and Prone to Varying Interpretations The OIM has generally complied with broad ordinance requirements by establishing internal policies and procedures designed to execute monitoring activities, completing and issuing all required reports, and monitoring all mandatory cases. Working collaboratively with the Department of Safety, the Monitor also participated in the creation of the new Discipline Matrix and Disciplinary Handbook in an effort to streamline discipline of uniformed personnel and ensure the best possible service to the citizens of Denver. Further, the Monitor initiated the development of a mediation program that has garnered national and international recognition and that has been implemented by municipalities throughout the country. 3 While OIM monitoring activities are generally compliant with broad City legal requirements for the function, the audit points out two areas for improvement: outreach and internal oversight. Both areas are crucial for assuaging citizen concern over use of force by law enforcement officials including the integrity of internal investigations concerning instances involving use of force. The Board, the Mayor s Office, and the Monitor should take action to enhance the image and effectiveness of the OIM program and the important functions it performs. 4 To that end, the Auditor s Office recommends three strategies for improvement. First, the Board should establish a comprehensive method by which to evaluate the performance 1 The Office of the Independent Monitor operated with 5.5 full-time equivalents in 2010 with the ombudsman position functioning part-time. For budgetary purposes, the Citizen Oversight Board is also included in the Office of the Independent Monitor. 2 Please see Appendices B and C for biographies of the current Independent Monitor and Citizen Oversight Board members. 3 Denver s program has been recognized in publications by the Denver Post, the International Association of Chiefs of Police (IACP), and the U.S. Department of Justice Community Oriented Policing Services (COPS). 4 The Office of the Independent Monitor program consists of the Monitor and his staff as well as the members of the Citizen Oversight Board. References to the OIM throughout this report should be construed to include the Monitor, his staff and the Citizen Oversight Board collectively. P a g e 1 Office of the Auditor

8 of the Monitor to ensure full accountability and transparency for the function. This method should incorporate quantitative measurements and enhance the quality and quantity of qualitative information used to evaluate the Monitor. Second, the Mayor s Office and the OIM should provide enhanced guidance regarding ongoing reporting protocol, reporting on cases that have been re-opened, interaction with the media, and formal responses regarding implementation of recommendations. Finally, the OIM should improve the quality of outreach efforts to the public and uniformed personnel. Lack of Effective Evaluation of the Monitor s Performance The Board serves the critical role of ensuring that the OIM effectively executes its mandated responsibilities. The Board also serves in an important public relations capacity by providing an avenue for citizen input on uniformed personnel disciplinary activities. D.R.M.C. and other governing documents establish the responsibilities of the Board, which include evaluating the effectiveness of the OIM and addressing concerns of the community regarding the Department of Safety. Audit work determined that the Board is not sufficiently performing some responsibilities and the Citizen Oversight Board has not established quantitative performance criteria as required per Ordinance. OIM should ensure sufficient funds are allocated for the Board to execute their oversight responsibilities. More specifically, the Board could better fulfill its evaluation duties, as mandated by the D.R.M.C. The Board is responsible for evaluating the effectiveness of the Monitor by establishing both qualitative and quantitative performance criteria. However, the Board has not established any quantitative performance measures, citing a lack of resources to retain a consultant to assist in developing such measures. Secondly, qualitative performance information used by the Board to evaluate the OIM is very limited and is of questionable value, since the documented primary source of this information is the OIM. For example, the Board recently solicited survey feedback only from OIM staff and Board members while other important OIM stakeholders, such as Department of Safety personnel and the general public, were excluded from responding to the survey. The Board cited a lack of resources to execute additional feedback surveys. In addition to strengthening formal evaluation efforts, the Board can improve the quality of informal, on-going oversight activities as well. The Monitor presents the majority of information regarding the status and outcomes of disciplinary cases during executive sessions of the Board. Based on a determination of deliberative process privilege by the City Attorney s Office, auditors were not permitted to observe these executive sessions. 5 Outside of information gathered during executive sessions, the Board rarely pursues other sources of information to validate and evaluate the Monitor s conclusions. For example, 5 The term deliberative process privilege was recognized by the Colorado Supreme Court s ruling on the case City of Colorado Springs v. White (Case No. 97SC685). In general, deliberative process privilege prevents public disclosure of any internal government communication that would deter the open exchange of opinions and recommendations between government officials. Additional confidentiality and public record requirements can be found in the City s Ethics Code and the Colorado Criminal Justice Records Act. Also, see Appendix D, D.R.M.C (c) Confidentiality. City and County of Denver P a g e 2

9 the Board has the authority to review pertinent portions of personnel files or Internal Affairs Bureau (IAB) case files but rarely elects to do so. Furthermore, interviews with Department of Safety personnel revealed that they have not received a request from the Board for access to case files relating to any specific case in the last several years and have received only one request for more information regarding a case during the last year. In addition to these evaluation issues, audit work determined that member attendance at Board meetings is inconsistent and that vacancies are not always filled in a timely manner. While the Board does hold meetings more frequently than the bi-monthly D.R.M.C. requirement, some members exhibit inconsistent attendance. This can be problematic, since the Board s interaction with the Monitor is used as a means to evaluate the Monitor. Further exacerbating the attendance issue is the fact that, for seven of the 18 months reviewed (39 percent), the Mayor s Office did not fill a vacant Board position, and the Board only consisted of six members. Member vacancies and a lack of resources hinder the Board s oversight of the Monitor s performance. The Board s non-compliance with D.R.M.C. requirements for overseeing the performance of the Monitor in general result in a diminished accountability structure for this key, highprofile City function. This condition likely reduces the confidence of both members of the public and uniformed personnel regarding the purpose and activities of the OIM. The following will enable the Board to better assess the effectiveness of the OIM and will result in enhanced accountability and transparency for this critical, public-facing City function: Develop quantitative performance criteria. Strengthen qualitative performance feedback. Increase independent review of personnel and case files. Revise governing documents to provide an appropriate budget allocation to execute responsibilities and to specify attendance requirements. Enhanced Legal Clarification Required for OIM Reporting and Media Interaction One of OIM s key responsibilities is to report to City officials and citizens regarding disciplinary processes and cases involving uniformed personnel. This reporting is the primary notification and educational tool for dispersing vital information to Denver citizens and uniformed personnel. Reporting is also one of the main avenues for the OIM to demonstrate value and impact towards improving the internal investigation process for uniformed personnel, reducing instances of unnecessary force, and providing assurance, accountability, and transparency to the general public. Audit work identified three areas for improvement. First, the OIM needs greater clarity regarding publicly reporting on sensitive cases, including specific guidance regarding how information should be disclosed on the OIM website. Secondly, the OIM could benefit from greater guidance on proper interaction with the media. Finally, the Mayor s Office should require the Manager of Safety and Chief of Police to formally respond to P a g e 3 Office of the Auditor

10 recommendations issued through the Monitor s Annual Reports. Accordingly, the OIM internal policy and procedures and the D.R.M.C. should be amended as follows: Amend D.R.M.C. clarifying guidance for public reporting on high profile, sensitive cases to ensure that the OIM consistently reports on these cases and in a manner that fully accounts for the public relations interests of the City, regardless of the circumstances. Amend D.R.M.C. and OIM policy and procedure creating a framework for contact with the media that helps protect the interests of the City as a whole in instances of increased media scrutiny. Amend D.R.M.C to require written responses, with formalized timelines, from the Department of Safety and the Chief of Police for recommendations made by the OIM to increase accountability and improve internal investigative and disciplinary processes. Monitor Outreach Activities Can Be Improved The OIM is subject to confidentiality requirements including prohibition of identifying specific persons in public reports. Establishing trust between citizens and uniformed personnel is a critical outreach function required of the OIM. In order for the public to have confidence in OIM monitoring activities, citizens must understand why the OIM exists and that they have recourse if they believe they have been mistreated by Department of Safety personnel. Furthermore, outreach to rank-and-file Department of Safety personnel, in addition to ongoing communications with Department of Safety management, is important because the OIM is also a resource for these employees. However, the Monitor has only performed limited outreach activities to the Denver Police Department (DPD) uniformed personnel. The majority of the outreach activities consisted of attending DPD functions such as roll call and award ceremonies. Further, feedback provided by the Denver Police Protective Association (DPPA) 6 was highly critical of the OIM. Relations are strained between the Monitor and rank-and-file uniformed personnel, even though the Monitor and Department of Safety Manager agree on imposed discipline in the vast majority of cases, especially in discretionary oversight cases. 7 Equally important is enhancing community outreach activities to ensure citizens understand the role of the OIM, provide assurance that complaints and investigations 6 Denver Police Protective Association is the union organization representing active and retired Denver Police Department officers. 7 Examples of discretionary oversight activities that can be limited are cases involving lost equipment (e.g., cell phones); failure to provide a business card; unnecessary, rude comments to a commanding officer; and rough handling of a vehicle. The Monitor and the Manager of Safety agree on the discipline in the majority of these minor cases. City and County of Denver P a g e 4

11 are appropriately completed, and improve police/community relations. Although the OIM may have limited resources to devote to outreach activities, it is possible for the Monitor to reduce additional discretionary oversight activities in order to increase outreach activities. OIM could also utilize social media as a form of outreach. Because outreach is a core function and responsibility of the agency, the OIM should ensure that outreach is a priority. P a g e 5 Office of the Auditor

12 INTRODUCTION & BACKGROUND Uniformed Personnel Monitoring Several cities and counties across the nation have adopted independent oversight bodies to monitor internal investigations of uniformed personnel, which include Police, Fire, and Sheriff, depending on the jurisdiction. Increasingly since the early 1990s, cities and counties have decided to re-evaluate uniformed personnel operating policies and procedures including the appropriate use of force and the overall structure of uniformed personnel oversight. Serious incidents involving allegations of misconduct by uniformed personnel often served as the catalyst for this re-evaluation. As a result, cities and counties began to appoint independent monitors. Many of the serious incidents involved excessive use of force and were often widely publicized, resulting in calls from the citizenry for the reformation of uniformed personnel oversight structures and procedures. For example, two such incidents occurred in Los Angeles, CA. First, in 1991, the Rodney King incident publicly exposed a case of severe police brutality where several officers failed to comply with use-of-force procedures. The second incident, the Rampart Scandal, comprised a series of three events in late 1997 and early 1998 involving multiple allegations of police abuse of power, criminal activity, corruption, and brutality within a specialized anti-gang police unit assigned to the Rampart area in Los Angeles. This scandal ultimately ended with the City of Los Angeles entering into a consent decree with the U.S. Department of Justice, which mandated that an independent monitor oversee the Los Angeles Police Department to ensure that it implemented process improvements and reforms. 8 In return, the U.S. Department of Justice agreed not to pursue a lawsuit against the City of Los Angeles alleging excessive use of force. 9 In the City and County of Denver, similar incidents spurred conversation of reform. One of the most well-known incidents occurred in 2003 when a Denver Police officer shot and killed Paul Childs III, a developmentally disabled 15-year-old boy who was wielding a knife. This and other incidents, as well as questions surrounding the thoroughness of internal investigations, led to the creation of Denver s Office of the Independent Monitor (OIM) in late 2004 through an ordinance adopted by City Council. 8 United States of America, Plaintiff v. City of Los Angeles, California, Board of Police Commissioners of the City of Los Angeles, and the Los Angeles Police Department, Defendants Consent Decree. U.S. Department of Justice, Civil Rights Division. (Accessed 1/4/11). 9 The term of the legally mandated Independent Monitor as a result of this consent decree over the Los Angeles Police Department has since expired. Picture source: City and County of Denver P a g e 6

13 Litigation-Initiated Monitors and Municipal-Action Monitors There are two main differences between the Independent Monitor structures discussed above. In Los Angeles, litigation forced the establishment of the monitor position. Referred to as litigation-initiated monitors, these monitors are appointed as the result of settlement agreements or consent decrees stemming from lawsuits initiated by the U.S. Department of Justice, state attorneys general, or private litigators. Such monitors have existed in several jurisdictions other than Los Angeles, including Philadelphia, PA, Oakland, CA, Washington, D.C., and Detroit, MI. 10 The term and scope of work for this type of monitor is often defined through a contract or similar legal document, such as a memorandum of understanding. Once the changes and improvements specified by the legal agreement have been completed, the monitor s term will lapse. Denver s OIM, alternatively, was created through municipal action rather than through litigious action. Referred to as municipal-action monitors, these types of monitors are appointed voluntarily by a municipality instead of being mandated by a settlement agreement. Litigation-initiated monitors are usually appointed for a defined period of time, whereas Denver s Independent Monitor will continue to exist unless the ordinance authorizing the Office is repealed. Similar to litigation-initiated monitors, the OIM was created to provide assurance that internal investigations of uniformed personnel are conducted in an appropriate manner. 11 The municipal-action monitor is a proactive approach to uniformed personnel monitoring. Community Policing Independent monitoring functions, such as the Denver OIM, are a component of a larger community-policing concept, spearheaded by the U.S. Department of Justice. Community policing utilizes three components community partnerships, organizational transformation, and problem-solving techniques to proactively address underlying conditions that create public safety issues. 12 The OIM plays a role in each of the three components of community policing. First, the OIM and the Citizen Oversight Board (Board) serve as an avenue for assisting law enforcement to build trusting partnerships with the community and helping to educate the public regarding the complaint and commendation process for uniformed officers. Secondly, the OIM has the ability to influence organizational transformation by evaluating processes to ensure that City goals are fully aligned with community safety and service expectations. Third, the OIM provides information, analysis, evaluation, and recommendations for improvements to the City s discipline process for uniformed personnel (i.e., problem-solving efforts). 10 Police Assessment Resource Center National Guidelines for Police Monitors. 11 Ibid. 12 Please see the U.S. Department of Justice website for additional information regarding this initiative at: P a g e 7 Office of the Auditor

14 OIM Legal Framework The mission of the OIM is to provide fair and objective oversight of the Denver Police, Fire, and Sheriff Departments. The Monitor focuses on transparency and accountability in order to maintain public confidence in Denver s sworn safety personnel and the policies which govern them. 13 Collectively, the OIM and the Monitor provide ongoing assurance that the complaint handling, internal investigations, and disciplinary processes of uniformed personnel in the City and County of Denver are thorough, fair, unbiased, and transparent. According to the Denver Revised Municipal Code (D.R.M.C.), the OIM is responsible for overseeing all members of the classified service of the Denver Police Department (DPD), all sworn members of the Denver Sheriff Department (DSD), and members of the Denver Fire Department (DFD) who are authorized to carry and use firearms on duty. In 2010, the authorized personnel amounted to 1,445 Police, 730 Sheriff, and 14 Fire. 14 D.R.M.C., Chapter 2, Article XVIII 15 establishes the OIM and prescribes the following requirements for OIM operations: Requirements to monitor and participate in certain types of investigations of uniformed personnel that include critical incidents (e.g., shootings involving uniformed personnel and in-custody deaths) and duty-related incidents during which a person dies or suffers serious bodily injury. Requirements to make recommendations to the Manager of Safety (MOS) regarding administrative action, including possible discipline as a result of internal investigations, as well as recommendations regarding other policy issues. Requirements to submit an annual public report to the Mayor and City Council and to maintain an ongoing status report regarding citizen complaints, investigations, policy violations, and the appropriateness of disciplinary sanctions. Confidentiality requirements that include: prohibition of identifying specific persons in public reports, treating all documents and materials regarding investigations as confidential, prohibition from discussing the status of any criminal investigation, and requirements that all information learned in the course of carrying out duties be protected by deliberative process privilege. 16 The discretionary power to monitor any internal DPD or DSD investigation that the OIM believes is in the best interest of the City. 13 Office of the Independent Monitor website accessed 5/4/ Personnel numbers were provided by the Department of Safety. The number of Police personnel is the authorized strength as noted in the budget. 15 Please see Appendix D for the complete ordinance. 16 The term deliberative process privilege was recognized by the Colorado Supreme Court s ruling on the case City of Colorado Springs v. White (Case No. 97SC685). In general, deliberative process privilege prevents public disclosure of any internal government communication that would deter the open exchange of opinions and recommendations between government officials. Additional confidentiality and public record requirements can be found in the City s Code of Ethics and the Colorado Criminal Records Justice Act. City and County of Denver P a g e 8

15 The Citizen Oversight Board The D.R.M.C. also establishes a Citizen Oversight Board (Board) to assess the effectiveness of the OIM, make policy recommendations, and address issues of community concern. The Board consists of seven members, each of whom serve four-year staggered terms and who are appointed by the Mayor and confirmed by City Council. 17 Current and former Denver law enforcement employees and their immediate families are precluded from serving on the Board. The Board currently holds two meetings per month and four quarterly meetings per year, which is in excess of Ordinance requirements. 18 These meetings serve as the main communication conduit between citizens, the OIM, and the Department of Safety (Department). In addition, the Board is required to provide an annual report to the Mayor and City Council and has the authority to issue other reports over the course of the year. National Guidelines for Police Monitors The Police Assessment Resource Center (PARC) is a national nonprofit organization dedicated to providing independent, evidence-based information on the specific topics of police oversight and reform. PARC also published the National Guidelines for Police Monitors in 2008 in an attempt to respond to the need of police DPD Internal investigation practices have improved since the inception of the OIM and received national best practice recognition. executives for greater precision and clarity throughout the monitoring process. 19 These guidelines address items such as selecting the Monitor, monitoring techniques, and reporting. 20 In 2008, the OIM commissioned PARC to review DPD s use-of-force guidelines and investigation processes. PARC commended DPD for having high-quality guidelines on the use of force, but reported that internal investigations could use some improvement. The study also noted that, since the inception of the OIM, internal investigation practices have improved and DPD has been highlighted as adhering to national best practices. Overview of the Disciplinary Process When either a citizen or a City employee, including uniformed personnel members, completes and submits a complaint form (via mail, facsimile, or ), the Department opens an internal investigation case. Complaint and commendation forms are available in various locations across the City, including the OIM office, police stations, City Council 17 See Appendix C for Citizen Oversight Board member biographies. 18 Monthly meetings typically are held during daytime hours at the Wellington Webb Building and quarterly meetings are held in the evening at locations within Denver communities. 19 Police Assessment Resource Center, National Guidelines for Police Monitors, page Richard Rosenthal, City & County of Denver Independent Monitor, was part of the group of experts PARC commissioned in creating the National Guidelines for Police Monitors. P a g e 9 Office of the Auditor

16 members offices, and City courthouses. Citizens and City employees may also submit complaints through the City s website. 21 Once submitted, the complaint moves through a different process depending upon which department The number of complaints against DPD and DSD personnel has decreased since employs the uniformed personnel in question. According to the 2010 OIM Annual Report, the OIM was responsible for monitoring approximately 1, internal investigation complaints collectively for DPD, DSD, and DFD. The number of DPD complaints has increased since 2008, although it remains lower than the number of complaints filed in The number of DSD complaints has continued to decrease from both 2008 and 2007 levels. And, while the OIM is authorized to monitor select DFD employees, there have been no critical incidents resulting in the need for internal investigations or monitoring activities regarding DFD employees. DPD Internal Investigation and Discipline Process Once a complaint is filed with the Department, the Internal Affairs Bureau (IAB) of the DPD conducts a preliminary review of the complaint and associated allegations, while consulting with the OIM. Within each complaint, there may be several allegations of different types of misconduct that are evaluated separately. Based on the preliminary review, the IAB decides whether to open a formal or informal investigation, refer the case for mediation, or decline the complaint for further action. 23 Regardless of what the IAB decides, the OIM will actively monitor and assess the appropriateness of actions taken by the Department. If criminal charges are filed in conjunction with an internal complaint, the IAB will usually wait until the Denver District Attorney s Office completes its investigation prior to initiating an internal investigation. Based on the formal investigation performed and type of alleged behavior, each allegation within a complaint is assigned to a category ranging from A to F. Category A behavior is the least serious, having minimal negative impact on operations or professional image of the Department, while category F behavior is the most serious, including law violations, willful disregard for department values, or incidents involving death. 24 After the investigation is complete, each Complaint Initiated and submitted to OIM or DPD Internal Affairs Bureau (IAB) IAB conducts preliminary review in consultation with the OIM IAB decides what action will be taken OIM monitors the investigation OIM & Safety personnel submit discipline recommendation to Manager of Safety MOS decides final discipline Appeal to Civil Service 21 With the advent of the OIM, these complaint and commendation forms were created and distributed throughout the community, and web-friendly forms were added to the City s website, which can be filed online Annual Report, Office of the Independent Monitor, pages 2-3 and A complaint may be declined for several reasons, including but not limited to: the IAB and Monitor agree the complaint is false; the complaint is filed in an untimely manner; the complainant does not cooperate with IAB investigators; etc. 24 See Appendix E for Penalty Table and Disciplinary Matrix. City and County of Denver P a g e 10

17 allegation is either found to be sustained or not-sustained, the latter meaning that there is not enough evidence to prove or disprove that a violation occurred. 25 The categorical rating assigned to each sustained allegation has a direct impact on the possible disciplinary actions that can be imposed on the officer in question. Depending on the categorical rating assigned to the sustained allegation and the officer s history of previous violations (if any), the Department consults an established matrix of possible penalties, ranging in severity from oral reprimand, written reprimand, fines, and suspension, all the way to termination, for the most severe cases. After the completion of a formal investigation, if the complaint is sustained, then the case goes through several levels of review for disciplinary recommendations by way of the chain of command for the officer against whom the complaint was filed. This review previously included the Discipline Review Board (DRB), which comprised both citizens and officers. However, on April 7, 2011, Police Chief Gerald Whitman disbanded the DRB, citing that the DRB s participation in the discipline review process added unnecessary time and duplicated citizen involvement, since the OIM and Board both include civilians. In addition to disciplinary action recommended by the officer s chain of command, the OIM provides a recommendation by consulting the matrix for disciplinary action. However, the MOS makes the final determination regarding the discipline imposed. The OIM subsequently issues a letter to the complainants, notifying them of the disposition of their case and The OIM provides recommendations for disciplinary action. whether or not the Monitor believes the findings and discipline imposed are reasonable. On average, a full investigation lasts approximately 92 days from inception to completion; the Monitor and the IAB have established a goal of 150 days to complete a full investigation. 26 The MOS does have the authority to rescind a final disciplinary decision and did so in two recent cases. The Chief of Police then ordered those cases re-opened for further investigation. The disciplinary decision by the MOS is generally considered to be final, subject only to an appeal to the Civil Service Commission (Commission) or the Courts, filed by the officer being disciplined. The Commission has five members, who are appointed by the Mayor and City Council. The Commission handles several other uniformed personnel matters beyond discipline appeals including assisting with uniformed personnel hiring processes. 25 In addition to Sustained and Not Sustained findings, Exonerated (alleged actions were within the policies, procedures, rules, regulations, and directives of the Department) and Unfounded (alleged actions did not occur) are two additional finding options. 26 Office of the Independent Monitor Annual Report 2010 p P a g e 11 Office of the Auditor

18 OIM Monitoring Procedures During the audit, the OIM updated its 2006 internal operating procedures, effective August 2010, documenting specific procedures for monitoring cases and complaints. The procedures address several aspects of the process including complaint intake, investigation monitoring, archiving and documentation, as well as public reporting. The updated procedures include guidance for utilizing the systems the Department uses to track complaints and document case information as well as guidance for assessing the assignment of discipline. Monitoring Systems Both the DPD and DSD use software systems to track complaints filed against uniformed personnel by citizens and City employees. DPD s IAB utilizes a custom-built information system known as CUFFS, and DSD utilizes a similar system known as ICE, to track complaints. The OIM has read-only access to these databases for monitoring purposes. However, OIM personnel can input new complaints as well as add notes about the progress of complaints. The OIM also uses several different documents internally for purposes of tracking the progress of complaints. In addition to CUFFS, DPD also utilizes the Personnel Assessment System, which executes trend analyses related to officer activities and performance. This type of analysis allows DPD management to proactively identify and address tendencies toward problematic behavior prior to the occurrence of a serious issue, such as excessive use of force. For example, CUFFS tracks officer use of force and will flag officers who exceed a certain threshold, such as five use-of-force encounters occurring within five months. These officers may then be asked to participate in a program designed to correct problematic behavior. OIM Reports D.R.M.C. outlines reporting requirements for the OIM, including a mandate to issue an annual report to the Mayor and City Council before March 15 of each year. The annual report includes the following: Work completed during the prior calendar year Complaint and investigation trends Recommendations for improvement on any process monitored by OIM Status of OIM goals Summaries of DPD and DSD monitoring activities, including commendations awarded Special initiatives and policy issues regarding the DPD and DSD Results of monitoring activities the Monitor has accomplished that year City and County of Denver P a g e 12

19 In addition to the annual report requirement, the ordinance provides the OIM with broad authority to release quarterly and interim reports throughout the year. The OIM has discretion over what these reports contain, but, at a minimum, they must include patterns relating to complaints and recommendations regarding investigations, discipline, policy, or related actions. Quarterly reports provide the status of critical incident investigations 27 and disciplinary decisions made involving DPD and DSD officers. The OIM utilizes interim reporting in situations requiring immediate attention, rather than waiting to report such information on a quarterly or annual basis. 27 Critical incidents are officer-involved shootings and in-custody death cases. The term may also refer to uses of force resulting in serious bodily injury or death or police pursuits resulting in serious bodily injury or death. P a g e 13 Office of the Auditor

20 SCOPE The scope of this audit includes an assessment of the efficiency and effectiveness of the Office of the Independent Monitor (OIM) and Citizen Oversight Board (Board) for the period January 1, 2009 to June 30, Audit staff included all active cases monitored during the audit period, regardless of case completion date. During the audit, the Denver Sheriff Department (DSD) was in the process of reforming its discipline system to make it similar to the DPD approach, with the new system scheduled for implementation on January 1, Thus, the audit focused solely on the DPD disciplinary system, which was reformed in Additionally, audit staff encountered a scope limitation while assessing the efficiency and effectiveness of the Board. Audit staff members were prohibited by the Board from attending executive sessions, which would have allowed the audit team to observe the level and quality of interaction between the Board and the Monitor as a means of validating the quality of the Board s evaluation of the Monitor. The OIM, instructed by the City Attorney s Office (CAO), denied access based on a determination of deliberative process privilege. 28 The Auditor views the CAO opinion as an audit limitation. OBJECTIVES The objectives of the audit were to assess the monitoring process of the Office of the Independent Monitor (OIM), to make a determination regarding current performance and compliance with relevant ordinances, and to assess other non-monitoring activities of the OIM in an effort to identify possible inefficiencies and opportunities for improvement. Specifically, the team reviewed and assessed the following: Compliance with applicable laws, rules, and other authoritative and relevant standards. The efficient allocation and use of resources. The agency s performance, management, governance, and oversight. The reliability and usefulness of information provided by management. The results of programs and activities and their impact on the overall performance of the agency. The achievement of program goals, organizational goals, and objectives. 28 See Appendix D, D.R.M.C 2-376(c) Confidentiality. Deliberative process privilege prevents public disclosure of any internal government communication that would deter the open exchange of opinions and recommendations between government officials. City and County of Denver P a g e 14

21 METHODOLOGY The audit team used several methodologies to achieve the audit objectives. These evidence-gathering techniques included, but were not limited to: Interviewing personnel from the Office of the Independent Monitor (OIM), the Citizen Oversight Board (Board), the Department of Safety, the District Attorney s Office, and representatives from the Denver Police Protective Association Reviewing City rules and regulations Reviewing various uniformed personnel monitoring practices and governance structures through benchmarking with other jurisdictions 29 Attending Board meetings Reviewing academic literature, news articles, national guidelines, and information from police-monitoring organizations 30 Performing varied analyses on internal investigation case information for active cases during the audit period Reviewing data from various City information systems Reviewing reports published by the OIM and the Board 29 Audit work included three benchmarking activities, including surveying cities that do not have a monitor function, surveying cities that do have a monitor function, and reviewing the enabling governance for the cities surveyed with a monitor. Cities were chosen based on population, monitoring structure, those identified by nationally recognized police oversight organizations, and cities suggested by the OIM. 30 The following resources were reviewed during audit work: Police Assessment Resource Center (PARC); National Association for Civilian Oversight of Law Enforcement (NACOLE); and U.S. Department of Justice. P a g e 15 Office of the Auditor

22 FINDING The Office of the Independent Monitor Operates Under a Broad Mandate that is Problematic and Prone to Varying Interpretations The Office of the Independent Monitor (OIM) has generally complied with broad ordinance requirements for the Office, establishing internal policies and procedures designed to execute monitoring activities, completing and issuing all required reports, and monitoring all mandatory cases. 31 Working collaboratively with the Department of Safety, the Monitor participated in the creation of the new Discipline Matrix and Disciplinary Handbook in an effort to streamline discipline of uniformed personnel and ensure the best possible service to the citizens of Denver. In addition, Denver s Independent Monitor initiated the development of a mediation program that has received both national and international recognition and that has been implemented by other cities throughout the country. 32 The meditation program provides a significant value to the City by educating both parties about what it is like to be on either side of an incident and bridging gaps between the community and the police. Despite these examples of compliance and leadership, the audit revealed that the OIM is not adequately documenting and communicating its value and impact in terms of meeting its primary mission. As such, opportunities exist for improving outreach activities and for developing evaluation criteria for the Monitor to demonstrate if and how well the OIM is meeting the original intent for creating the office: assuaging citizen concern over use of force and the handling of internal investigations by City law enforcement entities. Accordingly, the Citizen Oversight Board (Board), the Mayor s Office, and the Monitor should take action to enhance the image and effectiveness of the OIM and the important functions it performs. In this regard, the following three strategies for improvement should be considered: The Board should establish a comprehensive method for evaluating the performance of the Monitor to ensure full accountability and transparency for the function. In addition to the limited qualitative measurements that already exist, the Board should create quantitative measurements by which to evaluate the performance of the Monitor. Additionally, the Board should strengthen the quality of the limited qualitative performance information it is currently utilizing to evaluate the Monitor. The Mayor s Office and the OIM should provide enhanced guidance regarding the OIM s ongoing reporting, reporting on cases that have been re- 31 The Office of the Independent Monitor consists of the Monitor and his staff as well as the members of the Citizen Oversight Board. References to the OIM throughout this report should be construed to include the Monitor, his staff and the Citizen Oversight Board collectively. 32 Denver s program has been recognized in publications by the Denver Post, the International Association of Chiefs of Police (IACP), and the U.S. Department of Justice Community Oriented Policing Services (COPS). City and County of Denver P a g e 16

23 opened, interaction with the media, formal responses regarding implementation of recommendations. The OIM should improve the quality of its outreach and education efforts to the public and uniformed personnel. Lack of Effective Evaluation of the Monitor s Performance The Board serves the critical role of ensuring that the OIM effectively executes its mandated responsibilities. The Board also serves in an important public relations capacity by providing an avenue for citizen input on uniformed personnel disciplinary activities. Denver Revised Municipal Code (D.R.M.C.) and other governing documents establish the responsibilities of the Board, which include evaluating the effectiveness of the OIM and addressing community concerns regarding the Department of Safety. Audit work determined that the Board has the opportunity to better execute these responsibilities. Furthermore, the OIM should ensure that the Board is provided with sufficient funding to execute its oversight responsibilities. Board Should Enhance Approach to Evaluate the Monitor According to the D.R.M.C. and Board bylaws, the Board is responsible for establishing both qualitative and quantitative criteria to assess the effectiveness of the Monitor. 33 However, the Board has not developed quantitative measures and solely relies on limited qualitative data to assess the OIM s performance. For example, the Board has created a survey utilizing Survey Monkey 34 to assess the OIM s performance based on qualitative feedback criteria. The survey asks respondents to rate the performance of the OIM, based on the quality of The Board meets regularly with the Monitor, who briefs members regarding discipline cases. interaction with the Monitor and OIM staff during Board meetings. The survey is disseminated to all Board members and the Monitor s staff, but the Board has recently discontinued formally surveying Denver Police, Sheriff, and Fire Department personnel. When asked why, the Board cited a lack of resources. Discussions with Department of Safety personnel indicate they have not been asked for several years to provide formal input regarding the Monitor s performance. Further, the Board does not solicit feedback from the public. As a result, the primary data used to evaluate the OIM s performance is feedback from the OIM staff and Board members. In addition to the use of surveys to assess the Monitor s performance, the Board has recurring meetings with the Monitor and the authority to review DPD files. The Board evaluates the Monitor during semi-monthly meetings when the Monitor briefs Board members regarding on-going discipline cases. These meetings may include members of the Department of Safety. Also, the Board has the authority to review pertinent portions of uniformed personnel and IAB files to further evaluate the adequacy of monitoring 33 See Appendix D, D.R.M.C (b). Citizen Oversight Board Bylaws, Article III Survey Monkey is a web-based interface for creating and publishing custom surveys and tools to analyze the results for zero to little cost. P a g e 17 Office of the Auditor

24 investigations. 35 However, the Board only reviews minimal case information from the Department of Safety and heavily relies on the Monitor to provide case investigation status and information during executive sessions, which are closed to the public. Audit staff requested to observe an executive session meeting to access the Board s qualitative evaluation methods. However, based on a determination by the City Attorney s Office of deliberative process privilege, this request was denied. 36 The audit team did review executive session meeting minutes, which identified occasional attendance by each department within the Department of Safety, but the minutes did not reveal how the Department of Safety participates in evaluating the Monitor s effectiveness. As noted, though required by D.R.M.C., the Board has not developed quantitative measurements to evaluate the effectiveness of the OIM. In an effort to improve their evaluation process of the Monitor, the Board included OIM workload information for the first time in their 2010 Annual Report. 37 This additional information provides context to the workload (output) completed by the OIM, but does not clearly measure the OIMs level of effectiveness. Such quantitative measures could include complaint investigation outcomes, corrective actions identified and recommended by OIM regarding particular investigations, cases where further action was taken at the initiation of the Monitor, or decreased time spent to address complaints. 38 Benchmarking analysis revealed that other uniformed personnel monitoring bodies have developed quantifiable performance measures for their independent monitor functions, including monitoring Quantitative measurement is a key component of evaluation processes. the turnaround time to process a complaint, comparing the total number of complaints to discipline records (sustained rates), and gathering feedback from complainants as well as from uniformed personnel. While the Auditor s Office recognizes the on-going challenges in measuring performance for this type of activity, quantitative measurement is a key component of evaluation processes. As such, the Board should develop and track quantitative measures as well as enhance qualitative measures to include feedback from the Department of Safety and the public. Such changes will help establish an effective oversight structure that is transparent, accountable and fully compliant with legal requirements. 35 See Appendix D Article XVIII (c). October 4, The term deliberative process privilege was recognized by the Colorado Supreme Court s ruling on the case City of Colorado Springs v. White (Case No. 97SC685). In general, deliberative process privilege prevents public disclosure of any internal government communication that would deter the open exchange of opinions and recommendations between government officials. Additional confidentiality and public record requirements can be found in the City s Code of Ethics and the Colorado Criminal Justice Records Act. Also, see Appendix D, D.R.M.C (c) Confidentiality. 37 Citizen Oversight Board Annual Report issued March 15, Mohr, Beth Anne. The Use of Performance Measurement in Civilian Oversight in the United States. University of New Mexico study (2007) page 74 & 77. Accessed July, 7, City and County of Denver P a g e 18

25 Several Factors Limit the Effectiveness of the Evaluation Process Audit work identified several factors hindering the Board s ability to create and execute an effective performance evaluation process for the Monitor as prescribed by ordinance. Board Cites Limited Resources In response to the audit team s questions regarding lack of quantitative data collection, the Board and the Monitor reported that creating objective quantitative performance measures for this function would be extremely difficult. In order to create such measures, they cited the need to hire a consultant. Because of the City s difficult budgetary situation, the Board stated that they have been unable to retain a consultant for this purpose. While the Auditor s Office does not agree that only a consultant could establish objective, quantitative performance measures by which to evaluate the Monitor it appears that resources have been available within the OIM budget had the Board opted to use limited funds for this purpose. However, the Board has decided to use limited funds for other purposes. For example, in 2007, at the request of the Board, the Monitor attended a conference funded with budget moneys originally allocated for the Board. 39 Then, in 2010, the OIM sponsored a trip to a conference (funded by significant budget savings) for an OIM employee and five other City representatives. 40 While the Auditor s Office understands and supports the value of professional conferences, during difficult budget times, City agencies need to make tough decisions and trade-offs. Limited funding should be prioritized to ensure compliance with legal accountability requirements. Limited funding allocated for Board activities. The budget for the OIM comprises funds that are used by both the Board and Monitor. Audit work revealed that the budget for OIM has increased each year since 2005 with the exception of a decrease in funding for The vast majority of the OIM budget increases during this time were allocated for increases in personnel costs and only limited funding has been available for Board outreach and oversight activities. Denver s ordinance does not contain guidance regarding the appropriate amount or percent of the OIM budget that should be used for Board oversight and outreach activities vis-à-vis OIM operational costs. This lack of budget clarity and the limited amount of funding available reduces the Board s ability to effectively execute their responsibility to evaluate the Monitor. Board meeting attendance is inconsistent - Although the Board holds more meetings than are required by ordinance, some members exhibit inconsistent attendance. Sporadic attendance can be problematic, since the Board relies on interaction with the Monitor during these meetings to evaluate his performance. 41 Under D.R.M.C. Article XVIII 39 The Monitor attended the Racially Biased Policing conference. 40 The group attended the Arrest-Related, Excited Delirium, Sudden, and In-Custody Death Conference. 41 See Appendix D. D.R.M.C. Article XVIII October 4, 2004, requires bi-monthly and quarterly meetings. P a g e 19 Office of the Auditor

26 2-378 (f), Board members can be paid an annual stipend of $1,200 and are reimbursed for any Board-related expenses incurred. 42 Some City boards, such as the Career Service Authority Board and the Civil Service Commission, only provide stipends for actual meetings attended. 43 However, D.R.M.C. does not address any stipend reduction of payment for lack of participation, nor does it establish attendance requirements for Board members, unlike three of the six benchmarked jurisdictions, which do specify attendance requirements within their respective ordinances. 44 For example, the City of Tucson, AZ requires immediate dismissal if a member misses either four consecutive meetings or 40 percent of the meetings in a calendar year. The City of Albuquerque, NM will dismiss a member for missing three consecutive unexcused meetings. Meeting attendance by Board members is crucial, especially since those meetings are a large part of evaluating the Monitor s performance. Therefore, the Board should amend its bylaws to require and encourage consistent attendance and participation from Board members. For example, additional language could include dismissal for excessive absences or provide stipends based on actual meeting attendance. It should be noted that several members have demonstrated stellar attendance. Board vacancies not filled in timely manner - In addition to inconsistent attendance by a few members, audit work also identified that Board vacancies are not always filled before or upon expiration of the member s term. For seven (39 percent) of the 18 months of the audit period, the Board only consisted of six out of seven members. 45 In the first half of 2011, the Board operated with six members because the term of one member ended in December 2010 (although the member continued to serve an extra 90 days per D.R.M.C. provisions). Per ordinance, the Mayor has the authority to dismiss Board members at his discretion as well as appoint new members. Therefore, the Board should address attendance issues through periodic attendance performance reports submitted to the Mayor by the Chair of the Board, and the Mayor should establish a formal process to fill vacancies in accordance with ordinance time requirements. Improvements in Oversight of OIM can Positively Impact the City As noted, the Board s mission is to improve relationships between members of the community and uniformed personnel serving in the City s law enforcement agencies and to assess the effectiveness of the Office of Independent Monitor. 46 If the Board were to establish comprehensive evaluation criteria for the Monitor, obtain and rely on increased information from stakeholders, and ensure consistent attendance of meetings by Board members, it would be better able to effectively execute its mission. Such improvements would potentially have several positive impacts, including: 42 Board members have agreed to a reduced stipend of $50 per month instead of the $100 per month allowed per D.R.M.C. 43 Career Services Authority Board, D.R.M.C. Article III (a) October 4, 2004, and Civil Service Commission, D.R.M.C. Article III (a) October 4, Auditors benchmarked seven jurisdictions with an independent monitor function; however, Los Angeles operates under a contract which auditors did not have access to review. Therefore, it was excluded from this sample. 45 D.R.M.C. Article XVIII 2-378, October 4, The Board shall consist of seven (7) members who shall be residents of the City and County of Denver. 46 Citizen Oversight Board Bylaws Article I. City and County of Denver P a g e 20

27 The ability to conduct trend analysis, allowing the Board to make recommendations to improve the Monitor s overall effectiveness, as well as justify budget expenditures (i.e., demonstrate a positive, tangible impact on the City). The ability to improve relationships and build trust between the community and law enforcement. The ability to provide better information to rank-and-file uniformed personnel regarding the role and benefits of the OIM. The ability to increase public knowledge of and confidence in the OIM function. Enhanced Legal Clarification Required for OIM Reporting and Media Interaction One of the OIM s key responsibilities is reporting to City officials and citizens regarding disciplinary processes and cases involving uniformed personnel. This reporting function serves as the primary notification and educational tool available to disperse vital information to the citizens and uniformed personnel. Reporting is also one of the main avenues for the OIM to demonstrate value and show that it is achieving its mission: to improve the internal investigation process for uniformed personnel, reduce instances of unnecessary force, and provide accountability and transparency to the general public. Audit work identified three areas for improvement in this area. First, the D.R.M.C should be amended to provide greater clarity as to how the OIM should publicly report on sensitive cases, including specific guidance regarding how the OIM should disclose information on the OIM website, especially for re-opened cases. Second, the Mayor s Office and the OIM should provide greater guidance on the OIM s general interactions with the media. Third, the Mayor should revise the D.R.M.C. to require the Manager of Safety (MOS) and the Chief of Police to formally respond to OIM recommendations issued through its various reports. The Auditor s Office recognizes the need and importance for the OIM to maintain independence from the City s administration in terms of reporting to the public. However, we believe that formal protocols can be established that would better enable the City as a whole to address public relations issues related to high profile and controversial law enforcement activities. Interim Reporting Guidelines Should Be Clarified During the last year, the OIM encountered some unprecedented situations, which affected its monitoring activities and necessitated immediate reporting and interactions with the media. Because of these situations, the OIM released an interim report to provide timely information to citizens about a certain high-profile case. This particular report generated significant media attention, requiring the OIM to respond to a level of media inquiries never experienced before by the OIM since its inception. Ultimately, the OIM s actions, combined with other factors, resulted in this particular case being re-opened for further investigation. However, as of March 25, 2011, the report regarding this particular case remained on the OIM s website. 47 Although this report is 47 The case was re-opened August 19, P a g e 21 Office of the Auditor

28 readily available on the Internet in numerous places, the fact that the OIM did not remove it from its website while the case was re-opened is problematic. The Colorado Criminal Justice Records Act, the Colorado state statute that governs documents and information pertaining to internal law enforcement investigations, provides the custodian of the records in this case the Denver Police Department (DPD) with the authority to create rules for the public release of such records and information. 48 According to DPD s internal policies and procedures, the Department has the discretionary authority to release information when deemed appropriate, without jeopardizing the integrity of any ongoing investigation. Thus, it is the DPD that has the authority to decide whether the release of case-specific information, regardless if such information has DPD has the discretionary authority to release open case information as deemed appropriate. already been made public or not, would have a detrimental impact on the ongoing investigation. Further, upon re-opening the case, the OIM, through a public statement on its website, stated that it could no longer publicly comment on this case. For both of those reasons and to maintain objectivity, the report should have been removed from the OIM s website upon the re-opening of the case and re-posted when the case was closed. In addition to this report remaining on the OIM website after the case had been reopened, the OIM also took a different approach to reporting and publicizing the case, as compared to a similar case that was on-going at the time. D.R.M.C. requires information regarding investigations of officers to be treated as confidential but does not provide guidance regarding reporting on re-opened cases. The OIM s policies and procedures require that, when the Monitor does not agree with the final discipline decision rendered by the MOS: The complainant should be notified of the Monitor s disagreement; and A public report should be issued by the Monitor, which may be published in advance of a quarterly report in a case of significance. 49 In the first case (Case 1), these two actions were taken. However, with the other similar case going on at the time (Case 2), these actions were not taken, even though both cases were considered a case of significance. Table 2 shows the reporting timeline of these two cases. 48 Auditors contacted various representatives involved with releasing such records to the public, including the City Attorney s Office and the Department of Safety Records Coordinator. All parties agreed that any request for information on this case, whether the information was already public or not, would be denied until a final decision was rendered. 49 The OIM s updated policies and procedures went into effect August 2010, but were followed prior to that date as demonstrated in Table 2. City and County of Denver P a g e 22

29 Table 2 - Reporting Timeline for two Similar Cases Date of Initial Discipline Decision Date of Complainant Notification Date of Public Report Date Discipline Decision was Rescinded 50 Case 1 7/20/2010 8/11/2010 8/13/2010 8/19/2010 Case 2 7/30/2010 None None 8/23/2010 When audit staff inquired as to why Case 2 had been treated differently, the Monitor cited an expectation that Case 2 would be re-opened, based on its original closure date. In Case 1, this expectation did not exist, and, thus, the Monitor did not foresee a problem with public reporting. In both situations a report regarding a re-opened case remaining on the OIM website and disparate procedural treatment between comparable cases the OIM made a good-faith effort to address, what were for Denver, unprecedented monitoring events. Although the OIM had a rational reason for not following established policies and procedures, this situation also highlights the need to provide greater clarity surrounding procedures for ongoing reporting and handling re-opened cases. Interactions with the Media Can Represent Risk to the OIM and the City Interaction with the media is an important tool that the OIM can use to notify citizens and uniformed personnel about significant monitoring events. However, as demonstrated above, even two similar cases can be publicized and reported very differently by the OIM for valid reasons. While it is necessary for the OIM to weigh the public interest when interacting with the media, it should also approach media relations with due caution owing to the risk media interactions pose to the reputation of law enforcement personnel specifically, as well as on the City as a whole. Media relations risks are dependent upon many factors, including media type and frequency of interaction between the Monitor and members of the press. Police Assessment Resource Center (PARC) National Guidelines for Police Monitors identify numerous risks, including the following: The Monitor may lose control of how information is presented, depending on the media type. For example, the media may present facts in a misleading or biased manner. This risk is higher when interacting with television media, as opposed to print media. Interactions with the media can create a negative perception of the Monitor and hinder credibility with uniformed personnel and/or citizens if the Monitor does not choose its interactions carefully. 50 This is the date the case is re-opened since the final decision of the Manager of Safety marks the closure of a case. P a g e 23 Office of the Auditor

30 Further, the PARC National Guidelines state, it is best if the ordinance [governing the Monitor] address the circumstances under which the monitor may have dealings with the media. 51 In addition to these risks identified by PARC, interactions with the media represent a public relations risk to the City. Namely, if a sensitive issue is reported by the media and publicized in an improper manner, it could cause undue strife between City agencies and between Sensitive issues publicized in an improper manner can cause undue strife within the City. uniformed personnel and City residents. OIM internal policy and procedures lend only general guidance regarding media interactions and such guidance can be revised by the Monitor. D.R.M.C. is silent on the issue. While the recent interactions with the media regarding a re-opened case were not outside the OIM s authority as outlined by policy and procedure, they did raise questions and concerns amongst City officials. As a result of the inherent risks involved, the OIM would benefit from additional legal guidance identifying appropriate interaction with the media. This would also help create a structure to protect the OIM and City s interests, especially in the event of turnover in key positions such as the Monitor. Opportunities Exist to Enhance the Quality and Impact of OIM Recommendations The City can take two primary actions to enhance the quality and impact of its recommendations for improving disciplinary processes involving uniformed personnel. First, the OIM should improve the quality of recommendations proffered. Secondly, the Mayor s Office should revise D.R.M.C. provisions to require the MOS and Chief of Police to formally respond to recommendations made by the OIM. Current OIM Recommendations Lack Root Cause Analysis OIM s annual reports contain several recommendations to improve law enforcement disciplinary processes. However, the report recommendations do not contain specific root cause analysis or specific remedies for identified issues, nor do they discuss why recommendations repeated from year to year were not implemented by the Department of Safety. Based upon a review of OIM annual reports from 2007 through 2010, audit work determined that the OIM has consistently recommended the Department of Safety improve the timeliness of the disciplinary process. Although this continuous finding is important, the recommendations fail to identify the root cause of time delays or to contain adequate specificity to compel corrective action. For example, in the 2009 Annual Report, the Monitor notes that the Discipline Review Board (DRB), DPD Chief s 51 PARC National Guidelines for Police Monitors, 2008, page 58. City and County of Denver P a g e 24

31 hearing, and the MOS review all need improvement. 52 Yet, the only actionable recommendation in the report was for the Chief of Police to consider limiting the number of cases reviewed by the Discipline Review Board. 53 The overall conclusion by the Monitor about timeliness in the 2009 report states: Improvements can be made in the timeliness of command reviews, DRB scheduling, Chief Hearing scheduling, and review conducted by the Manager of Safety. As indicated above, it is important to the involved officers, the Department, and the community that improvements are made in this area and the Monitor calls on the Chief and the Manager to make it happen. While the Monitor reports that he communicates verbally with the Department of Safety regarding the identified root causes of the recommendations within the reports, the absence of documented root causes within the recommendations in publicly issued reports limits the effectiveness of the OIM to affect real change and improvements to law enforcement disciplinary processes. PARC National Guidelines state, If permitted or required to do so by agreement or ordinance, monitoring reports should examine performance on a systemic as well as a case by case basis. Systemic analysis has potentially a broader reach than case-by-case examination. Completing and publicly reporting on such systemic, or root cause, analysis and related actionable recommendations will enable the Department of Safety to improve the discipline process and will assist the OIM to better execute its mission. No Formal Requirement for Response or Actions on OIM Recommendations Currently, neither the MOS nor the Chief of Police is required by D.R.M.C. to respond to process improvement recommendations made by the OIM in its annual report. As a result, the OIM has repeated the same timeliness recommendations year after year and opportunities to identify corrective action from the perspective of the Department of Safety have been missed. Benchmarking analysis revealed that it is not uncommon for a city to require a formal written response from the police department to monitor recommendations and for the monitor to follow-up and report on implementation of reported recommendations. Requiring the Department of Requiring written responses to report recommendations aids in accountability and implementation. Safety to formally respond to OIM s recommendations holds Department personnel accountable for their response, increases transparency, and requires the Monitor and 52 According to the Denver Police Department Discipline Handbook, 29.1, both the Use of Force Review Board and the Discipline Review Board are designed to allow for citizen participation in the Department s use of force and discipline processes. 30 describes the Chief s Hearing, where the Chief must provide written notice to the subject officer advising him/her of the charges, an explanation of the evidence supporting the charges, and an opportunity to respond to the charges at a pre-disciplinary meeting. 53 With Mayor Guillermo Vidal s announcement on April 7, 2011, the timeliness issue was resolved by disbanding the Discipline Review Board. P a g e 25 Office of the Auditor

32 the Department of Safety to collaborate on the development of specific, practical, and measurable solutions to identified issues. Monitor Outreach Activities Can Be Improved As noted in the Background section of this report, cases like those involving Rodney King and Paul Childs III demonstrate the importance of independent law enforcement oversight entities. Key responsibilities of the OIM include ensuring that the citizen complaint process is accessible to the entire community and educating the community regarding the complaint process. Audit work determined that the OIM can improve these key activities. Perceptions of Frequent Disagreement between OIM and Manager of Safety Erroneous Many factors can impact a citizen s perception of City uniformed personnel and the OIM, including media coverage regarding incidents involving internal investigations of uniformed personnel. In fact, the Denver media has Effective outreach educates stakeholders and increases public confidence in police oversight activities. reported on a few incidents, on at least one of which the OIM has publicly commented. This media coverage has highlighted instances of disagreement between the OIM and the Department of Safety on select high-profile cases. Without effective outreach to educate external stakeholders, this type of media coverage can give the appearance that the OIM and MOS frequently disagree, casting doubt on the effectiveness of the City s disciplinary process for uniformed personnel. In reality, the Monitor and the Department of Safety tend to agree on discipline imposed and allegations made for the vast majority of complaints filed. Investigation outcomes reviewed by audit staff indicated that the Monitor and the MOS disagreed on discipline imposed less than one percent (1%) of the time. However, when a disproportionate amount of public outreach consists of media coverage of high-profile cases, the public has few opportunities to develop a balanced, realistic perception of the relationship between the Monitor and the Department. OIM Community Outreach Can be Improved In order to avoid any public misconceptions about the OIM s relationship with the Department of Safety and in order to establish public confidence in City law enforcement investigations and processes, it is important for the Monitor to enhance outreach efforts to the community to help citizens understand the Monitor s mission and goals. Outreach - Benchmarking analysis of other municipalities revealed that four of the six oversight entities have outreach requirements within their respective ordinances. However, the Denver ordinance does not contain any outreach-specific requirements for the OIM. The employee responsible for outreach within the OIM is the Community Relations Ombudsman (OIM Ombudsman). Per the Career Service Authority job description, the OIM Ombudsman Works with public and community groups to improve police/community relations, enhance citizen involvement and accomplish City and County of Denver P a g e 26

33 city/community goals for the Office of the Independent Monitor. The OIM has only committed limited resources for outreach, and, in March 2010, the OIM Ombudsman position was reduced to a part-time position by the Mayor s Office and the Budget and Management Office. Because it is a core function of the agency, the OIM should consider changes to current discretionary practices such as cases involving lost equipment or improper handling of a vehicle to ensure that outreach is a priority. 54 The Monitor currently has the authority, by ordinance, to review all cases. 55 In a period of budgetary pressures, however, this comprehensive review practice may not be the only beneficial use of the OIM s time and resources, and it certainly limits the time available to perform quality outreach activities. In fact, the Monitor cited a lack of resources as hindering the OIM s ability to complete outreach activities. Upon creation of the OIM, the Monitor recommended that the DPD initiate a triage, or filtering, approach to address the lack of resources necessary to review and handle complaints. 56 The Monitor has already decided not to monitor DSD property cases and DPD and DSD scheduled discipline cases, in an effort to ensure appropriate monitoring of all other cases. The rationale behind this approach is to allocate time to serious cases as opposed to minor cases, thereby balancing resources to ensure all responsibilities are addressed. Expanding this triage approach may prove useful for the OIM to ensure an equitable balance exists between monitoring cases and completing effective outreach activities. Additionally, benchmarking analysis found that New Orleans, LA currently utilizes a variety of electronic media, including social media, to facilitate outreach. While Denver s OIM does utilize its website to electronically post noteworthy updates, this approach is limited. Newer forms of social media, such as Facebook and Twitter, could significantly expand OIM outreach efforts. Beyond social media, the City of Portland, OR completes joint community presentations with uniformed personnel providing a unified message to the community, and Sacramento, CA performs targeted outreach, since the monitoring function only comprises one person. 57 Outreach to Uniformed Personnel The OIM has a variety of outlets for performing outreach activities with uniformed personnel, one of which is through roll call, a gathering of uniformed units where officers present themselves to their supervisor for inspection. After checking for proper and professional attire, as well as inspecting weapons and other equipment, the roll is called 54 Examples of discretionary oversight activities that can be limited are cases involving lost equipment (e.g., cell phones); failure to provide a business card; unnecessary, rude comments to a commanding officer; and rough handling of a vehicle. The Monitor and the Manager of Safety agree on the discipline in the majority of these minor cases. 55 D.R.M.C. Article XVIII and 2-374, October 4, Denver Police Department Discipline Handbook: Conduct Principles and Disciplinary Guidelines, October 1, 2008, Section Targeted outreach consists of choosing a specific group, such as a neighborhood community group, to educate members on safety in their neighborhoods (e.g., how to file a complaint or the role of the OIM with the City). P a g e 27 Office of the Auditor

34 and followed by a briefing. The briefing may include daily assignments, information on recent crimes, descriptions of wanted or missing persons, important notifications from the previous shift, and any other information deemed necessary or useful. Although roll call is an ideal venue to perform uniformed personnel outreach, audit work revealed that the Monitor is not maximizing this particular outlet. In only 10 percent of outreach activities to uniformed personnel over an eighteen-month period (from January 1, 2009 through June 31, 2010) did the Monitor use roll calls to connect ideas or practices through interactive communications with uniformed personnel. In 60 percent of outreach activities over the same time period, the Monitor attended official functions as a guest. These functions included a funeral, award ceremonies, promotions, retirements, and graduations. Such silent displays of outreach are commendable on behalf of the Monitor, but limiting interactive outreach activities creates unclear perceptions among uniformed personnel about the role of the OIM and can fuel negative attitudes towards the Monitor s perceived priorities. Further, The U.S. Department of Justice Community Oriented Policing Services (COPS) 58 believes: Community policing is a philosophy that promotes organizational strategies, which support the systematic use of partnerships and problemsolving techniques, to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime. Community Policing is comprised of three key components: Community Partnerships, Organizational Transformation, and Problem Solving. Outreach can be effective when individuals in an organization work to connect their ideas or practices to other organizations or communities. The OIM should, through continued outreach activities, collaborate with uniformed officers through roll calls to further encourage working partnerships between the OIM and uniformed personnel. 58 COPS is the office of the U.S. Department of Justice that advances the practice of community policing in America s state, local, and tribal law enforcement agencies. City and County of Denver P a g e 28

35 RECOMMENDATIONS The Auditor s Office offers the following recommendations to improve the accountability and transparency of the Office of the Independent Monitor: The Office of the Independent Monitor: 1.1. The Board should develop quantitative performance measures for the Monitor, leveraging measures developed by other municipalities to reduce or eliminate the need for consulting costs. In addition, qualitative performance measures should be strengthened by, at a minimum, including documented, formal feedback from the Department of Safety The Monitor and the Board should develop individual survey instruments targeting specific public groups (e.g., complainants and general citizens) to gather performance feedback The OIM should ensure the Board is allocated sufficient funds to execute its oversight responsibilities The Board should create and document attendance performance requirements in the Board s By-laws including a reporting protocol to the Mayor regarding Board member attendance The Monitor should ensure that Annual Report recommendations reflect the level of specificity necessary to rectify noted issues Owing to the City s budget deficit, the Board should require that the Monitor provide an annual work plan, which includes an account of resources necessary to effectively execute monitoring responsibilities and community outreach activities as prescribed by the D.R.M.C The OIM should improve outreach with uniformed personnel and the community by increasing interactive forms of outreach The OIM should utilize social media to increase community outreach at a low cost. The Mayor s Office: 1.9. The Mayor s Office should amend the D.R.M.C. to include the following changes: a. Establish a formal selection procedure to ensure that Board member vacancies are appointed timely. b. Additional guidance for reporting on sensitive and re-opened cases that should include criteria ensuring that case-specific information is not published while a case is open. This additional guidance should also ensure that there is a proper balance between transparency and confidentiality. c. Create a sustainable framework for interactions with the media, including a notification protocol to the Mayor, the Board, and the City Attorney prior to media interaction. d. Require the Manager of Safety and Chief of Police when appropriate, to formally respond, including a plan of action and response timelines, to recommendations noted in the Monitor s Annual Report. P a g e 29 Office of the Auditor

36 APPENDICES Appendix A Acronyms Used CAO COB CUFFS DFD DPD DRB DRMC DSD IAB ICE MOS NACOLE OIM PARC City Attorney s Office Citizen Oversight Board Denver Police Department software system used to track complaints against uniformed personnel Denver Fire Department Denver Police Department Discipline Review Board Denver Revised Municipal Code Denver Sheriff Department Internal Affairs Bureau within the Denver Police Department Denver Sheriff Department software system used to track complaints against uniformed personnel Manager of Safety National Association for Civilian Oversight of Law Enforcement Office of the Independent Monitor. The program consists of the Monitor, his staff, and members of the Citizen Oversight Board Police Assessment Resource Center City and County of Denver P a g e 30

37 Appendix B Independent Monitor Biography The current Independent Monitor, Richard Rosenthal, has extensive experience in civilian oversight of law enforcement. Previously, he has served as a Deputy District Attorney for the County of Los Angeles where he was assigned to the Major Fraud Division for a period of time. More recently, he was assigned to the Special Investigations Division, which involved investigating and prosecuting public officials, including judges and police officers. In 2001, Mr. Rosenthal was hired as the first Director of the City of Portland, Oregon s Independent Police Review (IPR) Division of the City Auditor s Office. In that capacity, Mr. Rosenthal created Portland s first professional police oversight agency. Mr. Rosenthal was then hired by the Hickenlooper administration to be the City of Denver s first Police Monitor in 2005 and has helped to implement key changes to the Denver Police and Denver Sheriff Departments disciplinary processes. Mr. Rosenthal has also held several teaching positions at various universities, along with serving on the Board of Directors for the National Association of Civilian Oversight of Law Enforcement (NACOLE) and was included in the Executive Committee of a group of experts utilized to create the National Guidelines for Police Monitors published by the Police Assessment Resource Center in P a g e 31 Office of the Auditor

38 Appendix C Citizen Oversight Board Member Biographies 59 Cathy Reynolds Ms. Reynolds served on the Denver City Council as an at large member for a record 28 years and 21 days, as well as Chairing the Urban Drainage and Flood Control District for more than 20 years. She held the position of City Council President five times during her tenure. Ms. Reynolds spent 25 years on the board of the Colorado Municipal League, serving as president twice. She is a past president of the National League of Cities, and Reynolds currently serves on the board of the Convention Center Hotel Authority and the Phoenix Concept, which provides residential mental health and substance abuse services. Dr. Mary Davis Dr. Mary Davis has been actively involved in civic and community-improvement activities since arriving in Denver in She began her career in healthcare as a registered nurse and moved into the education sector as a nursing instructor, division director, and as the founding dean of instruction of the Community College of Aurora. She later served as the Academic Affairs Officer of the Colorado Commission on Higher Education. Dr. Davis was the Director of Administration at the Regional Transportation District for ten years prior launching McGlothin Davis, Inc., an organizational effectiveness consulting firm, in She has served on numerous nonprofit boards including the Denver Chapter of the American Cancer Society, the Denver Hospice, Adult Learning Source, and Goodwill Industries of Denver, serving as board chairperson of the latter two organizations. Other community-based activities include serving on school accountability committees, nonprofit scholarship committees, higher education advisory committees, and as the director of the Children s Church at Shorter Community A.M.E. Church. Pastor Paul Burleson Pastor Burleson is the president-elect of the Greater Metro Denver Ministerial Alliance. He founded Denver s Friendship Baptist Church of Christ Jesus in 1974 and continues to serve as its pastor. He also spent 28 years as an engineer with U S WEST Communications Group and four years in the U.S. Air Force. A former dean of the United Theological Seminary s Denver Extension, Pastor Burleson is experienced in the prevention, identification, and counseling of individuals and families with substance abuse and other at-risk behaviors. Rabbi Steven Foster Rabbi Foster is the Senior Rabbi at Congregation Emanuel, where he has served for nearly 37 years and founded Stepping Stones, a nationally recognized outreach program for interfaith families. He is a former board member of the American Civil Liberties Union, the Colorado State Civil Rights Commission (which he chaired), the 59 City and County of Denver Citizen Oversight Board. Citizen Oversight Board About Us. (Accessed March 17, 2011). As of June 6, 2011, Dr. Mary Davis is Chair and Jeff Walsh is Vice Chair. City and County of Denver P a g e 32

39 Denver District Attorney s Advisory Committee, and a number of other secular and religious organizations. He currently serves on the executive committee of the United Jewish Committees Rabbinic Cabinet and on the board of Planned Parenthood. Anthony Navarro 60 Mr. Navarro is an attorney with the law firm of Holland & Hart LLP, where he practices commercial litigation in appellate and trial courts. He formerly served for six years as an Assistant Attorney General in the Colorado Attorney General s Office, where he participated in both criminal appeals and consumer protection enforcement. Before joining the Attorney General s Office, Mr. Navarro was a law clerk for Justice Alex Martinez of the Colorado Supreme Court. He is a graduate of Yale Law School and the University of Colorado. In addition to the Citizens Oversight Board, Mr. Navarro currently serves on the Colorado Bar Association s board of governors, the Colorado Hispanic Bar Association s board of directors, and the Denver County Court Judicial Discipline Commission. Carmen Messina Velasquez Ms. Messina Velasquez is the President of Stefano s B.E.T. (Bringing Everyone Together) LLC, a company specializing in strategic planning and community collaboration projects. She recently retired from the State of Colorado after a successful thirty-year career in juvenile justice, employment and training, emergency management, public safety, and higher education. She is a founding member of the Colorado Coalition for Minority Youth Equality and has served on numerous boards. She is currently a member of the Red Shield Community Center, Safe2Tell School Safety Initiative, the Shaka Foundation for Youth, and the Downtown Denver Residence Organization. Jeff Walsh Mr. Walsh is an attorney with the law firm of Friesen Lamb, LLP. He specializes in employment and labor law and complex commercial litigation. Before joining Friesen Lamb, Mr. Walsh was a trial attorney with the Colorado Public Defender s Office for five years. In addition to serving on the COB, he is also a member of the board of directors at KIPP Colorado, a network of Denver charter schools. 60 Nita Gonzales was confirmed by City Council on June 27, as a new Board member for the position vacated by Anthony Navarro. P a g e 33 Office of the Auditor

40 Appendix D D.R.M.C. Article XVIII Office of the Independent Monitor City and County of Denver P a g e 34

41 P a g e 35 Office of the Auditor

42 City and County of Denver P a g e 36

43 P a g e 37 Office of the Auditor

44 City and County of Denver P a g e 38

45 P a g e 39 Office of the Auditor

46 City and County of Denver P a g e 40

47 P a g e 41 Office of the Auditor

48 City and County of Denver P a g e 42

49 Appendix E Penalty Table and Disciplinary Matrix DPD Discipline Handbook: Conduct Principles and Disciplinary Guidelines, Appendix F, October 1, P a g e 43 Office of the Auditor

50 City and County of Denver P a g e 44

51 P a g e 45 Office of the Auditor

52 City and County of Denver P a g e 46

53 P a g e 47 Office of the Auditor

54 City and County of Denver P a g e 48

55 Source: City and County of Denver Police Department Discipline Handbook Appendix F. P a g e 49 Office of the Auditor

56 AGENCY RESPONSE Office of the Independent Monitor Response City and County of Denver P a g e 50

57 P a g e 51 Office of the Auditor