HomeMy WebLinkAboutSubmittal-Julia Dawson-Letter of CIP's Independent Counsel ObstructionREVISED
Date: April 28, 2014
To: Commissioner Wilfredo (Willy) Gort, Chairman
Commissioner Keon Hardemon, Vice Chairman
Commissioner Frank Carollo
Commissioner Marc Sarnoff
Commissioner Francis Suarez
CC: Mayor Tomas P. Regalado
City Manager Daniel Alfonso
City Attorney Victoria Mendez
icu1HE
RECORD FOR
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From: Coalition of ACLU, NAACP, NANA, PULSE, Brothers of the Same Mind, Haitian -
American Grassroots Coalition, the Miami Workers Center, and SALAD
Re: Ways CIP's Independent Counsel has obstructed work of CIP (REVISED)
Over the past three years, our Coalition has monitored the performance of the Civilian
Investigative Panel ("CIP") and of its current Independent Counsel ("the IC"). As a result of this
monitoring, it has become clear that the IC has been obstructing the work of the CIP by
inappropriately exercising control over the operations of the CIP in the following ways:
I. The IC has established practices and procedures for the way the CIP responds to complaints
of police misconduct that have prevented the CIP from properly fulfilling its mission of civilian
oversight:
A) The IC has employed and imparted to CIP investigators (over whom he has improperly
exercised supervisory authority) de facto rules as to how to evaluate evidence that tend to
result in decisions that favor police over complainants. For example:
1) The IC has ignored and instructed investigators to ignore evidence that supported
the complainant;
2) The IC has systematically rejected and instructed investigators to reject statements
of family members and/or friends of the complainant as not credible, writing these
witnesses off as not "independent";
3) The IC has disregarded and instructed investigators to disregard key claims that
frequently recur in complaints, in particular, claims of false arrest and over -tightening of
handcuffs;
4) The IC has declined to consider and instructed investigators not to consider the
relative seriousness of the arrest offense when assessing whether the use of force in
making the arrest was reasonable or not;
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5) The IC has failed to examine and instructed investigators to omit examination of an
officer's record of prior complaints to see whether a history of similar not sustained
complaints can be used to support a sustained finding in the current case;
6) In reviewing Internal Affairs ("IA") cases in which the investigation was done by the
accused officer's Supervisor (which often happens), the IC has neglected to take into
account and instructed investigators to omit considering how the Supervisor's
allegiance to that officer might impact the IA outcome;
7) In the two fatal -shooting cases from 2010-2011 thus far closed by the CIP — in
which, by self -appointment, the IC has served as "the investigator" — the IC:
a) recommended exoneration based on legal standards established by the
Supreme Court in federal civil rights cases, which is not the correct standard to
use under Florida case law;
b) failed to consider whether any misconduct or mistakes in judgment had
occurred in the steps preceding and leading up to the fatal -shootings, or whether
new policies or procedures should be put in place to avoid a repetition of the
same type of situation in the future, despite specific requests by the
Complainants (the ACLU and NAACP) that such matters be considered;
8) The IC has neither investigated nor directed others to investigate the culture in the
police department that may have led to the fatal shootings in 2010-2011, despite a
request by the Complainants (the ACLU and NAACP) more than three years ago for
such investigation.
B) The IC has ordered investigators to change recommendations to sustain complaints of
police misconduct into recommendations to not sustain the complaints;
C) The IC has utilized delay in the resolution of complaints as a de facto policy or strategy
to avoid having to make decisions.
1) Although the CIP Ordinance, in Section 11.5-31(3), specifically provides that
"The review or investigation process shall be concluded:
a. Within 30 days of receiving the internal affairs report;
b. Within 120 days of receiving the determination an
independent investigation may commence,"
the IC has completely ignored those deadlines in the shooting cases to which he has
appointed himself "the investigator."
In one of the two shooting cases from 2010-2011 that the IC has handled, he
"concluded" the process:
-- 1 year 8 months past the 30-day deadline, and
-- more than 2 years 7 months past the 120-day deadline;
in the other,
-- more than 1 year 5 months past the 30-day deadline, and
— more than 1 year 4 months past the 120-day deadline.
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2) On the many occasions at CIP meetings when the Coalition has brought these
deadlines to the IC's attention, the IC has dismissed them as easily waivable and of no
importance.
3) Many other complaints have sat in the IC's office languishing for long periods of time
for lack of review or investigation;
4) In cases in which the IC has (improperly) exercised supervisory authority over CIP
investigators, the IC has ignored failures of those investigators to comply with the
deadlines set in the CIP Ordinance.
5) In cases in which Internal Affairs has engaged in undue delays in the completion of
its work, the IC has failed to take Internal Affairs to task for such delays and appears to
not even have noted that such delays occurred.
D) Having arrogated to himself the role of gatekeeper over which complaints should be
processed, and by which investigator, the IC has been performing that role improperly.
1) The IC decides which complaints should be closed prior to presentation to the Panel
without stating any reasons, disclosing the criteria he uses, or leaving any notes in the
file or other written record of the bases for his decisions. (In Fiscal Year 2013, the IC
closed 108 of the 239 complaints filed -- close to half — without the Panel's knowledge.)
2) Insofar as the IC has, by self -appointment, served as "the investigator" for the
shooting cases, he has not conducted any genuine investigations. Rather, the IC has
restricted his consideration to a review of paper files, taped interviews, and legal
research into federal civil rights cases and has not conducted any actual interviews of
witnesses, or used the CIP Ordinance's subpoena power to command the appearance
of the police -shooters or other witnesses, or taken any other genuine investigative
steps.
II. The IC has given incorrect legal advice to the CIP Panel. For example:
A) The IC has given legal opinions to the Panel with respect to administrative matters that
directly conflict with official legal opinions issued by the City Attorney, as follows:
1) The IC incorrectly advised the Panel at the CIP's 2/18/14 meeting that it had the
authority to "fire" its new Executive Director when he knew or should have known that
power resides exclusively in the City Manager. See City Attorney Legal Opinion #08-
011, page 4.
2) The IC incorrectly advised the Panel at the CIP's 2/18/14 meeting that it could
appoint him as the CIP's "temporary" executive director when he knew or should have
known that no one can serve in that post without City Commission approval. See City
Attorney Opinion #9- 003, page 5, A.
3) The IC incorrectly advised the Panel at the CIP's 2/18/14 meeting that he could
either rehire the Chief Investigator who had been terminated or, at least, could have
her return to the CIP office as a "volunteer" when he knew or should have known that
he was not authorized to take such actions. See City Attomey Legal Opinion #09-033,
page 5.
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4) The IC incorrectly advised the Panel in an email dated 2/21/14 that the City Manager
did not have the authority to reject the Panel's attempted "firing" of its new Executive
Director when he knew or should have known that, for purposes other than the
performance of the CIP's oversight duties — and specifically for all administrative
purposes — the City Manager does have jurisdiction over the CIP. See City Attorney
Legal Opinion #09-003, pages 3-4.
B) The IC has failed to give the Panel correct advice as to the Panel's duty to ensure that all
its seats are filled in accordance with the requirements of the CIP Ordinance and the City
MuniCode, as follows:
1) During the past year and a half, the IC has failed to ensure that the Panel
maintained a Nominating Committee in accordance with the requirements of the CIP
Ordinance Sec. 11.5-28 (b)(1) and that such Nominating Committee met to do its
essential work.
2) The IC has failed to ensure that no member of the Panel has served beyond the
maximum term limit of six consecutive years, as provided in the concluding sentence of
CIP Ordinance Sec. 11.5-28(6). (At present, two Panel members — Michelle Delancy
and Bess McElroy -- continue to sit despite exceeding six consecutive years of service.
A third, Tom Cobitz, recently resigned from the Panel; but before doing so, had served
for more than six consecutive years).
3) The IC has failed to ensure that a member of the Panel who ran for elective political
office was removed from the Panel in accordance with MuniCode Sec.2-884(d), which
provides that "qualification" as a candidate "shall be deemed a tender of resignation
from [any] board." (Bess McElroy qualified as a candidate twice during her more than
six -year tenure on the CIP Panel -- first, on June 16, 2008, then again on June 17,
2010. The IC knew McElroy ran for political office twice because he contributed to her
campaigns on March 27, 2008 and again on September 30, 2009.)
4) The IC has failed to ensure that the Panel has elected its chairperson and vice -
chairperson by majority vote, as required by the CIP Ordinance Sec. 11.5-29.
III. The IC has created an appearance of impropriety in his dealings with members of the CIP
Panel.
A) The IC has made contributions to the political campaigns of two members of the Panel --
to Bess McElroy's campaign for State Representative in 2008 and 2010 and to Tom
Cobitz's campaign for Judge in 2013. Because the IC is dependent upon the Panel to
approve his financially lucrative contract with the City, his making of these campaign
contributions creates, at the very least, an appearance of impropriety.
B) The IC has fraternized socially with some members of the Panel and some members of
the CIP staff, while treating others with rudeness and ostracism. This is unseemly conduct
for a person holding the professional position of Independent Counsel.
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