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HomeMy WebLinkAboutDraft Ordinance - Law..Title AN ORDINANCE OF THE MIAMI CITY COMMISSION AMENDING CHAPTER 11.5/ARTICLE II OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED "CIVILIAN COMPLAINT INVESTIGATION AND REVIEW/THE CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL," MORE PARTICUALRY BY AMENDING THE SECTIONS TO BE CONSISTENT WITH THE RECOMMENDATIONS PROPOSED BY THE INDEPENDENT REVIEW COMMITTEE OF THE CIVILIAN INVESTIGATIVE PANEL; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN EFFECTIVE DATE. ..Body BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Chapter 11.5/Article II of the Code of the City of Miami, Florida, as amended, is amended in the following particulars:{1} "CHAPTER 11.5 CIVILIAN COMPLAINT INVESTIGATION AND REVIEW ARTICLE II. THE CITY OF MIAMI CIVILIAN INVESTIGATIVE PANEL Sec. 11.5-26. Created; established. The Civilian Investigative Panel ("CIP") is hereby created and established. Sec. 11.5-27. Purposes, powers and duties. The purpose, powers and duties of the CIP are to: (1) Act as independent civilian oversight of the sworn police department; (2) Exercise its powers so as to not interfere with any ongoing investigations and conduct its activities consistent with applicable law, including the Florida Government in the Sunshine Law and with applicable law and labor contracts; Make written recommendations related to the city police department policies and procedures concerning but not limited to training, recruitment and notification system for corrective disciplinary procedures and provide input to the chief of police before changes in police department policy or procedure are implemented, which proposed changes shall be transmitted to the CIP 30 days prior to implementation, except if an emergency requires such change; (4) Engage the services of trained investigators and secure adequate training for its members, including training in police policies and practices; Conduct investigations, inquiries and public hearings to make factual determinations, facilitate resolution and propose recommendations to the city manager and police chief regarding allegations of misconduct by any sworn officer of the city police department (3) (5) and may automatically commence an investigation into any incident involving a police shooting resulting in death; (6) Request issuance of subpoenas, after consultation with the state attorney of the Eleventh Judicial Circuit, (Miami -Dade County) and approval of CIP independent counsel, for the purpose of obtaining evidence from witnesses and production of books, papers, and other evidence, which subpoenas shall be signed, served and enforced pursuant to applicable law, provided that no immunity be conferred by the CIP; Enhance understanding of the process of submitting, processing and responding to citizen complaints regarding misconduct by police officers; (8) Issue reports to the mayor, city commission, city attorney, city manager, chief of police and the public; Make recommendations as to the disposition of alleged incidents of police misconduct, to which the police chief is required to respond in writing within 30 days; (10) Forward complaints alleging criminal activity to the city police department and other relevant agencies; (11) Promulgate rules and procedures for internal governance and standards for training of CIP members and staff. (7) (9) (12) Establish policies, procedures, and operating principles for CIP members and staff in collaboration with the executive director of the CIP. (13) The CIP shall evaluate the work of the executive director. In that regard the CIP: (a) Shall establish criteria by which to evaluate the work of the executive director; (b) Shall review, comment on, and assist in maintaining policies, procedures and operating principles for the executive director's office and the CIP; (c) Shall monitor status reports from the executive director; and (d) May conduct periodic evaluations of the complaint intake and handling system to identify process improvements and/or ensure complaints are being treated fairly and with due diligence. Sec. 11.5-28. Membership; nomination of members; terms of office and vacancies; appointment of the CIP nominating committee. (a) Membership. The CIP shall consist of 13 members who shall reflect the racial, gender, ethnic, religious, linguistic, sexual orientation and cultural diversity of the city. The membership shall include at least two members from each of the five city commission districts who permanently reside in, own real property in, or work or maintain a business in, each of those districts. The CIP members shall be appointed as follows: (1) The city commissioners shall select ten members from the names submitted by the CIP nominating committee; (2) The mayor shall recommend two members from the names submitted by the CIP nominating committee for consideration for appointment by the city commission; (c) (3) The chief of police of the city shall appoint one member, who shall serve at the will of the chief of police. (b) Nomination of members. (1) The CIP shall appoint a CIP nominating committee to solicit and screen applications, interview potential candidates to be appointed for membership and submit such candidates. The CIP, upon majority vote, shall submit nominations to the city commission for appointments to fill vacancies on the CIP. All appointments to the CIP should be made to maintain the diversity and composition of the CIP set forth in subsection (a). (2) The CIP nominating committee shall solicit applications in English, Spanish and Creole for members of the CIP in public notices disseminated throughout the community and through the media and city NET Offices. In addition, applications may be submitted to the CIP directly by members of the city commission and community based, civic and social service groups, leagues and organizations. All applications considered by the CIP nominating committee and the CIP shall be evaluated without regard to the individual or entity that solicited or submitted the application. Appointment of the CIP nominating committee and selection of appointees to the CIP. (1) The CIP nominating committee shall be composed of five members of the CIP, with one member representing each of the five commission districts, except as set forth in subsection (2)a. CIP nominating committee members shall be approved by a majority vote of the CIP. (3) (2) The CIP nominating committee shall reflect the racial, gender, ethnic, religious linguistic, sexual orientation and cultural diversity of the city. a. In the event the CIP does not include at least one member representing each of the five commission districts, then the CIP shall fill vacancies on the CIP nominating committee with members of the general public who permanently reside in, own real property in, or work or maintain a business in, the unrepresented districts. To fill such vacancies, the CIP shall solicit applications in English, Spanish and Creole for CIP nominating committee members in public notices disseminated throughout the community and through the media and city NET Offices, with an emphasis on the unrepresented district or districts. In addition, applications may be submitted by community based, civic and social service groups, leagues and organizations. b. When the composition of the CIP includes at least two members from each of the five commission districts appointed by the commission, any member of the CIP nominating committee who serves pursuant to subsection (2)a. shall be replaced by a CIP member representing the same commission district. (3) No CIP nominating committee member shall serve on more than two consecutive nominating committees. (d) Qualifications for members of the CIP. (1) All members of the CIP shall be either permanent residents of the city, own real property in the city, or work or maintain a business in the city, except for the appointee of the chief of police, and shall have good reputations for integrity and community service and shall have no record of a felony conviction. (2) No appointee to the CIP, nor any member of the appointee's immediate family, except for the appointee of the chief of police, shall be currently employed by the city nor be a sworn former employee of the city police department. No appointee may be currently a party or party's legal representative in litigation against the city. The filing of a complaint against the city alleging liability of the city through actions of any police or other sworn or enforcement personnel shall immediately disqualify any appointee from serving on the CIP. Any appointee who has been the legal representative of any party in litigation against the city is prohibited from serving on the CIP for two years from the conclusion of such litigation. Upon assuming the duties of CIP membership members shall complete training in ethics, conflict of interest, and the Florida Sunshine Law, and shall commit to complete Citizens Police Academy Training or approved training through NACOLE (National Association of Citizens' Oversight of Law Enforcement) or equivalent programs. If the individual appointed by the chief of police is a former police officer or if any of the other appointees have completed citizens police academy training or approved training through NACOLE or equivalent programs within one year prior to the individual's appointment to the CIP, such individual is exempt from the requirement for such law enforcement training only. (e) [Appointment by majority vote.] The city commission shall appoint all members of the CIP (except the appointee of the chief of police) by majority vote exclusively from the nominations submitted to it by the nominating committee. [Vacancies.] Vacancies (other than the position to be filled by the city police chief) in the membership of the CIP shall be filled by the city commission by majority vote exclusively from names submitted to it by the CIP. Terms of office. The terms of office of the members of the CIP appointed by the city commission shall be for three years. The terms of the members appointed by the city commission shall be unaffected by the terms of the mayor and city commissioners. CIP members shall continue to serve until their successors have been appointed and qualified. To effect the transition of the existing membership of the CIP, as of the effective date of Ord. No. 13186, the nominating committee chair of the existing CIP shall compose a nominating committee that reflects the requirements herein; and submit nominations of proposed new CIP members consistent with the requirements of this section directly for appointment by the city commission. No CIP member shall serve more than six consecutive years on the CIP. (f) (g) (3) Sec. 11.5-29. Officers. The CIP shall elect, by majority vote, from its members, a chairperson, vice -chairperson, and such other officers as deemed necessary. The chairperson of the CIP shall have the power to appoint all members serving on the various committees that the CIP may establish from time to time. Sec. 11.5-30. Meetings, quorum and voting; attendance requirements; parliamentary procedures and rules of procedure; recordation. (a) Meetings, quorum and voting. All meetings of the CIP shall be open to the public. The chairperson or three members of the CIP may call a meeting, provided that the meeting is noticed for at least seven days prior to the meeting date and pursuant to the provisions set forth in section 11.5-36. A quorum shall consist of seven members of the CIP. An affirmative vote of not Tess than 51 percent of the members present and voting at any meeting is required for any action to be taken by the CIP unless otherwise set forth herein. (b) Attendance requirements. The provisions set forth in section 2-886 of this Code shall apply to all members of the CIP. (c) Parliamentary authority and rules of procedure. The parliamentary authority of the CIP shall be Robert's Rules of Order (Current Edition) unless the CIP adopts its own order of business and rules of procedure governing its meetings, and actions on matters within its jurisdiction, not inconsistent with the provisions set forth herein, which rules of procedure shall be filed with the city clerk. Copies of minutes of all CIP meetings shall be furnished to the mayor, commissioners, city manager, city attorney and chief of police. (d) Recordation. The CIP shall be responsible for the recordation and transmittal of its minutes and may request the city clerk to carry out recordation functions. Sec. 11.5-31. Procedures. The following procedures shall be followed: (1) Complaints concerning allegations of misconduct may be submitted to the CIP. a. All complaints shall be reduced to writing using a form approved by the CIP for that purpose; b. The police department shall be notified of complaints received by the CIP within two working days; c. All complaints must be submitted within a year of the date of the incident giving rise to the complaint. Complaints filed after one year of the alleged misconduct may, however, be reviewed by the CIP only if approved by a majority vote of its members; d. The CIP shall not accept complaints concerning incidents predating the effective date of the city Charter amendment providing for this chapter. (2) The review or investigation of complaints shall proceed as set forth herein. a. Investigation of complaints related to police misconduct received by the CIP. The CIP may proceed with an investigation after determination by its independent counsel, who shall be required to consult with the appropriate prosecutorial agencies, that an investigation will not interfere with any pending criminal investigation. A decision of the CIP to proceed with an investigation may be challenged by any agency engaged in such investigation or prosecution by seeking judicial order in law or equity in a court of competent jurisdiction in accordance with general law. Written notification of such challenge to the CIP shall stay the investigation for 48 hours permitting the agency to obtain such judicial order; b Internal affairs reports. At the conclusion of the internal affairs investigation, the internal affairs report prepared for the Chief of Police shall be transmitted to the CIP within three working days; c. Police shooting involving death. At the conclusion of the State Attorney's Office and/or the Florida Department of Law Enforcement and/or any agency engaged in such investigation or prosecution of a police involved shooting resulting in a death, the CIP may automatically commence an investigation or review into the incident notwithstanding the status of an internal affairs investigation. A criminal investigation is deemed concluded when the appropriate criminal prosecutor decides either to press charged or to not press charges. e d. Upon written determination by its independent counsel that an investigation of allegations of police misconduct may commence or after review of the internal affairs report, the CIP may: 1. Request that the chief of police conduct further investigation, or (ii) Obtain further case -specific information from the chief of police, including written materials, audio or video tapes, and related documents, or (iii) Conduct an independent investigation, such investigation to be concluded within 1-20 180 days, or (iv) Notice and hold a hearing to gather evidence, or (v) Report its written findings and conclusions to the city manager and/or the chief of police; d e. If the CIP fails to act within the time periods specified in subsection (3) herein below, the complaint file shall be closed without a finding; e-f. The CIP chairperson may assign a member or committee to review Internal Affairs reports and make a recommendation that the CIP take one of the actions enumerated in subsection c. above; f-g. Affected officers, and complainants, to the extent permitted by law, shall receive copies of CIP reports to the police department, and of the CIP's requests for information. The review or investigation process shall be concluded: a. Within 30 days of receiving the internal affairs report; b. Within 1-20 180 days of receiving the determination that an independent investigation may commence; c. An independent investigation may not be concluded by the CIP against a law enforcement officer for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within 180 days after the date the CIP receives notice of the determination, by the independent counsel, that the CIP may initiate an investigation of the misconduct. As such, the independent investigation shall be completed within 180 days after the date of determination, except as follows: (1) The running of the limitations period may be tolled for a period specified in a written waiver of the limitation by the law enforcement officer. (2) The running of the limitations period is tolled during the time that any criminal investigation or prosecution is pending in connection with the act, omission, or other allegation of misconduct. (3) If the investigation involves an officer who is incapacitated or otherwise unavailable, the running of the limitations period is tolled during the period of incapacitation or unavailability. (4) In a multi -jurisdictional investigation the limitations period may be extended for a period of time reasonably necessary to facilitate the coordination of the agencies involved. (5) The running of the limitations period may be tolled for emergencies or natural disasters during the time period wherein the Governor has declared a state of emergency within the jurisdictional boundaries of the concerned agency. (4) At the conclusion of each review or investigation, the CIP shall render one of the following findings based on the preponderance of the evidence: a. Unfounded where the review or investigation shows that the act or acts complained of did not occur or were misconstrued; b. Exonerated where the acts that provide the basis for the complaint occurred, but the review or investigation shows such acts were proper; c. Not sustained where, for example, the review or investigation fails to disclose sufficient facts to prove or disprove the allegation made in the complaint; d. Sustained where, for example, the review or investigation discloses sufficient facts to prove the allegations made in the complaint; e. No finding where, for example, the complainant failed to produce information to further the investigation, the review or investigation revealed that another agency was responsible, and the complaint has been referred to that agency, the complaint withdrew the complaint, the complainant is unavailable to clarify the complaint, or the officer is no longer employed by the city, or the CIP did not reach a conclusion. (5) At the conclusion of its review or investigation the CIP shall forward its written findings and conclusions to the chief of police and to affected officers and, to the extent permitted by law, to the complainants to which a timely written response shall be received from the chief of police within 30 days. Sec. 11.5-32. Subpoena power. (a) The CIP may subpoena witnesses and documents when conducting an independent investigation of allegations of police misconduct as follows: (1) A request for a subpoena must be presented to and reviewed by the CIP independent counsel; (2) The CIP independent counsel may deny or approve the request after consulting with the state attorney's office; If approved by the CIP independent counsel, the CIP may issue the subpoena with an affirmative vote of seven of its members. (b) The subpoena shall be valid only within the jurisdictional limits of the city. However, the CIP may seek enforcement and extraterritorial domestication of its subpoenas in accordance with general law. (3) Sec. 11.5-33. Procedures related to city employees and witnesses. (a) When a city employee appears before the CIP in response to a subpoena, such employee shall be formally advised prior to the commencement of testimony that if the employee has a good -faith belief that the testimony would tend to be self -incriminating, and if, in reliance upon that good -faith belief, the employee declines to answer any question, that the employee's decision not to provide testimony will not subject him or her to any adverse employment consequences. Any employee who, after receiving such advice, decides to testify or provide evidence, must sign a statement acknowledging that the employee understands the advice and is testifying or providing evidence voluntarily and knowingly. (b) A police officer who is the subject of an investigation shall be informed of the nature of the investigation and provided with a copy of the complaint prior to being interrogated. (c) A person who appears before the CIP in response to a CIP request for testimony may be represented by counsel or any other representative of his or her choice, which representative may be present at all times during the subject's appearance before the CIP. (d) The CIP may hold evidentiary hearings requiring witnesses in the manner set forth in section 11.5-30. Only the subject of the complaint, witnesses, their attorneys or representatives and CIP members may participate in evidentiary hearings. (e) Policies and procedures shall be established to ensure compliance with Chapters 112 and 119 of the Florida Statutes and any other applicable laws. Sec. 11.5-34. Administrative assistance; independent counsel; executive director. (a) Administrative Assistance. When requested by the CIP, the city manager, city attorney, and the city clerk shall provide full cooperation and assistance, however, the city manager and city attorney are not required to attend the meetings of the CIP, except to advise the CIP, at its initial meeting, of procedural laws and regulations related to public records and the Sunshine Law. The city clerk and the city attorney may conduct annual workshops to further inform the CIP of the aforementioned laws and regulations. An attorney -at -law admitted to practice in Florid^ for at leas+seven ycars shall be -employed the CI independent counsel, subject to the appro„ai of+he city attorney and +he authority of the city-atter-ncy to remove the independent counsel from employment. The chief of police of the city shall designate one lieutenant, or higher -ranking officer, of the police department's Internal Affairs Unit who shall serve as a liaison to the CIP's independent counsel and executive director and shall provide full cooperation and assistance in providing available reports, papers, and materials related to an open CIP investigation or review. (b) Independent Counsel. An attorney -at -law admitted to practice in Florida for at least seven years shall be employed by the CIP as independent counsel, subject to the approval of the city attorney and the authority of the city attorney to remove the independent counsel from employment. The CIP independent counsel shall serve as the legal advisor and counsel for the CIP in matters relating to their official duties. The functions and duties of the independent counsel are to: (1) Prepare a written memorandum advising the CIP that it may proceed with an investigation after consulting with the appropriate prosecutorial agencies that an investigation will not interfere with any pending criminal investigation; (2) Review all requests for issuance of subpoena for the purpose of obtaining evidence from witnesses and production of books papers, and other evidence pursuant to applicable substantive and procedural law; (3) Issue subpoenas when appropriate as set forth in section 11.5-32; (4) Provide an informed opinion on a legal question or conduct research, provide relevant materials, and cite specific laws to help explain a law or craft a plan in accordance with laws: (5) Help draft legislation and proposals that meets existing legal standards; (6) Advise and assist in creating CIP policies; (7) Assist in obtaining documents, materials, and records from the public and law enforcement agencies; and (8) When requested, render a written legal opinions on matters relating to city government and the interpretation, construction and meaning of the constitutional amendment, charter, statutes, ordinances, resolutions and contracts affecting or pertaining to the CIP. Such opinions shall be binding upon, and adhered to by all appointed members and CIP staff. (c) Executive director. The CIP office shall be headed by a full-time professional executive director who is appointed by and accountable to the members of the CIP. Such appointment and the terms and conditions of the director's employment shall be subject to approval by the city commission. The executive director shall serve at the pleasure of the members of the CIP. The executive director is the administrative head of the CIP office and shall: (1) Have exclusive authority to hire, supervise, and to make all other employment decisions regarding the CIP office's support staff. No change relating to the authority to hire and supervise the executive director's staff shall be made without formal action before the city commission; (2) Oversee the operations of the CIP office, establish priorities and objectives, and manage the implementation and evaluation of office functions; (3) Develop and maintain operating procedures for the CIP office including protocols for handling complaints and monitoring investigations; (4) Establish standards of professional conduct and provide necessary training for CIP office staff (5) Act as liaison and provide staff support to the CIP. In collaboration with the members of the CIP, the executive director shall: i. Establish and maintain policies, procedures and operating principles for the CIP's functions; ii. Conduct education and outreach activities to inform the community about the process for filing complaints; and iii. Develop and disseminate information and forms regarding the CIP complaint process and investigation procedures. (6) Receive and process complaints and monitor the investigation procedures as set forth in sections 11.5-31. (7) Perform a quality assurance function with the goal of identifying systemic changes that will improve police services to the community. These activities include: i. Analyzing complaint trends and recommending changes to police policy, practices and training; ii. Reviewing risk and tort claims and developing recommendations to reduce risk and liability; and iii. Reviewing and reporting trends in completed disciplinary decisions. (8) Provide status reports to the members of the CIP and city commission and provide recommendations relevant to police policies and practices. (9) Develop and present to the CIP and city commission annual reports describing the activities of the CIP's office, its findings and recommendations, the police department's response to its recommendations, and any other information pertinent to assessing the performance of the CIP. (10) Provide the city commission with any other reports deemed necessary or requested by the city commission. All public reports shall strive to protect the privacy of all individuals and shall not contain the names of parties to a complaint (employees, complainants and/or witnesses) not previously disclosed. (11) Determine whether applicants for the CIP meet the requisite qualifications pursuant to section 11.5-28. Sec. 11.5-35. Review and approval of annual budget. (a) Effective immediately, the CIP shall establish a fiscal year that coincides with that of the city. The CIP shall submit to the city commission, in a form acceptable to the city manager, and no later than April 1 preceding the commencement of each fiscal year, a CIP budget request pertaining to its functions. The city manager shall assign appropriate personnel to assist in the preparation of the budget for the CIP and provide administrative support to the CIP. The city manager shall present the total estimated dollar appropriations necessary to cover expenses incurred by the CIP during the execution of its duties to the city commission for its review and consideration in the annual budget of the city. Nothing contained herein shall be construed to prohibit the CIP from submitting a supplemental budget and appearing before the city commission to request approval. (b) No expenditure shall be made in any given year without approval by the city commission of the CIP budget for that year and all expenditures shall comply with city procedures for acquisition of goods and services. (c) No provision contained in this chapter shall be construed to violate the Anti -Deficiency Act, as set forth in sections 18-500 through 18-503 of this Code. (d) At the conclusion of one year from the effective date of this Chapter, the members of the CIP may appoint an executive director of the CIP. Such appointment and the terms and conditions of the director's employment shall be subject to approval by the city commission. The director shall take an oath before entering upon any duties. Sec. 11.5-36. Notices and filing of records. Notice of meetings shall be posted by the city clerk at city hall and other appropriate locations after being apprised by the CIP of an upcoming meeting(s). Advertisements of meetings shall be placed in newspapers of general circulation no less than seven days prior to the meeting. It shall be the duty of the city clerk to comply with applicable laws related to filing of records. Sec. 11.5-37. Annual reports. The CIP shall, at least annually, provide a report in writing to the city manager, the city commission, the chief of police and the mayor, to include statistics and summaries of citizen complaints, a comparison of the CIP's findings and conclusions with the actions taken by the chief of police, recommendations related to changes in policies and procedures and any recommended changes to this chapter. Section 2. If any section, part of a section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 3. This Ordinance shall become effective thirty (30) days after final reading and adoption thereof.{2} APPROVED AS TO FORM AND CORRECTNESS: VICTORIA MENDEZ CITY ATTORNEY ..Footnote {1} Words/and or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. {2} This Ordinance shall become effective as specified herein unless vetoed by the Mayor within ten (10) days from the date it was passed and adopted. If the Mayor vetoes this Ordinance, it shall become effective immediately upon override of the veto by the City Commission or upon the effective date stated herein, whichever is later.