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The Police Advisory Committee met for the second time on Wednesday.

New Police Advisory Committee Briefed on Public Records, Open Meeting

By Andy McKeeveriBerkshires Staff
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PITTSFIELD, Mass. — Even if the Police Advisory Committee recommends an officer receive discipline regarding an incident, it won't know the actual results.
 
That's what Police Chief Michael Wynn told the group at its second meeting on Tuesday. The committee will be tasked with reviewing internal affairs reports after the fact to provide some oversight of the department but it will only be privy to whether or not there was a discipline issue  — not what it entailed.
 
Wynn said the department in some cases could prepare a document showing results of discipline to provide a history of what has happened in similar cases but without names. And it can show examples of progressive discipline. However, that could be misleading because  similar allegations could end up with different punishments because of either circumstances or the individual officer's history.
 
In some cases the group may receive an answer as to what the final outcome was, but wouldn't be able to disclose it, he said.
 
Wynn and City Solicitor Stephen Pagnotta reviewed the types of information that is exempted from public record and that may be withheld from the committee. Such things as operational policies, investigative materials that could damage the confidentiality of witnesses, firearms records, scoring sheets for employee reviews, health care and hospital records are among the exemptions in public records law. 
 
However, Wynn said there are things that are exempt from public record the committee will be able to review. 
 
That could include reports regarding an individual's criminal record, sexual assault cases, and certain domestic violence cases, which are typically exempted. He said when those occasions arise, he is putting the onus on his office to ensure that the group knows the information is not public and what members could discuss in an executive session — provided there is a proper reason for such a session.
 
The internal affairs reports, filed after an investigation is completed and discipline is administered, will be available for review, even if they are somewhat redacted. Wynn said much of the information in that is public record following the Worcester Telegram v. Chief of Police ruling.
 
"The surprising outcome of the decision is how much information of internal affairs is a public record," Wynn said. 
 
In that case, the Worcester Police withheld public records regarding an internal affairs investigation citing it being a personnel matter and the Telegram sued the department over it. The Supreme Court ruled that the public good outweighed the reason for the exemption.
 
So what will the group see? They will see the officer reports, the initial reports of police activity, reports directed by the commander, witness statements, and the final report, which includes whether or not discipline was issued. Wynn said essentially the group will see the final report and the information that directly supports that report.
 
"You are not going to get a lot of the investigatory material that will be held in the file," Wynn said.
 
Wynn said internal affairs reports  in rare instances are completed and the results are criminal charges. At that point, the clause allowing the records to be withheld because of the under investigation clause could be extended by the district attorney's office until a grand jury. The group won't have access to that until the criminal charges are filed.
 
The restrictions on the information the group receives led member Michael Feldberg to question exactly what role the group can play.
 
Wynn sees it as ensuring that the complaints are being handled. He said there is often a lack of understanding of discipline issued to officers and the process. He feels the group can ease public concerns that nothing happened in specific cases when in fact an investigation did happen and discipline was administered.
 
"We're fairly stringent with our discipline compared to other departments," Wynn said.
 
He said termination is rare but officers are disciplined for misconduct when it occurs. Additionally he said often somebody will make a complaint about an officer because "they were rude" or because the officer didn't do as much as they could to solve the cases — i.e. filing a report on it rather than doing a "full CSI investigation," Wynn said.
 
"There are unrealistic expectations," he said.
 
Further he said working within the boundaries of Civil Service adds another level of complication. He said he is only able to discipline an officer for five days or less on his own. Otherwise, it has to go to a Civil Service hearing.
 
In one case, the chief said the conduct was "severe" but not "egregious." He didn't believe it warranted termination but needed more than a five-day suspension. A labor attorney said 10-15 day suspension would likely be the hearing outcome. Wynn informed the officer of the outcome and the officer was regretful and admitted to the mistake. 
 
Wynn said he offered the officer five days of suspension to avoid the hearing process and added "additional conditions," to make the discipline stronger. The officer agreed. While the five days may not have seemed like much on the surface, he said it was conditioned in a way to be just.
 
The discussion on Wednesday was reflective of the debate that started the committee as the group attempts to get its feet wet.
 
During the committee's establishment, some had pushed for a civilian oversight board. That would mean overseeing actual investigations into matters: the committee would interview and subpoena witnesses, generate a report, and make recommendations for discipline.
 
This committee, however, will serve as an advisory and post-result reviewer. It will still be fielding complaints and will be reviewing completed internal investigations as a check on the department to ensure that all cases are being investigated and treated fairly.
 
Member Drew Herzig said it puts the members in a tough position to field a complaint and then not be able to tell the person what the ultimate outcome actually is. He characterized the group as having to learn enough about the process to build trust in it and then be confident enough in it to assure people that it is working.
 
Pagnotta also talked the the group through ethics laws, encouraging them to call the attorney general's office immediately if there is any potential to get an opinion.
 
"If you have a question, ask," he said, citing that the state has an on-call lawyer who will give formal opinions or the state can provide a formal opinion on the matter. 
 
He urged the group to clear up any potential issues regarding a topic before it potentially becomes a problem leading to fines or other citations.
 
"The best of intentions is not going to protect you if you violate conflict of interest. People can get into big trouble and have fines even if they have good intention," he said.
 
City Clerk Michele Benjamin joined Pagnotta with a review of Open Meeting Law including posting requirements, restrictions on when a quorum of members can discuss an issue, and emails that have a tendency to cause issues. Her talk also included discussing only items on the agenda and in open session. That may take some time to sink in — moments after closing the meeting and with still a quorum present, members started asking the chief questions about a police-related item that wasn't on the agenda.

Tags: police advisory,   

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