Who should make the final determination as to whether the allegations in a complaint should be sustained and what corrective actions, or disciplinary measures should be imposed?


A. Oversight Agencies With Authority Over the Final Outcome: Within the current oversight landscape, few existing oversight agencies have the authority to make final determinations as to the outcome of an investigation. This authority is more common in oversight agencies that have developed within the context of the city being under a federal consent decree to reform its police department. However, there are also some well-established agencies that have the authority to make these final, binding determinations without having received the authority through consent decree requirements. These can take the form of hearing boards that take evidence and testimony and render findings of facts and conclusions of law and determine whether the allegations within the complaint should be sustained or dismissed after weight the relevant evidence. These oversight systems, such as in Portland, Oregon, also have an appeals process in which either the complainant or the officer may appeal the decision.

B. A New Trend? In the city of New York, a specialized prosecutorial unit is in place that investigates cases and presents their case to a specialized administrative judge—at the same time, the officers’ right to counsel is also preserved and they are defended in front of the same judge. After receiving the recommendation of these special administrative courts, a ranking police executive either accepts or rejects the recommendations of the court. In this system, well over 80% of the allegations are sustained.

C. Oversight Agencies that Make Non-Binding Recommendations: The majority of oversight agencies are limited to making recommendations to the police department as to what the outcome should be based on a review of the evidence that has been collected, presented and analyzed.

                                  i.    The imposition of corrective measures (such as training) or discipline (typically based on a disciplinary matrix that ensures discipline is consistent and even-handed) is left to the police department itself and usually falls to the chief of police, commissioners or a command staff executive.

                                ii.    A police executive or body having the authority to reject the findings of an investigative oversight agency may lead to a number of foreseeable problems.  This type of authority may be seen as undermining the oversight process and may result in a lack of the community’s support for, and cooperation with, the police department.  Thought should be given as to whether the police executive or commission with the authority to reject oversight recommendations should justify his or her decision in writing as the absence of a well-reasoned justification raises issues of bias and a possible lack of respect for the oversight process and the community. What will always be problematic and possibly frustrating is when the oversight agency and the police department can review the same evidence and come up with divergent conclusions. The police department’s should rest with the Chief, Command Staff executive or Commissioner--recommendations should not be the result of a popularity contest with supervisors and separate levels of command staff weighing in on the outcome.

                               iii.    Some agencies are governed by rules similar to those in Washington D.C. In that community, the police chief is bound by the findings of the Office of Police Complaints, but retains the discretion to determine the discipline to be imposed. Under the D.C. system, if the Office of Police Complaints investigates an allegation of misconduct and dismisses it, the department cannot discipline the officer for that allegation.

                               iv.    Oversight agencies that make recommendations may find it useful to track the number of cases in which its recommendations are rejected and report this information to policy makers and to the public. 

                                v.    The oversight agency that performs reviews of investigations may also use information used in the review process to make recommendations as to policy changes or training programs that are needed. Enabling legislation can establish the level to which such recommendations are binding on the police department and what exemptions, if any, are necessary or allowed.

                               vi.    In all instances, a realistic analysis of budget and training must be part of the process of setting up the system and determining the scope of its authority. Few members of volunteer boards have the time to devote to review detailed reports, conduct hearings, and draft findings and or orders. In jurisdictions in which review boards select only a sample of cases to review, it will be difficult to ensure that all civilian complaints receive equal treatment.

  1. Police Commissions with broad powers: A police commission, composed of civilians, that has absolute authority to hire, fire, demote, suspend, and terminate officers can work well in larger communities that can afford to compensate commissioners for what are full-time positions. Establishing an effective oversight system that engages civilians will be only of their many duties.

                                  i.    The commission will be responsible for setting up a civilian complaint system and ensuring it has sufficient independence from the police department, involves civilians in meaningful ways that allow the program to function effectively and free from pressure from the police department. This includes determining what role oversight will take in complaint intake, investigating, adjudicating, recommending corrective measures and making policy and training recommendations.

                                ii.    In general terms it may be necessary to remove disciplinary power from the chief of police if community trust is so eroded as to make confidence in the department’s ability to investigate and discipline its officers impossible. The ultimate goal is to restore community trust and foster healthy relationships between the community and law enforcement. Depending on the level of trust that exists, removing some powers from the chief of police may be a necessary, but hopefully temporary, measure to ensure accountability.

Each community will have to make these decisions based on their specific needs and what they deem as necessary to transform police departments into open and accountable parts of local government. Some communities choose to allow a chief of police to retain broad discretion; the community then relies on the transformational effects of providing the chief with additional information from non-police sources and publicizing the chief’s record in taking appropriate disciplinary and corrective measures. Other communities have come to the conclusion that where a pattern of overlooking or condoning misconduct has been established, placing the disciplinary authority outside the police department may speed the process of promoting consistency and fairness.