Oversight Models: Is one model better than another?


Oversight systems can take a wide variety of forms and operate under a wide range of authorities. [1]

Each jurisdiction will have to carefully assess the needs of the community and the cost-benefits of the oversight program they adopt. The key question is whether the oversight system is sufficiently independent--in terms of political, professional and financial independence and authority—to do what is needed and what is asked of it.

It is helpful to think in terms of the goals of the community and what is being asked of the local oversight system. Specifically, what level of funding and how much authority should be given to the oversight agency in order to shoulder its identified tasks and succeed. The oversight agency’s mission should bear some relationship to the size of the police department, the department’s funding levels, and the level of trust or mistrust within the community—particularly among those segments of the community that historically have been the subjects of over-policing or bias-based policing.

  1. Ongoing Monitoring/Auditing Authorities:  Typically these systems allow for the oversight agency to be actively engaged in each, if not all, of the steps related to the complaint process.
    1. Caution: When communities adopt language referring to an oversight “monitor,” it should be distinguished from monitors created as the result of federal consent decrees or court ordered monitoring through litigation brought by the US Department of Justice to end “patterns and practices” of unconstitutional policing under federal law.

More accurately, programs stemming from the adoption of a local ordinance or charter amendment to establish a “monitoring” program typically provide some form of ongoing review or audit of the complaint process. Communities should not think that calling the director of a local civilian oversight program a “monitor” will lead to the same broad powers and complex programs that make up the components of federal consent decrees.

To add to the confusion, the title of auditor is often assigned to the director of an oversight program even though few people in this role conduct audits in the technical sense of the word. Likewise, the title ombudsperson can be misleading as the heads of oversight programs are not advocates for complainants or the public but rather advocate for and work to forward a system that results in improved police performance and accountability. Increasingly, new oversight agencies simply refer to the executive directors of the programs as directors or executive directors.

  1. How it Works: The work of monitors, auditors or ombudspersons in the context of locally adopted civilian oversight typically results in a process that is ongoing and engaged with each, if not all, of the steps involved in when a person in the community complains about the conduct of a police employee or employees in a particular situation. A full range of authorities under this type of system would result in engagement with each of the following steps.
    1. Complaint intake—the monitor/auditor/ombudsman/director oversees the process for ensuring:

                                                  i.     Complaints are able to be received from a wide variety of sources—including in-person, telephonically, electronically, anonymously and through third persons with sufficient knowledge of the underlying circumstances;

                                                ii.    That the system is accessible through a variety of means (including in person, telephone, electronically);

                                               iii.    Individuals with limited English proficiency or special needs have access to the system;

                                               iv.    That complainants are not discouraged from filing a report and are free from retaliation;

                                                v.    The individuals receiving and screening complaints are well trained in conducting what is essentially an initial investigation;

  1. Complaint classification—i.e., if proven would the alleged facts result in a finding of misconduct on the part of the named officer in violation of a specific policy or policies?
  2. Investigation—assignment, plan, interviews, gathering evidence (reports, phone records, CCT, in-car, ECW or body-camera videos, medical records, etc. And requiring further investigation if information is incomplete.
  3. Report Writing—reviewing the investigative reports to determine whether the investigation was timely, thorough and objective.
  4.  Analysis—after the investigation is complete:

                                                  i.     Analyzing information to determine whether facts are sufficient to prove (the usual standard is preponderance of evidence) the policy was violated,

                                                ii.    Identify issues of supervision or training.

                                               iii.    If there is authority to weigh in on or recommend corrective or disciplinary measures, the monitor may assess whether these measures were imposed in an even-handed manner consistent with the department’s disciplinary matrix.

                                               iv.    Alternative Dispute Resolution—the oversight program may be involved in administering or coordinating mediation programs.

  1. Strengths: These types of agencies can be effective in identifying strengths and weaknesses in how complaints are handled, identifying areas of weakness—particularly bias—in investigations, spotting gaps in training, policy and supervision within the police department, providing opportunities for dialogue and understanding between the police and individuals and groups within the community, assessing the effectiveness of early warning systems and determining whether discipline is consistent and fair.
  2. Weaknesses: These systems are often charged with collecting data and reporting trends. Because they are almost always complaint driven, it often takes many months to collect data that is reflective of a “trend.” Problems that exist within the police department may be systemic but are underreported because the police conduct affects people unlikely to complain—including disabled, people whose socio-economic status leaves them vulnerable and isolated. Other groups such as individuals working in sex trades or involved in gangs are not likely to report even the most egregious police misconduct. When members of marginalized groups do complain, the problem may appear to be an aberration when it is actually commonplace. Unless there is the staff and time to track the outcomes of criminal prosecutions, the oversight agency may not be aware of cases that are not filed, are dismissed or where evidence is suppressed due to police misconduct. Such data can be of use in effecting better training, clearer policy and reducing risk and liability related to the police department.
  3. Review Systems:
    1. These systems typically allow the oversight body to review only cases that are closed.
    2. How it Works: An individual or a Board / Commission is authorized to review Internal Affairs (IA) investigations of complaints, find them adequate or not, and state whether it agrees or disagrees with the IA findings.  Often such boards may recommend further investigation and/or make policy and training recommendations.

                                  i.    Oversight agencies with professional staff typically review all of the IA investigations and provide feedback. This includes reviewing interviews, recordings, evidence and IA reports checking to insure the IA investigation was thorough, timely and unbiased.

                                ii.    Smaller agencies or volunteer review agencies may only be able to provide full review of selected cases.

                               iii.    In some instances, agencies have the authority to require additional investigation but unless there is adequate time to review and return it to the department, it may be too late to have any practical effect on the outcome.

                               iv.    Review boards frequently hold their meetings in public. How these meetings are conducted and what can be made public depends to a great extent on state law and union contracts.

  1. Strengths: These systems can provide greater transparency and an additional layer of civilian and greater involvement by the community. When they make recommendations, the department may be more inclined to take action.
  2. Weaknesses: These systems sometimes lack the independence they need to be effective. If the review board is all-volunteer, they can review only a limited number of cases. The time commitment can be overwhelming as all members not only need to review cases, they need to go through systematic training. Attendance at NACOLE conferences and workshops can be helpful. Local attorneys and civil rights or advocacy groups may provide training opportunities. But each and every review board member needs to be trained and this is expensive in terms of both time and money. It is often tempting to rely primarily on the police department to provide the training. The review board may become too dependent on the police department and recognized as such by the larger community.
  1. Investigative Authority:
    1. This allows for investigations to be conducted by the oversight agency and does not rely on investigators from within the police department.  This can be particularly effective when the local police department has lost the confidence of the community to investigate itself.

In some instances, authority may be granted to monitoring type agencies or review agencies to contract with outside investigators to conduct investigation of complaints as needed. This usually occurs under a prescribed set of circumstances—typically when it is clear the general public would have no confidence in law enforcement investigators being impartial in the specific matter.

  1. How it Works: An Oversight Agency or a Board/Commission is authorized to investigate the class of complaints and allegations identified in its establishing authority. Once the complaint is lodged and identified as being under the jurisdiction of the oversight agency, the oversight agency may:

                                          i.    Identify the relevant police policy or policies that, if supported by evidence, constitute the basis of the complaint and allegations.

                                        ii.    Conduct interviews of witnesses including civilian witnesses, police witnesses.

                                       iii.    Gather evidence including photographs, sound and video recordings, receipts, and documents relevant to the complaint.

                                       iv.     Prepare an investigative report identifying the witnesses interviewed and summaries of their testimonies; weigh the evidence and credibility; identify any gaps in the investigation due to lost or unavailable documents, unavailable or uncooperative witnesses, etc.

                                        v.    Make recommendations or findings as to whether the evidence supports the allegation(s). In some oversight systems, the agency has the authority to recommend and/or impose discipline.

  1. Who Conducts the Investigations:

                                          i.    Trained, skilled investigators that work within the specific oversight agencies or commissions should perform the work.

                                        ii.    It is not necessary, or even desirable, that the investigators be formally trained law enforcement officers.  What is necessary is that the investigators be well trained. There are certified investigation programs within the US; for example, civilian investigators frequently work for public defenders at the state and federal level. It is important that they receive ongoing training.

                                       iii.    Agencies that rely on volunteers should not attempt conducting investigations.

  1. Strengths:

                                          i.    This system can help rebuild the trust of the community-particularly in communities in which confidence in the police department’s ability to investigate itself has been compromised by a history of lackluster or inadequate investigations.

                                        ii.    This system avoids conflicts inherent in many internal affairs departments in which investigators are rotated from, then back into, other units such as patrol, SWAT, or investigations.

  1. Weaknesses:

                                          i.    It adds to the size of the staff and thus costs to run the program; however, the city/county has to pay for investigators regardless of whether they are within the oversight agency or within the police department’s internal affairs program.

                                        ii.    Police departments are often resistant to having non-police investigators conducting investigations.

                                       iii.    Working through the necessary administrative changes and possible challenges by local police unions may take additional time and political will.

                                       iv.    As with all oversight programs this authority will only address issues related to specific, individual complaints and may not help identify systemic issues.

  1. Hearings Boards
    1. Some oversight systems conduct hearings, hearing testimony or argument and rendering decisions.

                                          i.    Evidentiary Hearings: Some larger review boards have the authority to hold evidentiary hearings on complaints. This requires support staff to organize materials, forums and assist with findings and report writing

                                        ii.    Appeals: Some larger review boards have the authority to hear appeals filed by either the named officer or the complainant and overturn any decision made by the Chief of Police or other command staff responsible for making decisions based on the IA reports and recommendations.

  1. Strengths: These boards and functions can be effective in keeping the complaint system from being, or appearing to be, a closed system in which only police command staff and officers have any direct responsibility or control over the outcome of complaints from community members.
  2. Weaknesses: They require additional professional and support staff. Review board members will require specific training on conducting hearings that guarantee the procedural and substantive rights of all sides.
  3. Administrative Prosecutorial Units
    1. This is a fairly new development that has found success in the city of New York. It involves a special unit of attorneys and investigators responsible for investigating and prosecuting administrative complaints against police department employees.
    2. How it Works: Allegations are investigated and based on the outcome of the investigation, the case is dismissed or moves forward to an evidentiary hearing before an administrative law judge.  The judge’s findings and conclusions are forwarded to a police executive for a final determination.
    3. Strengths: Unlike most oversight systems addressing the complaint process, this system is highly independent from the police department and the standards for objectivity and thoroughness are high. The percentage of sustained allegations is over 85%, far above the norm for other oversight systems.
    4. Weaknesses: This system is being employed by one of the largest cities in the nation. The resources are beyond the reach of most communities. Counties or regions might find pooling resources a worthwhile investment.
  4.  Systemic Audits of High Risk Police Programs
    1. A few metropolitan areas have adopted a program of conducting systemic audits of high-risk police activities such as stops, arrests, and searches and high risk programs including property units, SWAT, vice and gang units.  These audits are conducted according to Generally Accepted Government Accountability Standards (GAGAS).
    2. Oversight agencies or Inspectors General establish a schedule for auditing the performance specific divisions and programs much the same a financial auditor audits the procedures and policies of a business, non-profit or government agency. Within the police context these audits can uncover unconstitutional policing, problems with supervision and weaknesses in police training and existing policies.
    3. Strengths: Auditing programs are efficient in detecting trends and common practices and are statistically reliable. They can be done using in-house resources or by contract with outside agencies. Audits are useful in confirming strengths within a program or department and can accurately measure progress over time. Unlike oversight agencies that concentrate on how complaints are handled, audits can be used to establish the level of professional, constitutionally based policing throughout the department.
    4. Weaknesses: Auditing programs require special training and significant independence.
    1. Most communities now realize that oversight is not a one-size-fits-all proposition. Many oversight practitioners are finding that it is less useful to talk about models and more useful to talk about options of authority.
    2. The powers and authorities granted to an oversight agency can be combined in any manner that works best for each individual community. While a volunteer review board may not have the resources to insure each complaint and investigation is handled in a manner that guarantees transparency and accountability, it does add an important layer of involvement, communication and trust building. Review of closed cases might be frustrating for some, while other communities may choose to commit resources that are adequate to insure each review is thorough and the opportunity for feedback and change is genuine.

 Is one form of oversight better than another?

  1. Many oversight agencies have merged features from the different systems to address their specific needs.
  2. As with any oversight systems or any combination of authorities, it can be an uphill battle to empower civilians to engage in processes that have traditionally been entirely within the bailiwick of the police. Accusations of “meddlesome amateurs,” “interfering with the police,” and “Monday morning quarterbacking,” may be among the kindest responses policy makers face from critics of civilian oversight. If systems are too weak to be effective they will fail or simply wither before healthy change in police culture can be achieved.
  3. One of the first questions to consider is whether the oversight system will focus on the traditional realm of complaints or if the community sees a broader role for oversight.
  4. Communities may find they are better off granting authority that may never need to be used than they would be in withholding authority that may be needed at a critical time.
  5. Diluted systems should be avoided. Inadequate funding, lack of independence and the lack of access to critical information will make a skeptical public even more skeptical and will not result in the cultural change in policing the oversight system was created to address.
  6. If the investment is made and pays off in improved police performance, it should help identify high-risk law enforcement employees, reduce litigation against the city or county and lower the amount of damage awards. In short the program may help pay for itself.
  7. Greater confidence in law enforcement also pays off in reduced crime and safer communities, as more people are willing to report crime and testify in criminal cases.
  8. Each model derives its authority and powers from the implementing law(s), ordinance(s), and/or charter of its jurisdiction (typically its city or county).  A charter amendment may be desirable to ensure the oversight program becomes a permanent part of local government and cannot be eliminated without another charter amendment.
  9. All oversight bodies have limited authority and civilian oversight alone cannot ensure police accountability.  Genuine change must be seen as desired by law enforcement leadership. And oversight must be seen as contributing to the solution.

Additional internal and external mechanisms will be needed.  Consider characteristics of the population, law enforcement agency, statutes, and collective bargaining agreements when deciding what type of system will best suit your community’s unique needs and resources.

[1] A detailed study was conducted in 2005 by the Police Assessment Resource Center, PARC, this information while highly relevant is 10 years old and with the increased number of federal consent decrees, cities have found ways to strengthen their oversight systems.   https://www.parc.info/.../Review-of-National-Police-Oversight-Models-Feb-...