It has been almost half a century since Berkeley voters passed a ballot initiative creating one of the first civilian bodies in the nation for police oversight. It established a nine-member commission—the Police Review Commission (PRC) —to hear complaints against the police and to review and recommend policy. At the time that ordinance was passed, in 1973, it was a trailblazing effort to provide transparency and accountability of the city’s police department, and to enhance trust of the police by the community it served.
That was then, this is now.
While many jurisdictions have moved to strengthen their police oversight bodies, including neighboring Oakland, the PRC retains essentially the same structure, procedures and authority that it had at its founding, despite efforts at tweaking these over the years. At this critical moment of a challenging relationship between the police and the community, the PRC is increasingly outdated as an institution for the voice of the people.
Several features and protocols somewhat limit its ability to provide effective oversight and transparency. One of the primary functions of the PRC is to hear complaints about alleged police misconduct. However, there is currently a tight timeframe of 120 days for the Police Chief to notify employees of discipline, should a complaint be sustained. PRC interviews of the subject officer, the complainant and any witnesses, followed by a hearing in front of the PRC Board of Inquiry assigned to the case, must all occur within this time limit. In fact, the results of the PRC must be sent to the Police Chief with two weeks to spare before the deadline for any notification of discipline — effectively meaning that the PRC has 105 days to complete its review.
Throughout this investigative process, the PRC does not have unfettered access to internal Berkeley Police Department (BPD) documents and records that could assist in its investigations. While body-worn cameras on each officer now provide the PRC with footage of relevant police-citizen interactions, it is not privy to internal documents that might shed light on prior officer misconduct charges or the Department of Internal Affairs’ investigations, or any other potentially relevant documents.
It should be noted that this lack of access to BPD records is a limitation not only in these investigations of complaints, but in the PRC’s other functions as well — for example, in its oversight and recommendation of policy.
Another potential limit on the ability of the PRC to provide a satisfactory venue for residents’ complaints is the unusually strict standard of proof required before a complaint is sustained. Unlike in most civil lawsuits, or workplace investigations where the standard of proof is “preponderance of the evidence” (i.e., it is more likely than not that the alleged behavior occurred), in the case of PRC hearings of Berkeley residents’ complaints against BPD employees, the standard for sustaining the complaint is the much more rigorous “clear and convincing evidence”.
Of the three individual cases that reached a final hearing by the PRC in 2019, only one of the ten allegations made in these cases was sustained. It is impossible to know what effect the unusually strict standard of proof had on PRC findings (or, for that matter, on the relatively small number of complaints received and heard each year), but it is nonetheless noteworthy that this standard of proof deviates from standard practice in other civil venues.
Measure II (say “aye-aye”), the Charter Amendment to restructure and strengthen Berkeley’s police oversight body, would go a long way towards fixing these limitations and providing effective oversight and transparency. In addition to establishing a director of the new Police Accountability Board (PAB) and increasing the Board’s independence from the office of the City Manager, Measure II addresses each of the limitations discussed above.
The Charter Amendment would increase the timeframe for investigating complaints and notifying a BPD employee of discipline from 120 to 240 days, bringing Berkeley in line with most other cities, and allowing for more thorough and fair investigations. It would also provide the new Police Accountability Board access to relevant internal BPD records and documents beyond what recent California law requires, thereby facilitating effective complaint hearings and policy reviews. Finally, it would replace the “clear and convincing evidence” standard of proof in complaint hearings with the more common “preponderance of the evidence” standard.
These improvements will bring the Berkeley police oversight body into line with other progressive jurisdictions, and will enhance the transparency, accountability and trust that we all value.
According to its mission statement, the Berkeley Police Review Commission is “to provide for community participation in setting and reviewing police department policies, practices, and procedures, and to provide a means for a prompt, impartial, and fair investigation of complaints…” The PRC was a groundbreaking institution in 1973 and has been a central player in Berkeley residents’ oversight of the police. Measure II, and the new Police Accountability Board it will establish, are now central to the fuller realization of its important mission of community oversight.
