The Berkeley police union has challenged the city’s new police oversight board, saying it has violated state labor and government transparency laws as well as the city’s own charter.
Earlier this month, the Police Accountability Board (PAB) abruptly postponed a hearing to review alleged police misconduct shortly after the union sent a strongly worded letter to demand that the board “Cease and Desist Unlawful Action.”
The March 2 letter was the latest attempt by the Berkeley Police Association (BPA) to ask the city to stop committing what the union says are ongoing violations of the law. In letters obtained by Berkeleyside, BPA attorney Rocky Lucia, of Rains Lucia Stern St. Phalle & Silver, PC, told the city he is prepared to “pursue all available legal remedies” to have the alleged violations corrected should the city fail to fix them on its own. He said some of the violations could render any officer misconduct findings void.
“Everyone should be concerned when a formal administrative body ignores the law,” Lucia told Berkeleyside in a recent interview. “It’s unfortunate that the BPA has to be the one to bring this to light.”
PAB Director Katherine Lee directed inquiries about the allegations to the city attorney’s office, which did not respond to multiple requests for comment from Berkeleyside.
In November 2020, as a large-scale movement to reimagine policing swept the nation following the murder of George Floyd, Berkeley voters overwhelmingly approved Measure II. The charter amendment dissolved the city’s longstanding Police Review Commission and replaced it with the Police Accountability Board. The goal of the update was to strengthen and modernize Berkeley’s approach to police oversight in line with best practices that had developed around the nation.
Under Measure II, voters gave the new board and its director broader powers to investigate allegations of police misconduct and recommend disciplinary measures. The board began meeting in July 2021.
From the start, the police union had concerns about the process. The union began raising issues with the city in July 2021 about what it said was Berkeley’s legal requirement to “meet and confer” with the union about the board’s new regulations.
“Meet and confer” requirements can be triggered by different circumstances, including changes to working conditions. The union says this never happened despite repeated and ongoing requests.
“The City has refused to engage the BPA in formal meet and confer,” Lucia wrote earlier this year. “Moreover, the PAB has operated pursuant to the unilaterally implemented ‘interim’ regulations, and has taken separate unilateral action outside the scope of its authority.”
In part, the PAB regulations govern how police misconduct hearings are handled. During those hearings, according to the BPA letters, the Meyers-Milias-Brown Act and Public Safety Officers’ Procedural Bill of Rights Act grant officers certain rights the city has failed to respect.
Prior to the March 3 hearing that was postponed, for example, the union says the PAB denied the officer rights protected by the law, including “access to notes, reports and complaints” and “the ability to record his interrogation.”
Lucia also wrote that the hearing had been scheduled by the board despite determinations by PAB investigators that the claims were “not sustained” and “unfounded.”
On the day of the planned hearing, Director Lee confirmed to Berkeleyside that she had “decided to postpone it.” She did not provide a reason.
Lucia told Berkeleyside that the union is not trying to obstruct PAB factfinding, only to ensure the process is fair and legal.
“The BPA is not trying to undercut the tenets of police oversight,” he said. “The BPA respects the people who run the city and the constituents. All we’re asking them to do is to sit down with us as the law requires and talk about these issues.”
Lucia said the union is considering legal action before the Public Employment Relations Board and in Alameda County Superior Court but that nothing has been filed to date.
Questions also raised about the Brown Act, due process
In addition to the labor issues, the police union has raised concerns about possible Brown Act violations by board members.
The matter came to light in late January when a Police Accountability Board member brought it up herself during a public meeting in an effort to seek clarity about the law.
During the meeting, Board Member Julie Leftwich said she had been surprised to learn from city staff that she and another board member were not allowed to discuss the merits of a police misconduct case — as she said they had been doing — while they watched police body camera footage together before a misconduct hearing.
Leftwich said they had been “talking a little bit about the merits of the case” when staff said they “probably shouldn’t do that because it could be a Brown Act violation.”
“The Brown Act really shouldn’t apply because these hearings are not open to the public,” Leftwich told her colleagues that night. “The whole rationale of the Brown Act is to shine a light on secret dealings. Well, these are confidential so I didn’t really see why there should be a prohibition on Board members conferring before a hearing.”
In response to the allegations, Leftwich clarified her public remarks and told Berkeleyside that the merits of the case had not actually come up. She and the other board member had been watching the footage remotely, over Zoom, with a staff investigator and “asked questions to develop our factual understanding of the case.”
“The footage was long, and taken by two different officers, and we asked for some of it to be played again for clarification (e.g., to determine who said what and when),” Leftwich told Berkeleyside by email. “We also asked whether the investigator had interviewed another witness who was mentioned by the complainant. We did not, however, engage in deliberations about the merits of the case, nor discuss how we should rule in the matter. Therefore, even though I said we had discussed ‘the merits’ of the case, we really only discussed the facts of the case. So even if the Brown Act applies here — and I still don’t know whether it does or not — we did not violate the law.”
Leftwich said she would defer to the city attorney on Brown Act issues.
California’s Brown Act establishes a number of rules related to how public agencies conduct “open and public” meetings as well as closed session hearings. It requires public notice of meeting topics at least 72 hours in advance (aside from very limited, exigent circumstances); prohibits a majority of any legislative body from communicating about agenda items prior to a meeting; and states that employeers “shall” give employees at least 24 hours’ notice before any closed session meeting to consider “complaints,” according to Lucia’s letter.
“Any action taken in violation of the Brown Act is ‘null and void’ and enforceable in the superior court,” Lucia wrote, “with attorneys’ fees awarded to the party enforcing compliance.”
In addition to potential Brown Act violations, city staff had also advised that such discussions could result in due process violations, according to a five-page letter from Lucia dated Feb. 8, because “PAB members ‘should be deliberating in the hearing and not any time outside of that.’”
In his letter, Lucia said these board member discussions amounted to “surreptitious deliberations,” and that any resulting action taken by the board — in this case as well as any others involving the same type of alleged violations — would legally be “null and void.”
City attorney’s office to board: There was no Brown Act violation
Michael Chang, Police Accountability Board chair, told Berkeleyside he was aware of the concerns that had been raised by the union.
On Wednesday night, Chang told Berkeleyside just after publication, the city attorney’s office had told the board it did not believe the Brown Act had been violated by the PAB.
“There are some pretty complex processes that are in motion with the BPA,” Chang told Berkeleyside.
To date, the union has been present at PAB meetings — all of which have taken place on Zoom — but has been largely silent due to the ongoing legal questions.
He too directed inquiries about the legal challenges to the city attorney’s office. But he said he hopes the union does begin to participate actively in the process.
Robust engagement between law enforcement and the board, Chang added, “is absolutely critical to the transparency that underpins faith in law enforcement.”
Editor’s Note: Berkeleyside added a comment from Michael Chang shortly after publication regarding the city attorney’s view that there was no Brown Act violation. Featured photo credit: Kelly Sullivan