PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 1 ARTICLE XVI. – POLICE CIVILIAN OVERSIGHT BOARD 2 AN ORDINANCE TO AMEND AND REENACT THE PROVISIONS OF THE CODE OF THE CITY OF 3 CHARLOTTESVILLE (1990), AS AMENDED, CHAPTER 2 (ADMINISTRATION) 4 5 WHEREAS, the Charlottesville City Council previously enacted an ordinance establishing a Charlottesville 6 Police Civilian Review Board and codified the ordinance within Chapter 2, Article XVI of the Code of the 7 City of Charlottesville (1990), as amended; and 8 WHEREAS, on October 28, 2020 the Virginia General Assembly enacted House Bill 5055, which expressly 9 authorizes the governing body of a locality to establish a law enforcement civilian oversight body; and 10 11 WHEREAS, City Council hereby finds that it is in the public’s best interests to amend Chapter 2, Article 12 XVI of the City Code to dissolve the City’s Police Civilian Review Board and to establish a Police Civilian 13 Oversight Board in conformity with Virginia Code § 9.1-601 and to empower the Police Civilian 14 Oversight Board with certain additional oversight authority and duties enabled by the statute; 15 16 NOW, THEREFORE, BE IT ORDAINED by the Council for the City of Charlottesville, Virginia, that Article XVI 17 within Chapter 2 of the Code of the City of Charlottesville (1990) is amended and reenacted, as follows: 18 19 ARTICLE XVI-POLICE CIVILIAN OVERSIGHT BOARD 20 Sec. 2-450 -Title 21 22 This article shall be known as the Charlottesville Police Civilian Oversight Board Ordinance. 23 Sec. 2-451 - Police Civilian Oversight Board Established 24 25 Pursuant to Virginia Code §9.1-601, there is hereby established a Charlottesville Police Civilian Oversight 26 Board, which shall be referred to as “the Board,” with powers granted as provided within this ordinance. 27 The Board is a public body appointed by the City Council of Charlottesville to advise and to perform 28 functions delegated by the City Council. It shall not be able to bring suit or to be sued in its own name, 29 except to the extent needed to request and defend subpoenas as authorized by this ordinance. 30 31 Sec. 2-452.-Powers and Duties of the Police Civilian Oversight Board. 32 33 (a) Purpose. The purpose of the Board is to increase and maintain trust between and among the 34 Charlottesville Police Department, which shall be referred to as “the Department,” the City Council, the 35 City Manager, and the public. The Board shall provide 36 37 (1) timely, fair and objective review and evaluation of City policing policies, practices and 38 procedures, and of their implementation; 39 1 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 40 (2) timely, fair and objective review of investigations by the involving the Department; 41 42 (3) timely, fair and objective investigations of serious incidents of police misconduct; 43 44 (4) meaningful assessments and corrective recommendations intended to maintain and 45 promote non-discriminatory policing; and 46 47 (5) recommendations for actions and reforms to ensure the protection of all communities, 48 including recommendations for strategies to implement the identified reforms. 49 50 (b) Objectivity. It is of fundamental importance that members of the Board shall be fair and objective in 51 the conduct of their duties, and that they be perceived as fair and objective in the conduct of their 52 duties. 53 54 (c) Powers and Duties. The Board shall have the following powers and duties: 55 56 (1) To receive, investigate, and issue findings on complaints from civilians regarding the 57 conduct of law enforcement officers and civilian employees of the Department; 58 59 (2) To investigate and issue findings on incidents, including the use of force by a law 60 enforcement officer, death or serious injury to any individual held in custody, serious 61 abuse of authority or misconduct as defined in this section, allegedly discriminatory 62 stops, and other incidents regarding the conduct of law enforcement officers and civilian 63 employees of the Department; 64 65 (3) At the conclusion of any investigation conducted pursuant to paragraphs (1) and (2), 66 above, and consistent with the Board’s findings in the investigation, to recommend to 67 the Chief of Police disciplinary action in cases that involve serious breaches of 68 departmental and professional standards, as defined within Board Operating Procedures 69 adopted pursuant to Sec. 2-460; 70 71 (4) To investigate policies, practices, and procedures of the Department and to make 72 recommendations regarding changes to such policies, practices and procedures, as set 73 forth within Sec. 2-462 of this article; 74 75 (5) To review investigations conducted internally by the Department, as set forth in Sec. 2- 76 458 of this article, and to issue findings regarding the accuracy, completeness, and 77 impartiality of the investigations and the sufficiency of any discipline resulting from such 78 investigations; 79 2 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 80 (6) To request reports of the annual expenditures of the Department, and to make 81 recommendations to the City Council concerning future appropriations; 82 83 (7) To make public reports on the activities of the Board, including investigations, hearings, 84 findings, recommendations, determinations and oversight activities; 85 86 (8) To hold hearings and, if, after making a good faith effort to obtain the voluntary 87 attendance of witnesses and the production of books, papers, and other evidence 88 necessary to perform its duties, the Board is unable to obtain such attendance or 89 production, to apply to the Circuit Court for the City of Charlottesville for a subpoena 90 compelling the attendance of such witness or the production of such books, papers and 91 other evidence; and 92 93 (9) To undertake other duties, as reasonably necessary, for the Board to effectuate its 94 lawful purpose as provided for in this article, to effectively oversee the Department. 95 96 (d) Definition of “serious abuse of authority or misconduct.” “Serious abuse of authority or 97 misconduct” shall include the following: 98 99 (1) Verbal or other conduct regarding an individual or group that maligns or shows hostility 100 for the individual or group because of race, color, religion, gender, national origin, age, 101 disability, sexual orientation, or gender identity and expression; 102 103 (2) Harassment or discrimination based on race, color, sexual orientation, gender, religion, 104 national origin, marital status, age, familial status, immigration status or disability; 105 106 (3) Acting in a rude, careless, angry, retaliatory or threatening manner not necessary for 107 self-defense; 108 109 (4) Reckless endangerment of a citizen, detainee, or person in custody; 110 111 (5) Violation of laws or ordinances; 112 113 (6) Criminal or other misconduct occurring on or off the job which is related to job 114 performance or is of such a nature that to continue the employee in the assigned 115 position or in any City employment capacity would constitute negligence in regard to the 116 City’s duties to the public or to other City employees; 117 118 (7) In any matter within the jurisdiction of any officer, department or agency of the City: (a) 119 the knowing falsification, concealment or cover-up of a material fact, and/or (b) the 120 knowing making of any false, fictitious or fraudulent statement or representation, 3 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 121 and/or the making or using of any writing or document knowing the same to contain a 122 false, fictitious or fraudulent statement or entry; 123 124 (8) Sexual conduct, including consensual sexual conduct, on the job; and 125 126 (9) Other serious violations of Charlottesville or Department policies or procedures, 127 including the Department Code of Conduct. 128 129 (e) Access to Department Information. The Board is authorized to receive, and shall be provided full 130 access to, all Department reports, files and records pertinent to Board investigations of complaints and 131 incidents or to its review of Department Internal Affairs investigations, as authorized in this ordinance. 132 All records, documents and materials in the possession of the Department or the City that are 133 determined by the Board to be necessary and requested by the Board to carry out its authorized powers 134 and responsibilities shall be provided to the Board subject to Board procedures adopted, with Council 135 approval, for the protection of confidential information as defined in such procedures. 136 137 (f) Department information to which the Board may not have access. The Executive Director and the 138 Board shall not have access to 139 140 (1) juvenile records; 141 142 (2) records that may reveal the identity or personally identifiable information of a 143 confidential informant; 144 145 (3) investigative files for an active civil or criminal investigation by the Commonwealth 146 Attorney, the Virginia Attorney General, or the United States Department of Justice; 147 148 (4) files related to an active EEOC claim, Human Rights investigation, or civil claim involving 149 a Department employee; 150 151 (5) any information that the Police Department is not legally authorized to share. 152 153 (g) Disputes over access. If the Executive Director and the Board seek access to information the 154 disclosure of which the Department believes would compromise ongoing investigations, disclosure may 155 be withheld until such time as the need for maintaining confidentiality is no longer present, or until the 156 City Manager has determined that the matter will not be compromised by the release of the 157 information. If the Board believes that the City Manager is unreasonably withholding such information, 158 the Board may consider whether to seek a subpoena requiring the production of such information 159 pursuant to §2-458(f). 160 4 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 161 (h) Procedures must be adopted before the Board begins to operate. The Board shall not exercise the 162 powers and duties set forth within paragraphs (c)(1)-(9) until City Council approves Operating 163 Procedures, after consultation with the Board, pursuant to § 2-460 of this Article. 164 165 Sec. 2-453 - Board Membership Appointment, and Terms. 166 167 (a) Appointment Process. The City Council shall appoint the members of the Board. The Council shall 168 announce a public application process with applications available online and by hardcopy in English and 169 Spanish for individuals interested in serving on the Board. Council will seek to appoint fair-minded and 170 objective members with a demonstrated commitment to community service who have training and 171 experience with topics relevant to the business of the Board, including law, police practices, human 172 resources practices and procedures, trauma-informed mental health issues, and the sociology of 173 historically over-policed communities. 174 175 (b) Board composition. The Board shall reflect the demographic diversity of the City of Charlottesville. 176 The Board shall be composed of seven voting members and one non-voting member appointed by the 177 City Council. The members shall be removable by the City Council for cause as specified in the Board 178 Code of Ethics, violating the duty of confidentiality, failing to participate in required training, or other 179 good cause. 180 181 (1) Council shall appoint at least three members who are residents of public housing or who 182 come from historically disadvantaged communities that have traditionally experienced 183 disparate policing. 184 185 (2) Council may appoint one member who represents an organization that seeks racial or 186 social justice on behalf of historically disadvantaged communities. 187 188 (3) The non-voting member of the Board shall be an individual with policing expertise or 189 experience. The non-voting member may be a retired law enforcement officer who prior 190 to his or her retirement was employed in a locality similar to the City of Charlottesville. 191 192 (4) The seven voting members of the Board shall be residents of the City of Charlottesville, 193 except that if Council has appointed someone who represents an organization that seeks 194 racial or social justice on behalf of historically disadvantaged communities, that person 195 shall either be a resident of the City of Charlottesville or the organization they represent 196 shall perform advocacy on behalf of City of Charlottesville residents. 197 198 (5) The non-voting member of the Board with prior law enforcement experience need not 199 be a resident of the City of Charlottesville. 200 5 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 201 (6) No Board member shall be a current candidate for public office, a former member of the 202 Department, an immediate family member of a current Department employee, or a 203 current employee of a law enforcement agency, the Fire Department, the Emergency 204 Communications Center, or the Sheriff’s Office. In appointing a Board member who is 205 employed by the City of Charlottesville, Council will seek to avoid potential conflicts of 206 interest. 207 208 (c) Terms. Each Board member shall be appointed for a term of three years. As the Board is being 209 constituted, Council may extend the initial term for a particular Board member for an additional period 210 of time to provide for staggering the re-appointment dates. 211 212 (d) Vacancies. If a Board member’s service ends before the conclusion of that member’s term or any 213 extended term, the City Council shall appoint an individual to complete the remainder of the term. 214 215 (e) Conflicts of Interest. No Board member may participate in the consideration of a Complaint of 216 someone who is a family member, or someone with whom the Board member has a financial interest. 217 No Board member shall participate under circumstances in which the objectivity of the Board member 218 could reasonably be questioned. 219 220 (f) Confidentiality. Except as included in the Board reports, each member shall maintain the 221 confidentiality of all confidential or privileged information, including but not limited to: 222 (1) Materials from Police internal investigative files; 223 (2) Disciplinary actions, memos and reports; 224 (3) Statements of any police officer or civilian employee who was required by the 225 Department to give a statement; 226 (4) Criminal investigative files; or 227 (5) Any other information that the Board has deemed confidential. 228 (g) Records to remain Department records. All original records provided to the Board by the 229 Department shall remain official Department records. 230 Sec. 2-454 – Meetings. 231 232 (a) Number of meetings. The Board shall hold public meetings at least once per calendar 233 quarter. Additional meetings may be called by the Chair or any two Board members. 6 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 234 (b) FOIA. The Board shall comply with all requirements of the Virginia Freedom of Information 235 Act pertaining to disclosure of public records and the conduct of public meetings, including the 236 requirement that all meetings shall be open to the public except under circumstances when the 237 topic is authorized by the law to be discussed in a closed meeting. 238 239 (c) Quorum. The Board may take any action by motion or resolution upon an affirmative 240 majority vote provided a quorum of at least five (5) out of seven (7) voting members is present. 241 242 (d) Minutes. The Board shall keep minutes of its meetings, which shall include: 243 244 (1) the date, time, and location of the meeting; 245 246 (2) the members present and absent; 247 248 (3) a summary of the discussion on matters proposed, deliberated, or decided; and 249 250 (4) a record of any votes taken. 251 (e) Rules and Procedures. Meetings of the Board shall be conducted in accordance with 252 Robert's Rules of Order or such other procedures as the Board may adopt. Hearings of the 253 Board shall be conducted in accordance with the Board Operating Procedures. 254 Sec. 2-455 - Executive Director 255 (a) Appointment. The City Manager shall appoint an Executive Director with the approval of a 256 majority vote of the City Council. 257 (b) Interview Process. As a part of the Executive Director appointment process, the City 258 Manager shall convene an interview panel that includes two members of the Board. If those two 259 members recommend a candidate for appointment as Executive Director, the City Manager shall 260 provide a written justification to the Board if a different candidate is appointed. 261 (c) Duties. The Executive Director shall support the Board in the implementation and exercise 262 of all of its functions authorized under this ordinance and to undertake or ensure the 263 performance of specific oversight tasks assigned by the Board, including the oversight of 264 investigations conducted by the Department. If authorized by the City Manager or their 265 designee, the Executive Director may engage the services of such investigators as may be 266 necessary to perform the Executive Director’s duties to conduct or to oversee investigations. 7 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 267 (d) Supervision. The City Manager shall supervise the work of the Executive Director, and may 268 delegate that responsibility to a Deputy City Manager. The City Manager‘s annual evaluation of 269 the Executive Director’s performance shall consider a written performance review submitted by 270 the Board to the City Manager. The Board may request that the City Manager meet with the 271 Board’s Chair to discuss the Executive Director’s performance. 272 (e) Vacancy. If there is a vacancy in the position of Executive Director, the City Manager or their 273 designee may designate some other City employee who is not an employee of the Department 274 to act as Executive Director until a new Executive Director is hired. 275 Sec. 2-456 - Board Legal Counsel. 276 The Board may retain independent legal counsel to represent the Board in all cases, hearings, 277 controversies, or matters involving the interests of the Board. Such independent legal counsel 278 shall be chosen from a list of attorneys recommended by the City Attorney. The Board’s Chair is 279 authorized to execute a contract in the name of the Board for legal services if the contract has 280 first been approved by the Board and endorsed by the City’s Finance Director to verify that 281 funding is available and has been appropriated to support performance of the payment 282 obligations of the Board under such contract. The Board’s legal counsel shall be paid only from 283 funds that have been appropriated to the Board’s budget by City Council. The Board and the 284 Executive Director are encouraged to consult the Office of the City Attorney for legal advice 285 except in cases, hearings, investigations, controversies that are before the Board, or in any other 286 matter in which the Board’s and the Department’s interests may conflict. 287 Sec. 2-457 – Matters that the Board May Investigate. 288 (a) Investigate Complaints. The Board and the Department shall jointly develop and administer 289 a process for receiving and investigating complaints from members of the public 290 (“Complainants”) regarding the misconduct of law enforcement employees of the Department 291 and referring complaints to the Department for investigation. Complaints should be able to be 292 received online, in writing, or orally. The Complainant should be able to choose whether the 293 Complaint will be investigated by the Board only or by the Department with the oversight of the 294 Executive Director. Regardless of how a Complaint is received, it shall be promptly provided to 295 the Department and to the Executive Director. The Executive Director, in consultation with the 296 Board, may decline to investigate a Complaint. 297 (b) Investigate Incidents. If the Board becomes aware of an Incident, including the use of force 298 by a law enforcement officer, death or serious injury to any individual held in custody, serious 299 abuse of authority or misconduct as defined in this Article, an allegedly discriminatory stop, or 300 another incident regarding the conduct of an employee of the Department, even if no Complaint 301 has been filed, the Board may initiate its own investigation of the Incident, by notice from the 8 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 302 Board Chair to the City Manager and the Chief of Police, who shall ensure the Department's 303 cooperation with the investigation. 304 Sec. 2-458 - Investigations of both Complaints and Incidents. 305 (a) Compliance. Any investigation shall comply with all federal, state, and local laws. 306 (b) Garrity. The Board may not compel a statement from any Department employee. 307 (c) Exclusions. The Board shall not consider complaints, incidents, claims or issues involving the 308 following: 309 (1) Any incident that occurred more than one year before the filing of the 310 Complaint (unless the Board determines that there is good cause to extend the 311 filing deadline); 312 (2) A matter that was the subject of an investigation where more than seventy-five 313 (75) days has elapsed since the Department sent notice to the Complainant 314 informing the Complainant that the Department's Internal Affairs investigation 315 is complete (unless the Board determines that there is good cause to extend the 316 filing deadline); 317 (3) Matters that are the subject of a pending criminal proceeding in any trial court, 318 a pending or anticipated civil proceeding in any trial court (as evidenced by a 319 Notice of Claim or a filed complaint), or any pending City of Charlottesville 320 grievance proceeding; 321 (4) Any financial management related issue; 322 (5) Any complaint, incident, claim or issue where the Complainant requests that the 323 Board not have access to their files; 324 (6) Any complaint, incident, claim or issue that has previously been the subject of 325 an investigation by the Board, unless substantial new information has come to 326 the attention of the Board; 327 (7) An allegation of misconduct only by employees of law enforcement agencies 328 other than the Department. Such complaints should be referred to the 329 appropriate law enforcement agency; 9 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 330 (8) An allegation of conduct that does not violate the Charlottesville Police Policies 331 and Guidelines, Disciplinary Orders, or Code of Conduct; or 332 (9) Any other claim outside the scope of the Board's authority. 333 (d) Exceptions to time limits. The Board may review investigations beyond the time limits 334 specified in subsections ( c)(1) and ( c)(2) if: 335 (1) The board determines that there is good reason for doing so, or 336 (2) As part of an audit taking place under Section 2-462(b). 337 (e) Suspension of Investigations. If a Complaint asserts criminal conduct by an employee of the 338 Department, or if at any point in an investigation of a Complaint or Incident the Board becomes 339 aware that an employee may have committed a criminal offense, the Board shall: 340 (1) Suspend the investigation and notify the Chief of Police and Commonwealth's 341 Attorney of the alleged conduct, ensuring that no statements obtained from the 342 Police Department employee(s) whose actions are the subject of the matter are 343 shared with criminal investigators or any prosecuting authority except in 344 accordance with applicable law; and 345 (2) Evaluate, in consultation with Board legal counsel, the City Attorney, and the 346 Commonwealth’s Attorney, whether competing public interests and civil rights 347 involved permit the resumption of continued, parallel investigation by the 348 Board. 349 (f) Subpoenas. 350 (1) If the Board determines that there is evidence (including witnesses) not within 351 the control of the Department that the Board is unable to obtain voluntarily, the 352 Board by two-thirds vote may direct the Executive Director, on behalf of the 353 Board, to apply to the Charlottesville Circuit Court for a subpoena compelling 354 the attendance of such witness or the production of such books, papers, and 355 other evidence, and the Court, on finding that the witness or evidence is 356 material to the discharge of the Board's duties, may issue the requested 357 subpoena. 358 (2) If the Executive Director is denied access to material witnesses, records, books, 359 papers, or other evidence within the control of the Department that the 360 Executive Director deems necessary to perform their duties and the duties of 10 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 361 the Board, the Executive Director may request the City Manager to require the 362 Department to produce the requested witnesses and documents. The City 363 Manager, or their designee, shall not unreasonably deny such a request, but 364 may place conditions on the production of the requested witnesses and 365 documents as necessary to preserve confidentiality for the reasons set forth in 366 this ordinance. The City Manager, or their designee, shall issue a decision on the 367 Executive Director’s request within 5 business days from the date of that 368 request. 369 (3) If the City Manager, or their designee, denies the Executive Director’s request 370 made pursuant to subparagraph (2) above, the Board by two-thirds vote may 371 direct the Executive Director, on behalf of the Board, to apply to the 372 Charlottesville Circuit Court for a subpoena compelling the attendance of such 373 witnesses or the production of such books, papers, and other evidence. The 374 Court, on finding that the witness or evidence is material to the discharge of the 375 Board’s duties, shall cause the subpoena to be issued with such conditions as 376 the Court may deem necessary to protect the Department’s concerns about the 377 need for confidentiality. The Board shall give the Department reasonable notice 378 of its intent to subpoena such witness or records, and shall give the City 379 Attorney a copy of the request for subpoena. The Board shall not unreasonably 380 withhold its agreement to limitations on the scope of the subpoena requested 381 by the City Manager or their designee that may be necessary to protect 382 confidential information. The parties may request that any hearing to be held in 383 the Circuit Court on the request for a subpoena be conducted in a closed 384 courtroom, to the extent permitted by state law. Upon request, the court file 385 for any such subpoena request shall be kept under seal to the extent permitted 386 by state law. 387 (4) If a subpoena is granted, the Board shall digitally record any interviews or 388 depositions conducted pursuant to the subpoena, and shall make copies of any 389 documents obtained by subpoena. The Board shall provide the Department 390 with copies of any such interview/deposition recordings and documents. The 391 Board shall delegate its authority to subpoena and question witnesses to the 392 Executive Director, who shall conduct any interviews, depositions, or 393 questioning of witnesses in a non-public forum that adequately protects the 394 privacy of the individual being subpoenaed, the confidentiality or sensitivity of 395 information shared or sought, and the integrity of any pending or concurrent 396 investigation. 11 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 397 (5) In deciding whether, and under what conditions, the Circuit Court will issue any 398 subpoena, the Court shall refer to procedures and caselaw decided under Rule 399 3A:12 of the Rules of the Supreme Court of Virginia. 400 (g) Conduct of Investigations Pursuant to §2-457(a). 401 (1) Unless the Complainant asks that the Complaint be investigated by the Board 402 without the involvement of the Department, the Complaint shall be investigated 403 by the Department with the oversight of the Executive Director, as set forth in 404 paragraph (2), below. When the investigation is concluded, the Department 405 shall make an Investigative Report, with a copy to the Board and to the 406 Complainant, summarizing their findings on the question of whether there was 407 any employee misconduct. The Executive Director shall also report to the Board 408 and to the Complainant on the question of whether the Department’s findings 409 were supported by the information available to the Department, and on the 410 question of whether the investigation done by the Department was adequate to 411 support those findings. 412 (2) The Executive Director may oversee all investigations of Complaints of employee 413 misconduct conducted by the Department, and shall have access to records and 414 witnesses to the same extent as the Department. Such oversight may include 415 reviewing the investigative plan of the Department, reviewing with the 416 Department any records within the Department’s digital evidence management 417 system, reviewing with the Department any pertinent law enforcement records 418 within the Department’s Records Management System, observing any and all 419 real-time interviews of witnesses with the Department, reviewing all recorded 420 interviews which the Executive Director chooses not to attend in real time, 421 providing feedback during the interview to be relayed to Department staff 422 conducting the interview, providing feedback to Department staff in 423 determining next steps in the investigative process, and reviewing facts gained 424 from investigation with Department staff. For active investigations, the 425 Executive Director shall be limited in their participation to the same extent the 426 Department is limited in its participation in such investigations. The Executive 427 Director may oversee the Department’s administrative investigation of 428 employee misconduct after the close of the active investigation in the same 429 manner as all other investigations of employee conduct handled by the 430 Department as described in this section. When overseeing Department 431 investigations, the Executive Director shall not disclose confidential information. 432 (3) If the Complainant asks that the Complaint be investigated by the Department, 433 the Complaint will be investigated by the Department with oversight from the 12 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 434 Executive Director. When the Department’s investigation is concluded, the 435 Department will provide the Complainant with an Investigative Report of its 436 findings and the resolution of the Complaint, and will provide the Board a 437 summary of the Department’s resolution of the Complaint. 438 (4) If the Complainant asks that the Complaint be investigated only by the Board, 439 the Executive Director shall initiate an investigation on behalf of the Board. The 440 Executive Director will provide the Chief of Police with enough identifying 441 information to allow the Department to give the Executive Director access to 442 any police reports, names and contact information of any witnesses, videos, 443 audio tapes, or other physical evidence relevant to the Complaint. When the 444 Board’s investigation is concluded, the Executive Director will provide the Board, 445 the Complainant and the Department with an Investigative Report that includes 446 a summary of the circumstances of the incident(s) of alleged misconduct, the 447 evidence related to whether there was any misconduct, and any suggested 448 findings related to each allegation. 449 (5) Any investigation will be completed, and any Investigative Report will be 450 submitted, within sixty (60) days from the date the Complaint is filed. The Board 451 may extend the 60-day period upon request of the Police Chief or the Executive 452 Director to protect an ongoing investigation or prosecution, or for other good 453 cause, with notice to the Complainant and the City Manager. 454 (h) Conduct of Investigations Pursuant to §2-457(b). If the Board is investigating an Incident 455 under the authority of §2-457(b), the Board may request information from the Department, may 456 seek subpoenas as authorized above, and may conduct such an investigation as is necessary to 457 permit the Board to prepare a Preliminary Investigative Report, making findings about whether 458 there was any employee misconduct in the Incident under investigation. The Preliminary 459 Investigative Report shall be provided to the Department and to any employees identified as 460 having committed employee misconduct. 461 Sec. 2- 459 – Matters on which the Board may Conduct Hearings 462 (a) Review Request. Within 10 business days of the issuance of any Investigative Report, the 463 Complainant or the Board may file a Review Request with the Executive Director, asking that a 464 hearing be held on the allegations in the Complaint. A Review Request shall be deemed filed 465 when it is received by the Executive Director. In any Review Request reviewing a matter where 466 the Complainant has not previously authorized Board involvement in the investigation, the 467 Complainant must grant permission for the Board to have access to the Internal Affairs files and 468 evidence if they wish to pursue a Review Request. 13 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 469 (b) Hearing to be scheduled. The Board shall schedule a prompt hearing on the Review Request. 470 The hearing will be conducted pursuant to the Operating Procedures issued pursuant to §2- 471 460(a). 472 ( c) Report on findings on Review Request. Within 30 days of the hearing pursuant to a Review 473 Request, the Board shall report publicly and to the City Manager, the Police Chief and the 474 Complainant that it has made one of the following findings with respect to each allegation or 475 issue under review: 476 (1) That the Board finds that the investigation of the Complaint was satisfactory, 477 and the Board concurs with the findings of the investigation; 478 (2) That the Board finds that the investigation of the Complaint was satisfactory, 479 but the Board does not concur with the findings of the investigation, in which 480 case the Board may make recommendations to the City Manager concerning 481 disposition of the Review Request; or 482 (3) That the Board finds that the investigation is incomplete or otherwise 483 unsatisfactory and provides a detailed written explanation of the basis for such 484 finding. 485 (d) Investigations in Support of Review Requests. The Board may initiate an independent 486 investigation of any matter that was the subject of a Review Request proceeding where the 487 Board determined the Department investigation was incomplete or unsatisfactory under 488 paragraph ( c)(3), above. After the additional independent investigation, the Board shall report 489 publicly that it has made one of the following findings with respect to each allegation or issue 490 under review: 491 (1) That the Board now finds that the investigation of the Complaint was 492 satisfactory, and the Board concurs with the findings of the Investigative Report; 493 (2) That the Board now finds that the investigation of the Complaint was 494 satisfactory, but the Board does not concur with the findings of the Investigative 495 Report, in which case the Board may make recommendations to the City 496 Manager concerning disposition of the Complaint; or 497 (3) That despite the Board’s best efforts, the evidence is insufficient to allow the 498 Board to determine whether the findings of the Investigative Report are correct. 499 (e) Preliminary Investigative Report. After receiving a Preliminary Investigative Report as 500 provided in §2-458(h), the Board may hold a hearing on the allegations in the Preliminary 14 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 501 Investigative Report. The Board shall report its findings within thirty (30) days of the hearing. 502 The Board shall report publicly and to the City Manager and the Police Chief that it has made 503 one of the following findings with respect to the Incident under review: 504 (1) That the Board finds that a Department employee committed misconduct; 505 (2) That the Board finds that no Department employee committed misconduct; or 506 (3) That despite the Board’s best efforts, the evidence is insufficient to allow the 507 Board to determine whether any Department employee committed misconduct. 508 Sec. 2- 460. – Hearing Procedures 509 (a) Hearing Procedures. The Board shall conduct all hearings following the procedures set forth 510 in a separate document, approved by City Council, entitled “Police Civilian Oversight Board 511 Operating Procedures,” which is incorporated herein by reference. Those procedures may be 512 modified from time to time by City Council, in consultation with the Board. Parties to the 513 hearing shall have no right to a particular set of procedures. The hearing shall be conducted by 514 a Hearing Examiner, who may make reasonable amendments to the procedures as 515 circumstances concerning a particular Complaint may require, provided that (i) any such 516 modifications are within the authority of the Board under City policy or ordinance; and (ii) no 517 such modification deprives any party to a hearing of substantial justice. 518 (b) Informal Resolution. At any time after receiving a Complaint and before issuance of the 519 written findings required at the conclusion of a hearing, the Board and any party may propose 520 an informal resolution of the Complaint which may be adopted if all parties and the Board agree 521 to such a resolution. 522 Sec. 2-461. - Disciplinary Recommendations 523 (a) Prerequisite to the Board making disciplinary recommendations. If the City Attorney 524 certifies to the Board that the Virginia General Assembly authorizes Police Civilian Oversight 525 Boards to receive information in confidence to make an informed personnel discipline 526 recommendation, including accessing confidential personnel information without thereby 527 making those files public records, and that Police Civilian Oversight Boards may deliberate in 528 closed session in making a discipline recommendation, the following procedures may be used, as 529 appropriate: 530 (1) Upon making a finding that an employee has engaged in a serious breach of 531 departmental and professional standards, the Board shall meet to discuss 532 appropriate recommendations for disciplinary action. The Board shall consult 15 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 533 with the employee’s direct supervisor or commander, complainants and 534 witnesses when discussing the appropriate disciplinary action to be 535 recommended. Prior to commencement of any such disciplinary deliberations, 536 the subject employee shall be given notice of the proceedings and of the range 537 of disciplinary actions under consideration, and the employee shall be offered 538 an opportunity to be heard. If permitted by FOIA, some or all of the disciplinary 539 hearing may be held in closed session. No employee, and no other City 540 employee, shall be compelled to provide statements to the Board during its 541 deliberations. Disciplinary action to be considered for recommendation by the 542 Board shall include those specified within any applicable disciplinary matrix 543 utilized by the Department. After considering these sources of information, the 544 Board may make a disciplinary recommendation to the Department. 545 (2) If the Board makes a disciplinary recommendation to the Department, and the 546 Department declines to implement the Board’s disciplinary recommendations, 547 the Chief of Police shall, within thirty (30) days of the Board’s recommendation, 548 provide a written explanation of their reason for declining to implement the 549 Board’s recommendation. This explanation shall be made available to the 550 Board, the City Council, the City Manager, and the public. 551 (b) No effect on grievance rights. Nothing in this ordinance shall affect in any way any right of 552 any employee to file a grievance requesting a hearing before the City’s Personnel Appeals Board; 553 nor shall any finding by the Board or recommendation of the Board be admitted in any 554 personnel appeal or grievance hearing. 555 Sec. 2- 462. - Board Review of Law Enforcement Policies, Practices and 556 Procedures 557 558 (a) Authority to make policy recommendations. The Board may review and make 559 recommendations regarding policies, practices, and procedures of the Department, including 560 written policies, procedures and standing orders. The Board shall present in writing its findings 561 and recommendations with supporting rationale to City Council, the City Manager and Chief of 562 Police. If the Department declines to implement any changes recommended by the Board, the 563 Chief of Police shall explain in writing, which shall be made available for public inspection, why 564 the Department declines to implement the Board’s recommendation, unless the Board instead 565 withdraws the recommendation based on the rationale provided. The Board's withdrawal of 566 any such recommendation shall be made available for public inspection. 567 568 (b) Executive Director’s authority to conduct audits. The Board may direct the Executive 569 Director on its behalf to conduct retrospective examinations and audits of patterns in Internal 570 Affairs investigations, arrest and detention, and other public-police interactions. The Board may 16 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 571 request information from the Department, may seek subpoenas as authorized above, and may 572 conduct such an investigation as is necessary to permit the Board to perform the audit. 573 574 Sec. 2- 463. - Request Annual Reports of Police Expenditures 575 576 During the City Manager’s preparation of a proposed City budget, the Budget Office shall 577 provide the Board with annual expenditure estimates and future year projections for the 578 Department, itemized to the same level of detail as provided to the City Manager. The 579 estimates shall be presented to the Board at the same time they are presented to the City 580 Manager. The Board may review the estimates and may make budgetary recommendations to 581 the City Manager and/or to the City Council during the annual budget process. 582 583 Sec. 2-464. - Legislative Recommendations and Annual Report. 584 585 (a) Legislative recommendations. The Board may make recommendations to City Council of 586 any proposed changes in state law, for the Council’s consideration to include in its annual 587 legislative program to present to the General Assembly. These recommendations shall be 588 presented to the City Attorney’s Office by August 15 of each year. 589 590 (b) Annual Report. On or before April 15 of each calendar year, the Board shall provide the City 591 Council with an annual report of activities conducted during the preceding calendar year. The 592 report shall detail the Board’s activities in the prior calendar year, with sections related to the 593 appointment of committees and their actions; the establishment of any community advisory 594 panels; an overview of complaints received during the calendar year including the number of 595 complaints, the complaints’ findings, and the number of complaints deferred due to pending 596 proceedings; the number and outcome of any independent investigations; an overview of 597 proposed policy recommendations and amendments to Department policies and whether the 598 recommendations and amendments were implemented by the Department; the number, type, 599 and attendance at community listening sessions; recommendations of the Board about policing 600 within the City; and any other information necessary to provide an overview of the Board’s 601 activities. 602 603 Section 2-465. - Community Engagement and Community Relations 604 605 (a) Community Outreach. The Board and the Executive Director shall engage in community 606 outreach to seek the assistance and input of community members. At least twice a year, the 607 Board shall host public community listening sessions to discuss policing matters of pressing 608 public concern, including the impacts of local policing on historically disadvantaged communities 609 that currently experience or traditionally have experienced disparate policing. 610 17 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 611 (b) Community meetings. The Board may also host or participate in public police-community 612 relations meetings, in which Board members, supported by the Executive Director, Department 613 officials, designated by the Chief of Police, and community members discuss policing matters of 614 pressing public concern, including questions about transparency, availability, legitimacy, mutual 615 respect and trust, equitable treatment, social and racial justice, equal rights, and community 616 safety and order. 617 618 (c) Include in reports. The Board shall report on its community outreach and engagement 619 activities, public input, and any recommendations for community-policing initiatives or for 620 improved police-community relations at least annually as part of the annual report provided for 621 in Section 2-464(b). 622 623 Section 2-466. - Training 624 625 (a) NACOLE training. At least once every two years, and within 90 days of any new Board 626 appointments, the City, assisted by the Executive Director, shall provide Board members with at 627 least eight hours of training, presented by the National Association for Civilian Oversight of Law 628 Enforcement or a comparable professional organization. The training shall be consistent with the 629 Board’s mission, this ordinance, and the Operating Procedures. 630 631 (b) City or CPD training. At least once every two years, and within six months of any new Board 632 appointments, the City, assisted by the Executive Director and the Chief of Police or their 633 designees, shall provide Board members with training or information: 634 635 (1) Describing the legal and ethical obligations of members of a public board, 636 including the need to comply with FOIA and other statutes and ordinances 637 governing their service; 638 639 (2) Explaining Police Department procedures, policies, and regulations; 640 641 (3) Describing the substance of Police Department personnel record-keeping; 642 643 (4) Describing such other City policies, procedures and systems relevant to the 644 duties of the Board; and 645 646 (5) Explaining the Code of Ethics for the Board. 647 648 (c) Ride-alongs. Within six months of appointment, and at least once a year thereafter, 649 members shall participate in a ride-along session with the Department. 650 18 PCRB ORDINANCE REDRAFT WITHOUT PROCEDURES – December 3, 2021 at 5:15 AM 651 (d) Additional training. As needed, the City shall provide Board members with additional 652 relevant training by subject matter experts on subjects that may include mental health, trauma- 653 informed policing, civil rights and constitutional law, race and racism, community outreach, 654 mediation, investigation, and policing practices. 655 656 Section 2-467. – Commendations for Exceptional Community Service 657 658 (a) Soliciting public comment. The Board may solicit comments from the public concerning 659 incidents of exceptional performance by employees of the Department. 660 661 (b) Exemplary employees. The Board may consult with the Chief of Police regarding individual 662 employees who have made outstanding contributions exemplary of equitable, just, and 663 professional policing. 664 665 (c) Recognition of outstanding contributions. The Board may issue public citations recognizing 666 individuals deemed to have made such contributions. 667 668 Section 2-468. – Mediation 669 670 The Board may propose procedures for the use of mediation or other alternative dispute 671 resolution techniques to resolve complaints against employees of the Department. Such 672 procedures shall not affect the ability of Complainants to pursue remedies under other sections 673 of this ordinance. 19