In a recent article in MinnPost, Walker Orenstein and Peter Callaghan described the changes made by the police reform package passed in the recent special session of the Legislature. Jessie Van Berkel, writing in the Star Tribune, focused particularly on the changes to the Peace Officer Standards and Training Board made by the reform legislation. The POST Board is a standards board for peace officers, and it licenses them, making sure they meet the minimum requirements for the job.
As described in these articles, the POST Board has always been a sleepy backwater in the law enforcement business. As previously constituted, and even after the reform’s changes to the board, it plays a very minor role in officer discipline. There is a range of criminal offenses for which one can lose a law enforcement officer (LEO) license, but that almost always (always, I think) happens after an officer is convicted. Being convicted of a crime is a rather low bar for evaluating LEO conduct. Currently, if you file a complaint against a law enforcement officer with the POST Board, it’ll send you back to the agency that employs the officer.
Proposing a different model
The POST Board could be, and ought to be, in my view, the primary discipline agency for law enforcement officers in Minnesota, but the new legislation falls far short. I draw on the discipline apparatus for my own profession, the law, as an analogy for how it could work.
Anyone — a client, an adversary lawyer, a judge, a member of the public, anybody — can file a complaint against a lawyer, anywhere in the state. The staff of the Lawyers Professional Responsibility Board (LPR Board) investigates the complaints. Some of them are frivolous and are dismissed by the staff. If there is merit to a complaint, the board makes a determination on a range of available discipline, which can include reprimands, public or private, and the requirement of supervision by another lawyer for a time. In serious cases, the board asks the Supreme Court (which governs members of the bar and their admission to practice before the courts and to hold themselves out as lawyers) to suspend or cancel a lawyer’s license to practice.
The board is made up of lawyers and a material number of people who aren’t lawyers, too. When non-lawyers (an odious term, I admit) were first added to the board, I remember the hue and cry from the profession about how only lawyers could judge lawyers, but the world didn’t end, and we have what I think is a pretty good system for lawyer discipline in Minnesota.
The backbone of the LPR Board is its staff and executive director, who investigate the complaints and make recommendations to the board. In serious cases where appropriate, the board can ask the Supreme Court to suspend a lawyer’s license pending an investigation. Lawyers get to respond to complaints, of course, and can hire a lawyer to represent them, if they want.
It’s more complicated than that, but that’s it in a nutshell.
POST Board would require reworking
For this model to work, the POST Board would require reworking: more citizen members to ensure meaningful and continued citizen oversight, perhaps changing the way that the board is appointed, maybe creating a discipline subcommittee of the board, and ensuring that it had sufficient staff to investigate complaints. It would also need a set of detailed standards that peace officers would be expected to meet. Like the code of ethical rules that the LPR Board applies to lawyers.
[image_caption]Steve Timmer[/image_caption]
The current discipline system, relying on individual departments and grievance proceedings, is deficient. Some of you will recall in the discussions surrounding the recent law enforcement reform package, Mayor Jacob Frey said that he had hoped that the Legislature would have done more with grievance arbitration. The Legislature did make one change to grievance arbitration for law enforcement officers: It provided for the random assignment of arbitrators to police officer grievance cases to prevent arbitrator shopping.
You can’t blame the mayor, really, for wanting some help in reforming grievance arbitration, which most people view as overwhelmingly cop friendly and dominated by police unions. This is especially true when the City Council is charging off in an entirely different direction and is unlikely to assist in efforts to improve the grievance process.
The City Council’s entirely different direction, contained in a proposed charter amendment at the link above, is to replace the police department with the Department of Community Safety and Violence Prevention, and it would dispose of the requirement to have any POST Board-licensed law enforcement officers at all. The city’s charter commission will vote on the proposed change; if it passes, it’ll be on the ballot in the fall for approval by Minneapolis voters.
Well, you say, there’d have to be some kind of police force, and you’d be right. But what would it look like? Nobody knows, really.
One council member proposed – and then withdrew the idea — of funding armed neighborhood defense patrols. These patrols would undoubtedly attract just the people we are looking for: prudent, restrained, and civil. And highly trained, of course.
This is the wellspring from which the proposed charter amendment emerges; it fails to understand the state’s standards, training, and licensing schema.
By law, peace officers (badge, gun, full power of arrest) hired by a city or other political subdivision must be Post-licensed; otherwise, they aren’t law enforcement officers.
The scattershot approach of the charter amendment is not encouraging. But members of the city’s charter commission who have expressed reservations about the amendment have been in for all manner of abuse on social media. I think the commissioners are just doing their jobs, vetting proposed charter amendments: thankless, unpaid jobs, whatever one’s personal views of the proposed amendment.
Work for a better plan
It would be much better than the charter amendment, in my view, to make the POST Board an effective, statewide discipline agency for law enforcement officers. If the POST Board received and acted on citizen complaints expeditiously and suspended or canceled LEO licenses where appropriate, it would render the grievance process largely moot in serious cases: no LEO license, no job. But that means keeping the POST Board license as a condition to active employment for an LEO in Minneapolis.
There would be an advantage in having such a system be statewide, too. There is a current focus on Minneapolis, of course, but excessive force complaints can arise anywhere. They undoubtedly do, but get buried without so much as a glance in many places.
Our state leaders at the Capitol could change that.
Steve Timmer is retired after practicing law in the Twin Cities for over 40 years. His Twitter handle is @stevetimmer.
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From an article in the Star Tribune this morning (8/5):
‘City Council President Lisa Bender told charter commissioners in a meeting last month that she could say “with relative confidence that the consensus of the [current] council would be that there needs to be some level of peace officers in the new division.” ‘
https://www.startribune.com/state-laws-limit-minneapolis-ability-to-eliminate-officers/572009382/
Is “relative confidence” relatively confidence inspiring?
She sounds like she’s trying not to speak for the whole council.
That said, it can’t be easy to overhaul a moving train or even a department that simply can’t take a year off pressing duties to study and build a new model.
Bless them for trying.
Steve, your POST licensing board is still necessary, but as with many professional organizations that oversee and discipline their members, my experience is they will usually be reluctant to hurt one of their own unless they are forced to by especially egregious actions.
This is true in medicine, in public accountancy, and in law. Mostly these boards get punitive only when they happen to get aggressive or pugnacious leadership (and then they are dangerous).
The proposed (now failed, for the moment, anyway) charter amendment is ill-conceived and scares people, including POCs and North Siders, as described in an article in the NYT that was linked in the Glean yesterday. It’s asking people to buy a pig in a poke.
The Strib article linked in the original comment by me identifies multiple issues with the amendment, including a failure to understand what a licensed police officer really does. One of the important ones that I didn’t mention is the power to serve and execute search warrants.
The definition of peace officers and their functions are not subject to the whim of the city council. It is perhaps a charming but naive conceit.
And I don’t say “God bless them for trying.” There is only do or not do. Somebody said that once.
Thank you Mr. Timmer for the clarity. Your piece should bring the issue clearer for the council.
…and Yes, you’re right, Yoda famously said ,”do or do not. there is no try”.
And the world is watching– at least those who know there’s no going back to the MPD as it was.
Richard,
I did know the source, of course. I don’t think, though, that Yoda was the original source of the aphorism.
I agree that the board could be used for serious offenses. In some professions such as teaching, social work and some others, the board only is brought in on offenses that are violations of the profession. So those lower level things that tend to be more subjective per a supervisor or are just low grade(was late to work, didn’t follow a policy exactly with little to no negative impact, etc) could be handled at the employer level or internal affairs and be subject to coaching and performance plan mentoring. The other issue that someone point out is that those in the class of Lt or above should have their own union so there is no conflict of interest which is what many workplaces do vs having all in one single union.
The changes I am suggesting to the POST Board are really only relevant for matters in which the officers interact with the public. Whether Officer Johnson leaves the squad dirty or is sloppy with her paperwork are unlikely to draw a public complaint. If they did, the staff of the POST Board would, of course, just defer to the police administration.
A separate federation or association of some kind for senior officers is probably a good idea, but but I don’t know enough about how much of a conflict of interest it really is to have an opinion. Conflicts of interest do distort decisions in many ways, subtly and insidiously. It’s why they are such no-nos for lawyers.
The police operate on a union contract negotiated and signed by City Council and Mayor. The author seems to forget the Police Union only signs a deal after negotiating with the leaders of Minneapolis. Every sentence in that contract has been agreed to by the City. Please explain to me who is to blame for “systemic racism “ ? Is it the Police or the overseers of the Police, who agreed to the bad contract they operate off? After 5 decades of Democratic leadership one has to wonder who is to blame.
The inability of city leadership to deal effectively with the Federation is one reason to seek to move discipline, at least in part, to a different level of regulation.
True professional discipline is not a matter of contract, at least solely. It is a matter of standards of conduct.
I posted a brief response last evening; I’d like to expand on it.
A resident of Minneapolis does not contract to be mistreated because the city’s administration is ineffective at controlling police behavior.
This is explicitly why a more effective police discipline agency is desirable.
Standards of conduct are determined by the contract the police Union negotiate with City Council and Mayor. If it says no choke holds, then choke holds are banned. How is that hard to understand? City Council and Mayor are responsible for overseeing the Mpls police department. Are you saying that is not the case?
Joe, you persist in believing that police conduct is solely determined by the contract with the Federation. It obviously is not. It’s also determined by POST Board standards, and state statutes, including the criminal statutes.
Chokeholds were only banned (by the city and the state) after George Floyd’s death under Derek Chauvin’s knee. In your view, that mean that he cannot be charged and tried for manslaughter and murder?
The police officer who knelt on George Floyd’s neck most certainly should be held accountable in a court of law. My point is the overseers of the Police Dept are the City council and Mayor, they are responsible for current contract (protecting bad cops) that the police have today. The City Council showed their knowledge of policing by declaring that defunding them will help the current lawlessness in Mpls. If you want to change the Police, you need different leadership, not just bigger bungled cumbersome Government.
Police conduct is directly related to what the folks in charge of overseeing them allow. If the folks in charge of policing the police are not responsible for their conduct, please tell me who in the hell is?
Steve, guys like Joe are reflexively anti-labor and impervious to facts. Whenever there’s any kind of discussion about anything that involves organized labor, from the post office to education, all they can see is an evil influence of union’s and their contracts. The extent to which they will go out of their way to blame labor unions for everything and anything can be truly amazing on occasion.
Someone might want to try make Mr. Smith aware of the fact that unlike almost every other labor union in the country, law enforcement has traditionally aligned with Republicans, note Bob Kroll’s willful disregard for city policy on behalf of the Trump campaign for instance. Whatever… like I said, facts bounce off these guys like a shot from a BB gun off a Tiger tank.
There’s no doubt that the police unions have managed to effectively interfere with reforms, but THAT power was always been conferred by the political machines be they Republican or Democrat in every city in the US. We have been watching LEO’s attack and kill people for decades without any serious political attempts at meaningful reform or intervention. This isn’t because unions are too powerful, it’s because there has been no political will to control the police.
Warrior training (A thoroughly Republican mentality) has led scenarios wherein LEO’s turn perfectly manageable encounters into deadly games of: “Simon-Says… or I’ll kill you”, or instances where officers shoot people dead simply because they don’t like the way that person’s looking at them. Cops shoot first and ask questions later according to a code that dictates they’d rather be judged by 12 than carried by 6. And they get away with all of this because we grant them qualified immunity and let them kill people whenever they’re sufficiently “afraid”. When fear becomes a legal justification for taking life, whether it’s cops or would-be neighborhood watchmen, innocent people die.
From Rodney King to George Floyd this has been the trend in policing for decades, and if anything, our politicians have encouraged an escalation in police violence.
Just for good order’s sake, I published a follow-up story at Left.MN today, the 6th of August:
http://left.mn/2020/08/not-ready-for-prime-time/
” . . . City Council and Mayor are responsible for overseeing the Mpls police department. . . .”
Quite right. Frey and the City Council–the whole sorry lot–have shown nothing but a cavalier disregard for their duties. Vote ’em all out.
We are already seeing how “reimagine Police “ is working. The Mpls Police Department has sent out a notice, due to the high amount of car jacking and robbery, asking innocent victims to please hand over car keys, wallets, purse, cell phone and anything else the thug wants. Next it will be leave your home keys on the front porch so the criminals won’t have to break in…. You can’t make this stuff up!
Yes, you can make it up.
According to Snopes, such a notice was sent out but later backtracked. Right-wing media outlets, including Russian media, falsely linked the notice to the vote to defund the police.
Advising people not to resist violent robberies is pretty standard for law enforcement. There are things you can do to minimize the chance that you will be a crime victim (locking your house is one), but routinely urging people to fight back is not one of them.
I would have to ask Mr. Timmer to give us some data regarding Lawyer discipline before signing off on his model. What kinds of complaints are logged, and what kinds of discipline are leveled at offenders? On paper, the existing system looks good, but in practice… MY experience with licenses in Nursing, Psychology, and Medicine is that even if you have a smattering of non-professionals on the “board” you’re still basically self policing. Too many licensing agencies end being dedicated to preserving licenses rather than canceling them. Over-extended benefits of the doubt tend to become common practice.
Another problem with the model is that no other licensing agency deals with people who’s profession actually requires physical violence. Physical violence against a client or a patient in the absence of mental health issues or criminal activity is simply not an issue for any other licensing agency. If a plumber beats a homeowner to death, losing his plumbing license is the least of his or her’s problems.
Medical teams have to restrain patients with some frequency, but no one on the team is allowed to hit, choke, tase, or kneel on any part of a patients body. And no weapons of any kind can ever be used to restrain a patient.
My prediction is that a more robust licensing regime and agency oversight would simply result in police policing themselves via that agency rather than their own departments. This is what happens in other licensed professions.
I’m not saying that POST couldn’t be better, but there are systemic reasons for it’s marginalization and those have to addressed. POST alone won’t be the solution people are looking for.
Regarding POST, I think one improvement could be a requirement any training a officer receives must be evaluated and authorized. This would protect officers from spending their money on bad or dangerous training, and would give the state some control over the kind of training licensed officers get. We need to be able to prohibit warrior training for instance.
It’s hard to imagine really enforcing accountability for instance without ending or drastically amending the qualified immunity we give LEO’s. An officers state of mind simply cannot be sufficient grounds for lethal force.
The idea wasn’t entirely fleshed out, of course. Required training and evaluation of candidates, and their continued evaluation, are important, too.
In shorthand: make it harder to get an LEO license and easier to lose one.
And it’s apparent that the grievance arbitration system has its sh0rtcomings; maybe a different approach would be better.
I’m not so cynical that I don’t think it could work.
I just saw this article about the former Carlton County Attorney. I offer it as evidence that professions do discipline themselves, and a POST Board could, too.
https://www.fox21online.com/2020/09/11/former-carlton-county-attorney-thom-pertler-disbarred/
Steve,
By the other posts and replies to your posts, it’s obvious most if not all have no idea on what being a LPO means in terms of job stress, family stress etc. l’m nor have ever been a LPO but do try to acknowledge and maybe understand a bit those issues.
My biggest concern is the make-up and appointment to this board. It very much would need to be non-partisan so couldn’t come from the governor, as he has shown exactly the opposite. Maybe like jury selection, where a panel of judges get to question and vote on potential members? Or each “side” gets to appoint an equal number?
I do like this idea. I am a licensed engineer and the state board that investigates and passes discipline has a set of written rules and the punishment that goes with. While not gun carrying professionals, there is the potential to inflict harm on the general population. If you doubt this, just go back a few years and remember a famous bridge collapse in Minnesota.
Gerry,
I haven’t checked back for comments in a couple of days, sorry.
The devil is obviously in the details.
The POST Board, even after recent changes, is law enforcement dominated. I think it would need far more citizen involvement and oversight. Earlier comments suggest that the professions just look after their own. I don’t know that I agree with that — well, I don’t, really — but meaningful citizen participation would be a key to credibility of the Board with the public.