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12/16/2020 - Ordinance No. 20-11046 Adoptiong New Article IV, Chapter 30 of the Salina Code pertaining to the Establishment and Operation of the Law Enforcement Citizen Review Board

ORDINANCE NUMBER 20-11046

 

AN ORDINANCE ADOPTING NEW ARTICLE IV, CHAPTER 30 OF THE SALINA CODE PERTAINING TO THE ESTABLISHMENT AND OPERATION OF THE LAW ENFORCEMENT CITIZEN REVIEW BOARD.

BE IT ORDAINED by the Governing Body of Salina, Kansas:

Section 1.  New Article. The Salina Code is amended by adding Article IV, Chapter 30 to be numbered Sec. 30- 80 through 30-95, which article reads as follows:

 

Article IV.  Law Enforcement Citizen Review Board

Sec. 30-80.  Definitions.

            As used in this article, unless the context clearly requires otherwise, the following words and phrases shall have the meanings ascribed to them in this section:

            Adult means a person who has attained the age of eighteen (18) years.

           Board means the citizen review board established under this article.

            Chief of police means the highest ranking police officer and administrative head of the police department as appointed and supervised by the city manager.

            Citizen of the United States means a person born or naturalized in the United States, and subject to the jurisdiction thereof.

            Exonerated means that the act which provided the basis for the complaint or allegation occurred; however, the investigation revealed that the act was justified, lawful and proper.

            Immediate family member means spouse, parent, child, or sibling; but does not include (a) sibling as denoted by the prefix half, (b) parent, child, or sibling as denoted by the prefix step, (c) foster child (d) any parent or child of a preceding or subsequent generation as denoted by the prefix of grand or great, or (e) parent, child or sibling related by marriage as denoted by the suffix of in-law.

            Internal affairs unit means the internal affairs unit of the police department.

            Not sustained means the investigation failed to disclose sufficient evidence to clearly prove the allegation made in the complaint or to conclusively disprove such allegation.

            Police department means the department of the city responsible for the prevention or detection of crime and the enforcement of the criminal or traffic laws of the state and the city.

            Police officer means an employee of the city and member of the police department whose duties include the prevention or detection of crime and the enforcement of the criminal or traffic laws of the state and the city.  

           Sustained means the investigation disclosed sufficient evidence to clearly prove the allegation made in the complaint.

           Sustained against policy means the investigation revealed a faulty policy and/or procedure.

           Unfounded means the investigation conclusively proved that the act complained of did not occur.  This finding also applies when an individual employee named in the complaint was not involved in the act which may have occurred.

Sec. 30-81.  Establishment of the citizen review board.  

By authority of the home rule powers granted to cities by the Kansas Constitution, there is established the law enforcement citizen review board (the “board”).  The board shall also serve as a community advisory board pursuant to K.S.A. 22-4611b, and amendments thereto, and as a training advisory board pursuant to K.S.A. 22-4610(c)(2)(B), and amendments thereto.

Sec. 30-82.  Role and Responsibilities. 

The roles and responsibilities of the board are to:

  1. Advise and assist the police department in policy development related to racial or other biased-based policing by police officers and the police department pursuant to K.S.A. 22-4610(c)(3)(A), and amendments thereto;
  2. Promote, advocate, and educate citizens about the existence and purpose of the board;
  3. Assist the city manager, the chief of police, and the city commission in the development of a racial or other biased-based policing comprehensive plan pursuant to K.S.A. 22-4611a, and amendments thereto;
  4. Provide recommendations resulting from board-initiated review of police department policies other than those policies addressing topics such as intelligence information, tactical plans, and resource deployment which are exempt from public disclosure under the Kansas open records act; and
  5. Review and advise the chief of police as to whether preliminary administrative determinations of the pre-disciplinary status of all complaints of (a) excessive use of force and/or (b) racial or other biased-based policing by police officers are supported by substantial competent evidence.

Sec. 30-83.  Membership.

The board shall be appointed by the mayor with the consent of the governing body.  The board shall consist of nine (9) members who (a) meet the qualifications for appointment to the board set forth in section 30-84; (b) are not disqualified from appointment to the board or ongoing participation as a member of the board based upon any of the criteria set forth in section 30-85; (c) meet the preconditions of acceptance of appointment to the board set forth in section 30-86; and (d) reflect the racial and ethnic diversity of the city of Salina without limitation based upon comparison with local demographics, including:

  1. One (1) current member of the human relations commission nominated by the human relations commission from among its members whose term on the human relations commission will remain in effect for the duration of the term on the board;
  2. One (1) current member of the police department with (i) three (3) years of experience as a member of the police department and (ii) the current rank of either police officer or police sergeant; and
  3. Seven (7) persons who have demonstrated interest or experience in police and/or community relations.

Sec. 30-84.  Qualifications for appointment to the board.

            To qualify for appointment to the board, a person must be:

  1. An adult;
  2. A resident of the city; and
  3. A citizen of the United States.

Sec. 30-85.  Disqualifying criteria for appointment and continued service on the board.

Any person shall be disqualified from appointment to the board, and from continued service following appointment to the board, if the person is:

  1. Currently an employee of the city (with the exception of the current member of the police department to be appointed to the board pursuant to sec. 30-83);
  2. An immediate family member of a current employee of the city;
  3. An immediate family member of a current member of the city commission;
  4. An immediate family member of a current law enforcement officer in any jurisdiction;
  5. Currently subject to pending criminal charges in any local, state, or federal jurisdiction or court of law;
  6. Currently on probation, parole, or participating in a diversion or deferred judgment agreement for any misdemeanor convictions for the following offenses:
    1. Possession of controlled substances;
    2. Battery or resistance of a law enforcement officer;
    3. Crimes of dishonesty or false statements;
    4. Crimes of moral turpitude, which include charges of prostitution, patronizing a prostitute, promoting prostitution, sale of sexual relations, buying sexual relations, soliciting for immoral purposes, indecent exposure, lewd and lascivious behavior, sodomy, promoting sodomy for hire, patronizing a person offering sodomy for hire, sexual battery, loitering for the purposes of solicitation, indecent liberties with a child, incest, adultery, bigamy, promoting obscenity, promoting obscenity to minors, displaying material harmful to minors, and possession, sale or distribution of any illegal drug.
  7. Registered as a sex offender with any state, county, or local government;
  8. Convicted of a felony or a misdemeanor domestic battery offense as defined by section 3.1.1 of the Uniform Public Offense Code as incorporated by reference under section 25-1 of the Salina Code;
  9. A party or representative of a party making a claim against the city for any action or inaction of an employee of the city; or
  10. Currently a law enforcement officer in any jurisdiction (with the exception of the current member of the police department to be appointed to the board pursuant to sec. 30-83).

It shall be the duty of any board member whose post-appointment status meets any of the disqualifying criteria to resign from the board, with or without disclosing the reason for disqualification.  If a board member meets any of the disqualifying criteria but does not resign, the board member shall be dismissed from the board by the mayor.

Sec. 30-86.  Preconditions of acceptance of appointment.

            As preconditions of acceptance of appointment to the board, a candidate for appointment must:

  1. Consent to and undergo a criminal background check in order to confirm the candidate’s qualification for appointment; and
  2. Enter into an agreement to maintain the confidentiality of all confidential information received in the course of participating as a board member in the review of complaints of excessive use of force and/or racial or other biased-based policing by a police officer.

Sec. 30-87.  Requirements and recommendations upon appointment.

  1. Upon appointment to the board, a board member shall:
    1. Complete board orientation and training pursuant to city policy; and
    2. Complete training on fair and impartial policing and comprehensive plans for law enforcement agencies in accordance with K.S.A. 22-4610(c)(3)(B), and amendments thereto, within one (1) year of appointment.
  2. Upon appointment to the board, a board member is highly encouraged to enroll in and complete the ten (10)-week, forty (40)-hour citizens’ police academy offered by the sheriff’s department and the police department within the second available police academy session beginning after the board member’s appointment;

Sec. 30-88.  Terms.

Those persons first appointed to the board shall be appointed for the following terms:

  1. Three (3) members for a term of one (1) year, including the member of the human relations commission;
  2. Three (3) members for a term of two (2) years; and
  3. Three (3) members for a term of three (3) years.

Upon the expiration of the term of each board member, subsequent terms shall be for a period of three (3) years, with the exception of the member of the human relations commission who shall be appointed annually for term of one (1) year.  Any vacancy occurring among the membership of the board shall be filled by appointment of the mayor with the consent of the governing body.

Sec. 30-89.  Meetings; Quorum.

The board shall meet as needed, particularly as may be necessary to expedite its review of complaints of excessive use of force and/or racial or other biased-based policing by police officers, but no less than quarterly.  A simple majority of the members of the board appointed and qualified at any given time shall constitute a quorum for the purpose of conducting the business of the board.

Sec. 30-90. Staff liaison.

The city manager shall designate a staff liaison to assist the board.  The staff liaison to the board shall be designated from among the members of the city manager’s executive staff other than the chief of police.  

Sec. 30-91.  Complaints relating to the conduct of police officers.

The police department shall maintain systems by which persons may file complaints relating to the conduct of police officers through the internal affairs unit of the police department.  Board members may also receive complaints relating to the conduct of police officers and shall report them to the staff liaison.  The staff liaison shall report and monitor any complaints received from board members to the internal affairs unit for investigation.  Board members may receive and communicate anonymous complaints to the staff liaison, recognizing, however, that the ability of the internal affairs unit to investigate anonymous complaints may be inherently limited.

Sec. 30-92.  Board recommendations. 

When fulfilling its roles and responsibilities as described in section 30-82(1 – 3), any recommendations of the board shall be those as approved by a majority vote of a quorum of the board.

Sec. 30-93.  Advisory recommendations regarding complaints of excessive force and/or racial or other biased-based policing.

When fulfilling its role and responsibility as described in section 30-82(4), all preliminary administrative determinations by the chief of police regarding the pre-disciplinary status of complaints of excessive use of force and/or racial or other biased-based policing by police officers shall be reviewed by the board for the purpose of providing its advisory recommendation to the chief of police pursuant to the following process and standard of review:

  1. The conduct of any police officer(s) against whom any such complaints are made shall be investigated by the internal affairs unit and an investigative report prepared.The investigative report shall be regarded as a confidential record pertaining to an employee or employees of the city.
  2. The chief of police shall consider the investigative report prepared by the internal affairs unit and prepare a written preliminary administrative determination of the status of the complaint as:
    1. Unfounded;
    2. Exonerated;
    3. Not sustained;
    4. Sustained; or
    5. Sustained against policy;

    including a statement of findings and conclusions with reference to the evidence upon which those findings and conclusions are based.  The preliminary administrative determination of the status of the complaint shall be regarded as a confidential record pertaining to an employee or employees of the city.

  3. The chief of police shall inform the staff liaison of the anticipated date of completion of the investigative report and his or her preliminary administrative determination of the status of the complaint as soon as that date can be reasonably ascertained.The staff liaison shall then consult with the board chair, board members, and the chief of police to the extent necessary to schedule the board’s expedited review of the police chief’s preliminary administrative determination of the status of the complaint as an agenda item for either a regular or special meeting of the board.
  4. The agenda of the meeting of the board at which the preliminary administrative determination of the status of the complaint is to be considered will describe the agenda item without identifying either the complainant(s) or the police officer(s) against whom the complaint has been made.When considering the agenda item, the board shall recess into executive session upon a motion made, seconded, and passed, based upon the need to discuss personnel matters of non-elected personnel, for the purpose of deliberating upon the subject of whether the preliminary administrative determination of the status of the complaint by the chief of police is supported by substantial competent evidence.The staff liaison and the chief of police shall participate in the executive session as informational resources, along with any other persons the board chooses to invite to participate as informational or advisory resources relevant to its deliberations.During the executive session, the board will be presented with the confidential investigative report prepared by the internal affairs unit, the confidential preliminary administrative determination of the status of the complaint prepared by the chief of police, and any other information considered by the chief of police in preparing the preliminary administrative determination of the status of the complaint. During the board’s deliberations in the executive session, board members may ask questions and request any other information relevant to the board’s consideration of whether the preliminary administrative determination of the status of the complaint is supported by substantial competent evidence.Upon completion of its executive session or sessions, the board shall take public action by a majority vote of a quorum of the board, without identifying either the complainant(s) or the police officer(s) against whom the complaint has been made, advising the chief of police that the board:
    1. Makes its advisory determination that the preliminary administrative determination of the status of the complaint is supported by substantial competent evidence;
    2. Makes its advisory determination that the preliminary administrative determination of the status of the complaint is not supported by substantial competent evidence;
    3. Postpones its advisory determination pending its review of additional information relevant to the board’s consideration of whether the preliminary administrative determination of the status of the complaint is supported by substantial competent evidence in a subsequent executive session; or
    4. Makes no advisory determination.

    In the event of a tie vote of the board, the advisory determination by the board shall be deemed to be “not sustained.”

  5. After taking into consideration the advisory determination by the board, the chief of police, in consultation with the city manager and staff liaison, shall determine and document the final administrative determination of the status of the complaint. The documentation of the final administrative determination shall be regarded as a confidential record pertaining to an employee or employees of the city. The board shall be advised of the final disposition of the complaint at the next following meeting of the board. The police officer(s) against whom the complaint was made shall be advised of the status of the complaint.The staff liaison shall by separate letter advise the complainant(s) of the of the final disposition of the complaint by the city.

     

  6. If the final administrative determination of the status of a complaint is that the complaint is either sustained or sustained against policy, the chief of police shall take appropriate corrective measures.Nothing in this section, however, shall affect the rights of a police officer to either grieve or appeal a disciplinary action, as applicable, in accordance with the policies and procedures of the city’s personnel manual.

Sec. 30-94.  Confidentiality.

A board member shall neither disclose nor use confidential information received in the course of participating as a board member in the review of complaints of excessive use of force and/or racial or other biased-based policing by a police officer.

 

Sec. 30-95.  Procedural guidelines.
The board may adopt additional procedural guidelines in accordance with general city policy relating to volunteer citizen boards.

 

Sections 30-96 through 30-100.  (Reserved).

Section 2.  Effective.  This ordinance shall be in full force and effect from and after its adoption and publication once in the official city newspaper by the following summary:

 

Ordinance No. 20-11046 Summary

On December 14, 2020, the City Commission passed Ordinance No. 20-11046.  The Ordinance adopts new Article IV, Chapter 30 of the Salina Code pertaining to the establishment and operation of the law enforcement citizen review board.  The ordinance describes the roles and responsibilities of the citizen review board, including to review and advise the chief of police as to whether preliminary administrative determinations of the status of all complaints of (a) excessive use of force and/or (b) racial or other biased-based policing by police officers are supported by substantial competent evidence and describes the process by which that review will occur.  A complete copy of the Ordinance can be found at www.salina-ks.gov or in the office of the City Clerk, 300 W. Ash, free of charge.  This summary is certified by the City’s legal counsel.

 

                                                                                    Introduced:      December 7, 2020

                                                                                    Passed:             December 14, 2020

 

                                                                                    ___________________________________

                                                                                     Michael L. Hoppock, Mayor

 

[SEAL]

 

ATTEST:

______________________________

Shandi Wicks, CMC, City Clerk

The publication summary set forth above is certified this ____ day of December 2020.

_______________________________

Greg A. Bengtson, City Attorney