An idea that began nearly three years ago with an exhaustive report on the Madison Police Department could come to fruition Tuesday night with the City Council poised to create a half-million-dollar office to oversee the city’s police force.
The Office of the Independent Monitor and Civilian Oversight Board would not have the power to hire, fire or discipline police — tasks reserved under state law for the city’s Police and Fire Commission. Nor would it be entitled to participate in the official investigations of officer-involved deaths — which under state law must be conducted by outside law enforcement agencies.
Nonetheless, years after the killing of Black 19-year-old Tony Robinson and a handful of other high-profile fatal police shootings in Madison, the new oversight structure would be able to conduct independent investigations of Madison police, make referrals to the PFC, prepare an annual report on the city’s police chief and conduct community outreach on police matters.
Both the monitor and the board would have subpoena power, although it’s unclear, according to the city attorney, to what extent it could be exercised. It would also have the power to use city tax dollars to pay for attorneys to represent complainants before the PFC. The board would hire and oversee the monitor, which like the police and fire chiefs and library system director would not report to the mayor’s office.
“The model they are proposing appears to have many of the effective practices that we support in general,” said Liana Perez, director of operations for the National Association for Civilian Oversight of Law Enforcement. However, most independent police monitors and civilian oversight boards elsewhere in the country don’t have subpoena power, she said, and was aware of none that provided attorneys for complainants.
The 11-member board would be appointed by the mayor and City Council from nominations for nine of the positions made by a rotating list of community groups, which initially would include Freedom Inc., the county’s NAACP chapter and YWCA Madison. The proposed ordinance creating the board requires that it have members from minority communities and members with experience in mental health, youth advocacy and substance abuse. At least one member is required to have an arrest or conviction record.
Under a separate recommendation from the ad hoc committee that wrote the ordinance creating the oversight structure, half of the board’s members would be required to be Black.
Provisions in the ordinance prohibit the monitor from having been an employee of the Madison Police Department, and no members of the Civilian Oversight Board “shall have ever been employed by the MPD, be an immediate family member of current or former MPD employees, or worked as a law enforcement officer within the State of Wisconsin in the 10 years prior to becoming a Member of the Board.”
The monitor and board largely failed to get the recommendation of the council’s Executive Committee on Friday. It deadlocked 3-3 on three measures to create and fund the board and monitor position, but voted for an estimated $125,000 salary for the monitor.
Ald. Barbara Harrington-McKinney, 1st District, said she supports police reform and having an independent monitor, but voted against the proposal because she objected to efforts by community activists to pressure the council to adopt the proposal without making any changes.
“When you tell me that I cannot ask questions, that I must accept this as written, when there are absolutely questions that arise for me, it makes me a feel a bit uncomfortable,” she said.
In an Aug. 21 memo, city attorney Michael Haas also raised legal questions about the effort, including whether the monitor and board could enforce subpoenas issued to public employees protected under federal and state law, and whether investigations conducted by the monitor’s office could inadvertently jeopardize disciplinary actions against or criminal investigations of officers “by inviting a procedural challenge.”
He also writes there “may be some legal, liability and ethical considerations” related to the monitor helping people find and pay for attorneys to represent complainants before the PFC, including “that an attorney appearing before the PFC may also file a lawsuit against the City, resulting in the city effectively paying an attorney in preparing to sue the city.”
Haas says his office received several questions about whether the city could specify that board members come from specific racial groups, and notes case law prohibiting “racial quotas” in educational and employment opportunities.
But he also said there are differences between the board and educational and employment opportunities and that “similar provisions are included in ordinances of other communities.”
In the wake of Robinson’s death, the city paid a consultant $372,000 to produce a 258-page report on Madison police. Released in December 2017, it declared the department “far from ‘a Department in crisis,’ “ and its use of force “limited in volume and primarily minor in nature” but also made 146 recommendations, including the independent monitor position and oversight board.
A separate citizens committee spent more than four years reviewing police practices and the consultant’s report and coming up with its own 177 recommendations, with the creation of the monitor and oversight board the most important.
Madison police have earned national recognition over the years for their problem-oriented policing approach and other initiatives, and Madison officers are also more racially and ethnically representative of the community they serve than many other departments, with female officers making up about double the percentage of female officers in departments nationally.