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Madison police oversight measures may ‘encroach’ on Police and Fire Commission, attorney says
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Madison police oversight measures may ‘encroach’ on Police and Fire Commission, attorney says

From the Pain and protest: Madison responds to the police killing of George Floyd series
Protest photo, standoff with police

Madison police and Wisconsin State Patrol officers stand off with protesters at the top of State Street May 30. Two police oversight measures being considered by the city of Madison may conflict with some powers of the Police and Fire Commission, the commission's attorney says. 

Two proposed measures that would give the community more control over the Madison Police Department are facing scrutiny because of potential overlap with an existing committee.

Jenna Rousseau, attorney for the Madison Police and Fire Commission (PFC), said in a Friday letter to the Madison city attorney that some of the language for the proposed police monitor position and civilian oversight board may “conflict with” or “encroach upon” the authority of the commission. Rousseau said Monday that she wanted to “bring up these issues now so we can deal with them.”

The City Council is set to decide Tuesday on whether to create a work group to draft ordinances for the police monitor position and oversight board, with that work expected to be completed by Aug. 4.

Council members have pushed for urgent action on the police oversight measures in the wake of nationwide protests for police reform after the May 25 officer-involved death of George Floyd in Minneapolis.

Ald. Rebecca Kemble, 18th District, who would be a member of the work group, said Rousseau’s concerns about encroachment do not need to be sorted out before Tuesday’s vote because the work group will refine the language of the proposals to make sure there aren’t any conflicts.

But Kemble also noted that she thinks Rousseau “misunderstands” what the measures would do.

“The proposal is not to give the independent monitor or the civilian oversight board any of the authority that the PFC has,” Kemble said.

In her letter, Rousseau argues that some powers the civilian oversight board would have — including the ability to recommend changes to the police department’s policies on hiring, disciplining officers or the chief, and citizen complaints against the department — have the potential to encroach on the statutory authority of the PFC.

The Police and Fire Commission is in charge of hiring, firing, promoting and disciplining officers.

Rousseau did not go into as much detail about the potential conflicts with the police monitor position, but said it “seems likely” that the monitor’s responsibilities would overlap with the PFC’s, particularly in the area of disciplining officers.

Boundaries noted

But UW-Madison law professor Keith Findley said both the monitor and civilian board would only have the power to make recommendations. The ultimate decision-making authority on hiring and discipline would still lie with the PFC.

“The power of the independent monitor and board is its ability to expansively bring a high level of oversight or scrutiny to police policies and decision making,” Findley said. “But not in a way that usurps the authority of the decision makers.”

Findley is also a former member of the PFC and former co-chair of the Madison Police Department Policy and Procedure Review Ad Hoc Committee — the group that recommended the monitor and civilian board after reviewing Madison police’s policies for more than four years.

The goal of the monitor and board, Findley said, is to support the PFC’s work by giving them greater access to information when considering whether to hire, fire or discipline an officer.

During his time on the PFC, Findley said it was hard for residents with legitimate complaints against the police department or an officer to gather facts and present them in a cohesive way. The board and monitor could “help fix that” by providing guidance to citizens, Findley said.

Working together

Findley said the board and monitor could also “bring public scrutiny” to problems that don’t end up resulting in disciplinary action — an important role that doesn’t impede the PFC’s powers.

“That’s what we need in order to develop the kind of trust, and repair damaged relationships with some of the communities that are hurting so badly right now,” Findley said.

Rousseau said Findley’s point that the monitor and board would only have the power to make recommendations was “well taken.” She said she’d be happy to work with him or City Council members to clarify the proposals so encroachment is not an issue.

Even if there is some overlap between the PFC, the monitor and the civilian board, Rousseau said she thinks it is possible for them to “co-exist.”

Controversy lingers

But there’s still disagreement over exactly how much power the monitor and board should have.

There has been friction at recent city meetings over whether the police monitor should be able to subpoena the police department, conduct independent investigations or call for outside investigations if the department’s internal reviews are deemed insufficient. An initial draft of the position description from the mayor’s office did not include those powers.

Mayor Satya Rhodes-Conway said in a Monday email to council members that she is withdrawing that draft position description. Some had criticized Rhodes-Conway for taking powers away from the monitor.

Last week, the city’s Finance Committee delayed a decision on recommending the creation of the monitor because of the disagreements.

Ald. Paul Skidmore, 9th District, the police department’s most outspoken supporter on the council, said he would not support a monitor with subpoena power. Rhodes-Conway has said that power should lie with the civilian board because “you don’t vest subpoena power into a person; you vest it into a body.”

Skidmore said he is also against the monitor advising people on how to file complaints against the police department. “I don’t think the city should be enabling and encouraging people to do that at the city’s expense,” he said.

Skidmore said both the civilian board and the monitor would be “biased against the police.”

Rhodes-Conway told council members that she is “ready to work with you to create a strong and independent police auditor, and a strong and independent civilian police oversight body.”

Photos: Day 10 of protests ends with 'defund police' painted on street

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