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HomeMy WebLinkAboutStaff Report 476-09TO: HONORABLE CITY COUNCIL ATTN: POLICY AND SERVICES COMMITTEE FROM: CITY MANAGER DEPARTMENT: CITY MANAGER'S OFFICE DATE: DECEMBER 17, 2009 CMR: 476:09 SUBJECT: Follow Up Information from November 30, 2009 Policy & Services Committee Meeting and Recommendation for Council Confirmation of Independent Police Auditor Contract Management Structure RECOMMENDATION Staff recommends that the Policy and Services Committee review additional information from staff regarding the contract management structure for the independent Police Auditor and recommend Council confirmation that the contract management for the Police Auditor remain with the City Manager. DISCUSSION On November 30, the Policy & Services Committee met to discuss a referral from the City Council to review the timelines in the Independent Police Auditor contract for sUbmitting reports to the Council. As part of that discussion, the Committee members discussed changing the responsibility for contract management from the City Manager to the City Auditor. The Committee voted 4-0 to have staff research the pros and cons of changing contract administration from the City Manager to the City Auditor and report results to the Committee by December 1 i h or as soon thereafter as possible. This report brings forth additional information regarding the possible implications of this change for the Committee's consideration. The primary responsibility of the Police Auditor is to consult with the City Manager and Police Chief on the conduct and disposition of citizen complaints against the Police Department and to report the findings of the Police Auditor with regard to these investigations. The citizen complaint investigations reviewed by the Police Auditor are personnel investigations and are mandated by Penal Code section 832.5. The City Manager is responsible for managing the investigations of personnel under his direct or indirect supervision. Under the City Charter, it is the sole responsibility of the City Manager to "examine, or cause to be examined, without notice, the official conduct of any officer, assistant, CMR:476:09 Page 1 of3 deputy, or employee in any of the departments of the city government, except of the councilor the officers appointed by it. " (Article IV, Section 6(0)) Personnel investigations of employees under the City Manager's control are the sole purview of the City Manager, and are not included in the responsibilities of the City Auditor. Further, pursuant to Penal Code sections 832.5 and 832.7, investigations of police officers are confidential. Absent a court order, these investigations may only be reviewed by Police Department management (which includes the City Manager, who is ultimately responsible for the management of the department). The Police Auditor is authorized to review the personnel investigations only in their role as an independent advisor to the City Manager and Police Chief. Absent the Police Auditor's reporting relationship with the City Manager, they would be precluded from reviewing the personnel investigations involving alleged police officer misconduct. As such, the current contract management structure for the Police Auditor is required so that the Auditor can perform the work for which they were hired. The other issue that was discussed at the November 30 Policy & Services Committee meeting was the Police Auditor report on the Police Department's policy, training, practices, and demographic profile data regarding racial profiling. Staff has discussed the status of this report with the Police Auditor. The Auditor anticipates submitting a report to the Council early in 2010 on this topic. RESOURCE IMPACT There are no resource impacts associated with the recommendations in this report. POLICY IMPLICATIONS This discussion is consistent with current City policies. ENVIRONMENTAL REVIEW This report is not a proj ect requiring review under the California Environmental Quality Act (CEQA). ATTACHMENTS Attachment A: Draft Excerpt from November 30, 2009 Policy & Services Committee minutes PREPARED BY: CMR:476:09 RIU Assistant to the City Manager Page 2 of3 CITY MANAGER APPROVAL: CMR:476:09 Page 3 of3 Attachment A POLICY AND SERVICES COMMITTEE EXCERPT FROM THE SPECIAL MEETING NOVEMBER 30, 2009 2. Referral from City Council to Review Implementation Practices for Independent Police Auditor Contract Assistant to the City Manager Kelly Morariu said that on November 2, 2009 the City Council received the independent Police Auditor's Annual Report for 2008. Council had a concern about the timeline and wanted Staff to have a conversation with the Policy & Services Committee regarding the timeline and implementation practices for the Police Auditor's contract. She pOinted out that the dates Staff recommended for the semi-annual reports were listed incorrectly in the Staff report. The period covering January 1, 2010 through June 30, 2010 would be reported to the City Manager by August 31, 2010. The period covering July 1, 2010 through December 3, 2010 would be reported to the City Manager by February 28, 2011. The City Manger would then forward the reports on to the City Council at the next available Council Meeting. The Police Auditor was delayed with the June 30, 2009 report and hopes to get that to Council in December. She also addressed Mr. Abraham's comments regarding racial profiling by saying that the follow up report was due to Council, and that Staff would check on the status. The next semi-annual report would be due in February 2010. Council Member Barton said the schedule was fine but that he was concerned that aIR and Gennaco have been slow and was concerned about the timing. Penalty components for not meeting the deadlines should be considered for the next contract revision. Chair Espinosa agreed that the late reports were a consistent issue. He said that realistic expectations need to be set for the Council. City Manager James Keene said Staff would get tests on this at the end of February. The second half of the fiscal year would be reported on in December and the first half would be done two months later. He said that if there was not the deadline performance on the first item in February, the City would be in a position to negotiate penalty components. . P&S: 091130 PS EXCERPT 1 Council Member Barton asked if the meetings with the Police Chief and the Police Auditor have been taking place on a quarterly basis as scheduled. Mr. Keene said they were not formalized but they would be. MOTION: Council Member Barton moved, seconded by Chair Espinosa, to recommend to Council the proposed reporting period and request the City Manager work with the Contractor in order to fulfill both the obligations and the schedule of the contract. Council Member Kishimoto said there was an inherent contradiction with the Police Auditor being hired by the City Council and reporting to the Chief. She thought the Police Auditor should report directly to the City Council and the Council would then report down to the City Manager and Police Chief. Mr. Keene said there was not mechanism in place for the Council to manage the contract. Council Member Kishimoto recommended the City Auditor manage the contract in order to avoid a perception of conflict. Mr. Keene said he wanted to make sure that recommendation was allowed by the City Charter. Council Member Kishimoto asked Mr. Keene to clarify if he thought it was against the City Charter for the City Auditor to manage the Police Auditor contract. Mr. Keene said executive and legislative functions were invested in the Council. The City Manager's job was to carry out the Executive function of the Council as accountable to the Council. The City Manager "function was to manage the contract but not the content of the Police Auditor's report, which would go straight to Council with no editing or filtering by the City Manager. Council Member Kishimoto stated that the Police Chief reported to the City Manager. Chair Espinosa said the issue was not just overseeing the implementation of the contract, but the point of the contract was to have an independent Auditor role, which was much more aligned with audit work. Mr. Keene said it was similar to an out-of-house Auditor. P&s: 091130 PS EXCERPT 2 Council Member Kishimoto asked if the City Auditor managed other external Auditor contracts. City Auditor Lynda Brouchoud said that, according to the City Charter, the City Auditor manages external financial audit contracts. She asked if the City Clerk's Office was supposed to manage the Police Auditor Contract. Chair Espinosa stated it was a member of the public that made that suggestion. Council Member Barton said that he thought a previous motion changed the Police Auditor's reporting structure. He said the job description in the Staff Report was not the current one. Mr. Keene stated that he wasn't sure if the contract that was executed actually aligned with Council direction. Ms. Morariu said that the most recent contract did change the reporting relationship to reflect the Police Auditor reports to the City Council but that the contract was managed by the City Manager. Mr. Keene reiterated that the Police Auditor reports to the City Council with the City Manager forwarding reports to the Council. The Police Chief has been removed from the process. Council Member Kishimoto pOinted out that the Staff Report states that the Police Chief and City Manager meet on a quarterly basis; it should be semi annual. Ms. Morariu stated that had been changed in the contract. Council Member Kishimoto said the report should also state the Police Auditor meets with the City Manager and Police Chief at least twice a year and formally meets with the City Council once a year. Chair Espinosa clarified that they were reducing the number of formal meetings. Council Member Kishimoto agreed Staff was trying to make it more realistic. Council Member Barton said there wasn't much point in meeting quarterly with the City Manager if the report comes out twice a year. Chair Espinosa thought the quarterly meetings were halfway in between reporting periods. P&S: 091130 PS EXCERPT 3 Mr. Keene said meetings have been happening, but wanted to know if a quarterly basis was needed. Council Member Kishimoto said quarterly makes sense. Mr. Keene said the updates were a way to ask the Police Auditor, separate from the report, if there were some trends or information the Council should be alerted to. He added that if there were a serious trend, the Police Auditor would not wait for the reporting date to notify Council. Council Member Kishimoto reiterated they would meet at least twice a year, and restated her opinion that the City Auditor should manage the contract for the Police Auditor. Chair Espinosa said the only subject that would need to be changed in the contract and with a motion would be if there was a change in reporting from the City Manager and City Council to the City Auditor. Council Member Kishimoto said the City Auditor would only be managing the contract. Council Member Barton clarified that Council Member Kishimoto was suggesting the Police Auditor still report to Council but that the contract should be managed by the City Auditor. He stated that he was not in favor of Council Member Kishimoto's suggestion and would not support it being incorporated into his motion. He stated that the City Managers office was set up to manage the contract and get Council the information in a way the City Auditor wasn't. He said the potential for conflict of interest was so small, the shifting of the duties to another office was more trouble than it was worth. SUBSTITUTE MOTION: Council Member Kishimoto moved, seconded by Council Member Yeh that the implementation practices for the Independent Police Auditor Contract be changed to have the Police Auditor report directly to Council, with the City Auditor's Office administering and managing the contract. Council Member Kishimoto said she had full faith in the City Manager. Her motion was intended, she said, to address public perception. The City Auditor already managed other external audit contracts so it would not be difficult for the office to absorb. Council Member Yeh asked if having City Manager responses attached to the performance audit was something Staff was planning to do. P&s: 091130 PS EXCERPT 4 Mr. Keene said the Council's direction was to give the reports immediately to them. He said that, if there were issues, Council could ask him to respond. Council Member Yeh said that he seconded the motion because public perception was important, and that it was also important to hear management's response. He stated that it needs to be a constructive process. He suggested a conversation with the Police Auditor to determine the best way to integrate management comments into the report. Mr. Keene agreed there was a perception issue. He then stated the basic form of Palo Alto's Government was for the Council to delegate issues to the City Manager. The City Manager was then held accountable to perform. He said it made sense for the Financial Audit to go to the City Auditor. But he warned that sending the Police Audit to the City Auditor would set precedence for other work to go to the City Auditor instead of the City Manager. He stated that his job description became unclear at that point. While the Police Auditor may be just one issue, it would raise questions about what work the Council wanted to maintain for themselves and what work they would delegate to the City Manager or any of the Council Appointed Officers. He stated that he would like to have more time for everyone to think through the implications of the suggested changes as they affect the form of government in Palo Alto. Council Member Yeh asked if Ms. Brouchoud was familiar with the process in San Jose as they also have an independent Police Auditor. Ms. Brouchoud said the Police Auditor in San Jose was a Council Appointed Officer, separate from the City Auditor. She stated the City Auditor's office was flexible in considering taking on the Police Auditor contract management, though it may not follow the same rules as other audits do. Chair Espinosa asked if it would be better to revisit this issue at the next meeting, giving Staff time to research the implications. He added that he tends to be in favor of the motion but has concerns about moving forward without any needed research. Mr. Keene added that he was convinced this was form over function and reiterated that with the current process he was only relaying a report from the Police Auditor to the Council. If it needed to be rerouted, it would be problematic for the role of the City Manager and the structure of the government. There were many ways to organize this type of contract, but there should not be a situation where over time the Council has a large number of Contracts they were administering all over the organization with the City Auditor managing the contracts. He asked what accountability the City Manager would have in that scenario. The Charter states that the City Manager was responsible P&s: 091130 PS EXCERPT 5 was responsible for the day-to-day operations, which included contract administration. He said a larger discussion may be called for. A member of the public suggested a fifth CAD, which was what this was close to being. Council Member Barton stated that he agreed with Mr. Keene. The City Manager manages contracts for union negotiations even if there was a conflict with the people he supervises that may be affected by those negotiations; they get a raise, and he gets a raise. He in effect manages the other CAD contracts through Human Resources. Perhaps a fifth party was needed to handle those contracts to make sure there was no conflict. He stated that the change was unwarranted and set a bad precedent. Chair Espinosa said he was not convinced Council Member Barton's argument was accurate as the issue was about contracts not negotiations. But that it was form over substance. The perception was there. He asked if the City Manager would be able to look into this prior to the next Policy & Services meeting or would it have to be the January meeting. Ms. Morariu said there was typically no January meeting so it would be February. Chair Espinosa asked about the 12/17/09 meeting. Ms. Morariu said there were four items on 12/17/09 already. Chair Espinosa said that was a packed agenda, but it's more important to determine if Staff would be able to come back with feedback and a report by then. Ms. Brouchoud stated she would like to know more about the history of the Police Auditor Contract and how it was structured. Ms. Morariu said it may not need to be a written report. Mr. Keene said the substitute motion as stated may conflict with the Charter. Council Member Barton asked if there was any time where there was a reason to question, in the three years since there has been a Police Auditor, if the City Manager's Office has played a biased role in relation to the Police Auditor. Council Member Kishimoto said that in the last ten years there has been reason to question it. P&s: 091130 PS EXCERPT 6 Council Member Barton stated that there has only been a Police Auditor for three years. Mr. Keene reminded the Committee that Palo Alto's structure was defined by the Charter. Council Member Kishimoto asked if Mr. Keene thought the contract as it existed might be illegal. Mr. Keene said he didn't think the contract was illegal, because the Police Auditor was not technically a CAG. If the Committee had suggested the City Auditor become the Police Auditor, he would have supported that. It's the contract administration movement that he doesn't support as it redirects the divisional responsibilities as defined in the City Charter. Chair Espinosa asked Council Member Kishimoto if she wanted to retract her motion. Council Member Kishimoto said she didn't expect this to be an issue and was trying to respect the emotional nature of the police issues. Perception was an important component to earning the public's trust. She reiterated that she had complete trust in the current City Manager, but was still concerned about perception. Mr. Keene said that another way to look at it was that they were not asking the City Auditor to perform an audit. They would be asking her to manage a contract on behalf of Council. This was similar to the independent Financial Audit as it already existed. He asked the City Auditor how that process was developed. Ms. Brouchoud said it was called out in the Charter. Mr. Keene said the Charter defines these roles. Council Member Kishimoto said that this was a Police Auditor issue and asked if Mr. Keene thought this should be in the Charter. Mr. Keene said that for now his argument was that the Charter defines the City Manager's role in this. If the Council decided to move purchasing functions to the City Auditor, it would be an issue. Council Member Kishimoto pOinted out that she was discussing an Auditor function moving to the City Auditor. P&S: 091130 PS EXCERPT 7 Mr. Keene said that it was called an Auditor, but it was really contract management. Council Member Yeh reiterated that this was an internal control issue, not a comment on anyone's abilities. Auditors look at risk and identify potential abuses. If, for example, the current reporting delay had been an intentional eight month delay, the Council would have no way of understanding this was happening. It's more to highlight that there were risks inherent with this operational plan. He said that whether this Police Auditor report was flowing through the correct channels must be examined. Because of the independent nature of the City Auditor's office, it makes sense for the Police Audit or contract management to be there. He agreed with the City Manager about contract management, but said this was different because it has an added level of sensitivity. Chair Espinosa asked if Council Member Kishimoto would be willing to let Staff look into this issue. He said he could see both sides. Mr. Keene said that they would if they can. Chair Espinosa said they would need a substitute motion and then they would come back to the original motion. Council Member Barton it shouldn't be a substitute. It was an amendment. Council Member Kishimoto asked if the small language changes from the Staff Report should be added to the motion. Ms. Morariu said it's the discretion of the Committee whether or not to change the timing of the reports. Chair Espinosa said they need to know the actual language in the contract first. Council Member Kishimoto said they should adopt a schedule now. Ms. Morariu said the Scope of Services stated they would meet with the Manager and Police Chief on a quarterly basis, produce two semi annual reports and hold meetings with the Council to discuss those reports. AMENDMENT TO SUBSTITUTE MOTION: Council Member Kishimoto moved, seconded by Council Member Yeh, to direct Staff to research the pros and cons of changing contract administration from the City Manager to the City Auditor and report results to the Committee by December 17th or as soon thereafter as possible. P&S: 091130 PS EXCERPT 8 SUBSTITUTE MOTION PASSED: 3-1, Barton no Chair Espinosa asked what the process was regarding HRC and public discussion. Mr. Keene said it's a contract for the Council so they would direct it to go to the HRC or where they chose. Chair Espinosa asked if Mr. Abraham met with the Police Auditor as a private citizen because he has a wealth of knowledge and research history that could be integrated into the Committee's learning's. Ms. Morariu said it was not coordinated through the City Manager's Office. Council Member Kishimoto asked where the racial profiling statistics report was. Ms. Morariu said Staff was going to research that and report back to the Committee and Council. Council Member Kishimoto asked if it was part of the Police Auditor's job description to work on the racial profiling. Mr. Keene said that was part of the response from the racial profiling incident in the fall of 2008. Council Member Kishimoto clarified that, for that one incident, the Police Auditor was involved, but otherwise that's not part of the job description. She said that it should be something they would look at. Mr. Keene said Staff would report back. Council Member Kishimoto said it shouldn't even need to be called out and it may not be called out to make a specific report about racial profiling. Council Member Barton said the main component Police Auditor's job description was to review citizen complaints. He suggested that could be added at some pOint, but currently that report was the focus. Ms. Morariu recalled that Council direction was not about the data itself, but more directed toward the policies and procedures related to racial profiling. Mr. Keene said that the current Police Auditor may not have the capacity for this level of detailed analysis regarding racial profiling data. P&S: 091130 PS EXCERPT 9 Chair Espinosa said that the specific language was complaint driven data rather than analyzing general trends. Council Member Kishimoto said that it does call out analyzing trends in the current scope. Chair Espinosa said it calls out analyzing trends of complaints not broader statistical data. Council Member Kishimoto said she assumed that the Police Auditor looked at that. She asked if language should be added to include racial profiling data. Chair Espinosa said it was a substantial change in the content of the contract. Council Member Kishimoto said she wasn't expecting a detailed report, but the information should be understood and it's part of why a Police Auditor was needed. Mr. Keene said that if the committee would like to direct Staff to report on the Scope of Services for the Police Auditor, they will. If amendments were needed, Staff would be happy to do that. Chair Espinosa said that additional work would cost more, and he wanted to make sure the conversation wasn't dropped. It was important to know what they were doing and what they were not doing. MOTION RESTATED: Council Member Barton moved, seconded by Chair Espinosa, to recommend to Council that the reporting period, as outlined in the Staff Report was accepted and to request the City Manager work with the Police Auditor to understand timelines and implications of the contract. Motion passed: 4-0 P&S: 091130 PS EXCERPT 10