Chapter 3: Attempts by the West Virginia House of Delegates and the Cities of Bluefield and Charleston to Reform Existing Police Officer Review and Disciplinary Structure

Coping with Police Misconduct in West Virginia: Citizen Involvement in Officer Disciplinary Procedures

Attempts by the West Virginia House of Delegates and the Cities of Bluefield and Charleston to Reform Existing Police Officer Review and Disciplinary Structure

Faced with continuing instances of police misconduct or brutality, civil rights advocates, legislators, and citizens often express their desire to see different methods of police discipline. Some express their wish that an independent entity, such as a review board composed of citizen appointees, examine each allegation of misconduct and recommend discipline for offending officers. Reflecting this public sentiment, the West Virginia House of Delegates made attempts to enact review boards virtually every year since 1998.[1] All were designed to create a state police review board to hear complaints against state police personnel and provide for the disposition of citizen complaints. Each time, however, members of the law enforcement community opposed these efforts, objecting to what they perceived as an additional layer of oversight that was not needed. With lawmakers persuaded by this argument, proposed legislation often did not make it out of committee for floor vote.

This chapter describes the history and key substantive provisions of two bills introduced in the House of Delegates in 2001 and 2003 to address the problem: House bill 2237, first introduced in February and revised in April 2001, and House bill 2430, introduced on January 20, 2003. The two bills have not been brought to the floor. As far as the Committee knows, there are only two jurisdictions that have police review boards, and this chapter describes the history and performance of two boards existing in Bluefield and Charleston.

Complaints against state police officers are filed with the department's Professional Standards Section, which assigns the investigation to an officer in charge (OIC), who reports the facts and recommends disciplinary action. The OIC reports directly to the superintendent, who makes final disciplinary decisions. Officers found to have acted improperly have a right of appeal. House bill 2237 is identical to House bill 2430 (see below). However, legislators drafted a different version on April 1, 2001, containing three major provisions altering this process. The revised bill was never introduced. Since it represents a departure from previous attempts at creating a review board, the Advisory Committee describes revisions to the bill here.

Bill 2237 (revised version) creates a law enforcement and community relations appeal board to hear all appeals of the state police superintendent's decisions. The board would also review the procedures of other law enforcement agencies in the state and make recommendations to these agencies on methods to promote fair and timely handling of misconduct complaints.[2] Any person with knowledge of discourtesy, use of excessive force, misconduct or other unlawful act caused by a state police officer could bring a complaint to the Professional Standards Section, which is required to submit a copy of the complaint to the board.[3] Once a complaint is filed, the superintendent is to conduct an investigation, after which he is to notify the board of its findings. Claimants can appeal a decision by the superintendent directly to the board. The board shall review the case file and make a recommendation to the superintendent; however, the superintendent has final decision-making responsibility for the appropriate disciplinary action in each case, but no final action may be taken disposing of any appealed complaint until the recommendation of the board is reviewed. [4]

Bill 2237 gives greater powers than proposed in the original bill, namely that the board could initiate its own investigation in an appeal, recommend further investigation, and authorize the board's executive director to subpoena complainants, witnesses, and records.[5] Chaired by a governor appointee, the board would consist of four paid citizens, two of whom possess professional experience and an educational background in law enforcement or criminal justice, [6] and six nonvoting members appointed by the state's sheriffs association, deputy sheriffs association, chiefs of police association, troopers association, fraternal order of police, and conservation officers association.[7] The nonvoting members would assist the board in its review of statewide law enforcement policies.

Second, under the bill, the board will promulgate citizen complaint forms for use by all law enforcement agencies in the state.[8] Furthermore, agencies will provide the board copies of complaints and information about their disposition. Lastly, the board's executive director (who is appointed by the governor) will semiannually compile statistics of officer conduct that result in citizen complaints and dissatisfaction, review processing procedures implemented and costs incurred resulting from claims of misconduct, and offer recommendations to the board. It should be noted that even though this collection and review of information may expose an officer s misconduct or a pattern of abusing the rights of citizens, officers could not be penalized or adversely affected. [9]

Bill 2237 was introduced in the House Judiciary Subcommittee on February 15, 2001, but no hearings were scheduled on the bill and it therefore did not go forward. The revised bill described above was never introduced.

House bill 2430, introduced in 2003, proposes a 10-member board composed of law enforcement and Human Rights Commission personnel, and citizens to process victim or witness complaints against state police personnel with respect to discourteous treatment and use of excessive force or injury.[10] Persons would file their complaints with the state police internal affairs division, which will investigate the complaint and issue a report to the board within 90 days. The board will issue a statement of findings and propose a disposition of the case to the superintendent, who has 30 days to make a final ruling.[11] In its current form, the bill does not affect existing procedures for dismissing or suspending state police officers. The bill explicitly provides that the superintendent has final decision-making responsibility for disciplinary action after reviewing the board's recommendation.[12] Accused officers would still be afforded written notice and the right to a hearing. Under the bill, the board cannot compel the appearance of the complainant, witnesses, police department personnel, or documents relevant to the case. Bill 2430 was introduced in the House Judiciary Subcommittee but no hearings on the bill were scheduled, and it too did not go forward.

As mentioned in chapter 2, there was strong opposition from the law enforcement community to a form of civilian review that would place additional steps for disciplining officers.[13] However, two cities, Bluefield and Charleston, have experience with civilian oversight of police misconduct. These are the only two cities in West Virginia that the Advisory Committee is aware of that have tried to establish boards to respond to police misconduct cases.

In September 1998, Robert Ellison, a 20-year-old African American, was beaten and dragged by two white Bluefield police officers outside a nightclub, leaving him paralyzed below the neck. After filing suit against the city of Bluefield, Ellison and the city reached a settlement in June 2000.[14] Under a consent decree, the city agreed to pay Ellison $1 million, increase its efforts to hire more minority police officers, and establish a civilian review panel by December 1, 2000, to review police misconduct investigations.[15] Before the settlement, there was considerable uncertainty as to whether the city was empowered under state law to create such an entity, which calls for a civil service commission and a hearing board to process citizen complaints against municipal police officers.[16] However, the parties and judge created a panel consisting of five Bluefield residents appointed by the city's board of directors.[17] The panel can review case files and issue recommendations only after the civil service commission has completed its investigation. The panel's duties are limited to reviewing all investigations of alleged misconduct by Bluefield police officers and preparing annual reports. The reports may include general evaluations of any discipline imposed, but the panel may not make specific disciplinary recommendations.[18]

Since its creation on December 1, 2000, the review board has met quarterly. Civilian board members have participated in ride-alongs with police officers to gain an understanding of how the department carries out its law enforcement duties.[19] According to a member of the board, no cases of misconduct have been reported to the board since its creation.[20] In the member's opinion, the existence of the board has made the public and officers more aware that misconduct instances can be addressed.[21]

Charleston, West Virginia's most populous city, has experienced instances of misconduct by law enforcement personnel as noted in chapter 2. The city's effort to establish an independent review body for complaints against its officers was short-lived. In August 1998, former Charleston Mayor Kemp Melton established a five-person civilian advisory review board composed of a former police sergeant, the head of the neighborhood watch, and two lawyers.[22] It is unclear, however, whether the board actually got started. In May 2000, pursuant to the state's Freedom of Information Act,[23] the ACLU requested from the city (1) information on the number of misconduct cases, and (2) information regarding the board's membership, function, and complaint processing. In response to the ACLU's subsequent lawsuit,[24] the city provided the ACLU with a listing of police misconduct instances and their disposition. Despite the fact that the identity of the officers was kept anonymous and that the officers were identified only by a reference number, the judge in the case denied the ACLU's request to release the information publicly. In response to the ACLU's second request, the city acknowledged that the Melton administration formed a group of people organized as the Mayor s Civilian Review Board ; however, it stated that none of them were city council or city employees.[25] It further stated that it had no documentation regarding the board s membership, existence, purpose, procedures, or budget and that the board lacked any authority from Charleston's city council to make policy decisions.

The Charleston City Council dissolved the board in August 2000. As reported in the newspaper, the chairman of the board did not even know the board was disbanded until he read it in the paper.[26] It was reported that the board's duties, which were mainly advisory and limited to making recommendations, were transferred to the city's public safety committee. Surprisingly, some members of the board said disbanding the board was not a bad idea; yet another suggested the public safety committee could not be as impartial as a civilian review board.[27] Similarly, former chief of police Jerry Riffe stated that it would be difficult for him to endorse a civilian review board given that he cannot discipline his officers because of the processes already in place.[28]

[1] Bills were introduced in January 1998 (H.D. 2031), February 1999 (H.D. 2762), and January 2000 (H.D. 4179).

[2] Revised House Bill 2237 (see appendix 2).

[3] Id. 15-2E-3.

[4] Id. 15-2E-4(f).

[5] Id. 15-2E-4(c).

[6] Id. 15-2E-1(d).

[7] Id. 15-2E-2.

[8] Id. 15-2E-5.

[9] Id. 15-2E-8.

[10] Members include the attorney general of West Virginia, the superintendent of the West Virginia State Police, the executive director of the Human Rights Commission, the executive director of the West Virginia Prosecuting Attorneys Institute, the director of Public Defender Services, and four citizen members appointed by the governor to serve two-year terms. H.D. 2430 15-2F-1, Sess. (W. Va. 2003).

[11] Id. 15-2F-2(f).

[12] Id. 15-2F-4.

[13] For example, in 2000 the state legislature considered instituting a civilian review board; however, police and state troopers said it was unnecessary, and legislators listened. Editorial, Brutality Police Need Oversight, Sunday Gazette Mail, June 4, 2000. Police chiefs and sheriffs often maintain that such boards are not needed because the police departments can handle the complaints justly and fairly internally. Kay Michael, NAACP Urges Civilian Review of Issues: Chief and Sheriff Shun Citizen Board Idea, Charleston Daily Mail, Aug. 13, 1996.

[14] Robert L. Ellison v. the City of Bluefield, U.S. Dist. Ct., Southern District of West Virginia, Consent Decree, June 5, 2000 (hereafter cited as Bluefield Consent Decree).

[15] Cochran Lends Moral Support; Renowned Attorney Visits Paralyzed in Bluefield Police Brutality Case, Charleston Gazette, June 16, 2000.

[16] Rusty Marks, City Civil-Rights Activists Still Want Citizen Review of Police, Charleston Gazette, Sept. 9, 1997.

[17] The consent decree specifies that the panel must consist of at least two minorities (one of whom must be African American), and a present or former member of the Bluefield Police Department. Bluefield Consent Decree. See also Malia Rulon, Robert Ellison Meets Famed Civil Rights Attorney Who Represented Him, Associated Press State & Local Wire, June 16, 2000.

[18] Bluefield Consent Decree.

[19] Sergeant Tyrone Miller, Bluefield Police Department, telephone interview with Marc Pentino, Eastern Regional Office, USCCR, Aug. 7, 2003.

[20] Ibid.

[21] Ibid.

[22] See Rusty Marks, Dissolving Police Board Not a Bad Idea, Five Members Say, Charleston Gazette, Aug. 10, 2000; Greg Moore, Police Review Board Not Public, City Tells Lawyer, Sunday Gazette Mail, June 11, 2000.

[23] W. Va. Code 29B-1-7 (2003).

[24] Mackay v. Jones, 208 W. Va. 569, 542 S.E.2d 83 (2000).

[25] Kimberly Bandi Weber, assistant city attorney, Charleston, letter to Jason Huber, Forman & Crane, L.C., June 6, 2000.

[26] Greg Moore, Goldman Draws Fire for Board's Dismissal; City Not Interested in Police Oversight, Mayor's Critics Say, Charleston Gazette, Aug. 9, 2000.

[27] Rusty Marks, Dissolving Police Board Not a Bad Idea.

[28] Jerry Riffe, testimony before the West Virginia Advisory Committee to the U.S. Commission on Civil Rights, community forum, Charleston, West Virginia, Apr. 20, 2000, transcript, pp. 123 24.

[29] See footnotes 5 and 8 in chapter 2 and corresponding text.