In 1973, Berkeley voters passed a ballot measure that established one of the first civilian police oversight agencies in the United States, called the Police Review Commission, or PRC. The commission had the power to demand information from the city manager and advise the police chief on disciplinary measures in cases of misconduct.

Now, almost five decades later, the PRC no longer has this authority. But efforts to restore some of the commission’s original power have been ongoing, with city officials and local activists examining civilian oversight agencies in neighboring Bay Area jurisdictions to see which models might best suit Berkeley.

“In San Francisco and Oakland, the police commission has a lot of power, a lot of authority over the police department directly,” said former PRC Commissioner George Lippman. “That’s different from having oversight or civilian review of individual officers’ conduct. It’s stronger than that.”

Unlike police oversight bodies around the Bay Area, the PRC was not established through a charter amendment. This placed the commission under the control of the city manager, who to this day controls the release of police documents needed for PRC investigations.

Just three years after the creation of the PRC, the Berkeley Police Association — an organization that promotes police officers’ interests — brought a lawsuit against the city of Berkeley that stripped the PRC of its abilities to demand documents from city departments and provide disciplinary advice.

Documents recently obtained by The Daily Californian through a California Public Records Act request also revealed that even when a PRC investigation finds officers guilty of improper police procedure, as in the case of Kayla Moore’s in-custody death in 2013, its conclusions can be appealed and dismissed in court. This process, according to Lippman, is only “one of the many aspects” that limit the PRC’s sway in cases of police discipline.

“There are just so many things that make the PRC close to meaningless in terms of oversight and discipline. It’s kind of a joke,” Lippman said. “But the institution is still important — at a minimum, for a policy advisory role.”

The alternatives: BART, Oakland and San Francisco

Unlike the Berkeley Police Department, the BART Police Department, the Oakland Police Department and the San Francisco Police Department are held accountable by more effective oversight bodies, according to PRC chair George Perezvelez. Berkeley community members and elected officials are therefore considering how their systems can be replicated to empower the PRC.

Perezvelez, who is also chair of the BART Police Citizen Review Board, or BPCRB, said the BART Police Department has “a higher threshold of obligation” than Berkeley police to take the oversight commission’s findings into consideration.

Perezvelez outlined five aspects of BART, Oakland and San Francisco’s oversight agencies that render them more effective than Berkeley’s: a lower standard of proof, a longer timeline for investigations, the ability to make recommendations on officer discipline, the obligation of the police departments to take the commissions’ findings into consideration and greater accessibility of police records.

According to Perezvelez, most Bay Area oversight bodies only need to prove that the “preponderance of the evidence” backs their findings after investigations into police conduct. Berkeley’s commission, however, is held to the higher standard of “clear and convincing evidence.”

Perezvelez added that most agencies have up to one year to complete investigations, while PRC investigations must be completed within 120 days of a given incident because of the 1976 memorandum of understanding with the Berkeley Police Association that limits the time frame.

Moreover, the BPCRB, the Oakland Police Commission and the San Francisco Department of Police Accountability can all make disciplinary recommendations to their police chiefs, and the respective police departments are obligated to take the recommendations into consideration before coming to decisions about discipline, according to Perezvelez.

Perezvelez also emphasized the importance of police record accessibility. He said the BART, Oakland and San Francisco police departments release reports on police use of force, arrests and internal affairs investigations, which are critical to oversight agencies’ investigations, on a quarterly or even monthly basis. BPD, on the other hand, only releases reports twice per year — at most.

“We’re looking for more active reporting … not because we’re looking for anything wrong, but just for transparency and accountability,” Perezvelez said. “The Berkeley Police Department needs to embrace the same kind of reporting as a means of transparency.”

Oakland as a model for reform

Last year, activists in Berkeley tried and failed to place a charter amendment on the November 2018 ballot that would replace the PRC with a new, more authoritative police commission, modeled after Oakland’s Measure LL.

According to Lippman, the Police Commission would have been granted the power to modify BPD’s policies and practices as well as exert discipline, effectively extending its authority beyond the mere review of police conduct. Lippman added that the Berkeley Community United for Police Oversight, or BCUPO, campaign aimed to reclaim the intent of the original mandate passed by Berkeley voters in 1973, this time through a charter amendment.

The BCUPO campaign was inspired by Measure LL in Oakland, a ballot measure passed in 2016 that amended Oakland’s city charter. Measure LL granted the Oakland Police Commission the power to discipline police officers and to draft and advise on policy, according to Rashidah Grinage, the coordinator for Oakland’s Coalition for Police Accountability.

The coalition successfully worked with the Oakland City Council to get the measure on the 2016 ballot, and Oakland ultimately voted to replace the Citizens’ Police Review Board, or CPRB — an agency that, like the PRC, lacked the authority to effect change, according to Grinage — with the new oversight body.

“Like most advisory bodies throughout the country, (CPRB) was limited to making recommendations to the city administrators,” Grinage said. “We decided that was insufficient.”

Adapting the Measure LL model to the Berkeley context was a “titanic struggle,” Lippman said. The BCUPO charter amendment did not make it onto Berkeley’s 2018 ballot — according to Lippman, the city was “not ready” for that degree of change.

Looking to the 2020 elections

According to the National Association for Civilian Oversight of Law Enforcement, or NACOLE, only about 150 law enforcement agencies in the United States were overseen by civilian oversight bodies as of 2016.

Liana Perez, the director of operations for NACOLE — a nonprofit organization that works to improve oversight of police officers nationwide — said the level of authority and effectiveness of each oversight body is based on the needs of the particular community it is serving. And Paul Henderson, executive director of the San Francisco Department of Police Accountability, said each jurisdiction should do what it can to work within the system in place and maximize the tools for civilian police oversight at its disposal.

“Beyond being critical of whatever structure Berkeley has, I look at it optimistically from the perspective of, ‘They’ve already started doing the work,’ ” Henderson said.

But some community members in Berkeley are less optimistic and see an urgent need for the city to catch up to its neighbors by expanding the PRC’s authority. While the proposed BCUPO charter amendment failed to secure a spot on the November 2018 ballot, city officials are exploring alternative reforms that Lippman deemed “more palatable to the council and the community.”

Berkeley Mayor Jesse Arreguín and City Councilmember Kate Harrison have proposed an alternative charter amendment that more closely resembles BART’s independent police auditor system than Oakland’s Measure LL. Under this model, an independent police auditor — someone nominated by the PRC and confirmed by the City Council — would conduct initial investigations into complaints and bring their findings to the commission for review. The auditor would be independent of the city manager and would be able to recommend disciplinary action — a power the PRC currently lacks.

Arreguín and Harrison’s proposal differs from BCUPO’s in that it would give an independent auditor, rather than the PRC, the power to conduct initial investigations. Additionally, Arreguín and Harrison’s proposal would not give the PRC the power to fire the police chief. The BCUPO model, Arreguín said, was “a little too extreme.”

“I don’t think Oakland’s model is necessarily the version we need for Berkeley,” Arreguín said. “It is a dramatic change from our existing city charter, and I just don’t know whether we need to go that far. What I’ve come up with is a hybrid version that betters fits within our city government.”

Both Lippman and Arreguín are now looking to the November 2020 election — another chance to get a charter amendment on the Berkeley ballot, through either a petition from the community or a City Council vote. Arreguín said he expects his ballot measure proposal to be brought forth by this summer, after the meet-and-confer process with the police association is complete.

A City Council vote to put a measure on the ballot, Lippman said, will require political will.

“Where does the pressure come from? Does it come from the people who want to see more police accountability or from the people who want to maintain the status quo?” Lippman asked. “That’s the question the council members have to wrestle with.”