City Police Review Board Could Get More Power If Voters Say So In November

Jul 24, 2020

Voters in the city of Pittsburgh will get to decide in November whether to give the Citizen Police Review Board more power. After a series of amendments, CPRB Executive Director Beth Pittinger says this referendum, if passed, could give the board more power.

On Wednesday, Pittsburgh Mayor Bill Peduto signed a bill putting a referendum on the ballot that would require officers to participate fully in all investigations conducted by the board. If an officer or employee does not participate, it could be the cause for termination.  

The bill’s sponsor, City Councilor Ricky Burgess, said the issue is especially pressing at a time when police accountability has become a national issue following the death George Floyd under the knee of a Minneapolis police officer.

“Some of these issues I have thought about for some time, but these events have led me to believe that this was the time to strengthen it and make it robust,” Burgess said.  

The referendum will appear like this on the ballot: "Shall the Pittsburgh Home Rule Charter, Article Two, Executive, be amended and supplemented by amending and adding new language to Sections 229 and 230 and adding a new Section, 231, expanding the powers of the Independent Citizen Police Review Board to allow the Board to require police officers to participate in investigations, conducting performance audits of the Police Bureau and preventing the removal of Board members except for just cause and with City Council approval?" 

If voters approve that language, the changes could raise the stakes for police who don’t assist a review board investigation. And it will compel police leadership to at least consider that investigation’s findings before deciding on how or whether to discipline police.  

Pittinger said courts have upheld the board’s subpoena power to compel officers to testify to answer questions unless they have a lawful reason not to, like the Fifth Amendment right against self-incrimination.  

“They have to appear and they have to testify, they can’t just come in and say oh, I plead [my Fifth Amendment rights],” she said.  

Currently, an officer who refuses to answer questions in good faith could face consequences as limited as a verbal reprimand. If the amendment passes, the penalty could involve termination.   

“This emphasizes the power of the board’s process,” she said. “This says, ‘you’re going to do this, and if you don’t you’re going to be terminated.’ That is very important because it eliminates the potential of getting involved in lengthy litigation. It’s preventive.” 

Police would still have legal protections, said University of Pittsburgh law professor and WESA legal analyst David Harris. But in order to invoke the Fifth Amendment,“The answer to the individual questions asked, or lines of questioning, would have to implicate the officer in criminal activity.” 

Harris added that those protections “would not affect the officer's duty to show up and cooperate in other ways, or to testify about things other than criminal conduct”—like rudeness or other inappropriate behavior.  

Those two categories make up the most frequent sorts of complaints against officers lately. Years ago, Pittinger said, “Every time you turned around, someone was getting beat up [by police]. But now it’s how they conduct themselves during calls. That’s a huge difference.”  

The referendum’s passage would also prohibit police leadership from making a final disciplinary decision on active investigations until after the Review Board submit its own findings and recommendations.  

Traditionally, supervisors have relied on findings from the Office of Municipal Investigations, an internal-affairs agency that also reviews complaints of misconduct.  

But OMI lacks the board’s independence, said Burgess. And before discipline is set for an officer, “We want to make sure there is a different voice, not just the police voice, making these decisions.”  

“Sometimes we don’t agree with what OMI finds, and sometimes they don’t agree with what we find,” Pittinger said. “OMI doesn’t make a recommendation of discipline, but the board may.”  

If the amendment passes, Pittinger said officers would typically remain on duty while the board conducts its investigation – unless the police chief suspends them.

“Officers would still be working during this time,” she said. “This amendment doesn’t do anything about that.”  

Time to complete an investigation and recommend discipline varies depending on the seriousness of the accusation and other factors, but Pittinger said “theoretically, it should be about 120 days.”  

Pittinger said she expects police to oppose the changes envisioned by the referendum, because it could mean the Board could make disciplinary recommendations that go beyond OMI’s recommendations.  

Robert Swartzwelder, who heads the Fraternal Order of Police, did not respond to requests for comment about the referendum. But the FOP has fought, and won, similar battles before.  

In 2013, Burgess also introduced a referendum that would require Pittsburgh Police officers to live in the city of Pittsburgh. Voters passed it overwhelmingly, but after the police union challenged it in court, the state Supreme Court struck the measure down, saying that residency requirements would have to be handled in labor arbitration, like other terms and conditions of employment. 

The FOP could challenge the amendment this year too, arguing that disciplinary procedures should be negotiated contractually, rather than decided by voters. 

But Burgess, for one, said he thought the outcome of such a suit would be much different. “This is really something directly in the wheelhouse of the city to do,” he said.