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Overwhelming majority call for civilian oversight of Austin police

Friday, June 2, 2000 by

Even Assistant Police Chief McDonald says oversight needed, if problems fixed

Strong support was evidenced last night for civilian oversight of the Austin Police Department (APD) and the City Council is likely to vote next week to refer the recommendations of the Police Oversight Focus Group (POFG) to become made part of negotiations already underway for a new Meet and Confer Agreement. The Agreement is a contract between the City of Austin and the Austin Police Association. However, it is anticipated that the recommendations must be changed in some respects to clear possible legal hurdles, maintain the police chief's ability to discipline officers, and protect the officers constitutional rights.

Forty-nine people had signed up for the hearing when it started at 7:15 p.m. last night in the headquarters of the Lower Colorado River Authority. By In Fact Daily's count, 34 people addressed the council on the issue and of these 29 were in favor of police oversight, two were against it, and three were unclear about their support for the recommendations.

The City Council was not posted to take action on the report but is expected to do so next week. Council Member Bill Spelman, who was the moving force in creating the POFG, says he hopes the council will "send it to Meet and Confer."

"The POFG recommendations are specific in some places and not specific in others," Spelman tells In Fact Daily. "We must fix that while avoiding potholes and work so when it comes out of Meet and Confer it will not have unintended consequences."

Spelman says the most important thing the POFG accomplished was to take the civilian oversight process out of the judicial realm by avoiding the trappings of a trial and subpoena powers. "The key is the monitor who can go everywhere and share in the (investigative) experience." While he says the POFG tried to nail down every detail the "broad framework is by far the most important thing."

The POFG's recommendations

Attorney Ann del Llano is co-founder of the Sunshine Project for Police Accountability, past president of the American Civil Liberties Union (ACLU) of Central Texas, and member of the POFG that spent nine months gathering information, debating the issues and formulating the recommendations. She spent 30 minutes describing the context and gist of the POFG recommendations to the council. Del Llano noted that the recommendations were tailored specifically for Austin and avoided the weaknesses that have crippled efforts for police oversight in other cities.

Del Llano described the Police Monitor's office as a neutral place where citizens could file complaints, obtain information, and confer on the results of the APD's investigation without having to deal with police officers. If not satisfied with the police chief's decision on the complaint, a citizen would have the opportunity to address the Police Review Panel in a public discussion of the matter. If the Panel decides the chief's decision seems incorrect it can recommend the chief reconsider or it can request an independent investigation. (To launch an independent investigation requires the Police Monitor's approval, as well as the approval of either the city manager or police chief.) Del Llano noted that the Police Review Panel would also over time be able to make policy recommendations that would be helpful to police officers as well. The Police Monitor can monitor but not interfere with the APD's internal investigations.

In discussing whether Austin needed oversight, she noted the massive problems in Los Angeles, where misconduct and lying by police officers jeopardizes some 17,000 criminal convictions and may cost the city hundreds of millions of dollars in damages. In New York, Amadou Diallo was shot 19 times while holding nothing more than a wallet in his hand. "Do we have that situation in Austin?" she asked. "I hope not, but we have a history that's important." She noted that one of Austin's police officers ( John Gaines) was murdered in 1913 while waiting for a white officer to arrest a suspect because Gaines was black and was not allowed to do so. She said a retired police captain had told the POFG about a time when only white officers could drive police cars in West Austin. Another retired police captain's employment application to the department was originally rejected because he was "too short," though he is actually tall. She said over the years the APD had been sued for racial discrimination, age discrimination and sexual discrimination. But when it comes to lawmaking, police get what they want, she claimed.

Del Llano walked through a number of cases in which civilians had been killed by police under questionable circumstances. A newspaper article in the Austin American-Statesman Thursday indicated that the confession of a suspect in the yogurt shop murders may have been coerced with a gun at his head. "The city is better than this and deserves better than this," del Llano said.

She told the council only it could implement oversight of the APD and bring equity to public safety, as it was the only body that could monitor negotiations of the Meet and Confer Agreement on behalf of the public. She pled to make APD personnel files as open to the public as those of the Travis County Sheriff's Department, which she said would not increase the city's liability for lawsuits over police misconduct. She said the situation was analogous to sexual harassment, where a company's best protection is to set up a system to catch offenders and prevent it from happening. "The city is more protected from liability if it takes concrete action to find and prevent problems that may crop up later," del Llano said.

"Some will ask to make (oversight) much stronger or much weaker," del Llano warned. "If you make it much stronger police probably will not cooperate. What I'm asking is that we move forward in this reasonable compromise way with everybody cooperating." She urged that there be no delay as the window may close on what issues may be included in negotiations for a new Meet and Confer Agreement. "Please take this opportunity and do it now," she said.

Several other POFG members also addressed the council briefly. Attorney Tom Kolker said, "The amazing part of this is the process. I don't believe anyone thought we'd come to agreement." Noting that the report was reached on the basis of consensus, he said, "Really it's a whole. Pull one piece out here and there and it will unravel."

POFG member Robert Martinez said, "I felt very strong about looking into the possibility of citizens review and oversight but also creating a process that's fair for the police officer…I think we did that."

POFG member Michael Supancic is a faculty member in the Criminal Justice Department of Southwest Texas State University and a member of the city's Human Rights Commission. He described police misconduct "as basically a human rights violation" and described the recommended system as a first step forward toward improvement. "This proposal stands as a delicate balance," he said. "Will it work in the next millennium? I think it will, but support must come from the council and citizens. It's can't only be the responsibility of the APD."

Attorney Eric Galton was the pro bono facilitator of the POFG. "I want to emphasize most that while it has been characterized that our work was a series of compromises, what the POFG did was make a determined effort to constitute something that really made sense from the ground upward."

Public hearing highlights

Richard Troxell is president of House the Homeless Inc. and a graduate of the Citizens Police Academy and Leadership Austin. He said House the Homeless supports the recommendations. He recalled a case in which three homeless men were sleeping in a locked, fenced area off 6th Street when three officers entered the fence, locked it, and beat the sleeping men with night sticks. The men filed a complaint and had to take lie-detector tests. "Ultimately we were victorious," Troxell said. "Only one officer was identified and he got three days' suspension and today he rides a bicycle on Town Lake where his in direct proximity to the homeless."

James Webb attended most of the POFG meetings. "I think there is a huge conflict of interest in having the city manager overseeing oversight," Webb said. "Police work is important and dangerous and I support a pay raise for officers as part of the entire package if POFG recommendations go through and are not sabotaged in Meet and Confer."

Two homeless men testified of firsthand knowledge of problems. Former mayoral candidate and cross-dresser Albert Leslie Cochran said APD's internal affairs would not accept a complaint from him because at the time he did not have identification. On another occasion he said his property was stolen when he refused to leave town as suggested. Kirk Becker claimed he knew people who were abused or harassed by police. He asked that oversight of community courts be added and that a public defender's office be established.

David Smith, president of the ACLU's Central Texas chapter, said, "This is not an anti-cop measure but an anti-secrecy provision. We're not asking they do more but to explain and be more accountable at a higher level. I think the POFG recommendations allow that." He said civilian oversight would give the opportunity to address other issues such as racial profiling. Noting that Police Chief Stan Knee has been quoted saying he did not want civilian oversight to interfere with his ability to punish an officer, Smith said the chief's authority should be strengthened. Smith also called for uniform discipline. "If you want to reduce brutality, factor it into supervisors' pay raises," Smith said. "Once supervisors' pay is involved you will be amazed how quickly they get involved."

Scott Henson is a co-founder of the Sunshine Project and separate from that maintains the Austin Police Department Hall of Shame, a web site focusing on police abuses. He pointed to things not addressed by the POFG recommendations that need fixing. "It's not that we have so many bad cops, but we can't get rid of them," Henson said. "The Samuel Ramirez case is disgraceful. He committed a sexual assault and the police chief fired him and he went to court and because the chief missed a five-day deadline he got back on the force. You have a chance in Meet and Confer to fix this. You couldn't pass an ordinance to do it and you absolutely have to end the Samuel Ramirez loophole with Meet and Confer."

As to the uniform discipline that Smith recommended, Henson said it was essential because minority officers have been reinstated after demonstrating that white officers who committed similar offenses were not fired for it. "If everyone were treated the same way we wouldn't have this problem, and most people getting back on the force after the chief fires them would be fixed." Henson said it was silly to contend that these recommendations would lessen the chief's power. "We want the chief empowered to be able to fire somebody and keep them fired and not have the Austin Police Association make an end run around him."

Kathy Mitchell said one of the most important aspects of the POFG recommendations is it will allow access to information by the complainant. "From a standpoint of open government," she said, "we're at a low point." All the public can get now is aggregate statistics, she said. The information gathered by the police monitor will be meaningful and allow corrective action to be taken, she said.

Doris Walker Gayle said she is 75 years of age. "I think we need to restore public trust in the police department and this is a real opportunity and this may not be perfect but it's a place to start. I think this can be a real assistance to the chief."

Mike Hansen was one of the more vehement opponents of the POFG recommendations, in spite of the fact that he claims to have been abused by the police who broke the windows of his pickup while his daughter and he were inside in order to arrest him, an incident that gained wide publicity at the time. He is also one of the people who for a time made a habit of railing against the Travis County Commissioners Court, earning the group the nickname "black helicopter people" ( In Fact No. 171, Nov. 24, 1998). Hansen said the Texas Penal Code was adequate to clean up police abuses. He criticized the police for wearing army boots, camouflaged clothing, and "Nazi black masks" and driving military equipment such as armored personnel carriers. "I agree with Dorothy Turner that all cops are bad cops because the good cops are not routing the bad cops out," he said.

Michelle Weston, who is white, said she lives in East Austin. "We live in violent times," she said. "I see people jacked up in my neighborhood all the time (by police)." She said cooperation would lead to trust. "If we don't have checks and balances we end up with a fascist state and that's what the people in East Austin feel like, a fascist state." Weston said the location of the hearing in West Austin was unfortunate. "This place would be jam packed if people could get here," she said.

Retired Police Captain John Vasquez served 28 years with APD and retired in 1989. "For most of my career I would have been opposed to something like this. Since then I have become a private investigator and I have had to take a different light on the whole situation," he said. "I am afraid of a police department that doesn't have to answer to people." Noting the newspaper article in which an officer allegedly pointed a gun to a suspect's head during questioning, Vasquez said, "I don't see the police department policing itself now."

Fred Maxwell also retired from the APD in 1989 as a captain, with 30 years service. "The proposal may not be the strongest it could be and may only be 50 percent effective," he said. "I know that 50 percent of something is better than 100 percent of nothing…I hope the council will implement these recommendations and make Austin a better city than it is."

Attorney Francis Williams Montenegro said he had represented citizens abused by police and suffered their conviction by a court not aware of a pattern of problems with these officers. "The court system is not adequate to address those problems," he said. "Congratulations for taking on these issues. I hope you pass it."

Daniel Llanes asked to go further than the POFG recommended and give the Police Review Panel full investigative authority and subpoena power, and give whistleblower protection for officers who come forward. "Most white people and upper income people have no idea of what happens to us every day," he said.

Theresa Gorman is a member of Austin Cop Watch, a grass-roots group formed to witness police actions. "Probably the most important thing I can tell you is that from the Austin Cop Watch's point of view is the worst incidents of police abuse we watch never make it into the records because victims are too afraid to come forward," she said. Gorman recommended that the Police Review Panel's name be changed to Civilian Review Panel, no police be members, members must live in the city, and the panel should have no more than one retired police officer. Nominees names should be made public and the council should accept written feedback on nominees before making appointments. Gorman asked that records be opened to the greatest extent allowed by the Texas Public Information Act. "The only true justice lies in the hands of the people," Gorman said.

Attorney Scott Polikov is a member of the ACLU's state board of directors. "When you see a picture of holding a gun to someone's head, that's wrong," he said, referring to the newspaper article about the possible use of a gun in obtaining a confession. He said, "At the end of the day the APD will benefit from (civilian oversight), along with civil rights. This is not LA or New York, but it doesn't have to be LA or New York to justify it."

Important areas left to address

Spelman said Thursday's editorial in the Statesman was strange because it agreed with him but "they didn't quite get it right. I'd like people to understand how they didn't get it right." He said the POFG recommendations had been characterized as a compromise between civil libertarians and police but the balance of power on the group was held by people who were in neither camp. "This is not just a compromise but about the best we can do," he said. For those who say the city doesn't need police oversight, who feel secure already, "It's important for them to understand we do things for all of our citizens," he said. Spelman said the city provides parks and libraries for people who never use them and a lot of people require some form of police oversight. "By providing this public service and peace of mind we do the entire citizenry a lot of good. The more people who feel police are working for them, the more who will call when something is wrong and work with police investigations," he said. Before going forward Spelman said he wanted everything out on the table, and that included legal and police management issues that had not been aired.

Assistant Police Chief Michael McDonald said, "The police administration supports the need for additional oversight by the community because it will increase understanding of the disciplinary process and increase trust." But there are several areas of concern in the recommendations that need work so they don't produce unintended consequences.

Noting that officers may be compelled to make statements for an administrative investigation or lose their jobs, those statements may not be used against the officer in a separate criminal investigation, McDonald said. Making records public before discipline takes place would allow officers to be "tried by the media," he said.

"It's also important to avoid the chilling effect," McDonald said. "The most serious cases of misconduct are reported by other officers. It's a tremendous amount of pressure not to come forward and though they have done something brave they have to walk around till justice prevails. We want to do nothing to keep officers from coming forward."

McDonald said many improvements have been made in the department, and cadet classes setting records for diversity. "To paint with a broad brush about the entire department is unfair to officers who risk their lives out there," he said. "Last weekend is a reminder of what goes on out there," he added, referring to the shooting death Sunday of Austin Park Police Officer William Jones, the 17th Austin officer to die in the line of duty since 1875, according to the Statesman's article. "With all the improvements in Internal Affairs, we do feel the need for civilian oversight but we must ensure management must be able to discipline offers and protect the rights of citizens and officers."

Assistant City Attorney Anita Stevenson said she has for 13 years represented police chiefs in trying to uphold disciplinary actions through arbitration. She said civil service law is very clear on how internal APD records can be used. "Nothing can be released to anybody in the public," she said. Stevenson said that the Meet and Confer Agreement was a form of labor bargaining to negotiate wages and hours and terms and conditions. "The question is whether the law is a term of employment and if so we can negotiate through Meet and Confer. If it's a legal privilege then we can't negotiate it through Meet and Confer." She said it needs more review.

As to the more open records of the Travis County Sheriff's Department, Stevenson said the county's civil service laws are different and not subject to arbitration. "Opening up records too early in the process seriously jeopardizes our ability to win arbitration and uphold discipline," she said. "We need to clarify this before a model is adopted for civilian oversight," Stevenson said. "I don't see any of these problems as insurmountable but these are important problems that need to be solved. We need to address each issue and find out what the answer is and build that into our model."

In a follow-up interview with In Fact Daily, Stevenson said she didn't know if these obstacles could be resolved but the city needs to know what the pitfalls are. "If we do this through Meet and Confer it needs to be enforceable. I don't see these as barriers but we need to see how to make the model work."

Council Member Gus Garcia, noting that some speakers had objected to the estimated cost of $500,000 a year for the Police Monitor's operation, said, "It will not be cheap. But it's better to pay for what we buy, but buy it if it's in the best interest of the city."

Council Member Willie Lewis said, "Several times since I've been on the council I've been totally disrespected by police officers and being black is one of the reasons it happened. Until commanders are held responsible, it will continue to happen." Lewis added, "Let me tell you something, there are people out there whose lives are definitely affected by the color of their skin…."

Mayor Pro Tem Jackie Goodman said, "To some degree law enforcement is like the blind men with the elephant. You know the elephant by how it was for you. This step gets us to the point where everyone gets to see the whole elephant, not just the parts visible to us before."

To Council Member Spelman, who with Lewis and Garcia will have his last council meeting on June 8, Goodman said, "Thanks Bill for putting this in motion. It was very courageous."

Divided City Council rejects retail space for new City Hall

Downtown Design Guidelines ignored by council that adopted standards

The City Council voted Thursday to delete retail space from its plans for a new City Hall, but to add money to the project budget for 75 more parking spaces in the municipal building's underground parking garage. Consultants for the City Hall and Computer Sciences Corp. (CSC) project had recommended adding 10,000 square feet (SF) of retail space in City Hall and 5,000 SF for a larger City Council or to accommodate expansion. This brings the total space to 115,000 SF.

Jan Hilton, CSC/City Hall deputy officer of the city's Redevelopment Services, explained that conversations with council members and others had revealed a need to have the City Auditor and the Law Department at City Hall. So, she suggested that council cut retail space from 10,000 SF to 5,000 SF.

Council Member Gus Garcia said, "Why have (retail) space in a building that is limited?…City Hall is not a place to shop. I have significant problems with the retail."

Council Member Daryl Slusher chimed in, "I agree with that. I understand what the consultants are saying. I'm not an expert on retail. We're letting the tail wag the dog here. I just don't think that's appropriate."

Those consultants, Street-Works of Arlington, Va., and San Diego-based Keyser Marston Associates Inc., envisioned an unbroken line of pedestrian-friendly shops and restaurants along 2nd Street. Street-Works received $16,700 in fees for "a vision of street retail for 2nd Street and the warehouse district," according to Hilton. Dave Kreider, economic development manager for Redevelopment Services, told In Fact Daily the city paid Keyser Marston about $100,000 for consulting on a variety of issues, including retail development, the convention center hotel, and Town Lake.

Garcia also said he had once been a junior auditor with the city and felt no need to have the Audit Department in City Hall. "The auditor only reports to City Council once a month. We don't have that much space at city hall. I would like some rethinking on that."

However, Council Members Beverly Griffith and Bill Spelman argued in favor of keeping the auditor at City Hall. Griffith said the auditors offer, "the critical support that management and the council need. I think it's very important to have the audit function in this building. It is much more important to my effectiveness to see auditor once a week (than to see)…our lobbyists."

After much discussion, the key vote came on a motion to amend. On an unusual 4-3 vote, council voted to cancel the retail space and directed the City Manager to come back next week with a plan for how that space might best be used by the city. Voting for the motion were Mayor Kirk Watson, Mayor Pro Tem Jackie Goodman, Garcia and Slusher. Council members Griffith, Bill Spelman and Willie Lewis voted no.

Goodman said she hopes that some sort of food court or cafeteria will make its way into the final plan. Contacted after the meeting, Hilton said it is likely that next week's options will include a coffee shop.

What council in essence rejected was the idea that ground-floor retail must be contiguous in order to draw pedestrians to downtown. The council two weeks ago adopted the Downtown Design Guidelines (In Fact Daily, May 19) without dissent or discussion. The city's Design Commission crafted those guidelines, which state that all downtown buildings should have retail on the ground floor. The guidelines are not mandatory, but have been used to evaluate proposed developments–including the Gotham Condominium project at the council's direction, when the guidelines were still in draft form.

Perry Lorenz, a member of the commission, said, "I think the intent of the Design Commission is to have an interesting, active pedestrian environment. So that when you're walking on city streets it's an interesting experience, so you can go block after block and there's a lot for a pedestrian to do, or at least to see." When Lorenz learned that the City Hall building would be the only one lacking in first-floor retail, he said, "Personally, I'm not offended by that if the net result is an interesting sidewalk experience for pedestrians–so that you have multiple ways into the building. I certainly think a coffee shop at a minimum would be appropriate. But I understand that that building must function as a City Hall and, if we can, make an interesting pedestrian experience out of it."

Members of the city's Downtown Commission requested that the city add a person with retail experience and a member of the downtown retail community to the city team that will negotiate with prospective retail developers for retail space leased by the city in CSC's buildings. As reported by In Fact Daily on May 11, the commission voted to send a letter to the council expressing those wishes. In addition, Robert Knight, chair of the commission, had criticized the city's plan to subsidize parking for new retail businesses, as did Bruce Willenzik, owner of the Armadillo Christmas Bazaar.

Following Thursday's action, Knight said, "I wasn't really opposed to the concept of retail. I just wanted to make sure it worked and (parking) was not going to subsidize new businesses.

"My guess is retail will do just fine if we can continue to attract residences and offices to downtown…The question is can we make the sidewalks etc. pedestrian-friendly and I think we can." Knight, a downtown real estate investor, explained that "retail is different than some other things. It's got to draw on people who have disposable income, whereas office and residential are not so location-sensitive. I think (eliminating retail) is a smart move on the part of council."

Juan Cotera of Cotera Kolar Negrete & Reed is architect for the new City Hall as well as chair of the Design Commission. Cotera said, "Until they vote on a (space) program, we're not going to be starting into the design…The city was getting a little scared about the amount of retail they could lease." Asked about following the Downtown Design Guidelines, Cotera said, "Do as I tell you, not as I do? You know they do have a real serious space problem because they got limited by the contract with CSC as to how much mass they could put on that site. As it stands, it's going to be very, very difficult to fit everything in that they want at city hall…It doesn't surprise me, but I'm sorry they did it. I think it is important to keep that kind of urban character to everything, even public buildings. I've always felt that even state buildings could be improved so much if at the sidewalk level they were part of the community by having retail…But City Hall is one building only. It won't be as severe and it will be faced by other retail on all sides. But it doesn't surprise me because they were having a hard time fitting it all in."

Willenzik is also a member of the Airport Advisory Board and was an advocate for local retail in Austin-Bergstrom International Airport. The airport recently announced winning awards on that score. Willenzik had criticized spending city money to subsidize parking for new retail, said, "I'm not against retail. I'm against national chains in there. What I want in there is local retail and local cultural stuff…that puts money on the table for local artists and musicians." He characterized the vote to remove 1st floor retail as "a big, big mistake–it should have been a nice little band studio (or) a local bookstore."

Hilton was philosophical. She said, "We have been discussing this from the beginning. Probably part of why they're uncomfortable is because we don't have the retailer…They can't see the (design for the) front of City Hall. We are in sort of new territory here."

Aquifer board to reconsider Higginbotham well, suspect link to Rutherford subdivision

John Lloyd's Rutherford Rim project may be customer for the water

Developer John Lloyd filed an application for a subdivision plat with the City of Dripping Springs in April, according to City Secretary Christine Harrington. "It says they're looking to test a well…that would run parallel to (FM) 967 to their property. It says their alternative would be the LCRA ( Lower Colorado River Authority). And they're looking to form their own utility or water control district." Harrington said the plat is for 155 lots over 456 acres. Lloyd plans to subdivide a total of 1,200 acres of the former Rutherford Ranch, she said. The subdivision will be called Rutherford Rim.

All of this has board members of the Barton Springs/Edwards Aquifer Conservation District very suspicious. On May 2, the board granted T.J. Higginbotham's application to drill a new well on his property, which is on FM 967 west of Buda. (See In Fact Daily May 3.) After drilling, Higginbotham said he would be seeking permission to draw out 50 million gallons of aquifer water per year. He refused to say how the water would be used, but his lawyer, Jimmy Alan Hall, gave two conflicting versions of Higginbotham's plan. Neither version involved providing water to the Rutherford Ranch. Board President Craig Smith said Thursday that he expects the board to reconsider Higginbotham's application at its next meeting, June 13.

Runoff election tomorrow…Don't forget to vote Saturday. That might be easy to do, with neither Raul Alvarez or Rafael Quintanilla running television commercials. As a result, the Place 2 City Council campaign has kept a low profile. Direct mail and personal contact are the tactics being used by both sides… Retail developer decision soon… Jan Hilton, CSC/City Hall deputy officer of Redevelopment Services, says the number of developers courting the city for the opportunity to bring in retailers will be narrowed from four to two today. Currently, the list includes Amli-Bonner Carrington and Trammell Crow Co., both of Austin, Henry S. Miller Interests & Urban Partners Joint Venture of Dallas, and UC Urban, also of Dallas. Hilton said she will be consulting with the two lucky developer groups about the latest plans for City Hall. She said she expects to be negotiating with the chosen developer on a final deal in August… More for the money…In finishing his turn at the mic last night during a public hearing on recommendations for police oversight, Kirk Becker said, "The council got a 50 percent pay raise and should increase the (citizens') speaking time 50 percent."

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