ACLU explains its review board letter | Blogh

Wednesday, June 30, 2010

ACLU explains its review board letter

Posted By on Wed, Jun 30, 2010 at 10:15 AM

As the Pittsburgh Comet and other media outlets have noted, the ACLU has warned city officials that the current effort to replace members of the Citizens Police Review Board has been ... well, problematic.

For the most part, the ACLU's letter covers territory already discussed here. It argues that the appointment process has been undermined by unclear language, and that the city has failed to follow even requirements that are clearly spelled out. It proposes that the current board members be allowed to continue to serve as if they had been appointed to full four-year terms, and replaced as those terms expire. (Which dovetails with a previous suggestion I've made, but that no one seemed to like.) 

The city solicitor -- surprise, surprise -- has argued that the nomination process is consonant with city law. But I spoke to ACLU attorney Sara Rose about her organization's letter, and about the ACLU's concerns about the city's handling of G-20 issues generally. A partial transcript of that discussion follows.

Full disclosure: Rose and the ACLU represented City Paper in a suit to open up courtroom proceedings in the divorce case of Richard Mellon Scaife last year. 

What motivated the ACLU to send this letter? 

We've been contacted by various community members -- notably B-PEP and the Thomas Merton Center -- who are upset about everything that has been going on. But in particular they're upset about the way that these nominees were being put forth.

Have you heard a response from anyone at the city?

I have not heard anything. It's my understanding that the council still has to confirm the nominees. We're going to see whether that happens. If they do, we'll have to consider what actions can be taken.

I think those would be invalid appointments, and [if council approves them under the current circumstances] we could go to the court of common pleas. I'm hoping it doesn’t come to that. The reason this is so important is that the review board is supposed to be an independent agency. This process compromises the board.

But aren't you worried about opening a can of worms here? Your letter contends that several of these appointees -- the ones controlled by council -- should have been submitted to the mayor by a formal council resolution. But that doesn't seem to have happened when it comes to selecting the current board members. So if the new board members don't pass muster, does that invalidate actions taken by the old members? I mean, could a police officer challenge a ruling against him by the old board, saying the board wasn't duly constituted? 

Well, the review board doesn't have any disciplinary power, so --

OK, bad example. But could the city say, "The review board initiated this G-20 investigation, but its members were not duly appointed, so this whole investigation is problematic"? 

I don't think that could actually happen. I don't see how they could say, "You weren’t appointed in the right way, so this board has no authority." A statute of limitations might apply [since the current board members were all appointed at least four years ago]. And they've already been before Judge [Stanton] Wettick, who is going to make them follow the law. [Wettick has, in fact, previously ruled in the review board's favor on requests for G-20 documents.]

Your letter contends that the city code required council to submit its nominees to mayor by resolution. But that's not actually what the city code says. The code did require a resolution back when it was time to propose the original board members, but the part of the code that speaks to filling vacancies doesn't mention a resolution at all. Doesn't that strengthen the argument that the process used here was acceptable?

The way courts read things, you have to read this altogether. The fact that it requires the resolution [originally] would suggest that's how it's supposed to be done [subsequently]. And even if it isn't done by resolution, the code says there has to be three people submitted for each seat. So the question becomes how do you do that? I think in this case, it was council members acting on their own, rather than a joint effort. But there's got to be some formal process for council to choose which nominees it is going to pick, and submitting those picks to the mayor.

There are some concerns that the ACLU may have a vested interest in trying to protect the current board. The fear all along here has been that the review board's G-20 inquiry may turn up material that could make it easier to sue the city. The ACLU is already suing the city on behalf of groups who claim they were harassed during G-20. So can't this be construed as an effort to get your hands on additional material for your case? 

We've already served discovery requests in the Seeds of Peace case [although the city is trying to delay the request]. We have had absolutely no discussion with the review board -- no input at all -- about their requests. I don't even know what they’ve asked for. It has nothing to do with why we sent this letter.

Some city councilors have said they are afraid that a G-20 related lawsuit might name them individually. And that they could lose their homes as a result. As the organization representing plaintiffs in current litigation, does that seem plausible to you?

Council members thought they would be sued? It would be incredibly difficult to link individual council members to any arrests of people during G-20.

In fact, [in the current G-20 litigation] Judge Gary Lancaster removed Mayor Ravenstahl, [police chief] Nate Harper and [public safety director] Mike Huss from our lawsuit. [Rose notes that if something turns up in discovery tying those officials directly to unconstitutional actions taken by police, they may be reinstated, but] the Supreme Court has heightened pleading requirements when you file a lawsuit. The evidence you have when you file a lawsuit must be higher [to name a given official].

But I can't think of a single case in which we've ever sued any kind of legislator for damanges. We've sued for injunctive relief -- to overturn actions they've taken as a legislative body. Maybe something will turn up in discovery, but I don't see how council members are going to be individually liable. They have legislative immunity. What did council do? It's kind of intriguing that they're so worried.


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