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Upon Further Review

Police resistance to review board takes a new form

For the first time since 2001, the actions -- or inactions -- of some Pittsburgh police officers are preventing the Citizen Police Review Board from holding hearings on alleged misconduct. 

"It's not the patrol officers -- they are coming, they are fulfilling their obligations," says Elizabeth Pittinger, the agency's executive director. "What I am concerned about is the conduct of a class of police employees -- the sergeant class."

The review board investigates civilian complaints of misconduct, but earlier this year it added allegations of its own. Sgt. William Vollberg was subpoenaed March 12 for a March 18 public hearing on charges related to "use of force" and "unbecoming conduct toward the public." The accusations stemmed from an arrest Vollberg made at an anti-war protest in April 2007. But Vollberg ignored a CPRB subpoena -- which has the same legal force as a court-issued order -- to appear at the public hearing. The review board added an allegation of misconduct to the charges facing Vollberg.

Two other officers since January have stymied the process, Pittinger says. 

Sgt. Craig Campbell accepted subpoenas for himself and three subordinates when all were called to a preliminary CPRB hearing concerning charges of excessive force during a January 2007 Homewood traffic stop. Campbell "told the investigators serving the subpoenas that he would take the others' [subpoenas] because those officers would not come" to get them, Pittinger says. But "nobody showed up" at the initial hearing.

Deputy Chief Paul Donaldson told City Paper via e-mail that "[t]he involved detectives did not appear at the initial pre-trial conference, due to a misunderstanding as to whether or not their appearance was mandated. The conference was rescheduled and the affected officers attended." Pittinger contends there should have been no misunderstanding of a subpoena.

Sgt. Eugene Hlavac attended his February CPRB public hearing on a complaint stemming from a March 31, 2006 group bike ride, when, according to witnesses, he fined several cyclists unnecessarily. According to Pittinger and others present, Hlavac sat for his questioning while enjoying an MP3 player loud enough for other attendees to name that tune. 

"He came, but his attitude sucked," Pittinger says. Hlavac did not return a call for comment.

Lousy attitudes remain legal. And Hlavac is not the first officer to avoid responding to questions. Officers can, and have, invoked the Fifth Amendment to avoid self-incrimination. 

While the CPRB doesn't track how often city police invoke such constitutional privileges, Pittinger bristles at the criticism that too many officers fail to provide substantive answers during testimony. Plus, she points out, the CPRB panel considers evidence, documents and eyewitness accounts alongside testimony by officers.

"They all took the stand, since 2001," she says of city police officers. "[T]hey have been sworn in, taken a seat and answered each and every question unless they had a legal reason not to. They do exactly what every American is entitled to; they're not asserting some special 'cop privilege'" by taking the Fifth. 

By law, the review board can't enforce discipline, even when officers break its own rules. It can only make recommendations to supervisors. Through December 2007, Pittinger says, the mayor and police chief have followed the review board's recommendations 55 percent of the time.

Even so, what Pittinger calls "this aberration" of officers ignoring the review board is an unwelcome trend. 

When asked about police policy toward the CPRB, Donaldson told CP (via e-mail through police spokesperson Diane Richard), "All members, whether they are the constable or witness on any case, shall obey all summons, subpoenas, or notifications and shall appear on the specified date and shall be punctual in their appearance. Any member who fails to appear or failure of a member to be punctual, may subject that member to disciplinary action."

"That's why what [Craig Campbell] and Vollberg did was so offensive," says Pittinger.

Pittsburgh police union lawyer bryan Campbell says he is not aware of any organized effort among sergeants, or any other group of police, to thwart the agency. "I can only surmise this, [but] I think a lot of the [officers] confuse the initial notice" of an impending hearing with the eventual subpoena to appear, Campbell says. 

That doesn't seem to be the case with Vollberg. The sergeant told City Paper later that he was working instead, and that he could not predict whether he would attend the next hearing, even if subpoenaed again.

Police Chief Nate Harper refused an interview request. But Donaldson told CP that "Sgt. Vollberg's absence ... on March 18 is being reviewed."

According to city ordinance, disciplinary action is recommended in such cases: "Failure to comply with a validly issued [CPRB] subpoena should be considered by the Bureau as misconduct."

But the CPRB isn't waiting for the police to act. On March 31, CPRB lawyers petitioned the Court of Common Pleas to enforce a new subpoena for Vollberg -- a case scheduled to be heard on April 24.

The same legal maneuver worked in a 2001 case -- the last time any officer failed to show for a CPRB subpoena, Pittinger reports. Then, the CPRB concluded that the officer's move was not misconduct, since he had been ordered by his commanding officer not to comply. 

Indeed, there is a long history of resistance to the review board.

Created by voter referendum in 1997, the review board spent its early years asking (and litigating) to get police officials to cooperate with its investigations. 

 In the early days, Pittinger recalls, "We had issues with delivering the subpoenas. ... They wouldn't tell us where these officers lived. We had to try to find them on the street. We had a total lack of cooperation. ... There was no protocol" nor precedent for how to handle police relations. And, she adds, "Certainly there was no welcome mat" either. 

In 2001, the CPRB sought to "compel" then-Chief Robert W. McNeilly Jr. and then-Mayor Tom Murphy "to direct individual officers to cooperate with the CPRB by giving interviews and testimony, under threat of discipline." The board sought such a requirement whenever officers were being investigated by the city's Office of Municipal Investigation, which is still the official investigative and disciplinary body for all city employees, including police.

The Office of Municipal Investigations does conduct investigations of facts; however, police officials may take personnel actions in response.

An appeals-court judge eventually ruled that the CPRB could not force city officials to compel officers to testify. But the board could insist that officers show up: The review board had "substantial investigative powers including the power to subpoena witnesses," a July 2002 decision noted.

In a January 2004 case, the Common Pleas Court imposed $600-a-day civil and criminal contempt fines on the city for not obeying a CPRB subpoena for OMI documents. A court settlement later got the city to obey such subpoenas for documents, too. 

"You'll find across the country resistance of police agencies to have external oversight," says Eduardo Diaz, president of the National Association for Civilian Oversight of Law Enforcement (NACOLE), an Indianapolis nonprofit group for agencies like the CPRB. "But it is good governance to have civilian oversight. If you look at the history of police encounters with civilians, most of them are not questionable ... but a fraction are enough to cause a concern."

Diaz is also head of the Independent Review Panel in Miami-Dade County, where a powerful police union, he says, recently prevented politicians from giving his agency subpoena power similar to the CPRB. 

But whether you can subpoena the officers or not, "The problem becomes -- can you compel [police] to answer in a public arena?" says Pierce Murphy, past president of NACOLE.

Around the country, other citizen-staffed review panels have found different ways to gain the cooperation of police. Some hold only private hearings and present a final public report. Others rely on police internal-affairs investigations, then make separate, non-binding recommendations for discipline.

The least common approach is for the city to hire a single police oversight official -- Pierce Murphy holds that post in Boise, Idaho -- who can compel police testimony because he is one of their employers. But such testimony remains private. A 1967 Supreme Court case resulted in so-called "Garrity rules" that allow such testimony to affect only an officer's job status, not any possible criminal proceedings.

Written into other cities' ordinances is a duty to cooperate with their review panel, which can be compelled by a superior officer. In Orange County, Fla., the sheriff had required his officers to appear before the Citizen Review Board from 1995 through 2004 -- but then a new union contract contradicted the rule. The county CRB issued its first subpoena to a deputy -- and got its first refusal -- in 2005. The case is now in court. 

In the city of Miami, the Civilian Investigative Panel had issued 15 successful subpoenas to officers since 2004 but was stymied recently when it tried to subpoena Chief John Timoney for using a gift SUV, which allegedly violates police, county and state rules. The case is currently under appeal.

Washington, D.C.'s Office of Police Complaints, headed by NACOLE's incoming president, Philip Eure, has issued only 15 subpoenas in its seven years thanks to police cooperation. The current and previous chiefs "made it very clear to their rank and file that officers were supposed to cooperate," Eure says. "I attribute that to leadership."

Editor's note: An earlier version of this story mischaracterized the role OMI plays in disciplining officers.

click to enlarge Elizabeth Pittinger, head of the Citizens Police Review Board
Elizabeth Pittinger, head of the Citizens Police Review Board

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