By: Richard Stone
Eddie Aubrey is the City of Fresno’s first occupant of the Office of Independent Review (OIR), also known as the independent police auditor. This article is an effort to survey the landscape of this important effort to establish a higher level of trust between the police department and the public. It is based on Aubrey’s Q&A session with the Central California Criminal Justice Committee (CCCJC) on Jan. 20, 2010; his interview with Pam Whalen on KFCF’s “Street Heat”; my conversation with him in early February; and subsequent interviews I did with the Fresno Police Department’s Deputy Chief Robert Nevarez and Jacky Parks, president of the Fresno Police Officers Association.
THE JOB AND THE MAN
Our city officials created the OIR under prolonged pressure by citizens, intensified recently by several high-profile cases of alleged police misconduct that had received national attention. The position as created in Fresno lacks certain powers that would give it real teeth, most notably subpoena power (the OIR cannot independently call witnesses or question police officers) and the power to issue public reports (reviews are submitted to the city manager, who is free to do as he pleases with them-including withhold them entirely from the public). Still, the OIR can be an important step forward as it has been given the ability to review all police reports and to audit all interviews by police of witnesses, suspects and officers. The OIR’s basic job is to ascertain if “best practices” are being utilized by the Police Department and, if not, to recommend changes.
Both on paper and in person, Eddie Aubrey seems eminently qualified for this difficult position. He has served as a police officer, a prosecuting attorney and an administrative judge. During the riots ensuing from the acquittal of the officers in the Rodney King incident in Los Angeles, Aubrey was called in as a mediator. He has seen law enforcement from several perspectives. When he speaks, he projects affability, interest and confidence, presenting himself as an optimist eager to engage the challenges of his new position, believing he can bring about needed change in the relationship between the police and the public. Aubrey has begun his tenure low key, meeting informally with interested groups on all sides. His humility and openness are welcome but are also necessitated by lack of power in the position and by his understanding that his success rests on earning trust. Yet his determination is evident in his willingness to do on his own what he believes is needed, for example, in paying his own way to a recent national convention on police oversight and buying unbudgeted supplies out of his own pocket.
On the public side, within his first weeks on the job, Aubrey had already met with such groups as El Concilio de Fresno, the Martin Luther King, Jr., Committee, CCCJC, education and business groups, representatives of the Hmong and Sikh communities, and advocates for the homeless. It is incumbent on him to educate the public against unrealistic hopes, to have them understand the limited scope of his position and that the most he will be able to do is build confidence in the complaint process. At the CCCJC meeting I attended, he tried to clarify how the complaint process–which has given rise to confusion and frustration–should work. He said that whether a complaint is written or oral, the officer at the Duty Desk is required to log it into the computer with a number for tracking. Depending on the severity of the allegation, complaints are routed to different departments, but in any event, should be responded to within two working days. “Get the number, and if you don’t hear back,” he says, “call my office.” As it stands now, the public is only entitled to know whether the complaint has been sustained or denied-not why, or what action was taken, but Aubrey can be requested to look into the decision and report his view to the city manager. The problem is with what happens next-which is beyond his control. He is also working to make the complaint forms more user-friendly and to communicate to officers the importance of receiving complaints civilly.
In trying to achieve rapport with officers-on-the-beat, Aubrey has gone on ridealongs with several patrol cars. He says he tries to be clear that it is not his job to tell police what procedures to follow (that is their superiors’ responsibility), but to evaluate if there are ways they can do their jobs better-more safely and with better results. “I want them to know I’m not here to catch them out on minor infractions, like doing 42 mph in a 40 zone. I’ll be looking at patterns of behavior, and suggesting changes when there are variances from best policing practices as I’ve come to know them.” He says that so far no police have made negative comments to his face, though most offer a wait-and-see attitude. “But,” he adds, “a few have told me they’re glad I’m here.”
Aubrey asks the public to realize that the content of his reports is limited not only by the powers denied him but also by the Police Bill of Rights that gives officers protection from public identification in a range of personnel matters-protection he upholds from his experiences as a police officer. So in order to succeed, he must convince the public he is diligent and fair, and that his presence is actually resulting in better police responsiveness to complaints. He says he will automatically be involved in cases where complaints cite bias, use of violence or death, and in high-profile cases such as the Glen Beaty videotape. He will also routinely monitor for officers with recurring problems, like numerous “resisting arrest” citations, as part of what he calls “an early alert system,” to head off potential trouble.
It is also clear that Aubrey’s job will be made more difficult by the city’s financial status. During his first six weeks on the job, he was furloughed one full week and informed that the half-time assistant he expected would not be hired. On the positive side, Aubrey says he has been given full support by the police administration and full access to all paperwork and interviews he has asked to see.
THE POLICE HIERARCHY
Police Chief Jerry Dyer has for several years publicly backed the idea of an OIR-as long as it was the circumscribed model finally adopted. His concern with public perceptions of the force seems real, but whether it is primarily a PR concern or a concern for genuine accountability to the public is still to be seen. Still, even before the OIR was approved by the City Council, Dyer had implemented an internal organization in an effort to (at least on paper) address the issue of accountability. A “Professional Standards Division” was created to unify oversight of a variety of interrelated administrative functions bearing on the interface of officer performance and the public. Through the good offices of Public Affairs Director Jeff Cardinale, I was given access to Deputy Chief Nevarez, the head of this five-month-old division. Oddly, to my way of thinking, Cardinale sat in on the interview, perhaps indicative of the still-unsettled issue of trust in the public’s role of evaluating police performance. (Similarly, when I interviewed Aubrey, our meeting was monitored by a member of Randy Reed’s staff, representing the city manager’s office. This degree of oversight struck me as peculiar, somewhere between amusing and insulting.)
Deputy Chief Nevarez is an experienced and personable man, at ease with his role as chief enforcer of professionalism on the force. Some years ago I attended the Citizens Police Academy and remember vividly that the lieutenant in charge of Internal Affairs expressed discomfort with the position he had been assigned to, which called for passing judgment on his erstwhile comrades. Nevarez is a much senior official, with a broader and more objective perspective on what is needed for an effective police force, a force that maintains a reputation for high standards of behavior and internal quality control. Echoing Aubrey’s words, Nevarez says his division is to serve as “an early warning system” and that he will randomly monitor 10% of the force on a regular basis. He understands he is not in a position to win popularity but expresses confidence that most of the force accepts the importance of public accountability. In fact, he says, a majority of cases he sees involving possible termination are initiated by fellow officers.
Nevarez evinces full support for the OIR, saying “it will be good to have another set of eyes.” He also says unequivocally that Aubrey will be given access to all records available to the city manager; and that although the OIR cannot directly intervene in interviews, he will be free to ask for clarification and offer behind-the-scenes suggestions. “My marching orders are clear,” he says, “whatever [Aubrey] asks for, he gets.” Nevarez also says he is comfortable with Aubrey’s breadth of experience, his inquisitiveness and his understanding of policing operations. “I think he is in a position to help police officers understand their role.” Asked about the expenditures for the OIR in a time of tight budgets, he says, “What we’ll get is significantly greater than what is spent.”
VIEW FROM THE RANKS
Again with the assistance of Jeff Cardinale, I was able to meet with Jacky Parks, president of the Fresno Police Officers Association (FPOA). Parks is a forthright hearty man, the kind you’d like on your side. He is enthusiastic about the job his associates do, their work ethic, their commitment to improvement and their desire to keep their ranks clean of “bad apples.” He says that, compared with other cities, the Fresno P.D. is hyper-diligent in responding to public complaints, including third-party complaints (e.g., by detainees’ family members). “We are directed to send a uniformed officer to respond to any complaint–even though we can’t do that to, say, a burglary that is no longer in progress or a non-injury auto accident. Sometimes I wonder if that’s the best way to serve the public, but that’s how we operate.”
I asked Parks why the FPOA has been so opposed to the OIR. He said the reasons were not, as many believed, to protect against oversight, but because of cost. “They’re spending over $250,000 for this new office at a time when we’ve had to cut back more than 70 civilian employees who provide essential services. What is really more important to citizens–having the extra layer of oversight, or getting timely prosecutions?” Parks says that reviewing the results in other cities, he is doubtful the OIR will result in fewer lawsuits (where real cost-saving would occur) because there are always malcontents ready to sue. “I’d rather give the money to the District Attorney’s office, where at least there is the power of subpoena and prosecution. The OIR can’t do anything.” He believes that any problems with police misconduct that are not resolved by Internal Affairs (the in-house investigatory bureau) should be handled by the State Attorney General’s office. (I did reply that I thought that was not a feasible avenue of satisfaction for any but a very few of the most publicized cases of overt prejudice, violence or corruption.)
Parks is, however, favorably impressed with Aubrey. “Fresno is lucky to have Eddie on the job. He’s a super individual, with great integrity, experience and expertise. I do believe he will serve us well in educating us to best practices and how to do the job better. But we’re paying a huge fiscal price–I think someone from inside our ranks could be trained to do that job satisfactorily.”
As we exchanged viewpoints on controversial situations (like the Glen Beaty arrest, where he totally supports police actions, or drastic police response to putative lawbreakers like the Gap protesters or the homeless, which resulted in large monetary judgments against the city), I was struck by Parks’ decency and humane concern. But I was reminded, too, of feelings from when I attended the Citizens Police Academy. It is a sense of surety from police that right and wrong are black and white. Police officers take seriously their oath to protect the public against “bad guys,” and they seem very sure they know who those are. There is an absence of context, of reference to historical, sociological and psychological factors, and the existence of power structures and how these impact attitudes toward “law and order” and authority. As I listened to Parks, as to the officers at the academy, I was impressed by their dedication but disturbed by the blanket of justifications used to uphold their surety.
It remains to be seen if the OIR will save the city money via averted lawsuits, or if it will create greater trust in the oversight process through Aubrey’s presence on the scene. Still, I’ve come away from these conversations remembering the question raised in ancient Rome (and, for me, in Latin I), “Who will guard the guards?”- in this case, not so much against corruption as against imperviousness to others’ perceptions and judgments. My hope would be that Eddie Aubrey as the OIR can create mechanisms whereby citizens and the police are enabled to understand how their respective behaviors (no matter how they may be justified by oneself or one’s peers) can lead to confrontation instead of resolution. I told Parks that many people who complain about police conduct say they’d be content if they simply got apologies. To which Parks said, “We feel the same way.” Therein lies a tale.
A situation has been created that few are happy with. The police feel complaints are inevitable and mostly made by a few malcontents or those with personal agendas. The groups that pressed for independent oversight feel the internal processes of the police are hidden and not to be trusted. The man brought in to remedy this impasse is strictly limited in his powers. Still, if there is good will and patience, progress can be made. At least there is unanimity in believing that if it is possible to make this work, Eddie Aubrey is one man who can do it.
Richard Stone is on the boards of the Fresno Center for Nonviolence and the Community Alliance and is a member of Citizens for Civility and Accountability in Media (CCAM). Contact him at firstname.lastname@example.org.