12/2/2010 status conference in delphine allen v. oakland
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JOHN L. BURRIS, STATE BAR NO. 69888Law Offices of John L. BurrisAirport Corporate Centre7677 Oakport Road, Suite 1120Oakland, California 94621
Telephone: 510.839.5200Facsimile: 510.839.3882Attorneys for Plaintiffs
JAMES B. CHANIN, STATE BAR NO. 76043JULIE M. HOUK, STATE BAR NO. 114968Law Offices of James B. Chanin3050 Shattuck AvenueBerkeley, California 94705Telephone: 510.848.4752
Facsimile: 510.848.5819Attorneys for Plaintiffs
(Additional Counsel on Next Page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
DELPHINE ALLEN; et al;
Plaintiff,vs.
CITY OF OAKLAND, et al.,
Defendant.
MASTER CASE NO. C-00-4599 TEH
JOINT STATUS CONFERENCESTATEMENT RE NON-MONETARYSETTLEMENT ISSUES
Date: December 9, 2010Time: 10:30 a.m.Courtroom 2, 17 TH FLOOR
Honorable Thelton E. Henderson
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GREGORY M. FOX, STATE BAR NO. 070876Bertrand, Fox & ElliotThe Waterfront Building - 2749 Hyde StreetSan Francisco, California 94109Telephone: 415.353.0999Facsimile: 415.353.0990
Attorneys for Defendant CITY OF OAKLANDJOHN A. RUSSO, CITY ATTORNEY, STATE BAR NO. 129729RANDOLPH W. HALL, CHIEF ASSIST. CITY ATTORNEY, STATE BAR NO. 080142ROCIO V. FIERRO, SENIOR DEPUTY CITY ATTORNEY, STATE BAR NO. 139565OFFICE OF THE CITY ATTORNEYCITY OF OAKLANDOne Frank H. Ogawa Plaza, Sixth FloorOakland, California 94612Telephone: 510.238.3601Facsimile: 510.238.6500Attorneys for Defendant CITY OF OAKLAND
ROCKNE A. LUCIA, STATE BAR NO. 109349Rains Lucia Stern, PCAttorneys & Counselors at Law2300 Contra Costa Boulevard, Suite 230Pleasant Hill, CA 94523Tel: 925-609-1699Fax: 925-609-1690Attorneys for OAKLAND POLICE OFFICERS ASSOCIATION
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PLAINTIFFS CURRENT POSITION
This is a further status conference concerning the progress of the non-monetary settlement in
the Riders Litigation which was approved by the Court on January 22, 2003.
The IMTs most recent report stated that the OPD has dropped to full compliance with only10 of the 22 active Tasks meeting the requisite criteria. This is a decline in full compliance by one
Task. The OPD still has not achieved full compliance with critical parts of the MOU including Task
3 (IAD integrity tests), Task 5 (Complaint Procedures for IAD), Task 20 (Span of Control for
Supervisors), Task 24 (Use of Force Reporting Policy), Task 26 (Use of Force Review Board), Task
30 (Firearms Discharge Board of Review), Task 33 (Reporting Misconduct), Task 40 (Personnel
Assessment SystemPurpose), and Task 41 (Use of Personnel Assessment System) and Task 45
(Consistency of Discipline Policy).
The IMT did say that the Department has put considerable effort into remediating core
issues. However, this is not enough. The original NSA contemplated compliance within 5 years, 7
years maximum. It was clear then that the OPD was expected to achieve full compliance no later
than January 2010. The OPD did not achieve compliance during that time because, by its own
admission, it did not take the Agreement seriously for a significant part of the seven year period of
the agreement. During this same period of time, plaintiffs attorneys and others filed three additionalclass actions against the OPD, which cost the City of Oakland millions of dollars and exposed
deficiencies in the OPD that extended beyond the NSA. This, unfortunately, was only a small part of
the settlements, verdicts, and scandals that rocked the OPD during that time.
The agreement was then extended to 2012 by joint agreement between Plaintiffs counsel and
the City of Oakland. The City represented to the Court and plaintiffs counsel that there would be
compliance within that period. Unless there is some dramatic improvement in the next IMT report in
January 2011, full or even substantial compliance will not happen within the life of the MOU given
the one year compliance period that the OPD must achieve after full compliance is attained.
The OPDs attorney, Rocio Fiero, Chief Batts, and City Manager Lindheim each addressed
the Court at the last Case Management Conference. Each of them made statements worthy of
repetition and comment.
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Ms. Fierro said Theres simply no reason for the police department not to succeed. When you
look at the developments within police services, you can go back to the 1960s and a lot of what is
being asked of the Oakland Police Department is not new. Its frankly, not innovative. (Transcript
of Proceedings 16:8-11) We agree. This agreement was approved by highly regarded expertsretained by the City of Oakland as well as the OPD itself. The deadlines (long since passed) were
approved by the Police Department itself. Both Monitor teams picked by the parties were
recommended by the OPD and were their first choice. Yet the OPD is not in compliance with its own
agreement and its own deadlines, as measured by its own choice of Monitors. There is only one
reason for that failure: the conduct of the OPD itself.
Chief Batts said: We honestly, Judge, have challenges with following up and following
through. We are solving those. We have dropped the ball, and havent focused on the core issue of
leadership. We are changing that. (Transcript of Proceedings 30: 8-11). We agree that the OPD has
dropped the ball. And it is possible that they are changing that. Yet the OPD was recently
admonished by the Court because their weekly reports do not contain a sufficient appraisal of the
work that needs to be done for the OPD to attain compliance. In fact, the reports are far too positive
given the OPDs level of compliance and even contain complaints that the IMTs rules are unfair.
This is not real change. How long before the OPDs claim that they have changed is translated intocompliance with an agreement that should have been honored long before now? How long before the
OPD will attain compliance? The time is now. Otherwise, there must be immediate, severe
consequences, the same consequences any of us would face if we failed to abide and live up to an
order of the United States District Court.
City Manager Lindheim said: Fortunately and finally, an understanding and an ownership is
taking place. There should have been ownership eight years ago. No dispute. Should have been
ownership eight years ago, six years ago, four years ago. Im observing that there wasnt. Im not
making an excuse for that. Its an observation. To me, one of the most important things that is taking
place is that there is ownership It may require the hand of the court to some extent, heavy or
otherwise (Transcript of proceedings 53:19-25). (Emphasis added)
Plaintiffs counsel agree with the City Manager that the OPD has neglected to take responsibility
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for the agreement in the past. Perhaps, the City Manager is correct that there is finally some
awakening of the responsibility of the OPD to comply with the agreement that is a Order of this
Court. The problem is that there is no objective measure to date that verifies his contention that the
OPD has changed.The time has come and gone for promises. There must be performance and meaningful
recognition of past failures. The proof of what the OPD and the City of Oakland really means by
taking ownership will become readily apparent in the next 90 days.
In January, 2011, the IMT will issue its next report. Plaintiffs attorneys hope there will be
sufficient compliance at that time so that there will be no need for significant further action by either
plaintiffs counsel or the court. However, given both the recent and past performance of the OPD,
plaintiffs counsel are not optimistic that there will be anything approaching full compliance with the
MOU by January 2011.
If there is no compliance, the City will have to decide if it is willing to enter into a new
agreement. The new agreement should not be like the old agreement. The OPD rejected sustained
technical assistance at the time of the drafting of the current MOU. It took a court order to force
them to accept technical assistance by the IMT. The new agreement must have more technical
assistance. It must embrace the concept that there must be on site, sustained, technical assistance bythe IMT. This may include having some on site technical assistance on a far more sustained and
massive level than the current technical assistance. It may include having some people available on a
daily basis. There can be no further delays in compliance and the OPD must agree to whatever it
takes to achieve compliance now.
There must also be personal responsibility for the OPDs failure to comply if that in fact occurs.
This means that command staff will have to take personal responsibility for compliance and be
replaced, by outside people if necessary, it the OPD does not attain compliance. A special master
may have to be appointed if there is no significant change in compliance levels.
The above recommendations are just a small part of what will become plaintiffs attorneys
position if there is no compliance by January 2011. We will not sign any new agreement unless it
contains mechanisms satisfactory to all the parties that guarantee immediate compliance in a short
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period of time.
Plaintiffs attorneys recommend that, assuming there is no compliance by January 2011, that the
parties be given no more than forty-five days to reach a new agreement. Plaintiffs attorneys do not
believe that a magistrate would be helpful in reaching a new agreement due to the time constraints inthe MOU, the departure of Judge Larson who knew the most about the agreement, and the familiarity
of the parties with each other and the issues at hand.
If no agreement is reached by early March, 2011, plaintiffs attorney recommend that the parties
will meet and confer as to appropriate dates for plaintiffs to bring motions concerning the OPDs
lack of compliance and the remedies for it. We will then ask the court to advise the parties if the
dates are acceptable to the Court.
Plaintiffs counsel recommends a further Case Management Conference take place at the end of
January, 2011. At that time, the court will be able to see if the OPD is in compliance and the parties
will have a chance to review the IMTs January 2011 report. The parties should also be able to report
if there is any agreement as to how the parties should proceed and/or negotiate in light of the IMTs
January 2011 report.
DEFENDANT CITY OF OAKLANDS POSITION
I. BASED ON OPDS PROGRESS ACHIEVING SUBSTANTIAL COMPLIANCE, THECOURT MAY ALLOW THE ONE-YEAR SUSTAINABILITY PHASE TOCOMMENCE IN JANUARY 2011.
As demonstrated below and in the accompanying Exhibits the Oakland Police Department
will achieve the goal of substantial compliance with the MOU for almost all tasks by January 15
2011. We will be ready to move into the final phase of the MOU and will be ready to complete
within one year a showing of sustained collective practice compliance for all remaining MOU Tasks
by January 15, 2012. At that time it is the expectation of OPD that the Monitors term of office will
come to an end and the parties will be able to submit an Order of Final dismissal to this honorable
court. Failure is not an option. There is no need for a receiver. The command staff of OPD under
the leadership of Chief Batts has demonstrated that they are capable of running a police department
committed to Constitutional policing in accordance with contemporary state and national police
practices. OPD is also committed to community policing responsive to the needs of the citizens of
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the City of Oakland. Lawsuits and crime are both down. Notwithstanding economic budget
constraints and massive layoffs the OPD has continued to both serve the people and meet the
requirements of the MOU. At this time OPD is able to police itself in accordance with the NSA and
the MOU.This is an ambitious statement of success. And there may be disagreement regarding OPDs
position. But if the goal of the NSA and the MOU was to change the culture of OPD and put in place
internal systems ensuring Constitutional policing, it is undisputed that those goals have been
substantially achieved. All the parties and the Monitor working together with the assistance of the
Court can accomplish the collective goal of compliance. OPD is ready to continue to engage in
dialogue with the Court, the Monitor, the plaintiffs attorneys and counsel for the OPOA. If all
parties are unable to achieve a consensus opinion that OPDs statement of success is correct, then
OPD requests an evidentiary hearing with this court in open public proceedings to resolve any
differences that may continue to exist about OPDs compliance record.
OPD has been working with and engaging in dialogue with the Monitor. It is a relationship
that requires mutual respect and objectivity. OPD respects the role of the Monitors and their law
enforcement background. There may be subjective differences of opinion between OPD and the
Monitor about how to evaluate OPDs compliance efforts. But both the Monitor and OPD agree onone thing: if OPD is going to achieve the NSA/MOU goal of self sufficient and sustained
Constitutional policing, then OPDs reasonable positions and opinions must be respected and
acknowledged as good faith efforts of professional men and women who have made a long term
commitment to the organization and the people of the City of Oakland. That dialogue, transparency
and commitment must be encouraged by the Monitor and the Parties.
On August 31, 2010, the Court issued an order directing the City to identify senior executives
within OPD who would be responsible for achieving compliance in six specific areas. In response,
senior executives within OPD assumed responsibility for achieving compliance within the specified
areas, as follows: (1) Internal Affairs [Assistant Chief Howard Jordan], (2) Use of Force and
Supervisory Control [Deputy Chief Eric Breshears], (3) Stop Data [Deputy Chief Jeffrey Israel], (4)
the Personnel Assessment System [Deputy Chief Jeffrey Israel], (5) Training [Assistant Chief
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Howard Jordan] and (6) Discipline [Assistant Chief Howard Jordan]. This new work has not been
easy for these police executives whose schedules and work are hugely demanding. But they have
stepped up to the plate and continue to strive toward improving their weekly executive memos while
attending to their work in completing the reforms, providing leadership and support to OPDmembers, and keeping the Oakland residents safe.
To better understand OPDs standing and how to achieve success in this case, City defendants
endeavored to conduct an evaluation and review of their work 1) as accomplished under the previous
monitors, 2) based on the current monitors evaluations and findings, and 3) with increased internal
reviews and inspections. Based on this internal analysis and due to the commitment of individual
command staff, the increased technical assistance of the monitors approved by the City Council just
prior to the last status report, and the support of all members of OPD and the parties, the City believes
that OPD will have achieved or will be close to achieving substantial compliance by December 31,
2010, ensuring the timely commencement of the one-year sustainability period on the remaining
tasks.
II. OPD HAS ACHIEVED PROGRESS ON ALL 22 REMAINING TASKS AND FULLPRACTICE COMPLIANCE ON 10 TASKS
The Monitor's Third Quarterly Report of October 19, 2010 (using April-June, 2010 data)found the Department continued to be in full Phase I compliance (100%) with all 22 Tasks currently
being monitored. Monitor's Third Quarterly Report. In addition, the Monitor reported that OPD was
in practice compliance with 10 tasks. Four of those tasks attained one-year sustained compliance.
And OPD now believes it has or will achieve practice compliance by December 2010 or early
January 2011 with 10 additional tasks. For the two remaining Tasks, Task 5, Complaint Procedures
(partial compliance), and Task 41, Use of Performance Assessment System, (out of compliance),
OPD believes it is close to reaching compliance but may need until the first or second quarter of 2011
to achieve it. There is confusion over Task 20, Span of Control for Supervisors. The previous
Monitors allowed OPD to use certified acting sergeants, and OPD is significantly complying with this
Task under agreed-upon methodology. The current Monitor, however, has a different opinion about
allowing acting sergeants. OPD does not believe that it can meet the Monitors requirement for this
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task if acting sergeants are disallowed because of OPDs reduced budget and staffing levels, and due
to the 15% non-discretionary time away from work to which OPD sergeants are entitled. OPD is
optimistic, however, that a viable solution can be reached with the Monitor and has submitted to
proposals that may remedy this issue. We also ask the Court for its assistance so that this issue canbe promptly resolved.
OPD has worked hard and made real strides toward reaching compliance in 2010. The
Department acknowledges that its progress in the early years of the Negotiated Settlement Agreement
was significantly deficient, but the Monitor noted in his Third Quarter Report, "we credit the Chief
with a new rigor and infusion of commitment to organizational change." Third Quarterly Report, p.
2. A very significant component of the progress made this year has been Chief Batts' commitment to
leadership, accountability and institutionalizing the changes so that they become an integral part of
how the Department operates and will continue to operate in the future.
III. FOUR TASKS HAVE REACHED SUSTAINABILITY AND SHOULD BE REMOVEDFROM ACTIVE MONITORING
The Parties, with the assistance of the Court and the former IMT, agreed in the MOU that
those tasks which achieved compliance and a one-year sustainability period shall be removed from
active monitoring. (MOU, p. 6, 20.) Since the last court appearance, OPD can now report that fourtasks have shown sustained compliance for at least one year. Therefore, the City respectfully submits
that these tasks may be removed from active monitoring.
These tasks are:
Task Description When Compliance Achieved
2 Timeliness June 2009 (Aug-Oct 2008 data)
4.7,
4.10*
Complaint Control / Closures May 2009 (July '06-Aug. '08 data)
35 Use of Force - Witness
Identification
January 2010 (Nov. '07 - Feb. '09 data)
43.1.1* Training Plan July 2009 audit from prior IMT
*These are the only subtasks being monitored for these Tasks.
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Recent OIG reviews have shown continued compliance with these tasks, including 100%
compliance with Task 35. Monitor reports reflect continued compliance. There is no reason to
believe that compliance with these Tasks will not be maintained post-monitoring. See Ex. 1, Report
of Chief Anthony Batts ("Chief's Report") for a more detailed description of the compliance recordfor these four Tasks. The Citys MOU Histogram for these Tasks serve to illustrate the compliance
findings and analysis which substantiate sustainability of compliance. See Ex. 6, Histogram.
IV. SIX OTHER TASKS WHICH THE MONITOR FOUND COMPLIANT CAN NOW
COMMENCE THE ONE-YEAR SUSTAINABILITY PHASE
OPD is in practice compliance with six other tasks:
Task Description When Compliance Achieved
6 Refusal to Accept or Refer
Citizen Complaints
Monitor's First Quarterly Report (Oct. -
Dec. 2009 data)
7.3 Anonymous Complaints Monitor's Second Quarterly Report (Jan.
- Mar. 2010 data)
16 Supporting the IA Process Monitor's Second Quarterly Report (Jan.
- Mar. 2010 data)
18.2.2 Witness Identification Monitor's First Quarterly Report (Oct. -
Dec. 2009 data)
25 Use of Force Investigations Monitor's Third Quarterly Report (Apr. -
June 2010 data)
37 Retaliation against Witnesses Monitor's First Quarterly Report (Oct. -
Dec. 2009 data)
The Department has been in compliance with Tasks 6, 18.2.2 and 37 since the First Quarterly
Report, in compliance with Task 7.3 since the Second Quarterly Report and in compliance with Task
25 since the Third Quarterly Report. The Monitor found 100% compliance with Task 7.3. The Third
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Quarterly Report does not provide any reason to believe that compliance with these Tasks will not
continue. Pursuant to the Parties MOU the City respectfully requests that these tasks be moved into
the phase of demonstrating practice compliance for one year.
V. OPD INTENDS TO ACHIEVE COMPLIANCE FOR 16 ADDITIONAL TASKS BY
THE NEXT REPORTING PERIOD
The Monitor's Third Quarter Report found the Department to be in partial compliance with
seven Tasks (3, 5, 20, 24, 26, 30 and 45) and out of compliance with three Tasks (33, 40, 41).
Assessment was deferred for Tasks 34 and 42. Those assessments were based on data from April
through June 2010. Now, over five months later, the Department believes it has achieved compliance
with Tasks 3, 20, 24, 26, 30, 33, 34, 40, 41 and 45 and that the Monitor's future audits will reflect that
success.
The Department appreciates the assistance of the current Monitor and realizes that the
"macro" issues facing OPD are the key to making sure the "micro" issues are resolved and that
changes become institutionalized. Ex. 1, Chief's Report. The implementation of these changes on a
"macro" level was reflected most recently in November 2010, when the Department handled a large
demonstration following the Mehserle sentencing - the third large-scale crowd control incident in asix-month period. Due to planning, training and coordination with outside groups, the Department
was able to limit property damage, use of force and complaints. Ex. 1, Chief's Report. OPD
continues to work with community leaders to further develop and strengthen its community policing
program, and despite significant budgetary challenges overall violent crime is down 14% in Oakland.
Ibid. As this Court noted at the May 9, 2010 hearing, it is clear significant strides have been made
toward making the Department more effective and more responsive to the community it serves.
Due to the renewed commitment of OPD command staff in 2010, the Department expects to
achieve substantial compliance on the following Tasks by December 31, 2010, or within the First
Quarter of 2011. At that time OPD recommends these Tasks be moved into the on-going one year
period of monitoring sustained compliance for all Tasks. It may not be necessary given the overall
status of the MOU to submit these tasks to a full one year of demonstrating sustained compliance.
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Task 3: IAD Integrity Tests
This Task has two subparts: Task 3.1, which requires IAD to conduct integrity tests where
members are the subject of repeated allegations of misconduct (compliance standard: Yes/No) and
Task 3.2, which requires that IAD's integrity tests be conducted in accordance with IAD standards(compliance standard 90%). The Monitor found IAD successfully conducted a total of 11 integrity
tests. This represented a nearly threefold increase over 2009, when only four integrity tests were
conducted. Ex. 4, December 3, 2010 Report of Assistant Chief Howard Jordan. p. 2. Despite the
success on all 11 tests and the Monitor's acknowledgment that "OPD has made progress in integrity
testing," the Third Quarterly Report indicated "the Department's methods need to be more effective if
the Department is to achieve consistent, reliable testing that helps the Department perform at a high
level absent a high level of complaints." Third Quarterly Report, p. 11.
The Department has taken the following steps to improve the Integrity Testing Unit and
testing methods:
The Department drafted a policy and a new General Order (M-3.3) to enhance the frequency
of testing by using members from other Bureaus to conduct additional tests.
New IAD Commander Figueroa, formerly the Inspector General, is reorganizing the Integrity
Testing Unit ("ITU"), effective mid-December 2010 to enhance efficiency. An additional experienced supervisor will be added as part of the reorganization to assist with
testing.
Executives responsible for this Task consulted with LAPD in September to learn about their
integrity testing, and the has already begun to implement some of these strategies. Plans are
in the works to hold a Bay Area law enforcement IAD integrity testing meeting to exchange
ideas regarding this essential policing concept.
A law enforcement consultant is reviewing the integrity testing program in order to provide
additional recommendations to enhance efficiency and effectiveness.
In early December, the Chief approved additional staffing for ITU to allow for more frequent
and more focused testimony.
Ex. 4, Jordan Report, pp. 2-3. Assistant Chief Jordan believes OPD will be in full compliance
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with Task 3 by the end of the year or shortly thereafter. Id. at p. 3.
Task 20: Span of Control
Currently subtask 20.2 is the only portion of Task 20 deemed not in compliance. Task 20
requires a span of control ratio of at least one supervisor for every eight members. In 2009 manyfield units did not meet the 1:8 ratio, and the Department saw spans of control up to 1:16. Ex. 5,
Report of Deputy Chief Eric Breshears ("Breshears Report"), p. 1. The new Monitor acknowledged
that 98% of the total squads reviewed now meet the 1:8 span of control ratio. Third Quarterly
Report, p. 31.
Subtask 20.2 requires that relevant squads be supervised by their primary, or assigned,
supervisors 85% of the time. The Monitor found 76% of the squads reviewed were supervised by
their primary supervisors (up from 71% during the last reporting period), and 13% were supervised
by certified acting sergeants. Third Quarterly Report, p. 32. The Monitor stated: "we considered
certified acting sergeants to be primary supervisors if they were assigned to supervise their particular
squads; we considered them in compliance if the Department's weekly Personnel Orders listed the
certified acting sergeants' acting assignments." Ibid. The Monitor's findings of 76% supervision by
primary supervisory and 13% by certified acting sergeants adds up to an 89% compliance level,
which exceeds the compliance standard. Nonetheless, the Monitor found OPD out of compliancewith subtask 2.2.
The prior monitoring team also determined that certified acting sergeants would be considered
primary supervisors in recognition of the fact that "vacations, training, sickness, and the like will
prevent every squad from being supervised by their primary supervisors every day." See Ex. 5,
Breshears Report. The former IMT added, "we considered the assigned supervisors to be the
primary supervisor, even where the assigned supervisor was a certified acting sergeant rather than a
real sergeant or the squad to which the supervisor was assigned was open." Ibid.
Although both current and former monitors stated that certified acting sergeants would be an
acceptable substitute for primary sergeants, it appears that in practice the current Monitor is not
accepting these substitutes. If the certified acting sergeants were accepted, OPD would have been in
compliance for almost a year now, and this Task would be poised to be transferred to the one-year
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sustainability stage. Ex. 5, Breshears Report.
If the current Monitor continues not to accept certified acting sergeants, OPD does not believe
it will be able to achieve compliance with subtask 20.2. It should be noted at the outset that OPD
understands the Monitor's concern about the use of acting sergeants and supports the goal of achieving 85% supervision of field squads by their primary or assigned supervisors. Ex. 5, Breshears
Report. As a consequence, the Department has transferred additional sergeants to field duties to try
to minimize the use of acting sergeants. Ex. 1, Chief's Report. Nonetheless, an analysis of non-
discretionary leave time (vacations and mandatory training) for supervisory personnel for relevant
field units disclosed that supervisors were present on the job less than 75% of the time between
November 2009 and November 2010. Ex. 5, Breshears Report. Based on this analysis, OPD does not
believe it can meet the 85% compliance standard if certified acting sergeants are now disallowed.
Task 24 and Task 40: Use of Force Reporting Policy / Personnel Assessment System
The Monitor found OPD in compliance with all subtasks in Task 24 except for subtask 24.9,
which requires OPD to enter use of force data into the Personnel Assessment System (PAS). The
Monitor expressed concern that while iPAS included information on the use of force, the information
was limited, which may restrict its utility to supervisors when they review IPAS.
Previous monitors assessed Task 24.9 as a part of PAS review for Task 40 since therequirements were considered redundant. The level of detail in iPass was not considered insufficient
by the previous Monitor, who found OPD in compliance with Task 24.9. Ex. 5, Breshears Report.
The Department is looking at methods to capture additional information in the system, but it believes
it is in compliance with its policy and the Task. Ex. 1, Chief's Report.
The Third Quarterly Report found Task 40 out of compliance. This Task has 22 subtasks, and
the Monitor reported that subtask 40.2 was the focus of his concern. Subtask 40.2, which has 21 sub-
categories, requires that iPAS data contain information on each element required by the NSA
(compliance standard Yes/No). The Monitor expressed his belief that the newly identified problems
with the system could be corrected by "setting short time frames for when each individual data type
would need to be entered into the system, and posting those timeframes in the system so that users
could understand the currency of all data." Third Quarterly Report, p. 57. This would involve
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quality control measures similar to those already implemented by the Department. Id.
One specific criticism was that certain arrest data was not timely entered. OPD is now
entering all arrest data manually on an overtime basis within 10 days of arrest. OPD expects the
technology Motorola is developing to allow electronic transfer of arrest data from the County of Alameda to OPD to be fully deployed by April 2011. In the meantime, it will maintain compliance
through manual entry. Ex. 2, Report of Deputy Chief Jeffrey Israel ("Israel Report"), p. 4. In
addition, OPD has implemented a number of quality controls to improve both the quality and
timeliness of iPAS data. For example, every custodian of record for each data element must
complete a weekly report documenting the status of data entry efforts, including identification of
backlogs and the reasons therefor so that any timeliness problems can be resolved quickly. Daily,
weekly and quarterly reports and audits will continue to make sure that problems are identified and
quickly resolved. See full list of quality control measures in Ex. 2, Israel Report, p. 4.
The Monitor also was critical of the quality of the data and, despite extensive efforts to ensure
that data is accurate and complete, OPD agrees that further action is needed to provide the highest
quality data. Id. at p. 5. OPD has develop a plan to improve the data to meet compliance standards
by December 31, 2010. The plan has four action components:
1) Each responsible Custodian of Record will identify specific deficiencies affecting data entry,accuracy and completeness by December 8, 2010, develop a sustainable plan to correct the
deficiencies and identify a responsible Commander or other Executive Team member
responsible for implementing the plan.
2) OIG will audit Task 40 before December 24, 2010, focusing on the requirements of the Task
and the effectiveness of the solutions implemented to address the deficiencies identified by
the Custodians of Record.
3) OIG will assess the effectiveness of existing quality controls and recommend further audits or
other measures to provide effectual quality control for timely entry and data sufficiency.
4) OPD is transitioning to EVALIS, a more advanced and easier to us direct data entry system
that will automate supervisory review and provide the ability to enter use of force and other
performance data (pursuits, canine deployment, etc.) directly into iPAS, eliminating the
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current timeliness and quality problems. EVALIS also allows reviewers easy access to
reports not currently accessible online.
Ex. 2, Israel Report, pp. 5-7.
Task 26: Use of Force Review Board and Task 30: Firearms Discharge Board of ReviewThe only portion of Tasks 26 and 30 that have been out of compliance related to holding the
use of force boards in a timely fashion. Previously, FRB hearings were timely 88% of the time, but
the compliance standard is 95%. OPD corrected the problem leading to the delays, and audits by
OIG's auditing consultant showed consistent compliance for the available data period, July-
September 2010. Ex. 1, Chief's Report.
Task 33: Reporting Misconduct
Task 33 has been out of compliance for two years due to a 2008 case in which OPD did not
maintain the confidentiality of a member who report misconduct. OPD disclosed the information
because it believed the due process requirements of Skelly hearings mandated disclosure. The City
Attorney's office concurred with this conclusion. Members who report misconduct do so
anonymously for the most part, and there has only been one confidential case since then. That 2009
case, in which confidentiality was maintained, was never reviewed by either monitoring team.
Because OPD maintained confidentiality in the only case generated since the 2008 case, and sinceconfidential complaints are rare, OPD believes it is in compliance with this Task. Ex. 4, Jordan
Report, p. 7.
Task 34: Vehicle Stops, Field Investigations and Detentions
The Monitor deferred assessment of this Task due to issuance of a new policy in June 2010.
The Task requires collection of stop data information (compliance standard 90% for 34.1.1, 85% for
34.2, Yes/No for 34.3.1 and 85% for 34.3.2). Third Quarterly Report, p. 49; Ex. 2, Israel Report, p.
1. As set out in more detail in Deputy Chief Israel's Report, pp. 1-3, Ex. 2, the persistent problems
created by handwritten forms and inaccurate and incomplete spreadsheets and databases have been
eliminated by the new capability to collect all stop-data electronically.
With new specially customized software OPD can now collect the data, identify encounters
requiring stop data collection, locate related documentation, including CAD entries and verify that
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the data was collected. Ex. 2, Israel Report, p. 2. Using this technology, OPD now performs regular
reviews to assess compliance. These reviews regularly show compliance rates exceeding 95% in
each sub-task. In addition, the OIG and an outside consultant audited stop data for 584 stops during
July-September 2010. The audit disclosed that officers were entering the required data 97% of thetime and that the data could be searched, queried, summarize and reported. Id. at p. 3. Thus, OPD is
confident that it is compliant with Task 34.
OPD also has gone beyond the requirements of the NSA. On the recommendation of the
Monitor, OPD implemented a new policy requiring officers to provide radio information about the
gender, race and age of the contact and the purpose of the contact. Id. at p. 3. The Department
agreed with the Monitor that information would be valuable, and built the procedure into the revision
of its policy. Ex. 2, Israel Report, p. 3.
Task 45: Consistency of Discipline Policy
The Second Quarterly Report found OPD in compliance with this Task. The Third Quarterly
Report found only partial compliance due to the fact that three out of 29 cases audited did not have
discipline dates entered into the database. The Department believes only one of these three cases
may have been out of compliance, which would not have resulted in a noncompliance finding. For
the reasons outlined in Assistant Chief Jordan's Response to the Draft Third Quarterly Report, Ex. 3,p. 6, there appear to have been valid reasons the discipline dates were not entered in the other two
cases. OPD believes it has been and will continue to be in compliance with this Task. Ex. 4, Jordan
Report, p. 8.
VI. OPD IS WORKING DILIGENTLY TO ACHIEVE FULL COMPLIANCE WITH
TASK 5 AND TASK 41 BY THE FIRST QUARTER OF 2011
Task 5: Complaint Procedures for IAD
OPD has remained in compliance for all three quarterly reports for nine out of the 14 subtasks
for Task 5. Ex. 4, Jordan Report, p. 3. Following is the status for the subtasks not yet in compliance:
5.4: collection and documentation of information on receipt of complaints
This subtask requires that certain information be recorded when OPD staff receives a
complaint. One place where this information is documented is the Daily Incident Log ("DIL"). The
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previous IMT found the Department in conditional compliance with this requirement based on a
determination that the DIL need not include all information as long as it had an incident number since
the DIL, the incident number and the complaint memoranda sent to IAD captured all necessary
information. Ex. 4, Jordan Report, p. 4.Every record reviewed by the current Monitor contained an incident number; thus, OPD
would be in compliance with this subtask under previous standards. The current Monitor, however,
does not accept the previous monitor's interpretation of compliance, and will look for all required
information to be recorded on the DIL regardless of whether it contains an incident number.
Accordingly, in September, 2010, the Department began conducting weekly audits of the DIL to
ensure that all required information was captured. The Department also trained Communications
Section staff to make sure they are aware of the new requirements. Ex. 4, Jordan Report, p. 4.
5.15 and 5.16: consideration of all evidence, making credibility determinations and resolving
inconsistent statements
The lack of thorough credibility assessment continues to be a challenge for Division Level
cases. OIG's audit for cases from October 25 to November 17, 2010 (before the cases were turned
into IAD) found excellent documentation of thorough credibility assessments in some case, but others
had to be returned to the Bureaus for further work-up. Ex. 4, Jordan Report, p. 4.OIG also audited several IAD cases in the last month, including closed and new cases and
found that all relevant evidence had been collected and adequate credibility assessments had been
done in 95% of the cases. In 90% of the cases, all necessary statements had been taken. To address
pre-IAD cases deficiencies, the Department provided training to investigators on documentation of
their credibility assessments and has taken corrective action against command level officers who have
approved cases without sufficient credibility assessments. Ex. 4, Jordan Report, p. 4.
5.17: retention of investigative notes
OIG's August 2010 audit revealed the Department is now in compliance with this subtask,
which requires investigative notes to be retained for internal investigation. A more recent review of
39 IAD cases confirmed this finding. See Ex. 4, Jordan Report, pp. 4-5, for further detail regarding
these audits. Ex. 4, Jordan Report, p. 4.
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5.18: preponderance of evidence standard
This subtask requires that OPD resolve all allegations in a complaint using the preponderance
of evidence standard. The Third Quarterly Report showed OPD had an 84% compliance rate
(compliance standard 90%) OIG's review of recent cases found a 90% compliance rate. Ex. 4,Jordan Report, p. 5.
The Department has undertaken a number of steps to gain compliance with Task 5, including:
1) Scheduling additional division level investigation training for January 2011, including
credibility assessments and preponderance of evidence standards;
2) Honing IAD's focus on credibility assessments within Division Level investigations;
3) Maintaining personal contact between Division Level investigators and reviewers when
reviewers observe inadequate credibility assessments, providing guidance on how to correct
the deficiencies and advising the investigator's Bureau Commander of inadequate credibility
assessments;
4) Continuing OIG audits of Division Level and IAD investigations;
5) Retaining a use of force expert, pending approval of funding, to provide use of force
investigation training to supervisors/commanders at OPD.
Ex. 4, Jordan Report, p. 5.The Department believes the impact of the steps taken will show up in audits in the near
future and that compliance with the above subtasks can be achieved by the first or second quarter of
2011. Ex. 4, Jordan Report, p. 5.
Task 41: Use of Personnel Assessment System (PAS)
With respect to Task 41, which focuses on the use of PAS, OPD has had extensive
conversations with the Monitor regarding this Task. It demonstrated iPAS to Plaintiffs' attorneys and
to the Monitor, after which Mr. Burris stated: "This is exactly what we envisioned." Ex. 2, Israel
Report, p. 16. The Monitor brought law enforcement officials from Detroit to Oakland to view the
iPAS system, and the system recently was demonstrated to Berkeley Police Department officials. Id.
In the Third Quarterly Report the Monitor expressed "the highest regard for the dedicated
staff working on the risk management system and for those in OIG who oversee the compliance
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process. In fact, PAS, which had received strong reviews prior to our first visit, has continued to
improve over time." Third Quarterly Report, p. 65. The Monitor also acknowledged the significant
steps OPD had taken to increase supervisory review of the data. Id. at p. 63.
OPD initiated a comprehensive review of each of the 41 sub-tasks of Task 41 to assessprogress and review recommendations. The results were promising. Twenty-six subtasks (63%) are
in compliance and five are believed to be in compliance but require further inspections. (See Ex. 2,
Israel Report, pp. 7-16 for greater detail regarding the subtasks currently in compliance.) Thus, 31
(76%) of the subtasks either are in compliance or are believed to be in compliance. Compliance for
seven subtasks could not be determined and require further review. Two subtasks are not in
compliance. Ex. 2, Israel Report, p. 7. One subtask cannot be assessed currently. One subtask was
not applicable and was not assessed. Id. at p. 11, subtask 41.14.
1. Tasks for which OPD Believes Compliance Will Be Found
The five subtasks for which OPD believes compliance will be found, and the basis for OPD's
belief are set forth below. All page number references are to the Israel Report, Ex. 2.
41.7: quarterly supervisory review and analysis
Commanders/managers prepare Quarterly PAS Command Review Meeting Reports
documenting their review of PAS data for personnel under their chain of command to detect patterns.The reports have steadily improved and are tracked by the PAS Administration Unit. (Page 9.)
41.19: extension of PAS jurisdiction beyond one-year
Intervention has been extended for at least three months for three members. OPD believes an
audit will show this subtask to be in compliance. (Page 12.)
41.21: Quarterly watch commander/manager meetings with supervisory staff to identify
problems
PAS Command Review Meeting Reports track attendance, document supervisor assessments
of subordinates and identify potential or actual performance problems. Reports are tracked by the
PAS Admin. Unit, and all reports have been submitted for 2008 through the second quarter of 2010.
(Pages 12-13.)
41.21.1: consideration of all relevant PAS data at meetings
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The above-referenced meetings consider all relevant PAS data to look for potential patterns of
at-risk behavior, use of force, sick leave, line-of-duty injuries, narcotics-related offenses and vehicle
collisions. As noted above, PAS Command Review Meeting Reports document the meetings, and all
reports have been submitted through the second quarter of 2010. (Page 13.) 41.21.3: appropriate action taken
Recent reports show improved documentation that commanders/managers have taken
appropriate action where patterns of at-risk behavior or misconduct are identified. (Page 13.) The
Third Quarterly Report acknowledged that supervisory and command sign-offs showed a "much
greater attention to detail. "Notes were longer and more detailed, and informal corrective measures
were common." Ex. 3, Third Quarterly Report, p. 63.
2. Tasks for which Compliance Is yet To Be Determined
41.15: documentation of intervention options
The vast majority of PAS Activity Reviews received by the PAS Admin Unit reflected one or
more of the four potential dispositions. Oversight and supporting documentation have been
monitored closely by Deputy Chief Israel and have improved. An audit is necessary to determine
compliance. (Page 11.)
41.16: minimum monitoring of three months for those under supervisory monitoringCompliance cannot be determined until the Admin Unit receives reports returned for
additional work. (Page 11.)
41.17: minimum monitoring for 12 months for those under intervention
Compliance cannot be determined until the Admin Unit receives reports returned for
additional work. (Page 11.)
41.20: quarterly review of subordinate commander/managers/supervisors
All report have been submitted, and compliance will be determined upon review of these
reports. (Page 12.)
41.23: supervisory development of plans to ensure accountability and address problems
Compliance is to be determined upon review of these plans. (Page 13.)
41.24: PAS information taken into account for other employment actions
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Although internal audits show extensive use of the PAS system for the required purposes
(such as when a member/employee is up for commendation, promotion, transfer or special
assignment), an audit of specific materials is necessary to determine compliance. (Page 14.)
41.26: PAS information taken into account for discipline for sustained misconduct allegationsThe Monitor audits IAD for this task. (Page 14.)
41.27: commanders/managers schedule PAS review within 20 days of notification of
threshold
Due to delayed reports and reports returned for additional work, compliance cannot be
determined until reports are resubmitted. (Page 14.)
3. One subtask could not be assessed
Subtask 41.4 requires retention of PAS data for five years. The system has not been live for
five years, so no final assessment is possible at this time. DIT assured the Department that iPAS will
maintain data for at least five years. Paper copies will be maintained in the PAS Administration Unit
for a minimum of five years per PAS Policy II, H. (Page 8.) Conditional assessment may be
appropriate for this subtask since final assessment is not possible.
4. Subtasks not in Compliance
41.19.1: additional review meetings at least every three months when PAS jurisdictionextended beyond one year
Internal review revealed that two members were not reviewed by their designated
commander/manager and immediate supervisor within the required time period. (Page 12.)
41.25: timely documentation of intervention strategies
Notification should be made within 10 days, but they are not reported in a timely manner.
Although the Monitor acknowledged the substantial progress made by OPD during the April-
June period covered by the Third Quarterly report, he also voiced concern that the data did not reflect
the number of expected potential risks, that the information in iPAS was limited and that the review
process did not adequately explain findings in some of the cases reviewed. Although "optimistic"
about the Department's progress, the above concerns led the Monitor to question the reliability of the
data and issue a finding of non-compliance. Third Quarterly Report, p. 63
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Subjects are identified for risk assessment when they cross a complaint threshold, are referred
by their supervisors or meet a single event threshold. OPD consulted with Dr. Walker from U.C.
Berkeley to develop a histogram comparison formula. The IMT, OPD and Dr. Walker approved the
histogram analyses and process for identifying outliers in place of the original standard deviationprocess because histogram review is a more efficient way to identify actual outliers. During the April
2010 histogram reviews, over 7% of the Department's sworn staff was identified using the current
and approved histogram review process. Ex. 2, Israel Report, p. 19.
The process used by the Monitor, however, found only one quarter of one percent of sworn
officer met requirements for PAS meetings, and the Monitor noted that standard deviation from the
mean should select 5% of the group. Third Quarterly Report, p. 62. The April 2010 histogram
analysis exceeded this expected 5% deviation. The chart on p. 19 of the Israel Report, Ex. 2, reflects
some of the reasons why outliers were not recommended during the April 2010 histogram analysis.
Over half of the outliers actually had zero or less than two incidents since their last review or were
currently in the review or intervention stage. Review based on peer group comparison, not simply
raw numbers, leads to much more effective review and identification. Ex. 2, Israel Report, p. 20.
While OPD values the significant input and assistance the Monitor has given the Department
regarding Task 41, it is concerned that the Monitor is assessing compliance using criteria unrelated tothe NSA or compliance standards. One example is the risk management chart (dashboard) that
appeared in the Second Quarterly Report. Such a comparison chart does not appear anywhere in the
agreed upon compliance standards, the NSA, or the MOU. OPD was assured by the designated
assessor and the Monitor that the chart would not be used to assess compliance. Ex. 2, Israel Report,
p. 17. Nonetheless, in the Third Quarterly Report, the Monitor indicated he would continue to
assemble dashboard data as a means of tracking PAS implementation. The Monitor's inability to
replicate the dashboard created in the Second Quarterly Report with data from the third quarter
reporting period led to the concerns over data reliability. Third Quarterly Report, p. 65. OPD will
cooperate with the Monitor to discuss a revision of compliance standards, but the Department does
not agree that the dashboard is an effective assessment tool. Ex. 2, Israel Report, p. 17.
The Monitor also was critical of the failure to automate the review element of the PAS
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system. Third Quarterly Report, p. 63. OPD is not required to automate this process, and compliance
should not be withheld for failure to perform a task not previously agreed upon by the parties. See
list of all subtasks for Task 41 in Ex. 2, Israel Report, pp. 7-16. Notwithstanding this, the PAS
Administration Unit does maintain a PAS Notification database that tracks case status from openthrough closed. Review progress also is computerized. Ex. 2, Israel Report, p. 20.
The Third Quarterly Report reflected concern over the level of detail in the PAS data,
specifically the lack of narrative regarding the circumstances for use of force events. This lack of
detail meant supervisors would have to request copies of original reports to conduct a thorough
assessment. Third Quarterly Report, p. 63. While OPD agrees that providing more data in iPAS
would be useful, the NSA does not require it, and it is not a basis for determining compliance. See
list of all subtasks for Task 41 in Ex. 2, Israel Report, pp. 7-16.
Notwithstanding this, OPD recently implemented several improvements suggested by the
Monitor that exceed NSA requirements. The Department employed EVALIS, an advanced system
that allows direct data entry for use of force, vehicle pursuit and other high-risk incidents. EVALIS's
workflow component also will allow the chain of command to have more input during the review
stage as is described on p. 5 of the Israel Report, Ex. 2. In addition, bi-weekly PAS inspection
meetings provide significant opportunities to share information and strategies, and the CITY's Risk Manager recently provided additional training regarding reducing and managing risk. Third, all OPD
commanders are scheduled for training to improve data analysis and documentation. The Deputy
Chiefs continue to inspect individual supervisory analyses for sufficiency both of analysis and of
justification for recommended action. Id. at p. 21. Semi-annual PAS Administration Unit reports
comparing use of force incidents, complaints, sick leave and vehicle collisions by bureau and sub-
units can be used to determine whether a member is below or above the averages for these units.
While not 100% compliant with Task 41, OPD strongly believes that through the PAS
program and iPAS, the Department is achieving goals never before realized in Oakland. Ex. 2, Israel
Report, p. 18. The dozens of members identified for participation in supervisory monitoring and
intervention, along with the successful reduction of incidents of at-risk behavior, demonstrate the
effectiveness of the program. OPD is in compliance with 85% of the subtasks and is confident all
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subtasks will be in compliance by the first quarter of 2011. Ex. 2, Israel Report, p. 21.
VII. OPD CONTINUES TO MAKE ITS OPERATIONS MORE TRANSPARENT,INCLUSIVE AND FOCUSED ON INTERNAL MONITORING
The primary goals of the NSA are to provide for the best available practices and proceduresfor police management in the areas of supervision, training and accountability mechanisms for the
benefit of and the protection of the rights of Oakland residents and the public as a whole. MOU, p. 2,
3. This picture of institutional integrity requires that OPD reach out to the community, share
information about the operations of the Department and build community partnerships. Institutional
integrity, in other words, is both internal and external, and a Constitutional police department must
aim for both at all times.
OPD has and continues to strive for both internal and external integrity. For example, in 2010
OPD began holding Compstat meetings with the community in which OPD discusses how it analyzes
crime and develops strategies to make Oakland safe. Ex. 1, Chief's Report. Chief Batts and OPD
Commanders attend these meetings and are available for questions. Chief Batts intends to continue
these meetings quarterly to educate the community about the nature of police work, identification of
crime and as a way of keeping the community safe. The Compstat meetings also serve as an
opportunity for OPD to learn about community concerns relative to police services. Ex. 1, Chief'sReport.
The OPD values community inclusiveness and understands its importance to strong and
healthy police-community relations. The Department continues to meet the requirements of its
Community Policing policy and recently authored a Community Policing Manual which was
distributed to select members of the community for input. Id. In addition OPD through the OIG
recently convened a community-based workgroup comprised of members from the faith community,
civil rights organizations and other community leaders. The purpose of this workgroup is for OIG to
inform the community of its role within OPD and to seek their input on how OIG can identify areas
of concern and service deficiencies so that OIG can use its audits, monitoring and reviews protocols
for addressing valid community concerns. Id.
As the City nears the completion of the MOU next year, OPD has devoted substantial
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resources in staff, money and time to improve and increase its self-monitoring functions. As the
official internal monitoring unit for OPD, the OIG conducted all the NSA/MOU required audits and
conducted numerous additional audits, reviews and inspections of OPD operations and systems. This
has strengthened OPDs capacity to monitor itself and manage the risks and liabilities associated withpolice operations. Not only has OIG grown in this area but the Department as a whole has learned to
conduct more inspections and reviews of OPD operations.
Through these efforts and others, OPD and its leaders continue to show they value police
integrity and are committed to continuing to work with the community to build public confidence.
Without question, this goal is not only consistent with the NSA/MOU but is integral to the
sustainability of a reformed institution.
VIII. CONCLUSION
We will continue to work with the Monitor and the Parties to reach consensus on outstanding
issues so that the compliance work may move forward. We will ask for the assistance of the Court
when necessary. And we will achieve success with the assistance of the Court.
POSITION OF INTERVENOR: OAKLAND POLICE OFFICERS ASSOCIATION
As Intervener in this action, the Oakland Police Officers Association (OPOA) hascontinuously assisted the parties efforts in fully implementing the terms of the Negotiated Settlement
Agreement (NSA). The OPOA has demonstrated over the last eight years that the organization is
committed to implementing the terms and spirit of the NSA. As evidenced by OPOAs
representations to this Court on numerous occasions over the years, there has been a cultural change
in the Oakland Police Department. The cultural change has manifested itself in many ways, but in
particular by way of demonstrated compliance with nearly all of the NSA-related tasks. While the
Department may experience isolated instances of behavior falling outside of the parameters of the
NSA and perhaps accepted police practices, there has been a complete void and absence of any
repetitious or demonstrated pattern of improper police practices.
While the OPOA as an organization is not involved in many of the details and decisions
related to the implementation of the NSA, the organization and its members feel the impact of those
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decisions and are bound to abide by them. The members of the OPOA and the organization itself
have a proven track record to support substantial compliance.
Since the last case management conference, the OPOA has affirmatively been involved in
many of the ongoing efforts to assist in the Departments effort to become compliant with the NSA.Counsel for the OPOA has engaged in numerous and lengthy meetings and conversations with the
Independent Monitoring Team as well as Department command staff members in order to offer
assistance in the effort to bring the Department into compliance. The meetings and discussions with
the IMT have been productive and enlightening. The OPOA has extended its offer to assist the
Department and the IMT whenever and wherever necessary. While the OPOAs involvement over
the last few months has merely been advisory in nature, the OPOA stands ready to continue to engage
in more detailed and thorough discussions concerning NSA compliance. Moreover, the OPOA
remains deeply interested in becoming more engaged in the ongoing efforts to bring the Department
into compliance.
Finally, the IMT has assured the OPOA that its role in the effort to bring the Department into
compliance has been positive and helpful. There was some concern on the part of the OPOA that the
court had been left with the impression that the organization had not been fully engaged and
committed to compliance with the NSA. The OPOA believes that the matter has been resolved andlooks forward to continuing with the Court, the IMT, and the Department to confirm that substantial
compliance has been accomplished.
Dated: December 2, 2010
/s/ JOHN L. BURRIS
Attorney for Plaintiffs
Dated: December 2, 2010
/s/ JAMES B. CHANINAttorney for Plaintiffs
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Dated: December 2, 2010
/s/ GREGORY M. FOX
Attorney for the Defendant
Dated: December 2, 2010
/s/ Rocio V. FierroAttorney for the Defendant
Dated: December 2, 2010
N/ARockne A. Lucia Jr.Attorney for the OPOA
ATTORNEY ATTESTATION
I hereby attest that I have received telephonic or email authorization for any signatures
indicated by a conformed signature (/s/) within this E-filed document.
Dated: December 2, 2010 /s/ GREGORY M. FOX
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