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Mayor Sarno Vetoes Board of Police Commissioners Ordinance

“Keep it professional, not political, and keep it legally sound”

My position has been well defined – keep it professional, not political, and keep it legally sound. The modern day model of a professional police commissioner administering and directing the department is the trend across the country, and has worked well here. This is indicated by the 45% reduction of overall crime in the last five years. As we continue to work with our consultant, the Police Executive Research Forum (PERF) and the Department of Justice Civil Rights Division, the last thing we should do is go backwards to antiquated systems and rules. 

This is also indicated by my conversations with the Executive Director of the Police Education Research Foundation (PERF) Chuck Wexler. Reaching out to this recognized expert in the field of police organization and management, he told me: “There is a role for civilians with our Community Police Hearing Board and there is a role for our Police Commissioner. At the end of the day, both entities must be strong.” This Ordinance does not live up to this advice. 

The Ordinance provides an organization and management of the Springfield Police Department is dating back more than 100 years ago. A review of this history can provide insight and guidance on why the changes proposed in this Ordinance should not be made. 

The Ordinance would reinstate a weaker model, where a Civil Service Chief of Police is insulated from accountability, and is unable to enforce mandates down the chain of command with the same strong authority that a single Police Commissioner is able to do. 

The current Police Department organization originates from efforts to modernize and improve the Department by the Finance Control Board. In July 2004, in the face of an escalating financial crisis, the Legislature of the Commonwealth of Massachusetts created a state-run Finance Control Board with authority over all of the City of Springfield’s finances. In essence, Springfield’s existing municipal government was replaced by the Control Board. Among the Control Board powers was “to alter or rescind any action or decision of any municipal officer, employee, board or commission”. 

The Control Board reorganized many aspects of the City’s government, including changes to the City Charter to create a Department of Administration and Finance which “shall be” responsible for the overall budgetary and financial administration of the City. The department is under the charge and control of a Chief Administrative and Financial Officer, (“the CAFO”). The CAFO reports to and is directly under the Mayor. The Control Board existed until July of 2009. Since that time Springfield has experienced financial stability and has seen a resurgence of economic activity. 

The Control Board invested in several management studies covering various City departments including a comprehensive study of the Springfield Police Department. The studies included an evaluation of police needs of the community as well as the chain of command at the Police Department by an expert in Police Administration; Carroll Burracker. As a result of the study, the Control Board created a new Ordinance position in 2005 to oversee the Police Department; the office of “Police Commissioner”. 

Under the new Ordinance the Police Commissioner has the authority to “appoint, establish and organize the Police Department of and has “control of the government, administration, disposition and discipline of the Police Department”, unlike the former Chief of Police who had the protections of Civil Service. In order to “buy-out” the last Civil Service Chief, the City was required to pay over $300,000. 

Prior to the creation of the Police Commissioner, the police department had been under the control of a Board of Police Commissioners that dated back to the early 1900’s. The history of its creation can be gleaned from various Special Acts changing the City’s original Charter at the turn of the century in the early 1900’s as well as litigation involving the changes. 

The history includes Springfield’s original City Charter that provided the “mayor and aldermen shall” have full and exclusive power to appoint a constable and assistants, or a city marshal, and assistants with the powers and duties of constables, and all other police officers, and “the same to remove at pleasure.” St. 1852, p. 54, c. 94, § 8. 

This was changed in 1902. By a Special Act of the state legislation, (St. 1902, p. 94, c. 134, § 1), it was provided that the powers and duties conferred and imposed by the original city charter “in relation to the establishment and maintenance of a police department, the appointment of a constable, or a city marshal and assistants, and all other police officers, may be exercised and performed by the city council in such manner as it may from time to time prescribe, and wholly or in part through the agency of any persons acting as a board whom it may from time to time designate, and with such limitations of power as it may by ordinance determine.” 

Acting under the authority thus conferred the city council passed an ordinance in 1902 establishing a police commission. This ordinance was revised and re-enacted in 1904. Acting under this Ordinance, the

City Marshall was removed from office by the Board, and that removed Department Head filed suit to challenge his removal. Stebbins v. Police Commission of City of Springfield, 196 Mass. 365, 366 (1907).

In 1909 a new Special Act was approved by the state legislature in which the authority of the Mayor and Alderman over the Police Department was vested in a Board of Police Commissioners, with the City Council retaining the power to appoint. (St. 1909, c. 244, § 1 and §2.) Later, the Board of Police Commissioners was codified by Ordinance. 

However, the Plan A charter was adopted by the City of Springfield to be effective on the first Monday of January, 1962; it superseded the charter of St.1852, c. 94 (as amended) Kaczmarski v. Mayor of Springfield, 193 346 Mass. 432, 433 (1963). Under Plan A, while the legislative powers of the city are vested in the City Council (See Charter provisions in Mass. Gen. Law ch. 43, § 50), the City Council is only authorized to elect its president and the city clerk (Mass. Gen. Law ch. 43, § 18, cl. 3) and there is no express provision for election or appointment by it of any other municipal officer. 

The plain language of the existing City Charter found in Massachusetts General Laws, Chapter 43, Section 11 provides that the Plan A form of government adopted by the Springfield, “shall supersede the provisions” not only of the prior charter, but also “of the general and special laws relating thereto and inconsistent” with the Plan A form Charter. (emphasis added). 

The City Charter provides that “all heads of departments and members of municipal boards” shall be appointed “by the mayor without confirmation by the city council”. (Mass. Gen. Law ch. 43, § 52).

In conflict with express provisions of the City Charter, the proposed amendment provides that: 

Section 64 Powers of Mayor to be exercised by Board.

The powers and duties vested in the Mayor and the City Council by Chapter 244 of the Acts of 1909 shall be exercised and performed by the Board of Police Commissioners. 

As previously noted, St. 1909, c. 244, has been superseded by the City’s Plan A form of government. As such, that Ordinance provision in the proposed Section 64 is of no legal effect. Moreover, to the extent it attempts to transfer the Mayor’s power to appoint a Department Head for the Police Department away from the Mayor and to a newly created Board of Police Commissioners, it is in direct conflict with the CityCharter. 

The Control Board’s implementation of a single professional Police Commissioner not only modernized and professionalized the management of the second largest department in the City, with over 500 employees and a budget of more than $40 Million, but it increased accountability in accordance with the Burracker report. The Police Commissioner is not a Civil Service position, and reports directly to the Mayor under the terms of an employment contract. This Ordinance, if effective, would return the appointment of the Police Department Head to Civil Service protections, contrary to modern police administration practices. 

The positon of Police Commissioner in the Ordinances was designed by the Control Board to work in conjunction with state law. Specifically, separate and apart from any Ordinance, the Mayor of Springfield is also authorized by the General Laws of Massachusetts to establish an employment contract for the “salary, fringe benefits, and other conditions of employment, including but not limited to, severance pay, relocation expenses, reimbursement for expenses incurred” in the performance of the duties of a Police or Fire “Chief”. See Mass. Gen. Law, ch. 41, §108O.Added by St.1995, c. 289, § 1.

That statute also states in relevant part: “Any city or town acting through its appointing authority, [in Springfield, the Mayor] may establish an employment contract . . . [for] its police chief and fire chief, or a person performing such duties having a different title. . . Said contract shall prevail over any conflicting provision of any local personnel by-law, ordinance, rule or regulation.” (emphasis added). 

The Board of Police Commission model proposed in the Ordinance is likely to expose the City to more civil liability by the lack of any criteria for professionalization or connection to best practices. In addition, an Ordinance, attempting to take away the authority of the Mayor to enter into a contract with the Police Commissioner to run the Department would conflict, not only with the City Charter, but with this Massachusetts state statute, as well as the existing Police Commissioner contract. The Police Commissioner contract, maintained by the Ordinance, grants the Police Commissioner authority to establish rules for the Department, hire, promote, discipline and terminate officers. That authority conflicts with the proposed Ordinance amendment. 

Similarly, an additional study by experts was undertaken during the tenure of the Control Board with regard to Civilian Oversight of the Police Department. That study, entitled Enhancing Community Review of the Springfield Police Department, was prepared by Professor Jack McDevitt and Amy Farrell, Ph.D. in April 2007. Professor McDevitt is the director of Northeastern University’s Institute on Race and Justice. Among his credentials, Professor McDevitt has testified as an expert witness before the Judiciary Committees of both U.S. Senate and The U.S. House of Representatives and as invited expert at the White House. 

The study was funded after enactment of the Police Commissioner Ordinance and in conjunction with a complaint of police misconduct filed by the Springfield Pastor’s Council with the Massachusetts Commission Against Discrimination after an incident that occurred in November 2004 which was the subject of a lawsuit; Douglas Greer v. Springfield, et al., 3:05-cv-30001-MAP. Springfield adopted a civilian review entity in accordance with that study. The history shows that such reform efforts continued to expand. In 2010 the City created a Community Police Hearing Board which was provided greater authority over complaints of misconduct. 

The CPHB was involved in the case of Melvin Jones v. Jeffrey Ascher, et al., 3:10-cv-30244-MAP involving an incident of misconduct alleged to have occurred in November of 2009. In that case the past misconduct of officers alleged to be the basis for a claim directly against the City based on the handling of prior complaints of misconduct by the Board of Police Commissioners. The City moved for summary judgment on the claim, but the motion was denied and the claim was allowed to go forward. It was eventually settled out of court before trial. 

At the time of the incident in the Greer case, as with the complaints forming the basis of the claim against the City in the Melvin Jones case, the Police Department policymaking was directed by the part-time civilian volunteers who made up a Board of Police Commissioners. As noted, that Board was replaced by a full time professional police commissioner as a reform instituted by the Finance Control Board. 

These various efforts of professionalizing management and implementing civilian review and oversight of discipline documents that the City has responded appropriately to complaints of misconduct, carried out with the assistance of criminal justice experts and oversight from the Commonwealth of Massachusetts. 

The proposed Board of Police Commission Ordinance does not contain any of the safeguards established by the Mayor’s Executive Order with regard to assurances that each and every civilian complaint will be reviewed, that each IIU investigation will be reviewed for thoroughness, and does not have any requirements pertaining to openness, transparency, or community outreach that has been established in the Executive Order. There are no provisions in the proposed Ordinance to provide a transparent accountability model crafted in response to any modern or professional model or put in place to help ensure that all complaints are investigated thoroughly and fairly. 

Police misconduct remains as one of the top subjects of an ongoing national debate on relations between law enforcement and minority communities that has come to the forefront of news reports. In testimony provided to Congress, the National Association of Civilian Oversight of Law Enforcement (NACOLE) stated that “the current crisis of mistrust and breaking or broken relationships between police and the communities they are sworn to serve and protect is one of the most pressing challenges facing the nation”. The CPHB has met with the President of NACOLE to gain insight on its role in this crisis. As a result, it is clear that The Springfield CPHB Model is at the leading edge of efforts to provide civilian oversight over law enforcement. 

The Police Department’s policies and procedures is currently the subject of review by PERF as well as the Department of Justice Civil Rights Division. The conclusions and recommendations of these outside agencies should be considered in the ongoing efforts by the City to implement reform. However, the proposed Ordinance will be a step backward. If approved, the Springfield Police Department risks losing further legitimacy in the community, particularly in high crime neighborhoods where trust and confidence are most critical to effective policing. 

While the proposed Ordinance does not establish any priorities for the Police Department, under the current Police Commissioner system, John Barbieri has set forth the Police Department’s priorities which are established in the budget narrative prepared by his office and are aligned with the goals of the Mayor. 

The Police Commissioner’s priorities include: 

  • Neighborhood- based proactive patrols
  • Utilizing a staffing formula of 75% uniform patrol and 25% investigative division and support
  • Enhanced Policing Strategies through Technology
  • Up to Date Law Enforcement Training

The reduction in crimes reported during the Police Commissioner’s tenure has been significant.

These statistics reflect an organization that is innovative and in the process of implementing new ways to reach our goals. 

As stated in an elementary text book on Police Administration: 

Police officers regularly see the worst of human behavior and deal with unsavory individuals to keep the rest of us safe. Just as waste management workers bear the stigma of handling human refuse, police officers are expected to manage society’s most undesirable elements without receiving any special recognition or reward. 

In today’s day and age, as officers increasingly confront violence and step up efforts to apprehend suspects in the community, the chance of alleged unjustified force or other misconduct increases. It is important that the City continue to evolve its efforts to include modern and professional models recognized by experts as a framework for successful police administration. 

Springfield is going through enormous changes. It Police Department is under scrutiny of the Department of Justice to investigate whether a Pattern and Practice of Civil Rights violations has occurred. The City has cooperated with the investigation. At the completion of their investigation, it is likely that institutional reforms will be recommended. 

The Springfield Police Department needs to move forward to address the new issues it is likely to face with all of the new economic development achievements that are occurring. It is not a time to rehash the same political squabbles that occurred more than 100 years ago and it is not in the City’s best interest to step back in time to return to a system that was, in the not so distant past, called “dysfunctional” by experts in police administration. 

With these points in mind, I veto this Ordinance.

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Page last updated:  Wednesday, November 21, 2018 10:47 am