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Guest Opinion | Sonja K. Berndt, Esq: The Need for an Independent Inspector General with Subpoena Power

Published on Wednesday, July 29, 2020 | 12:22 pm
 
Sonja K. Berndt, Esq

Mayor Tornek and Councilmember Kennedy are to be commended for making a good faith attempt to start the process of developing civilian oversight of the Pasadena Police Department.

But Vice Mayor Hampton is absolutely correct that it does not go far enough to provide the full transparency and accountability required to engender public trust, which is the paramount issue.  During my 31-year career as a state prosecutor, I conducted hundreds of investigations and issued hundreds of investigatory subpoenas for documents and testimony.

A glaring deficiency of the Tornek/Kennedy police oversight proposal is the scope and power of the Independent Police Auditor (“IPA”).  First, the IPA is authorized only to “review investigations” of, for example, uses of deadly force to determine if the investigations conducted were complete and thorough.

How would the IPA know if the investigations conducted by the Police Department are thorough if the IPA did not conduct them?  How would the auditor know if some important document is missing and/or if certain additional interviews need to be conducted?

While some councilmembers say the auditor model has worked in the city so far, the city’s other auditor reviews primarily financial issues.

Respectfully, we should not be comparing financial fraud issues with uses of deadly force.  In order to engender public trust, there needs to be an Inspector General who does not simply review the Police Department’s work.

Second, the inspector general must have subpoena power.

It is apparent from comments made by some councilmembers that there is a fundamental misunderstanding of the subpoena process and the need for it.

Some say subpoenas are unnecessary because the auditor will have access to all documents.

Assuming that the auditor somehow figures out what is missing from the investigation that he or she did not conduct, the auditor is supposed to ask the City Manager for these additional documents or interviews.

The City Manager can simply say no.  Or, the City Manager can ask the Police Chief to give the documents to the auditor and the Police Chief can convince the City Manager they are not necessary to the investigation.

Again, the non-expert City Manager will overrule the expert Inspector General and the Inspector General has no effective recourse.

The result is a deficient investigation, lack of transparency and, ultimately, no accountability. For this reason, the Inspector General must have subpoena power and be able to enforce those subpoenas through court process.

On countless occasions during my career, the documents most critical to the investigations I personally conducted were obtained by enforcing subpoenas through court process.

There is no adequate police oversight without the ability of the Inspector General to conduct independent investigations and issue and enforce subpoenas.

Nothing short of that will accomplish the goal that I hope all will agree is paramount:  public trust.  If there is an issue of peace officer privacy rights, those can be worked through just as other issues of confidentiality are worked through day in and day out in the legal field.

I hope our councilmembers and city staff will work through any perceived roadblocks and not simply throw up their hands and say “it can’t be done.”  Our City deserves effective civilian oversight of the Police Department, not because our Police Department necessarily will conduct inadequate investigations, but because the matter of public trust requires it.

Sonja K. Berndt, Esq. is a retired state prosecutor

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