Inside Lee Brand's attempt to reshape police oversight

2009: Introducing the Police Auditor

The City Council on March 24, 2009 took a historic step by creating Fresno’s first police auditor. The police auditor worked out of the new Office of Independent Review (OIR).

Mayor Ashley Swearengin, in office less than three months, brought forward the OIR/police auditor bill. She and Police Chief Jerry Dyer wrote the two-page staff report submitted to the council.

“The concept of an independent police auditor (IPA) has been studied and debated in Fresno for over 10 years,” Swearengin and Dyer wrote in 2009. “As a new police chief in 2001, Chief Dyer sought the adoption of an IPA as a mechanism to secure and enhance the public’s trust in the Fresno Police Department. The import and public benefit of this trust cannot be overstated as members of the public who trust their police department are far more likely to report criminal activity and cooperate during police investigations. Additionally, a lack of community trust can adversely impact community confidence in the Police Department and City Government that can result in unfavorable legal settlements and jury awards.

“Despite the extended evaluation and public debate that has taken place over the last eight years, there has yet to be agreement on adopting an IPA in Fresno. Unfortunately, the debate has been polarized and largely unproductive. Community advocates in favor of establishing an IPA have, at times, overstated their case, and a small minority of voices has even demonized our law enforcement personnel. Meanwhile, opponents have resisted the IPA despite the importance of safeguarding the public’s trust in law enforcement.

“What is unique now is that the foundation of this policy has been specifically crafted to address concerns raised in the past and with the understanding that our Fresno police officers are highly trained, capable people who strive to serve the public every day with professionalism and that the tremendous power and authority invested in them, along with the often harmful and life threatening situations we ask them to work, warrants some measure of independent review to protect our officers and to enhance the public’s trust. The proposal is also based upon the key principles of independence; fairness, integrity, and honesty; transparency; participation of stakeholders; acceptance, cooperation and access; and obedience to legal constraints.

“The following are the key components of the proposal:

• “Consistent with the Fresno City Charter which empowers the City Manager to oversee daily City administrative operations, the Independent Reviewer (IR) will report to the City Manager who will delegate authority to the IR sufficient to fulfill all their noted duties;
• “The IR will be responsible for auditing investigations, reviewing and inquiry and complaint logs, identifying and monitoring trends and serving as a resource for both the Police Department and community;
• “The IR will not conduct its own independent investigations of citizen complaints or allegations of employee misconduct and will be subject to confidentiality and privacy laws;
• “The OIR shall produce an annual report which will provide transparent and accurate information about the overall performance of the department while protecting the confidentiality of the individual members of the police department and the public; and
• “The City Manager and Police Chief will ensure adequate remedial responses are undertaken to address operational deficiencies noted by the OIR.”

Make no mistake, Ashley Swearengin and Jerry Dyer didn’t always see eye-to-eye. But they definitely worked as a team in early 2009 to produce a superb staff report.

Swearengin-Dyer sent their OIR proposal to the council. The legislation ran to 10 pages. They did so because the council, as outlined in the City Charter, is Fresno’s legislative body.

The City Council sets policy. If I’ve heard that once from council members, I’ve heard it a thousand times. When it comes to setting policy, council members are aggressively turf-conscious.

The Swearengin-Dyer legislation included a definition of principles vital to the OIR’s success. The first principle is independence.

“Independence is essential to the Office of Independent Review’s role,” the legislation states. “The Independent Reviewer (IR) must exercise independent judgment, free of any real or perceived bending to the wishes of any stakeholders. Inherent in the concept is the benefit to the City and the community of ‘a fresh set of eyes and ears.’ True independence requires a partnership between the IR and the City administration. Independence is demonstrated by the impartiality of the IR’s analysis and conclusions….”

The Swearengin-Dyer legislation also addresses how to manage the police auditor.

“Determining who will appoint and manage the IR has been the most difficult issue to resolve in the past and one of the biggest challenges to gaining agreement on adopting an auditor,” the legislation states. “A variety of models have been evaluated over the years, and each has their strengths and weaknesses. We have concluded that there is no perfect ‘off the shelf’ model given our strong mayor form of government and unique elements of the city charter. Therefore, while we have taken into account general ‘best practices,’ ultimately we are presenting an approach that best serves Fresno.

“It is critical that the IR be independent and non-political. In the past, discussions about independence have been framed entirely in the IR’s reporting structure. However, as we continued to explore the alternatives, we came to recognize that independence is less about those structural reporting issues than it about appropriate empowering authorization from the City’s elected and appointed officials.”

The Swearengin-Dyer legislation considered putting the police auditor under the city attorney. But that was viewed as a conflict of interest since the City Attorney’s Office often represents the Police Department in legal disputes. In the end, the legislation proposed the City Manager as the police auditor’s boss.

“If administered correctly,” the Swearengin-Dyer legislation states in conclusion, “the Independent Reviewer for the City of Fresno will help protect our officers by enhancing policies, procedures for the Fresno Police Department and strengthen police-community relations.”

The police auditor and the Office of Independent Review became operational with the City Council’s approval on March 24, 2009. The Swearengin-Dyer proposal was just that – a recommendation. The council, with a veto-proof five votes, could have changed anything in the bill.

The police auditor and the OIR as now constituted belong to the City Council.

Eddie Aubrey was the first police auditor. Rick Rasmussen is the current police auditor. The OIR, to put it delicately, has had its ups and downs over the past eight years.