Lawful Order = Accountability

Posted May 16th, 2017 @ 7:21 AM by

Chief Koval has another memo about the Council’s report on changes needed in the police department. He seemingly says he’ll do everything they want, but he wants them to change the language so it isn’t a “lawful order”. I sure hope they don’t. They’re voting tonight, email them if you have thoughts ( Don’t forget to include your address and put it in your own words, no cutting and pasting. It’s item 22 if you can make it to the meeting tonight, it should be one of the first items up on the agenda.

Here’s the chief’s latest memo.

DATE: May 11, 2017
TO: All Alders
FROM: Michael Koval, Chief of Police
SUBJECT: President’s Work Group on Police and Community Relations

My original response to the President’s Work Group on Police and Community Relations recommendations (dated April 28, 2017; at that time the group was named the CCEC Subcommittee on Police and Community Relations) was based on the draft recommendation document from the group. Since that response was prepared, the President’s Work Group (PWG) has released a final document containing modified recommendations. So, I am providing this update to supplement my original response. That original response is attached to this document.

I again point out the apparent overlap between the work of the PWG, the Ad Hoc Committee and OIR. The purpose of having these parallel processes examining the same issues is not clear to me, and I feel that the forthcoming OIR report would be the best basis for discussions about MPD moving forward. However, MPD is committed to continuous improvement in all aspects of department operations. This is reflected as one of our Core Values:

We are accountable to the public and ourselves for the quality of our service. We strive for proficiency in all facets of our work. We seek to continually improve ourselves and those systems in our midst and those in the community where the police can effect meaningful change for better outcomes.

We engage in this work on a continuous basis, relying on internal expertise and external input for guidance. So I view the work of the PWG from this perspective, and address the specific action items directed to MPD below. These responses should be viewed as supplementing my original response of April 28.

Action Item 1
Comments: A number of MPD SOP’s directly address these issues. However, I will have my staff review our existing SOP’s and consolidate the appropriate contents into a single SOP. Other agency SOP’s (including the referenced NYPD document) and best practices (including the IACP model policy) will be part of this process.

Action Item 3
Comments: These concepts are already incorporated into MPD’s Code of Conduct and SOP. However, I will have my staff incorporate similar language or references into MPD’s Use of Force SOP’s.

Action Item 4
Comments: I will have my staff incorporate this language into MPD’s Use of Force SOP’s.

Action Item 6
Comments: I feel that MPD has a long tradition of addressing officers’ mental health and wellness, and am committed to this as an MPD priority. I will assign staff to explore additional options/mechanisms in this area, and provide an update to the Common Council.

Action Item 7
Comments: I will assign staff to develop a reasonable SOP on backup. However, I cannot commit to including any impractical or unworkable restrictions into such an SOP.

Action Item 8
Comments: I am willing to provide practical and meaningful updates to the Council on a regular basis. As indicated previously, some of the specific information included in this action item cannot be provided in a practical or meaningful way, and additional clarification will be required moving forward.

So, we are in substantive agreement on the general content of the PWG’s action items, and it is my intent that MPD work collaboratively with the Common Council on these and other issues moving forward. However, I again feel obligated to point out the troubling implications of the compulsory language in the PWG’s recommendations. The legal issues on this point may be complex, but the public policy consequences seem clear. Whether worded as directing MPD or issuing a lawful order, the Common Council is seeking to direct MPD operations. This sets a dangerous precedent. The City of Madison has managed to make it more than 150 years without – to my knowledge – a Common Council seeking to direct police operations. This span includes some fairly tumultuous time periods involving MPD. Once this door is opened, what other aspects of MPD operations will be subject to political influence? And the practical implications of implementing an order from the Common Council – both for me and for future Chiefs – are significant.

As indicated above, MPD will be moving forward with the substantive components of the PWG’s action items. I respectfully request that the wording of the report – if approved by the Common Council – be changed to reflect non-compulsory language. This will allow the objectives of the PWG to be met without any of the troubling implications of politicizing MPD operations.

He then attaches this memo as well, which was his original response to their work.

How magnanimous of him to now agree to do what they intend to make him do. Now that attorney may has said that the council report is legal . . .

Mayor Soglin and Alderpersons:

This report is on the agenda for the CCEC and the Common Council for May 16.

Legislative Analyst Heather Allen asked Assistant City Attorney Marci Paulsen to comment on an earlier draft of the report. Those brief comments were made on April 27, and raised questions about some of the recommendations in the report. ACA Paulsen was concerned that some recommendations were beyond the Council’s authority and might be invading the Police Chief’s authority. As you know, the question of the lines of authority between the Chief, the Council, the Mayor and the PFC are not always clear. (See the attached report from 2005 analyzing these legal issues in a different context).

After Ms. Paulsen’s comments, the Work Group met and made revisions to several key sections of the Report. The Final Report was issued on May 4. ACA Paulsen and I have reviewed the Final Report. We are advising you, as we advised the PSRC earlier this week, that we no longer have any significant legal concerns with the Final Report. At this time, we consider the revised recommendations to be within the Council’s legal authority.

Contact me if you have any questions.

Michael P. May
City Attorney
City of Madison
210 Martin Luther King Jr. Blvd, Room 401
Madison, WI 53703
FAX: 608-267-8715

And here’s the memo he attached. TaserReport

The council will now have to decide what to do, keep peace in the land and give Koval what he wants. Or, ensure that Koval does what he is supposed to do by issuing a lawful order. Question is, how belligerent will the Police Chief remain. With words like these “I am willing to provide practical and meaningful updates to the Council on a regular basis. As indicated previously, some of the specific information included in this action item cannot be provided in a practical or meaningful way, and additional clarification will be required moving forward.” I’m not sure there is agreement. I think the Chief just wants this out of the public eye so he can promptly ignore it and hopes the council gets distracted with something else. I don’t think that’s going to happen. I hope the council stays strong and issues that lawful order.

Finally, for the geeks among us . . . Greg Gelembuik provides and interesting history lesson for us if you’re interested – he corrects Koval’s understanding of the last 150 years:

An important history lesson. Contrary to what Chief Koval is saying, during most of Madison’s history, the Madison Common Council exercised direct control over MPD policy. The failure of city officials to provide such policy oversight is a recent aberration.

The Charter of the City of Madison, Wisconsin made explicit the role of the Council in determining police department policy:

“Sec. 3. The Common Council shall have the control and management of the finances and all property of the city, and shall likewise, in addition to the powers herin vested in them, have full power to make, enact, ordain, establish, publish, enforce, alter, modify, amend and repeal all such ordinances, rules and by-laws for the government and good order of the city, for the suppression of vice and immorality, for the prevention of crime, and for the benefit of trade, commerce and health, as they shall deem expedient; declaring and imposing penalites, and to enfore the same against any person or persons who may violate any of the provisions of such ordinance, rule and by-law; and such ordinance, rules and by-laws, are herby declared to be, and have the force of law; Povided, They are not repubnant to the constitution and laws of the United States, or of this State, and for these purposes shall have authority by ordinances, resolutions or by-laws:


18th. To make rules and ordinances for the government and regulation of the police of the city.”

Eventually, as a Progressive Era reform, Police & Fire Commissions (PFCs) were created. And all special charters for cities of the 2nd, 3rd and 4th classes were repealed.

PFCs were created as an anticorruption measure, because mayors and city councils were appointing police chiefs on a quid pro quo, share of the spoils basis (they’d get kickbacks). But city councils continued to exercise direct oversight of police department policies in cities throughout Wisconsin, including Madison. It was not the intent of the Progressive Era reformers (who created the PFC mechanism) to leave police departments without any accountability to elected officials (i.e. they never intended that city councils and mayors wouldn’t have power over police department policies and practices). PFCs were just created as personnel boards, to be in charge of hiring/firing, separating out this function from all the other oversight powers (which were recognized as being retained by the mayor and city council).

Unless optional powers specified in Wis. Stat. § 62.13 (6) are invoked by referendum, the PFC only has very narrow powers, as a personnel board (responsible for hiring, promotion, demotion, suspensions, firing), not full oversight powers. If optional powers are invoked by referendum, a PFC has the additional power “To organize and supervise the fire and police, or combined protective services, departments and to prescribe rules and regulations for their control and management.”

It appears that the Madison Common Council continued to provide specific policy directives to MPD up through the term of former Madison Police Chief Wilbur Emery (Chief 1959-1972).

A typical example – from the Capital Times, Nov. 15, 1968:

“The Madison Common Council Thursday night adopted an ordinance providing for use of Chemical Mace by the Madison Police Department…

The ordinance providing for use of Mace included an amendment setting forth as departmental procedure the guidelines called for by the state attorney general’s Mace study committee. These were basically the same guidelines outlined by Mayor Otto Festge when he issued an order restoring the use of Mace on Oct. 25.

The Guidelines provides that Mace, a form of tear gas that is sprayed in liquid form, shall not be fired into the face of the intended victim. Policemen also are required to provide immediate treatment of the victim where necessary and possible.”

It appears that Chief Wilbur Emery became confused about the proper role of the PFC. He began submitting all MPD administrative rules to the PFC for review and approval. But there is not a shred of statutory authority in the Wisconsin Statutes for PFC involvement in police administrative rulemaking in non-optional powers cities. PFCs only have authority over police department administrative rulemaking if a city invokes PFC optional powers via referendum, which Madison never did. The proper body was the Council.

In 1969, Chief Wilbur Emery stated that supervision of police departments is the legally delegated responsibility of the PFC, and questioned whether the Common Council had the authority to implement changes in police practices recommended by the Equal Opportunities Commission. [Wisconsin State Journal Aug. 13, 1969]

As former Madison City Attorney Edwin Conrad noted in 1972 (with respect to Wilbur Emery): “And for as long as I can remember, the [police] chief has been submitting his administrative rules to the Police and Fire Commission before putting them into effect.” [Conrad quoted in the Capital Times Sept. 7, 1972]

Since the PFC actually didn’t have authority over police department policies, this practice was stopped, apparently when David Couper became Chief in 1973. This apparently led to the abandonment of any city body (PFC or Council) carrying out the role. Moreover, David Couper was very open to input from alders (and civilians generally), and, from all news reports, the Madison Common Council loved him. So there was no need for the Council to provide directives (lawful orders) on terms of police department policy.

It appears that this set of historical events led to loss of the Common Council’s role in determining MPD policy. Issuing lawful orders regarding MPD policy would not set any new precedent. Rather, it would revert to what had been the norm for most of Madison’s history.

Public accountability for the police. It can be had one of two ways. Chief Couper’s way . . . by working with and seeking meaningful input from the community and incorporating it into department policies – true community policing. Or Chief Koval’s way . . . by acting belligerent and above reproach with faux opportunities for input that is promptly ignored if he disagrees with it and subsequently “lawful orders” from the council. This is Chief Koval’s doing. I hope the council doesn’t back down now.

Finally, here are some attachments that are missing from the council agenda item tonight that help explain background for the decision tonight.
Building a Deeper Police Early Intervention System – Data Science for Social Good

A Buddhist Cop’s Approach to Justice – Lion’s Roar

Center for Healthy Minds Teams Up with Madison Police Department to Foster Officer Well-Being – Cent

Plane crash investigations offer lessons on how to avoid deaths in police encounters

Racine police summit to explore alternative methods to prevent officer-involved shootings _ Politics

How PERF’s Use-of-Force Guiding Principles Were Developed

30 guiding principles

1974 Wisconsin Law Review- Police Accountibility in Wisconsin

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