Pasadena police review boards fall victim to conflict between transparency and privacy

Unable to resolve the conflict between police privacy rights mandated by the state and the requirements of California’s Brown Act, the state’s open meeting law, the Pasadena police chief suspended three police review boards. -db

Pasadena Star-News
October 20, 2010
By Brenda Gazzar

PASADENA – Police Chief Phillip Sanchez suspended three police review panels after the city attorney said the boards can’t conform to both state open meeting rules and privacy laws that protect police officers.

City officials could not say Wednesday when the panels, which were established in 1994, last met.

At issue are meetings of the city’s Disciplinary Review Board, the Use of Force Review Board and the Risk Management Review Board. All three are usually made up of both citizens and police department employees.

The panels were set up to advise the police chief on matters including officer misconduct. The city’s municipal code requires the police chief to convene the boards as needed.

“To avoid the apparent and inevitable conflicts between state laws, the city is considering development of a different review structure that does not carry the risk of infringing on privacy rights which are protected by law and that does not carry the risk of violating technical requirements of open meeting laws,” City Attorney Michele Beal Bagneris said in a written statement.

Bagneris said there is an “apparent conflict” between the Brown Act, the state’s open meeting law, and privacy and confidentiality requirements of other state laws, including the Police Officer’s Bill of Rights.

Jim Ewert, legal counsel of the California Newspaper Publishers Association (CNPA), said Wednesday there is no such conflict, and no reason for Pasadena


not to comply with the state’s Brown Act.
While the Brown Act presumes that meetings of such bodies are open and accessible to the public, the law contains provisions allowing them to meet in closed session when a greater public interest is served by doing so, Ewert said.

There is a personnel exemption, for example, that permits a Brown Act body to meet in closed session to consider the appointment, employment, discipline, dismissal or release of a public employee, he said.

“The review board could (put on an agenda) all of the items they plan to discuss, and it may very well be that many, if not all, of those items are done in closed session,” Ewert said. “But it still gives the public the ability for them to know what they are going to talk about.”

The individuals could be identified by position, such as Police Officer I, or sergeant, without disclosing their names on the agenda, Ewert added.

While the Disciplinary Review and the Use of Force boards would be able to use the Brown Act’s personnel exemption, the Risk Management Review Board would not since it does not deal with disciplinary records, he said.

To comply with the Brown Act, Pasadena would have to provide proper public notice of the boards’ meetings and recognize that these are Brown Act bodies, he said.

The city also would have to report any actions taken in closed session to the public “to the extent they are not using any personally identifiable information about a police officer,” Ewert said.

Bagneris said that sections of the city’s municipal code – which protect employees privacy interests and preclude public disclosure of these matters – also conflict with the Brown Act open meeting requirements.

But according to Ewert, state laws preempt local laws.

“If her analysis is correct, then the Brown Act would be completely ignored by local governments throughout the state because they would just pass their own laws,” he said.

The CNPA is a trade association whose members include daily and weekly newspapers throughout the state.

Councilman Chris Holden said he thought it was wise for the city to take a time-out and re-evaluate the system.

While it appears the panels would have to comply with Brown Act regulations, the city also needs to feel comfortable that officer privacy issues have been properly considered, Holden said.

“It seems there needs to be some reconciling of various points of view, and that whatever we do is done with an appropriate amount of transparency and accuracy, and is complete in meeting the objectives of the city’s laws and the expectations of the community,” he said.

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