Confidential Information? Subpoena Power? City Council Plans for Police Oversight
East Lansing’s City Council is looking very likely to unanimously adopt the ordinance that will form a police oversight commission as early as July 13.
Attorney Laura Genovich from the City Attorney’s office will make the few amendments requested by Council members at this Tuesday’s discussion-only session and said that it’s likely Council will have the new draft to review on June 22 to then vote to pass on July 13.
Council met on Tuesday, June 15, to discuss the ordinance presented last week by the Study Committee on an Independent Police Oversight Commission and to voice concerns and make suggestions about the proposed contents and language of the ordinance. Members of the East Lansing Police Department and the Study Committee were also present to answer questions.
Overall, few changes appear likely to be made to the drafted ordinance as it was initially presented by the Study Committee. But here is a summary of some of the important issues that were discussed and clarified during this Tuesday’s session of Council.
Confidential Information and the Open Meetings Act (OMA)
Mayor Aaron Stephens and Mayor Pro Tem Jessy Gregg both expressed concerns about the process by which ELPD would release information marked as confidential to the oversight commission, issues addressed in Sections 21 and 22 of the proposed ordinance.
“I am struggling with how that would work – getting confidential information while also not making it public,” Stephens said, referring to Michigan’s OMA and Freedom of Information Act (FOIA) statutes and the rights of the public to attend City commission meetings. Gregg cited similar concerns about how information would be kept private when meetings may be recorded and available to all.
According to legal counsel Genovich, what information gets to be classified as confidential can be slippery.
“It can be almost too easy to talk about confidential information as if it all has the same character,” Genovich said, “but some of it may be able to be disclosed to the commission, and some can’t, and then some that’s disclosed to the commission may be public record, and some might not be.”
Genovich also pointed to federal, state, and police union regulations – all which could affect what information the commission can see and what information they can then pass to the public.
Study Committee member Erick Williams, an attorney, described the committee’s thinking on the issue and how it is encompassed in Sections 21 and 22 of the ordinance.
“A police officer’s home address is something everyone agrees should not be broadcast,” said Williams, drawing on a concrete example. “So, if information is definitely confidential, Section 22 applies. That’s where the police department will describe the information, basically saying what we’re not releasing” – in this example, an officer’s home address – “so the commission knows what it’s not getting.”
Williams then explained that Section 21 refers to information that ELPD is willing to share with the commission, but not the general public. Williams indicated that in some cases, workarounds would have to be found.
“You can talk about information that is confidential, and you can say a lot about information one side claims is confidential without actually revealing the secret information that you don’t want to be released,” Williams told Council.
The OMA allows commissions to go into closed session in some particular circumstances. Genovich described how this may be accomplished by the commission, by saying, “With respect to receiving information, if it is information that the department can lawfully convey to the commission, and it is exempt from disclosure under statute generally, then it seems like a closed session could be held to receive that.”
Subpoena Power and City Council Oversight
Whether the proposed oversight commission would have the equivalent of subpoena power has proven a contentious topic, one that was discussed at length during Tuesday’s session.
One public commenter spoke on this issue.
“I’m unclear if this oversight commission has subpoena power, but if they do not, I think they should,” said Anna Fisher when she called in for public comment. “At the very least, this oversight commission as written should be adopted and accepted. But I really just think it’s a baby step. We have to keep working.”
Council can “subpoena witnesses, administer oaths, and compel the production of books, papers, and other evidence” from City employees under Section 4.9 of the City Charter, which is the power referenced in Section 24 of the proposed ordinance that would grant the same powers to the oversight commission.
“This section would give the full force and authority of that to a non-elected body, which I think is significant enough that we need to talk about it,” said Stephens at Tuesday’s meeting.
Gregg pointed out that Section 24, as written, does limit the investigatory power of the oversight commission to issues under the scope of its purview.
Genovich explained she would be “most comfortable” if Council solely retained that power but did explain that the Council could use that power to essentially “deputize” the commission, providing the commission with the power to subpoena as long as it was first approved by Council on a case-by-case basis.
There was general agreement, both from Council and Study Committee members, that this interpretation could work.
Council member Lisa Babcock voiced her support for empowering the commission.
“I fully support subpoena power, I understand that it would have to go through the Council, and that’s fine,” said Babcock. “I am in the unique position of probably being the only Council member who’s filed a complaint against the police department,” the process of which Babcock found “vexing and exhausting.” (ELi reported on that complaint.)
Babcock added, “I can understand how a commission tasked with this could want every tool available to it and how the public wants every tool available to this commission. Balancing it through the City Council, I think, is an elegant solution and I support it.”
“Remember, there are a lot of people that want us to have subpoena power,” Williams told Council, referencing Fisher’s earlier comment as well as the “many” other members of the public that have expressed this wish. “So we’re on the razor’s edge; people want us to have this power, and then the law is otherwise, so we’re doing as close to subpoena power as we can get.”
Council has the final say
Although Babcock prefaced the discussion on the ordinance by pointing out what cannot be done legislatively at the local level, like ending qualified immunity and making police disciplinary records public, Council will maintain significant power over the local oversight commission.
The oversight commission’s power to investigate and subpoena City staff, as well as its power to negotiate with ELPD about receiving information that may be in dispute, ultimately relies upon the cooperation and approval of City Council.
As came up several times during the discussion, if Council says ‘no’ to commission requests, that is where the query ends from the City’s standpoint.
The study committee, however, included one final measure of recourse in Section 9 of the ordinance.
“The commission has the power of the bully pulpit,” Williams explained. “When they are thwarted, they can always go to the public and are protected in doing that. There’s nothing that would prevent the ACLU or someone else allied to go to court if there was a litigable issue.”
He added, “The ability of the commission to publish on its website reports, what happened to recommendations, what happened to complaints, how complaints were resolved, all of that ability to go public with its dissent is an important part of the ordinance.”
Council is expected to revisit the ordinance at its June 22 meeting, when it will look at proposed draft changes from the City Attorney. But overall, the discussion this Tuesday suggested the changes were minimal and intended to clarify wording, such as the offering of mediation between a complainant and police officer.
Since Council cannot vote on an ordinance the night it is introduced (except in cases of emergency) as per the City Charter, the vote on the ordinance will most likely be held on July 13.