(for publication in the Los Angeles Daily Journal)
by Donna J. Wade
Recent newspaper stories on the LAPD Rampart scandal have referred to them. No sworn member of the department can be demoted in rank, suspended without pay for more than 30 days, or fired without one. But unless they've been involved in the process as a complainant, witness, or civilian board member, few members of the community actually know what transpires in an LAPD Board of Rights. The following is offered as a glimpse (though an over-simplified one) into the system.
Rules governing Boards of Rights and due process procedures for peace officers are codified in the Los Angeles City Charter Section 1070. Boards of Rights, also known as administrative trial boards, were instituted as fact-finding entities, charged with evaluating all the information amassed on a given topic and reaching a fair decision. The proceedings involve administrative law, not criminal law, and therefore function more informally, without the restrictions of a court proceeding, such as those involving the admissibility of evidence. Boards are convened for the simple purpose of getting to the truth of the matter in question.
Officers accused of misconduct can be directed to a Board of Rights by a commanding officer, or they may opt for charges against them to be heard at a board rather than adjudicated at their division of assignment. Boards of Rights are open to the public, unless they are deemed "closed" hearings by the board. Protecting the anonymity of a confidential informant is one reason a board might close a hearing, but barring this or other exigent circumstances, boards are open to the public. They are held downtown on the fifth floor of the Bradbury building at 304 S. Broadway.
Three people comprise the board, two LAPD officers, ranked Captain or above, and one civilian. The accused officer may select any LAPD officer ranked lieutenant or below to act as his/her defense representative, may be represented by private counsel, or both. Upon notification of formal charges, an accused officer has five days from the date of personal service of the complaint (10 days if the complaint is served by certified mail or other means) to request a Board of Rights Hearing.
The accused officer selects four names from a hopper containing the names of all current command staff, and from those names selects two as board members. A date is then set for the hearing (not less than 10 days nor more than 30 days thereafter). The Police Commission is notified of the dates, and provides names of three available civilian members, who are commission appointees. Then the department advocate, who presents to the board all facts and evidence gathered during the investigation, and the defense each strike one name and the remaining one is the civilian member.
The City Clerk issues subpoenas in the name of the city requiring the attendance of witnesses and the production evidence at the time and place specified on behalf of both the department and the accused. Through the discovery process, the advocate turns over to the defense a copy of the complete personnel investigation on which the department's charges are based.
Boards are conducted like a criminal trial, with a few differences. First, in a criminal action, the burden on the prosecution is "proof beyond all reasonable doubt", but in administrative trial boards the burden on the department is to prove each charge by a preponderance of the evidence.
Unlike criminal proceedings, hearsay evidence is admissible in Boards of Rights, as long as it can be supported by direct evidence. All testimony before the board is given under oath and is recorded by a certified court reporter.
Another difference in an LAPD administrative hearing is that an officer cannot invoke the 5th amendment privilege. Those wishing to not offer testimony in the matter for fear of self-incrimination are ordered by a superior to provide testimony for administrative purposes only, and admonished that their refusal to do so can be deemed insubordination and could result in additional charges against the accused. They agree to provide testimony under the proviso that their testimony in the board cannot be used against them in a criminal proceeding.
The department's advocate presents the case against the officer, calling witnesses just like in any trial, and the defense has an opportunity to cross-examine. Once the department rests, the defense presents its case. After the presentation of the witnesses and other evidence, the room is cleared and the board deliberates to reach its finding of fact. The decision need not be unanimous, just a majority vote of the board. In the case of a 2-1 vote on the finding, the dissenting member may author a minority opinion for inclusion in the record.
If the officer is found guilty of the charges, the board then reviews the officer's previous complaint history and the departmental personnel history and records, including performance ratings, commendations, special training and duty assignments. The board also hears from character witnesses presented by the defense. The board then deliberates on an appropriate punishment, which can be anything from an official reprimand, to suspension, demotion, or termination. Whatever the board recommends is the maximum penalty the chief can give the officer; he cannot decide the board was too lenient and increase the penalty, but he can decide that the board was too severe, or there are convincing mitigating circumstances, and reduce it. Chief Parks rarely changes the findings or penalty determined by Boards of Rights.
An accused officer may appeal the findings of the Board and proposed discipline to the Superior Court. After all appeals are exhausted, the matter becomes a public record obtainable through the city's Civil Service Commission.
Copyright 2007 Donna J. Wade / All Rights Reserved