LEOBoR task force hearing takes up Anastasia Williams legislation

“…what LEOBoR has done is supersized due process well beyond the realm of what the United States Supreme Court requires. And that begs the question… Why is this so? …why is it easier to swiftly but fairly discipline a public works employee… than a police officer?“ The Senate held their fourth meeting of the LEOBoR Task Force on Thursday, a
Photo for LEOBoR task force hearing takes up Anastasia Williams legislation

Published on October 30, 2020
By Greg Brailsford

…what LEOBoR has done is supersized due process well beyond the realm of what the United States Supreme Court requires. And that begs the question… Why is this so? …why is it easier to swiftly but fairly discipline a public works employee… than a police officer?

The Senate held their fourth meeting of the LEOBoR Task Force on Thursday, a special commission tasked with reviewing the Law Enforcement Officers Bill of Rights with an eye towards either reforming the legislation or scrapping it and beginning from scratch. The task force was the brainchild of Senator Harold Metts (Democrat, District 6, Providence), who lost his election to Senator-elect Tiara Mack and will not be a member of the state legislature when the final report is due to presented to the full Senate on February 9, 2021.

As with the first three meetings of the task force, there was no opportunity provided for public comment. Instead, we heard from two lawyers, one who prosecutes police misconduct cases before LEOBoR boards, and one who defends police officers in LEOBoR proceedings. Boardmember Reverend Howard Jenkins Jr read a statement on behalf of the Minister’s Alliance, Marcel F Beausoleil PhD, former commander of the Woonsocket Police Department testified on behalf on behalf of the Fraternal Order of Police, and Trooper John Brown offered testimony from the Rhode Island Trooper’s Association.

One thing that was brought up was Representative Anastasia Williams (Democrat, District 9, Providence) bill, H8036, that would comprehensively alter LEOBoR, even to the point of changing the name of the legislation to the Law Enforcement Officers’ Accountability Act.

Below is all the video, and some notes of interest.

For previous meetings of the task force, see:

Kicking the hearing off, Task Force Chair Metts noted that as of August 2020, annual professional development and prejudice training is a requirement of the Police Accreditation Commission, per the Rhode Island Police Chiefs Association.

The first presentation to the task force was from Attorney Vincent Ragosta, who “often represents law enforcement agencies during LEOBoR proceedings.”

Attorney Ragosta began by listing off a small number of police misconduct cases – most of which have resulted in criminal prosecution, employment discipline or both – and of course a great deal of media attention:

  • A police officer stealing cash from a single mother’s shoebox in her home;
  • Police pepper spray, beating and breaking the legs of man who simply went through a stop sign and then falsifying the arrest report to cover up the true facts of the incident;
  • A female drunk state trooper driving southbound in the northbound lane on Main Street in East Greenwich then fleeing the scene after a traffic stop by a local police officer culminating in kicking, punching, scratching and screaming, resisting arrest, and other acts of violence;
  • Cheating on promotional exams and then lying about it – the so-called Providence Police Department testing scandal;
  • Fighting in the street with a fellow police officer first on horseback, then hand-to-hand with uniformed combatants in full view of the public, resorting to weapons such as a CapStun [pepper spray], baton and o yes, even a gun, all caught on video in downtown Providence;
  • Brawling in the lunch room of a police station, instigated by one officer simply picking up another’s bag of Chinese food to sniff its tempting aroma, teasingly. That escalated into a melee that eventually required the entire, on-duty patrol officers to respond back to the station to quell a disturbance among their own. That, by the way, ended with officers being disabled as a result of injuries and collecting benefits;
  • The infamous Peter Gilbert affair in the late 1980s;
  • And more recently the Cranston Police Department’s sex on duty cases,
  • The infamous ticketgate scandal that set of litigation before, during and in the midst of the LEOBoR prosecution with trips to the Superior Court and to the Supreme Court.
  • And just about a year ago, a recent case about an unprovoked punching and attack by a Pawtucket Police officer off-duty, in a drunken state… triggered simply because there was a lack of warm water in the rest room sink and he took his anger out on a rather diminutive 72-year old man who was handing out towels

Attorney Michael Colucci, who has over 30 years experience in defending police officers during LEOBoR hearings, dismissed these incidents, saying, “Mr Ragosta laid out years of misconduct and misdeeds committed by police officers. I could spend the afternoon talking about heroic deeds done by police officers.” [See video 06 below]

LEOBoR was first passed in Rhode Island in 1976, modified in 1980 and 1982, and last modified in 1995. Attorney Ragosta sees the development of LEOBoR as coming out of police officers not feeling that their rights were being met during the internal review and discipline process. Hence, “they ought to have a procedural scheme to protect them against civilian complaints.” But what has evolved are stutory schemes that are “far more expansive than the so-called loudermill procedural due process rights that pertain to all public employees.

Rhode Island’s version of LEOBoR is considered to be among the most procedurally comprehensive in the nation.

“Essentially, in my view, is what LEOBoR has done is supersized due process well beyond the realm of what the United States Supreme Court requires,” said Attorney Ragosta. “And that begs the question that I would like the commissioners to consider: Why is this so? Particularly with public employees of law enforcement agencies, paramilitary agencies, individuals who may use force, even deadly force, why is it easier to swiftly but fairly discipline a public works employee… than a police officer? That I think is a compelling question for everybody to cogitate upon as you go through the process of considering reforms.”

Ragosta ran through some of the highlights of Representative Williams bill, H8036, which he helped write. The idea, said Ragosta, is to balance the rights of the public and police officers.

Though H8036 is fairly comprehensive in its changes, Ragosta concentrated on three main issues the new legislation addresses:

Hearing Committee Composition: Currently LEOBoR review boards have three members, all police officers. One is selected by the accused officer and one is selected by the head of the law enforcement agency bringing the complaint. “Those partial hearing committee members serve as second advocates in the LEOBoR proceeding,” said Attorney Ragosta. Tthese are not true neutral adjudicators.

The third member of the LEOBoR review board is also police officer, and that police officer comes from one of two lists. “One is a list submitted by the Rhode Island Police Chiefs Association,” said Attorney Ragosta, “and one would think that some on that list would have in mind the best interest of management of the law enforcement agency in holding an officer accountable.” The other list is “made up of IBPO [International Brotherhood of Police Officers] and FOP [Fraternal Order of Police] representatives. And those individuals, obviously, want to serve the interests of protecting the rights of the accused officer and potentially exonerating them.”

“That is a very difficult scenario for a lawyer to present a case in because you basically have a 50% chance to have a much better result depending on who that neutral is,” said Attorney Ragosta.

“The process is fraught with conflicts. Let’s not forget the fact that labor organizations represent the business interests of police officers. They are business associates. So it’s very uncomfortable sometimes when I’m in a hearing and I can see an advocate on the other side… sort of curries favor with some sort of small talk about collective bargaining issues, the fact that everybody is bound together in the union brotherhood and sisterhood.

Under the legislation proposed by Representative Williams, three citizen selectees would be added to the review board. “I think it brings balance and I think we cannot underestimate the common sense and good judgement that the citizens of our state would bring in assessing misconduct,” said Attorney Ragosta.

Discipline, then a hearing: “Our police chiefs are essentially neutered and emasculated in Rhode Island in the sense that they may not impose discipline in cases that clearly warrant swift and decisive disciplinary measures,” said Attorney Ragosta. “That is because, under LEOBoR, any measure that is considered punitive, such as a suspension or ultimately a discharge, may only be recommended. In essence a chief recommends what should be done, and then it has to be vetted by a trial like process which has all of the attributes of a criminal or civil trial.

“What’s proposed in H8036 is to allow for the immediate imposition of discipline, and then invoke the LEOBoR process to appeal that. I think that is more consistent with the manner in which other public employees are disciplined. I think that serves the public interest while at the same time affording the due process minimally, that any employee would get suspension or the deprivation of a property right.

Changing the authority of the hearing committee: “The hearing committee under H8036 would be limited in its review in this sense: It would not be able to overturn or second guess the decision on discipline of the chief of police or head of the [law enforcement agency] and it embodies the doctrine of deference,” said Attorney Rogasta, who sees it as working like this: “If evidence is established to prove that discipline is warranted, then the arbitrator should defer to the judgement of the employer. The logic of that is that after the case is over it’s the chief of police that has to live with the consequence of the discipline. So the hearing should give full deference to the judgement of the management of the police department, typically the chief of police, in what measure of discipline is appropriate. And it should not be overturned unless it’s completely arbitrary or completely capricious.”

Task force member Anthony Capezza Jr, who serves as the the state director and lobbyist for the International Brotherhood of Police Officers, pushed back against changes to the hearing board.

“If a member of the armed services gets in trouble, he is brought before a court martial, traditionally made up of members of the armed services,” said Capezza. Similarly, “if a lawyer gets in trouble, he is brought before the bar association.” Citizen review of police means people without expertise in policing will be sitting in judgement of police officers.

“Last I checked I think law enforcement officers in Rhode Island and others state that have bills of rights are one of the few professions where they’re judged exclusively by their own,” answered Attorney Ragosta.

“There’s a reason for that,” said Capezza, “Just like military people know the military, lawyers know lawyering and doctors know the medical profession. That’s why these other professions are judged by their own peers. Because they all understand the workings of it.”

Attorney Ragosta took Capezza’s opinion straight on, noting that citizen jurors are perfectly capable of determining whether or not a police officer’s actions conform to the rules and regulations. Attorney Ragosta added that accusations of civil rights violations by police officers are tried before juries already.

“We need to have a broad perspective of individuals looking at police misconduct,” said Attorney Rogasta. “Representative Williams’ suggested name change is, I think, very telling. LEOBoR would now be called the Law Enforcement Officers’ Accountability Act. As public employees police officers are accountable to the citizenry at large for their conduct, so injecting citizen participation … to make value judgements about the conduct of police officers I think is perfectly appropriate. I think that’s what the public is calling for today.”

“A police officer under investigation has the same rights as every other American, which is the right not to incriminate themselves,” said boardmember Peter Neronha, who serves as the Rhode Island Attorney General. “When they’re given an order by a superior to give a statement, then that statement and any evidence that is derived therefrom cannot be used, certainly not in a criminal prosecution against them. Is it true that that principal also applies in the LEOBoR context?”

It does, answered Attorney Ragosta, which means that police chiefs often have to decide to go the criminal prosecution route rather than LEOBoR under some circumstances. Waiting for the Attorney General to win a criminal case makes the LEOBoR case much easier, and by doing things in this order, criminal case, then LEOBoR, you avoid stepping on the officer’s right to not incriminate themselves.

Another point: A compelled statement from an officer, as in when an officer is ordered to write a statement that may incriminate them by a police chief, cannot be used in the criminal prosecution of the officer, but may be used in a LEOBoR hearing. Not writing the statement may result in additional charges of insubordination.

Attorney General Neronha concurred, saying that what’s available to lawyers in a criminal investigation is not necessarily the same information available to lawyers in a LEOBoR context.

Ragosta added that the public should bear in mind that when an officer is acquitted of criminal actions in a criminal court, LEOBoR requires that the officer be reinstated with full back pay. “I think that is an extremely onerous provision because oftentimes while a criminal prosecution may not be successful, given the higher burden of proof, an administrative prosecution under LEOBoR has a solid chance of being successful. But what happens is the municipality must pay all of that money upfront, to the officer, following acquittal of a criminal charge only to have to start over to terminate or otherwise discipline the police officer.”

Attorney Michael Colucci has over 30 years experience in defending police officers during LEOBoR hearings and he spoke next from a position of leaving LEOBoR as it is, saying if it’s not broke, don’t fix it.

When LEOBoR was revised in 1995, it was said that over 94% of cases are resolved without a LEOBoR hearing. And in Colucci’s opinion, the number of LEOBoR cases has dropped dramatically since then “because LEOBoR does have teeth.”

Boardmember Jose Batista, the executive director of the Providence External Review Authority (PERA) pushed back on this, noting that only 1% of criminal cases go to trial, most are pled out, so the 94% resolution without LEOBoR is not a number that we should put a lot of stock in, especially since the difficulties of implementing LEOBoR incentivize Police Chiefs to bring lighter discipline than might be warranted to avoid invoking LEOBoR protections.

“LEOBoR is the sole and exclusive remedy for dealing with police officer misconduct,” noted Attorney Colucci. “That equals less courtroom litigation. It is a procedure for conducting an investigation and for conducting a hearing.”

LEOBoR is not a training program and it’s not a substitute for rules and regulations. It doesn’t come into play until an officer has been alleged to have committed a wrongdoing, said Attorney Colucci, “So in many ways looking to change it, do away with it, it’s not going to address the concerns that many throughout the country are having right now.”

“LEOBoR is a deterrent,” said Attorney Colucci, adding that we don’t want to ruin something that is working. Attorney Colucci maintains that LEOBoR was developed to address the problems of police officers in the 1950s and 60s, when looking at the chief the wrong way could result in punishment.

LEOBoR is cheaper and quicker than going through the courts, said Attorney Colucci. Eliminating LEOBoR means increased litigation and increased lawsuits. That means greater costs for the municipality and the accused officers, who pay out of pocket in most instances now.

On the human side, said Attorney Colucci, “Minority recruitment has never been better and diversity on our police departments has never been higher.” These officers are often the ones with the least seniority. “If politics makes its way back into the disciplinary process, it’s these [minority] officers that may be affected the worst.”

Currently police chiefs can suspend without pay an officer for two days without invoking LEOBoR. Increasing the number of days a police chief can suspend an officer before invoking LEOBoR can be a very expensive proposition for the officer, maintained Attorney Colucci. An officer might be averaging between $300 and $400 a day on the job. Even with the minimum suspension that’s $600 to $800 out of their pockets. Ten days could be $3000 to $4000, that’s a very significant punishment without the opportunity to have a hearing.

At $600 to $800, most of the time the officer will take it and not initiate a grievance procedure. But more money lost will incentivize police officers to initiate a grievance procedure, meaning more time and money will be spent on these cases. Colucci can’t remember the last time a grievance was filed on a two day suspension.

As for changing the makeup and the size of the panel deciding LEOBoR cases, this will have the effect of increasing the number of hearing days and costs, says Attorney Colucci. As currently configured, the panel is made up of law enforcement officers, experts in law enforcement. Having civilians on the panel means that lawyers will have to explain elements of police procedures to non experts, and call expert witnesses, increasing the amount of time that must be spent hearing these cases. Police officers understand how mistakes in policing are made, and what the appropriate punishments should be.

Attorney Colucci said that protecting the identity of accused police officers (something not granted to members of the public facing charges) is important. Case law says that the officer’s identity should be protected, though under what circumstances this applies is not clear.

Finally, Attorney Colucci maintained that there’s no nexus connecting the recent high profile examples of police misconduct and LEOBoR. Also, if police officers feel that they may be subjected to unchecked discipline their natural response may be to do very little or do much less.

Ragosta pushed back, saying that at LEOBoR hearings often have police officers testifying at the hearings, and also have the Police Chief explaining his rationale for bringing the discipline issue to a hearing, with an explanation as to how the officer violated rules and regulations.

H8036 allows limited public statements to be made by police chiefs in the event that an officer is to be terminated. The statements can be about the charges brought that resulted in the termination.

“Ultimately, being a police officer is an informed choice, whether to do or not to do,” said Jose Batista. “Where as the harm the exists on the other side of the equation is to folks who are civilians, not doing anything other than existing… They’re not being punished for what their profession is – sometimes it’s for their skin color.

“Folks just walking down the street deserve to have their bill of rights, the original bill of rights, the constitutional bill of rights, be upheld,” said Batista. “So many police chiefs that want to avoid the expense of LEOBoR try to figure out how to take an offense that’s worthy of far more than two days and somehow make it fit…”

Senator Gordon Rogers (Republican, District 21, Coventry, Foster Scituate, West Greenwich):

Reverend Howard Jenkins Jr on behalf of the Minister’s Alliance:

Marcel F Beausoleil PhD, former commander of the Woonsocket Police Department on behalf of the Fraternal Order of Police.

Trooper John Brown from the Rhode Island Trooper’s Association:

Senator Metts wraps up:

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