The Criminal Justice Conversations Podcast with David Onek

Episode #32: Joyce Hicks, Executive Director, San Francisco

Office of Citizen Complaints (April 25, 2012)

Listen at www.law.berkeley.edu/cjconversations

DAVID ONEK: Welcome to the Criminal Justice Conversations

Podcast, a coproduction of Berkeley Law School and the Berkeley

School of Journalism. I’m your host, David Onek. Criminal

Justice Conversations, recorded in the Berkeley School of

Journalism studios, features in depth interviews with a wide

range of criminal justice leaders: law enforcement officials,

policymakers, advocates, service providers, academics and

others. The program gets behind the sound bites that far too

often dominate the public dialog about criminal justice to have

detailed, nuanced conversations about criminal justice policy.

Today’s guest is Joyce Hicks, executive director of San

Francisco’s Office of Citizen Complaints. The mission of the

Office of Citizen Complaints, known as the OCC, is to promptly,

fairly and impartially investigate complaints against San

Francisco police officers and to make policy recommendations

regarding police practices. Hicks took over the OCC in 2007

after a scathing comptroller’s audit of the agency. She

previously served as executive director of the citizens police

review board in Oakland and as an Oakland City Attorney. Hicks

is a graduate of Pomona College, received her law degree right

here at Berkeley. She and I worked together during my time on

the San Francisco police commission and she joins us in the

studio this morning. Joyce Hicks, welcome back to Berkeley and

welcome to the program.

JOYCE HICKS: Thank you very much, David. It’s my pleasure to

be here this morning.

ONEK: So can you start by describing what the Office of Citizen

Complaints does.

HICKS: Well, David, with your lead-in you talked about our

mission, which is in the San Francisco city charter and that is

to promptly, fairly investigate civilian complaints of police

misconduct. But we do much more than that. We are also by

charter mandated to make policy analyses of police policies

and practices to insure that there are better policy-community

relations. Another thing that we do, although not mandated by

charter, is to mediate eligible complaints between officers and

complainants.

ONEK: Can you talk about some of the common complaints that

your office receives?

HICKS: Well, our office receives a broad range of complaints.

We receive unnecessary force complaints, and that’s only about

10% of our complaints. The largest percentage of complaints

that we receive are for unwarranted action, when an individual

feels that he or she has been unlawfully detained, arrested or

cited. We also receive complaints of discourtesy or an officer

failing to perform a duty such as completing an incident report.

ONEK: So walk us through a typical complaint. How does it

first come to your attention and where does it go from there?

HICKS: Complaints come to our attention in a variety of

ways. A complainant can phone us. We have a 24-hour answering

service. We receive phone-in complaints between 8:00 and 5:00,

8:00 in the morning and 5:00 in the afternoon. Complainants can

walk into the office during regular business hours. Complaints

can come in by mail. They can come in by email, although we do

not have online complaint filing yet but it is something that

we plan to do in the very, very near future. Another way that

individuals file complaints is through the San Francisco police

department. They can walk into any district station and file

a complaint and then that complaint is forwarded by the police

department to us.

ONEK: What happens once it reaches your desk, that initial

complaint? What are the first steps that are taken?

HICKS: The first steps that are taken when a complaint is

received is that an investigator will interview the complainant.

So if the complainant walks in then the complainant gets an

interview at that time. If we receive the complaint in another

way the investigator contacts the complainant and arranges

either for the complainant to come in for an interview or for

the complainant to be interviewed over the phone. Then once we

determine what the complainant’s allegations are, that is, what

the complainant is complaining about, then we begin a process of

obtaining records from the police department. We have a high

level of cooperation from the San Francisco police department in

obtaining records. The police commission is a seven-member body

that oversees both the Office of Citizen Complaints and the San

Francisco police department. The police commission has adopted

something called document protocol, which is a requirement of

the San Francisco police department to provide the OCC with

documentation. Quarterly we report to the police commission

on whether or not we’ve received documents in a timely manner.

That has really improved what I understand was a difficult

process prior to the time that I got there.

ONEK: Now speaking of prior to the time that you got there,

I want to ask you about this audit that happened in 2007

before you came on board. The comptroller found that “OCC

management does not meet standard expectations for performance

and management accountability”. What were the problems that the

comptroller found and how have you worked to rectify them?

HICKS: Well, David, there were a number of problems that the

auditor found. The auditor found over 40 problems with the

way business was conducted by the OCC. They also found some

problems with the police department and the police commission

oversight of the office of citizen complaints. But I will

just focus on OCC’s issues. There were personnel issues and

issues of personnel management, doing regular performance

plans and appraisals. There were procedures issues, not

having a procedures manual that was up to date. Last year we

completed our confidential procedures manual, which outlined

how investigations are to be conducted, different protocols for

types of investigations. The audit also found that there was

not a training program in place, that there was not outreach in

a regular manner. So it just ran the gamut and in the past four

years, I got to the OCC in November of 2007, I’ve been working

diligently with all the staff to implement the recommendations.

We recently had a second post-audit audit of the OCC and I

believe when those results are released that the comptroller

will have found that the OCC has substantially complied with all

of the recommendations.

ONEK: Now you mentioned earlier the mediation program that is

part of the OCC. It’s really viewed as a national model at

this point. One of the big themes of this program has been

restorative justice and the mediation program fits right in with

that theme. Can you describe the program to our listeners and

describe what a typical case might look like?

HICKS: Well, the OCC is very proud of its mediation program.

About the time that the comptroller’s audit was released

the prior director hired an attorney who had a background in

mediation. That attorney has turned OCC’s mediation program

around so that it went from 46 mediations a year to a high

of 71 mediations a year. Our mediation program is voluntary.

That means that both the police officer complained of and the

complainant have to agree to mediate. In San Francisco over 90%

of the eligible officers who are contacted about mediation agree

to participate in mediation, and 55% of complainants who are

contacted about mediation agree to participate in the mediation.

We have the highest per capita officer participation rate in

our mediation program in the nation. And a typical mediation

might be, as an example, a business owner contacted the police

department because there was a difficult customer that the

business owner wanted removed. The police officer came, removed

the difficult customer, but also told the business owner that

the business owner needed to have permits posted in the business

and that was in violation of the law. Well, the business owner

felt that he was being penalized because of his race and that

he had called for help from the police and instead the police

officer was telling him that he had done something wrong. So

we asked that complainant, that business owner, would you like

to mediate? The complainant said yes, the officer said yes and

the two of them sat down with two independent mediators, who

are volunteers themselves and uncompensated, and talked about

how they felt about the interaction. The mediators reported

that both parties left the mediation satisfied and the officer

explained that he was only trying to help the business owner to

be in compliance with the law.

ONEK: And can you, one of the amazing things about it is that

you talked about the stats of how many people agreed. But then

when the folks do agree, I remember during my time on the police

commission of it being upwards of 90% of both officers and

complainants saying that they were satisfied with the outcome of

this process, which is pretty remarkable. Have those numbers

stayed that high and, a 90% success rate is pretty remarkable.

HICKS: David, yes, those numbers have remained that high. Your

recollection is correct. We have skilled mediators who conduct

these mediations. They are not members of the OCC staff. They

are not members of the San Francisco police department. They’re

volunteer professional mediators who help the parties to have a

conversation. The conversation isn’t always about an apology

but it is about each, both the officer and the complainant,

having an opportunity to explain his or her position.

ONEK: I think one of the reasons that’s so powerful, and I

had the opportunity to sit in on one of these that ended very

amicably when it definitely was not amicable at the beginning of

the conversation, I think it just shows how rare it is that both

officers and the public have a chance to sit down face to face

and discuss what happened and in a way that feels safe, with

these trained mediators. When you think about it, a member of

the public who makes a complaint, that takes some effort. Your

office makes it as easy as possible but there are lots of people

who feel that the police have done them wrong who don’t make

a complaint. Someone who makes a complaint has probably like

told their whole circle of friends about it and the officer who

has a complaint against them, who feels that it wasn’t a fair

complaint is probably telling all his or her colleagues in the

locker room about this thing that has happened. So when they go

into the room and then come out feeling good about it, then the

complainant goes back and all the people in their community are

saying hey, what happened to that complaint? You were going in.

Did you give it to them? And if the complainant’s like well,

you know, I still think I was right but now I have a much better

sense of what was going through the officer’s mind when he came

across me, what the circumstances were. And likewise an officer

might say when asked by his colleagues, you know, I still think

I was right but I understand that if I did things a little

differently or used a different tone that it would have had a

completely different effect on the person I was interacting

with. That’s pretty powerful stuff.

HICKS: I think it’s powerful stuff. The other thing that’s

powerful is that a mediated case takes about three months,

whereas an investigated case from start to finish may take

upwards of six months on average. And also, if we can talk

a little bit about the standard of proof, for proving that

there has either been misconduct or that there’s been proper

conduct it’s the preponderance of the evidence. So many of

these complained of interactions are one on one and it is

difficult for an investigator to determine who was right and

who was wrong. So approximately 61% of the allegations are not

sustained. Meaning that we could neither prove nor disprove

that there was wrongdoing or proper conduct. So both the

parties walk away, both the officer and the complainant, with

not a great taste in their mouths because each felt that he or

she was right and we were not able to prove it.

ONEK: And the only way that this program can be successful, can

have over 90% of officers agreeing to do it, is if you have the

union supporting it. So how did you? You know, programs in

other cities I would imagine unions have been resistant to it.

How did you show the union that this was in their best interests

to get on board with?

HICKS: The negotiations for this took place before I arrived

as the director. San Francisco was just very fortunate that the

San Francisco police officers association felt that mediations

were a valuable tool for them. They even marketed the mediation

program in their monthly newsletter. If one has read the

monthly newsletter of the POA it is not always favorable to

the OCC, but in this instance it was extremely favorable.

I’ve been on panels discussing our mediation program at the

National Association for Civilian Oversight of Law Enforcement

conferences and I’ve been asked by other jurisdictions, how

did you get the union to agree to your mediation program, our

police unions are very much opposed to it? I think one thing

that’s extremely helpful for us is to have a skilled mediation

coordinator, Donna Salazar, who maintains a very open line

of communication with the union officers. They in turn, the

union officers, talk to their members to encourage them to

participate.

ONEK: I think another key point is that officers who feel

that they have been unfairly accused of something, and it just

drags on so long with the investigation and the whole process,

that that’s hanging over their heads, that’s kind of holding up

their career and this is a way to expedite the entire process so

that they can move on. I imagine for the complainant it’s the

same thing. There’s something about. And of course from the

city’s perspective it saves enormous resources to not have to

go through a formal process and get these solved early. So it

seems like if that message could get out to other unions that

they would probably take a second look at something like this.

HICKS: I would agree with you. One thing I can say about the

number of mediations that we do, the number of mediations that

we do each year equal the work of one investigator. And it is

much less stressful work than the work of one investigator who

is interviewing complainants and officers and both of them are

very upset about the situation.

ONEK: So when you say one investigator you kind of mean one

entire case load is taken off your books because you’re able to

move that case load over to mediation.

HICKS: That is correct. Investigators have a performance goal

of closing 60 cases a year and last year we mediated 61 cases.

ONEK: Perfect. Now let’s talk about your time in Oakland. You

previously led the citizens police review board in Oakland.

How is Oakland’s model of police oversight different from San

Francisco’s?

HICKS: Well, Oakland’s model of police oversight is different

than San Francisco’s in many different ways. First of all, the

San Francisco office of citizen complaints is part of the San

Francisco city charter, which means that it cannot be disbanded

by legislative act, it can only be disbanded by an act of the

voters. And the San Francisco city charter provides for minimum

staffing at the OCC, one investigator for every 150 police

officers. With current police staffing levels that would leave

me with a staff of about 15. In fact, I have a staff of 35.

San Francisco, in spite of its budget issues, has treated the

Office of Citizen Complaints fairly in terms of keeping existing

staff levels. I would like to see more. I would like a million

dollars more in personnel enhancements but we know in this

budget climate that may not be possible. In Oakland there is a

staff of seven. Oakland’s citizens police review board is

established by ordinance. So at any time by an act of the

Oakland City Council it could be disbanded. And in Oakland

there’s dual responsibility for investigating civilian

complaints of police misconduct. So there’s a duplication. Not

only does the CPRB, Citizens Police Review Board, handle

complaints, so does the internal affairs division. In San

Francisco the police commission oversees the police department

and the OCC, so there is in fact a neutral arbitrator to help

them deal with issues that might arise between the department

and the OCC. There is no such oversight agency in Oakland.

Oakland does have a citizen’s police review board, that is an

appointed commission. They don’t oversee the police department.

I would say the biggest challenge in Oakland is lack of

resources.

ONEK: And my understanding is that that is typical of a lot

of other police oversight agencies around the country. In

fact, San Francisco is often seen as a model, and it being in

the charter and the charter mandating that a certain number of

investigators be on staff. On paper some other cities have

police oversight but they have one investigator or something and

so it is impossible to do the job. Turning nationally, can you

talk a little bit about nationally what are the main models of

police oversight and what you think the positives and negatives

of the different approaches are?

HICKS: Well, the main models of civilian oversight nationally

are the investigative model, and that’s the model that San

Francisco has, the office of citizen complaint. That’s the

model that Oakland has as well. New York, the Citizen Complaint

Review Board, CCRB of New York, has an investigative model as

does Chicago. But Dr. Sam Walker, professor emeritus from the

University of Nebraska, who is a national expert on civilian

oversight of the police, in his 2005 book The New Police

Accountability, talks about the other model that is growing

and that is the auditor model. San Jose has an auditor model

as do some other jurisdictions. The auditor model doesn’t

investigate complaints of police misconduct. Instead it

investigates whether the police department properly investigated

those complaints. So they audit internal affairs division

complaints and they look at patterns of complaints and they make

recommendations. They have a staff of statisticians who punch

numbers and the like. What I would say about that model, and

speaking with the auditors, the limitation of course is that

they’re not conducting the investigations. So if an internal

affairs division has failed to ask a key question, then it is

more difficult to dial back the investigation. And as we know

in California, investigations must be completed within one year

of a complaint being filed, so there’s a real short time frame.

One of the things that Dr. Walker talks about when extolling

the virtues of the auditor model is that the auditor model

deals with the entire organization as opposed to one officer.

But in San Francisco, because we have not only investigations

but we also have policy analysis, we deal with the one officer

but we also deal with the organization. And we have a robust

policy analysis program in San Francisco and the products that

we have produced in conjunction with the police department

and the police commission again are nationally known, such as

our San Francisco police department’s department general order

on language access, the department general order on juvenile

protocols, that is, how the police will interact with juveniles

when they take them into custody. Most recently the police

department’s beefed-up its crisis intervention team program for

police interactions with the mentally ill. All of these things

arose from recognitions from the Office of Citizen Complaints.

ONEK: Now San Francisco, as you’ve kind of talked about, has

a more robust oversight operation than really almost anywhere,

including Oakland. What did you learn in Oakland that you were

able to take to your job in San Francisco that’s really helped

you there?

HICKS: What I learned in Oakland was that inclusion is

extremely important for a civilian oversight agency. That to

operate on an island and not have regular interaction with

police administration really degrades the work that is done by

a civilian oversight agency. In San Francisco, by department

general order and the department general orders are adopted

by the police commission, the director of the OCC sits on the

firearms discharge review board and along with members of the

police department command staff reviews every officer-involved

shooting. And although the director of the OCC and the police

commissioner who sit on that board don’t have a vote we have our

mouths and we have the ability to influence policy. I also sit

on the early intervention system board and have regular meetings

with the police. Whereas in Oakland the Citizens Police Review

Board was thought of as an extraneous agency and was not really

included. So I would say what I’ve learned is that to be a

valuable entity you need to have regular contact with the

department because you’re there to support the department.

You’re there to provide investigations on misconduct. You’re

there to provide policy recommendations to the department to

enhance the department.

ONEK: Going forward, what do you think the biggest challenges

are for the OCC in San Francisco and for police oversight

generally around the country?

HICKS: Going forward the biggest challenge would be the

budget. Municipalities nationwide are going through a period

of contraction with personnel. In San Francisco we have over

60 city departments and with a staff of 35 I’m one of the

smaller departments. But when it comes time to prepare the

budget in conjunction with the mayor’s budget instructions every

department has to make the same percentage budget cuts. So the

challenge for me as the director since I’ve been with the OCC

has been to advocate for keeping existing staff size and adding

to the staff so that we can do the work that we’re mandated by

charter to do, and that’s to fairly, impartially and promptly

investigate civilian complaints of police misconduct. I think

we’ve done real well on fairly and impartially, but the promptly

part has been a challenge because in the comptroller’s audit the

comptroller indicated that the best practices caseload for a

complaint investigator was 16 cases. When I got to the OCC the

average caseload was 31 cases per investigator. We’re now down

to 23 cases per investigator but that’s not because our staff

has increased. It’s because the number of complaints filed with

the OCC has decreased by 16%. And that’s a nationwide trend of

falling civilian complaints.

ONEK: Great. Well, Joyce, thanks so much for joining us. We

really appreciate it.

HICKS: You’re welcome.

ONEK: Please tune in next time when we’ll be joined by Orange

County Superior Court judge, Wendy Lindley. Also, please tune

into Crosscurrents on San Francisco’s KLW on Monday, April 30

to hear an excerpt from the Criminal Justice Conversations

interview with Joan Petersilia.

Thank you for listening to the Criminal Justice Conversations

podcast. You can find this episode of the program and all prior

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