 This is the meeting of the Burlington Police Commission January 31st 2023 agenda item one call to order the time is 6.02 on January 31st 2023 and calling the Burlington Police Commission special meeting to order. We have a roll call and we have a quorum. Is there any motion to adopt or amend the agenda? Do you want to call on me, Susie? Stephanie? Yes. So I have a motion to amend the agenda to include two items for public session. Item one number one is a discussion of the Riverwatch Condo contract as well as other off-duty contracts. Hold on here. Okay. And number two, the item would be a discussion of the commission's access to unredacted investigative reports. So that's in the form of a motion. I second it. Okay. So now we have discussion. Yes. Somebody needs to lean in and help me here. You have a motion. Yes. That's great. If there's no, you could ask if there's discussion. If there's no discussion, you can move to a vote. Okay. Any discussion? Okay. Tell me what we're voting on exactly, please. We're voting on amending the agenda to add these two items. So I'm calling for a vote on two items discussion of the Riverwatch contract and any additional contracts. And the second one is commission access to redacted materials. Unredacted materials. Any discussion? Fall in favor? Anyone against? Anyone abstaining? Okay. The motion passes. Okay. Agenda item 2.0, public forum. At this time, the public is invited to address the commission. Please identify yourself before you speak to the commission. I do not see anyone online. Is anyone in the room? No. Okay. So what do we do now? Sorry. Commissioner Comerford, you've got a couple folks in the attendees list. I don't know if they're able to, just due to their positioning on Zoom, if they have anything to share, if they're able to do it. I actually can't see. So Muhammad will take care of that. He's going to check. Yeah, then we have two. No one raised their hand. Did you hear that? No one's raised their hand to ask to speak. Okay. Seeing no one, we will close public forum at 6.06. At this time, can I have a motion for executive section? Sorry. We need to take up the two items that were added to the agenda first. Item number one, discussion on Riverwatch contracts and additional contracts. So, Commissioner Comerford, I'd like to provide some information. I had a conversation with the mayor this afternoon. That was very helpful. And I'd simply like to share some information with you all. The mayor noted that when the BPOA contract was negotiated in 2018, and former police chief Brandon Dalpozzo was in office, that there was some concern about off-duty contracts. The relevant section of the BPOA contract is section G, and it is on page 17 of the 2022-25 contract. The language has essentially not changed. There have been some minor changes to it. But basically, the point of that is it gives priority, the city priority, over off-duty contracts. The chief needs to sign off on these or his designee, designee, and the BPOA administers these contracts. The city has conducted a review of contracts to understand whether the Riverwatch condo contract was anomaly or if it was, in fact, there's numerous contracts such as these. And what the mayor said to me is, going back to 2015, that the Riverwatch condo contract is an isolated case. None of the other contracts are similar to this. The remainder are for construction sites or for special events such as the marathon, the parade, and so forth, where public safety is affected. The mayor has instructed the chief to not renew those contracts. And that is the update that I have for all of you with regard to that. And just to know that we spoke this afternoon and he'll be issuing a press release with much of this information. If any of you have any questions about this, it's a good time to post them. And if I have the information, I'm happy to share it. I have questions. Commissioner Rao. I just wrote it down very quickly. The city has jurisdiction over these contracts or is what is the actual wording the city has overviewed over this contract? I'm going to bring up the contract now and read that section if I may. And I'm only trying to figure out what the chain of command is or not command is not the correct word. The chain by which these contracts are ratified or we don't understood. So my understanding this, Haley, if I get this wrong, please correct me. My understanding is that the entities make the contract with the BPOA. However, the chief or his or her doesn't need to sign off on these contracts. So without the permission of the lieutenant or the chief, the contracts can be affected. Haley, can I confirm with you that that's accurate? That's my understanding. However, Jared Peller and the other assistant city attorney in our office works more closely with the police department. So I would want the opportunity to confirm that with him, but that is my general understanding of the way those contracts work. Does anybody else have any questions? Commissioner Comfort? Is it true that the off-duty officers that were doing the Riverwatch work were using police cars and they had their authorized uniforms and also guns with them? That is my understanding. And again, I'm just, there is a relevant section of the BPOA agreement with regard to that. But yes, that's the case. Thank you. So there is a section, sorry. Sorry. Were you going to say something, Commissioner Comfort? I'm sorry, I interrupted you, I think. No, no, I was just calling for voices and you came. So go ahead. So you're saying that there is something in the language that allows for that. That's correct. That allows for the use of those city resources. That's correct. Okay. So my understanding is that the officers are prohibited from using any equipment other than department provided equipment. Thank you. I will add that just for the record that the mayor has asked chief, acting chief Mirad for an assessment of whether there are sufficient controls in place so that officers aren't working too many hours as a result of their shifts and their overtime. Commissioner Graham. Did we get confirmation as to who approved the contract? I think at this point, I would be speculating my understanding as it was a lieutenant who signed off on the contract. Actually, that I'm certain that a lieutenant signed off on the contract. Any other commission like to speak? Okay, Commissioner Stigina. So just for clarity, I had a misunderstanding before my conversation with the mayor today. I had understood there was going to be sort of an official investigation into this and that was erroneous. As you all received, the mayor's office sent us a list of the contracts that had been engaged in with the DTOA and the number of hours worked and that seems to me the efforts that the mayor's office engaged in in order to determine whether this contract was an anomaly or whether there was a pattern of contracts such as this. So as I understand it, this is really the effort to investigate this issue. And as I said, the mayor is coming out of the trust release shortly. Did someone have their hand up? Anthony? Oh, yes. Thank you, Commissioner Comerford. Anthony Arpino, public counsel for the commission. I just wanted to point out for those that were curious and looking for it. It is on page 17 of the contract under section G as a commissioner. So we know previously referenced with regard to the uniform. There's a paragraph in the middle of the page that says officers engaged in special event employment shall wear the full police uniform. There's no reference to police vehicles that I found in section G, but it is clear that they're actually required to wear the full police uniform unless the chief or his or her designee grants an exception. So just to tie up that reference a little bit more, it's on page 17 for those that want to look directly at the contract. Thanks. Thank you. Would any commissioner have another comment on this topic? Hey, Commissioner Sabina, would you move it to the next issue, please? Yes, the next issue regards the commission's right to access unredacted investigative reports. This is in relation to a past investigation in which the commission received a heavily redacted report. In anticipation of future investigations, we'd like to resolve this issue with the city attorney's office. And I'd like to, maybe the best way to proceed is basically I'd like to have this discussion with the commission's conflict counsel, Anthony Arpino, who is here, and Haley MacLennan, who is from the city attorney's office. I want to, I'm stumbling and asking who to go first. I'm going to actually, here's what I'll do. I'm going to just summarize what we were informed of by Jared Colorado city attorney, one of the city attorneys, and that is that the public does not have a right to unredacted investigative reports. The question is whether the commission actually is the public or rather is a body appointed by the city council. With that sort of general statement, let me perhaps turn it over to Anthony and Haley, I know you'll have some comments. Thank you, commissioner. So we know I'm just curious. I seem to recall that Jared had, that we had, the commission had requested a written summary of Jared's opinion. Has that been received yet, or are we just going off his comments during the prior session? Right, because it has not been received. This was something that Haley was working on herself, that we had asked her about, about six weeks or so ago. She was, I think, discussing this with the acting chief. So she has knowledge of this, but we don't yet have Jared's written. Okay. Yes. So just to put a little more context on it, there was a complaint that the commission was reviewing in great detail, involving a use of force incident, and we received the commission received the department's internal investigation report. And there were a number of redactions, including basic information like the identification of the officers involved, as well as the officers who had sworn out affidavits that were part of the report and any reference to the officers' names within those reports. And then on top of that, there were some additional materials in the nature of training materials that the department had received and that were relevant to the commission's inquiry as to whether the conduct under investigation was consistent with the training. And I think what the commission had expressed was a frustration about the extent of those redactions and that there were redactions to begin with. And particularly the suggestion, and again, we haven't seen this confirmed in writing, but it was a suggestion that because those redactions would have to be made in response to a public records request, they were made in the case of the commission. And I think the commission's concern really has to do with a sense that the commission is not part of an integrated police regulatory framework under the charter. That's the suggestion made by the redactions, essentially saying that the commission somehow sits outside the city structure for police oversight and regulation and attention, or not attention, but a sense that that is contradictory to what the commission's role is under the charter, section 184, that the commission, along with the city council, along with the chief, along with the mayor, the commission is an important integrated part of the system of police oversight in the city, rather than just any member of the public off the street who has rights under the Public Records Act to review certain records, but they are often subjected to redactions under statutory exceptions. And it's particularly concerning given that under the charter, the commission enjoys authority and responsibility as delegated from time to time by resolution of the city council, and under the city council's resolution from 2021, November 2021, the commission has been delegated the authority to conduct audits and reviews and evaluations of policies, directives, or data in regard to discipline racial disparities or other commission priorities. So I think the summary concern is, again, recognizing that confidentiality is important in the investigation of complaints against the department, and that there are within our own complaint review procedures and reiteration of the importance of that confidentiality as regards persons outside the commission, and a need to consult with the city attorney's office under our existing policy about disclosure of investigatory materials outside the commission to persons not appointed by the city council to be part of this integrated system of police oversight. The concern is that the commission shouldn't be treated as an external party, but the commission should be treated as an internal party for the purposes of its own internal reviews, and it seems contrary, I think, to the commissioners that basic information and even non basic information would be redacted in the documents that they're provided to review, given that they are part of this integrated internal review system. So that was a concern, I think, I hope I've summarized it correctly, and I think one that felt to the commission like there was some urgency in raising, given some recent complaints that have been received, and we expect will be investigated. So forward-looking want to get a resolution about the commission's access to unredacted information for the commission's own internal use, not for public disclosure, which is a separate issue to be taken up at a different time. Does that summarize things appropriately, commissioners? Thanks, Anthony. I think that's very helpful. If any commissioners have anything they want to add to that, let me turn that to Hayley. So I mean, so I guess where I will start is first just a quick sort of overview of the city attorney's role in this discussion, and the city attorney's office's role in this discussion is to give guidance to explain what is in place in terms of the commission's power under resolution, under ordinance, under charter, also with how that interplays with Vermont law in terms of any confidentiality requirements for the Burlington Police Department, as well as under the Public Records Act. So our office's role is to give guidance when called upon. We're not in the business of compliance, and we also don't have any authority or jurisdiction to give directives to any boards, commissions, city departments, or any other entity of the city to order them into what we feel is compliance. So I just want to make that clear that that's not our role. We can give guidance. We can absolutely give a legal opinion, but what we can't do is we just don't have the jurisdiction or the authority to put a mandate towards other departments or towards commissions, any city entities. That being said, you know, my background on the issue is that Commissioner Seguino came to me with the Burlington investigative report that was issued that's been referenced here this evening. She gave it to me in redacted form. I agree there was a lot of information in there that was redacted. One thing that I want to clarify as far as what I think is squarely within the department's duty to redact from this commission in the BIAs, which I have to confess I haven't reviewed an unredacted copy, but my understanding from reviewing the redacted copy is under the BPOA contract with the city, the collective bargaining agreement between the Burlington Police Officers Association and the city. In article 15 of that contract in section G, there's a discussion in there about when employees are the subject of an internal investigation that the police department's performing and when those employees are ordered to sit and review or sit and answer questions and be subject to an interview about the incident that the department is investigating. The answers to those questions and the information that's gathered as a direct result of those subject employee interviews, the release of that information is really, really strict under the contract. So under the contract, that information when it's gathered and it could lead to disciplinary action is to be considered confidential and it's not to be released to any party outside the chief or the deputy chiefs, the department investigator, the city attorney's office, HR director, the mayor's office, and then also the police commission, but with this caveat that it's solely for the purposes of fulfilling its appellate review requirements in step two of the grievance process in the CBA as well as the duty that the commission has to perform that function under the charter. So basically what that means is that when the commission is getting the investigative reports in order to more thoroughly vet and review complaints that are coming before it or that are being submitted to the to the department and the department is briefing the commission on, the department is required under the contract to not release that specific information meaning information that's gained from employee interviews in that sort of step one of the process where the complaints are being reviewed and that information can only be released to the commission if we get to step two of the grievance process under the contract which is when this commission puts on their board of appeals hat and sits in a quasi-judicial function to determine whether or not discipline imposed upon a particular employee at the department is appropriate. So and the rationale for that my understanding is to sort of preserve this body's ability to act in an independent way to resolve employee grievances should they get to that part in the process. So all that to say is that information in the in the investigative reports our office has advised that that be redacted from the reports to really preserve that investing or preserve that appellate review function that the police commission serves so that that's my best explanation as to those that portion of the redactions. As far as the you know it's pretty clear that there was in this particular instance there was more that was redacted beyond just the employee interview material and I think you know I I don't want to speak for the chief and I don't want to speak for the deputy chiefs so I would appreciate the opportunity to have them come and clarify their position on this to the commission but I tried to to gain some clarity myself from the department on some of the redactions and the general this general sort of response as to all of the redactions was this concern of although the commission as attorney Eropino pointed out is an integral part of the you know internal review entity for the police department and to assist the administration with its function and overseeing the police department. There's not a whole lot in charter in statute or in our ordinances that directly governs information sharing between the commission and the department and there's nothing that we have explicitly about what's to be considered confidential and what can be discussed in the public sphere. I know at one time there was a suggestion of a confidentiality agreement between the possibility of developing a confidentiality agreement between the commission and the police department to perhaps alleviate some of those concerns that's something that our office if if called upon stands ready and willing to assist with drafting and pulling together so that kind of that is my understanding generally from from the police department as to some concerns and as to why maybe the extent of the redactions were made there. You know generally speaking I think I want to at least from our office's perspective where this kind of collides with the public records act is not that our office have used the commission as just a sort of faithless anonymous member of the public but rather what in statute what in charter or what in ordinance or city council resolution elevates the commission's act not their not the status as to an integral part of the city's oversight capabilities but really what elevates the commission's access to information if we're viewing this from a public records standpoint. You know I guess I'll stop there for now and I'll see if there are questions from from the commissioners from me as it relates to the contract or information sharing between the commission and the police department and I would again just like to say I would really appreciate the opportunity for the police department to come and clarify their specific concerns as far as information sharing and what they would like to see as far as a way to alleviate those concerns. Thank you. Attorney Campino did you? Is your hand up? Sorry about that that was a legacy from my earlier comment. If I may say so when this discussion happened with Attorney Pellerin we were our understanding was that the decisions around rejection were based on legal advice from Attorney Pellerin. So Haley if I may ask your advice then how we move forward on this are you so feel free to be as detailed as possible are you suggesting that in our next meeting that we put this as an agenda item to discuss with the chief or is there some other mechanism for resolving this that you would propose? You know I I hesitate to be the one to put forth a policy solution for for sort of carving a path forward for this issue between the department and the commission simply because I I don't want to insert my own policy judgment for that of the commissioners. Certainly I think if a confidentiality agreement is something that the commission and the department are considering it would seem to me to be a reasonable next step to have the two parties engage with one another to see what kind of terms would be satisfactory to both in order to meet the end goal of this commission and what I hope would be the Burlington Police Department is a way to share information that makes both parties feel as though they're upholding their confidentiality agreements and able to perform their duties with the access to information that both sides feel is necessary to do so. So from from my perspective if the commission wanted to engage the police department for a discussion on that issue I view that in my own judgment as a reasonable next step and sorry I hope that's that answer is what you're asking commissioners to go you know. Thank you my only comment would be that we already have access to many confidential materials so this seems to be an aberration I'll just leave it at that that we already are given access to many confidential materials so I will consult with commissioners on how we proceed and reach out to acting chief Murad and consult with attorney Arpino at this point attorney Arpino do you have any thoughts to add uh no I I think the suggestion of some further dialogue with the police to understand you know more where the decision to redact is coming from and what the policy concerns are with regard to recognizing the commission's role as part of an integrated and internal police oversight and review rather than acting like the commission is just any member of the public that has certainly a right to know but statutorily speaking a lesser right to know so I think attorney McLean hands suggestion is a productive one and I I do think it would benefit from some public discussion at a future meeting because I know it was of great concern to commissioners to see the number of black marks across the reports that were previously shared and it and it did I do concur that are from our discussion it did seem as though the city attorney's office had given an opinion on that but ultimately what I hear Hailey saying is that the city attorney's office can advise but it's up to the police department ultimately how they choose to comply or not um with information sharing so a direct dialogue with the police department seems like the most efficient and constructive way forward thank you um attorney McLean do you could I ask you to uh convey to attorney Pelerin that we would really welcome um a copy of his opinion when I when I uh communicated with him recently he talked about how overburden your office is and asked for our indulgence for a few weeks I totally appreciate that if we could get something before our next meeting at the end of February hopefully by mid-February that would be very helpful and we will put this on the agenda for our next meeting absolutely I'll I'll bring it to our next um internal staff meeting and we'll be sure to get something in writing to the commission and you know it just just to clarify um I think that my understanding is that it it was the reductions that were made were were perhaps made as part of a informal discussion that were that was had between him and the police department although I again I that he works much more closely with them so um I'd like him to have the opportunity to clarify um but certainly I will I will make sure the message gets through that that um an explanation of the of the redactions from our office's perspective um be submitted to the commission before uh the next meeting and end of February. Great thank you so much I appreciate it that is uh unless there's any more discussion I think we can close this up item out commissioner comfort. I um is it okay if I said a couple of things I have my hands up. Go ahead I'll see you again. Thank you um I just wanted to express the concern um I won't say as much as I was going to say because uh commissioner Segrino already stated that this is definitely an aberration you know we're looking at a level of redaction that we've never seen before this is gravely concerning to me and to suddenly say that we might require some kind of confidentiality agreement when um we've had numerous numerous executive sessions where we have been confidential with all kinds of information and and now suddenly we have this issue it's just a grave concern thank you. So I have an information request commissioner Segrino do we have to end this meeting to start the other one or can we go straight through um we can ask uh I believe that uh I'm going to ask um attorney McLeanum for her advice on this but my under I'm just going to ask her for my understanding is that you state why and there's a motion to go in executive session would that be correct? Um yes if there's if that's the next agenda item is the executive session and then correct if wrong but I don't think there are any other substantive agenda items after the executive session correct yeah so you could just make a motion to go into the into the executive session and just let members of the public know who may be watching that there will not be any more action items um after the executive session concludes it's it's all one meeting I understand you might have to switch zoom links but for for purposes of the warning it's all one meeting. Okay can I have a motion then to move into executive session? Could you state the reason? Should you discuss the river watch issue? Is that correct? I think Hailey gave us language in the email. I didn't see that language Hailey, did you give a specific language on this? I have the language to you know to it was with reference to a complaint. Yes so um if the chair would entertain a motion to move to enter executive session pursuant to one VSA 313A4 to discuss a potential disciplinary action against a public officer or employee. I do have that I was asking a different question but we just solved it so thank you. Oh I'm sorry then. Okay good I have a motion please. Um so moved. Second please. Second. Okay we will now move into executive session thank you Hailey. I think we have to vote we have to vote on the motion. All in favor? Aye. Aye. You want anyone against opposed? Any abstentions? Okay I want to say thank you to Hailey for participating in the first part of the meeting and the rest of us out we will see you shortly and for the public we will not have any more public discussion this evening thank you very much.