Can the Madison Common Council hold a police chief accountable?

By Greg Gelembiuk, Amelia Royko-Maurer and Nathan Royko-Maurer — Let's say we live in Madison, Wisconsin, where the chief of police has violated his own departmental rules and, in the spirit of law enforcement, we feel it is our duty to hold him accountable at a local level. How should we do this?

We could go to the Mayor or call our alder. Both the Mayor and the Common Council do in fact have the power to issue lawful orders to the police department, a little explored fact we'll cover later on in this article. But to file a complaint with a civilian body, against the chief or any police officer, whether one is a member of the public, an elected official, or an officer of the law, there is only one place to go: the Madison Police and Fire Commission (PFC). Incidentally, while the Mayor and members of the Council may themselves file a complaint against the chief or any other Madison officer with the PFC, they do not handle filing these complaints for us the public, or anyone else.


The Madison PFC, like all Wisconsin PFCs, was born out of the Progressive Era reforms in the late 1890s. The PFC is generically a personnel board. The PFC is solely responsible for the hiring, promotion, demotion, suspension, and firing of police officers and fire fighting staff, including the hiring and firing of police and fire Chiefs. Only PFCs can make the final decision in any of these instances. Chapters 60, 61 and 62 of the Wisconsin Statutes outline the establishment of the commissions which were designed to eliminate various forms of corruption including bribery and political leveraging of those who may hire, fire and discipline police and fire employees.


In Madison, the PFC is staffed by volunteers appointed by the Mayor on a five-year rotating basis. As part of their responsibility over personnel decisions, the PFC can hear and adjudicate complaints (formally termed a “statement of charges”). A PFC is not a true court of law, but is required, under the guidance of legal counsel, to determine facts in an unbiased manner and draw conclusions from them to provide the basis of an official action . In most cases they make decisions based on evidence and recommendations presented by department management, though sometimes, very rarely, issues are brought before the PFC by department staff or by members of the public.

THE COMPLAINT PROCESS

If we wish to file a complaint against the chief, the first hurdle we need to cross in order to access the power of the PFC is obtaining the legal counsel required to effectively argue before the PFC. The PFC acts like a court of law, and if we have little knowledge of law or experience in an adversarial proceedings, it is advised that we hire an attorney to assist us through the process. The chief will have an attorney and if the subject of our complaint were an officer, they are usually represented by their union attorneys. But we don't have money to hire an attorney.


Unfortunately, despite Mayor Soglin’s three-year-old promise to make the PFC process more accessible, and efforts by PFC Counsel Scott Herrick to argue for city-funded representation, we the public are still on our own. But, for the sake of explaining the process, let's say we convince an attorney to assist us for free or, “pro bono”.


Once we secure the assistance of an attorney or experienced advocate, we contact PFC counsel Scott Herrick (at snh@herricklaw.net) and let him know we'd like to file a complaint. Scott Herrick responds by sending us guidelines for our complaint.


Getting a hearing before the PFC requires that we establish “standing” as an “aggrieved party” — we must be able to reasonably demonstrate that we have been personally impacted by the actions of the chief. The questions we might answer for writing our complaint might be: how has the behavior of the chief impacted our happiness? Our health? Our livelihood? Our sense of safety? Our access to public services?


We must also write, in detail, how the chief's actions have violated some administrative rule, policy, standard operating procedure, city ordinance, etc. Once we finish writing the complaint, we can either have it notarized and send it to the appropriate address, which is currently Herrick's work address, or we can take it to his office, have it notarized right there, and deliver it to him personally.


Some time goes by and Herrick sends us the date of our preliminary hearing where we or our legal advocate will present our case and try to demonstrate that we have standing. It is during this hearing that the chief's attorney is most likely to argue to have our complaint dismissed. The PFC listens to both sides and decides if we have standing. They could decide at that preliminary hearing or in the days or weeks following.


If we achieve standing, our complaint process begins and hearings are scheduled according to the availability of PFC commissioners. Herrick emails us notice for each hearing. It is during those hearings that we must prove with evidence, argument and if necessary, witnesses, the validity of our complaint against the chief, whose attorney will try to do the opposite.
The standard of proof required to sustain our complaint is a “preponderance of the evidence”. This means our claim that a rule or law was violated must be found to be more likely true than the opposite claim offered by the chief.


Once we argue our versions of the incident, the PFC, under the counsel of Herrick, decides either to fire, suspend, or demote the chief, or they find him to have done nothing wrong. Another possible outcome is that the chief may decide to resign or retire to avoid the process and outcome altogether. In that case, the PFC may still attempt to see the complaint through until the chief's official parting date, at which point the chief's attorney may appeal to an actual judge to find the complaint process moot since the chief is leaving.


If it hasn’t become clear by now, even using the PFC process, police officers, their command staff, and especially their chiefs are largely untouchable by our elected officials and, thus, the public.

OR ARE THEY?

As we mentioned at in the beginning¨ the City of Madison Police Department must obey the lawful orders of the Madison Common Council and the Mayor. That’s right. While their orders cannot conflict with state and federal law, our Mayor and alders have the statutory power to change MPD policy, practice, procedure and training. As noted in the 1974 Wisconsin Law Review article “Police Accountability in Wisconsin”:


“Chapter 62 of the Wisconsin Statutes, [...] bestows primary power over the police on the mayor, and confers more power on the common council than is generally realized. The mayor is the commander of the police force, and the chief must obey his lawful orders. [...] The common council also has significant authority over the police under chapter 62 in addition to its appropriation power. The police chief must obey its lawful orders, and it has a general power to act for the good order and safety of the city. The police chief has day-to-day operational control of the department, although he is subject to the lawful orders of the mayor and common council. "


Under statute, the Mayor and Common Council have a broad supervisory role over the police department. With the exception of an order to hire or fire a chief or officer, the Mayor and the Common Council have the power to issue “lawful orders” in the form of Administrative Procedure Memoranda (APMs) in the Mayor’s case, or through the adoption of resolutions or ordinances in the Common Council’s case, which the chief is then obligated to follow. These powers, it turns out, are a vastly underutilized and could be used to set policy and drive community-led change.


While the Mayor and Common Council seem to understand their responsibilities for fiscal oversight of the police department, they have rarely exercised their power to administratively move the department in any particular direction. It is possible that some elected officials don't understand the very limited authority and narrow role of the PFC, and believe the PFC is supervising the police department, when the Mayor and Common Council are supposed to be.


A memo from the City Attorney’s office on April 19, 2005, reaffirming the power of the Common Council to set policy for the Madison Police Department, opined the following: “There is a clear statutory role for the Mayor and the Common council which suggests that a Police Chief continue to be held publicly accountable, not merely through a potential disciplinary hearing before the PFC, but also through the “lawful written orders” of the Mayor and the Common Council.”


These powers could, for example, be used to mandate policies requiring use of de-escalation techniques. MPD use of force policy doesn’t require use of de-escalation, in contrast to policy in many other police departments. Or it could be used to mandate a more stringent policy on use of deadly force — unlike MPD, many police departments have policies emphasizing preservation of life.

 

Sadly, the Mayor and Common Council have so neglected their supervisory powers that MPD Chief Koval has felt comfortable stating publicly that he would stridently oppose any changes to MPD policies on use of deadly force, stating that “It’s not going to be changed,” and that deadly force policy is “not negotiable”. Koval’s stance against adopting a higher standard is in direct contradiction to the recommendations of the Police Executive Research Forum, often considered the premier U.S. police think tank, which recommends that departmental policies for use of deadly force be made more restrictive.

POWER BACKS POWER

The City Attorney’s Office may constitute an additional impediment to reform, as has occurred with many other U.S. cities, such as Ferguson. City attorney’s offices often have a close working relationship with the police department, and will virtually always back them, often inappropriately.


In the case of Madison, this was evident when City Attorney Michael May, in support of Chief Koval’s unwillingness to change deadly force policy, provided the press with clearly incorrect statements about Graham v. Connor, the U.S. Supreme Court ruling specifying constitutional limits on use of deadly force (based on the concept of “objective reasonableness”). Retired MPD Chief Couper subsequently queried University of South Carolina Law Professor Seth Stoughton, who specializes in the regulation of policing.


Messaging on twitter, Couper asked: “ concerned about MSN city attny who backs up chief by saying Graham v. Connor prevails and no policy can restrict it. Hmm? ”, and provided a link to an article quoting May. Seth Stoughton responded “ Of course policies can be more restrictive than constitutional rules; that's very clear .” Stoughton noted of Michael May’s statements “Deep misunderstanding of the law; following Graham means not being more permissive. Obj reasonableness is a floor not a ceiling” (emphasis ours).

WHAT CAN WE DO?

As mentioned earlier, for anyone to pursue a remedy to Chief Koval’s antics in Council chambers or on his blog via the PFC, they will have to achieve standing. There is good reason to believe that any member of the Common Council could bring charges before the PFC and have a solid chance of gaining standing regarding Koval’s behavior. Multiple Madison Police Department and City of Madison rules appear to have been violated, including rules against bullying, disrespectful, threatening, or intimidating behavior, rules against insubordination, rules against political involvement, and rules against public criticism of specific orders.
In addition, Madison residents who have suffered direct harm from Koval’s infractions of policies in a variety of other incidents during his time as Chief also can likely gain standing for complaints about those particular incidents. Utilization of the PFC is critical since history shows that reform of a police department is generally only possible given accountability and cooperation from the chief. A chief who is resistant and doesn’t play by the rules can stymie or sabotage all efforts at change.


In the case of Madison’s own external audit efforts, that could work out to be a $400,000 rat hole.


It will also be critical to encourage the Common Council and Mayor to properly carry out their neglected supervisory responsibilities. Where necessary, changes favored by the community, such as policy requiring use of de-escalation, must be mandated. There is no need to wait for the review to be completed for some obvious deficiencies to be fixed.


As noted in a recent New York Times article by Greg Howard on the crisis in policing in America, “It isn’t natural to preemptively shoot people to death. … This is specialized behavior, the sort expected from military forces entering unfamiliar war zones. Soldiers are trained to consider everyone and everything a potential threat, to neutralize any man, woman or child who could potentially cause them harm. The highest priorities are to protect themselves and to accomplish their mission, and that requires the trained dehumanization of the local population. In such an environment, the burden of not killing is lifted from the soldiers, and local people are tasked with the burden of not provoking death.”


Phrases used by Chief Koval such as “surgical removal” and “compelled to shoot” reflect such a militaristic mindset. It is also reflected in the high and rising per capita rate of Madison Police Department fatal officer involved shootings, which is now about three fold higher than for the New York City Police Department. Eleven of the last 12 Madison Police Department officer involved shootings have been of people incapacitated by mental illness and/or chemically.


The most vulnerable among us are being harmed. Instead, we need policies and training that emphasize sanctity of life as a moral standard. We need to restore a more people- centered form of policing for Madison with, fundamentally, community control over the police.