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Zen and the Art of Making Law (on the Police Commission)…

This post is the first of two on police oversight solutions city officials have proposed.

Council chambers

Hunting for solutions within these walls. (WMassP&I)

SPRINGFIELD—For well over a decade, city councilors have grappled with how to structure the Police Department leadership. The Control Board’s abolition of the Police Commission in 2005 was among its most controversial moves. But it took several reform attempts and the Gregg Bigda imbroglio to produce the political capital to revive the Police Commission over the mayor’s veto.

The first Council elected post-Control Board was also the first with ward representation. It proffered no fewer than three bills to reform police oversight. None passed. Councilors would continue to debate the issue until Bigda’s cinematic debut. Of course, mayoral opposition has reduced the passage of an actual police oversight ordinance to a footnote, at least for now.

“There have been various attempts to modify that structure,” Ward 2 Councilor Michael Fenton said. “We’ve tried to navigate those waters over the last 10-15 years, create a system that people can get behind.”

As Springfield hurtles toward a potentially fierce mayoral contest, police misconduct may feature prominently. Yet, debate has raged on the Council for years. As recent reporting on subpoenas shows, the Council’s power is central to Pearl Street oversight. It is an ironic turn as a revived Police Commission’s recent stillbirth arose from Sarno’s claims that the Council infringed on his power.

Springfield Police

‘Twas a time before the patch. (via Twitter/@spd_hq)

Even today, some Police leadership powers go back 110 years. In 1909, the legislature authorized Springfield’s mayor & aldermen to appoint a Board of Police Commissioners to oversee police organization, policy, and personnel. Under modern civil service law, it would possess “appointing authority.”

In those pre-Campanile days, discipline and certainly civil rights abuses were not prime concerns. The Commission ran the department.  But it also effectively acted as quasi-judicial body and as a buffer between the public and the police.

There were subtle changes over time, but the most dramatic came indirectly. Springfield adopted Plan A in 1961, granting the mayor all appointment powers sans Council confirmation.

Few changes came via ordinance. Between 1966 and 2001, the only significant one came in 1984. The ordinance revised how many Commission members could be of the same political party.

However, Pearl Street’s leadership structure did not want for criticism. A 1993 review urged the chief’s removal from civil service. The city’s Human Relations Commission recommended a separate misconduct panel in the mid-90’s. Neither happened.

In 2005, the Control Board’s Buracker report also recommended ending the chief’s civil service and placing the department directly under the mayor. But the latter was not especially emphasized. Plus, it backed assigning the Police Commission or a successor to a role as a citizen review panel.

Control Board

The Springfield Finance Control Board circa 2007 (via The Republican)

The Buracker report also observed the Police Commission enjoyed more trust under then-Mayor Charles Ryan than it had previously. But the authors worried this could change with administrations.

In June, the Control Board abolished the Commission and consolidated its powers with the chief. Ed Flynn beccame Springfield’s first sole Police Commissioner. No panel to oversee police misconduct conduct was created nor was it clear the reorganization was necessary. After Flynn left, the Control Board made William Fitchet commissioner.

In 2007, the Control Board received the McDevitt report. It considered civilian review of the department and urged a more formalized complaint process and better public communication.

The Control Board left Mayor Ryan to execute much of McDevitt’s recommendations via executive order. Ryan’s order did not include subpoena power nor did McDevitt advise it. Since his election in 2007, Sarno has issued his own series of executive orders.

Councilors, including Sarno at one time, had opposed the Commission’s abolition, but were powerless until the Control Board disbanded in 2009. By then, the city was holding its first ward elections since the Eisenhower administration.

Jimmy Ferrera (est Control Board era)

Ferrera’s proposal was not legally possible, but it wasn’t loony. (Urban Compass)

Yet, proposals came rather quickly especially amid the Melvin Jones case.

Then-Councilor Jimmy Ferrera had put forward a proposal to give disciplinary power—i.e. civil service appointing authority—to a new panel. City Solicitor Ed Pikula countered, correctly, that Fitchet’s contract granted him disciplinary power. State law allows the earlier contract to preempt ordinance.

Ferrera’s ordinance didn’t gain traction, but demands for reform continued. Council President Jose Tosado appointed Ward 4 Councilor and local civil rights icon E. Henry Twiggs to chair public meetings, take public testimony and develop legislation.

“People were complaining about having all these issues with the police and there were obviously stories,” then-Ward 6 Councilor Amaad Rivera recalled. “But according to officials there was no corroborating evidence.”

E. Henry Twiggs

Councilor E. Henry Twiggs in 2015. (via Facebook/Twiggs campaign)

Twiggs recommended legislation that mirrored Ryan and Sarno’s executive orders. Final say on discipline would remain with the Police Commissioner. But a new Police Oversight Commission would have training and support. The bill formalized a review process.

It would fail narrowly 6-7.

The bill found opposition on multiple fronts. Some councilors viewed it as anti-police. The union actually wanted a space to air not just external, but internal complaints, too, as the old Commission had. Other felt the ordinance was toothless absent disciplinary authority.

Looking back, another problem was a competition for attention among police reforms. Civilian oversight of complaints was one of many. Rivera recalled other issues at the time were diversity in the department, community policing, and response times.

Then-Councilor Thomas Ashe had proposed his own ordinance. It would have scaled back oversight compared to mayoral orders. Amid tense confrontations in Council chambers on the dueling ordinances, Ashe’s bill was tabled and forgotten.

Police oversight legislation heralded later reformist legislation which is increasingly common—and sometimes divisive—for the Council today. But the vigor of the opposition then, despite no clear right-left divide, is remarkable.

Amaad Rivera 2018

Former Councilor Amaad Rivera in 2018. (via Twitter/@amaadir)

“We actually had much more progressive legislation before the Council that had much less opposition,” Rivera observed.

Moreover, Sarno’s administration had not been aloof and Pikula had taken an active role throughout the process. But both bills still failed. A spokesperson for Sarno did not return a request for comment.

The issue would flare up occasionally, often alongside new misconducts accusations. The mayor’s civilian review board lacked public support and former members questioned its effectiveness.

The next major push came on the eve of Fitchet’s 2014 retirement. The issue had featured prominently in the 2013 Council election.  Hypothetically, passing an ordinance before the next commissioner signed a contract could revive the Commission over Sarno’s objections.

But when then-Councilor Bud Williams introduced a Commission bill in early 2014, Sarno mobilized. He organized and held clandestine interviews for Commission with the city’s deputy police chiefs. After public opposition sidelined favorite Robert McFarlin, Sarno appointed John Barbieri and inked a contract with him valid through May 2019. It was too late to pass an ordinance.

Sarno with police

Mayor Domenic Sarno & staff announcing John Barbieri as, second left as the successor to Bill Fitchet, far left. (WMassP&I)

That status quo endured until Bigda exploded into the news on November 6, 2016. By December 20 an ordinance had passed.

“I think that in Springfield politics, either there has to be a major issue or somebody has to make it a major issue,” Rivera said. “That comes with opportunity, but it’s also a tough way to legislate. If we had a hearing board could we have prevented Bigda?”

The 2016 ordinance reversed the 2005 Control Board action. It required Council confirmation of commissioners, which its authors knew was invalid. But it also acknowledged contractual realities, post-dating implementation until Barbieri’s term ended in 2019.

“My support for this is borne out of desperation more than anything else,” Ward 3 Councilor Melvin Edwards said of restoring the Commission. While not reflective of the force overall, the Commission’s problems were not improving under a single commissioner.

Melvin Edwards

Melvin Edwards in 2012. (WMassP&I)

“I don’t have confidence that the management structure we have now is going to change anything,” he said.

Forcing implementation proved far more difficult. Sarno’s objections—that the ordinance deprived him of appointment power—were nonsense. He should have at least appointed the Commission and claimed the power to appoint the chief. Now, only a lawsuit can overpower his bigfooting the legislative process.

Councilors could never agree on a litigation strategy. Meanwhile, during his campaign to rejoin the Council, Timothy Ryan suggested the Council spike the Commission ordinance implementation delay. A former Police Commission chair, he said the new panel would need time to learn the ropes.

After he won, Ryan’s bill passed, again over a mayoral veto. But without the later start date, it only formally put the mayor in a legally dubious position.

The Council seemed prepared to live with this until Masslive’s report on the Nathan Bill’s subpoenas.

The Nathan Bill’s case has proven more fraught than Bigda, arguably.  While awful, Bigda’s alleged abuses mirror other misconduct accusations. The fracas outside Nathan Bill’s, which involved off-duty cops seemed similar, too. Then Attorney General Maura Healey’s office indicted over a dozen cops for an alleged cover up.

Attorney General Maura Healey

Attorney General Maura Healey’s indictments may have prompted the latest consideration of police oversight bills. (via wikipedia)

Healey’s first charges came after Hampden District Attorney Anthony Gulluni declined to file any charges in the Nathan Bill’s case due to a lack of evidence.

However, Masslive found city officials had obtained phone records during their disciplinary investigation of the Nathan Bill’s case. But the city agreed to destroy them after the patrolmen’s union claimed the subpoena used was not valid. The complain review board lacks subpoena power.

Shortly thereafter, Fenton and Ryan cosponsored a new ordinance that essentially repealed the Police Commission and codified the mayor’s review board order. Both councilors claimed they still support the Commission. But Masslive’s findings demanded some action to authorize subpoenas.

“It’s not ideal for me, I don’t think it’s ideal for the administration,” Fenton explained. What is clear is that we need to adjust our course and this my best first attempt at doing that while getting the necessary cooperation from the administration.”

Beyond adding subpoena power, the ordinance also enlarges the current review board from seven to nine members.

The only other alternative was a lawsuit, which Fenton does not see in the offing.

Mike Fenton

Councilor Michael Fenton in 2016 around when the Council revived the Commission. (WMassP&I)

“It’s become clear to me that people apparently have neither appetite or the means to do and that leaves me with the option of adjusting,” he said.

Several weeks later, Fenton and Ryan’s ordinance has not moved. Public Safety Chair Orlando Ramos held a hearing with no further action. Fenton or Ryan could force a vote, but their colleagues are skeptical, Sarno’s intransigence notwithstanding.

“I think we passed an ordinance that is on the books and is legal and would stand up if it was actually brought before some type of arbiter or a judge would support it,” Edwards said.

If implemented, the Police Commission would have subpoena power, too, preventing a repeat of what Masslive uncovered. Only Sarno’s refusal to implement the law is stopping that. Arguably, even under Sarno’s version of the law, subpoena power could be available.

The mayor’s complaint board clearly lacks subpoena power because he cannot authorize it. But it is not clear his board needs it to avoid the problem Masslive found. The same law that gives the Council subpoena power grants it to a “commissioner of public safety.”

While something like Twiggs’s 2011 ordinance could pass, a continued standoff seems more likely. Still, the Fenton-Ryan ordinance would freeze mayoral tinkering with the review board.

Indeed, executive orders establishing some police oversight have their own zig-zagging history.