UNITED STATES DISTRICT
COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
|
IN
RE |
: : : : : : : |
Case
No. C-1-99-317 Judge
Dlott COLLABORATIVE AGREEMENT |
1.
The
Cincinnati Black United Front (“Front”), the American Civil Liberties Union
of Ohio Foundation, Inc. (“ACLU”), on behalf of the class, as defined herein
(“the Plaintiffs”), the City of Cincinnati (“City”), and the Fraternal Order
of Police (“FOP”), hereinafter collectively referred to as the “Parties” hereby
enter into this Collaborative Settlement Agreement dated as of __________________
(the "Agreement" or "Collaborative Agreement") providing
for full and complete settlement of the claims of all of the Parties as described
in certain litigation commenced by Plaintiff Bomani Tyehimba against the City
and others in United States District Court in case No. C-1-99-317 as later
sought to be amended by Amended Complaint and subsequent pleadings filed by
the Front and the ACLU on or after
TABLE OF CONTENTS
I.
VALUE
STATEMENT
II.
INTRODUCTION
III.
CLASS
CERTIFICATION
IV.
PURPOSE
OF SETTLEMENT AGREEMENT
V.
OPERATIVE
PROVISIONS
A.
The
Parties Shall Implement a Policing Strategy of Community Problem Oriented Policing (CPOP)
B.
Parties’
Mutual Accountability and Responsibility for Evaluation Of The Implementation
of the Agreement
C.
Use
Of Force And Status Of Terms Of The Department Of Justice Agreement
D.
The
Parties Shall Collaborate to Ensure Fair, Equitable, and Courteous Treatment
for All
E.
Civilian
Review. The City Will Establish A Citizen
Complaint Authority.
VI.
MONITORING AND DISPUTE RESOLUTION
VII.
INDIVIDUAL
ACTIONS, MEDIATION
VIII.
MISCELLANEOUS
I. VALUE
STATEMENT
2.
The
overall Collaborative Agreement described in this document contains a description
of problem oriented policing which frames the overall philosophy and practices
at its core. Central to a problem solving
orientation is that problems are dilemmas to be engaged and learned from and
that blame is an obstacle to progress. The overall collaborative effort suggests an
alternative to blame: that different
groups within the community with different experiences and perspectives share
much more in common than not, and can work together on common goals and solve
problems together.
II. INTRODUCTION
3.
This
Collaborative on Police Community Relations was proposed by the Parties, authorized
by the City Council of the City of
4.
The
Collaborative includes outreach to the entire
5.
The
Parties have studied and received the results from community based work done
through Study Circles by the Cincinnati Human Relations Commission; Neighbor
to Neighbor, sponsored by numerous Cincinnati organizations; suggestions by
the National Conference for Community and Justice (NCCJ) and Cincinnati Community
Action Now (CCAN).
6.
The
collaborative has engaged the entire community in a constructive dialogue
that has resulted in an ongoing commitment to cooperation between the police
and the community. The Parties, through
this Agreement, make a commitment to promote and foster this ongoing cooperation.
7.
The
Parties agree that the goal of securing continuing, broad based community
commitment to implementation of the terms of this Agreement shall be accomplished
through certification of a plaintiff class action under Fed.R.Civ.P. 23(b)(2). The representative plaintiffs shall
be the Cincinnati Black United Front (“Front”) and the American Civil Liberties
Union of Ohio Foundation, Inc. The Parties shall permit the Urban League of
Cincinnati and NAACP, Cincinnati Branch to join as class representatives within
thirty days of the signing of this Agreement if they agree. The Parties agree to the certification of a
mandatory class for settlement purposes under Fed. Rule Civ.
P. 23(b) (2). The class shall be defined
as:
All
African-American or Black persons and people perceived as such who reside,
work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio
either now or in the future and who are stopped, detained, or arrested by
Cincinnati Police Officers or their agents, and citizens of any race who have
been or will be subjected to a use of force by Cincinnati police officers
and their agents.
8.
A
community advisory committee of
9.
The
Parties agree that they are entering into this class action settlement agreement
for settlement purposes only. Any acquiescence
or agreement to the class certification in this case does not constitute an
admission of liability or fault by the City of
IV. PURPOSE
OF SETTLEMENT AGREEMENT
10.
The
purposes of this Agreement are to resolve social conflict, to improve community-police
relationships, to reduce crime and disorder, and to fully resolve all of the
pending claims of all individuals and organizations named in the underlying
litigation, to implement the consensus goals identified by the community through
the collaborative process (listed below), and to foster an atmosphere throughout
the community of mutual respect and trust among community members including
the police. The Parties recognize that there has been friction between some
members of both the community and the CPD. The ultimate goal of this Agreement
is to reduce that friction and foster a safer community where mutual trust
and respect is enhanced among citizens and police. This Agreement reflects the following goals
adopted by the 3500 respondents through the feedback process developed by
the Parties through the collaborative:
First Goal: Police
Officers and Community Members Will Become Proactive Partners in Community
Problem Solving
Second Goal: Build Relationships of Respect, Cooperation
and Trust Within and Between Police and Communities
Third Goal: Improve
Education, Oversight, Monitoring, Hiring Practices and Accountability of CPD
Fourth Goal: Ensure Fair, Equitable, and Courteous Treatment for All
Fifth Goal: Create
Methods to Establish the Public's Understanding of Police Policies and Procedures
and Recognition of Exceptional Service in an Effort to Foster Support for
the Police
11.
Further,
this Agreement will resolve the issues raised by the amended complaint and
motion for preliminary injunction. The
Parties believe that this settlement can support and build upon the current
mission statement of the Cincinnati Police Division:
"The mission of the Cincinnati Police Division is to work in partnership
with the citizens of the community to provide a safe environment where the
quality of life may be improved through delivery of fair and impartial police
services."
12.
The
Parties, their agents, successors and all persons in active concert or participation
with any of them shall abide by the terms of this Agreement.
13.
This
Collaborative Agreement is founded on three principles. First, the social
conflict necessitating this Agreement arises out of a cultural context much
broader than police community relationships.
Second, many conflicts can be addressed through careful analysis based
on detailed information and a willingness to explore a wide range of alternatives.
This is called problem solving. Third,
achieving mutually agreeable solutions to the above mentioned goals described
by the citizens of
14.
It
is understood and agreed that the terms and implementation of this Agreement
are not intended to and shall not be construed to violate the terms of any
collective bargaining Agreement by and between the City and the FOP or any
other entities representing employees of the City, and further will not include
any terms and conditions of employment that must be negotiated by and between
the FOP and the City.
15.
The
Plaintiffs and FOP shall cooperate with the City to develop and implement
a plan of community engagement to prepare
16.
The
City of
Introduction to Community Problem Oriented
Policing
17.
The
City of
18.
The
CPD has recently adopted a strategic plan that embraces community problem-oriented
policing. This settlement Agreement
builds on that commitment. Implementing
a widespread, in-depth community problem-oriented policing strategy in
19. The CPD consulted Advisors Helping Agencies in the development of its strategic plan in order to gain an outside perspective of the Cincinnati Police Division. One of the goals identified through this process was the use of problem oriented policing, in partnership with the community, to implement effective solutions. This is the process the CPD adopted to help communities solve problems. Part of this goal is the implementation of a problem tracking and reporting system to document successes and failures. The CPD is still implementing this system and is working to improve it. The Collaborative Agreement will directly assist in this effort.
Explanation of Community Problem-Oriented
Policing
20.
Community
problem-oriented policing is one form of police work that seeks resolution
of troublesome circumstances in the community.
These troublesome circumstances are framed as problems to solve. They usually reveal themselves as a form of
repeat pattern of offending, victimization, or locations. First, problems need to be carefully defined.
A useable problem definition requires a description of harmful behaviors
and the environments where these behaviors occur.
21.
The
second principle guiding community problem-oriented policing is that problems
are carefully analyzed prior to developing a solution. Community problem-oriented policing is an information
intensive strategy that places a premium on data, intelligence, community
input, and analysis. The analysis is
designed to reveal critical aspects of the problem that can be altered to
effect a reduction in the problem.
22.
The
third principle is that the police and their partners engage in a broad search
for solutions based on the analysis of information. A law enforcement response is always a possibility,
but may not be required. Rather, a range of options is explored, often drawing
from the field of "situational crime prevention" that block opportunities
to commit crimes and disorder. Effective solutions to problems may require
the active participation of and partnership with other City agencies, community
members, and the private sector. This
implies that for a community problem-oriented policing strategy to be effective
there must be close police-community relations and the City must support this
approach.
23.
The
fourth principle is that problem-solving efforts are evaluated to determine
if the problem has been reduced. Here
again, the use of information technology and analysis is critical to assure
continuous improvement. If the problem has been successfully addressed, the
police can move on to other problems. If
it has not, then more work needs to be done, including a re-analysis of the
problem or a search for alternative solutions.
24.
Beginning
in the fall of 1993 through February 1994, all CPD personnel received eight
hours of police problem solving training using the SARA model as the process
for community problem solving. The CPD has also specifically trained all neighborhood
officers in the SARA model. In 1998,
Police Officers and Police Specialists received a one-hour overview of community
oriented policing that examined successes of community oriented policing.
The overview also helped educate beat officers on how neighborhood
officers could assist them in finding solutions to problems on their beat.
Also in 1998, the problem solving method was used during Critical Incident
Training for all Sergeants and Lieutenants. All of this suggests a solid foundation for
even more focused and comprehensive commitment to community problem-oriented
policing.
25.
The
CPD also uses crime analysis and mapping for problem solving. CPD analysts receive numerous requests for information
during the analysis and assessment phases of problem solving. They have the ability to draw a picture of crime
for those involved in the problem solving initiative. Several years ago, the CPD, Klotter Street Homeowners Association and the Cincinnati Public
Works Department collaborated to develop a strategy for combating increasing
incidents of theft and vandalism in the
26.
Citizens
of
27.
The
Parties, and especially the CPD, understands that fully engaging the community
is a fundamental key to effective law enforcement. The CPD will continue to implement policies
and procedures that are guided by the principles of community problem-oriented
policing. In accordance with these principles, the CPD continues to work in
partnership with the community to solve problems that impact the community.
As part of that process the Department has expanded its successful
Citizens on Patrol Program to include neighborhoods of Bond Hill, College
Hill, Madisonville, Mt. Washington, Price Hill, Carthage, Hartwell, Westwood,
Northside, Clifton/University Heights/Fairview (CUF),
Kennedy Heights and Pleasant Ridge. This
program started with only four communities in 1997.
Its success was recognized by other neighborhoods that wanted to work
in partnership with the police to take back their neighborhoods.
Neighborhood officers have been encouraged to utilize the SARA model
and explain the process to citizens.
28.
It
is abundantly clear that the citizens of
Implementation of Community Problem-Oriented
Policing (CPOP)
29.
The
Parties shall be jointly accountable for the implementation of community problem
solving policing. The Parties, through
their attorneys, shall meet each of the development deadlines by drafting
whatever policies, procedures or other documents that may be necessary to
carry the commitments of this Agreement into operation. The Parties will work together to mutually insure
that each of the following implementation steps is accomplished by the deadlines
set for implementation.
a)
The City, in consultation with the other Parties, shall develop and
implement a plan to coordinate City departments with the CPOP focus of the
CPD.
Plan
Development Deadline: 60 days after fairness hearing.
Plan
Implementation Deadline: 90 days after
fairness hearing.
b)
The Parties shall develop and implement a system for regularly researching
and making available to the public, a comprehensive library of best practices
in community problem-oriented policing.
Plan
Development Deadline: 60 days after
fairness hearing
Plan
Implementation Deadline: 90 days after
fairness hearing
c)
The City, in consultation with the Parties shall develop a “continuous
learning” process through the CPD. Experiences
with problem solving efforts in the field will be documented and disseminated
throughout the police department and made available to the public.
Problem
solving will continue to be emphasized in (included but not limited to) academy
training, in-service training, and field officer training.
Plan
Development Deadline: 60 days after
fairness hearing
Plan
Implementation Deadline: 90 days after
fairness hearing
d)
The Parties will seek out information on how problem solving is conducted
in other police agencies. Research and best practices on successful and unsuccessful
methods for tackling problems, and analogous processes used by other professions
(e.g., conflict resolution, organization development, epidemiology, military,
civil engineering, and business) will be disseminated.
Plan
Development Deadline: 60 days after
fairness hearing
Plan
Implementation Deadline: 90 days after
fairness hearing
e)
The Parties, consistent with the Community Partnering Program, attached
as Exhibit A, shall conduct CPOP training
for community groups, jointly promote CPOP, and implement said CPOP training.
Plan
Development Deadline: 60 days
Plan
Implementation Deadline: 90 days
f)
The Parties shall coordinate efforts undertaken through the Community
Partnering Program and establish an ongoing community dialogue and interaction
including but not limited to structured involvement between the CPD and youth
as well as with property owners, businesses, tenants, community and faith-based
organizations, motorists, low income residents and other city residents on
purposes and practices of CPOP.
Development
Deadline for training and informational materials: 45 days after fairness hearing
Implementation Deadline for Promotion and
Training Activities: Immediate. See
Community Partnering Program
Other Deadlines: See Community Partnering Program
g) The Parties
shall establish an annual CPOP award
to recognize the efforts of citizens, police officials, and other public officials
who have made substantial contributions to CPOP by addressing community problems
in
Deadline
to Complete Award(s) Design: 120 days
after fairness hearing
Deadline
for Implementation: 180 days after
fairness hearing
h)
The City, in consultation with the Parties and consistent with the
Ohio Law, shall develop and implement a system for consistently informing
the public about police policies and procedures.
In accomplishing this item, The City, in consultation with the Parties,
shall conduct a communications audit, develop and implement a plan for the
improvement of internal and external communications. This will be be funded by NCCJ pursuant to the attached description, Exhibit
B.
System
Development Deadline: 60 days after
fairness hearing
System
Implementation Deadline: 120 days after
fairness hearing
i).
The CPD shall create and staff a Community Relations office that will
coordinate within the CPD implementation of this Agreement.
Deadline
for Creation of Community Relations Office:
immediately
j)
The Parties shall describe the current status of problem solving throughout
the department and what is being done to improve it through an annual report. Each party shall provide information detailing
what it has done relating to its role in CPOP.
Implementation Deadline: One Year After Fairness hearing
k)
CPD District Commanders and Special Unit Commanders or officials at
comparable levels shall prepare quarterly reports that detail problem solving
activities within their Districts. To
the extent practicable, these reports shall identify specific problems addressed
and steps taken by the City and the community toward their resolution. The reports also shall identify obstacles faced
and recommendations for future improvement. Consistent with individual privacy and relevant
law, these reports shall be available to the public through the CPD’s Community Relations Office.
Deadline
to Commence Quarterly Reports: 90 days
after fairness hearing
l)
The Parties shall review existing courses and recommend any new ones
that may be appropriate for the
Deadline
to Complete Course Review and Design: 90
days after fairness hearing
Deadline
for Implementation: 120 days after
fairness hearing
m)
The Parties, in conjunction with the Monitor, shall develop and implement
a problem tracking system that will have the goal of documenting problem-solving
activities, including problem definition, analysis and response activities
and information, evaluation results, and partnerships with police, government,
and community organizations and individuals.
System
Development Deadline: 180 days after
the fairness hearing
System
Implementation Deadline: 240 days after
the fairness hearing
n)
The City shall periodically review its staffing plan in light of its
commitments under CPOP and make revisions as necessary subject to funding
provisions of this Agreement.
Deadline
for Staffing Plan review: ongoing
o)
The City shall, review, and where necessary and appropriate, revise,
police department policies and procedures, organizational plans, job descriptions,
and performance evaluation standards, consistent with its commitment to CPOP.
Deadline
to Complete Review : 60 days after
fairness hearing
Deadline
for Revision: 90 days after fairness
hearing
p)
Consistent with applicable federal and state law regarding protection
of personal privacy and the Ohio Public Records Act, the City shall design
a system that will permit the retrieval and linkage of certain information
including that which is already collected by the CPD but may not be routinely
searchable under the present system. Further
the system shall enable the tracking of repeat offenders, repeat victims,
and/or repeat locations that are necessary to community problem oriented policing.
Finally, the system established under this paragraph shall include but not
be limited to those necessary to comply with the terms in this Agreement regarding
nondiscrimination in policing and early warning.
Deadline
to Complete Request for Proposal: 90
days after fairness hearing
Deadline
for Implementation: to be determined
by the Monitor
q)
The City, in consultation with the Parties, shall study the options
and then determine if and how to best secure appropriate information technology
so that police officers, supervisors, managers, and executives, as well as
other City agencies and community members, can get access to timely and useful
information needed to detect, analyze, and respond to problems and evaluate
their effectiveness subject to the provisions of this Agreement with respect
to funding.
Deadline
for Development of Procurement Plan: 180
days after fairness hearing
Deadline
for Securing Funding: one year after
fairness hearing
Deadline
for Procurement: 240 days after fairness
hearing
Deadline for Implementation: immediately regarding those aspects that need
no new purchases, otherwise two years after fairness hearing
B. Parties’ Mutual Accountability and Responsibility
for Evaluation Of The Implementation of the Agreement
Introduction
30.
The
Parties, in consultation with appropriate experts and under the supervision
of the Monitor, shall develop a system of evaluation to track the attainment
of goals agreed to between the Parties in the settlement Agreement. This tracking enables the Agreement to serve
as a mutual accountability plan. The
term “mutual accountability plan” is defined as a plan that ensures that the
conduct of the city, the police administration, members of the Cincinnati
Police Department and members of the general public are closely monitored
so that the favorable and unfavorable conduct of all is fully documented and
thereby available as a tool for improving police-community relations under
this Agreement. The Parties will regularly
meet with the Monitor to study the results of the evaluation instruments and
determine what changes, if any, in the Agreement or in their actions should
be pursued in light of the evaluation results. That system shall also include
a plan for determining what parts of this evaluation oversight may be transferred
from the Monitor’s supervision to a successor agency before this Agreement
expires in order that ongoing evaluation efforts of police-community relations
continue.
Protocol Development
31.
The
Parties shall, with the advice of expert consultants, and under the supervision
of the Monitor, develop a Protocol to accomplish this system of evaluation.
This Protocol (hereafter, the “Evaluation Protocol”) shall be developed within
90 days of the Court approval of this Agreement, and implementation shall
be commenced not more than 60 days thereafter.
32. The Evaluation Protocol shall set forth (i) a schedule for implementation of its terms, (ii) the cost of implementation, (iii) the individual or entity that will perform its requirements, (iv) data collection methods, forms, and procedures, (v) guidelines for analysis of collected data and reporting formats, (vi) levels of statistical confidence and (vii) levels of statistical power.[2]
Cost
33.
The cost to implement the provisions of this
Section B, including the cost to implement the Evaluation Protocol, shall
not exceed the limit set forth in paragraph 129.
Elements of Evaluation Protocol
34.
This
Evaluation Protocol shall include (1) periodic surveys; (2) periodic observations
of programs in which the police are involved; (3) and annual statistical compilations
of police interactions with the community and the community’s interactions
with the police.
Periodic Surveys.
35.
Subject
to final decision after development of the Evaluation Protocol, the Parties
anticipate utilizing several types of surveys regarding events occurring after
the signing of this Agreement. The Evaluation Protocol shall provide that
for all probability sample surveys, the Parties will assure that the response
rate of sampled respondents is not lower than 70 percent.
a)
A
probability sample[3] of citizens
will be surveyed, periodically citywide. This survey will provide a barometer of citizen
attitudes toward and satisfaction with the police. The survey should be large enough that meaningful
distinctions can be drawn among neighborhoods, race, gender and ages of respondents.
Special consideration will be given to the use of a non-probability
sample of residents who have no fixed address and who are likely to be missed
by probability sampling. The citywide survey of citizens will include
measures of neighborhood conditions, fear of crime, community efficacy, awareness
of policing efforts, participation in policing efforts, perception of policing
effectiveness, police responsiveness, performance, officer civility and demeanor,
and citizen conduct with the police. The surveys shall also include multiple items
that are specifically designed to fairly measure identification and prioritization
of problems; awareness of community problem oriented policing efforts, participation
in such efforts, and program effectiveness in community relations.
b)
A
probability sample of citizens with police encounters will be surveyed periodically
to determine the nature of the contacts and citizens’ perceptions of the police
involved and the outcomes of the contacts. These citizens will be drawn from police records,
including but not limited to lists of citizens attending neighborhood meetings
with the police, involved in police-community problem-solving efforts, stopped
and questioned by the police, and arrested by the police. The periodic survey
of citizens with police encounters include: measures of police responsiveness,
performance, demeanor, the perceived performance of other city agencies involved
in the problem-solving process, the perceived effectiveness of the problem
solving itself, and perceived community receptiveness to police involvement.
The exact nature of the questions asked will depend on the nature of
the encounter. Consequently, citizens involved in traffic stops
and citizens involved in police-community problem-solving efforts will be
asked similar questions about police demeanor, for example, but different
questions about the outcomes of the encounter.
c)
A
probability sample of police officers, specialists, sergeants, lieutenants,
and other members of the Cincinnati Police Department who have significant
contact with the public and their immediate families will be surveyed periodically
to determine their perceptions of their organizational work climate, citizen
support, and methods for improving the police department and police-community
relations. The periodic survey of officers will include measures of officer
perceptions of personal safety, perceptions of citizen conduct, their perceptions
of support or lack thereof from the Cincinnati Police Department, the City,
and elected officials, and recommendations for improving the working conditions
and effectiveness of police officers. Such surveys shall also include multiple items
that are specifically designed to fairly measure identification and prioritization
of problems, participation in community problem oriented policing efforts,
program effectiveness in community relations. The reasonable surveys of members of the Cincinnati
Police Department and members of their families shall not be deemed an unfair
labor practice and the results of the survey shall not be utilized by the
City for any purpose other than those set forth in this Agreement.
d)
Probability
samples of officers and citizens involved in the citizen complaint processes
will be taken to determine their levels of satisfaction with the fairness
of the process. Also, a probability sample of officers involved in internal
investigations and the disciplinary processes will be taken to determine their
levels of satisfaction with the fairness of the process.
Periodic Observations
36.
The
Evaluation protocol shall include provision for periodic observations of a
representative sample of community-police meeting, problem-solving projects,
and citizen complaint processes to examine how police and citizens interact
in these settings. The periodic observations of problem-solving activities
and community policing programs will focus on describing the activity, meeting,
or process and the characteristics of effective and ineffective programs,
procedures, processes, and personnel.
Privacy and Anonymity
of Survey and Observation Respondents
37.
The
Evaluation Protocol shall provide protection for the privacy of the individual
survey and observation respondents (citizens and members of the Cincinnati
Police Department and their immediate family members) who must feel confident
in providing frank and meaningful information.
The protocol shall assure that no data with individual respondent identifiers
will be released to the public, news organizations, members of the Cincinnati
Police Department, the City, or other Parties to this Agreement. These survey
data and observation data collected as part of this Agreement shall be retained
by the Monitor and access to data with personal identifiers shall be restricted
to the Monitor, the Monitor’s staff, and others the Monitor designates for
the sole purpose of accomplishing the goals of this Agreement. This provision
may be implemented with any appropriate protective order issued by the Court.
Statistical Compilations from Official Records
38.
In
addition to surveys, and subject to the final determination of the Parties,
the Evaluation Protocol shall include a means for providing the following
data, to the Parties and the public by the City of
39.
Compilations
shall include an analysis, by percentage attributable to each of the 52 city
neighborhoods:
40.
For
each of the above items, the city shall provide to the Monitor incident-based
data so that the nature, circumstances, and results of the events can be examined.
These data will allow examination of trends in the use of force, their
geographic patterns, their association with criminal activity, and differences
among groups.
Evaluation of Problem Solving Processes
41.
The
Evaluation Protocol shall also include data recording processes for study
of the problem-solving projects undertaken by members of the Cincinnati Police
Department and the community and the community-police meetings attended by
members of the Cincinnati Police Department. For these items, the Evaluation
Protocol will allow an assessment of core strategic process of the Cincinnati
Police Department.
Evaluation Of Video And Audio Records
42.
The
Evaluation protocol shall also include a procedure for representative sampling
of police vehicle mounted video and audio recordings in all police districts
and for creating a database describing the sampled recordings. If possible,
the protocol will seek to develop a method to study how citizens of various
racial and ethnic backgrounds are treated by the police, and how these same
people treat the police. Compliance
with this term shall be coordinated with compliance with the City-DOJ Agreement
relating to this subject.
Evaluation of Staffing
43.
The Evaluation Protocol shall also allow examination
of the hiring, promotion and transfer processes within the Cincinnati Police
Department. Accordingly, the Protocol
shall require review of data from the CPD regarding staffing, including data
on recruits, promotions, transfers, retirements, and overall organizational
staffing by rank, assignment, race, gender, age, and years of experience with
the Cincinnati Police Department.
Evaluation Reports
44. Using the data from the above sources, and subject to the final determination of the Parties, the evaluation protocol will include provision for periodic reports that will address each of the following questions, taking into consideration breakdowns by age (by subgroupings of 7-17, 18-25, 26-35, 36-45, 46-55, 56-65, and 65 and over), race, national origin, gender, geographical area (by neighborhood), years of service, rank, assignment and other characteristics as deemed appropriate:
·
Is public safety improving throughout the City
of
·
Have the number of reports by police of unfavorable
conduct by citizens during encounters with the police increased or decreased
in the neighborhoods of
· Is police use of force declining relative to the City’s population and serious crime rate?
· Is police use of force equitably distributed across racial, gender, and age groups, once involvement in crime, disorder, and other relevant factors is taken into account?
· Do police officials feel their supervisors, City officials, and citizens support their actions?
· Are the citizen complaint processes and discipline outcomes perceived to be fair by involved citizens and officers?
·
Are police-community relations improving throughout
· What can be done to continue to reduce police use of force, make police activities more equitable, address community problems, increase the fairness of the citizen complaint process, improve police-citizen relations, and improve community safety?
· Has the use of police force declined/ or increased relative to the number of police/citizen contacts?
· Were persons of any particular race or national origin, gender, or age in any of the fifty-two community geographic areas subjected to a disproportionate share of use of force by the police?
· Were members of the CPD in any of the fifty-two community geographic areas subjected to a disproportionate share of use of force by persons of any particular race or national origin, gender, or age?
· Is there any correlation between the answers to the two previous questions?
· Are community problems being successfully addressed
· Are police problems being successfully addressed?
· Do police officers feel that their supervisors, City elected and appointed officials, and citizens have done anything positive or negative with respect to supporting their police-related actions?
· Do citizens have any adequate means for positive engagement with police officers and police officials?
· Do lower ranking members of the CPD have any adequate means for positive engagement with higher ranking police officials and elected and appointed officials of the city?
· Do members of the CPD have any adequate means for positive engagement with the community?
· Is the citizen complaint process perceived to be fair by the involved citizens?
· Is the citizen complaint process perceived to be fair by the involved police officer?
· Is anything further required to make the citizen complaint process more fair?
· Is the police complaint process against citizens perceived to be fair by the police?
· Is the police complaint process against citizens perceived to be fair by the involved citizen?
· Is anything further required to make the police complaint process against citizens more fair?
·
Are police/community relations improving throughout
the
·
What is required to improve police/community
relations throughout the
·
Is public safety improving throughout the
· What has been done to continue to reduce police and citizen use of force?
· What has been done to help make police activities toward the citizens more equitable?
· What has been done to help make citizen activities toward the police less confrontational?
· What has been done to help the police respond to the citizens in a more respectful manner?
· What has been done to help the citizens respond to the police in a more respectful manner?
· What has been done to improve community safety?
· What has been done to improve police safety?
· What has been done to encourage citizens to report favorable or positive actions taken by members of the CPD?
45.
The Parties will publish an annual report answering
these questions (along with summaries of supporting data). The City will distribute
this report to City libraries and schools, community and social service organizations,
religious organizations, neighborhood associations, business associations,
police officer associations and organizations, higher educational institutions,
news organizations, and make the report available for pick-up in readily accessible
points in the City. The report will be available also from the City’s
website.
46.
Measurement
of the success of the mutual accountability process shall be based on the
following criteria:
Was an accountability system implemented
in accordance with the terms of this Agreement?
Was the data gathered in a manner consistent
with the terms of this Agreement?
Was the data analyzed in a full and
fair manner?
Was the data published and distributed
in a manner consistent with the terms of this Agreement?
Was the data fully and fairly used
to assess progress toward attaining the goals set forth in this Agreement?
Was
the data used to adjust city, police and community strategies to address problems,
reduce police and citizen use of force and improve police/community interaction?
47. The City shall abide by the terms of the City-Department of Justice (“DOJ”) Agreement attached as Exhibit C. This Paragraph shall be enforceable solely through the mechanism of Paragraph 113 hereof.
48. There are many persons in the community who contend that officers should report when they draw a firearm. The parties to the collaborative have been unable to agree on this issue. In the spirit of the collaborative and in an effort to settle the entire matter and considering the best interest of the entire community, the parties have agreed to this protocol:
a) The parties hereby agree to this expedited citizen complaint process for addressing concerns based on pointed firearms.
b) Any
person who believes that an officer has unnecessarily pointed a firearm at
a person on or after
c) That complaint shall be immediately investigated by a select team of CPD officers selected by the Chief after consultations with the plaintiffs.
d) The investigator(s) shall make a determination on each complaint within thirty days of the time it is filed, absent exceptional circumstances, and shall file said determination with the parties and the complainant and Monitor.
e) After six months, all of the complaints and investigator determinations shall be provided to the Monitor. The Monitor shall compile the data and forward it to the Conciliator.
f) The Conciliator shall review the information provided by the Monitor. If the Conciliator finds, by a preponderance of the evidence, that there exists a pattern of improper pointing of firearms at citizens, then the parties agree that the city shall henceforth require officers to report all instances where they point a firearm at or in the direction of a citizen. This provision is subject to the dispute resolution process set forth more fully at Paragraph 113 and appeal under Fed. R. Civ. P. 53.
49. Due to the fact that the Joint Settlement Agreement between the City and the Department of Justice was negotiated without the involvement of the Fraternal Order of Police (FOP), and because the Agreement contains a substantial number of items that may create many additions, modifications, and deletions to the current Police Procedure Manual that have not yet been submitted to the FOP in compliance with the terms of Article XII, Section 5 of the Collective Bargaining Agreement by and between the City and the FOP, the FOP does not agree to, adopt, or afford any precedential effect to the terms of the Joint Settlement Agreement, but will allow it to be appended to the Collaborative Agreement, so long as the FOP reserves the right to raise issues relating to the Joint Settlement Agreement through the Monitoring, Reporting, and Dispute resolution provisions of the Collaborative Agreement. The decision of the FOP, acting as a Collaborative partner, not to file any unfair labor practice claims or grievances as a result of the above shall not be used as a precedent, estoppel, or waiver by the City in this matter or in any unfair labor practice claim involving the City and the FOP.
50.
The
City shall provide police services in a fair and impartial manner without
any discrimination on the basis of race, color, or ethnicity. The City, in consultation with the Parties,
shall take appropriate action to track compliance as set out in this section.
Implementation of Commitment to Bias-Free
Policing
51.
The
City, pursuant to Ordinance 88-2001, has commenced an effort to measure whether
any racial disparity is present in motor vehicle stops by the CPD. The analysis of this data will be reported pursuant
to Paragraph 39.
52.
The
Parties shall cooperate in the ongoing training and dissemination of information
regarding the Professional Traffic Stops Bias-Free Policing Training Program.
53.
The
Monitor, in consultation with the Parties, shall in all public reports, include
detailed information including but not limited to the racial composition of
those persons stopped (whether in a motor vehicle or not), detained, searched,
arrested, or involved in a use of force with a member of the CPD, as well
as the race of the officer stopping such persons.
54.
In
providing police services the members of CPD shall conduct themselves in a
professional, courteous manner, consistent with professional standards. Except in exigent circumstances, when a citizen
is stopped or detained and then released as part of an investigation, the
officer shall explain to the citizen why he or she was stopped or detained
in a professional, courteous manner. An
officer must always display his or her badge on request and must never retaliate
or express disapproval if a citizen seeks to record an officer’s badge number.
This paragraph shall be incorporated into the written CPD policies.
55. The new Citizen Complaint Authority (CCA) will replace the Citizen Police Review Panel (CPRP) and the police investigations functions of OMI. The CCA's mission will be to investigate serious interventions by police officers, including but not limited to shots fired, deaths in custody and major uses of force, and to review and resolve all citizen complaints in a fair and efficient manner. It is essential that the CCA uniformly be perceived as fair and impartial, and not a vehicle for any individuals or groups to promote their own agendas. It is also essential that the CCA be encouraged to act independently consistent with its duties.
Staffing and
Powers of CCA
56.
The
CCA will have three components: (1)
a Board of seven Citizens appointed by the mayor and approved by City Council,
(2) a full-time Executive Director with appropriate support staff, and (3)
a team of professional investigators.
The Board of Citizens
57.
The
Board will include a diverse array of seven individuals, from a cross-section
of the
58. Applicants for a position on the Board shall execute a signed release authorizing a thorough background check, including a criminal check. No person may serve on the Board who has been convicted of a felony, assault on a police officer, or any crime of dishonesty. The results of the background check for any person appointed to the Board shall be a matter of public record and shall be retained for five years.
59. The Board shall select a chairperson from among its members, who shall serve for a term of one year.
60.
The Board and the Executive Director, in consultation
with the City Manager, shall develop Standards of Professional Conduct and
a comprehensive training program for Board appointees. Said standards shall
be approved by the City Manager. Before assuming office and prior to beginning
their duties, each member of the Board shall be required to complete a basic
course of training, including courses at the Cincinnati Police Academy, instruction
in constitutional and criminal protections, and ride-alongs with members of the Cincinnati Police Department assigned
to patrolling the City, in order to fully and adequately inform each Board
member of the training and duties of Cincinnati police officers. Each appointee
must promise to abide by the Standards and satisfactorily complete the training
as a condition of appointment and prior to service on any cases. The Mayor,
after consultation with the other Board members, may remove an individual
from the Board for cause, including failure to strictly abide by (including
action inconsistent with) the Standards or failure to properly discharge the
duties of the office. The Mayor shall
seek to act in a manner consistent with the recommendations of the other Board
members.
61.
The
CCA will not commence operations until each member of the Board has satisfactorily
completed the training program and promised to abide by the Standards.
Until that time, OMI and the Citizens Police Review Panel shall continue
in their current roles. Thereafter, new appointees to the Board shall
be afforded up to a maximum of ninety (90) days to complete training and promise
to abide by the Standards. The CCA
shall assume jurisdiction over all of the police cases pending before OMI
and the CPRP at the time of the transfer.
There shall be no break in civilian review as a result of this transition.
62.
The
Board and Executive Director shall develop the specific procedures necessary
for the CCA to carry out its mission, including the procedure to convene hearings
on cases, procedures for investigations, procedures for coordination of work
with CPD, and other operating procedures. Consistent with the City Charter, any procedures
affecting the administrative service shall be approved by the City Manager.
63.
Board
members shall be compensated at the rate of $100 per meeting. The chairperson shall be compensated at the
rate of $125 per meeting.
64.
The
City Solicitor shall provide legal counsel on a routine basis to the CCA. The City Solicitor shall designate an assistant
city solicitor for the CCA who shall maintain independence from and not be
involved with any other legal work involving the Cincinnati Police Department
or individual police officers. If the
Board determines on an individual case that it requires outside counsel, it
shall notify the city solicitor. The
solicitor will respond to and cooperate fully with the Board to employ counsel
whenever the solicitor determines in the exercise of her professional discretion
that there is the need for such outside counsel. If the city solicitor determines
that there is no need for outside counsel she shall explain her determination
to the City Manager, who shall relay it to the Board.
Executive Director
65.
The
City Manager shall appoint the CCA’s Executive Director,
who shall be an unclassified employee of the City. The City Manager shall seek nominations from
the Board of up to three candidates for Executive Director and appoint a person
to the position from that list or seek from the Board additional nominees,
provided, however, that the final selection of the Executive Director shall
be made by the City Manager. The Executive
Director shall serve as an unclassified employee and may be discharged by
the City Manager after consultation with the Board.
This provision shall not relieve the City Manager of the duty to respect
the need of the Executive Director to act independently, consistent with the
duties of the Executive Director. The
Executive Director will be accountable for the efficient operations of the
CCA, and for the achievement of the desired outcomes set forth above.
66.
The
Executive Director shall have professional experience in the investigation
of allegations of police misconduct, and he/she should be perceived as fair
and impartial. To this end, the City
Manager and other City officials, including elected officials, shall be prohibited
from interfering with individual investigations.
67.
The
Executive Director shall be responsible for day‑to‑day operations
of the CCA, including (1) recommendations for hiring of professional and support
staff, (2) preparation, submission and adherence to a budget, (3) conduct
and timely completion of investigations, (4) reporting to the City on the
CCA’s work, and (5) maintaining an effective working
relationship with the CPD and other branches of government. Within the resources allocated by City Council,
the Executive Director shall ensure that the CCA’s
human and other resources are sufficient to ensure timely completion of investigations
and maintenance of complete and accurate records.
68.
As
a condition of employment, all police officers and city employees are required
to provide truthful and accurate information to the CCA. In addition to the foregoing, when a key witness
other than a city employee refuses to cooperate in an investigation, the Executive
Director may recommend to the Board that a subpoena be issued to compel such
testimony, and the Board shall have the authority to request such a subpoena
from City Council. Subpoenas for the attendance of persons shall be secured
only through City Council. The Board
shall have the authority to issue subpoenas for documents, photographs, audio
tapes, electronic files and tangible things, subject to approval by the Board’s
legal counsel.
Investigators
69.
The
City’s Office of Municipal Investigations currently has four full-time investigators
assigned to police cases. The CCA shall
have a minimum of five professional investigators and one support person to
achieve timely completion of all investigations. Each investigator shall have prior professional
experience in investigations, and may be a former police or other law enforcement
officer from outside the City.
CCA Investigation
Process
Intake and Assignment
70.
Each
citizen complaint, excluding matters involving criminal investigations, will
be directed to the CCA regardless of where it initially is filed, and the
Executive Director, in consultation with the Board, shall establish criteria
to determine whether specific complaints are suitable for CCA investigation
or referral to the CPD’s Citizen Complaint Resolution
Process (CCRP). At a minimum, the CCA
shall open its own investigation upon (1) receipt of a complaint of serious
misconduct, or (2) knowledge by the Executive Director of allegations of serious
police intervention.[5] The CCA will immediately provide the CPD with
detailed information regarding the complaint, including the time and location
of the underlying events and the name(s) of the officer(s) involved.
71.
Where
a complaint is to be investigated by the CCA, it will be assigned to an investigator
within 48 business hours of receipt. The CPD shall notify the CCA Executive Director
immediately upon the occurrence of a serious police intervention and the Executive
Director shall immediately dispatch an investigator(s) to the scene.
The CPD shall not interfere with the ability of the CCA investigator
to monitor the work of the CPD at the scene and to monitor all interviews
conducted by CPD. CCA investigators
shall not physically enter the crime scene or delay or impede a criminal investigation.
72.
The
Chief of Police will retain the discretion to initiate a parallel CPD investigation
of any complaint under investigation by the CCA. In addition, the CPD will investigate all complaints
initiated within the Department (i.e.,
where the complainant is a police employee).
CPD and City Cooperation
73.
Police
officers and other City employees will be required to submit to administrative
questions consistent with existing constitutional and statutory law. See,
e.g., CMC §13(f); §20(f)(5). The Executive
Director of CCA shall have reasonable access to city records, documents and
employees, including employee personnel records and departmental investigation
files and reports consistent with
74.
The
Chief of Police and the Executive Director will develop written procedures
that will assure the timely exchange of information and the efficient coordination
of CCA and CPD investigations.
CCA Investigations
75.
The
CCA will complete its investigations within 90 days of the date the complaint
is signed by the complaining citizen, provided, however, that the Executive
Director may extend an investigation upon consultation with the Board. The time required to complete investigations
will be a performance accountability measure.
76.
Upon
completion of a CCA investigation, the Executive Director will forward the
investigative report to the Board. That
report shall include any positive information about the officer that may be
relevant. Similarly, where a complaint
is referred to the CCRP, the CPD will report the results of that process to
the CCA, and the Executive Director will submit those reports to the Board.
Each CCA report shall include proposed findings and recommendations. The Executive Director shall recommend each report
either for a Board hearing or summary disposition. The complainant and respondent officer(s) also
will be provided the investigative report, and each may challenge the report
and/or appeal the Executive Director’s recommendation to the Board.
77.
If
the Board conducts a review hearing, its purpose shall be to confirm the completeness
of the CCA investigation and approve or disapprove the Executive Director’s
report (findings and recommendations). The Board’s review hearing will not be an adversarial
proceeding and should not be used to reinvestigate the matter. The Board may receive witness testimony including
that of the complainant and/or police officer(s). Interviews of city employees or other witnesses
shall be conducted only in closed inquiry sessions unless the witness requests
otherwise. Such sessions shall not
be open to the public and shall include only CCA Board members, and any necessary
staff or support personnel. A written
record shall be kept of any statements, testimony, or other evidence obtained
in such sessions. Any city employee
directed to answer questions in an inquiry session shall be advised that the
statements and answers given can be used only for administrative purposes
relating to city employment and cannot be used in any criminal proceedings
involving that employee. Such advice
shall be consistent with the constitutional principles identified in Garrity v.
78.
Following
a hearing, the Board may either approve or disapprove the Executive Director’s
findings and recommendations. Where
the findings and recommendations are approved, they shall be submitted to
the Police Chief and City Manager. If
they are disapproved, the Board shall state its reasons and may direct that
further investigation be pursued. The
Board may issue its own findings and recommendations, and submit them along
with the Executive Director’s original report to the Police Chief and City
Manager. In all cases, the City Manager and Police Chief
will refrain from making a final decision on discipline until after receipt
of the CCA report. The City Manager shall agree, disagree or agree in part
with any findings and recommendations of either the Board or the Executive
Director, and she shall inform the Executive Director and the Board in writing
of any reasons for agreeing in part or disagreeing with said findings and
recommendations. It shall be the Executive
Director’s responsibility to inform the officer(s)involved in the complaint
and the complainant when a final decision has been reached on a complaint.
79.
Reports
prepared by the CCA, the CPD or the City Manager pursuant to this process
shall be publicly available to the extent provided by
Records
80.
The
CCA and CPD will create a shared electronic database that will track all citizen
complaints, including the manner in which they were addressed (e.g., CCA investigation or CCRP) and their
dispositions. Subject to restrictions
which may exist in any applicable collective bargaining Agreements, this database
also will capture data sufficient for the CCA and the CPD to identify officers
involved in repeat allegations, citizens making repeat allegations and circumstances
giving rise to citizen complaints. This data will be integrated into, or regularly
shared with, an electronic information management system to be developed by
the CPD. Procedures will be adopted
to secure information which is not subject to release under
81.
In
addition to the foregoing, the CCA shall maintain its files for each investigation
for a period of five years or such shorter period as may be provided in any
applicable collective bargaining Agreement. Where feasible, those files shall
include tape-recorded interviews of officers, complainants and witnesses.
These data will be made available for the accountability system.
Prevention
82.
There
are two methods used for reducing citizen complaints: (1) thorough investigation of officers charged
with misconduct, and (2) examination of complaint patterns to identify at-risk
officers, citizens and circumstances. The
former represents the traditional method of complaint prevention. The latter method involves an examination both
of circumstances that lead to complaints and opportunities to alter those
circumstances. It is a problem-solving
approach that may prove effective in
83.
The
CCA will examine complaint patterns that might provide opportunities for the
CPD and community to reduce complaints. At
a minimum, the CCA will look for three types of patterns: (1) repeat officers,
(2) repeat citizen complainants, and (3) repeat complaint circumstances.
Following the identification of such patterns, the CCA and the CPD
jointly will undertake a problem‑solving project to determine the reason(s)
for the pattern and whether there are opportunities to eliminate or reduce
root causes. Where feasible, this project should involve
both affected officers and the community.
Information
Dissemination
84.
The
CCA will develop a clear and direct information brochure to inform citizens
how they can access the CCA and how the CCA operates. The City will make this
brochure available to all citizens, including at public libraries and other
public facilities.
85.
The
Executive Director will be responsible for working with the CPD and community
to develop and implement an information plan that ensures officers and citizens
fully understand the investigation, mediation, restoration, and prevention
processes outlined above, and that the CCA’s achievements
are clearly articulated to the public and the CPD.
86.
The
CCA shall issue annual reports summarizing its activities for the previous
year including a review of significant cases and recommendations. Such reports shall be issued to City Council
and the City Manager, and made available to the Public.
Resources
and Redundancy
87.
The
City Council will allocate resources sufficient for the CCA and CPD to accomplish
the foregoing.
88. The CPRP and police investigation functions of OMI will be eliminated, and associated resources will be allocated to the CCA.
89. ACCOUNTABILITY MEASUREMENTS
90. The provisions of this Article VI shall be construed consistent with, and shall in no way modify or amend, the provisions of Paragraph 129.
Selection of the Monitor
91. Within 150 days of the execution of the City-DOJ Agreement, in accordance with the timetable set forth below, the Parties, together with DOJ. will select a Monitor with law enforcement experience who will review and report on the Parties’ implementation of, and assist with the Parties’ compliance with, this Agreement.
a.
Within 30 days of the execution of the City-DOJ Agreement, the Parties, together with DOJ, jointly
will issue a solicitation for bid proposals for appointment of the Monitor.
In addition to a targeted national mailing, the solicitation shall
be published in several national newspapers, and the websites of the Parties
and DOJ. The City shall bear the cost of publicizing
the solicitation.
b.
The deadline for the submission of such proposals will be 30 days after
publication of the solicitation on City’s website.
c.
All proposals for providing the monitoring under this provision shall
include, but not be limited to, plans for experts to be utilized, resumes
and c.v’s of proposed experts, cost proposals, and any other information
that the Parties and DOJ deem necessary.
92. If the Parties and DOJ are unable to agree on a Monitor within 150 days, each Party and DOJ will submit two names of persons with law enforcement experience, along with resumes or curriculum vitae and cost proposals, to the Court, and the Court will appoint the Monitor from among the names of qualified persons submitted.
93. The Monitor, at any time, may request to be allowed to hire or employ such additional persons or entities as are reasonably necessary to perform the tasks assigned to him/her by this Agreement. The Monitor shall notify the Parties and DOJ in writing if and when the Monitor wishes to select such additional persons or entities. The notice shall identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the Parties and DOJ agree to the Monitor’s proposal, the Monitor shall be authorized to hire or employ such additional persons or entities. Any Party or DOJ has ten days to disagree with the proposal. If the Parties and DOJ are unable to reach agreement within ten days of receiving notice of the disagreement, the Court shall resolve the dispute.
94. The City shall bear all reasonable fees and costs of the Monitor. In selecting the Monitor, the Parties and DOJ recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly, fees and costs shall be one factor considered in selecting the Monitor. In the event that any dispute arises regarding the payment of the Monitor’s fees and costs, the Parties, DOJ, and the Monitor shall attempt to resolve such dispute cooperatively. If the Parties and DOJ are unable to reach Agreement, the Court shall resolve the dispute.
95. In the interest of expediting the selection and contracting processes for the Monitor, the Parties and DOJ shall be exempt from local contracting procurement regulations and all such regulations shall be considered waived for this purpose.
96. The Monitor shall not be subject to dismissal except upon good cause and the Agreement of all of the Parties and DOJ or by the Court upon motion of one of the Parties or DOJ and a showing of good cause.
Selection of the Conciliator
97. The Honorable Michael R. Merz, United States Magistrate Judge, will be appointed by the Court pursuant to Fed. R. Civ. P. 53 as the Conciliator for compliance with this Agreement.
Duties of the Monitor
98. The Monitor will only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor shall not, and is not intended to, replace or take over the role and duties of any City or CPD employee. The Monitor may not modify, amend, diminish, or expand this Agreement.
99. The Monitor shall offer the Parties technical assistance regarding compliance with this Agreement. Technical assistance will be provided to a party upon request by that party, and it will be offered consistent with the provisions of this Agreement.
100. The City and the CPD shall provide the Monitor with full and unrestricted access to all CPD and City staff, facilities, and documents (including databases) necessary to carry out the duties assigned to the City and the CPD by this Agreement, provided, however, that the Monitor shall not have access to any materials protected from disclosure by the attorney-client privilege and/or work product doctrine. Any materials or information claimed to be protected by the attorney-client or work product privilege shall be logged with information including author, date, nature of the material, reason for the claim of privilege, and persons to whom the material was disseminated. The Monitor shall cooperate with the City to access people and facilities in a reasonable manner that, consistent with the Monitor’s duties, minimizes interference with daily operations.
101. The Monitor shall retain any non-public information in a confidential manner and shall not disclose any non-public information to any person or entity absent written notice to the City and either written consent by the City or a court order authorizing disclosure. In monitoring the implementation of this Agreement, the Monitor shall maintain regular contact with the Parties.
102. The Monitor shall file with the Conciliator written public reports detailing the Parties’ compliance with and implementation of each substantive provision of this Agreement. The first such report shall be 180 days after Court approval of this Agreement , and quarterly thereafter. The Monitor may make recommendations to the Parties regarding measures necessary to ensure full and timely implementation of this Agreement.
Compliance Reviews
103. In order to monitor and report on the Parties’ implementation of this Agreement, the Monitor, shall, inter alia, regularly conduct compliance reviews to ensure that the Parties have implemented and continue to implement all measures required by this Agreement. The Monitor shall, where appropriate, when measuring compliance, employ appropriate sampling techniques.
104. Each Party shall designate a person or person to serve as liaisons to the Monitor for compliance purposes. The City Solicitor shall serve as a liaison between the City and the Monitor, and shall assist with the City’s compliance with this Agreement.
Reports and Records
105. Between 90 and 120 days following Court approval of this Agreement , and every three months thereafter until this Agreement is terminated, the Parties shall file with the Monitor a status report, including any supporting documentation, delineating all steps taken during the reporting period to comply this Agreement.
106. During the term of this Agreement, and subject to record retention requirements and procedures imposed by state or local law, any existing consent decree, or any relevant collective bargaining Agreement, the Parties shall maintain all records documenting compliance with this Agreement and all documents required by or developed pursuant to this Agreement.
107. The Monitor shall issue quarterly public reports to the Parties and the Conciliator detailing the Parties’ compliance with and implementation of this Agreement, after filing the first such report 180 days after Court approval of this Agreement. These reports shall not include information specifically identifying any individual officer. Drafts of the status reports will be provided to each of the Parties at least 10 days prior to publication to afford the Parties an opportunity to identify factual errors.
108.
The Monitor shall not issue statements or make
findings with regard to any act or omission of any Party, or their agents
or representatives, except as required by the terms of this Agreement. The Monitor may testify in any enforcement proceedings
regarding provisions of this Agreement and the Parties’ compliance.
The Monitor shall not testify in any other litigation or proceeding
with regard to any act or omission of any Party, or any of their agents, representatives
or employees, related to this Agreement or regarding any matter or subject
that the Monitor may have received knowledge of as a result of his or her
performance under this Agreement. Unless
such conflict is waived by the Parties, the Monitor shall not accept employment
or provide consulting services that would present a conflict of interest with
the Monitor's responsibilities under this Agreement, including being retained
(on a paid or unpaid basis) by any current or future litigant or claimant,
or such litigant's or claimant's attorney, in connection with a claim or suit
against the City or its departments, officers, agents or employees. The Parties
agree to request an appropriate protective order for non-public records in
the possession of the Monitor. The
Monitor shall not be liable for any claim, lawsuit, or demand arising out
of the Monitor's performance pursuant to this Agreement. Provided, however, that this paragraph does
not apply to any proceeding before a court related to performance of contracts
or subcontracts for monitoring this Agreement.
109.
The
reporting requirements set forth in Paragraphs 102 to 107 herein do not limit
the reporting requirements under the DOJ-City Agreement.
Duties of the Conciliator
110. The Conciliator will evaluate the Monitor’s reports, instruct the Parties on how to remedy areas of non-compliance and, if necessary, may issue an order pursuant to Fed. R. Civ. P. 53, on issues of compliance regarding particular provisions of this Agreement.
111. The Conciliator shall be responsible to review the quarterly reports of the Monitor and to determine whether each of the Parties is in compliance with the Agreement, pursuant to Fed. R. Civ. P. 53.
112. If the Conciliator determines that a Party is not in substantial compliance with a provision of this Agreement, he shall so inform the Party, and the Party shall have 60 days from receipt of such notice to cure the asserted failure. If the Party fails to cure the asserted failure within that period, then the Conciliator may without further notice, issue an order consistent with the Agreement. Any party may appeal said order pursuant to Rule 53.
113. If the Monitor determines in a report made pursuant to the City-DOJ Agreement that the City is not in substantial compliance with a provision of the DOJ Agreement, the Monitor shall notify the Special Litigation Section of DOJ in writing. If the DOJ declines after 60 days to move the federal court for specific performance to correct persistent substantial non-compliance, then the Monitor shall notify the Parties to this Agreement of that dispute, and the Parties may request, and the Conciliator shall, giving due deference to the action or determination of the DOJ, determine whether the City is in substantial compliance with a provision of the DOJ Agreement. If the Conciliator determines that the City is not in substantial compliance with a provision of the DOJ Agreement, and if the City fails to remedy that non-compliance within 60 days of the Conciliator’s determination, then the Conciliator shall issue an order directing such compliance pursuant to Fed. R. Civ. P. 53. In the event a party disagrees with the Conciliator’s order, that party may appeal to the Court pursuant to Rule 53. The Parties agree that the Department of Justice shall be permitted to intervene beginning with the Conciliator level regarding the terms of the DOJ-City Agreement with the Court in the event of such proceedings.
114. Pursuant to the dispute resolution process set out in this Agreement, in the event that the Court finds that any party has engaged in a material breach of the Agreement, the Parties hereby stipulate that the Court may enter the Agreement and any modifications pursuant to paragraph 123 as an order of the court and to retain jurisdiction over the Agreement to resolve any and all disputes arising out of the Agreement.
VII. INDIVIDUAL ACTIONS, MEDIATION
115. All litigation matters regarding the damage claims in the case at bar (Tyehimba v. City of Cincinnati) and the following cases, in which the statute of limitations have not expired, are tolled until July 1, 2002:
Antonio Johnson v. City of
Matthew Shaw v. City of
Mark A. Ward v. City of
Charles A. Wiley v. City of
Lisa Youngblood-Smith v. City of
Elsie Carpenter v. City of
Nathaniel Livingston v. Thomas Streicher, Case No. C-1-01-233
Lasha Simpson v. Thomas Streicher,
(re force on
Claim of Vinnie
Clarke and Terry Horton
Claim of William Haysbert
Claim of John E. Harris
Claim of Ms. Stephanie Keith and Paul Keith
Claim of Enrico
Martin
Claim of Roderick Glenn
Claim of
Claim of Tony Stillwell
Claim of Sheila Barnes
Claim of Iweka
Okaraocha
Claim of Patricia Watkins
116.
The Parties agree to develop an expedited arbitration
process for the above cases within thirty days of the approval of this Agreement.
The process will include a provision for an exchange of lists by the
City, the attorney for any individual defendants and the claimants of the
cases and claims each party is willing to submit to arbitration.
All statutes of limitation that have not expired are tolled until
VIII. MISCELLANEOUS
PROVISIONS
117.
This
settlement Agreement is the product of extensive arms-length negotiations
by competent legal counsel for the Parties.
The
Parties agree that they are entering into this class action settlement agreement
for settlement purposes only. Any acquiescence
or agreement to the class certification in this case does not constitute an
admission of liability or fault by the City of
118.
No
Party shall retaliate in any manner against any other Party or person for
their participation in this case.
119.
All
Parties hereto agree to exercise their best efforts and to take all reasonable
steps necessary to effectuate the settlement set forth in this Agreement.
120.
This
Agreement constitutes the entire Agreement among the Parties with regard to
the subject matter of this Agreement.
121.
Any
notice, request, instruction or other document to be given hereunder by any
party hereto to any other party (other than class notification) shall be in
writing and delivered personally or sent registered or certified mail, postage
prepaid, to the Parties as follows:
To: Cincinnati
City Solicitor
Fay Dupuis
City Hall
To:
Class Counsel and plaintiffs or class members:
Alphonse A. Gerhardstein
Kenneth L. Lawson
Class Counsel Class
Counsel
1409
Scott T. Greenwood
Class Counsel
1
ACLU Foundation
of Ohio, Inc.
To: Fraternal Order of Police
Don Hardin
Steve Lazarus
915
122.
This
Agreement is a public document and shall be posted on the websites of the
City or CPD and of the Plaintiffs.
123.
This
Agreement may only be modified in writing and on consent of the Parties.
124.
The
Parties agree to join in a motion to approve a class action settlement that
will incorporate the terms of this Agreement and protect the city from other
lawsuits seeking injunctive relief on the matters addressed herein. Further, the Parties agree that this is not
a consent decree and stipulate to continuing jurisdiction and venue in the
United States District Court for the Southern District of Ohio for enforcement
in accordance with this Agreement’s provisions.
Further, the Parties agree that this matter may be appropriate for
administrative processing in the Court’s discretion after the fairness hearing.
125.
The
Agreement will terminate five years after the Court approval of this Agreement. The Agreement may terminate
earlier if the Agreement between the City and DOJ has terminated, and if the
Parties agree that the plaintiffs, the FOP and the City have substantially
complied with each of the provisions of this Agreement and maintained substantial
compliance for at least two years. Such Agreement will not be unreasonably
withheld. If the Parties do not agree,
the issue of early termination shall be submitted to the Conciliator.
The burden shall be on the party owing the duty to demonstrate that
it has substantially complied with each of the relevant provisions of the
Agreement and maintained substantial compliance for at least two years. For
the purposes of this paragraph, "substantial compliance" means there
has been performance of the material terms of this Agreement. Materiality
shall be determined by reference to the overall objectives of this Agreement.
Noncompliance with mere technicalities, or temporary failure to comply during
a period of otherwise sustained compliance, shall not constitute failure to
maintain substantial compliance. At the same time, temporary compliance during
a period of otherwise sustained noncompliance shall not constitute substantial
compliance.
Long-Term Fiscal Impact Of Collaborative Agreement
126.
The
plaintiffs agree to take lead responsibility for securing funding for the
Community Partnering Program through grant applications to local and national
philanthropic organizations. The other
Parties agree to assist with the grant application process as needed. It is
estimated that such cost will total at least $175,000 per year early in the
Agreement but that cost could be reduced as CPOP takes root in the community.
127.
The
other costs associated with this Agreement shall be the responsibility of
the City subject to the provisions of this section.
128.
The
Parties agree that for the purposes of budgeting, all technology purchases,
one-half of the increased expenditures associated with civilian review of
alleged police misconduct, one-half of the police staffing expenses and one-half
of the monitoring costs necessary will be required to satisfy the terms of
the DOJ-City Agreement, regardless of the relationship between the DOJ and
the Collaborative Agreements. The Parties will cooperate in seeking federal
and private assistance with those costs. The
City will be ultimately responsible for those costs.
129.
The
Parties estimate that the overall cost attributable to the City of meeting
the terms of this Agreement, other than the costs of the preceding paragraph
attributable to the City-DOJ Agreement, is five million dollars. These costs include, e.g., the costs of implementing
CPOP, implementing and evaluating the Parties’ mutual accountability, monitoring,
and operating civilian review. If the overall cost to the City under this
Agreement is in excess of an average of one million dollars per year over
the life of the Agreement, or in excess of one million two hundred fifty thousand
dollars in the first year, the Parties shall revisit the schedule for implementation
of the terms of this Agreement to determine if that schedule should be modified
in light of the cost.
130.
Any
procurement of services or goods under the terms of this Agreement shall be
open to all persons, including African-Americans, regardless of race or gender
and affirmatively available to all African-American vendors, consistent with
City policy.
131.
During
the life of this Agreement, if any party is unable to meet an interim or long-term
goal due to finances, that party shall notify the others and the Monitor of
the problem, all efforts that have been taken to resolve the problem, and
any plan to address the problem in the future. The Monitor shall investigate
the relevant facts and make a recommendation on the issue to the Parties and
the Conciliator.
Parties:
American Civil
Liberties
The Urban League
of Cincinnati, Inc.
The
The City
of
The Fraternal
Order of Police
Plaintiffs
and Proposed Plaintiff Class Counsel:
Kenneth L. Lawson
Trial
Attorney for Plaintiff Class
Scott T. Greenwood
Trial
Attorney for Plaintiff Class
Alphonse A. Gerhardstein
Trial Attorney
for Plaintiff Class
Defendants’ Counsel:
_________________
Fay D. Dupuis
City Solicitor
William R. Martin
Michael Harmon
City of
Trial
Attorneys for Defendants
_________________
Donald Hardin
Trial Attorney
for Individual Defendants
And the Fraternal
Order of Police
[1] They used the SARA model for problem solving and the project
and findings were published in Crime Mapping Case Studies: Successes in the
Field, Volume 2, 2000, Police Executive Research Forum.
[2] Statistical confidence refers to the probability that a difference between two groups is real and not due to randomness. Statistical power refers to the ability to detect a given non-random difference between two groups.
[3] A probability sample is a group of people selected in a way that allows researchers to calculate the proportion of the population they represent with known accuracy. Simple random samples are a type of probability sample, but there are many other types as well.
[4] All favorable encounters between citizens and police officers shall be reported as soon as they are made known to the city and police administrations and any police supervisor. Citizens, city councilpersons and their staffs, all city departments, divisions and agencies and their staffs, city and police administrations and their staffs, and all members of the CPD shall be encouraged to promptly report all favorable or positive actions taken by all members of the CPD to ensure that a complete record of all such favorable and positive actions are made a permanent part of any data base relating to the CPD’s dealings with the community.
[5] “Serious police intervention” shall include, but not be limited to, major use of force, shots fired or deaths in custody.