Joint Committee on Police Oversight — Burlington, VT
Date: 2023-05-23
Time: 17:30

Ordinance and Charter Change Joint Committee on Police Oversight Meeting -
 Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library




1. Agenda
Subject 1.1. Motion to amend/adopt agenda
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 1. Agenda
Type

Recommended Action

2. Adopt the Draft Minutes from May 4, 2023
Subject 2.1. Adopt the Draft Minutes from May 4, 2023
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 2. Adopt the Draft Minutes from May 4, 2023
Type

Recommended Action

3. Review of Draft Proposals and Public Comment
Subject 3.1. Review of Draft Proposals and Public Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 3. Review of Draft Proposals and Public Comment
Type

Recommended Action

4. Presentation from HR Director Kerin Durfee on City Discipline Procedures
and Public Comment
Subject 4.1. Presentation from HR Director Kerin Director on City Discipline and Public
 Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 4. Presentation from HR Director Kerin Durfee on City Discipline Procedures and Public
 Comment
Type
Recommended Action

5. Review and Discussion of the CNA Report and Talitha Consultants and Public
Comment
Subject 5.1. Review and Discussion of the CNA Report and Talitha Consultants and Public
 Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 5. Review and Discussion of the CNA Report and Talitha Consultants and Public Comment
Type

Recommended Action

6. Any Other Committee Business
Subject 6.1. Any Other Committee Business
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 6. Any Other Committee Business
Type

Recommended Action

7. Adjournment
Subject 7.1. Motion to adjourn
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 7. Adjournment
Type

Recommended Action

Ordinance and Charter Change Joint Committee on Police Oversight Meeting -
 Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library




1. Agenda
Subject 1.1. Motion to amend/adopt agenda
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 1. Agenda
Type

Recommended Action

2. Adopt the Draft Minutes from May 4, 2023
Subject 2.1. Adopt the Draft Minutes from May 4, 2023
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 2. Adopt the Draft Minutes from May 4, 2023
Type

Recommended Action

3. Review of Draft Proposals and Public Comment
Subject 3.1. Review of Draft Proposals and Public Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 3. Review of Draft Proposals and Public Comment
Type

Recommended Action

4. Presentation from HR Director Kerin Durfee on City Discipline Procedures
and Public Comment
Subject 4.1. Presentation from HR Director Kerin Director on City Discipline and Public
 Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 4. Presentation from HR Director Kerin Durfee on City Discipline Procedures and Public
 Comment
Type


 Page 1 of 99
Recommended Action

5. Review and Discussion of the CNA Report and Talitha Consultants and Public
Comment
Subject 5.1. Review and Discussion of the CNA Report and Talitha Consultants and Public
 Comment
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 5. Review and Discussion of the CNA Report and Talitha Consultants and Public Comment
Type

Recommended Action

6. Any Other Committee Business
Subject 6.1. Any Other Committee Business
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 6. Any Other Committee Business
Type

Recommended Action

7. Adjournment
Subject 7.1. Motion to adjourn
Meeting May 23, 2023 - Ordinance and Charter Change Joint Committee on Police Oversight
 Meeting - Tuesday, May 23, 2023, 5:30 PM, Fletcher Room in the Fletcher Free Library
Category 7. Adjournment
Type

Recommended Action




 Page 2 of 99
 ORDINANCE and CHARTER CHANGE JOINT COMMITTEE
 Thursday, May 4, 2023
 Public Works Conference Room and Via Zoom (Remote)
 DRAFT MINUTES
Members Present: Councilor Traverse (Ordinance Committee Chair), Gene Bergman (Charter
Change Committee Chair), Councilor Hightower, Councilor Shannon, Councilor Carpenter,
Councilor Doherty
Staff Present: Kim Sturtevant (Acting City Attorney), Joseph Dempsey (City Attorney’s Office
Staff)
Others in Attendance: Council President Paul, Councilor Magee, Councilor Grant, Acting Chief
Murad, Chief of Staff Jordan Redell, Dave Maher, Amy Malinowski, Shakuntala Rao, Andy
Blanchet, Jessica Oski, Mary Cox
Meeting called to order at 6:07 PM.
1.0 Agenda
Motion to adopt/amend agenda
Motion to Adopt Agenda as is.
Motion by Councilor Carpenter, Seconded by Councilor Shannon
Final Resolution: Motion Passes
Yes: Unanimous

2.0 Review of Committee Materials and Initial Councilor Comments
Carpenter: There has been a lot of discussion over the last two and a half years about the potential
charter change. I am less familiar with the other conversations happening and I am hoping to get
more familiar with the other work that is still being done on this topic.
Hightower: I am hoping to clarify what specific changes we are looking to cover before getting
into the details so we can cover this is an efficient way.
Shannon: I want to examine our current system and identify what we want to change going
forward. I was on a committee in 2019 that looked at policies and practices. It will be helpful to
see how the current system is not working and how we can address the issues. We also need to
think about how these policies will affect the police officers themselves. Maybe the Chief and the
union can facilitate getting feedback from the officers themselves.
Bergman: I am looking at the resolution that created this joint committee and I believe that the end
date of June 1 is simply too soon and we should move it back. I agree with Joan that we need to
have a city-specific solution that addresses both officers and others. I think September is a better
end date. There will need to be transparency for any potential new body as well as addressing due
process. There is a lot of work to be done, whether we change the role of the Police Commission
or create some new body to do the work.



 Page 1 of 4


 Page 3 of 99
Carpenter: I am also curious how discipline works in the City at-large? How does the HR
Department and HR Committee role compare to that of the police?
Traverse: Yes, I believe that we need to create a list of people that we might want to have weigh
in on this issue. I know the Police Commission has been working on this and would like to give a
presentation on their work. I do have more substantive thoughts, but I would like to allow others
from the public to speak. I am hopeful that this committee will find some solutions since there is
so much interest in our community right now. From a charter change perspective, I think the two
areas that could change would be the sole role of the Chief in disciplining officers and the role of
the Police Commission as an appellate body for officers. Other than that, I believe there is a lot of
room for ordinance or other changes.
Hightower: I think starting with the issue of disciplinary authority first would be smart as that will
likely require a charter change. I am wondering what the best way to get feedback from police
officers is and how we can do so quickly. I think we need a policy change that will be clear and
still give us flexibility. If we do a charter change, I think it needs to be flexible enough so that we
can adjust the policy in the future if the City wants to. In short, I think disciplinary authority
should be with the Police Commission, but the charter change should be flexible enough to change
in the future.
3.0 Public Comment
Councilor Grant: I will be sending out a link to some trainings from NACOLE. The trainings go
through the best practices and the purpose of oversight. As a police commissioner, I was concerned
about incorrect information getting out to the public about police oversight. There are no two
oversight bodies that are the same, but there are some general principles for us to look at. A good
example is the commission in New Haven, Connecticut. I hope we can review this NACOLE
trainings as we go forward.
Jordan Redell (Mayor’s Chief of Staff): The Mayor plans to share a memo with the committees
and commission on these points. First, we should codify the current policies of the Police
Commission to accurately reflect what they do right now. We also need to codify the justice
procedures so that officers are treated fairly. Finally, we need to address the current issues with
the charter regarding the role of the Mayor as the chief executive of the City. Currently, the Chief
has the sole authority over the police department and the Mayor believes that is problematic.
Acting Chief of Police Murad: I don’t want to take up too much time with all of the documents
available online. Use-of-force is a significant concern, but it is not the lion’s share of the
complaints. We receive about 30 valid citizen complaints a year and all of them are reviewed by
the Police Commission. Note: These documents are available on BPD’s website or as attachments
to the BoardDocs meeting agenda. As far as engaging with the police officers goes, I think it is a
great idea to engage with the officers directly and not just me and the BPOA. We need to craft
good questions before we put out any survey and I don’t think we are there yet. Thank you.
Shannon: When we are talking oversight, are speaking only of sworn officers or of all the
employees at BPD?
Bergman: I don’t see our charge as being limited to only sworn officers.
Shannon: I bring it up because not all BPD employees are in the police union.

 Page 2 of 4


 Page 4 of 99
Chief Murad: Yes, we have an increasing number of professional, non-sworn staff. Currently, all
of the employees of the department, sworn or not, are under the Chief for disciplinary matters. We
send all citizen complaints regarding BPD employees to the Police Commission regardless of
position. The document on the role of the Police Commission is also available on BPD’s website.
Andy Blanchet (AFSCME Local 1674 President): I am glad to see we are looking for change and
that is what our members are looking for. I represent the union members at the Howard Center. I
want to reiterate what Melo Grant said about making sure the public gets accurate information. I
am hopeful for future collaboration going forward on this.
Councilor Grant: The Police Commission reviews complaints, but the Commission does not
always agree with BPD determinations. I think that issue is an important one and an opportunity
to improve training, policies, and community engagement.
Amy Malinowski: I am here from the People for Police Accountability. I am wondering how we
are going to make these forums more accessible and engage everyone. I know it has been said,
but I think the Chief should not have sole authority on discipline matters.
Dave Maher: I’ve lived in the Burlington area for about 50 years. I suggest to create a peer review
board within the police department. The board could consist of several senior officers, HR, and
maybe a union representative. Appeals from this board could then go on to an oversight board.
This would allow people familiar with police work to review complaints and make a discipline
recommendation. This would also reduce the number of complaints going to the oversight board.
Hightower: I want to bring up the CNA report recommendations regarding internal affairs. I think
it might be best to have HR Director Kerin Durfee speak to how other City departments handle
such issues.
Andy Blanchett: Workers at the Howard Center feel like we have a lot of oversight. Our members
feel that strong oversight and accountability is very important when our members are interacting
with police.
Shakuntala Rao (Police Commission): I suggest having one or several police commissioners be
invited regularly to these committee meetings. Also keep in mind the matter of resources as we
discuss the role and responsibilities of the Police Commission.
Carpenter: I view the Police Commission as an independent oversight body. I know some people
feel that it is not. In 2020-2021 we spent a lot of time on the CNA report. I think it would be
helpful to see what that report says about discipline. I am not sure we will have the time or
resources to do the same outreach we did a few years ago.
4.0 Councilor Discussion on Next Steps and Meeting
Bergman: Councilor Hightower posited that we should start with discipline. Any further thoughts
on that?
Hightower: I think I can share or present on the CNA report findings on this. I also think we
should have HR Director Kerin Durfee present on how discipline works for the rest of the City.
Then we can decide on whether we want to focus on just sworn officers or all of BPD.
Councilor Grant: We can work on that together. I went to every public engagement at that time
and presented CNA findings to the Council when I was a commissioner.
 Page 3 of 4


 Page 5 of 99
Shannon: I can’t attend the next meeting. I would prefer if the next meeting was more
informational and outreach-oriented. This topic is evolving and not everyone’s view is the same
as it was a few years ago.
Traverse: I agree, I think the next meeting should be focused on information gathering. I also
agree with Shakuntala that the Police Commission should be an integral part of the process. Are
there any other things we should address?
Shannon: We should create a website to host all of the relevant documents and videos of meetings.
Carpenter: Perhaps the Police Commission could have a discussion and appoint one or more people
to represent the Commission in these discussions.
Bergman: We have a large number of documents related to discipline that would be good to have
included in our information gathering. We have two proposals for police oversight, both that did
not succeed, that we could draw from and see what those ideas were.
Hightower: The CNA report pointed out some policies that were not best practice and I think HR
Director Durfee has a good idea of best practices for the City and how they might relate to BPD.
Bergman: I have two points to bring up. For outreach, we had success with the All Resident Voting
issue and to do something like that again we will need some money. We will need outreach
services and translation services. In terms of discipline, the question of qualified immunity is a
cloud over the use-of-force discussion. It has had a dramatic impact on policing in the U.S. on a
whole and we should keep it in mind.
Hightower: I prefer to not touch qualified immunity, as that is a large issue that we should save for
the end given the complexity. I really want to get a good policy done and that is a huge issue.
Doherty: I just want to mention that the Vermont State Police has an internal affairs office and it
might be useful to review how their office handles such issues. I also think we should look at how
the Fire Department handles disciplinary issues as well.
Shannon: It might be helpful to hear from the Vermont Criminal Justice Council and hear what
they have to say on this issue.
Traverse: So for our next meeting: a presentation from Kerin Durfee, a review of the CNA report
recommendations, outreach and engagement, and anything else people might think of before then.

5.0 Adjournment
Motion to Adjourn.
Motion by Council Traverse, Seconded by Councilor Bergman
Final Resolution: Motion Passes
Yes: Unanimous

The meeting was adjourned at 7:32 PM.




 Page 4 of 4


 Page 6 of 99
 CITY OF BURLINGTON
 ORDINANCE ___________
 Sponsor: Public Safety Committee
 Public Hearing Dates: ___________
 In the Year Two Thousand Twenty-Two _____________________________
 First reading: _________________
 Referred to: ___________________
 An Ordinance in Relation to Rules suspended and placed in all
 stages of passage: ______________
 Police Oversight and Accountability: Authorities to Police Second reading: ________________
 Commission to alter the Police Disciplinary System Action: ______________________
 Date: ________________________
 Signed by Mayor: ______________
 Published: ____________________
 Effective: _____________________

 It is hereby Ordained by the City Council of the City of Burlington as follows:

 1 That the Code of Ordinances of the City of Burlington be and hereby is amended to include Chapter XX:
 2 TITLE OF CHAPTER HERE, which shall read as follows:
 3

 4 Chapter XX Police Commission
 5 ARTICLE I. IN GENERAL


 6 XX-1.
 7
 8 (a) The general purpose of this chapter is to support principles of fair and impartial policing within the City of
 9 Burlington Police Department by adopting a procedure that defines the role of the Burlington Police
10 Commission in providing community-based input in the following areas:
11 (1) the development of Department policies and procedures;
12 (2) review of citizen complaints involving the Department or its members; and
13 (3) the discipline process.
14
15 (b) Pursuant to Section 183 of the City Charter, the Board of Police Commissioners shall consist of seven (7)
16 legal voters of said city, to be appointed by the City Council with Mayor presiding to serve for three (3)
17 years and until their successors are appointed and qualified.
18
19
20 ARTICLE II. POWERS AND DUTIES
21 XX-2
22
23 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
24 City Charter, review Police Department Policy and Directives as follows:
25
26 (a) At the behest of the Chief of Police or upon the Commission’s own initiative, the Commission shall
27 take up various Police Department Policies and Directives and review, evaluate, and audit these
28 Policies and Directives for their impact on police-community relations. The Commission may also




 Page 7 of 99
 Page 2
 An Ordinance in Relation to


29 follow this same process in the development of new Policies or Directives for areas where there are no
30 existing Policies or Directives for the Department.
31
32 (b) From this review, the Commission shall propose recommended changes to the Policies and Directives
33 to the Chief of Police.
34
35 (c) The Chief of Police shall incorporate such changes, except where the changes would violate a state or
36 federal law, regulation, or standard; would violate a provision of the City’s Collective Bargaining
37 Agreement with officers in the Department; would result in a significant deterioration of public safety;
38 impinge upon an important, clearly identified law enforcement practice; would create substantial
39 liability or exposure to liability for the City as confirmed by the City Attorney; or would make it
40 impossible or impracticable for the Department to follow an identified best practice that is followed by
41 either a majority of Vermont municipalities or a significant number of municipalities of the same size
42 as the City of Burlington.
43
44 (d) If the Chief of Police invokes an exception to a Policy or Directive recommendation to either reject the
45 recommendation or modify the recommendation substantially, the Chief shall report to the
46 Commission, in writing and in a timely manner, the specific exception and the extent to which the
47 Chief is declining the recommendation. The Chief shall not be obligated to communicate in writing if
48 the Chief accepts the Commission’s recommendation in whole or substantial part.
49
50 (e) At the Commission’s next regularly scheduled meeting following a letter from the Chief notifying the
51 Commission of a rejection or substantial modification to the Commission’s recommendation, the
52 Commission shall review the letter and may either accept the Chief’s response or appeal the rejection
53 or modification to the Mayor’s Office. In this decision, the Commission may engage the Chief for
54 further clarification, but neither the Commission nor the Chief are obligated to such clarification if
55 either feels satisfied with their prior recommendation or response.
56
57 (f) An appeal to the Mayor shall consist of a letter from the Commission laying out the reasons for its
58 recommendation and understanding as to why the stated exemption does not apply. An appeal to the
59 Mayor must be supported by a two-thirds majority of the Commission. The Chief shall have up to 14
60 days to submit to the Mayor any response to the Commission’s appeal.
61
62 (g) Upon receipt of an appeal, the Mayor may request a meeting with the Chief of Police and
63 representatives of the Commission, which may be more than one but shall not constitute a quorum for
64 public meeting purposes. Such meeting shall not be considered a meeting of the Police Commission
65 and shall not be subject to 1 V.S.A. § 312 but shall be considered a deliberative session intended to
66 inform the Mayor of the deliberative issues.
67
68 (h) The Mayor shall render a decision on the appeal in a timely manner. The Mayor’s decision shall be
69 final and no further appeals or process shall follow.
70
71 (i) Nothing in this section shall be interpreted to restrict or limit the City Council’s independent legislative
72 powers under Section 48 of the City Charter.
73



 Page 8 of 99
 Page 3
 An Ordinance in Relation to


 74
 75
 76
 77 XX-3
 78
 79 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
 80 City Charter, compile and issue an annual report on citizen complaints and the disposition of such complaints,
 81 officer discipline, and other pertinent initiatives the Commissions deems noteworthy by the second meeting of
 82 the City Council in the month of November of each calendar year. Such report shall be drafted with assistance
 83 from the City Attorney to avoid the use of private or protected information to ensure that the report can be
 84 made public. The report shall not express opinions of Commission members on individual cases or pending
 85 or potential litigation involving the City. The report will be published to the members of the City Council, the
 86 Mayor and the Chief of Police, and representatives of the Commission and the Chief may present further
 87 information to the City Council at the Council’s invitation.
 88
 89
 90
 91 XX-4
 92
 93 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
 94 City Charter review citizen complaints as follows:
 95
 96 (a) A complaint by a member of the public, hereinafter referred to as “a citizen complaint,” concerning the
 97 Department or an employee of the Department may be filed either with the Department or directly with
 98 the Police Commission. Any citizen complaint filed with the Department shall be forwarded in a timely
 99 manner to the Chair of the Police Commission.
100
101 (b) The purpose of the Commission’s review of a citizen complaint is to identify gaps in policy, practice,
102 enforcement, and training where police department activities concern community standards and
103 expectations. The review process under this Section is not a disciplinary process and should not be
104 used as such.
105
106 (c) The Chair and Vice-Chair of the Police Commission shall screen each citizen complaint and, if
107 appropriate, present them to the Commission for review. The purpose of this initial screening shall be
108 as follows:
109
110 (1) To eliminate any complaint that the Chair and Vice Chair agree does not present a valid, relevant,
111 or current issue on which the Commission can reasonably review or investigate; and
112 (2) To screen out discipline or potential discipline issues against an individual officer and to forward
113 those issues to the Chief of Police for disciplinary process consistent with the Chief’s disciplinary
114 authority and the Commission’s role under XX-5.
115
116 If the Chair and Vice Chair refer a citizen complaint to the Chief of Police for discipline and also seek
117 to refer the citizen complaint to the Commission, the Chair and Vice Chair shall stay referral of the



 Page 9 of 99
 Page 4
 An Ordinance in Relation to


118 citizen complaint to the Commission until the discipline process, if any, is completed through any
119 grievance process involving the Commission.
120
121 (d) The Commission shall meet in executive session pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA
122 313(a)(4) to review all citizen complaints brought forward for review by the Chair and Vice Chair. The
123 Commission shall, by majority vote, direct the Chair to act on each complaint in one or more of the
124 following ways:
125
126 (1) If the allegations do not appear to merit further investigation, the Chair shall close the review
127 and inform the complainant and the Chief of Police that the Commission has elected not to
128 review the complaint any further.
129
130 (2) If the Commission believes further information is necessary, it shall decide by a majority of the
131 Commission how to proceed as laid out in the next section. The Chair will inform the Chief of
132 Police of the Commission’s decision.
133
134 (e) If the Commission votes to seek more information, it will also determine what kind of information is
135 necessary and shall be as specific as possible in its request to the Chief of Police. The Commission’s
136 options are:
137 (1) A review and summary from the Chief of Police or designee in either oral or written form.
138 (2) A request for Departmental documents associated with the complaint, including, but not limited
139 to, officer reports, Departmental reports, and any other supporting documents.
140 (3) A request to view any camera footage associated with the complaint. or
141 (4) Any other specific information associated with the complaint.
142
143 (f) The Chief of Police shall comply with such a request for information in a timely manner, but shall be
144 under no obligation to provide any specific piece of requested information if any of the following are
145 true about the specific piece of information:
146
147 (1) Providing the information would violate a state or federal law;
148 (2) Providing the information would violate an active court order;
149 (3) Providing the information would violate an agreement with a state or federal law enforcement
150 agency or governmental information sharing service;
151 (4) Providing the information would violate or compromise a right of confidentiality held by a
152 third-party; or
153 (5) Providing the information would compromise an on-going case or investigation with the
154 understanding that once such danger ended, the information would be provided unless it would
155 violate another portion of this section.
156
157 Sharing information under this ordinance shall occur within the confines of an executive session
158 pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 313(a)(4) and the Commission’s oversight authority as
159 a part of the City pursuant to section 184 of the City Charter. It shall not constitute a waiver of any
160 right that the City may have to claim an exemption to public inspection and copying of the records
161 under the Vermont Public Records Act (1 V.S.A. § 317). Commission possession or review is pursuant
162 to the Department’s primary possession under the Vermont Public Record Act.


 Page 10 of 99
 Page 5
 An Ordinance in Relation to


163
164 (g) If the Commission votes by a majority to challenge any denial of access to the requested Departmental
165 information, the City Attorney shall review the withholding and stated basis and shall issue an attorney-
166 client opinion to both the Commission and the Chief as to whether the withholding conforms to this
167 ordinance.
168
169 (h) The Commission may elect by majority vote to pause a review of a complaint if a pending prosecution
170 or litigation prevent the Commission from receiving critical pieces of Departmental information that it
171 has requested. The Commission shall inform the complainant of the pause and its anticipated length.
172
173 (i) Commissioners shall not communicate with any complainant, witnesses, or other individuals associated
174 with a review, except as such individuals may provide information directly to the Commission during
175 a public meeting or executive session. Any communication necessary between the Commission or a
176 Commissioner and the complainant, witnesses, or other individuals associated with the review shall go
177 through Commission staff, the City Attorney, or conflict counsel.
178
179 (j) The Commission shall draft findings, conclusions, and recommendations from its review. The City
180 Attorney shall assist the Commission in the creation of this report. This report shall be transmitted to
181 the Mayor and to the Chief of Police. This report shall be treated as an attorney-client document and
182 attorney-work product as recognized in Killington, Ltd. v.Lash, 153 Vt. 628 (1990). The Commission
183 may allow a redacted version of any such report to become public without waiving the confidentiality
184 of the underlying report.
185
186 (k) The Commission shall not make any disciplinary recommendations for individual officers in such a
187 report, but the Commission may make recommendations regarding the development or revision of
188 Policy and Directive, enforcement of existing policy and standards, and the implementation of training
189 directed at any issue or concern found by the Commission. The Commission can also recommend
190 larger structural changes and request that the Mayor or City Council consider such changes through a
191 separate, formal communication. The Commission may also recommend that the Chief of Police
192 conduct an internal affairs investigation based on the Report. The Commission may also forward a
193 copy of the report to the Vermont Criminal Justice Council for review and potential investigation under
194 20 V.S.A. § 2403.
195
196 (l) The Chief of Police shall implement the recommendations of the report to the extent possible. If the
197 Chief does not, the Chief shall note the recommendations not being adopted and a short basis for why
198 they are not being implemented. Such notice shall be sent to the Commission and the Mayor’s Office.
199 The Commission, by majority vote, may choose to respond to the Chief’s decision. If the Mayor agrees
200 with the Commission, the Mayor may recommend the adoption to the Chief of Police or refer to the
201 City Council for further consideration or action.
202
203 XX-5
204
205 To effectuate its purpose, the Police Commission shall, consistent with its authority under Sections 184 and
206 190 of the City Charter provide community feedback to potential disciplinary matters and provide grievance
207 process to the Police Department as follows:


 Page 11 of 99
 Page 6
 An Ordinance in Relation to


208
209
210 (a) The Chief of Police shall consult with the Police Commission prior to the imposition or non-imposition
211 of discipline against an officer in the Department. The purpose of the consultation is for the
212 Commission to provide any recommendations, input, or information to the Chief it deems necessary to
213 express the Community’s values underlying the incident. This process shall be conducted orally during
214 an executive session pursuant to 1 VSA 313(a)(4). At the discretion of the Chief, this consultation may
215 or may not include a discussion of any proposed disciplinary actions.
216
217 (b) To avoid a conflict with a subsequent grievance appeal as outlined in Section 190 of the City Charter,
218 a pre-disciplinary consultation under this section shall not be addressed to the full Commission but a
219 panel of no more than two Commissioners selected by the Chair who shall act as a consultation panel.
220 Any Commissioner that participates in a consultation panel shall not participate in a subsequent
221 grievance review and/or hearing arising from the particular discipline.
222
223 (c) The Chief of Police shall consider and incorporate the recommendations, input, and information from
224 the consultation panel of the Commission in a manner consistent with the Department rules, directives,
225 and standards, State and National Police Standards and Training, Burlington ordinances, Vermont and
226 federal law, and the Collective Bargaining Agreement. The Chief of Police’s decision shall be the final
227 decision and shall control any discipline imposed on a Burlington Police Department employee, subject
228 to the grievance procedure outlined in Sections 184 and 190 of the City Charter and any active
229 Collective Bargaining Agreement.
230
231
232
233 (d) If a Burlington Police Department Employee elects to grieve a discipline, the Commission shall hear
234 the grievance in accord with Section 190 of the Burlington City Charter and any active Collective
235 Bargaining Agreement. No Commissioner who participated in a consultation panel underlying the
236 discipline being appealed shall sit in review of the grievance. A quorum for a grievance hearing shall
237 constitute a simple majority of Commissioners who are not otherwise conflicted as defined in Section
238 133 of the Burlington City Charter from reviewing the grievance.
239
240 XX-6
241
242 Confidentiality of Records:
243
244 (a) Professional standards of confidentiality with regard to the work of the Commission shall apply to
245 all information presented to the Commission and to work product generated by the Commission or
246 by the City Attorney or conflict counsel. The Commission shall comply with all Burlington
247 ordinances, Vermont and Federal law, and shall maintain the confidentiality of any and all records
248 and documents received by the Commission in the course of their duties.
249
250 (b) The Commission shall, with the assistance of the City Attorney, draft a Code of Conduct and Ethics
251 for the Commission. This code shall include rules for maintaining confidentiality; protocols for



 Page 12 of 99
 Page 7
 An Ordinance in Relation to


252 handling confidential information; recusal; ethical standards for Commission members; and
253 procedures for executive sessions.
254
255 (c) Anytime the Commission discusses a specific matter under review, an individual, or a pending
256 complaint, the Commission shall enter into an Executive Session in accordance with 1 V.S.A. §
257 313.
258
259 (d) A Commissioner, upon taking office, shall take an oath or pledge to uphold and abide by the
260 Commission’s Code of Conduct and Ethics. If there is credible evidence that a Commissioner has
261 violated this oath and pledge, the Chair or Vice Chair of the Commission shall report to the
262 Mayor who may temporarily suspend the Commissioner pending a hearing and vote by the City
263 Council with Mayor presiding under Section 129 of the City Charter. A violation of the Code of
264 Conduct and Ethics shall constitute negligence or bad conduct regardless of the nature of the
265 breach, the intent of the breaching commissioner, or the impact of such a breach.




 Page 13 of 99
Page 14 of 99
Page 15 of 99
Page 16 of 99
Page 17 of 99
Page 18 of 99
Page 19 of 99
Page 20 of 99
 MEMORNDUM

To: Karen Paul, City Council President
 Dan Richardson, City Attorney

From: Jabulani Gamache and Stephanie Seguino, Co-Chairs, Burlington Police Commission

Date: April 22, 2022

Re: Burlington Police Commission Comments on Draft Ordinance on Police Commission Authority


The Burlington Police Commission (BPC) appreciates the opportunity to provide comments on the draft
ordinance on BPC authority, developed in response to the City’s Resolution on “Police Oversight and
Accountability Authorities to Police Commission to Alter the Police Disciplinary System” (adopted 10/18/21
and signed by the Mayor 11/23/21; hereafter the “Resolution”).

The Commission’s detailed comments are in red in the draft ordinance. In light of our review, the Commission
recommends the draft ordinance be revised and requests that the revision be resubmitted to the Commission for
review and additional comment.

In addition to our detailed comments, the Commission’s general comments on this draft are:

1. The ordinance should not be so detailed as to curtail the necessary flexibility of the Commission to develop
 and revise its own processes and procedures. Rather, broad strokes of authority should be identified in the
 ordinance, leaving the details to be outlined in individual policies developed by the Commission itself
 within the parameters of its delegated authority.

2. As a global comment on the substance of the Ordinance, the Commission reminds all stakeholders that
 Vermont law as interpreted by our Supreme Court and as reflected in the Charter, “envisions a police
 department created by town government, the operations of which are directed by a chief, but which is
 concurrently and ultimately subject to the authority of town government.” Turnley v. Town of Vernon,
 2012 VT 69, ¶ 18 (interpreting the balance of power, under 24 V.S.A. § 1931, between a police chief and
 the town’s legislative body (emphasis added.)). The Burlington Charter §§ 3-184, 3-185, as currently
 written, also reflects concurrent authority shared between the City Council and the police chief. But
 consistent with Vermont statute, that concurrent authority is ultimately exercised by the City Council,
 which can in turn delegate its authority to the Commission. Specifically, Section 3-185 makes clear that
 the “direction and control of the entire police force” is vested in the chief of police “except as...otherwise
 provided” in the Charter. That exception is significant because the Charter also empowers the City Council
 to delegate what the Supreme Court characterized as its “ultimate” authority over police department
 operations to the Commission. Charter § 3-184 (“The Board of Police Commissioners shall have such
 authority and responsibility relating to the management of the Police Department, its services, and
 facilities as may be delegated from time to time by resolution of the City Council.”). The ordinance must
 more fully reflect the law, under which ultimate authority over the operations of the police department
 reside with the City Council and, as delegated, with the Commission. Simply put, neither Vermont law nor
 the Charter support a notion that the chief’s authority relating to the management of the Police Department,
 its services, and facilities, is superior to that of the Commission acting under delegation from the City
 Council.

3. The ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of interest
 in many circumstances, undermining the independence that is critical to the Commission’s oversight role.
 The ordinance should reflect that the Commission, where necessary, relies on conflict counsel for guidance.

4. The ordinance should support transparency to the full extent permitted by the law.




 Page 21 of 99
5. The Resolution appropriates funds for the Commission’s work and expressly authorizes the Commission to
 “conduct investigations.” That authority is enough for the Commission to conduct investigations, although
 future appropriations from the City will be necessary to ensure that delegated authority can be exercised
 meaningfully by the Commission.

6. In numerous places, this ordinance interposes itself in ways that contradicts existing legislation. The City
 Council sets policy which it delegates to the Commission. In that regard, this ordinance does not include
 several key components of the Resolution that addresses the authority of the commission. These should be
 incorporated:

 a. The Commission is given the authority to retain outside legal counsel to support independent
 review of complaints.
 b. The Commission is given authority to investigate the chief or another appropriate authority and
 requires that any report of findings be returned to the commission.
 c. The Commission may speak publicly about citizen complaints in accordance with personnel
 policies and confidentiality requirements.
 d. The Commission is allocated a budget for legal services and investigations.
 e. The Resolution mandates that, under the ordinance, the Commission “will have full and unfettered
 access to the Department’s documentation of the incident, including officer affidavits, all witness
 statements, other investigative documents, and all videos.” The Resolution, as well as best
 practices identified by NACOLE and other experts in the field, recognize that this level of
 Commission access is essential to the Commission’s fulfillment of its mission under the Charter
 and State law.
 f. The Commission is fully and indefinitely authorized, under the Resolution and without need of
 further legislation such as the Ordinance, to initiate audits, reviews, and evaluations of policies,
 directives, or data in regard to discipline, racial disparities, or other Commission priorities. The
 Ordinance should recognize this authority verbatim, and must refrain from adding qualifications or
 restrictions on to it.




 Page 22 of 99
 CITY OF BURLINGTON
 ORDINANCE ___________
 Sponsor: Public Safety Committee
 Public Hearing Dates: ___________
 In the Year Two Thousand Twenty-Two _____________________________
 First reading: _________________
 Referred to: ___________________
 An Ordinance in Relation to Rules suspended and placed in all
 stages of passage: ______________
 Police Oversight and Accountability: Authorities to Police Second reading: ________________
 Commission to alter the Police Disciplinary System Action: ______________________
 Date: ________________________
 Signed by Mayor: ______________
 Published: ____________________
 Effective: _____________________

 It is hereby Ordained by the City Council of the City of Burlington as follows:

 1 That the Code of Ordinances of the City of Burlington be and hereby is amended to include Chapter XX:
 2 TITLE OF CHAPTER HERE, which shall read as follows:
 3

 4 Chapter XX Police Commission
 5 ARTICLE I. IN GENERAL


 6 XX-1.
 7
 8 (a) The general purpose of this chapter is to support principles of fair and impartial policing within the City of
 9 Burlington Police Department by adopting a procedure that defines the role of the Burlington Police
10 Commission in providing community-based input in the following areas:
11 (1) the development of Department policies and procedures;
12 (2) review of citizen complaints involving the Department or its members; and
13 (3) the discipline process.
14
15 This should be expanded to cover all complaints, including internal complaints—those filed by officers or
16 deputies within the overseen law enforcement agency—to provide law enforcement officers with a neutral
17 and independent outlet for reporting both officer misconduct and alleged retaliation for reporting
18 misconduct.
19
20
21 (b) Pursuant to Section 183 of the City Charter, the Board of Police Commissioners shall consist of seven (7)
22 legal voters of said city, to be appointed by the City Council with Mayor presiding to serve for three (3)
23 years and until their successors are appointed and qualified.
24
25
26 Terms should be staggered.
27
28 ARTICLE II. POWERS AND DUTIES
29 XX-2



 Page 23 of 99
 Page 2
 An Ordinance in Relation to


30
31 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
32 City Charter, review Police Department Policy and Directives as follows:
33
34 (a) At the behest of the Chief of Police or upon the Commission’s own initiative, the Commission shall
35 take up various Police Department Policies and Directives and review, evaluate, and audit these
36 Policies and Directives for their impact on police-community relations and public safety. The
37 Commission may also follow this same process in the development of new Policies or Directives for
38 areas where there are no existing Policies or Directives for the Department.
39
40 (b) From this review, the Commission shall propose recommended changes to the Policies and Directives
41 to the Chief of Police.
42
43 (c) The Chief of Police shall incorporate such changes, except where the changes would violate a state or
44 federal law, regulation, or standard; would violate a provision of the City’s Collective Bargaining
45 Agreement with officers in the Department; would result in a significant deterioration of public safety;
46 impinge upon an important, clearly identified law enforcement practice; would create substantial
47 liability or exposure to liability for the City as confirmed by the City Attorney; or would make it
48 impossible or impracticable for the Department to follow an identified best practice that is followed by
49 either a majority of Vermont municipalities or a significant number of municipalities of the same size
50 as the City of Burlington.
51
52 Strike section (c). Per NACOLE, civilian oversight boards typically have no statutory mechanism that would
53 resolve a disagreement. Rather, the process is that the department can either accept or reject policy and
54 directive revision. However, the civilian oversight body’s (i.e., the Commission’s) recommendations are
55 made publicly, so the department would require a compelling reason not to accept and implement the
56 recommendations, just as the civilian oversight body would be required to produce compelling evidence,
57 analysis, and information on national best practices to make it more likely that recommendations are
58 adopted.
59
60 Further, the Commission's existing authority under the Charter 3-184 is broader than reflected here:
61
62 “The Board of Police Commissioners shall have such authority and responsibility relating to the
63 management of the Police Department, its services, and facilities as may be delegated from time to
64 time by resolution of the City Council. Said Board shall notify the Mayor and the Chief
65 Administrative Officer, in writing, of any and all changes, modifications, or additions to the rules and
66 regulations of the Department.”
67
68 This language entitles the Mayor only to "notice" of changes, modifications, or additions. It neither gives the
69 Chief nor the Mayor discretion to reject or change them.
70
71
72 (d) If the Chief of Police invokes an exception to a Policy or Directive recommendation to either reject the
73 recommendation or modify the recommendation substantially, the Chief shall report to the
74 Commission, in writing and in a timely manner, the specific exception and the extent to which the


 Page 24 of 99
 Page 3
 An Ordinance in Relation to


 75 Chief is declining the recommendation. The Chief shall not be obligated to communicate in writing if
 76 the Chief accepts the Commission’s recommendation in whole or substantial part.
 77
 78 While the Charter does not empower the chief to reject Commission recommendations, the Commission
 79 acknowledges the value in setting a process under which it can receive and evaluate feedback from the Chief
 80 on proposed changes or additions to existing policy before finalizing those changes. This language is a helpful
 81 starting point for that advisory dialogue between the Chief and the Commission to precede the Commission’s
 82 exercise of its ultimate authority. Nonetheless, the draft should substitute “in a timely manner” with “15 days”.
 83 There should also be a process for the Chief to request an extension to that 15-day feedback window from the
 84 Commission. This extension request to the Commission should be made public and should be accompanied by
 85 an explanation from the Chief for the need for an extension.
 86
 87 (e) At the Commission’s next regularly scheduled meeting following a letter from the Chief notifying the
 88 Commission of a rejection or substantial modification to the Commission’s recommendation, the
 89 Commission shall review the letter and may either accept the Chief’s response or appeal the rejection
 90 or modification to the Mayor’s Office. In this decision, the Commission may engage the Chief for
 91 further clarification, but neither the Commission nor the Chief are obligated to such clarification if
 92 either feels satisfied with their prior recommendation or response.
 93
 94 Delete section (e). The mechanism described to reconcile differences on policies is beyond what most
 95 other oversight bodies have. As noted above, the best resolution mechanism is a high quality analysis
 96 on the part of the Commission and a similarly detailed response from the chief.
 97
 98
 99 (f) An appeal to the Mayor shall consist of a letter from the Commission laying out the reasons for its
100 recommendation and understanding as to why the stated exemption does not apply. An appeal to the
101 Mayor must be supported by a two-thirds majority of the Commission. The Chief shall have up to 14
102 days to submit to the Mayor any response to the Commission’s appeal.
103
104 As per above, this section should be removed, or revised, based on review of other ordinances on this issue
105 and on the fact that it interposes the Mayor as final arbiter in a manner that is not consistent with the Charter’s
106 division of authority. In any case, a simple majority would be sufficient since this is merely to request an
107 appeal.
108
109 (g) Upon receipt of an appeal, the Mayor may request a meeting with the Chief of Police and
110 representatives of the Commission, which may be more than one but shall not constitute a quorum for
111 public meeting purposes. Such meeting shall not be considered a meeting of the Police Commission
112 and shall not be subject to 1 V.S.A. § 312 but shall be considered a deliberative session intended to
113 inform the Mayor of the deliberative issues.
114
115 As per above, remove this section.
116
117 (h) The Mayor shall render a decision on the appeal in a timely manner. The Mayor’s decision shall be
118 final and no further appeals or process shall follow.
119



 Page 25 of 99
 Page 4
 An Ordinance in Relation to


120 As per above, remove this section.
121
122 (i) Nothing in this section shall be interpreted to restrict or limit the City Council’s independent legislative
123 powers under Section 48 of the City Charter.
124
125
126
127
128 XX-3
129
130 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
131 City Charter, compile and issue an annual report on citizen complaints and the disposition of such complaints,
132 officer discipline, and other pertinent initiatives the Commissions deems noteworthy by the second meeting of
133 the City Council in the month of November of each calendar year. Such report shall be drafted with assistance
134 from the City Attorney to avoid the use of private or protected information to ensure that the report can be
135 made public. The report shall not express opinions of Commission members on individual cases or pending
136 or potential litigation involving the City. The report will be published to the members of the City Council, the
137 Mayor and the Chief of Police, and representatives of the Commission and the Chief may present further
138 information to the City Council at the Council’s invitation.
139
140 Delete “in the month of November.” The Commission produces annual reports in July of each year as do other
141 Burlington commissions. November therefore is out of synch. Further, this type of detail in the ordinance does
142 not permit necessary flexibility in carrying out the Commission’s work.
143
144 As an official commission of the City of Burlington, the Commission is a “public agency” within the meaning
145 of Vermont Public Records Act 1 V.S.A. §§ 315-320. The Commission understands that it has obligations to
146 administer the law consistent with its stated policy that:
147
148 “It is the policy of this subchapter to provide for free and open examination of records consistent with Chapter
149 I, Article 6 of the Vermont Constitution. Officers of government are trustees and servants of the people and it
150 is in the public interest to enable any person to review and criticize their decisions even though such
151 examination may cause inconvenience or embarrassment. All people, however, have a right to privacy in their
152 personal and economic pursuits, which ought to be protected unless specific information is needed to review
153 the action of a governmental officer. Consistent with these principles, the General Assembly hereby declares
154 that certain public records shall be made available to any person as hereinafter provided. To that end, the
155 provisions of this subchapter shall be liberally construed to implement this policy, and the burden of proof
156 shall be on the public agency to sustain its action.”
157
158 Where that law creates exceptions to disclosure that affect the presentation of information called for in the
159 annual report, the Commission understands that the law contains mechanisms to achieve the balance between
160 the public’s right to know and personal privacy. See 1 V.S.A. § 318(e) (allowing for redaction of information
161 that is exempt from public disclosure while other nonexempt information can be disclosed).
162
163 Consistent with the law’s requirements, the report has been and should continue to be a public record available
164 for public inspection and copying. The city attorney should not be involved in the preparation of this report.


 Page 26 of 99
 Page 5
 An Ordinance in Relation to


165 Complaint policy and the Vermont Public Records Act should guide the preparation of such reports as regards
166 confidentiality.
167
168
169 However, the ordinance should include language that chiefs must provide a written response as to why or why
170 not they agree/disagree with Commission findings on complaints, and those responses should become public
171 in annual reports. This is key to transparency, accountability, and the independent role of the commission.
172
173
174 XX-4
175
176 To effectuate its purpose, the Police Commission shall, consistent with its authority under Section 184 of the
177 City Charter review citizen complaints as follows:
178
179 (a) A complaint by a member of the public, hereinafter referred to as “a citizen complaint,” concerning the
180 Department or an employee of the Department may be filed either with the Department or directly with
181 the Police Commission. Any citizen complaint filed with the Department shall be forwarded in a timely
182 manner to the Chair of the Police Commission.
183
184 Delete “by a member of the public, hereafter referred to as a citizen complaint” and “citizen” in last
185 sentence. Maintain current practice and policy in which all Commissioners receives complaints at the
186 same time as the BPD. Add language to provide a process by which the Commission receives transcript
187 of verbal complaints to the BPD within 3 days.
188
189 Accommodate possibility of co-chairs of commission.
190
191 (b) The purpose of the Commission’s review of a citizen complaint is to identify gaps in policy, practice,
192 enforcement, and training where police department activities concern community standards and
193 expectations. The review process under this Section is not a disciplinary process and should not be
194 used as such.
195
196 This deviates from the current complaint policy which was authorized and sanctioned by the police
197 chief and then city attorney. The role of a review oversight body such as ours is to review disposition
198 of complaints as regards not only gaps in policy but also assessment of the extent to which policy was
199 adhered to. Therefore, the ordinance should reflect this role, with the Commission’s purpose being to
200 weigh in on disciplinary issues and in particular to identify cases in which policies were not followed.
201
202
203 (c) The Chair and Vice-Chair of the Police Commission shall screen each citizen complaint and, if
204 appropriate, present them to the Commission for review. The purpose of this initial screening shall be
205 as follows:
206
207 (1) To eliminate any complaint that the Chair and Vice Chair agree does not present a valid, relevant,
208 or current issue on which the Commission can reasonably review or investigate; and



 Page 27 of 99
 Page 6
 An Ordinance in Relation to


209 (2) To screen out discipline or potential discipline issues against an individual officer and to forward
210 those issues to the Chief of Police for disciplinary process consistent with the Chief’s disciplinary
211 authority and the Commission’s role under XX-5.
212
213 The Commission should determine its own process for triage of complaints. The full commission receives all
214 complaints now and that should continue. It should be the collective decision of Commissioners on which
215 complaints to review or not. Delete (2). To exclude the commission from complaints that may have disciplinary
216 implications would essentially undermine and negate the role of the civilian oversight body.
217
218 If the Chair and Vice Chair refer a citizen complaint to the Chief of Police for discipline and also seek
219 to refer the citizen complaint to the Commission, the Chair and Vice Chair shall stay referral of the
220 citizen complaint to the Commission until the discipline process, if any, is completed through any
221 grievance process involving the Commission.
222
223
224
225 As per above, this should be struck.
226
227 (d) The Commission shall meet in executive session pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA
228 313(a)(4) to review all citizen complaints brought forward for review by the Chair and Vice Chair. The
229 Commission shall, by majority vote, direct the Chair to act on each complaint in one or more of the
230 following ways:
231 (1) If the allegations do not appear to merit further investigation, the Chair shall close the review
232 and inform the complainant and the Chief of Police that the Commission has elected not to
233 review the complaint any further.
234 (2) If the Commission believes further information is necessary, it shall decide by a majority of the
235 Commission how to proceed as laid out in the next section. The Chair will inform the Chief of
236 Police of the Commission’s decision.
237
238 While it is useful to have the complaint process outlined in detail, the Commission is in the
239 process of revising that process based on our experience in the last two years and input from
240 NACOLE. Defining the process is the role of the commission and should not appear in an
241 ordinance since by so doing, it reduces the flexibility of the Commission to revise processes as
242 deemed necessary.
243
244 The current complaint policy should be followed in regards to assessing the level of the
245 complaint (low, medium or high) with the exception that the Commission determines the level
246 of the complaint rather than the chief. The goal of an independent civilian oversight body is to
247 promote transparency, accountability, and trust, the Commission’s role should be able to
248 request an investigation of any complaint, and in particular those it deems high level. Most
249 oversight agencies do investigations of all complaints.
250
251
252




 Page 28 of 99
 Page 7
 An Ordinance in Relation to


253 (e) If the Commission votes to seek more information, it will also determine what kind of information is
254 necessary and shall be as specific as possible in its request to the Chief of Police. The Commission’s
255 options are:
256 (1) A review and summary from the Chief of Police or designee in either oral or written form.
257 (2) A request for Departmental documents associated with the complaint, including, but not limited
258 to, officer reports, Departmental reports, and any other supporting documents.
259 (3) A request to view any camera footage associated with the complaint. or
260 (4) Any other specific information associated with the complaint.
261
262 This section should be revised to reflect the City Council resolution which gives the Commission unfettered
263 access to any information the BPD avails itself of in conducting investigations of complaints. The Commission
264 should have the opportunity to require an independent investigation if it sees fault with an investigation that
265 BPD conducted.
266
267 (f) The Chief of Police shall comply with such a request for information in a timely manner, but shall be
268 under no obligation to provide any specific piece of requested information if any of the following are
269 true about the specific piece of information:
270
271 (1) Providing the information would violate a state or federal law;
272 (2) Providing the information would violate an active court order;
273 (3) Providing the information would violate an agreement with a state or federal law enforcement
274 agency or governmental information sharing service;
275 (4) Providing the information would violate or compromise a right of confidentiality held by a
276 third-party; or
277 (5) Providing the information would compromise an on-going case or investigation with the
278 understanding that once such danger ended, the information would be provided unless it would
279 violate another portion of this section.
280
281 Sharing information under this ordinance shall occur within the confines of an executive session
282 pursuant to 1 VSA 313(a)(1)(D) and/or 1 VSA 313(a)(4) and the Commission’s oversight authority as
283 a part of the City pursuant to section 184 of the City Charter. It shall not constitute a waiver of any
284 right that the City may have to claim an exemption to public inspection and copying of the records
285 under the Vermont Public Records Act (1 V.S.A. § 317). Commission possession or review is pursuant
286 to the Department’s primary possession under the Vermont Public Record Act.
287
288 Replace “timely manner” with 10 days. The Commissioners have expressed an interest in moving
289 toward best practice as defined by NACOLE in which hearings are held in public session with
290 appropriate steps taken to protect confidentiality as required by policies and the BPOA contract. As
291 written this section is at odds with the goal of transparency and accountability and should be revised to
292 reflect best practices.
293
294 (g) If the Commission votes by a majority to challenge any denial of access to the requested Departmental
295 information, the City Attorney shall review the withholding and stated basis and shall issue an attorney-
296 client opinion to both the Commission and the Chief as to whether the withholding conforms to this
297 ordinance.


 Page 29 of 99
 Page 8
 An Ordinance in Relation to


298
299 The City Council resolution delineates the Commission shall have unfettered access to all information
300 the BPD had when it made their disposition of the case. That should be reflected in this ordinance. The
301 ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of interest in
302 many circumstances, undermining the independence that is critical to the Commission’s oversight role.
303 The ordinance should reflect that the Commission, where necessary, relies on conflict counsel for
304 guidance.
305
306
307
308 (h) The Commission may elect by majority vote to pause a review of a complaint if a pending prosecution
309 or litigation prevent the Commission from receiving critical pieces of Departmental information that it
310 has requested. The Commission shall inform the complainant of the pause and its anticipated length.
311
312 (i) Commissioners shall not communicate with any complainant, witnesses, or other individuals associated
313 with a review, except as such individuals may provide information directly to the Commission during
314 a public meeting or executive session. Any communication necessary between the Commission or a
315 Commissioner and the complainant, witnesses, or other individuals associated with the review shall go
316 through Commission staff, the City Attorney, or conflict counsel.
317
318 Section (i) should be deleted. The Commission’s practice is to communicate directly with complainants to:
319 1) acknowledge the complaint, 2) provide a copy of the complaint policy, and 3) provide updates on status of
320 complaint. The language in (i) oversteps the role of an ordinance. Details on how complaints are handled
321 should be in the complaint policy, not the ordinance. The ordinance’s insertion of the city attorney into the
322 work of the Commission creates a conflict of interest in many circumstances, undermining the independence
323 that is critical to the Commission’s oversight role.
324
325 These comments are consistent with NACOLE’s recommendations. According to NACOLE, the complaint
326 process is more likely to be perceived as fair and transparent if complainants receive regular updates
327 regarding their complaint and can obtain status updates at any time. Communicating with complainants by
328 providing status updates throughout the process is one way that civilian oversight agencies can assure
329 members of the public that they are handling their complaints seriously and actively.
330
331 Once a complaint has been adjudicated or after a disciplinary decision has been made, the civilian oversight
332 agency should invite complainants to an in-person closeout meeting. Closeout meetings allow the oversight
333 agency to describe the investigative process, explain how and why decisions were made, and demonstrate
334 that the complaint was resolved neutrally and impartially. In turn, this promotes legitimacy and public
335 confidence in the oversight process. Closeout meetings furthermore provide the oversight agency with an
336 opportunity to collect information regarding how complainants feel about the complaint process as a whole.
337 Once a complaint has been adjudicated or after a disciplinary decision has been made, the civilian oversight
338 agency should invite complainants to an in-person closeout meeting.
339
340 More generally, it is the Commission that should lay out the complaint process in its policy—again, allowing
341 for needed flexibility—rather than stipulating such details in an ordinance.
342



 Page 30 of 99
 Page 9
 An Ordinance in Relation to


343
344 (j) The Commission shall draft findings, conclusions, and recommendations from its review. The City
345 Attorney shall assist the Commission in the creation of this report. This report shall be transmitted to
346 the Mayor and to the Chief of Police. This report shall be treated as an attorney-client document and
347 attorney-work product as recognized in Killington, Ltd. v.Lash, 153 Vt. 628 (1990). The Commission
348 may allow a redacted version of any such report to become public without waiving the confidentiality
349 of the underlying report.
350
351 The ordinance’s insertion of the city attorney into the work of the Commission creates a conflict of
352 interest in many circumstances, undermining the independence that is critical to the Commission’s
353 oversight role. Such reports should continue to be developed with input from conflict counsel only, who
354 shall provide guidance on redaction for purposes of making findings public.
355
356 (k) The Commission shall not make any disciplinary recommendations for individual officers in such a
357 report, but the Commission may make recommendations regarding the development or revision of
358 Policy and Directive, enforcement of existing policy and standards, and the implementation of training
359 directed at any issue or concern found by the Commission. The Commission can also recommend
360 larger structural changes and request that the Mayor or City Council consider such changes through a
361 separate, formal communication. The Commission may also recommend that the Chief of Police
362 conduct an internal affairs investigation based on the Report. The Commission may also forward a
363 copy of the report to the Vermont Criminal Justice Council for review and potential investigation under
364 20 V.S.A. § 2403.
365
366 The Commission should be able to recommend coaching for officers who are the subject of complaints
367 and should be able to provide feedback on proposed discipline.
368
369 Further, this sentence should be deleted “The Commission may also recommend that the Chief of Police
370 conduct an internal affairs investigation based on the Report.” As written, this would require the
371 Commission to engage in decision-making on a complaint before an investigation is actually done. The
372 Commission needs as many facts as possible when determining next steps in and therefore, access to that
373 information, based on an investigation, should be available prior to issuing a report on a complaint.
374
375 (l) The Chief of Police shall implement the recommendations of the report to the extent possible. If the
376 Chief does not, the Chief shall note the recommendations not being adopted and a short basis for why
377 they are not being implemented. Such notice shall be sent to the Commission and the Mayor’s Office.
378 The Commission, by majority vote, may choose to respond to the Chief’s decision. If the Mayor agrees
379 with the Commission, the Mayor may recommend the adoption to the Chief of Police or refer to the
380 City Council for further consideration or action.
381
382 Delete “short” in the second line of section (l). If the chief disagrees in whole or in part with the Commission’s
383 recommendations, he/she should submit a written report to the Commission within 15 days. Requiring a
384 majority vote for the commission to respond to the chief’s decision goes beyond what should be in an
385 ordinance. This should be part of the Commission’s complaint policy. Include a phrase that indicates the mayor
386 will inform the Commission of the reasons for his or her decision with regard to the adoption of the
387 Commission’s findings.


 Page 31 of 99
 Page 10
 An Ordinance in Relation to


388
389 This is also one of several examples of a section in the draft ordinance where the Chief’s authority is unlawfully
390 elevated above that of the Commission, subject to arbitration by the Mayor. It is, therefore, inconsistent with
391 the Charter, as interpreted in light of the Supreme Court’s recognition that state law establishes a system in
392 which “ultimate” authority over the direction of the police department rests with Town government, not with
393 the chief of police. See Turnley v. Town of Vernon, 2012 VT 69, ¶ 18. Under Burlington’s City Charter, the
394 City Council “shall make rules for the government of the entire police force” and may, by resolution, delegate
395 that authority to the Commission. Charter § 3-184. The mayor’s authority under the Charter is limited only to
396 receiving notice of the “changes, modifications, or additions to the rules and regulations of the Department”
397 made by the City Council or the Commission as the case may be. Id.
398
399
400 XX-5
401
402 To effectuate its purpose, the Police Commission shall, consistent with its authority under Sections 184 and
403 190 of the City Charter provide community feedback to potential disciplinary matters and provide grievance
404 process to the Police Department as follows:
405
406
407 The Commission requests a legal opinion on who can grieve – complainants as well as officers?
408
409
410 (a) The Chief of Police shall consult with the Police Commission prior to the imposition or non-imposition
411 of discipline against an officer in the Department. The purpose of the consultation is for the
412 Commission to provide any recommendations, input, or information to the Chief it deems necessary to
413 express the Community’s values underlying the incident. This process shall be conducted orally during
414 an executive session pursuant to 1 VSA 313(a)(4). At the discretion of the Chief, this consultation may
415 or may not include a discussion of any proposed disciplinary actions.
416
417 The Commission will reserve further comment on those sections of the ordinance that deal with the
418 Commission’s role in determining discipline until such time as it receives the requested opinion on the
419 question of who may access the appeal process.
420
421
422 (b) To avoid a conflict with a subsequent grievance appeal as outlined in Section 190 of the City Charter,
423 a pre-disciplinary consultation under this section shall not be addressed to the full Commission but a
424 panel of no more than two Commissioners selected by the Chair who shall act as a consultation panel.
425 Any Commissioner that participates in a consultation panel shall not participate in a subsequent
426 grievance review and/or hearing arising from the particular discipline.
427
428 This should be revised such that a 4-person consultation panel reviews discipline, with 3 Commissioners then
429 available to serve on a grievance panel.
430
431 (c) The Chief of Police shall consider and incorporate the recommendations, input, and information from
432 the consultation panel of the Commission in a manner consistent with the Department rules, directives,


 Page 32 of 99
 Page 11
 An Ordinance in Relation to


433 and standards, State and National Police Standards and Training, Burlington ordinances, Vermont and
434 federal law, and the Collective Bargaining Agreement. The Chief of Police’s decision shall be the final
435 decision and shall control any discipline imposed on a Burlington Police Department employee, subject
436 to the grievance procedure outlined in Sections 184 and 190 of the City Charter and any active
437 Collective Bargaining Agreement.
438
439
440
441 (d) If a Burlington Police Department Employee elects to grieve a discipline, the Commission shall hear
442 the grievance in accord with Section 190 of the Burlington City Charter and any active Collective
443 Bargaining Agreement. No Commissioner who participated in a consultation panel underlying the
444 discipline being appealed shall sit in review of the grievance. A quorum for a grievance hearing shall
445 constitute a simple majority of Commissioners who are not otherwise conflicted as defined in Section
446 133 of the Burlington City Charter from reviewing the grievance.
447
448 XX-6
449
450 Confidentiality of Records:
451
452 (a) Professional standards of confidentiality with regard to the work of the Commission shall apply to
453 all information presented to the Commission and to work product generated by the Commission or
454 by the City Attorney or conflict counsel. The Commission shall comply with all Burlington
455 ordinances, Vermont and Federal law, and shall maintain the confidentiality of any and all records
456 and documents received by the Commission in the course of their duties.
457
458 (b) The Commission shall, with the assistance of the City Attorney, draft a Code of Conduct and Ethics
459 for the Commission. This code shall include rules for maintaining confidentiality; protocols for
460 handling confidential information; recusal; ethical standards for Commission members; and
461 procedures for executive sessions.
462
463 (c) Anytime the Commission discusses a specific matter under review, an individual, or a pending
464 complaint, the Commission shall enter into an Executive Session in accordance with 1 V.S.A. §
465 313.
466
467 (d) A Commissioner, upon taking office, shall take an oath or pledge to uphold and abide by the
468 Commission’s Code of Conduct and Ethics. If there is credible evidence that a Commissioner has
469 violated this oath and pledge, the Chair or Vice Chair of the Commission shall report to the
470 Mayor who may temporarily suspend the Commissioner pending a hearing and vote by the City
471 Council with Mayor presiding under Section 129 of the City Charter. A violation of the Code of
472 Conduct and Ethics shall constitute negligence or bad conduct regardless of the nature of the
473 breach, the intent of the breaching commissioner, or the impact of such a breach.
474
475 The Commission has indicated it will develop a code of ethics. The draconian language on holding a hearing
476 if a person even inadvertently violates the code (such has by hitting reply to all on an email by mistake, thus
477 violating confidentiality) would deter people from being willing on the Commission. This portion of the


 Page 33 of 99
 Page 12
 An Ordinance in Relation to


478 ordinance should be struck, retaining only the first sentence of (d). The Commission questions whether such
479 language applies to any other Burlington commissions.
480
481




 Page 34 of 99
Page 35 of 99
Page 36 of 99
Page 37 of 99
Page 38 of 99
Page 39 of 99
Page 40 of 99
Page 41 of 99
Page 42 of 99
Page 43 of 99
Page 44 of 99
Page 45 of 99
Page 46 of 99
Page 47 of 99
Page 48 of 99
Page 49 of 99
Page 50 of 99
Page 51 of 99
Page 52 of 99
l. Office of Mayor Miro Weinberger




 MEMORANDUM

TO: City Council
FROM: Mayor Miro Weinberger
DATE: December 7, 2020
RE: Police Oversight Charter Change

At tonight’s meeting, the Council will deliberate on a proposal to change our City Charter to include
a new model of oversight for the Burlington Police Department. This is an important discussion that
I welcome. I am committed to forging a new consensus on policing in Burlington that has support
from both the community and the police department, and achieving that will require structural
reforms to our oversight models and processes for administering officer discipline.

Background: Recent changes have been made to disciplinary process
Our Administration has taken recent actions related to disciplinary decisions. First, during Chief
Morrison’s tenure as Acting Chief she codified into policy the practice begun several years ago that
the Chief shall consult with the Police Commission in advance of major disciplinary decisions.
Second, this fall, I issued an Executive Order requiring the Chief of Police to formally present to the
Mayor and other senior officials all disciplinary decisions for use of force incidents that result in
injury to an individual or raise significant public concern before the Chief issues the decision.

The Administration supports changing charter to check sole disciplinary authority of Chief
These recent steps are not enough. Members of the public have made clear that they want to see
greater accountability from its elected officials for police disciplinary decisions, and I agree. Elected
officials and Police Commissioners, who are ultimately held accountable for police conduct, should
have the opportunity to meaningfully weigh in when problematic police conduct occurs.

Further, as I have stated repeatedly over the last year, I find the near-absolute authority over
discipline granted to the Chief by our Charter to be problematic and a departure from our typical
practice of having democratic checks and balances. In order to address this issue we will need a
Charter Change.

Charter Change proposed by Councilor Freeman lacks current consensus
While Councilor Freeman and I have disagreed on numerous policing issues, I respect her deep
commitment to public safety policy and can see that she and her colleagues have worked very hard
and diligently on her proposed new language.

Unfortunately, it is clear from discussions at the Charter Change Committee and the Joint
Committee meeting last week, and from yesterday’s letter that we received from the Police
Commission that there remain significant concerns and unanswered questions about the current
proposal. The Administration shares many of the concerns expressed by the Commission, and I
believe some Councilors have concerns as well.




 Page 53 of 99
While perhaps Councilor Freeman’s proposal could reach the votes in needs for Council passage, it
clearly currently lacks the consensus that would benefit its chances of ultimate success if it were to
go on the Town Meeting Day ballot, reach the State Legislature, and get to the desk of the Governor.
If the Charter Change does not pass all of those tests, we will have set back the opportunity to make
changes to the problematic status quo for a full year.

Administration alternative offered in interest of securing consensus by key deadline
I have called a Special Meeting of the City Council for Monday, December 14 to give us an additional
week for the City Council to initiate the Charter Change process by warning a public hearing on
specific Charter Change language (to be clear: I have taken this step because we know the Charter
Change For Building Decarbonization needs an additional week of work, and a meeting on that date
gives the police discipline charter change additional time as well). If this step does not happen at
the December 14 meeting we will lose the opportunity to initiate the charter change process for
another year.

In the interest of moving us towards a Charter Change on police discipline that could garner broad
consensus, the Administration is offering the attached Charter Change language. Our proposal
would give the Police Commission and the Mayor the ability to have input on disciplinary decisions,
and gives the Commission significant additional investigatory powers beyond what they have
today, as well as ultimate decision making authority in disciplinary cases there this is strong
Commission disagreement with the Chief. The proposed changes would:

  Formalize that the Police Commission will receive and review all civilian complaints of
 alleged police misconduct, and formalizes a role for the Police Commission in the discipline
 of Police Officers by requiring the Police Chief to consult with the Commission in advance of
 administering discipline.
  Task the Police Commission to issue a quarterly report on complaints, discipline, and other
 activities.
  Gives the Mayor the authority to review and give input on investigation results or proposed
 discipline.
  Gives the Police Commission the authority to hire an independent investigator to conduct or
 review allegations into alleged serious misconduct.
  Gives the Police Commission the authority to hold a hearing, make findings, and issue a final
 decision if a supermajority of the Commission continues to disagree with the Chief’s
 findings and recommended discipline.

I would welcome and fully engage in a focused process between Councilors, stakeholders, and the
Administration over the next week to review this proposal alongside the Councilor Freeman’s
proposal in an attempt to find common ground by next Monday’s deadline.




 Page 54 of 99
DRAFT CHARTER CHANGES FROM ADMINISTRATION
December 3, 2020


ARTICLE 62. POLICE DEPARTMENT
183 Board of police commissioners; composition; terms.
The board of police commissioners shall consist of seven (7) legal voters of said city, to be
appointed by the city council with mayor presiding to serve for three (3) years and until their
successors are appointed and qualified. The composition of the commission should represent the
diversity of Burlington’s residents, particularly including members of groups who historically
have been marginalized.
(Act No. M-18, § 2, approved 3-1-16)
184 Same-powers and duties.
(a) The city council shall make rules and regulations for the government of the entire police
force and shall fix the qualifications of applicants for positions and service on said force and the
chief of police shall furnish the city council with any information they may require concerning
the finances of the police department. The chief of police shall be responsible for all
expenditures made by the police department and no expenditures shall be made by the
department except in conformity with the standards promulgated by the city council.
(b) The board of police commissioners shall receive and review all civilian complaints of
alleged police misconduct, may review any other complaints against police officers that it deems
in the public interest, and shall have a role in the discipline of officers as in section 189 of this
Charter. The board shall have such other authority and responsibility relating to the management
of the police department, its services and facilities, as may be delegated from time to time by
resolution of the city council. Said board shall notify the mayor and the chief administrative
officer, in writing, of any and all changes, modifications or additions to the rules and regulations
of the department and shall issue quarterly reports on complaints, discipline, and other activities.
ARTICLE 63. CHIEF OF POLICE AND CAPTAIN
185 Officers of police force designated.
(a) The direction and control of the entire police force, except as herein otherwise provided,
shall be vested in a police officer who shall be called the chief of police, and such other ranking
police officers as the city council shall authorize, subject to the rules and regulations of the city
council. The order of rank and succession within the police department shall be as designated by
the city council by regulation.
(b) Except as herein otherwise provided, such officers shall have the powers and duties granted
to police officers by Vermont law and assigned to them by regulations adopted under
section 184 of this Charter.




 Page 55 of 99
ARTICLE 64. APPOINTMENT OF POLICE OFFICERS
186 Manner of filling vacancies.
Whenever a vacancy occurs in any other position, the chief may appoint a successor.
(Act No. M-14, § 4, approved 5-19-2004)
187 Force to be maintained; selection of members.
A regular police force for said city shall be maintained in the city. No applicant shall be deemed
qualified for employment on said force until he or she has been approved by the chief of police.
The process for determining the qualifications of and employing police officers shall fully
comply with any criteria established by the board of police commissioners and the city’s
comprehensive personnel policy manual as the same may be amended from time to time.
(Act No. M-14, § 5, approved 5-19-2004)
188 Manner of appointment.
The chief shall, from time to time, as the needs of the city may require, appoint from the
approved applicants. If the name of the applicant has been on the approved list for more than six
months, the applicant shall take and pass a new examination by the board of medical examiners
before being appointed.
(Act No. M-14, § 6, approved 5-19-2004)
189 Members of force to be retained as long as they remain competent.
The members of said regular police force now serving, or who shall hereafter be appointed
thereto, shall, after the expiration of the one-year probationary period above provided, and so
long as they shall remain competent, efficient and capable in the performance of their respective
duties be retained as such, subject to the rules and regulations adopted under Section 184 of this
Charter and provided that any member may be removed for cause as hereinafter provided.
ARTICLE 65. REMOVAL OR SUSPENSIONDISCIPLINE OF POLICE OFFICERS
190 Chief may remove member for cause; hearing.
(a) Whenever it shall appear to the chief that any member of said force has become
incompetent, inefficient or incapable from any cause, or is or has been negligent or derelict in his
or her official duty, or is guilty of any misconduct in his or her private or official life, or
whenever any well-grounded complaints or charges to such effect are made in writing to the
chief or the board of police commissioners by a responsible person against such member, the
chief may investigate and, after appropriate notice and hearing, dismiss such member from the
force, order a reduction in rank, or suspend the member without pay for a specified time period
in excess of 14 days, or take other appropriate disciplinary action. In connection with any
possible dismissal, demotion, or suspension for more than 14 days, the chief’s notice to the
member shall be given at least 48 hours prior to any hearing and shall include a description of the
charges being considered. In connection therewith, the chief shall have the power to subpoena




 Page 56 of 99
witnesses and to administer the oath to such witnesses. The board of police commissioners shall
hear any appeal filed in a timely manner with respect to such actions of the police chief. The
time of filing an appeal and the nature of the appellate process shall be as determined by such
board of regulation. Following its consideration of any such appeal, the board may affirm,
modify, or vacate the decision made by the police chief.
(b) Before the chief takes any final action or closes any matter alleging that a police officer has
been negligent or derelict in their duty or is guilty of any misconduct, the results of any
investigation and any proposed response or discipline must be reviewed with the police
commission, which may make recommendations to the chief. In addition, the mayor should have
authority to review and give input on any investigation results or proposed response or
discipline. In connection with any investigation of officer misconduct, the commission and the
mayor should have access to all police department materials related to the investigation including
tapes, transcripts, investigator’s notes, witness statements, and other documents
(c) The board of police commissioners may hire an independent investigator to conduct or
review any investigation into alleged serious misconduct, if by a majority vote it determines an
independent investigation warranted. The results of that investigation would be shared with the
chief who would provide the board with a proposed response, including any discipline of an
officer.
(d) If after providing input to the chief on the department’s proposed response in any allegation
of serious misconduct and giving the chief a reasonable opportunity to amend the proposal, at
least six members of the commission continue to disagree with the chief’s proposal, the
commission may hold a hearing, make findings, and issue a final decision, which will be
considered a final agency action appealable to the Vermont Superior Court. In connection with
any possible dismissal, demotion, or suspension for more than 14 days, the notice to the member
shall be given at least 48 hours prior to any hearing and shall include a description of the charges
being considered. In connection therewith, the board of police commissioners shall have the
power to subpoena witnesses and to administer the oath to such witnesses. The hearing will
include, at minimum, a right for the accused officer to cross-examine and present witnesses and
to be represented by counsel.
(be) Whenever it shall appear to the mayor that the chief has become incompetent, inefficient,
or incapable from any cause, or has been negligent or derelict in his or her official duty, or is
guilty of any misconduct in his or her private or official life, or whenever any well-grounded
complaints or charges to such effect are made in writing to the mayor by a responsible person,
the mayor may suspend the chief from duty, the city council shall forth with notify the chief of
the charges preferred by them, or of the complaints or charges presented by such responsible
person in writing, and shall thereupon proceed to consider and investigate the same. It shall
appoint a time and place for the hearing of such complaints and charges so made, shall give the
chief reasonable notice of the same, not less than 48 hours, and the city council shall have the
power to subpoena witnesses and to administer the oath to such witnesses.




 Page 57 of 99
(cf) If, upon hearing, the city council shall find such complaints or charges to be well founded,
it may dismiss the chief from the force, demote him or her in rank, or suspend him or her without
pay for a period not to exceed 60 days. The procedures outlined in this section shall control in
the event of any conflict with section 129 of this Charter as pertains to the removal of the chief.
(dg) The chief may, without notice or hearing for any infraction, violation, or disobedience of
any of the rules and regulations of the police department that may seem to the chief sufficient,
suspend from duty without pay any member of the police force for a period not to exceed 14
days.
(Act No. M-14, § 7, approved 5-19-2004)




 Page 58 of 99
Page 59 of 99
Page 60 of 99
Page 61 of 99
Page 62 of 99
Page 63 of 99
Page 64 of 99
Page 65 of 99
Page 66 of 99
Page 67 of 99
Page 68 of 99
Page 69 of 99
Page 70 of 99
Page 71 of 99
Page 72 of 99
Page 73 of 99
Page 74 of 99
Page 75 of 99
Page 76 of 99
Page 77 of 99
Page 78 of 99
l.
 Office of Mayor Miro Weinberger


 MEMORANDUM

TO: City Council
FROM: Mayor Miro Weinberger
DATE: December 31, 2020
RE: Veto of Charter Change re: Independent Community Control Board and Call for
 Collaboration and Progress

Pursuant to Article 18 – Section 46 of the Burlington City Charter, which authorizes the mayor to
veto any action of the City Council, I am returning the “Independent Community Control Board To
Oversee Investigation And Discipline Of Police Misconduct Charter Change” (“Charter Change”)
passed at the Council’s December 14 meeting to you unsigned and providing you my written
objections to it below.

I send you this communication while still desiring to find a route to come together and unite behind
a proposal that will forge new consensus on this critical policing issue and represent meaningful
racial justice for our BIPOC communities. As I detail below, I remain ready to meet with City Council
President Max Tracy and other councilors to try to find common ground that would allow me to
rescind this veto before you take final action on this matter Monday night.

If we cannot find consensus now and my veto is sustained, we must find other ways to make near
term progress on the issue of police discipline and reforms that protect and build trust with the
public, especially BIPOC communities. Therefore, this letter also includes a plan for implementing
improvements to the police discipline system immediately, and bringing a Charter Change for the
beginning of the 2022 session should my veto stand after Monday night.

Objections to the December 14 Charter Change Proposal
My overriding objection to the proposed charter change is that as written it will contribute
to the dismantling of the Burlington Police Department and compromise the City’s ability to
ensure public safety.

In the short-term, placing the Charter Change on the ballot is likely to accelerate the
departures of sworn officers from the department. The department is already down 20% from
its maximum staffing levels, perhaps the largest reductions of officers of any department in the
country since the national protests of last summer. Putting the current divisive and controversial
Charter Change on the ballot will give further fuel to this trend, and likely hasten the day in which
the City will need to stop staffing an overnight shift and cut back on other basic public safety
services that residents expect.

Over the medium and long-term, the proposed Charter Change, if adopted, will have even
greater impacts on the City’s ability to field an effective police department. The current
proposal will cause concerns for prospective police officers and department leaders, because the
board appears designed to be hostile to police officers. An Oversight Board should be required to
adjudicate discipline fairly and impartially, or hew to defined standards. Further, the removal of the




 Page 79 of 99
Chief of Police from having a role in all serious disciplinary decisions is unique within all the models
we have reviewed, and its impacts on the operations of the department are unknown and a cause of
deep concern.

A further serious problem of the Charter Change proposal is that it is so detailed that serious
errors and unintended problems are likely, and they will be very difficult to react to or fix. As
this Charter Change proposal was being developed, the City Attorney and City Councilors
recommended that the authors draft critical, broad authorizing language, and leave important
details to be set through ordinances in future City Council action. Instead, in a significant break
from best practice, the Councilors who led this effort have included large amounts of detailed, new,
untested language. As a result, if passed, errors and unintended problems arising out of that new
language will be baked into the Charter, making them inherently challenging to respond to and
address. Future evolutions and improvements of the new system that the City desires to make are
also likely to require charter changes. This structured rigidity is likely to create festering problems
and serious challenges for public safety in the years to come.

Finally, while I would not veto the proposal over this issue alone, it is also problematic that the
proposal does nothing to increase the ability of the mayor to formally weigh in on major
disciplinary matters, despite the concerns about this that I raised repeatedly for a year. After
months of demonstrations, it is very clear that the public holds the mayor accountable for police
disciplinary decisions. To meet this public expectation, the charter should allow some formal role
for the mayor in the adjudication of these matters.

Offer to meet and withdraw this veto if common ground is found
I veto the Charter Change with great reluctance, because I agree that the current charter is
problematic and there is urgency to amend it. I believe I was the first Burlington elected official to
bring attention and concern, a year ago, to the near-absolute power of the Chief to impose discipline
under our current system. Such monopoly of important authority is an aberration in our democratic
system, it has contributed significantly to community distrust, and we are likely to face continued
disputes over future disciplinary actions until this issue is addressed.

Further, it is clear that the Council and Administration agree on many key issues related to police
discipline. As stated in my alternative December 7 charter change proposal, I support granting a
community board the ability to conduct independent investigations into complaints, subpoena
sensitive department information, and overrule the Chief when necessary on disciplinary decisions.
While I believe we could achieve the reforms we need through our existing Police Commission
system, I am willing to accept and support the Council’s proposed framework of creating a new,
independent board if my other concerns are met.

Given that we agree on many key issues, it is unfortunate that the Councilors leading this charter
change have made no effort to work out our remaining differences and denied our requests to meet
and discuss changes before passage of the Charter Change on December 14. I remain willing to meet
and to work in good faith to find common ground before Monday’s meeting. I made this willingness
clear to President Max Tracy in a phone message earlier today and hope he will accept this
invitation for collaboration.

An alternative plan that can progress immediately
If this final effort to find a consensus charter change now fails and the Council sustains my veto, the
problems in our police discipline system will remain, and we must keep working on this issue with
purpose and urgency. In such an event, I am committed to taking the following steps to implement




 Page 80 of 99
immediate improvements to our current system and continue momentum towards future
structural changes:

 I will work with the City Council to bring forward a resolution soon that immediately delegates
 new disciplinary authority to the Police Commission, including the authority to conduct
 independent investigations. We do not need a charter change to delegate this authority to the
 citizen oversight board that exists today.

 I will also work with the City Council to bring forward soon a current year budget amendment
 granting the Police Commission a budget for conducting such independent investigations.

 Ultimately, we will still need a charter change on police discipline. As soon as possible, the
 Council and the Administration should appoint a new Special Committee of Councilors and
 Administration representatives that continues to work to find common ground on this issue.
 This committee should be tasked with hearing from both racial justice advocates and police
 officers who will serve under a new system, and returning with a consensus proposal by mid-
 2021.

 To ensure that this consensus proposal can be put to the voters and delivered to the legislature
 for the start of the 2022 session, I propose that we commit to a Special Election next fall (such a
 Special Election will also likely be necessary for TIF project bonding authority and perhaps
 other infrastructure bonding as well).

 One of the major short-comings of the Council’s current charter change proposal is that it is
 unclear what standards the new board would attempt to hold officers accountable to. I propose
 that the Council and Administration act in January to address that short-coming by requesting
 that the Police Commission review the current departmental discipline standards and
 recommend new standards in advance of a Special Election next fall.

 While getting police discipline right is critical, we must expand our focus if we truly seek to
 secure different policing outcomes. I have requested that our Director of Police Transformation
 Kyle Dodson complete a review of our officer training and evaluation systems and issue
 recommendations to me and the City Council before the end of his six-month tenure. Further,
 Director Dodson has been exploring the creation of a process to forge reconciliation between
 the Burlington police and the BIPOC community, and I have asked him to conclude that work
 and issue recommendations before his tenure ends.




 Page 81 of 99
 CITIZEN COMPLAINTS FLOW CHART

 Article 65 §190 of the Burlington City Charter vests disciplinary authority
COMPLAINT RECEIVED; for members of the police department in the Chief of Police. When the
INFORM COMMISSION Burlington Police Department receives a citizen complaint about an
 employee’s conduct, Department Directive DD40 states the Chief of
 Police shall cause that complaint to be investigated as soon as practical.
 By policy agreement, the Chief will report to the independent
 Burlington Police Commission on all complaints.

 According to Mayoral Executive Order, when a police officer uses force
 INJURY TO PERSON? that results in injury to any person or that raises significant public
  PUBLIC CONCERN? concern, the Chief of Police will formally review the situation with the
 INFORM MAYOR Mayor and seek the Mayor’s concurrence with the Chief’s disciplinary
 determinations. The Chief must obtain the Mayor’s concurrence or
 other final recommendation before reviewing the case with the Police
 Commission and must share the Mayor’s views with the Commission.

 For higher-level complaints, such as those involving an allegation of
SERIOUS COMPLAINT? excessive use of force, dishonesty, discrimination, harassment, or other
  VERBAL BRIEF TO serious misconduct; or for any lower- or mid-level complaint that results
 COMMISSION in discipline beyond a written reprimand; or for any other conduct for
 which suspension or termination is recommended, the Chief will
 provide the Police Commission with a full verbal briefing of the
 allegations, the Mayor’s views (if applicable), and the Chief’s
 recommended disposition of the case in executive session.

 After receipt of the verbal briefing, the Police Commission may:
COMMISSION ASSESSES  accept the Chief’s report and recommended action in full or in part;
 CHIEF’S DISPOSITION  request additional information;
  request that the Chief reconsider the action and/or make a
 recommendation to the Chief about the investigation, process,
 disposition, or other aspect of the matter, or
  postpone action to a later date, but no later than 14 days from the
 date of initial receipt of the report

 The Chief may accept or reject the Police Commission’s
 CHIEF FINALIZES recommendations, but must explain any rejection. If a majority of the
 DISPOSITION Police Commission disagrees with the Chief’s decision, the Police
 Commission Chair shall report this to the Mayor.

 As per the Vermont Criminal Justice Council and Vermont’s Act 56, if the
 20 VSA §2401? conduct alleged in the complaint meets the definitions of Category A,
CHIEF REPORTS TO VCJC Category B, or Category C conduct in 20 VSA §2401, the Chief will
 comply with the duty to report described in 20 VSA §2403.




 Page 82 of 99
 USE OF FORCE (UOF) OCCURS

 Does UOF involve person of
 color? Notify Mayor. Is UOF applicable to video release?
 (i.e., does it involve death, serious
 bodily injury, OC / CEW / firearm /
 Officer writes UOF report in
 baton / LLIMs, public attention).
 Benchmark. Officer uploads AXON.

 UOF REVIEW MONTHLY UOF REPORT REDACTED VIDEO

UOF reviewer looks at officer’s Deputy Chief Operations (DC
 report to ensure it comports Redaction Specialist (RS)
 Ops) reviews officer’s written
with UOF directive and current redacts video of applicable UOF
 narrative
 training

UOF reviewer returns
report to officer with DC Ops flags for UOF
 Executive staff reviews
notes requesting supervisor review
clarifications

UOF reviewer forwards to UOF-
trained-supervisor for approval DC Ops writes summary RS adds DC Ops’s narrative to
 -- OR -- flags potentially narrative and breaks redacted video as introductory
 improper force for supervisor down statistics title card for context
 review

 DC Ops and exec ass’t publish RS posts month’s videos to
 UOF supervisor consolidated summary BPD’s YouTube channel, to
 reviews narrative as monthly Use of coincide with exec ass’t posting
 Force Report monthly Use of Force Report

 UOF supervisor returns to
 UOF reviewer with notes
 for clarification

 UOF supervisor flags
 for executive staff review
 or internal affairs

 UOF supervisor forwards to DC
 Ops for finalization

 Final approval by DC Ops or
 flagged for Chief of Police

 Page 83 of 99
 BURLINGTON POLICE COMMISSION POLICY
 Role of the Burlington Police Commission in Reviewing Complaints Against BPD
 Employees
 Adopted August 25, 2020

Purpose: The purpose of this policy is to support principles of fair and impartial policing within
the City of Burlington Police Department by adopting a procedure that defines the role of the
Burlington Police Commission in reviewing complaints against agency members.

Policy:

1. When a complaint is received by the Burlington Police Department about the conduct of an
 employee of the Burlington Police Department, the Chief of Police shall cause that complaint
 to be investigated as soon as practical by an individual or individuals with no interest in or
 attachment to the issue or officer(s) being investigated. When a complaint is received by
 members of the Burlington Police Commission, the member of the Burlington Police
 Commission should encourage the person making the complaint to submit it via the
 Burlington City website or should personally take the complaint, attempting to capture all the
 information otherwise contained in the Citizen’s Complaint Form. [See Appendix A]
 a. All complaints, whether generated externally or internally, are referred to as
 Citizen’s Complaints.
 b. All Citizen’s Complaints are documented on a spreadsheet maintained by the
 Deputy Chief of Administration, or designee.
 c. Lower-level and some mid-level complaints that are able to be resolved quickly
 and at first level of supervision, remain as Citizen’s Complaints.
 d. Some mid-level complaints may be escalated to an Administrative Review (AR).
 An AR is designed to determine if a complaint needs to be elevated to a Bureau of
 Internal Affairs investigation or if it is able to be handled without a robust
 personnel investigation.
 e. Higher-level complaints will either be an Administrative Review or will be
 escalated to a Bureau of Internal Affairs investigation.
 f. Lower-level, mid-level, and higher-level complaints will be categorized
 consistent with the Burlington Police Officers’ Association Contract, Article XV,
 section 15.2. [See Appendix B]

2. The Deputy Chief of Administration, or his/her designee, will maintain a written record of
 each complaint. That written record will at a minimum include:

 - The name(s) of the employee(s) involved.

 - The date of receipt of the allegation.

 - The date of the alleged incident, if known.

 - The type or nature of the allegation.



 1
Adopted 8/25/2020


 Page 84 of 99
 - The name(s) of the person(s) who investigated.

 - The final disposition of each complaint.

 - How the matter was closed out with the complainant.

In addition, if the complaint involves an allegation of excessive use of force, or an allegation of
dishonesty or other serious misconduct, the written record will include:

 - All action taken in response to the complaint.

 - Identification of all witnesses, documents, evidence, or other information obtained or
 consulted in the course of the investigation.

3. The written record of each complaint will be considered confidential. Each Commissioner
 shall have access to the written records of all complaints upon request to the Chief, subject to
 the Vermont Public Records Act, and the Burlington Police Officers’ Association agreement.
 Further information may be available to the Commissioner receiving the records upon the
 completion of a fingerprint-supported background check and the execution of a
 confidentiality agreement.

4. The Chief will report to the Police Commission on all complaints against members of the
 department as follows:

 - Updates about complaints against employees will be shared with the Commission in
 Executive Session at the first meeting following receipt of the complaint, unless the
 matter is of such urgency that a special meeting is required. Status updates on the
 progress of complaints under investigation will be provided to the Commission, as
 appropriate, and further detail and access to reports/video/etc shall be provided to the
 Police Commission in Executive Session at the first meeting after the investigation
 has been completed.

 - For lower- and mid-level complaints, the Chief will provide a verbal or written
 summary of the complaints and their status or disposition in Executive Session.

 - For higher-level complaints, such as those involving an allegation of excessive use of
 force, dishonesty, discrimination, harassment, or other serious misconduct; or for any
 lower- or mid-level complaint that results in discipline beyond a written reprimand; or
 for any other conduct for which suspension or termination is recommended, the Chief
 will provide the Police Commission with a full verbal briefing of the allegations and
 the recommended disposition of the case in executive session.

 - The Chief of Police, or his/her designee, will report to the Police Commission in
 Executive Session on a monthly basis regarding any Use-of-Force incidents. The
 update shall include demographic data about the officer(s) and subject(s) such as
 gender, age, and race, and also provide a description of incident.


 2
Adopted 8/25/2020


 Page 85 of 99
 - At the request of any member of the Police Commission, the Chief will make the
 written record available for Executive Session review by the Police Commission, as
 well as any audio or video footage, written materials, evidence, or other information
 related to the allegation.

 - The Chief of Police, in consultation with the States Attorney’s Office, will make the
 determination of if a complaint needs to be referred outside the Department for
 investigation of possible criminal conduct. If the complaint has been referred outside
 of the Department for investigation of possible criminal conduct, the materials will be
 made available to the Police Commission in Executive Session once a determination
 has been made that the materials may be disclosed to the Police Commission without
 adversely affecting any possible prosecution.




5. After receipt of the report described above, the Police Commission may:

 - accept the Chief’s report and recommended action in full or in part;

 - request additional information;

 - request that the Chief reconsider the action and/or make a recommendation to the
 Chief about the investigation, process, disposition (including recommending a range
 of sanctions for the misconduct), or other aspect of the matter, or

 - postpone action to a later date, but no later than 14 days from the date of initial
 receipt of the report.

6. The Chief may accept or reject the Police Commission’s recommendations. If the Chief
 rejects the Police Commission’s recommendations, the Chief shall explain to the Police
 Commission why the recommendations were not accepted. If a majority of the Police
 Commission disagrees with the Chief’s decision, the Police Commission Chair shall report
 this to the Mayor. Police Commission members should take care to avoid unauthorized
 disclosure of confidential information. To that end, any Commissioner may consult with the
 City Attorney’s Office to obtain advice related to, among other things, the use and disclosure
 of confidential information.

7. The Chief of Police is responsible for reporting any misconduct of Burlington Police
 Department employees that falls under 20 VSA 2401 to the Vermont Criminal Justice
 Training Council.

8. Whenever the Police Commission becomes aware of allegations of misconduct by the Chief
 of Police, or if the Police Commission has concerns about the performance of the Chief of
 Police, the Police Commission Chair shall report this to the Mayor in a timely manner. In the
 event that the Chief of Police has engaged in misconduct pursuant to 20 VSA 2401, the

 3
Adopted 8/25/2020


 Page 86 of 99
 Police Commission Chair shall report this to the Chair of the Vermont Criminal Justice
 Training Council.

9. The Police Commission shall report to the Burlington City Council twice each year regarding
 this policy. The report shall include a redacted summary of the number, type, and disposition
 of complaints reported to the Police Commission.




 4
Adopted 8/25/2020


 Page 87 of 99
Discipline- City of Burlington



 Page 88 of 99
Contracts, Policy and Directives
• The City has 4 contracts which include discipline clauses with its
  respective unions
• The Personnel Policy Manual applies to all City employees
• Department Directives are permitted and covered in the Policy
  Manual.
 • The Burlington Police Department has 29 Directives. Violations of any of these
 directives can result in disciplinary action.




 )
 Page 89 of 99
Comprehensive Personnel Policy Manual

• The policies contained in this manual apply to all City employees.

• Section 1.2 PURPOSE

 • The purpose of this Personnel Policy Manual is to combine in one place the
 personnel policies and benefits applicable to City employees, with the
 exception of the School Department and those employees covered under a
 collective bargaining unit. If these policies conflict with any policy contained
 in the contracts of any bargaining unit recognized by the City, the contract
 shall supersede these policies for any member of that union.


 Page 90 of 99
City Policy Violations

• There are two primary sections in the Policy Manual that are used in
  the discipline of both union and non-union employees.
• Most prevalent is Section 8 which outlines the expectations around
  employee behavior and Section 12 which outline the policies
  pertinent to the use of City property.
• Any violation of policy can be grounds for progressive discipline.




 https://www.burlingtonvt.gov/ (2019)
 Page 91 of 99
Department Directives
• 1.3 DEPARTMENT DIRECTIVES

Departments may develop their own "Department Directives" for the administration of
their Departments and are encouraged to use a similar employee involvement process.
Department Directives, or rules which are deemed necessary for the orderly and efficient
administration of Departments, shall be consistent with these personnel policies and
procedures and shall be filed and made available in the administrative offices of such
Departments for reference by employees. Department Directives shall not introduce or
create benefits or costs not provided for by contract or approved by the Board of Finance
and consistent with the appropriation intent and budget. Copies of all Department
Directives shall be sent to the Human Resources Director. The Human Resources
The Director shall provide interpretation as to whether Department Directives are considered
consistent. Said interpretation is subject to appeal to the City Council.


 Page 92 of 99
Contracts and Progressive Discipline
• IBEW- ARTICLE 12.1
• BFFA- ARTICLE XVII (17.1-17.6)
• BPO- Article XV (A-0)
• AFSCME- ARTICLE XV (15.1-15.8)




 https://www.burlingtonvt.gov/ (2019)
 Page 93 of 99
BPOA Contract

• ARTICLE XV Quality Control, Performance, Counseling, and Discipline
 • Lower-level infractions of policy and procedure typically result in coaching,
 training, or counseling prior to imposing discipline.

 • Mid-level infractions or repetitive lower-level infractions are generally
 handled at the lowest possible level beginning with a letter of reprimand or
 admonishment and progressing into more substantial discipline such as
 suspension.




 Page 94 of 99
 BPOA Contract
• Higher-level infractions may result in more substantial discipline. These kinds of
  infractions could include things such as veracity issues; harassment; excessive force;
  knowing associations with targets of investigation or criminals; abuse of authority;
  failure to follow orders; political activity restrictions; etc.

• Mid and High-Level Infractions can result in a written reprimand, reassignment,
  demotion, unpaid Suspension, or Dismissal.




 Page 95 of 99
 Discipline Process
Issues at a low level, for example, are expected to be resolved at the lowest level. Issues
like late paperwork, tardiness, or mistakes with low impact are resolved by a coaching,
more training, or even a verbal notice of reprimand.

Higher levels of discipline involve written reprimands which involve a more formal
meeting between a manager or department head and HR- with union representation if
appropriate (non-union discipline does not require a representation).

Discharge involves the HR Director, the City Attorney’s office and the department head.
For police it also involves the Mayor’s office.

All employees are entitled to appeal discipline decisions through the grievance process.


 Page 96 of 99
 Grievances
A grievance is sustained when an article of any contract is perceived by an employee as
a contract violation. For example, a step one grievance is sent to a supervisor or
manager due to a scheduling issue that involves seniority.

If the grievance cannot be resolved at Step 1, it moves to a Step 2 grievance which
works differently depending on union affiliation.

AFSCME- IBEW: HR Director or HR Policy Committee
BPOA: Police Commission
BFFA: Fire Commission

A step 2 grievance is not necessarily a high-level infraction- it is a disagreement on the
CBA. If the grievance cannot be resolved at Step 2, which is rare, the issue could go to
arbitration.
 Page 97 of 99
 Discipline Process- Grievance
• All employees Union and Non-union are entitled to a pre-termination hearing. If
  union, this is often referred to as a Loudermill hearing which is part of the "due
  process" requirement that must be provided to a public employee prior to removing
  or impacting the employment property right. In such a hearing the employee has a
  chance to provide additional details prior to termination.

• If/ When an employee is involuntarily discharged (terminated), they have the right to
  appeal the decision per section 9.4-9.5 of the police manual. The appeal is heard by
  the Human Resource Policy Committee.




 Page 98 of 99
Questions?




 Page 99 of 99

ORDINANCE and CHARTER CHANGE JOINT COMMITTEE
 Tuesday, May 23, 2023
 Fletcher Room in the Fletcher Free Library and Remote
 DRAFT MINUTES
Members Present: Councilor Traverse (Ordinance Committee Chair), Gene Bergman (Charter
Change Committee Chair), Councilor Hightower, Councilor Carpenter, Councilor Doherty
Staff Present: Kim Sturtevant (Acting City Attorney), Kerin Durfee (HR Director), Jordan Redell
(Mayor’s Chief of Staff)
Others in Attendance: Council President Paul, Councilor Grant, Lee Morrigan, Amy
Malinowski, Bruce Wilson, Dave Maher, Romeo Von Hermann, Keren Sita, Andy Blanchet
Meeting called to order at 5:34 PM.
1.0 Agenda
Motion to adopt/amend agenda
Motion to Adopt Agenda as is.
Motion by Councilor Carpenter, Seconded by Councilor Bergman
Final Resolution: Motion Passes
Yes: Unanimous

2.0 Adopt the Draft Minutes from May 4, 2023
Motion to Adopt Minutes as is.
Motion by Councilor Bergman, Seconded by Councilor Carpenter
Final Resolution: Motion Passes
Yes: Unanimous

3.0 Review of Draft Proposals and Public Comment
Bergman: The Committee’s charge is to look at the recently failed ballot initiative, the charter
amendment proposed by the administration in December 2020, and the Council’s 2021 resolution
and ordinance proposal. Oversight involves both investigation and auditing according the
NACOLE guidelines. All of the documents relating to investigations and review/auditing are
available online on this meeting’s agenda.
Traverse: We have a conflict with the Police Commission meeting tonight, but they will have input
on our next meeting on the 30th. We have a lot to get into, but I think we can move to a general
public comment.
Dave Maher: I have lived in the Burlington area for 50 years. I hope that any oversight initiatives
do not hinder the police force. We had five homicides in Burlington last year. We also have
skyrocketing drug overdoses. We need oversight that will help the police department handle these
issues and any oversight process should have input from the department. I believe this will lead
to better oversight and better policing.

 Page 1 of 4
Lee Morrigan: I live in Ward 7. I think a new oversight system will improve public trust in the
police department. The only discipline we hear about is for things that are bad enough to reach
the public. It is important for the public to see disciplinary outcomes that they agree with. There
has to be a balance between confidentiality for employees and allowing the public to know the
disciplinary process.
Romeo Von Hermann: I live in Ward 8 and work for Green Mountain Transit. We interact almost
daily with the police. We need an independent oversight body that won’t be looking over their
shoulder. This body needs access to sufficient information to make good choices. We also need
to look at recruiting process so we have good officers.
Keren Sita: I hope that Jon Murad is in this for good reasons. I always said that Chief Del Pozo
should have resigned before he did. We don’t want people to be pursuing power for power’s sake.
Andy Blanchet: Referencing the BPD flowcharts that are online, I think that the disciplinary
structure should not be a funnel toward one or two people.
Carpenter: I am also looking at the disciplinary flowcharts. I think I need to understand better the
internal affairs structure going forward.
Bergman: I would like the Police Commission to comment on the December 2020 memo. I am
curious what the commission thinks on the documents we have posted and if they have any further
reflections today.
Traverse: I know of two items on the Police Commission’s agenda tonight. They will be choosing
a few commissioners to come to our meetings going forward. We can relay to the Commission
that we would like their thoughts on the Mayor’s memo from 2020 and the proposed charter
change.
Hightower: I don’t think getting too into the weeds with the particular memos is necessary. I feel
like we are looking for something between those two ideas and we can get more targeted feedback
without looking too much at past documents.
Carpenter: I agree with Councilor Hightower. We should be looking forward rather than back. I
believe we need a charter change and we should not get too into details until we have an agreement
on the big picture.
Bergman: The Commission shouldn’t go line by line, but rather look at the big concepts in the past
initiatives and get their comments on them.
Hightower: I think we should get a list of decision points to work on before we start drafting
anything. We need an outline to begin with. The faster we can create a list of decision points the
faster we can get to substantive discussion. I would prefer if Ben and Gene can send some big
points to the Commission before they attend the next meeting.
Bergman: I am hesitant to do that before we hear from them at least for the first time. I think after
the first meeting, that would be appropriate.
Jordan Redell: I intended to bring a memo from the Mayor’s Office to this meeting, but it is still
forthcoming. The Mayor’s position on a charge change has changed since the veto memo was put
out last year. I hate to add one more document to the long list already, but I advise all the


 Page 2 of 4
Committee members to read a memo from City Attorney Eileen Blackwood on police oversight
models.
Bergman: There were several versions of that memo that we looked at in Charter Change.
Melo Grant: We want to get the Commission’s opinion on an oversight model. I know we have
gone over these questions many times in the last few years, but this issue has not gone away. This
oversight body is important to protect residents and we can’t lose sight of that. I will read Attorney
Blackwood’s memo, but I am more interested in the models in places like New Haven,
Connecticut.


4.0 Presentation from HR Director Kerin Durfee on City Discipline Procedures and Public
Comment
Director Durfee’s presentation is available in the CivicClerk meeting agenda and meeting files.
Carpenter: I know HR has staff that work with each department. Does HR have a staff person that
helps manage police management issues?
Director Durfee: Yes. My staff handles low-level issues with their departments, but I manage
police discipline myself. I have been the liaison with BPD and the Chief.
Bruce Wilson: I sit on the Human Right’s Commission. Does BPD have a fair and impartial
policing policy?
Jordan Redell: That is part of the Departmental Directives.
Bruce Wilson: I talk with police chiefs around the state and often FIP trainings are brief and online.
I believe that these trainings should be done by someone that looks like me and or have the same
experience.
Romeo Von Hermann: Is there a tiered process for complaints from the public? Or does this only
apply to personnel?
Director Durfee: Complaints from the public have a specific process and there is an online portal
for that.
Romeo Von Hermann: How does DEI training work in the City?
Director Durfee: The REIB Department handles the DEI trainings with the HR Department. The
HR Department handles the onboarding portion.
Traverse: Is every discipline issue in the police department able to be grieved?
Director Durfee: Yes, but only if there is some issue under the bargaining contract.
Traverse: If BPD pursues an internal investigation, is HR part of that process?
Director Durfee: Yes, I am informed and consult on every mid to high level infraction. The Mayor
expects the Chief to work with me on every BPD disciplinary process.



 Page 3 of 4
Bergman: I think we should codify this process in some way. Employees do not stay forever and
it should be written down.
5.0 Review and Discussion of the CNA Report and Talitha Consultants and Public Comment
Councilor Hightower went through the executive summaries of the CNA report and Talitha report.
6.0 Any Other Committee Business
The next Joint Committee meeting is Tuesday, May 30th at 6:30 in Bushor Conference Room or
remote.

7.0 Adjournment
Motion to Adjourn.
Motion by Council Bergman, Seconded by Councilor Traverse
Final Resolution: Motion Passes
Yes: Unanimous

The meeting was adjourned at 7:53 PM.




 Page 4 of 4