The Charlottesville Police Civilian Review Board sought to understand the extent of its power at its third meeting Tuesday in which the body discussed its ability to appoint local civil rights attorney Jeff Fogel to the board and to receive complaints against the Charlottesville Police Department.
The board also received a presentation regarding best practices for police review boards from U.Va. Law student Taylor Mitchell based on a recommendation from board member Josh Bowers, who is a University Law professor.
The Charlottesville City Council charged the CRB with promoting accountability and transparency within the Charlottesville Police Department to build trust, relationships and civilian engagement with the local community.
The board was established by Council earlier this summer amid criticism from the community regarding the absence of certain individuals from the body, namely local activist Rosia Parker and Jeff Fogel — an outspoken local civil rights attorney who has long supported the formation of a CRB and police accountability more broadly. The Council later decided to appoint Parker to the board at a Council meeting to make her the eighth member of the board but did not choose to appoint Fogel.
In response to questions from board members Tuesday about whether the body could appoint Fogel to the board themselves, Mayor Nikuyah Walker said the Council would have to reopen the application process for the board to the general public and then appoint a member from the applicant pool, but added that the body could not simply appoint an individual per the request of the board.
At the board’s first meeting, it was unanimously agreed that an offer of membership would be extended to Fogel by the body. However, board members were later informed by Council Chief of Staff Paige Rice that the board did not have the power to do so. If an additional member were to be added to the board, the Council would have to agree to oversee an application and interview process, which Fogel could re-apply to, but would still not be guaranteed appointment.
Before the Council formed the board, an online survey was released by the City in April to elicit feedback on the CRB candidates from the community. At a Council meeting this past June, Hill stated that she chose not to support appointing Fogel to the board based on comments submitted through the survey.
According to data provided by Charlottesville Director of Communications Brian Wheeler earlier this summer, a total of 374 responses were received through the survey. Wheeler confirmed that Fogel, current board member Don Gathers and Parker were the top vote getters — each receiving 167, 166 and 155 votes, respectively. A total of 67 comments were also submitted through the survey — 11 of which expressed dissatisfaction with the potential appointment of Fogel to the board, while four were in support of him.
Fogel, who was present at Tuesday’s board meeting, demanded that Hill state why she would not support his appointment to the CRB.
“I personally don't believe you have the capacity to be objective in this process,” Hill said in response at the meeting Tuesday.
“What did you base that on?” Fogel said. “I have certain very firm beliefs and values that I live my life from, and to that extent I am not objective. Is that a bad thing to you?”
The board did not formally request the Council to reopen the application as many members thought the process would be too time consuming and arduous. However, City Council Outreach Coordinator Matthew Murphy suggested that the board could appoint Fogel to a subcommittee of the body to have his input even though he would be a non-voting member.
In response to questions from board member Sarah Burke regarding the power of the existing board to collect data and conduct research, Walker said the current board members would primarily serve out their one-year terms by drafting bylaws for a future body to implement, later adding that Council would have to approve any requests not referenced in the resolution.
The currently established board has been tasked by the Council to draft a set of bylaws for the future operation of the police review board. The draft is expected to appear before Council for consideration sometime next spring or early summer.
However, the board’s scope of power is largely limited to those specific provisions outlined in the resolution to establish the body which was adopted by the Council and primarily tasks the board with defining the mission and bylaws of future boards.
However, Burke and Bowers expressed their desires for the board to begin the collection of previously filed complaints against CPD and possibly receiving complaints directly from the community.
Hill said the board could access such information from CPD but would not be able to act upon it or collect its own data before the body has an approved set of bylaws. Burke and board member Guillermo Ubilla added that the board should have a means for collecting complaints from the community for those who are uncomfortable with submitting them to CPD.
“I do think there’s a part for us to gather our own information since we’re supposed to be separate and independent as the resolution says,” Ubilla said. “But the data gathering is through the police department right now, [and] that’s not independent so I think we need to come up with a way that we can gather our own data from the citizens.”
Law student Mitchell said during his presentation that the CRB does currently have the power under the resolution adopted by Council to hold public hearings and other engagement forums as it sees fit.
However, Bowers said that it would be important to maintain the confidentiality and privacy of those who submit complaints directly to the board as they would potentially be subject to Freedom of Information Act requests. City Attorney John Blair said while complaints submitted directly to the board may be subject to the Freedom of Information Act, those accessed via an internal affairs investigation of CPD would be excluded under Virginia state law due to FOIA exemptions for law enforcement records and personnel files.
The Freedom of Information Act requires local governmental entities to grant public access to certain documents or other data which are possessed by such public agencies or bodies.
“They have to be kept private or else people might not complain,” Bowers said. “Or if they do complain, they'll complain and will be justifiably concerned that they'll be single out as a whistleblower and retaliated against.”
Mitchell also said the future CRB could potentially hold closed session meetings after signing a confidentiality agreement to discuss complaints against CPD that involve personnel members which would exclude the documents from FOIA and maintain the privacy of the complainant.
With regards to the board’s ability to have subpoena powers — or the power to order or compel the production of documents or witnesses for investigative purposes — Mitchell said Virginia law does not empower the body to have such authority. However, he added that the Council and Charlottesville Human Rights Commission do have subpoena powers under Virginia law and could potentially act on behalf of the CRB to issue a subpoena.
”Most [police review] boards in the country don’t have subpoena power, and so they default to being review style,” Mitchell said. “[If] you want this board, at least this first iteration that you put in front of City Council, to have the most teeth it can possibly have, you want to put every single thing you want and the community wants into your first set of bylaws.”
Adeola Ogunkeyede, legal director of the Civil Rights and Racial Justice Program at the Legal Aid Justice Center, said the Charlottesville CRB has a unique opportunity to pioneer the development of police civilian review boards in Virginia. Currently, the only other localities in Virginia which have such bodies are Fairfax County and the City of Virginia Beach.
“To the extent that there is a very robust example out there, there aren't,” Ogunkeyede said. “There's a world in which its up to you all to do the hard work to figure out which pieces of existing models fit what you think the community wants to see.”
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