After a heated debate Wednesday night, the San Francisco Police Commission deadlocked 3-3 over whether to rescind two policies that commissioners agree were created illegally.
Commission president Cindy Elias, who would have provided the deciding vote, was not present, and Max Carter-Oberstone, the vice president, promised a new vote when she returns.
The discussion before the vote focused on the San Francisco Police Department’s circumvention of the commission’s civilian authority in creating recent internal policies.
“We are getting painted with this brush of, ‘Because you don’t agree with me, you’re evil, you’re bad, you don’t want progress,’” Police Chief Bill Scott said. “This is ridiculous, in my opinion.”
Carter-Obsterstone, the author of the proposed resolution to rescind the orders, shot back, saying that the chief was circumventing the law.
“People have come up with a lot of euphemistic ways to say that we should not actually play our role of holding the department accountable,” said Carter-Oberstone. “But acting as a citizen oversight body to hold the department accountable is our core job. And in fact, if we do it the right way, it instills public confidence in the department.”
Scott, for his part, said it would be a “technicality” to construe the Police Commission’s “administrative” authority as law. At one point, a lawyer with the City Attorney’s Office stepped in and disputed that the bureau orders were “illegal,” as commissioners had asserted.
The resolution would have rescinded two so-called “bureau orders,” which guide the police department’s undercover officers and its use of social media for investigations. The “Plainclothes and Undercover Operations” bureau order tells officers how to prepare enforcement plans, communicate with dispatch, and carry out operations outside the county. “Undercover” officers are exempt from wearing body-worn cameras and getting a supervisor’s approval for individual operations.
The “Investigative Social Media Accounts” bureau order in particular raised alarms for commissioner Jesus Gabriel Yáñez, who is leading an update to the department’s social media policy. The order directs officers on getting approval for and when they can use social media accounts as part of a police investigation.
“In one reading, I identified numerous issues,” Yáñez said, pointing to a lack of oversight and approvals for overtime and missing language about probable cause for social media investigations. He suggested that, as written, the bureau order could allow for young people to be surveilled online with not enough checks in place.
Multiple police commissioners agreed on Wednesday and in a past meeting that by issuing the two bureau orders to its officers, SFPD’s leadership overstepped its power as defined in the city’s charter. Policy creation is a job for the civilian Police Commission, not police brass, according to the charter.
Yet those opposed to the proposal took issue not with the substance of the resolution, but rather its tone. Commissioners said that they should not be criticizing police leadership for making its own policies, and even apologized to the police chief.
“It doesn’t help to blame each other for hiding things and being engaged in ‘illegally issued’ issues,” said Debra Walker. She apologized to the police chief for the tenor of the resolution, and thanked him for putting a policy on the books.
“I intend to vote ‘no,’ full stop, with the way that this is phrased,” added Jim Byrne, saying that while he could not “sit and defend” the police department’s bureau orders, he could not accept “inflammatory” language in the resolution, taking issue with the word “usurpation.” His vote against the resolution helped allow the department’s unvetted policy to stand.
Walker suggested that the use of the word “illegal” and the tone of the resolution could even lower police morale and contribute to the department’s difficulty with staffing.
“While the Police Department has implemented laudable reforms…” the resolution reads, “the Department’s use of Bureau Orders to undermine the Commission’s rulemaking and oversight authority persists to this day.”
Neither Walker nor Byrne suggested substantive changes to the resolution and instead simply voted against it, even after a proposal from Commissioner Kevin Benedicto to keep the bureau orders in place while the commission worked on an expedited, new policy.
When the issue was first raised last month, at a presentation by the Department of Police Accountability, most commissioners agreed that the practice was inappropriate, especially as the commission was in the process of developing policies on the very same two subjects.
The resolution discussed on Wednesday criticized the police department for putting out its own policy in secret, while at the same time claiming not to have sufficient staff available to work with the commission on new official policy.
Three mayor-appointed commissioners — Byrne, Walker, and Larry Yee — voted against the resolution.
The resolution: DID NOT PASS
Police Commissioners voted whether to rescind two SFPD bureau orders upon completion of their own policies on the same topics.
For (3): Max Carter-Oberstone, Jesús Yáñez, Kevin Benedicto
Against (3): James Byrne, Larry Yee, Debra Walker
Absent (1): Cindy Elias