SFPD accused of secret policy-making, usurping power

The San Francisco Police Department has been secretly and illegally writing its own policies, according to members of the civilian Police Commission, which oversees and sets policy for the department. 

“It’s clearly illegal. And it’s really shocking that the department would engage in something like this,” Max Carter-Oberstone, vice president of the Police Commission, said in an interview on Tuesday. 

At tonight’s Police Commission meeting, Carter-Oberstone will introduce a resolution to rescind two of these so-called “bureau orders.” Both were instituted without the commission’s approval, and illegally outlined new rules for undercover officers and the use of social-media for police investigations, according to commission members.  

“The language basically allows for cyberstalking in their private time,” Commissioner Jesus Gabriel Yáñez pointed out during a recent Police Commission meeting, noting that checks from supervisors are not required. “I believe this commission would have guided the department in a different direction on such a serious issue.”

Yáñez is spearheading a new policy around social-media investigations, and said his proposed policy would be more restrictive than the existing bureau order.

Some of these bureau orders contradict at least one of the general orders established by the Police Commission to regulate the department, according to one commissioner. 

Carter-Oberstone accused the department of violating the city charter to “make up its own rules” in recent months on topics of “enormous public interest,” without consulting experts and without informing the public or the Police Commission. 

What’s more, when the time came for the Police Commission to begin writing its own social-media investigation policy, the police department claimed it was short-staffed and asked to delay the process. Unbeknownst to the commission, however, the department issued its own, unvetted policy, a move that came as an extra slap in the face, commission members said. 

“You’re telling me you don’t have staffing, yet here you are suddenly putting out a four- or five-page document that had obviously been worked on for some time,” Yáñez said in a conversation with Mission Local on Tuesday. 

Carter-Oberstone’s resolution calls this a “particularly concerning usurpation” of the commission’s authority.

An ongoing practice 

The revelation about the SFPD’s recent “bureau orders,” without input from or notification of the Police Commission that oversees it, first came last month during a presentation by the Department of Police Accountability. 

Department of Police Accountability Policy Director Janelle Caywood, who presented the findings, called the practice “a very concerning SFPD trend.” She accused the department of using bureau orders as a “workaround to the general order development process.” 

This practice by the police department is not a new one: In 2016, a Department of Justice investigation into the police department called out the department’s use of “bulletins” for lacking transparency and contradicting the Police Commission’s authority to set policy. 

In continuing to issue bureau orders after “bulletins” were recently phased out, Yáñez said, the police department is “pretty blatantly violating one of the DOJ recommendations.” 

Most of the commissioners present at the April meeting echoed these concerns, and asked the police chief to make bureau orders publicly available.  

But Carter-Oberstone’s resolution, in rescinding the problematic bureau orders, takes things a step further. 

If passed, it would reassert the commission’s power and authority over the police department, claiming the commission’s “exclusive authority to promulgate policies governing the Police Department” in the city charter. 

It is unclear, however, whether the resolution will pass as-is. 

Commissioner Kevin Benedicto said that, while he agrees that the police department overstepped, he is concerned about rescinding the social-media investigations bureau order after officers have accepted it as department policy. 

“While I agree that that should have been brought to the commission as a [general order], we’re now in a world where it exists,” Benedicto said, adding that he’s “not entirely comfortable” leaving the department without a policy in place. 

The bureau order governing social-media investigations has been in effect for just over a month. Prior to its issuance on April 6, no policy existed. And in the previous month, SFPD requested two extensions to delay the commission-led policy creation process. 

Benedicto suggested pushing an above-board, expedited general order through — with the commission’s involvement. 

As Janelle Caywood, the policy director for the Department of Police Accountability, pointed out in April, “general orders require public input. They’re publicly posted. They require DPA input and commission approval — whereas bureau orders are promulgated in secret.” 

During the same April commission meeting, Chief Bill Scott insisted that bureau orders, which are intended to disseminate information to a specific branch of the department, are “not being used to circumvent [general order] process,” referring to policymaking by the Police Commission.

Scott said that when the process with commission oversight took too long, the department wanted to ensure there are rules on the books for officers to follow. 

But the SFPD’s own moves to delay the official social-media policy appear to contradict that argument. 

“It’s overriding our entire system of government,” Carter-Oberstone said at the time. “It’s taking away the public’s transparency into the issue, and it’s taking away all the tools that we have to ensure that we’re passing policies that we can all be proud of.”