Cleveland’s Office of Professional Standards (OPS) is looking for a new administrator. Its former chief, Roger Smith, ended his tenure there Friday after three-and-a-half years investigating complaints against police.
Before leaving for his new position overseeing Phoenix’s civilian oversight agency, Smith spoke with Ideastream Public Media’s Matt Richmond about changes at OPS and the future of civilian oversight under the recently passed Issue 24.
The future of Issue 24
According to Smith, the question facing Mayor-elect Justin Bibb and the 13-member Community Police Commission (CPC) is how to approach the work. Under Issue 24, the CPC will have oversight of police discipline, policies and training.
“Saying, 'Ok, we're going to do everything from Issue 24' by the language of Issue 24, that doesn't appear doable,” Smith said. “The responsibilities that are provided are so broad and the intended actions that are described there are so comprehensive that the amount of staffing and personnel that it would actually take to achieve those things not only doesn't exist now but isn't close to existing now.”
Right now, OPS investigates civilian complaints against Cleveland Division of Police (CDP) officers. The Civilian Police Review Board (CPRB) reviews those investigations and decides whether to recommend discipline to the chief of police. The chief and safety director have final say.
Under Issue 24, the CPC would be placed above that structure to issue the final ruling. The charter amendment doesn’t say anything about which discipline cases the CPC will rule on, same with policies and training. And it doesn’t say how those decisions will be made.
“A lot of this will end up being defined through your first ‘major incident,’” Smith said. “I think that's where you'll see the definition of what Issue 24 has done, practically. Hopefully there won't be something tragic in our near future. But to the extent there's an incident that sort of galvanizes public attention and basically requires this kind of action to take place, that incident would give you your initial snapshot.”
Potential problems with Issue 24
Smith said there are a couple questionable parts in Issue 24. The first is Section 115-5(h)(10), which allows the CPC to order investigations by OPS on behalf of CPRB into any officer “against whom a lawsuit has been threatened or filed, or for whom the City has paid a settlement to obtain a liability release, or against whom there has been a court judgment for alleged misconduct.”
That would open the door to potentially problematic investigations, Smith said. And because the process of appointing members to both the CPC and CPRB will remain the same, it could lead to interference by political appointees.
“It is important to point out that the current Civilian Police Review Board are political appointees by the mayor and the city council, through a process guided by the Law Department. That's very important in order to properly understand decisions like the Tamia Chappman case.”
In that case, the board’s hearing was delayed at the last minute for unclear reasons and several disciplinary findings recommended by OPS were overruled by CPRB.
There’s also Section 115-5(h)(9), which gives the CPC authority over “soliciting, gathering, compiling, organizing, maintaining, and regularly updating information on individual police officers whose career records or personal history merit designation or disclosure…”
“And (h)(9) also provides that, to the extent prosecutors and/or judges don't comply with this, that the CPC can recommend discipline for them,” Smith said. “That's compelling change to the process overall. And that will be interesting to see what happens with it legally. Because it's hard for me, sitting here as an attorney for 22 years, it's hard for me to imagine how that survives in court.”
Progress at the Office of Professional Standards
The 2014 U.S. Department of Justice investigation into the Cleveland Division of Police highlighted major issues at the Office of Professional Standards, including “staggering” caseloads for investigators contributing to excessively long investigations, a lack of transparency and substandard investigations.
In closing, the DOJ wrote:
“CDP’s complaint process has little legitimacy in a City that would benefit greatly from an effective system for addressing the community’s concerns regarding its police force.”
The city hired Smith in 2018 to try to turn the office around, one of the requirements of the consent decree with DOJ signed in 2015.
During his tenure, Smith improved the turnaround time on investigations and requiring interviews with officers in every complaint case.
“I just want to extend a final, heartfelt note of appreciation for OPS staff and investigators. They work through a lot of adversity with grace and professionalism. Without their perseverance, many acts of misconduct by Cleveland Division of Police officers would go unpunished and unnoticed,” Smith said during our interview. “With respect to timing and with respect to the amount of time that investigations take, there's been great improvement on that front. We're still not investigating complaints — all of our complaints — in a timely manner. And so, ultimately, we want to get to a point where we're doing all of our complaints in a timely manner.”
Recommendations for Mayor-elect Justin Bibb
The first changes in the police discipline process Smith would recommend to the new incoming mayor is the manner in which disciplinary hearings are held. After CPRB recommends discipline to the chief, the department holds a hearing at its training facility in the Justice Center.
OPS, police leadership, the officer accused of misconduct and union representatives are all present.
“They don't hear from complainants at all in these hearings,” Smith said. “And it's the deputy chiefs from the department who generally conduct these hearings. I think specifically the hearings need to be done in much more of a formal setting because obligations to basically tell the truth and essentially to conduct oneself in a manner that is consistent with a professional forum, I think that begins to go by the wayside when you have the hearings become too informal. And I think these are, I think they're a bit too informal.”
Smith recommends moving from the training academy into an unused courtroom and limiting who’s in the room during the hearing. He thinks an administrative judge, not police leadership, should conduct the hearing. And the civilian who filed the complaint should be allowed to attend.
“This is a process that by definition involves the public. In fact, it is originated by the public, in the sense that it comes from a civilian complaint,” Smith said. “So you need greater transparency and you need a greater basis for the public to believe that what happens there is reliable.”
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