Denver may drop policy of “comparative discipline” for cops

Change could come amid a sense that cops aren't punished for errors

By Christopher N. Osher
The Denver Post

Posted:12/17/2007 01:00:00 AM MST

Updated:12/17/2007 06:14:07 AM MST

Al LaCabe The Manager of Safety will be speaking to members of the press regarding today's press conference. (the Post | John Leyba)

After two years of wrangling over how Denver disciplines its police officers, the city is poised to hand down more severe and swifter punishment for misbehaving cops than ever before.

The fate of a proposed overhaul now rests with the city's Civil Service commissioners, four people who are in charge of how discipline appeals are handled.

At stake is the fate of the city's decades-old "comparative discipline" rule, which requires safety officials to consider past disciplinary actions to guide how they handle misconduct cases.

On Thursday, Safety Manager Al LaCabe, who runs the Police Department, and the police union will press their stances before the commission. The commission will vote on proposed rule changes in the next few weeks.

While the commissioners haven't commented publicly yet, their executive director, Earl Peterson, is urging a change.

"The past should be looked at, but it should not dictate the future," Peterson said. "Some of the stuff you've been reading about officers, you've got to be shaking your head and saying, 'Why is this stuff going on?' "

He added: "From a public standpoint, there is the question of, Why are officers getting away with this thing, and why isn't there a higher level of accountability?"

LaCabe views the current system as irrational. It forces him to refer back to decisions made during lenient times, he said. And he believes the current disciplinary process takes too long, lacks written guidelines and is inconsistent.

The union argues that the system prevents favoritism.

The final arbiter will be the commission, which will consider new rules on how hearing officers handle appeals.

The new rules essentially would allow LaCabe to replace the current system with new discipline guidelines that specify presumed punishments for specific offenses. An earlier draft version from LaCabe called for "presumptive termination" for police officers who break the law, "depart from the truth" during investigations, commit sexual misconduct or improperly use force.

In the past, officers remained on the force despite committing those infractions.

The commission isn't in charge of deciding what the new guidelines will look like. LaCabe has that duty. The commission must decide whether to reform its rules to allow hearing officers to consider the new guidelines during appeals.

"You have to have rules that better define what consistent discipline is," LaCabe said.

Shootings spur debate

Two fatal shootings by police early in Denver Mayor John Hickenlooper's administration intensified a debate over the discipline system. Those urging a change argued that the shootings stemmed from a culture of leniency. In the wake of the shootings, LaCabe formed a 30-member committee at the end of 2004 to start reviewing the discipline system.

In the July 5, 2003, shooting death of developmentally disabled 15-year-old Paul Childs, the commission upheld LaCabe's decision to suspend police Officer James Turney for 10 months. The union has appealed to Denver District Court.

Police Officer Ranjan Ford Jr. served a 50-day suspension in the July 11, 2004, fatal shooting of unarmed 64-year-old Frank Lobato in his bed.

The city charter dictates that the Civil Service Commission, in reviewing the appeal of a disciplinary decision, must determine whether the punishment "is consistent with discipline received by other members of the department under similar circumstances."

At least six other efforts to overhaul that "comparative discipline" have foundered.

LaCabe thinks he can accomplish an overhaul by having the commission put in place new rules, avoiding a voter referendum on the city charter.

Armed with advice from the city attorney's office, LaCabe believes what he's advocating adheres to the charter language. He said the new plan will create a more consistent system because everyone will know and be trained on what's expected of them from now on.

He believes the current system is inconsistent, creating wildly different opinions from managers as a discipline case moves through police management to him.

In the Childs case, Police Chief Gerry Whitman originally recommended a 20-day suspension for Turney. LaCabe imposed a 10-month suspension, finding that Turney used poor tactics. Former Civil Service hearing officer John Criswell reduced the suspension to five days and added a fine of one day's pay, but the full Civil Service Commission reinstated LaCabe's punishment.

Union may challenge

The police union has said that even if the commission approves the new rules, it may go to court, arguing that the move is an illegal change to the city charter. The union hopes to avoid legal action by persuading the commission to continue the reliance on past cases.

The union also is countering with a proposal. Union officials want the commission to alter the standard of proof used to determine whether an officer engaged in serious misconduct.

The city now relies on a threshold known as the preponderance of the evidence, the standard used to decide civil litigation. Such a standard effectively is satisfied if there is a greater than 50-percent chance that the proposition is true.

The union wants to shift the burden for serious cases, such as misuse of force, to clear and convincing evidence, which would require a finding that the allegation is "substantially more likely than not."

Union officials have pointed out that "clear and convincing" is the same standard used to decide police-misconduct allegations in Portland, Ore., where Independent Monitor Richard Rosenthal, who now oversees Denver's internal-discipline decisions, once worked.

"You would think they want their burden of proof to be something that really can't be challenged," said Nick Rogers, vice president of Denver's Police Protective Association.

Rosenthal said Portland is one of only a handful of police departments to rely on the clear-and-convincing standard.

"Can you imagine if an officer is criminally charged with murder and acquitted but is found by a civil jury to be liable by the preponderance-of-the-evidence standard?" he asked. "Under what the union is proposing, that officer would stay on the department, and that doesn't make a lot of sense."

On Thursday at 9 a.m., the commission will hold a preliminary public hearing on the second floor of the Wellington Webb Municipal Building. The commissioners and staff will then draft a final version of the rule changes for a final vote several weeks later.

Four remaining members

The Denver Civil Service commissioners will consider the proposed rules Thursday. The action comes as the commission recovers from the Nov. 20 death from prostate cancer of its president, Samuel William,, a former state legislator first appointed to the commission in 2002.

Cecilia Mascarenas, a former probation officer, first appointed to the commission in 2002 by then- Denver Mayor Wellington Webb.

Neal Berlin, a former city manager in Lakewood, appointed to the commission by the Denver City Council in 2006.

Anna Flores, a novelist, appointed to the commission by the City Council in 2003.

Stephen Young, a lawyer, a joint appointment in 2005 to the commission by Denver Mayor John Hickenlooper and the City Council.