UPDATE: San Jose council votes to give police auditor more power

San Jose is moving forward with tentative plans to expand the city’s police oversight powers, despite claims by the police union that the changes may violate the city charter.

In a unanimous vote, the San Jose City Council agreed Tuesday to accept Mayor Sam Liccardo’s call to add an investigative branch to the Independent Police Auditor (IPA). The move will help establish an investigative team to probe police misconduct complaints independently of the San Jose Police Department—something the IPA currently can’t do.

A report compiled by Oakland law firm Moeel Lah Fakhoury recommends establishing the investigative team in order to improve police accountability in San Jose and build trust between the department and the public.

The council’s Public Safety, Finance and Strategic Support Committee will discuss next steps for adopting the new team in April.

“This is not a novel, radical notion,” Liccardo said about the change. “This is pretty standard police accountability, police transparency practice.”

The move to expand the IPA’s powers comes as SJPD struggles to hire new officers and misconduct complaints against officers have spiked in recent years. San Jose recently launched a web portal where closed misconduct case information from the IPA can be viewed and downloaded. It doesn’t include records from SJPD such as body camera footage or police reports.

Gregg Adam, an attorney representing the San Jose Police Officers’ Association, sent Liccardo an open letter Tuesday claiming the mayor is mistaken in asserting the city can establish an IPA investigative team.

“Nothing in the City Charter permits the IPA to flout these limits and conduct her own independent investigations,” Adam said in the letter. “And nothing gives the Council the authority to expand the IPA’s powers beyond the limits.”

Liccardo said Rick Doyle, the former city attorney, previously determined the city could legally expand the IPA’s reach. But City Attorney Nora Frimann said she would need time to review whether the charter prohibits the council from expanding the IPA’s powers.

Police union President Sean Pritchard said the union had been blindsided by the report, but Moeel Lah Fakhoury attorney Andrew Law said his firm reached out to the union several times while it compiled the report and didn’t receive a response.

“Nobody’s trying to play a fast one here,” Liccardo said. “This has been on our agenda for two and a half years.”

Police Chief Anthony Mata questions whether the changes are necessary, citing a longstanding relationship with the IPA and high agreement rates between the department and the auditor.

“We do not believe that a dramatic departure from a system that is working is needed without further discussion,” Mata told San José Spotlight. “This is a complex situation, one with many legal and policy issues to resolve. That is best accomplished through collaboration and careful consideration of the issues with the various stakeholders.”

Increasing oversight

If established, the three-person investigative team would include a supervisor and two investigators with full access to investigate public misconduct complaints for the first time since the IPA was created in 1993.

Currently, the auditor can only attend interviews conducted by internal affairs during department use of force investigations to determine whether the investigation is thorough and fair. If it determines the investigation is incomplete or unfair, the IPA can appeal the department’s determination. The IPA is only allowed to audit these investigations when a member of the public files a misconduct complaint.

Liccardo first proposed expanding the IPA’s powers in the aftermath of the 2020 murder of George Floyd by Minneapolis police, which sparked a national uprising and demands for stricter police accountability locally.

Independent Police Auditor Shivaun Nurre said the investigative team would be a well-timed expansion of her office’s powers that could improve public trust of police oversight. In its 2021 report, the IPA office raised concerns about the quality of several misconduct investigations conducted by the department’s internal affairs division.

Internal affairs investigators typically serve two years before rotating out, Nurre said. But it takes about a year for officers—some of whom come to the team without previous investigative experience—to become proficient in misconduct investigations.

As public outrage over the murder of Floyd and several controversial local police incidents in recent years has calmed, the city is better-positioned to make a level-headed decision about increasing police oversight powers, she said.

“I’ve heard people commenting that they don’t feel that our office has enough authority to address misconduct,” Nurre told San José Spotlight. “I think, in the big picture, it’s a pretty bold move.”

Contact Brian Howey at [email protected] or @SteelandBallast on Twitter.