Police Accountability Series Part Two: Pittsfield Struggles To Establish External Police Review

Dec 11, 2018

In a county with almost no direct, formal police oversight, Pittsfield, Massachusetts is attempting to revive its Police Review and Advisory Board for the third time.

Pittsfield has had three attempts at setting up an advisory committee for its police department in as many years.

“We always had this feeling that we didn’t really know what our mission was – even though it was described in writing, it just seemed so broad that we didn’t really feel that we had any usefulness to the city," said Ryan Cowdrey. He sat on the second, most recent version of the city’s advisory committee. “We had two or three meetings where we tried to come up with some ideas of things that we could work on, we tried to bring the chief in to talk, and then the mayor – and we still were left with this feeling of not feeling like we had a real purpose that was useful. And we kind of all agreed that if we couldn’t do something that would benefit the city, then we would rather be on other committees that we could be more helpful on.”

Cowdrey says the Public Safety Advisory Committee – as it was known – felt redundant.

“And the big thing was we were doing a lot of the same things that the city council subcommittee was already responsible for, and they actually had authority to make decisions where we were just making recommendations," Cowdrey told WAMC. "So it seemed kind of pointless.”

Even so, Pittsfield is still distinct in Berkshire County for trying to formalize any such organization. About 20 miles north, North Adams Mayor Tom Bernard says that while his city has no external police advisory or oversight group, he has faith in its departmental hierarchy.

“If it’s something that is related to a particular officer, it should be addressed by the sergeant, and if that doesn’t provide a satisfactory resolution, escalate it to the lieutenant, the director, and then to the mayor," said Bernard. "So there’s steps. You know, there are times as there are in any department where the call will come to the mayor’s office because people say ‘I’m going to take my issue right to the top,’ and part of this idea of empowering and expecting department heads to run their departments is politely, respectfully redirecting people to the appropriate point in any chain of command.”

Twenty miles south of Pittsfield, Town Manager Jennifer Tabakin says the Great Barrington Police Department was accredited by the Massachusetts Police Accreditation Commission in May 2017.

“That has given review to our policy and procedures within our department, and we have policies and procedures to address most functions of the department, including internal affairs," Tabakin told WAMC. "And the guidelines and considerations of how things are overseen when there’s a complaint, how investigations need to be proceeded, are all outlined in this policy.”

The community of around 7,000 relies on its town governance structure to deal with complaints about police conduct – though Tabakin says they are few and far between.

“The town charter outlines the roles and responsibilities for the town manager in supervising the police chief and the police department, and the role of the elected officials, as the select board, representing the residents of community, and addressing issues that come their way," she said. "So they also have a role to play, and that can involve looking into issues or doing various levels of investigative type of – judicatory type of investigations if they choose to do that.”

The lack of external oversight for municipal police departments is not unique to the Berkshires.

“Cambridge has our Police Review and Advisory Board, Boston has the civilian oversight ombudsman panel, Springfield has the community police hearing board, and to my knowledge, those are the only specific oversight agencies that exist," said Brian Corr. He's the president of the National Association for Civilian Oversight of Law Enforcement. He’s also the director of the Police Review and Advisory Board in Cambridge, Massachusetts. Right off the bat, he says civilian oversight offers communities something extremely important.

“For the community to feel and really have a way to know that there’s accountability and transparency, for the community to have a clear way to have a voice in the kind of policing that happens in that community are both very important," Corr told WAMC. "And also, in communities where there have been serious problems with policing, I’d say it’s also an important part of rebuilding the trust or creating trust in places where it may never have existed.”

Corr says oversight is about improving the culture of law enforcement and justice.

“It’s important that oversight be seen as something that’s procedurally just and has legitimacy with the law enforcement agency that it’s overseeing,” he said.

Establishing such a body can be easier said than done.

Pittsfield is the seat of Berkshire County and its largest community, with around 43,000 residents.  The city’s government is exploring a third pass at forming a police advisory and review board.

Igor Greenwald is a community activist who helped form Civil Liberties Pittsfield, which describes itself as “an informal civic group dedicated to defending and extending the civil liberties” of residents. He said part of the inspiration behind the group came from the election of President Trump– and a sense that the fight for civil liberties had come much closer to home than under previous administrations.

“The realization that the feds will not oversee anything, and the only effective control and the only effective guarantor of civil liberties locally is the police department,” he told WAMC.

Greenwald’s interest in oversight also stems from his own experiences with the Pittsfield PD. He says after the Sandy Hook shooting in 2012, his son – who has Asperger’s – was profiled by a staff member at his school over a joke on his Facebook profile. The joke – about being an assassin tasked with defeating his brother, described as “an evil warlord” – led to a report from that school to Pittsfield police.

“An officer basically entered my house when my son opened the door without a warrant or any kind of court instruction," said Greenwald, "and basically said ‘we’re taking your son away for a psychiatric evaluation,’ and when he was told that this was a long ago joke that the parents knew about – that clearly eliminating the evil warlord wasn’t a serious threat of any sort – he became angry and yelled at me and called me a bad parent in front of my son and ultimately called over a sergeant who basically said ‘we would like to help, we understand this is silly, but if something were to happen afterwards, it’s our job on the line, so we’re going to do it anyway.’ And they did.”

Police took his son – then 13 – away in a cruiser. Greenwald said that while his son was cleared by a staff member at Berkshire Medical Center, the ease with which his child was taken away by the police disturbed him. Greenwald’s reaction was only compounded when he got a redacted copy of the internal affairs report on the incident.

“The officer who showed up at my house, in justifying, I guess, his warrantless entry, said that he had been – he believed he was sent to my house to control and disarm a highly trained assassin, and he had the sense that this could turn into a lethal use of force situation," he told WAMC. "Those are chilling words to read when you realize that what precipitated this was a panicked and groundless rumor mongering by somebody who didn’t know my son, didn’t deal with him, wasn’t his teacher or psychologist or anything else.”  

He saw the revamped advisory board as an opportunity for the city to excel.

“Initially I was very optimistic when I got a group of community activists and respective community leaders, we wrote a letter to Mayor Tyer and Chief Wynn urging them to take charge of this process and to lead this process so that we can establish important and – we thought – mutually agreed principles of accountability for the law enforcers and public participation in the policy making process,” explained Greenwald.

Other signatories included Pittsfield City Council Vice President John Krol, City Councilor Helen Moon, community activist Shirley Edgerton, Berkshire NAACP Branch President Dennis Powell, Pittsfield Human Rights Commission Chair Drew Herzig, and others. It called for “a Public Safety Oversight Board tasked with authoring an annual report on local policing, with space for the Police Department’s key messages as well as feedback from a broad cross-section of community and vital annual police statistics.”

Drawing attention to police shootings and mistrust in the community, the letter from Civil Liberties Pittsfield stresses that its vision of an oversight commission would be a firmament for citizen-police relations and stave off potential issues with the department.

“They were initially very encouraging," said Greenwald. "They promised dialogue – but it took months to set up a first meeting, and that’s the only meeting we got. And after we engaged in what we thought was respectful discussion, we found a brick wall on the other side because the city in fact is afraid of replacing its two failed advisory committee initiatives with even minimally effective oversight – I think also for the principle that we established that the police are in fact accountable to somebody else other than themselves.”

Greenwald says his skepticism emerges from the content of the mayor’s advisory board ordinance that is going into its fourth hearing in the city council’s ordinance and rules subcommittee.

“With one notable exception, it’s a copy and paste job of the last two – of the past ordinances authorizing these failed advisory committees, where they didn’t fail because they didn’t have tremendous powers, they failed simply because they didn’t know what they were supposed to be doing, nobody told them how – what advice they were supposed to give based on what information, so they never gathered – they were always seen locally, by the local establishment, as essentially cheerleading groups,” Greenwald told WAMC.

There are many similarities between the last and newest incarnations of the committee.

The stated mission of the Public Safety Advisory Committee – drafted in 2015 – is “to study public safety related policies, practices, and procedures and to provide a forum in which citizens may address matters of public safety.” The same phrase is used in the new draft, with the word “police” replacing “public safety.”

The new Police Advisory and Review Board ordinance – drafted in 2018 – is officially “established to advise the Mayor, the City Council and the Police Department regarding police matters, and assist with the adoption and revision of rules and regulations (including city ordinances) related to the Police Department.” That phrase mirrors the last ordinance’s draft other than replacing “public safety” with “the Police Department.” But from there, it continues, saying that the new board will “provide an impartial and fair review of complaints brought by citizens regarding the Police Department.” Both drafts allow the respective bodies to participate in “the development of programs and strategies to promote positive community/government relations by providing opportunities for discussion, communication and understanding and thereby enhance the quality of life in the City of Pittsfield.”

The newer pass at the board goes farther from the last attempt in several ways. First, the late Public Safety Advisory Committee explicitly outlawed “matters involving civil service law, zoning law or any other matter which involves an appeal procedure as set forth by state law nor shall the Public Safety Advisory Committee hear matters involving disciplinary action of city employees.” No such restriction is worked into the new board – which also requires the Pittsfield chief of police to “transmit all final Internal Affairs and Administrative investigative reports to the Board within sixty days of completion.” The chief – or a chosen representative– is “encouraged to attend Board meetings” and “shall attend Board meetings as may be reasonably requested to provide information and advice in order to enable the Committee to fulfill its mission.” There are no requirements put on the chief in the previous iteration of the board.

In the proposed ordinance submitted by the Pittsfield Civil Liberties group, there are more explicit rights and duties granted to the board. It includes the authority to “subpoena witnesses, compel their attendance, compel the production of evidence, administer oaths, take testimony, and make disciplinary recommendations to the Police Chief. The City Solicitor’s Office shall assist the board in enforcing these powers in court as necessary.” In the proposed ordinance, the board is also tasked with creating and publishing yearly reports and statistics on the police department and its activities.

“The new advisory committee will be able to consider citizen complaints – but first, the prior ones were not really barred from doing so, and second, no sane person would take their complaints of police mistreatment – which are often highly personal – to a panel that can’t even investigate them on its own,” said Greenwald.

His concerns are not just about the stated powers.

“The national association of police oversight organizations have issued standards about what constitutes effective oversight, and they’re common sense criteria – they’re like, independence, adequate funding, professional, step-by-step process – but the one I thought was notable and the one that this proposal fails more than any other criteria – is the intangibles one," said Greenwald. "It’s a sense that city leaders are open to real, effective accountability for the police department and real public participation in setting law enforcement priorities. I think that when that’s the case, police oversight boards can overcome a lot of other handicaps. Here, what’s clear is that city leaders only are interested in sidetracking the process and getting another pet advisory board that will promote, produce the propaganda that it was always expected to.”

“There are people who are calling for an oversight, which is not something I support. I believe that’s a step too far," said Pittsfield Mayor Linda Tyer. “The proposal that we’ve put forward to the city council – the chief and I – is actually a huge improvement over what is currently in place for what is now known as the Public Safety Advisory Committee.”

With a new attempt comes a new name – and, as Tyer, a first-term Democrat, stresses – new powers.

“We’re calling it the Police Advisory and Review Board – will actually have more opportunities to engage with the chief and to provide advice and guidance to the mayor, the city council, and the police department on matters related to police department interactions within the community,” said the mayor.

Tyer says the ordinance also offers more transparency, saying that “this opportunity which doesn’t exist now is the chance to review investigations that are conducted by police employees.”

“I think we’ve been more than transparent, for long before my tenure," said Michael Wynn. "We have a very robust internal affairs procedure in place. It’s cited as an example from other communities.”

Wynn has been Pittsfield’s police chief for 11 years, ten of those as acting chief.

“We have no problem formalizing opportunities that exist already and putting them in a structure that will make them easier to access and facilitate communication, but most of what we’re proposing in this ordinance could have been happening all along if people took the time and the interest to make the request,” said the chief – who says he’s advocated for a board like this for more than a decade.

“Honestly, when I first proposed this in 2008 or 2009 it had zero traction," he told WAMC. "I couldn’t get the language for the ordinance crafted and drafted. It finally did go forward in the twilight of the Ruberto administration, but the members were never appointed.  One of the first requests I made under the Bianchi administration was to appoint the members and fill the committee. That was done.”

Wynn said a lack of conversation about the committee’s composition and mission made it impotent from the start. Tyer, who started the city’s first four-year mayoral term in 2016, says Pittsfield won’t make that mistake again.

“If we are successful in getting this proposal passed and getting this committee up and running, there is going to be some very important orientation that has to take place at the beginning, so that the members understand what is the mission, what is the vision, and to give them the proper training so they can be adequately prepared for the work that we’re asking them to do,” the mayor told WAMC.

As it stands, the mayor’s ordinance contains no specifics on how that training would be conducted – or with what means it would carry out such training. Like the rest of the city’s boards, it has no budget to spend.

Regardless, Wynn says the new board offers a fresh start for his department.

“I’m always interested in increasing methods and channels of communication so that I can get more information and better information about how the department is doing, what we’re doing well, what we have room for improvement on," said Wynn. "And if I can open up additional channels of communication so people who don’t feel that they can access the police department have a different way of doing that, I’m happy to do that.”

Both the mayor and chief say the powers Springfield and Cambridge have in their ordinances are inappropriate or impossible for Pittsfield.

“The subpoena power has to do with the board investigating police officers, which – we can’t give subpoena powers to a committee like this,” said Tyer.

“You can write an ordinance, but that doesn’t mean you can enforce it or utilize it," said Wynn. "And yes, the Cambridge ordinance includes subpoena power. But they can’t use it, because the subpoena process in the commonwealth is through Superior Court. You can’t cede subpoena power to a municipal, volunteer committee.”

The actual use of subpoena power from the boards in Springfield and Cambridge hasn’t happened yet.

“It's more that the subpoena power isn’t going to get people what they want than the power is difficult to exercise," said Corr. “It’s more that the idea people have is that we’re going to get the officers to testify before us, as I said –and the reality is that it’s just not something that you can meaningfully do. And it doesn’t matter that it’s a volunteer board or city staff. Again, the police commissioner or police chief as a matter of the paramilitary structure of a law enforcement agency – command and control – can order someone to make a statement. But again, then those statements can’t be used in some sort of legal forum.”

Corr says Cambridge has a strong relationship between its board and its police department that has made such a gesture unnecessary. Springfield City Solicitor Edward Pikula says that’s tended to be the case in his community as well.

“We typically have cooperation from – I mean, we haven’t had any police officer that has not shown up, and obviously, we can order the police officers to show up – and there are situations where officers may exercise their right to remain silent under the Fifth Amendment, that has happened," said Pikula. "But typically that’s where there’s some sort of parallel criminal investigation going on, and we will routinely defer to any criminal matter until that gets sorted out.”

Springfield’s Community Police Hearing Board is unique.

“It was created in 2010 to be the hearing agent on disciplinary matters for police misconduct, where citizens complained that they have been harmed by a police officer through excessive force or false arrest,” explained Pikula.

It was established under an executive order from Democratic Mayor Dominic Sarno. Despite its lack of a foundation in the city’s bylaws, it’s survived longer than any of Pittsfield’s efforts. Pikula says it’s been designed to not just exist, but flourish.

“It started a long time ago with a study," he told WAMC. "We had professor Jack McDevitt and his partner do – and he’s the same professor at Northeastern that put together a study for the city of Boston – and his study set forth some – what he thought was a good model for Springfield, that really at that point only involved civilian review. It didn’t involve any powers. But he noted that the review board should evolve over time, and it has. So, when originally established 2008, 2009 as a review board, Mayor Sarno in 2010 had it evolve into a hearing board. And the hearing board’s powers and authorities have changed over time. Most recently, the last amendment to the executive order was in January of 2018, it became effective. We’re always trying not to so much give it more power but give it more legitimacy so that the decisions are more acceptable to the community and the officers, because that’s the only way you find the balance.”

For their part, Pittsfield’s leaders, including Police Chief Wynn, say they will make sure the board’s members can institute lasting recommendations.

“In my conversations – spoke to Cambridge, spoke to Springfield – one of the issues Springfield dealt with is, a recommendation comes back and the recommendation is in conflict with the civil service law. That can’t be," said Wynn. "There’s going to be a requirement for some human resource expertise and some legal advice to be provided to this committee, because their recommendations have to be consistent with the contracts and the law.”

Corr says the most crucial component of an advisory or oversight board is that it works for all parties involved. He offered the story of Newark, New Jersey.

“In the wake of a consent decree which mandated civilian oversight be formed, the mayor worked with a number of people in the community to create the strongest form of oversight in the country," said Corr. "And unfortunately, what happened was there was an immediate lawsuit from the state police union, the New Jersey Federation of Police.”

That stalled the process for years and led to a court injunction.

“At the end of the injunction, a lot of the really strong powers had been stripped away," said Corr. "And to me, that is a cautionary tale because people went into it with the best of intentions, thinking that they had an opportunity to create something that was unique – but unfortunately, it wasn’t sensitive to all of the different stakeholders. And while I think that that board in Newark is doing important work and has important powers still, there was a sense in the community that they were very let down, because they thought that they had created this amazing thing, and then when the broader system in the community – the state laws, the courts – in the end said, ‘well, that’s really not going to work,’ people were really disappointed.”

In Springfield, Pikula says finding common ground between groups is happening.

“The unions are becoming more comfortable – in particular, the supervisors union," said the solicitor. "I think both unions were very wary of this originally, but I know the supervisors union has been very supportive of this going forward.”

The new Pittsfield ordinance reserves four spots on the board for representatives of the NAACP, the Berkshire Immigrant Center, the city’s Human Rights Commission, and a member with law enforcement experience.

Tyer admits the fault in one aspect of her plan – the proposed number of board members.

“That’s one area that I think, I wish we had been more thoughtful about," said the mayor. "I think 13 is too big, so I’m hoping that the City Council, the Committee on Ordinances and Rules, will reduce that to a five – or seven – committee composition. I think that is much more conducive to what we are trying to accomplish.”

For now, with the new ordinance still working its way through public hearings and the city council, Mayor Tyer says it deserves a chance.

“Before we condemn it and say it’s not going to work, we ought to put it in place, let it function and operate as we’ve proposed for a year or two, and it can always be modified or amended," she told WAMC. "If there are aspects of it that we see either need to be strengthened or need to be rewritten, this is an opportunity for us to get it started, get everybody at the table, and let’s see how it works.”