VOL. 131 | NO. 160 | Thursday, August 11, 2016
Council Mends CLERB Rules, Questions Future Role
By Bill Dries
One of the last major acts of the Memphis City Council that left office at the end of 2015 was passage of an ordinance that reconstituted the Civilian Law Enforcement Review Board.
The November 2015 passage was applauded by groups including the Mid-South Peace & Justice Center and Memphis United as giving the nearly 20-year-old board more teeth in investigating allegations of police conduct.
The new council with six new members was this week once again patching and mending the ordinance that defines CLERB.
And the primary mender talked Tuesday, Aug. 9, of the council possibly getting directly involved in hearing claims of police misconduct at some point in the future.
“Maybe the city council has better teeth, better authority to more accurately hear these cases and make recommendations that stick and can’t be ignored by the mayor,” council member Worth Morgan said before the final council vote Tuesday approving the latest amendments to the CLERB ordinance.
“CLERB as it exists today doesn’t have the tools to investigate like we do,” Morgan added during committee discussions Tuesday. “I still haven’t heard a good argument for why the city council shouldn’t handle this themselves.”
The fix approved Tuesday was supposed to make it clear that CLERB had to abide by the state’s open meetings law. But in the process, lingering legal concerns about the council’s move to extend its subpoena power to the board in the 2015 ordinance surfaced again.
Council attorney Allan Wade said the council couldn’t give the power to anyone else.
So Morgan included a fix Tuesday approved by the full council that has the council issue a subpoena for testimony and/or records with the council then meeting to hear the testimony or review the records with CLERB members.
“It is a meeting of the city council that CLERB members will have to attend,” Morgan said. “It will really be a joint meeting. … I think that, in itself, is a little more complex than it should be. I don’t see any way around that unless we change the city charter.”
A charter amendment would have to be approved in a citywide referendum. A referendum ordinance would have to pass three readings for the question to go on the ballot. And Aug. 25 is the deadline for getting an item on the Nov. 8 election ballot, so there isn’t time to get a charter amendment on that ballot.
Wade signed off on the latest CLERB compromise legally, with the provision that the council will come up with procedures for such sessions, including how they are conducted and who would question witnesses.
The subpoena power is seen as putting teeth in an ordinance that critics of CLERB claimed the body never had from its inception in the mid-1990s. The board didn’t meet for years at a time.
There is no guarantee that a police officer accused in a citizen’s complaint of misconduct would comply with the subpoena.
If that officer did, he or she could and likely would refuse to answer questions based on their Fifth Amendment right against self-incrimination, including against non-criminal administrative charges and civil lawsuits.
Because CLERB can’t investigate until police have completed their own investigation, a subpoena from the council would come after a police officer accused of misconduct has been questioned by police investigators.
“No lawyer is going to advise you to make a second statement on the record,” Morgan said.
And the board can only make recommendations. It cannot file criminal charges.
That prompted council member Patrice Robinson to ask of the amendment, “Does it change anything?”
Council member Philip Spinosa agreed that the amended ordinance is a temporary fix.
“I think this is a great document for now,” he said. “I keep asking myself that same question.”
Council chairman Kemp Conrad cast the only vote against the measure.
CLERB chairman Ralph White was not among those praising the amendment.
“We were ready to go forth and do the business,” he told council members Tuesday. “I was always taught if it’s not broke, don’t fix it. I think we need to get along with the business that’s at hand.”