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VOL. 131 | NO. 161 | Friday, August 12, 2016

CLERB Board Seeks State Legal Opinion On Subpoena Power

By Bill Dries

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The Civilian Law Enforcement Review Board voted Thursday, Aug. 11, to seek a legal opinion from the Tennessee Attorney General’s office on whether state law permits the board to have direct subpoena power.

The request comes just two days after Memphis City Council members sat in the same seats in the same room at City Hall and gave final approval to an amended set of ground rules for CLERB that granted an indirect kind of subpoena power.

The amended ordinance allows the council to use its subpoena power to hear testimony from witnesses and get records in investigations of alleged police misconduct. And CLERB members can be present for the council sessions where the subpoena power is used.

The council approved the compromise after council attorney Allan Wade said it would be illegal for the council to delegate the subpoena power granted to the council in the city charter.

“With all due respect to the council, why do we have a board, if they do all of the work?” asked attorney Bruce Kramer, a CLERB member who moved for the state legal opinion. “That’s something this board is going to have to grapple with.”

Kramer specifically questioned why a similar board in Knoxville has subpoena power and the Memphis group doesn’t.

“If it’s just for show, if it doesn’t protect citizens, why are we here?” Kramer asked

Kramer said if a legal opinion holds that state law permits direct subpoena power, the issue of changing CLERB rules to permit it would return to the city council.

“If the council doesn’t, citizens will know the city council does not want this board to be effective,” Kramer said.

The ordinance governing the review board returned to the council earlier this year to correct provisions that were used to close a portion of the review board’s meeting. All CLERB meetings are open to the public under terms of the state’s open meetings law.

As council members were reviewing that, lingering doubts about the legality of direct subpoena power granted in review board amendments approved by the council at the end of 2015 surfaced again.

Wade advised taking the subpoena provision out of the ordinance entirely. With his approval, the council crafted a compromise that effectively borrows the council’s subpoena power. Still to be decided are the rules under which the council would meet to hear testimony or records sought with a subpoena.

Wade was clear at Tuesday’s council session and council members agreed that the council would set the rules of procedure for those sessions.

CLERB chairman Ralph White continued to say Thursday he has problems with the newest set of amendments and claims no one on the board was consulted.

“They have actually taken our power,” he said Thursday of the council. “We are where we were a year ago. We have no power.”

He also accused the council of having a philosophy of “if it isn’t broke, break it,” in coming up with the new procedures.

“I feel like we really wasted our time,” White added.

The idea of the council taking direct control of the process for citizens to file complaints of police misconduct came up during Tuesday’s council debate before the amendments were approved.

Council member Worth Morgan who sponsored the compromise on subpoena power referred to it as a tentative step until the city charter could be amended in a citywide referendum.

Such a ballot question would either grant CLERB direct subpoena power or include hearing and making recommendations of misconduct allegations a part of the council’s duties.

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