"IPA-gate" -- Making the Case for Actual Inclusion and Transparency in the IPA Selection

In an effort to move the city out of the debacle of the IPA selection of Chris Constantin, the Mayor and several Councilmembers have been trading memos regarding the next attempt to hire an IPA, leading up to a potential Cinco de Mayo vote. While efforts to problem-solve around an urgent issue is appreciated, rushing forward with another hiring process until a full investigation has been done on “IPA-gate” would do San Jose a disservice.

And although Constantin did the right thing and declined to take the job, what was really exposed was not so much Constantin’s personal history, but rather a hiring and vetting process set up and signed off by City leaders that in the end produced the brother of a San Jose Police Officer to monitor the San Jose Police department. At best it was a poorly crafted process that allowed for the unimaginable to occur, and at worst it was an intentional deception.

Even in hindsight, it is hard to believe, just due to the sheer number of people involved throughout the selection process – a high powered hiring firm, a number of councilmembers, the Mayor, and 20 community panelists. But looking back, what the last IPA hiring process exampled was the well-orchestrated illusion of transparency and inclusion, why the act can’t substitute the real thing, and why we can’t run the risk of going down that road again.

And the truth is, we still don’t know key information regarding the last hiring process. The issue of Constantin’s brother may have only been the part of the glacier that poked above dark waters. For this reason, a number of organizations concerned with police accountability issues submitted a California Public Records Act request to the City Attorney’s office.

Silicon Valley De-Bug, the African-American Center, the NAACP, and the ACLU are requesting records of correspondence related to the hiring of the search firm, information about who received the background information from the search firm and records of correspondence between the Mayor, City Council, City Attorney, San Jose Police Officers Association and Police Chief regarding any aspect of the hiring process.

We are also requesting records containing selection criteria used for establishing the Community Panel and the names of those who were selected. What these questions are getting at is that all stages of the hiring process is critical.

Points of Vulnerability in the Process

From the limited information our organization has gathered, the process went as follows: A private headhunting company called Bob Murray and Associates was contracted with the City of San Jose and initiated the search for the potential IPA applicants. They received 58 applications in the form of resumes and online questionnaires. Regan Williams, the Vice President of the company, and former Sunnyvale Police Chief, supervised the next narrowing down process. The group was distilled to sixteen candidates that Williams conducted personal interviews with, which reduced the candidate pool to eight.

That group of eight finalists were then screened and interviewed by the Mayor’s staff. This vetting process than produced four candidates pre-screened by the Mayor’s staff, which were then presented to the Community Panel for interviews. Chris Constantin, despite the disapproval of several community panel members, was then chosen as the new San Jose Independent Police Auditor.

Having spoke with Philip Eure, President of the National Association for Civilian Oversight of Law Enforcement (NACOLE), an association of the oversight bodies from across the country, our hiring process looked at problematic from the outside as it did here in San Jose. In a phone conversation he stressed how important the hiring process is to determine how useful that body will be for bringing proper and independent oversight to law enforcement. He says, “What is needed is to have people involved who can be trusted to not bend from political influence.” Eure went on to say, “Real accountability necessitates transparency.”

Based on the previous San Jose IPA hiring selection, their stills exists two major points where the process can be undermined even before the candidates reach council – the hiring firm, and role of the community panel.

Having the search process being directed by a former local police chief is enough to discredit the selection. The public should be included in selection of the hiring firm, reviewing the Request for Proposal responses, and helping determine which firm will play this important role of getting the initial applicant pool as well as distilling that number to a smaller candidate group.

Secondly, the community panel can not only be a cosmetic group which only gives the impression of inclusion, yet has no actual decision-making ability. For a community panel to truly represent a seat at the table for the public, it needs to be able to play an active role in the vetting process, and determination of who is put forward as a candidate and who is not. Determined who is on the panel as well needs to be a public endeavor. And as suggested by Eure, a public hearing where qualifications of the finalists can be discussed would also build trust that the next IPA, and their history, is known and in the open. Given the violation of trust in the last go round, transparency is not enough to redeem this process, but rather actual involvement by the public is required.

In terms of our the local history of the IPA office, there are also some key considerations. One of the original memos proposed by Councilmember Campos said, “The City Attorney should manage and oversee the process for selecting the IPA.” Outside of having the Mayor run this whole thing again, there could not be a worse idea. For one, the City Attorney’s office is in charge of responding to litigation against the City if San Jose, including claims that have originated as complaints against officers. The conflict of interest here is as glaring as Constantin’s brother being part of the SJPD. Secondly, it was the City Attorney’s office that has reduced the powers of the Independent Police Auditor’s Office to a shell of its former self (which wasn’t enough to begin with.) Not only have they taken the strength out of the office, they’ve handcuffed it as well by making the interpretation that any effort to expand the authority of the office will require a City Charter change . Having the fingerprints of the City Attorney’s office on this selection process would invalidate the IPA in many of the public’s eye.

Indeed, there may be no other city office that needs a clean start with the community to properly do its job. The implications of that failure would completely destroy the purpose of the office. There simply would be no point to the IPA if people do not trust it 100 percent.

Impact If We Don’t Get This Right

If the public becomes hesitant to come forward to a perceived corrupted hiring process, the impact will impact the city as a whole, as well as individual community members.

City leaders, who are aiming to solve issues of police practice will have less information to create educated policy recommendations with. And without a true, testimonial-based and empirical barometer of the issues, police accountability becomes an abstract debate – disconnected from the realities on the ground, anecdotal at best, and incapable of moving forward.

And a reluctance by the public to come forward also has long-term impacts for the court system – not just police and the people who complain about them after an incident. Criminal defense attorneys who feel their client was wrongfully arrested, abused, or targeted, rely on a trusted system for civilians to lodge complaints against offending officers. These complaints appear in personnel records, which attorneys then use to evidence the allegation. A Pitchess motion is a commonly used legal device in which a request is made in a criminal case, such as a resisting arrest case, to access a law enforcement officer's personnel information when the defendant alleges that the officer used excessive force or lied about the events surrounding the defendant's arrest. Lack of an IPA office that is trusted to be truly independent can undermine defendants who’s liberty are on the line. With the reports around suspiciously high and racially disproportionate arrest rates from public intoxication, resisting arrest, and disturbing the peace, that the city is currently wrestling with, there could not be a more harmful time for the public to be less willing to file police misconduct allegations.

The fact that police accountability in San Jose is being shoe-horned into a question of who is the IPA, versus likely the more solution-based questions like, “What powers should the IPA have?” or “What is the most appropriate and useful model for law enforcement accountability for San Jose?” is in indicator of how far we have to go as a city.

And often missed in all this is the personal journey people take to file with the IPA. All those numbers and statistics that are generated with the annual IPA reports are only made possible through real life moments of trauma, and a faith in the possibility of justice that defies sometimes people’s own logic that police can ever be held accountable in San Jose. For each complaint filed means someone who feels there rights have been violated, have either the emotional and physical bruises to show it, and rather then returning to their daily motions, is actually taking time out their busy lives to re-live their pained moment with strangers. Indeed, there is anxiety, anger, and tears that fill those IPA sessions. But I can tell you first hand, that the tipping point that gets them to walk into that IPA office is not that there will be any immediate recourse on the officer they are filing about, but rather that by their filing, they will help spare the same injury from happening to another down the road. They are doing their civic duty.

San Jose has an obligation to honor the courage of those who are stepping forward at the most vulnerable moments of their lives. The way to receive a gesture like that is to provide an above water, transparent, hiring process for the next IPA, that shows through action the word “independent” is a respected value. That gesture starts with the hiring process.