according to the rules -- >> we posted it this morning according to the rules and will be sending it out. i do have some materials with me tonight. commissioner hammer: thanks to lt. reilly, who has been working hard on the logistics of the retreat. we do have a facilitator for the retreat, an outside person coming in. that is it. president marshall: do you have anything to add? >> item 3 is a long list of things we would like you to think about. keep in mind the role of the commissioner, the relationship with the san francisco community, a relationship with the chief, relationship with the media, and a communication protocol. if you think about it beforehand, we will be able to go through this faster. president marshall: you are giving us homework?

>> we are. president marshall: thank you for all your hard work. you have done a great job. we look forward to it. do you want to talk about the proposed amendments to the disciplinary reform? commissioner hammer: i sent around a draft with proposed changes. a couple of months back, we amended the main rules of the disciplinary hearing. we set time limits with the idea -- in light of the fact that we had several cases and things that had bogged down a bit. what we did not deal with at the time is the problem of what happens when an officer chooses to go to a hearing officer that is not the commissioner. i think we have all seen the list of cases a couple of months running, seeing that some of these cases get quite old waiting for a date to be picked for a hearing officer to be chosen. i worked with ms. blitz and rand them by lt. reilly.

i sent you some major revisions to these rules. i would like to review them. if you have input i would welcome it. you do not have to document all this so we can understand as we go. the first -- i think this was commissioner mazzucco or commissioner chan's idea. we would assign a commissioner to follow the case. the lieutenant was left to corral the lawyers. this can take six or nine months to pick a hearing officer date. one of the proposed revisions is to assign at the outset one of us to monitor that case. i will go to the other proposed changes. in the event that in a timely manner a hearing officer is not picked, the commissioner presiding would make sure this came back to the reassignment.

that is the first change. it is on page 2 of the current rules. the second proposed change would change the selection procedure for the hearing officer. if you look at the current rules, it is rather blocky and it takes a potentially long time to pick that hearing officer. it is often used in civil cases with arbitration where there is a list, people strike names, and another list comes and days and weeks pile up. the procedure i am proposing is that the entire process from the time it leaves us and is assigned to a hearing officer takes 14 days. that is the parties have two weeks to agree upon a hearing officer and a hearing date within 90 degrees. if they do not do that within two weeks, which is quite a long time, it comes back to us for normal assignment. that is the second proposed change. the third one is on page three, section d.

the current rule reads no reassignment of case. that is the problem. when a case gets assigned, it can flow out there whenever -- for however long. i think the case has languished and not gone to a hearing within 90 days, we take it back to the commission either to be heard by us or for an individual commissioner to do it. the fourth is later on. it is on page seven, i believe, at least on my copy. this is to do with what happens when the hearing is over. under the current procedures, the hearing officer, who is paid 300 or $400 an hour, is given time to write a lengthy report including telling us what he or she thinks should happen in the case. we have to read the transcript any way to come to our independent judgment, so i think we do not need someone else to

tell us since we are going to read the transcript as well. this shortens the report to 10 pages maximum to be delivered within 10 days and focuses solely upon that hearing officer's observations to the hearing on demeanor and credibility. that is something we cannot see and it would be helpful for us to hear something that came up with the live eyes of the hearing officer. that is the fourth change. the fifth is at the very end, on the very last part of the current rules. this came up a couple of weeks ago. even if we sustain a finding after all these delays, we have to put it up for a further penalty hearing, further delays. i am proposing that we allow the commission the authority on that very same night to consider a penalty. we could continue it up to 21 days. it cuts down that link the process. those are the proposed changes. i want to give lieutenant reilly credit for coming up with some

of them. the lawyer has no proms with the proposed changes. if people have other ideas, we can take those and move on to the next step so that we can vote on these. vice president mazzucco: this is great work. it ties up some of the loose ends we have had to deal with with reference to the cases being farmed out to the mediators. this is great. i appreciate it. a lot of thought went into this. thank you for doing what you did. this is a great document. i am glad the city attorney's office look at it. we need to get this on the calendar for approval. our only problem now are those cases that are sitting out there with hearing officers. once we tie up this loose end, we will be in really good shape. thank you. commissioner dejesus: i had a no-time waiver. there were not any rules to

discuss when the discovery had to be turned over, how quickly we were born to set it, whether we would set it before the full commission. i think we should have a pair graf where for a no time waiver procedure -- a paragraph where for a no time waiver procedure -- >> that is 90 days. it is an unusual situation we are dealing with there. this is a case that did not have a hearing officer. it was one that was assigned to you. commissioner dejesus: i understand. but i think we should recognize it in our rules. i think there was a little bit of problem with the department having a longer time frame in terms of doing this investigation and turning discovery over. we wanted to set it quicker. i think we should have something to say if it is a no time waiver that discovery will be served.

commissioner hammer: what i was talking about was the supplemental rules. i think you are suggesting an amendment to the general rules regarding disciplinary series -- hearings. am i right? commissioner dejesus: i just think we should let out a procedure very clearly. commissioner hammer: i would be happy to work with you to compose that. i think it is a good idea. commissioner chan: this looks great. there are some ideas in here i had not thought about that make sure that we stay on top of a case and that the system cannot be gamed and that cases are processed as quickly as possible. i appreciate the time you put into it. the only part where i am not a sure -- as sure is the content of the hearing officer report. i see why you cut it down, because it is a bit too long, but i wonder if you cut it down a little bit too much.

the recommendation about whether there is sufficient evidence in the record -- i feel it is helpful to have a recommendation. obviously, we do not have to follow it. i view the hearing officer as like a magistrate judge to make the recommendation we can accept or deny. it is useful to get a recommendation from a person who heard the evidence. when the commissioner is assigned to the case, at date report that to the commission. commissioner hammer: i am very open to the suggestion. currently, there are a lot of things the report. it is a master's thesis. it has taken months sometimes. their report on basically every charge, which for me is overkill. what i would find useful is a recommendation if there was insufficient evidence on a particular account. would that address where you are talking about? commissioner chan: i think i would just keep that. it does go to say whether or not

there is sufficient evidence. i agree we do not need the list of evidence, the summary of fact, and the charges. it is just going to each charge and getting the recommendation. not that we would always follow it, but it is helpful. commissioner hammer: i am happy to incorporate that and it is interesting. to keep it moving, i want to have this report still short. perhaps if we expand it to 15 pages with recommendations. my fear is, commissioner, that if we give much more leeway to the hearing officer we will end up getting another brief. we will end up getting a brief from the department and from the lawyer. i do not need a third brief. commissioner chan: i completely agree with you and that makes sense. if you want to add a few more pages just so we can put back in the recommendation for each charge, that would be helpful. the other items that you removed to make the report shorter make complete sense to me and i

understand the goal. i think it is an important goal. commissioner hammer: so the suggestion is to increase it to 15 pages and include a brief recommendation whether or not charges have been sustained or should be sustained based on the evidence. is that right? commissioner chan: yes. thank you for hearing that out. commisser kingsley: i agree that the 15 pages may give the hearing officer a little more leeway to complete his or her job on this. with regard to the recommendations, perhaps we could make that at the discretion of the commission, in that we could ask for recommendations or not. i think that by including the recommendations, there is a potential of providing taint on it for our own individual judgment. i like to read everything and come to my own conclusions before having a dialogue with the other commissioners. to have the recommendation of

the hearing officer cannot help but provide some influence. i would like to have the option of having the recommendations or not. perhaps we could write this in such a way that if we wanted to have that out at our discretion. commissioner hammer: i agree with you about the tate possibility, but we have an independent -- taint possibility, but we have an independent duty. the only logistical problem is deciding whether or not we want it is another delay in the process. i want the close of evidence to trigger the 10-day period. if they have to come to us for recommendations, that could add the late to that. commisser kingsley: a suggestion around that would be that the hearing officer right to the recommendations but that it be sealed and we opened it as a commission if we decide when we are having our discussion

regarding the matter. commissioner hammer: i would love to hear feedback from other folks. commisser kingsley: i am laying out some thoughts rather than a black and white. president marshall: the other side of that is we do not have the advantage or luxury of having the hearing officer in our deliberations. when we are here, we get feedback from being there. i do not think this commissioner has done a hearing where i was not asked at some point about their thoughts. i would like as much of that and the hearing officers brief as possible. for me, i have liked the hearing officer reports. it gives me what i would generally here if that person were present anyway. -- generally hear if that person were present anyway. commissioner hammer: there was another idea from commissioner mazzucco. that is keep the initial report

short, to impressions about demeanor, so as you are reading the transcript and have in mind, but to have the hearing officer appeared in night we decide the case so we could inquire of their impressions. i do not know if that addresses these ideas. president marshall: it is either on paper or in person. commissioner hammer: in person, you can here and say, "what did you think of this witness?" these are weighty decisions about whether officers go back to the streets or lose their jobs. vice president mazzucco: i think it is a great idea because questions may come up and we cannot predict what our questions are going to be after a closing argument. that would streamline the report. i think 10 pages are probably more than enough for a report. 15 pages is too much. i would rather just have the

hearing officer here after we see the report. we tend to over complicate things here. i think we just need to give them 10 pages, have the hearing officer present, and we can ask them questions. the key issue is what is the demeanor of the witness. did you believe that witness? that is hard to do from a transcript. that is the most important question. did you believe the witness? i think we need the hearing officer here. commissioner hammer: i would ask commissioner chan -- would that address your concern? commissioner chan: it addresses my concern. if the hearing officer is present, that is great. if it adds another complication were you are now juggling an additional schedule, i would say the default would be to have them present and if they are not present submit in writing. we do not want the hearing officer's not being available to delay hearing the case. commissioner hammer: trying to

integrate these, the 10 page report i suggested on demeanor. we are going to have one of us supervising this as the commissioner monitoring the case. at his or her direction, the hearing officer shall be present at the day of decision. if that hearing officer is not available, they shall submit a brief report not to exceed 10 pages on the recommendation whether charges have been approved -- have been proved. i am happy to do anything further, but i think we would like to move it further. president marshall: we cannot take action tonight. commissioner hammer: i think we can indicate to the city attorney that we are ready for that to be sent to the commission. president marshall: i will ask one question, which is not good, but i have to ask it. on the reassignment -- what is the procedure now? i want to make sure for myself

what the proposed change is. commissioner hammer: it is titled no reassignment of case. that is partly why cases have floated out there, except in extraordinary circumstances. now that we have all seen the docket, in my view when cases get old that is good cause. the suggestion is to rename a reassignment of case. the first provision is -- ordinarily, cases where mom be reassigned once a hearing is started, -- ordinarily, cases will not be reassigned once a hearing is started. if the parties have been assigned to a hearing officer and a hearing does not commence within 90 days, the commission secretary should include the discipline case on the agenda for the next available commission meeting for the commission to decide. it allows discretion. president marshall: maybe i am confused here.

if the case is already assigned to the commissioner to follow and make sure it happens, that case to me is assigned to the commissioner. if i get a case i am following that is assigned to a hearing officer, and that is still my case. i will move it forward just like i would move any other case forward. commissioner hammer: maybe i could suggest a different mechanism, in light of the fact that we have the commissioner monitoring it. i could amend it so that if the case does not proceed to trial within 90 days, the commissioner who has been assigned to monitor by put it on the agenda for the next meeting. president marshall: that is your case. there may be a hearing officer, but if that is your case you would follow protocol like you would any other case. does that make sense or am i putting too much out there? commissioner hammer: the question is whether or not it happens by the procedure automatically or whether we want

the commissioner monitoring it. i am fine with the commissioner monitoring doing it. my only concern is these cases to go along. i was just trying to get it before the commission. president marshall: but we have not had monitored or assigned to a commissioner. i think we can kill two birds with one side -- one stone. commissioner hammer: i will amend it. the commissioner may add it to the calendar for possible reassignment. >> i think we are deciding between who does the work -- the commission secretary or the commissioner assigned to the case. that is really the decision before us. the way it is written, it sounds fine to me. my hope is that there will be a court clerk that we have that will have a calendar and that will keep us in line and come back and say "it has been 90 days. nothing happened." president marshall: i do not want to monkey it up.

commissioner hammer: i will indicate to the city attorney that she can proceed. president marshall: thank you very much. we are going to have public comment on item two. >> just briefly, because you are discussing disciplinary rules, two things i would ask you to consider in the future. one is discovery should be ready when charges are filed. i think it is unconscionable that charges it filed with the police commission and the department has not started an investigation. that is a problem that needs to be fixed. despite the rules and despite the efforts in the new rules, there is still -- i have not seen any meaningful opportunity to try to resolve these cases before they come to trial. that is because either the people who are at pre-trial conferences do not have authority to do so -- i

understand that -- but i think we need to have a meaningful opportunity to try to resolve these poor we go to trial. we may set aside a day a month to pre try what is on the calendar with somebody from the department who has some authority, the lawyers. i think the bulk of what is coming to you should and can be resolved before it gets here. commissioner hammer: we do not ordinarily as questions, but given that you are often before us, how often are you finding that you're getting cases charged without any discovery in the investigation being complete? >> i have had at least three instances where charges have been filed with the commission. the usually arise when the underlying conduct is the subject of a criminal complaint. someone is arrested or there is some criminal complaint. the up department files for suspending the officer.

but if the arrest is dismissed, you still have charges at the commission that have not been investigated. the suggestion i have made in the past is if an officer is arrested or has pending felony or misdemeanor charges that form the basis of it, the fact that the charges can be the basis of the police commission filing -- when those go away, the police commission complaint should go away. then they can investigate and discover if there is conduct that merits it. you will have something with an underlying case or allegation. it can be 100 days before that matter is resolved. that person has been suspended without pay. the department has not started investigating that. then you have another delay. commissioner hammer: that needs to be fixed. that is wrong. as a former prosecutor, you just do not file charges without having a discovery packet. my second question -- have you had an opportunity -- a lot of

time to talk about settlement. obviously, the police department has an opportunity to speak with the police about the charges to see what the chief would like to do. does the defense have an opportunity to meet with the chief and tell their side of the story? as a former prosecutor, you have one side of the story. there is always another side. is the chief hearing your side? >> have i tried to call the chief and been rebuffed? no. i do not think there is a meaningful opportunity. you get together with our lawyers to talk about settlement. things get run up the flagpole. i do not think there is a time when you have the players who can make the decisions at the table together. i do not know if that has to be the chief, if that can be a deputy chief. there needs to be one day to hear both sides. by the time we get the case, somebody has had it for a year. you get discovery and there is a charge. by the time you are ready to talk about the case, we are

setting trials. i think it should be a matter of course. if you have a pet project, you can ask somebody to go up and talk to the chief. commissioner hammer: that is my concern. a lot of times we have had hearings for the cheap is hearing the story for the first time at the hearing and there is a change of heart. maybe that opportunity should be given to defense counsel like yourself. we have to get to the hearing tonight so i do not want to hold up too much,. we have important matters we need to do with. >> that is exactly the problem. there was a complaint of a criminal act. there was no investigation ready. we were left with 30 days before the proposed trial date and there still was not a packet ready. i do not in civil court you have to come prepared when you talk settlement with the settlement authority. i do find that no one has run it up the flagpole or something. we asked the parties to confer for settlement, but we end up in

a president marshall: anymore comment on this item? lieutenant, would you please call item number three. >> item 3 is all matters pertaining to closed session pursuant to government code section 54957 and san francisco administrative code section 67.10-b and penal code section 832.7, personnel exception, discussion and possible action to decide penalty for disciplinary charges filed in case number co 4-16 -- charlie 10-169. president marshall: any discussion on the items in closed session? hearing none, item 4.

>> item 4 is whether to take a vote on whether to hold closed session. commissioner chan: vote. president marshall: second. >> commissioner, we would recommend staying in this room for a and then >> mr. president,e commission is returning to open session at 10:40 p.m. we're moving to item six. just for the record, the commissioners present. >> thank you, item six? >> item six is whether to disclose all of those in closed session? >> move to not close.

a >> item number seven? >> item seven is session adjournment. >> so moved. >> thank you. see you, everybody. >> thank you, commissioners. the police commission is adjourned at 10:41.

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