president mazzucco: ladies and gentlemen, if yude please take your seats -- if you'd please take your seats. ladies and gentlemen, we're back in session. we do have a quorum of the police commission and a quorum of the human rights commission. so, ladies and gentlemen, at this time we're going to have some comments from the commissioners regarding the presentation and i just want to start with, i'd like to thank

everybody again for their presentations. we did meet with the f.b.i. today and the u.s. attorney's office and there was some clarification of things that were said in the presentation by the aclu and the asian law caucus. we were told something differently. i do want to state for the record that the men and women of the f.b.i. and the men and women of the department of justice prosecute civil rights cases and i can say that being a former u.s. assistant attorney and what we saw today, i can't speak on behalf of those offices, but we saw people interested in the complapets we heard and that they -- complaint wes heard and they prosecute civil rights violations, they want the facts. we were also told today that there are no random assessments, there has to be a predicate of a criminal violation. they need to set the record straight that that's the business that the f.b.i. and the u.s. attorney's office is in and i refer back to what was quoted in an article about the f.b.i. director robert mull who are i worked for when there was a won flick in this issue and it was

highlighted in "time" magazine issue where he asked that the attorney general not sign off on a particular warrant and offered his resignation. so with honorable people like bob muller running the f.b.i., there should be a level of confidence that there will not be any violations. i know the world's not perfect, but, but we do put our faith and trust in those folks. so we did hear a little bit of a different presentation today from the f.b.i. i can't speak on their behalf. but it was somewhat comfort doing hear what we heard. so, without further ado i now turn it over to the commissioners for their questions. i'll let commissioner sweet handle the human rights commission because the names are jarbled here. commissioner sweet: i thank commissioner chan. it says commissioner -- it's commissioner mavis. >> thank you. i would like to thank everybody including the commissioners from

the police commission and my fellow commissioners here at the human rights commission, the police department staff, and everybody involved for this joint hearing. it's been extremely useful and beneficial and i've learned a lot thus far. i would like to say that after hearing the brief presentations and especially after hearing chief suhr's comments and also after having had an opportunity to only briefly glance really at this new bureau order that's dated may 16, i have tried during the speech as best i can to read it and understand it. from my understanding of what's here, it's very difficult for me to understand yet whether or not this really does move us in the right direction. the understanding that i have for why we're all here today is because of the second memorandum of understanding that was introduced -- entered into in 2007 with the f.b.i. and it's my

understanding that the reason that we're here is because of concerns that many of us have about whether or not that memorandum of understanding is in conflict with some of the values that san francisco and the people who live in the city and county have. it's very difficult for from this bureau order to know whether or not it addresses those concerns. i think a great deal of discussion really needs to take place on that particular issue. and the latest comments that i heard from the aclu tonight do not specifically address this particular bureau order. and i think that that is in itself interesting as well and it also concerned me slightly that some of the comments that the aclu made were referring to whether or not the city of san francisco and county of san francisco should be removing it self from the m.o.u. or whether or not it should be removing itself from the joint terrorism task force as well. there were some conflicting statements that i heard with respect to that as well. so with all of that, i know my comments have been quite long

and i don't have a particular question other than to make clear that i think a great deal of study still needs to take place regarding this particular bureau order and i look forward to that continues discussion. thank you very much. commissioner chan: thank you for this opportunity. i had several questions that i'd like to direct to the chief that are germane to the proposed bureau order. and chief, i commend you for moving very quickly to address the concerns and -- in the community, in the proposed bureau order. i do have a few general questions since i haven't had a chance to study the bureau order in depth and they really go toward the m.o.u. as it's presently constituted and what you're understanding is and that of the command staff as to how the department should -- and its

members should comport itself. section 8-a of the m.o.u. states that membership in the jttf is a two-year term with no maximum number of sworn and nonsworn personnel from each participating agency in jttf and i was curious how many members of the department, sworn or nonsworn, are currently operating under this federal departmentization -- deputyization. >> we don't generally discuss the specific numbers but i will tell you it's to the discretion of the department and how many members they can allow. but i will tell that you we've never had less than two officers assigned to the jttf. commissioner chan: it's my understanding that you have moved the -- in terms of the department's chain of command, this is out of homeland security and back under s.i.d., is that correct?

>> yes. i gave that order today and i believe this order is actually dated today. commissioner chan: and presumably that means that the police commissioner assigned to monitor audit on a monthly basis activities under general order 8.10 then would meet with the head of special investigations. >> yes. commissioner chan: my overall concern about the bureau order and it's already been expressed has been the standard of the criminal nexus andists interest -- i was interested in whether the department was amenable to conforming the terminology to the standard as anuns yatesed in 8.10 which requires that there be planning or indications of the actual engaging in criminal

activity, a reasonable expectation of body >> i i will injury or property damage -- of bodily injury or property damage or a felony or misdemeanor hate crime and that first amendment activities -- [inaudible]. do you expect to be more work done on the bureau order? >> we can certainly do that. the intent of the order was to align it with 8.10 and to close any gap that was in the 2007 m.o.u., to basically return it back to the 2002 stat wruss we had had no problems for many years -- status where we had had no problems for many years. if you want to specifically use the language that you just stated, i don't think that would be a problem. commissioner chan: either that or the bureau orders should incorporate the standards under 8.10 section 1-b i think would probably be the shorthand way of doing that. but i don't want to trample on the purr view of my colleague. >> we're trying to make it so it's a bureau order that

everybody sees plainly closes the gaps that were of concern. commissioner chan: the next sentence in the proposed order states that in situations where the statutory law of california is more restrictive of law enforcement than comparable federal law, then that would be the standard to be applied. do you also intend to incorporate by reference the whole body of local law both administrative and statutory for the city and county of san francisco? >> that's the intention of the order. commissioner chan: ok. i want to commend you again for promulgating a rule that would require members of the department to identify themselves. which of course raises the matter of individual officers which as you know during my stint on the commission was always a matter of concern that rules be promulgated so that members would clearly understand

their rights and obligations under the d.t.o.'s. where do you -- that being done and it's already been raised in previous conversations here, regarding the role of civilian oversight, the section 5-b-5 of the m.o.u. contains a standard that had caused me and my colleagues at the h.r.c. some concern that the f.b.i. here states that whether there's a conflict between standards or requirements of the participating agents in the f.b.i., the standard or requirement that provides the, quote, greatest organizational protection or benefit will apply. unless the organizations jointly resolve the conflict otherwise. is it your intention in the part of the command staff that to the greatest extent possible that

where it is appropriate for them absent the factor of the jttf being present that they would have the same access and the ability to investigate whether or not to sustain charges in the event of an allegation of officer misconduct? >> with regard to the san francisco police officers, yes. that's the reason why we asked the officers to identify themselves as sfpd, where then the ordinary complaint process that all officers are subject to would kick in. commissioner chan: that brings me to section 6-a of the m.o.u. wherein it states that jttf members are strictly for biden from disclosing any classified information -- forbidden from disclosing any classified information.

my concern here is that what would the -- or do you have in mind a framework or an approach if a case arices wherein an officer -- arises wherein an officer, in order to defend himself against an allegation of misconduct, or a citizen skeeking -- seeking to discover facts and other evidence relating to an incident bumps up against this need to know and the fact that apparently the jttf activities are, quote, under a federal classified information. do you have a plan that would enable the securing of a security clearance, for example, of the head of the o.c.c. or other complaint personnel in order to do their job in such a

case? >> i don't -- it's not my province to pass out security clearances but i can certainly speak with the special agent in charge fp dr. hicks would seek such a clearance. i don't -- commissioner chan: i think what i'm getting at here is we could very well have officers or the o.c.c. between a rock and a hard place where they are -- because of the explicit terms of the m.o.u. and federal statute, in essence prohibited from getting to the bottom of charges in the event a complaint is made about particular officer misconduct while engaged in jttf activities. that isn't a question but i think that would probably need to be flushed out in subsequent drafts of the bureau order. >> i'm trying to think of an instance where the information

that they would be sworn to keep private would actually come into play versus their conduct. i think their conduct would be subject to the complaint which would be outside of whatever the privileges information would be. commissioner chan: i know hypotheticals are tough but i was thinking of mr. crew's crew, if you will, brings a 1983 action for the violation of someone's civil rights based on the fact that they've alleged to have been a victim of some federal intelligence activity in which one of the co-defendants would be the city and county of san francisco and they would want to know how the subject in the investigation, whether the agreed party came to the attention or whether it's a product of federal assessment or -- a confidence informant. that sort of thing.

>> general order 8.10 and -- was the governing document with regard to this entire conversation for over a decade without a problem. with regard to complaints against officers and the like. so i think that now if this unit order, if you will, terms -- turns the clock back to make the officers locked in to strict compliance with 8.10 and the conditions of the 2002 m.o.u. to which i don't -- i think everybody was pretty comfortable, i think we could turn the clock back to where the officers are ultimately accountable to the police department, the commission and the citizens of san francisco. commissioner chan: now, my prior service, i know that the o.c.c. generates a host of data and statistics regarding the number of cases and how cases are handled, the department itself has studies as to whether racial

profiling occurs or whether there are statistical correlations between certain kinds of arrests and other police operations. what assurance do we have that similar statistical effort could be produced in connection with democratics activities under the jttf as a participating agency? if any? >> i would say that, again, they would be the same as called for in 8.10, that stood the test of time for over almost 15 years before we got to here. commissioner chan: i notice in the proposed order that you or your designee are to review all quarterly -- on a quarterly basis all investigations to which members of the department

have been assigned. and that those officers who work with the jttf remain in your chain of command and under supervision of the department. where do you see the o.c.c.'s role in this and/or the police commission, particularly in the exercise of their 8.10 duties? >> as you said, a commissioner's assigned to the log of all police department activities with regard to the first amendment and since the director of o.c.c. works for the police commission, it seems that it would be a natural chain of command and flow there. commissioner chan: i think so. would you be amenable to amending the draft that would explicitly enable the -- and permit disclosure to the police commission and the o.c.c.? >> anything that makes the order more clear and ex plit and makes

people more comfortable. as long as it's within the rules , i'm happy to do it. commissioner chan: do you have any idea what the budget outlays for the department have been with respect to funding or financing the department's participation in the jttf? as a fiscal matter? >> in my first 11 days it's alluded me. but i can find that information out, it's been a little busy. commissioner chan: out of further concern to me and i've expressed this to you, our director has been under section 21 of the m.o.u. which lays out at least what the bureau's understanding is about how to address matters of financial and

civil liability. section 21 states that the acts and omissions of each employee remains vested with their employing agency and that us-doj, department of justice, made its discretion, whether that individual should be afforded legal representation, legal defense or indemnification of the civil action. given your past experience within the department, are you aware that any cases wherein the department has made a co-defendant, along with the other federal agencies with respect to third party claims? >> i am not aware of such a circumstance, no. commissioner chan: my concern here is that the defense of participating sfpd members in

the jttf appears largely as a matter of grace to the federal bureau of investigation or the attorney general of the united states. since it's discretionary rather than mandatory. they apparently on the m.o.u. have preserved that determination on case by case basis as it states there. has this section of the m.o.u. ever been reviewed by department council? >> i believe that the 8.10 g.o. was reviewed by department council as was the m.o.u. from 2002. i think that the most recent m.o.u., as has been discussed, there was somehow a mishap where it was not reviewed. commissioner chan: so at least the department hasn't been advised by its council as to what its liability exposure would be for members

participating in jttf activities? >> well, again, if the officers are identifying themselves as san francisco police officers in every instance during course and scope of their duties, it would be no different than it is where they -- were they just on the streets of san francisco. commissioner chan: have any members provided a representation by the attorney generals office? >> i don't believe so. commissioner chan: there is quite a bit of discussion devoted in the m.o.u. particularly in section 5-b-4 regarding investigative standards. actionly in 5-b-4 it seems torrell gate the participating agency -- rel -- to relegate the participating agency to to

be responsible for personnel administrative matters. and that the department's control over investigative standards has already been pointed out by mr. crew. how do you -- has there been a problem at all in how this relationship has been operated in differential investigative standards, those used by the federal government and those used by the members of the department? has there arisen any instance of conflict at all? >> no, not that i'm aware of. i believe the relationship has been very smooth and the officers to the best of my knowledge have been operating with total accountability back

to the police department and its standards, rules, regulations and the laws of the city and state. commissioner chan: under section 4-a which governs the use of confidence -- excuse me, i think they refer to this as confident al informants -- confidental informants and they reference the u.s. attorney general's guidelines, is it your department's intention that the department's, what i would assume would be greater restrictions on the use of informants, would apply, given the bureau order that you've promulgated? >> the bureau order is all inclusive. so it incorporates all of our policies and procedures that the officers are accountable to in favor of any federal guidelines. commissioner chan: all right.

thank you, marme, i have no further questions -- mr. chairman, i have no further questions. commissioner dejesus: thank you. i might overlap slightly. is it ok if mr. crew can come to the podium. one of the questions i had, i was looking at your presentation, and there seemed to be some type of distinction if the officer is loaned under out the joint terrorism task force versus homeland security and i was a little concerned, is that some type of possible loophole that the resolution -- or that the bureau order and the d.j.o. wouldn't apply if he was under homeland security? >> affs today chief suhr issued an order that solves that problem, we're very pleased to hear that. very briefly, specifically the issue was 8.10 was constructed under the assumption that these investigations would be done out of s.i.d. s.i.d. has the security clearance, it had been moved to homeland security so it was out

of the normal procedure that thank 8.10 was structured for -- that 8.10 was structured for. i can say that in terms of the number of officers that are working there, this is something we're confused about because the sfpd published in their annual report the number of officers as of just a few years ago. so in -- it's on the website still. in 2008 it was two officers. o.p.d. talks about it on the radio. they have one officer. i'm not sure why that's secret but it's an issue that the more openness, the more likely we can solve these issues. commissioner dejesus: the other question i have, i'm looking at the bureau order and i looked at the d.g.o. and i think one of the issues we had is there is no commission oversight, even though the commissioner is going to look at what's been done monthly, that commissioner doesn't have the clearance, if i understand this right. doesn't have the clearance and we'd only see a sanitized version of the events. i'm a little concerned if that's the way -- am i reading that correctly? >> yeah. the reason we did not go through

the bureau general order was in the interest of time and also in acknowledgment that there seems to be openness to taking other suggestions on it. and so we're happy to address those but very briefly, number one, while i appreciate the department doing it quickly, ultimately as a bureau general order, it can be revoked without notice of the commission. we think this has to be at the commission level so we go back to public notice, public discussion. chief suhr, i don't very have any reason to think he's going to change this but we don't know who's coming after chief suhr and i think it's important that it be public. we already talked about the -- getting the appropriate standards in there and the real problem here is that there is nothing specific in the bureau order that requires the 8.10 written authorizations. we have a fundamental problem here with all due respect, what the f.b.i. is telling us directly, we met with them nine days ago, they said very specifically that in fact that provision is long -- as long as

operating under the m.o.u. could not be applied. i don't know if the department has had an opportunity to run this bureau order by the f.b.i., but quite frankly what will reassure the public is to put something in writen that the f.b.i. commits to and what -- writing that the f.b.i. commits to and they've said, as long as you're under the m.o.u. options, as long as you don't transit into the resolution approach, they're going to enforce the m.o.u. and block that very important decision or that access that is fundamental to the commission oversight and the o.c.c. reports and the public reporting. so the other things that the attorney general said, in the end, when you talk about addressing these concerns, he said, actions speak louder than assurances. we're getting assurances, they're wonderful, i understand you're getting assurances from the f.b.i., with you we need actions and words in writing that the f.b.i. commits to, that will be something that we can count on and this order unfortunately the way it's constructed, simply coming from the sfpd, doesn't achve