Prequel: How CLERB was reborn

Memphis: We have recently seen news reports about CLERB.   At the May 10^th CLERB meeting, CLERB members vented their frustration because “…the Memphis Police want a “dog and pony show” without any accountability, said the Rev. Ralph White…”.  “There’s no respect for the board.”

Mike Rallings, MPD Director, had replied to CLERB’s original four letters about sustained cases.  CLERB then composed this letter to Mayor Strickland.  The frustration at MPD Director Mike Rallings’ stonewalling of every CLERB suggestion is palpable.   “…The members of CLERB volunteer our time, and, currently, it is being wasted…”.

Unfortunately, the CLERB website, whose creation was delayed until eighteen months into CLERB’s revival, does not host a single CLERB document, as is required by the CLERB ordinance.   There are no minutes, copies of official letters, not a single word about CLERB’s cases.     CLERB’s role, above all else, is to bring transparency into police abuses, and their failure to post their documents and videos marks a tragic failure in their mission.

We addressed the CLERB archival deficit in our first piece on CLERB.   Hopefully they’ll rectify that issue soon.   If not, we’ll continue to update our archive until they do.

This second installment into our CLERB investigation is a prequel of sorts.   We think it is essential, in any discussion of fixing the problems in CLERB, to understand how CLERB got to its current state.

To provide some depth into the CLERB discussion, we have delved into media reports, material from the redoubtable Gary Moore of Who Will Watch the Watchers, Memphis United, a division of the Mid-South Peace and Justice Center , which played a leading role in the reactivation of CLERB in 2016, and https://www.politicalpolice.org/ which maintains a timeline of MPD history.   We’ve gathered as much as we can find, including some documents retrieved via Open Records requests, and present it here to help inform the CLERB discussion.

The creation of CLERB, 1994

CLERB was created by City ordinance in 1994, in response to a spate of police shootings of civilians, as  “an independent, non-police Mayoral Agency with … the power to receive, investigate, hear cases, make findings and recommend action on complaints.”   CLERB’s shortcomings was noted at the time: “…CLERB can only hear a case after Memphis Police Department’s (MPD) Internal Affairs (IA) has completed its investigation … CLERB has no subpoena powers …  MPD officers’ presence at a CLEB hearing is … voluntary… the extent of CLERB’s disciplinary power is a non-binding recommendation to MPD”.

1994 CLERB ordinance Code 1985, Chapter 2-52; Ord. No. 4285, § 1, 10-25-1994

Current CLERB ordinance 5620 (PDF)

According to this Commercial Appeal article from 2015, “…The program went inactive in 2011 because it didn’t have the support of the administration and no enforcement power, said CLERB chairman and Rev. Ralph White…”.  The administration referred to is Mayor Wharton’s.

Paul Garner enters the picture.

In May of 2013, Memphis City Council unanimously passed a resolution, tasking Memphis United with holding nine public forums, one in each council district, to hear from constituents as to what they envision for the role and function of CLERB in Memphis. Subsequently, Memphis United consolidated feedback with best practices identified by the National Agency for Civilian Oversight of Law Enforcement (NACOLE.org) and prepared recommendations for the Council in a report entitled, “Increasing the Effectiveness of the Civilian Law Review Board.” (PDF).

On 10/21/2013, Paul Garner, an organizer for H.O.P.E. (Homeless Organizing for Power & Equality), was arrested by MPD allegedly for disorderly conduct and obstructing a highway or passageway.   He was filming police who were harassing occupants of Manna House, on Jefferson St., a resource for the homeless and poor.    “I understand you’re videotaping, and it’s on video, so I’m going to take you for jail for obstructing highway passages,” said one of the officers in the video.

Photographing police is protected by the first amendment.   It is perhaps no surprise that MPD Director Toney Armstrong weeks later issued this policy, on 12/7/2013 (PDF), explicitly invoking that first amendment right.   The policy is in Chapter 2 section 14 of the MPD Policy and Procedures Manual, under Public Recordings (PDF pages 77 et seq).

Gary Moore’s documentary, Who will Watch the Watchers, documents this story, following Garner’s Kafkaesque journey through the criminal justice system and the campaign of Mid South Peace and Justice offshoot, Memphis United, in this narrative.

Memphis United

Paul Garner’s case was dismissed.  He subsequently took his case to the IAB and was told, on 4/10/2014 that his case was “not sustained” by Internal Affairs.  Memphis United took the case to City Council on April 15^th 2014, after being unable to take his case to the moribund CLERB.

The group took up the public review of CLERB, organizing and financing public meetings in all nine City Council districts, getting citizen input and following industry reporting standards.  The series of public meetings started on June 24^th 2014 and the report was completed in March of 2015.   Memphis United reportedly paid $100,000 for this public input process.

There followed a series of City Council actions or inactions culminating in an August 2016 ordinance which reinstated CLERB but failed to rectify many of the problems that the Memphis United study had recommended.

City Council Actions on CLERB

The issue reappears April 2015

The CLERB ordinance first came before Council on 4/21/2015.  “… Both Director Toney Armstrong and Memphis Police Association President Mike Williams took issue with the idea giving the board subpoena power, claiming that it could impact the officers’ Fifth Amendment rights …”.  It was passed unanimously on first reading in its original form (PDF) as proposed by Memphis United. (minutes).

The ordinance was approved on second reading on 5/5/2015. (minutes).

On 5/19/2015 the ordinance came up for the third reading and was held over until June 2^nd.  (minutes).

On 6/2/2015, on third reading, the measure was held over until June 16^th (minutes).

CLERB Budget Approved, June 2015

On June 16^th, a budget motion to fund CLERB with an amount of $200,000 was proposed.  Bill Boyd proposed an amendment to reduce it to $100,000, which was voted down.   The motion to fund CLERB was passed, with opposing votes from Kemp Conrad and Bill Boyd.   The CLERB ordinance was not discussed (minutes).

 

The CLERB ordinance was next discussed at a Council meeting on July 7^th 2015. An amended version of the ordinance was presented.   Council member “…Jim Strickland said the city’s legal department weighed in on the ordinance and said the City Council couldn’t give subpoena powers…”  The legal theory propounded by Allan Wade was that Council had subpoena powers but could not delegate them to CLERB.    References to county involvement, IAB and city employee compulsory attendance were also modified.  Memphis Police Association (MPA) said that there were already enough controls in place, maintaining their steadfast opposition to CLERB reactivation.    (minutes).  The item was held over until July 21^st.    Dozens of citizens spoke to the motion.

The ordinance was not on the agenda for 7/21/2015 (minutes).

August 2015: CLERB issue comes to a head

On 8/4/2015, a pivotal Council meeting had some strange exchanges.   The CA relates that, on August 1^st, an MPD officer, Sean Bolton had been killed.   MPD Director Toney Armstrong asked for a delay in the final approval of the CLERB ordinance.    Armstrong lied on the record, saying “My support for CLERB has not changed.”, directly contradicting his opposition on the record from 4/21/2015.

“We lost this officer and we should give the family respect. Let them grieve,” said Berlin Boyd, who proposed the delay.   “Voting for the delay were council members Berlin Boyd, Bill Boyd, Joe Brown, Kemp Conrad, Edmund Ford, Reid Hedgepeth and Bill Morrison.  Voting no were members Harold Collins, Alan Crone, Janis Fullilove, Wanda Halbert, Myron Lowery and Jim Strickland.”

“But even before there was a call to delay, Conrad made an argument against CLERB, calling the supporters people who don’t like the police and have an anti-police agenda.”, per the Commercial Appeal.   This severely understates what actually happened.   “Who will Watch the Watchers” documentary includes footage of Kemp Conrad berating Paul Garner from the Council dais, saying that Garner hated the police.

The four-month delay punted the vote after the November 2015 Council elections.  Strangely, neither the Council minutes nor the Executive Session minutes or Police Committee agenda contains any mention of this “debate”.   This is surely a falsification of official documents, a felony at both State and Federal levels.  The official Council video tells the whole story.

After six members of the public, including Bradley Watkins of Mid South Peace and Justice Center, spoke, supportive of the compromise draft which had emerged during discussion.

Wanda Halbert, then defended the proposal, emphasizing the efforts of MPD, MPA, the Mayor, Memphis United and other activists and CLERB itself to come up with the amended ordinance.

At this point, Kemp Conrad said that transparency was not the objective.  He said the process was led by “people who don’t like the police”, people with an anti-police agenda, championed by Mr (Paul) Garner.   It is bad policy to put a “self-described troublemaker” in charge of drafting this ordinance.     The effect of caving in to activists is the reason for the 20% rise in homicides.  Leadership should not be swayed but should support the police.   He urged a vote against the measure to send a message to the police that they would stand by them.   The CLERB measure has no balance, because policing problems are due to a few bad apples, not a systemic problem.  Paul Garner has clearly expressed disdain for MPD.  This would be a vote against public safety.

Wanda Halbert, clearly shocked at Kemp Conrad’s outburst, stood up for Paul Garner and praised the hard work of Memphis United.  She criticized Conrad for ‘sandbagging’ the process at the third reading, and she listed some of the improvements to CLERB embodied in the draft.

Janis Fullilove asks a question of Wanda Halberd, who assures her that police wrongly accused by CLERB will have redress under State ethics law.

Kemp Conrad quotes an email from MPD Director Toney Armstrong saying that homicides will increase 20% if the ordinance is passed.   He again lambastes Paul Garner, calling him a “lawbreaker at heart”.

Wanda Halbert again defends Memphis United.

Alan Crone defends Wanda Halbert and the collaborative process by which the current draft was negotiated.  He points out that an officer exonerated by CLERB will be in a stronger position than if she is exonerated by MPD, where a cover-up might be alleged.  He points out that they had already funded CLERB and that the changes were mainly the tightening up of timelines and the clarification of various procedures.   He praised the job Wanda Halbert had done in shepherding the discussions and again enumerated the ownership groups involved.

William Boyd then asked for details of the drafting meeting.

Berlin Boyd intervenes at behest of MPD Director

Berlin Boyd then invited Police Director Toney Armstrong to the podium, after a phone call on the dais.  Boyd thanks Armstrong for his work and mentions Officer Sean Bolton who had been killed on duty the previous Saturday, August 1^st.  In a leading manner, he asks Armstrong how he felt about that.  He, in a rehearsed manner, asks for a delay in the vote until after the funeral, which was scheduled for the following Thursday, August 6^th.

Boyd then asks for a delay until August, after the funeral.  Kemp Conrad, speaking out of turn, yells “First meeting in November, after the funeral”.    Berlin Boyd immediately takes up the “First Meeting in November” refrain.

Wanda Halbert asked : When is the funeral service, Thursday?    What does Thursday

have to do with November?   She suggests a delay until after the funeral.    She says she is disturbed, and she called out that something else was going on.      She proposed an amendment to Boyd’s motion to finalize in two weeks.  Another motion to delay for two weeks was proposed, both were voted down and another to delay until September, voted down.  Boyd’s motion to delay until November 3^rd was voted and approved, with Berlin Boyd, Bill Boyd, Kemp Conrad, Bill Morrison, Joe Brown, and Reid Hedgepeth voting for.

This episode is portrayed in Who Will Watch the Watchers, with video.    It also led to a comic series, CLERBman.

The vote was finally taken on 11/3/2015.  Sixteen citizens spoke on the motion, which passed without the drama of August’s meeting.  “..Council members Kemp Conrad and Reid Hedgepeth were the only two members to vote against the ordinance …“, according to the Flyer, although the official minutes omit the Nay votes from the record.     In the discussion Harold Collins talked about the subpoena issue and other potential issues.   Wanda Halbert summarized the process.  Video clearly shows the Conrad and Hedgepeth Nay votes.

By this time, the CLERB backlog totaled 186 cases.

2016:  Worth Morgan tries to remove CLERB subpoena powers, awkward compromise is agreed

The next time CLERB came up in Council was 7/5/2016.    The major change was to remove  CLERB’s untested subpoena power and tidy up some issues around CLERB’s open meetings law compliance.   Worth Morgan had proposed a mechanism where the Council executes the subpoena on CLERB’s behalf.   After much discussion, the motion was held until August 9^th.  Minutes.

On 8/9/2016, the day Council approved Mike Rallings appointment as Police Director, the council chamber was again full of CLERB supporters.   The legacy CLERB ordinance had given subpoena powers to the Board, which had never been tested.   Council Attorney, Allan Wade, who has always been happy to opine the way Council wanted, had written an opinion that Council was not authorized to delegate its subpoena power.   Worth Morgan had proposed this amendment to make the CLERB ordinance compliant with Wade’s opinion.

From the Memphis Flyer,  “…The original CLERB ordinance passed last year gave the board indirect subpoena power, but Morgan — also the CLERB council liaison — had recently introduced new language to remove that power, saying such power would violate the city charter. But Morgan has apparently worked out a compromise that retains the board’s subpoena power but changes the meeting at which those subpoenaed would be compelled to attend.”

The new language up for vote today reads: “In order to carry out its functions, the board is authorized to request through its Council liaison, a subpoena to effectuate an investigation or compel attendance by an officer or witness for a hearing before the Memphis City Council. Upon investigation and fact finding, the Council liaison shall present a resolution to the full City Council to obtain the requested subpoena. Should the Council liaison fail to support the request of the board for the subpoena within the next two council meetings following the date of the request, the board Chairperson may make a recommendation to the City Council Chair. In the event the Council fails to issue the requested subpoena, the board reserves the right to file a complaint with the local and state ethics commissions, Tennessee Human Rights Commissions, or the Department of Justice to investigate the case before the CLERB board.” …”.

It’s worth pointing out that Worth Morgan, the originator of the original wording to strip CLERB’s indirect subpoena power completely, was (until January 2018) the chair of the Council Police and Homeland Security sub-committee and the Council’s representative on CLERB.    As Council liaison on CLERB, he would have had a pivotal role in enforcing a subpoena, but Morgan has never attended a CLERB meeting since this amendment.  Morgan has attended only two CLERB meetings, both before the August 2016 amendment.   Kemp Conrad was the only Nay vote, Patrice Robinson did not vote, Berlin Boyd and Bill Morrison were absent.   Minutes.   Official Video.

CLERB and Subpoena Power.

At the CLERB meeting of July 14^th, 2016 veteran Civil Rights attorney and CLERB member discussed Konxville CLERB’s direct subpoena power, suggesting that direct CLERB subpoena power does not contravene State law, and it was also pointed out that there is no mention of subpoena power at all in the City charter, suggesting no prohibition.   Minutes(PDF).

Summary of CLERB reactivation

The general picture is that CLERB was allowed to go inactive, citizen activists had, over a three year period, fought City Council and ended up with a very flawed ordinance.   But CLERB had been saved.

The matter of CLERB’s documents.

Many fingers can be pointed at City Council, notably Kemp Conrad’s, Berlin Boyd’s Joe Brown’s and Worth Morgan’s roles in obstructing the initial passage of the ordinance, or its subsequent weakening in August 2016.    These, and Worth Morgan’s failure to attend a CLERB meetings, created problems for CLERB’s task of bring transparency to MPD’s operations.

But many of CLERB’s problems are of their own making.   They have control over their own paperwork and official website, but, as of the date of writing (5/29/2018) they have not published a single minute, video,case history or official letter on their website, as required by the ordinance.  All meetings were captured on video and had a court reporter present.  Their work of uncovering the facts of police misconduct has not been helped by the fact that the only way the public can hear about these cases is by attending CLERB in person, submitting an open records request, reading a media account or consulting our own home-made CLERB archive.

The main avenue for transparency has been Gary Moore of Who will Watch the Watchers, who shot video at many of the CLERB meetings.  The movie itself chronicles the struggle of Memphis United and allies to get CLERB reinstated and ties it to other activism in Memphis.

Our next CLERB piece will be a summary of measures CLERB and others have suggested to fix CLERB’s problems.