Issue 24: What’s next?

by Cleveland Documenters

(Plain Press, January 2022)                 As the new year approaches, Cleveland Documenters are wondering what’s next regarding Issue 24, the amendments to the City’s charter that aim to strengthen civilian oversight of police discipline in cases of alleged misconduct.

     Here’s what we know.

     The charter amendments officially took effect on Nov. 22. The Cuyahoga County Board of Elections certified the election results in a meeting that day, as noted by Documenter Robyn Heard. 

     The first required step for implementing Issue 24 deals with the Consent Decree, a 2015 agreement between the U.S. Department of Justice (DOJ) and the City of Cleveland.

     The Consent Decree followed a DOJ investigation that found the Cleveland Division of Police (CDP) had a pattern of using unconstitutional excessive force. The decree was designed to ensure constitutional policing and improve officers’ relationships with community members.

     The decree also created the Community Police Commission  (CPC), a 13-member body that recommends police protocols and boosts transparency by reporting police reforms to the public. Issue 24 gives the CPC more power and ensures it will exist even if the decree ends.

     Issue 24 requires the City’s law director to ask the U.S. District Court to change the Consent Decree to include the new and amended sections of the charter. 

     Here’s the text of that requirement from Issue 24: (p) Consent Decree modification. Upon the effective date of this Section and other police-reform-related Charter sections amended or adopted with it, the Director of Law will move the U.S. District Court to modify the federal Consent Decree in United States v. City of Cleveland to incorporate the amended and new sections and ensure that the voters’ intentions are given full effect. If the Director of Law does not file such a motion within 30 days after this Section is adopted, then any City taxpayer is authorized and has standing to do so without making further demand upon the Director of Law as may otherwise be required by the Charter or Ohio law. Until the Decree is modified to incorporate the amended and new sections, the Commission will prioritize fulfilling duties required under the Decree over the additional duties this Section establishes.

     Law Director Barbara Langhenry filed a motion Dec. 2. But rather than ask the court to modify the Consent Decree, the law director noted numerous examples in which Issue 24 differs from the decree, the charter, police-union contracts, and other legal documents.

     The City didn’t explicitly ask the court to do anything but said the legal conflicts must be resolved if the court orders the decree to be changed.

     That motion left us wondering if the City met its initial requirement under Issue 24. Subodh Chandra, a civil-rights lawyer who helped write the charter amendments, doesn’t think so. Chandra said, “The Charter Amendment requires that the law director move the federal court to incorporate the terms of the Charter Amendment into the Consent Decree. You will see that nowhere in that document does the City Administration actually do that.”

     Langhenry wrote in the motion that the requirement is at odds with the decree, adding that the decree says any new laws affecting it must be consistent with it. Here’s what the decree says:

This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. If the City establishes or reorganizes a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing the operations of the CDP or any aspect thereof, the City agrees to ensure that these functions and entities are consistent with the terms of this Agreement and will incorporate the terms of this Agreement into the oversight, regulatory, accreditation, investigation or review functions of the government agency or entity as necessary to ensure consistency.

     The decree says the City and the DOJ can agree to modify it if they believe it isn’t achieving its goals. But it also says the City and DOJ must agree to defend the terms, including in collective bargaining, where the City and police unions negotiate their contracts.

     Here is what the Consent Decree says:

398. The City and DOJ may jointly agree to make changes, modifications, and amendments to this Agreement which will be effective if approved by the Court. Such changes, modifications, and amendments to this Agreement will be encouraged when the Parties agree, or where the Monitor’s reviews, assessments, and/or audits demonstrate that an Agreement provision as drafted is not furthering the purpose of this Agreement or that there is a preferable alternative that will achieve the same purpose. Where the Parties or the Monitor are uncertain whether a change to this Agreement is advisable, the Parties may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension. During this suspension, the Parties may agree to temporarily utilize an alternative requirement. The Monitor will assess whether the suspension of the requirement, and the use of any alternative provision, is as effective, or more effective at achieving the purpose as was the original/current Agreement requirement, and the Parties will consider this assessment in determining whether to jointly stipulate to make the suggested change, modification, or amendment. The Parties agree to defend the provisions of this Agreement including in collective bargaining. The Parties will notify each other of any court, union, or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any city or state court, the parties will seek removal to Federal Court.

     The requirement to modify the Consent Decree was included in Issue 24 out of “an abundance of caution,” according to Chandra, who added that a federal order can override a lot, including arguments that may come from police unions.

     Jeff Follmer, president of the Cleveland Police Patrolmen’s Association (CPPA), told Cleveland Documenters the union will challenge Issue 24 once the contract is violated — that is, once a police officer is disciplined by a body that they believe doesn’t have authority to do so. Follmer said, “It is our position (that) the only people that can discipline us (are) the safety director and the chief of police. So, any discipline coming outside of that (will lead to) a grievance arbitration (or) possibly court.”

     While the police chief and safety director previously had final say over discipline, Issue 24 would give that authority to the CPC.

     The CPPA’s contract with the city expires March 31, 2022. 

     So, how will this all shake out? The truth is, we don’t know yet.

     U.S. District Judge Solomon Oliver Jr. oversees the decree. He could make a decision in response to the City’s motion, or he could wait to see what Mayor-elect Justin Bibb’s administration does after he’s sworn in on Jan. 3. The DOJ also filed a motion Dec. 15 asking the court to give the DOJ and the City until Feb. 18 to work on modifying the decree, as noted by Ideastream reporter Matthew Richmond.

     Bibb gave this statement: “As expected, the City of Cleveland filed the required motion. I look forward to working with Judge Oliver to continue executing the consent decree alongside the charter amendment. We can and must do both to ensure we have community-oriented policing in Cleveland.”

     Eden Giagnorio, communications manager for Bibb’s transition team, added that their Safety Task Force is gathering more information and will have more to say in January about their plan for implementing Issue 24.

     A City of Cleveland taxpayer could also file their own motion after Dec. 22, as Issue 24 gives them authority to do so if the law director doesn’t within 30 days of the charter amendments taking effect. Judge Oliver would determine if a taxpayer’s motion has standing, according to Chandra. Chandra added that he doesn’t think a taxpayer will have to step in, as he expects the Bibb administration to address the issue of modifying the decree.

     If the Consent Decree is modified to reflect Issue 24, next steps include an open-application process for any vacancies on the Civilian Police Review Board (CPRB) and Community Police Commission (CPC).

     Issue 24 says existing CPRB members may finish out their terms. The expectation is that current CPC members who meet the new qualifications would have an opportunity to seek re-appointment to the commission, according to Chandra.

     Until the Consent Decree is modified, the CPC will prioritize its work as currently outlined in the decree, placing its new duties — such as judging if police discipline is sufficient — on the back burner.

     For now, the CPRB is still operating as it did before voters passed Issue 24. In fact, Cleveland City Council appointed a new member — Sherall E. Hardy — to the board last week, as noted by Documener Lauren Hakim. The CPRB expects only one vacancy heading into 2022, as Board Member Mary Clark finishes her term this month, according to CPRB Private Secretary LeeAnn Hanlon.

Editor’s Note: This article was produced and provided to the Plain Press by Cleveland Documenters.  Cleveland Documenters is in partnership with Chicago-based civic journalism lab City Bureau and made possible with support from the Cleveland Foundation and the Visible Voice Charitable Fund of the Cleveland Foundation. Visit www.documenters.org for more information about Cleveland Documenters. Want to obtain some more context on Issue 24? Check out this pre-election fact check that Cleveland Documenters team members Paul Rochford and Rachel Dissell did for The Cleveland Observer at clevelandobserver.com.  And take a look at more reporting from Matthew Richmond about the City’s motion at ideastream.org.