Special Counsel’s Recommendation on Police Oversight Panel is Illegal

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Attorney Dan Williams sent a letter to the Boulder city attorney’s office and to the special counsel responding to the special counsel’s report about the Police Oversight Panel and the Code of Conduct complaints related thereto. [PDF copy attached]

Daniel D. Williams
[email protected]

April 18, 2023

Via email

Teresa Tate, Esq.
Boulder City Attorney
[email protected]

Erin Poe, Esq.
Boulder Deputy City Attorney
[email protected]

Claybourne M. Douglas, Esq.
Special Counsel for City of Boulder
[email protected]

RE: Response To Special Counsel’s Recommendation To Consider Removal of Lisa Sweeney-Miran From Police Oversight Panel

Lisa Sweeney-Miran has asked this Firm to represent her in responding to the recommendation of the Special Counsel appointed by the City of Boulder to consider removing Ms. Sweeney-Miran from Boulder’s Police Oversight Panel. For the reasons set forth below, Ms. Sweeney-Miran’s removal would be illegal and improper.

1. The City Attorney and Special Counsel Misconstrue What Constitutes a Code of Conduct Violation.

A good-faith difference in judgment is not a Code of Conduct violation. Boulder’s Code of Conduct is designed to prevent conflicts of interest, the disregard of legal duties, using public office for personal gain, and the like. The Code of Conduct was never designed to create a way for every conceivable City decision to be challenged by literally anyone in the city, prompting a lengthy and expensive investigation each time any Boulderite believes the Council or a Board made the wrong decision on something. This is made clear by the stated purposes of the Code of Conduct, which are outlined in B.R.C. 2-7-1(a):

(1) Defining and forbidding certain activities including bribery and profiteering from public office[;]

(2) Establishing high standards of conduct for elected officials, appointed board and commission members and city employees by setting forth certain expectations of behavior that all such individuals shall maintain while elected, appointed or employed by the City of Boulder[; and]

(3) Fostering public trust by defining standards of honest government and prohibiting the use of public office for private gain.

Neither of the Code of Conduct complaints at issue here meet the stated purposes of the Code of Conduct and they should not have been treated as valid complaints.

Should there be any doubt that policy differences over questions like whether someone meets qualifications for an oversight panel do not qualify as Code of Conduct violations, one need look no further than the examples of such violations listed at B.R.C. 2-7-15, none of which bear any resemblance to John Neslage and Emily Reynolds’ complaints. In light of the foregoing, it appears the City Attorney and City Council erred in treating Mr. Neslage and Ms. Reynolds’ complaints as bona fide Code of Conduct issues rather than treating them as what they were: two comments out of many received from the public concerning the City Council vote to exercise discretion to approve or disapprove appointments to the Police Oversight Panel.

Indeed, the risk posed by the Council sustaining the Special Counsel’s findings and recommendations is that it creates a precedent that every and any decision made by Council or a board or commission is subject to second-guessing by any disgruntled resident, to be resolved based on the views of an unelected special counsel appointed by the City Attorney. That is at odds with the fundamental purpose of having a Code of Conduct, and threatens the orderly functioning of City business.

2. The Special Counsel’s Recommendation Is Illegal.

An “essential principle” of constitutional Due Process jurisprudence is that prior to taking action against someone, they be provided “notice and opportunity for a hearing appropriate to the nature of the case.” See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Here, the Special Counsel was assigned to investigate two complaints as to which he sustained allegations, neither of which accuse Ms. Sweeney-Miran of a Code of Conduct Violation under B.R.C. 2-7-10(b)(2). The first complaint, from Mr. Neslage, accuses the members of the Police Oversight Panel Selection Committee of misconduct. His complaint states:

Pursuant to City of Boulder Municipal Code Title 2, Chapter 7, I am filing a complaint for a Code of Conduct violation by the Selection Panel for the Police Oversight Panel. The Panel signaled their unwillingness to comply with the applicable ordinance governing qualifications of panel members by renominating the same candidate despite demonstrated bias, prejudice and conflict of interest. Additionally, this candidate also fails to satisfy another stated precondition requiring an ability to build working relationships and communicate effectively with diverse groups. Determination of bias is not in the opinion of the nominee, but rather from the perspective of the persons to be governed/overseen by this Oversight Panel. The nomination of Lisa Sweeny-Miran by this panel demonstrates their intention to use whatever criteria they feel like, rather than those criteria carefully deliberated and codified into Ordinance 8430.

(Emphasis added.) The second complaint, submitted by Ms. Reynolds, accuses members of Boulder City Council of misconduct:

Pursuant to City of Boulder Municipal Code Title 2, Chapter 7, I am filing a complaint for a Code of Conduct violation against Mayor Brockett and Council Members Benjamin, Folkerts, Friend, Joseph and Speer, the six members of City Council who voted to approve the recommendations of the Police Oversight Panel Selection Committee at the City Council Special Meeting on January 26, 2023.

Neither of these Code of Conduct complaints accuse Ms. Sweeney-Miran of violating the City’s Code of Conduct. With no notice of a complaint against her, Ms. Sweeney-Miran was not afforded notice that she personally was being accused of a Code of Conduct violation, even though the Special Counsel ultimately recommended discipline against her. That is improper, and a violation of Ms. Sweeney-Miran’s constitutional Due Process rights.

Not only do the Special Counsel’s recommendations offend notions of Due Process, the recommendation to consider removal of Ms. Sweeney-Miran violates the City’s Municipal Code because the Special Counsel calls for “sanctions and remedies” against Ms. Sweeney-Miran, see Report p. 1, although he makes no specific finding that Ms. Sweeney-Miran personally violated the Code of Conduct. Specifically, B.R.C. 2-7-11(c), which is in the “Sanctions and Remedies for Violation” portion of the Code of Conduct, requires a “find[ing] that a [person] has violated any provision of this chapter” prior to imposing sanctions or remedies.

In other words, one must have been found to have personally violated the City’s Code of Conduct as a precondition for the issuance of a sanction against the person. Because the Special Counsel makes no finding that Ms. Sweeney-Miran personally violated the Code of Conduct, the City is not authorized to sanction her under B.R.C. 2-7-11(b) or (c)(3) by removing her from the Police Oversight Panel.

3. City Council Lacks Authority Unilaterally To Remove Members of the Police Oversight Panel.

To the extent the City Council might consider circumventing the restrictions on discipline under the Code of Conduct by removing Ms. Sweeney-Miran for some other reason, that would not be permissible either. In order to prevent politics like Mr. Neslage’s and Ms. Reynolds’ spirited advocacy from interfering with the important work of the Police Oversight Panel, the governing ordinance for the Police Oversight Panel specifically prohibits City Council from unilaterally removing Panelists, and instead vests that authority with the Panel itself, subject only to ratification by City Council.

B.R.C. 2-11-6(d) provides:

1. Members [of the Police Oversight Panel] can be removed by a majority vote of the oversight panel for failure to perform duties or violation of any signed confidentiality agreement.
2. The member’s removal shall then be approved or rejected by a majority vote of the council.

Here, the Police Oversight Panel has not voted to remove Ms. Sweeney-Miran from the Panel, and could not do so under the plain terms of B.R.C. 2-11-6(d) as Ms. Sweeney-Miran has been an exemplary member of the Panel during her short time on it, and is in full compliance with her Panel duties and the terms of her signed confidentiality agreement. Thus, there would be no cause under B.R.C. 2-11-6(d) for her removal, and in any event removal by City Council would not be allowable unless the Police Oversight Panel had first voted for her removal.

As a backstop, the Special Counsel cites general language from the Boulder Municipal Code regarding appointment and removal of members of boards and commissions, specifically B.R.C. 2-3-1(a)(2). See Report at p. 14. That section, applicable generally to boards and commissions, explains Council may appoint board members at regular meetings, and then provides general provisions to remove them.

There should be no doubt that the specific provisions for appointment and removal of Police Oversight Panel members govern here. Rather than summarily appoint Panelists to the Police Oversight Panel under the generally-applicable B.R.C. 2-3-1(a)(1), Council follows the more specific and detailed procedures for the Police Oversight Panel found at B.R.C. 2-11-6. In order to be consistent with that practice, removal of Panelists must follow the more specific procedures relevant to the Police Oversight Panel at B.R.C. 2-11-6(d), rather than the general provision of B.R.C. 2-3-1(a)(2). See, e.g., Nat’l Cable & Telecommunications Ass’n, Inc. v. Gulf Power Co., 534 U.S. 327, 335 (2002) (“specific statutory language should control more general language when there is a conflict between the two”); Martin v. People, 27 P.3d 846, 860 (Colo. 2001) (same). Accordingly, City Council lacks authority to rely on B.R.C. 2-3-1(a) to remove Ms. Sweeney-Miran, as the Special Council recommends.

4. The Special Counsel Failed To Conduct an Effective Investigation.

Faced with an accusation that the members of the Police Oversight Panel Selection Committee violated the City’s Code of Conduct by failing to consider information about Ms. Sweeney-Miran, any competent investigation would have included interviews with the persons who were accused of having violated the Code of Conduct – the members of the Selection Committee. However, no member of the Selection Committee was ever contacted by the Special Counsel, nor, apparently, was any member of City Council. The failure to attempt to speak with the individuals accused of violating the City’s Code of Conduct demonstrates that the Special Counsel did not take even the most basic of required steps to determine whether the alleged Code of Conduct violations were accurate.

Had he contacted the persons accused of violating the Code of Conduct, the Special Counsel would have learned from the Selection Committee members that the Selection Committee did consider both (1) Ms. Sweeney-Miran’s role as a taxpayer plaintiff in the ACLU camping ban lawsuit, and (2) her tweets and social media posts to see if they evidenced any conflict of interest or bias. The Selection Committee determined after a full review of this record that there was no conflict of interest or bias. Indeed, the notion that there was some failure to consider these facts is contradicted by the Special Counsel’s own retelling of events in which he acknowledges that City Council directed the selection committee to review their recommendations with specific regard to the question of bias. As all parties are aware, that led to a confirmation from the Selection Committee that no bias was found and the appointments were reaffirmed at that time by both the Selection Committee and by City Council.

That error was compounded by the Special Counsel’s evident lack of knowledge about the subject he was investigating – police oversight and police reform. For example, when the Special Counsel interviewed Ms. Sweeney-Miran, he admitted that he had never heard the term “abolition” before and did not know what the abolition movement is about. Had he done his research beyond the Wikipedia excerpt he cites, he would have found that “abolition” concerns a legitimate perspective with respect to the future of policing. Specifically:

Abolitionists envision a society in which the police are unnecessary because basic
human needs like a living wage, safe and affordable housing and access to mental
healthcare are universal.

https://www.themarshallproject.org/2020/10/23/the-future-of-policing. That the Special Counsel would equate Ms. Sweeney-Miran’s mere stated interest in learning about this abolition movement and its vision of a more peaceful society where police become unnecessary with a bias against police officers reflects a fundamental misunderstanding about intellectual curiosity and about what reimagining policing means. This failure by the Special Counsel to understand why an interest in a nationwide policing movement is so important serves to underscore why having a multitude of diverse views on the Police Oversight Panel is so important.

5. The Special Counsel Comes to an Incorrect Legal Conclusion About the ACLU Lawsuit and Incorrectly Identifies Ms. Sweeney-Miran’s Role Therein.

The Special Counsel placed particular weight on the fact that, in her role as a Boulder taxpayer, Ms. Sweeney-Miran participated in a lawsuit challenging Boulder’s camping ban on state-law constitutional grounds (the “ACLU Lawsuit”). That lawsuit poses no conflict for selection to the Police Oversight Panel for multiple reasons:

a. Ms. Sweeney-Miran was not one of the individuals seeking damages through the lawsuit. The unhoused plaintiffs, referred to in the ACLU Lawsuit as the “Individual Plaintiffs,” sought nominal damages, but the taxpayer plaintiffs such as Ms. Sweeney-Miran sought only to assure that the City was spending money in a constitutional manner. Ms. Sweeney-Miran simply had nothing personal to gain from the lawsuit different from every other taxpayer in Boulder.

b. There is nothing about requiring the City to spend money in a constitutional manner that is inconsistent with the work of the Police Oversight Panel. Indeed, insisting that the police, including Police Chief Herold, follow the law is exactly in alignment with the Police Oversight Panel’s mission and purpose.

c. Ms. Sweeney-Miran should not be punished for exercising her First Amendment right “to petition the government for a redress of grievances,” particularly at a time before she was selected to represent the City on the Police Oversight Panel. To do so would open the City to a claim that it violated Ms. Sweeney-Miran’s First Amendment rights.

d. Ms. Sweeney-Miran agreed that, to prevent any appearance of conflict, she would withdraw from the ACLU Lawsuit if selected for the Police Oversight Panel, and she did so.

e. The issue of Ms. Sweeney-Miran’s participation as a taxpayer plaintiff in the ACLU Lawsuit was disclosed in Ms. Sweeney-Miran’s initial application, vetted by City staff, and vetted by the Selection Committee. All of them came to the conclusion that Ms. Sweeney-Miran remained eligible to serve on the Police Oversight Panel even though she was then a taxpayer plaintiff in the ACLU Lawsuit.

For all of these reasons, the Special Counsel’s reliance on Ms. Sweeney’s former participation in the ACLU Lawsuit is a legally and factually insufficient reason to find that she should be removed from the Police Oversight Panel.

6. The Special Counsel Inaccurately Quotes Ms. Sweeney-Miran in His Report and Misrepresents Her.

In his report, the Special Counsel quotes Ms. Sweeney-Miran as saying that “she does not know what a Mastodon hashtag is.” In fact, the Special Counsel asked Ms. Sweeney-Miran about “adding a hashtag to a Mastodon profile.” Ms. Sweeney-Miran said that she didn’t know what it meant to “add a hashtag to a Mastodon profile.” The Special Counsel responded to Ms. Sweeney-Miran by recharacterizing her words as “you’re not sure what a hashtag is.” Ms. Sweeney-Miran replied “No, I know what a hashtag is, I just don’t know what it means to add a hashtag to a profile.” Despite Ms. Sweeney-Miran’s specific correction of the Special Counsel’s mischaracterization, the Special Counsel nonetheless misquotes Ms. Sweeney-Miran in his final report and in so doing harms her reputation.

Further, at the time of the interview the Special Counsel could not produce the Mastodon post in question for Ms. Sweeney-Miran to review. The post was, however, submitted with the final report and shows it to be a standard first post listing a host of hashtags, including #police as well, that show a set of interests that both include policing as well as alternatives to policing like those proposed by the abolition movement. Those interests are precisely the types of interests one would expect from a person serving on the Police Oversight Panel, and they have nothing to do with “adding a hashtag to a profile,” which did not occur.

7. The Special Counsel’s Recommendation Undermines the Integrity of the Police Oversight Panel, Disrupting Its Work.

Three members of the Police Oversight Panel resigned last year, largely because they were being silenced. After their resignations drew press attention, the City acknowledged that there were problems with how the Panel members were being deprived of their First Amendment rights. City Council then passed an emergency ordinance to ensure that members of the Panel are able to speak publicly on their social media accounts, to the media, and in public.

Despite the passage of this emergency ordinance, the Special Counsel is recommending actions contrary to its intent by urging the removal of a Panelist for speaking out against police violence prior to her appointment to the Panel. Among other problems, if the City Council were to accept the Special Counsel’s recommendation, it would expose the City to a claim for violating Ms. Sweeney-Miran’s First Amendment rights.

Equally important, removal of Ms. Sweeney-Miran would only exacerbate the problem of Panelists feeling that their voices are being silenced, further undermining the Panel’s work and effectiveness. It should not go unnoticed, for example, that all of the Black women on the panel resigned or declined to extend their terms in 2022. Allowing a complaint by Mr. Neslage and a recommendation by Mr. Douglas, two privileged white male lawyers, to silence the voices of the diverse group of persons who serve on the Police Oversight Panel and the Selection Committee undermines the credibility of the Panel as a voice for police accountability.

* * *

We appreciate your consideration of the issues set forth above. Ms. Sweeney-Miran reserves all rights, including with respect to matters not addressed above.

Sincerely,
Daniel D. Williams