Police Advisory & Oversight Borad - Decmeber 14, 2023 Minutes

Regular Meeting: Thursday, December 14, 2023 Minutes

The Regular Meeting of the Police Advisory & Oversight Board of Fargo Police Department was held in the Commission Chambers at City Hall at 5:00 p.m., Thursday, December 14, 2023.

The Police Advisory & Oversight Board members present or absent were as follows:

Present: Scott Paul (by phone), Todd Spellerberg, David Hogenson, Joanna Johnson, Lucrachia King.

Absent: Conrad Thomas, Tonya Greywind.

Item 1. Welcome and Introductions
Chair Johnson welcomed Members to the meeting and introductions were made.

Item 2. Approve or Amend Agenda
Member Spellerberg moved the Agenda be approved as presented. Second by Member Hogenson. All Members present voted aye and the motion was declared carried.

Item 3. Approve or Amend Minutes
Member Spellerberg moved the minutes of the November 09, 2023 Police Advisory & Oversight Board meeting be approved as presented. Second by Vice Chair King. All Members present voted aye and the motion was declared carried.

Item 4. Public Comment Period
1. Sarah Altepeter was the victim of two restraining order violations this past June, including an incident in which the police did not show up and she got a phone call from an officer 35 minutes later. She said there have been issues in the communication system and she provided emails from 2021 to the Board as proof. She filed a complaint in 2021 because she did not receive justice for a tire slashing because an officer did not receive the notification that the prosecutor’s office did not receive the pictures and evidence along with the report. This last June after the restraining order violations, she had to call repeatedly and beg for assistance for the charges to be completed. An officer did not receive a request from the prosecutor for an interview and a search warrant; when Ms. Altepeter called the officer about the request, the officer explained that the interview had already been done. A Lieutenant told her that the prosecutor did not want the search warrant anymore. The prosecutor later emailed the Fargo Police Department that they still wanted the search warrant and the search warrant was then completed. Ms. Altepeter expressed her disappointment in the Fargo Police Department and asked for the Fargo Police Department to take action to resolve issues in the communication system. She commended an officer and his partner for their response the day before.

Item 5. Police Department Update – Chief Zibolski
1. For the Subject Matter Expert (SME) review of policy, Chief Zibolski was notified that the original SME is now available. After some discussions, the Chief gave the go ahead.
a. Member Hogenson asked if this is the same person that was discussed some months ago. Chief Zibolski confirmed that it is. Member Hogenson asked if the policy review and incident review are separate. Chief Zibolski confirmed the incident review is by a team and the policy review is by the SME.
2. The next training academy begins January 22nd. This will include the ability to hire the six new officers provided by the grant.
3. Assistant City Attorney Ian Mclean gave a quick updated on the code responder program, in which social workers would be embedded with the Police Department to respond to mental health calls. The program is in progress. As it’s the first of its kind in North Dakota, they’ve been in talks with the Police Departments and City Attorney’s Offices in places in Minnesota which do have such a program to see what does and doesn’t work for them. There are issues being worked through with HIPAA, training, liability, insurance, etc. A more substantive update should be available in about a month’s time.

Item 6. Professional Accountability Unit – Data – Complaints and Use of Force – Lt. Shane Aberle
1. The data provided covers January 1, 2023 to December 5, 2023
2. Definition of formal and informal complaints
a. Formal complaint – an incident in which further action is warranted in order to determine the veracity of the allegation of due to the seriousness or complexity of the allegation, repetitive nature, or pattern of misconduct of the members. Formal complaints shall be investigated by a member higher in rank than the member accused.
b. Informal complaint – general includes minor, non-repetitive violations resulting in training, policy review, or oral reprimand.
3. Informal complaints are sent to the shift commander for resolution
4. Formal complaints are investigated by the Professional Accountability Unit (PAU)
a. External complaints are automatically formal complaints.
5. The disciplinary recommendation philosophy takes into account five things: employee motivation, degree of harm, employee experience, intentional and unintentional errors, employee’s past record
6. Source of formal complaints; 52% external, 48% internal
7. Vice Chair asked if when citizens come into meetings with complaints, would that fall under a category. Lieutenant Aberle clarified that if the citizen goes through the process with the Department, that would become a formal complaint.
8. Chair Johnson asked if one complaint can be counted under more than one allegation. Lieutenant Aberle confirmed that one complaint can have multiple allegations.
9. Member Spellerberg asked if there would be a slide coming up that would show how many of the 15 work performance allegations were for the same officer. Lieutenant Aberle stated that that data is not on a slide, though the Department has that information.
10. Jan 1- Jun 30, 2022 dispositions
a. 72% sustained
b. 9% unfounded
c. 7% not sustained
d. 6% exonerated
e. 4% pending
f. 1% closed
g. 1% incomplete
h. Chair Johnson asked for clarification between unfounded, not sustained, and exonerated. Lieutenant Aberle provided the following explanations:
i. Sustained – the Chief has determined that the allegation did occur.
ii. Unfounded – there is no basis for any of the allegation
iii. Not sustained – the allegation is not what happened
iv. Exonerated – what the person is alleging happened did happen, but was within policy and the law
11. The most common discipline on sustained formal complaints is a written reprimand (highest non-economic sanction)
a. Training and policy is often involved along with written reprimand or oral reprimand
b. “Economic sanction” – suspension, termination, or demotion
c. Member Spellerberg asked how long the typical suspension is. Chief Zibolski stated there is not a typical one because of all the factors involved, particularly repetitive behaviors. Along progressive discipline, someone can make their way to suspension; or, it’s possible that the offense is egregious enough to go immediately to suspension.
12. Breakdown of external complaint dispositions
a. 13 unfounded
b. 7 exonerated
c. 5 sustained
d. 5 not sustained
e. 3 pending
f. 1 incomplete
13. Breakdown of informal complaint categories and discipline
a. 20 missed/late for court/duty
b. 16 equipment
c. 15 preventable crash
d. 13 Evidence
e. 4 work performance
f. 1 use of force
g. 1 pursuit
h. 68 resulted in an oral reprimand
i. 1 resulted in training and policy review
j. 1 is incomplete
14. 2022 vs 2023 comparison
a. There are more complaints in 2023 than in 2022
15. Some factors behind the increase
a. Average tenure for FPD officers has decreased significantly (Lieutenant Aberle estimated over 50% of patrol staff have fewer than five years on the job)
b. There is a greater use of technology to monitor and evaluate the conduct of officers
c. A higher standard and higher expectations
d. Member Paul commented that it seems like a higher number isn’t necessarily a bad thing, especially for internal complaints where you’re holding yourselves to a higher standard and use it for an opportunity for improvement. Obviously you don’t want the numbers to be high, especially for an external complaint, and that is something that should be addressed. He recommended a comparison between the last three or four years, rather than a one-year comparison, for a better view.
16. Use of Force
a. Categories
i. Physical Force
ii. Conducted Energy Weapon (CEW) – Taser 7
iii. Oleoresin Capsicum (OC) Spray
iv. Projectile (40mm Launcher)
v. K9
vi. Firearms
b. 2023 Dispositions:
i. 90% within policy
ii. 7% unfounded
iii. 3% outside of policy
c. Types of force used
i. 135 Physical force
ii. 18 CEW
iii. 3 K9
iv. 2 Projectile
v. 1 Firearm
d. Use of force subject condition
i. 43% alcohol/drug impairment
ii. 25% normal
iii. 17% mental health condition
iv. 15% aggressive
e. Subject race and subject gender (in decreasing order)
i. White male
ii. Black male
iii. Native American male
iv. White female
v. Black female
vi. Hispanic male
vii. Native American female
viii. Hispanic female
f. Use of force analysis
i. From 01/01/2023 to 12/05/2023, there were 152 uses of force on 90,189 calls for service, equating to UOF being used on 0.16% of all calls for service; 2.5% of arrests
ii. If there are multiple officers using force on the same call for service, those are counted as multiple uses of force overall
iii. In 60% of the UOF incidents, the subject was under the influence of drugs and/or alcohol or in some type of mental health crisis
iv. The use of body worn cameras continues to be a great asset in determining legitimacy and legality of UOF.
17. Member Spellerberg asked if there is a map for areas of use of force to see if there is a higher concentration in certain areas. Lieutenant Aberle said he imagined that data could be compiled, but he doesn’t have it at the moment.
18. Member Hogenson asked if every person arrested is handcuffed. Lieutenant Aberle explained that there are some situations, such as if there are medical conditions, in which handcuffing is not the best thing to do, but the majority of the time the arrestee is handcuffed.
19. Chair Johnson asked about if the process to file a complaint could be found on the Fargo Police Department website. Lieutenant Aberle explained that the form is on the website, the number to his office is on the website, the form can be downloaded and sent in, someone could come in to the Police Department to fill out the form, he has mailed them out with a return envelope and the complainant can send it back; the PAU will accommodate any way they can to do that. The complaint is necessary to be filled out to verify the identity of the complainant.
20. Member Hogenson asked about the process for an external complaint. Lieutenant Aberle clarified that the complaint can be filled out online (a downloadable, fillable form), in person, a form can be emailed out or mailed out with a return envelope.
21. Member Hogenson asked if it is tracked if a citizen files an external complaint and that complaint is later stopped. Lieutenant Aberle clarified that would fall under an “incomplete” complaint disposition, which is still documented and what the PAU has will still go to the Chief.
22. Chief Zibolski added for reference that the Department’s policy manual, including the personnel complaint policy, is online.

Item 7. Adjourn
The time at adjournment was 5:48 p.m.