In a new twist in the Citizens’ Police Oversight Board’s journey toward police accountability, Akron City Council voted 9-4 Monday night to reject proposed rules that would have given the board power to subpoena and conduct parallel investigations of alleged police misconduct.
The CPOB – created this spring and formalized in the city charter when Issue 10 passed in November of 2022 – had already been marred by “growing pains,” understaffing, procedural hiccups, threats of litigation by the police union, and disagreements with the city law department, which serves as its legal representation.
Now it’s going to have to rewrite and potentially water down the first set of rules it wrote to govern its actions. This comes after most council members agreed with Akron’s Fraternal Order of Police Lodge No. 7, the police union, which repeatedly but vaguely warned that giving the board subpoena and parallel investigation power would violate the police collective bargaining agreement with the city.
“Of course I was disappointed in the [Public Safety Committee] vote,” said Board Member Bob Gippin, the most vocal proponent of parallel investigation and subpoena power, on Monday night. “But that’s public policy process in action as it’s supposed to be. There are legitimate differences of view, and even though I obviously wanted a different outcome, I’m not at all frustrated.”
The news Monday comes in the wake of last Wednesday’s unanimous decision to conduct the board’s first-ever investigation. It will review the recently completed Akron Police Department internal investigation that cleared of wrongdoing the officers who killed Jayland Walker. Eight police officers fired 94 rounds at Walker, striking him 46 times, after a car chase and brief foot pursuit in June of 2022. Because the internal investigation is complete, the board doesn’t need to have parallel investigation authority to review it.
“I think it’s appropriate that the board vote as the charter provides, on its own initiative, to undertake a review of the Jayland Walker matter now,” said Gippin, who wanted to start the probe right away.
“The shooting was out of control,” said CPOB Vice Chair Donzella Anuszkiewicz. “Contagion shooting took place. There could have been a lot more people who got hurt that night from the bullets that did not hit Mr. Walker.… There could have been other people who died that night.”
Some board members don’t believe the body has the capacity yet to start probing the case.
“It’s absolutely something we should take on,” Board Member Tristan Reed told Signal Akron. “But it’s like giving a baby some car keys – yeah, they’ll be able to drive some day, just not right now.”
Litigation threats from the FOP, warnings from the law department
Two issues were at the forefront of the board’s discussion about its rules package: Did the CPOB and its police auditors have to wait for internal investigations of complaints against police to be completed before they could review such cases? And could the board compel witness testimony from police officers?
The charter that created the board states its rules must be “consistent with the terms of any relevant collective bargaining agreement.”
One of the most important board meetings was on June 21, when Akron FOP President Clay Cozart and the FOP’s attorney, Susannah Muskovitz, took seats among the board in City Council chambers and repeatedly warned them that parallel investigations and compelled testimony wouldn’t fly. Grievances, arbitration and litigation would follow if the board sought to use those powers, they said.
“We have the best damn labor attorney in the State of Ohio, bar none, I’m just telling you that,” Cozart told the CPOB. “We don’t lose a lot of our grievances or arbitrations, but a lot of that is because we make sure that if we are going to fight something, that it is a good case on our side.”
Muskovitz stated their position in no uncertain terms.
“I think if this board were to decide that you’re going to start conducting parallel investigations, there’s a lot of problems with that… It violates the labor contract,” she told the board.
Moments later, she said, “If you look at the labor contract, it is certainly my position that you have no authority to subpoena a police officer for an internal investigation and we would go to court and we would try to quash any subpoena to stop that from happening…. You can’t interview a police officer. You don’t have that authority.”
Board Member Shawn Peoples, a former Canton police officer, chimed in about their comments.
“I feel like we’re being intimidated,” he said. “I feel like we’re being told, ‘This is your place, stay in your lane, don’t cross it, this is what you’re entitled to do, this is what you’re supposed to do, you’re going to do it this way, or else.’ That’s just my personal opinion.”
Signal Akron asked Muskovitz for the specific language in the union contract that would conflict with the oversight board conducting parallel investigations and using subpoena power. In an emailed response, she said, “neither I nor the FOP like to litigate issues through the media.”
Signal Akron asked the same question of Cozart: “We’re not going to tip our hands as we go into a proceeding,” he said, alluding to potential litigation if the board ever used its sought-after authority.
At subsequent meetings during executive sessions, which take place behind closed doors, the city law department advised the board of its position that it would be unwise to pursue parallel investigations and subpoena power, board members said.
Gippin put it bluntly: “The law department has taken the position that we do not have the authority to do parallel investigations. … We’ve been told something by one set of lawyers whose professional duty does not run to this board.”
Differing views on the board’s authority under the proposed rules
For the past several months, the board as a whole debated whether or not to adopt rules that would have given it that power. Members discussed waiting until the next collective bargaining agreement is negotiated next year, when the board could seek a seat at the negotiating table to help bargain for the explicit language that would grant those powers. It remains to be seen if they will request or be granted a seat in the negotiations.
Ultimately, the board voted unanimously Nov. 29 to ask City Council to approve rules that would allow it and its independent police auditor to “at any time” conduct investigations of complaints and make recommendations to the mayor and council about the complaints. It would also have granted the board subpoena-serving authority.
In a document sent to City Council members advocating for the proposed rules changes, the board acknowledged that the police union stated the position they’re taking would violate the collective bargaining agreement, “but CPOB has respectfully disagreed. CPOB has never received a written statement of FOP’s position. The possible threat of litigation by the FOP ought not to be allowed to block the implementation of the full powers” of the board “as intended by the 30,410 Akron voters who voted in favor of Issue 10.”
Members such as Anuszkiewicz voted in favor of seeking parallel investigation power, but she was adamantly opposed to the idea of actually using it.
“I don’t think parallel investigations are best practice. I still stand by that,” she told Signal Akron. “Subpoena power, that’s a different story, I do believe we should have that, and there’s nothing in the [collective bargaining agreement] that says the board can’t do this.”
Reed was unsure if the board had the authority it was seeking but voted to approve the rules anyway because of the number of people who have spoken to her.
“I don’t believe that we have explicit power in our charter, but I also believe the citizens have voiced their opinion and they’re committed to empowering us to move forward with our rules,” she told Signal Akron. “I got personal emails, among other things, wanting to make sure that I was aware of what the community wanted to do. I would never go against the majority unless it conflicts with my values and principles, and this does not. I don’t mind moving forward and exercising that power.”
Subpoena powers, parallel investigation not a given
Cozart was not pleased by the board proposing the rules. His June visit to the CPOB may have delayed the proposal, but it didn’t stop it.
“If you’re trying to throw something down our throats, we’re going to fight it,” the police union head told Signal Akron last week, before City Council rejected the proposal. “A lot of what the oversight board wants to do is a mandatory subject of bargaining. For them to try and supersede that is going down the wrong road and creates an adversarial relationship that we don’t want. We think that the oversight board with the right citizens in it – not social activists – can be a bridge between the police department and the community.”
When asked by Signal Akron if he’d spoken to and lobbied City Council members against approving the board’s rules, he said he speaks to council members “all the time. That’s my job, and they’re my council people too.”
Ward 8 Council Member Shammas Malik, who will be sworn in as Akron mayor on Jan. 1, helped get Issue 10 on the ballot. He told Signal Akron last week that parallel investigation and subpoena powers were “never assumed” to be powers of the board and he wants to have the law department formally tell City Council whether those powers would conflict with the police union contract.
“I don’t believe those are necessary to the board moving forward with the work they need to do, but if the board feels like it is, then it’s up to us to figure out whether that’s within their power under the law,” he said.
“I’ve said throughout the entire process for Issue 10 and continue to say that I want the board to have as much power as they are legally allowed to have, … [but] I’m not going to vote for something that the legal counsel for the city says conflicts with the collective bargaining agreement.”
Malik was one of four council members who voted not to immediately toss the board’s proposed rules. He wanted to hear from the legal department first, an opportunity he will not get this time. Malik is currently in the process of hiring a new law director for when he’s sworn in as mayor.
Ward 7 Council Member Donnie Kammer, chair of the Public Safety Committee, was a major proponent of tossing the board’s rules proposal. He told Signal Akron he voted to quash the CPOB’s proposal before hearing from the law department because he felt the board should propose something the FOP approved.
“What I don’t like is we have the two parties not getting along, not agreeing,” he said. “I would rather them come to an agreement and then come to City Council. … It looks like both of them are pushing back, and I don’t know who’s pushing more, but I just wish they would both come to an agreement.”
CPOB Chair Kemp Boyd told Signal Akron that “there’s disappointment, but I don’t feel discouraged” by City Council’s vote.
“I appreciate our City Council,” he said. “I appreciate our current law department and some of the advice they gave us as well. It was good to see Clay Cozart there representing the FOP. My hope and desire is that this doesn’t shut down communication and conversation, but hopefully helps it to continue.”
The Jayland Walker internal investigation comes to a close; the CPOB takes it up again
“I find that the use of deadly force was objectively reasonable and the officers complied with the use-of-force policy,” said Akron Police Chief Stephen Mylett on Tuesday, Nov. 28, after he released a summary of the full report.
After an Ohio Bureau of Criminal Investigation examination and no grand jury indictment of the eight officers who shot Jayland Walker, the APD began an internal investigation into possible internal policy violations. Mylett and the APD found nothing they believed deserved any sort of punishment.
“As I stated, this was a very dynamic, dangerous and fluid event, and all officers were focused on safely apprehending the fleeing suspect, and when presented with a reasonably perceived life-threatening danger, acted to protect themselves and their fellow officers,” he said.
The board voted unanimously the next day to investigate the APD’s investigation – it will delve into the case that led to Issue 10 being placed on the ballot in the first place.
“I’m glad they’re trying to do what they can do within their limits,” said Walker family spokesperson Robert DeJournett about the CPOB probe. The senior pastor at St. Ashworth Temple Church of God in Christ is a cousin to Walker’s father.
“It is a good sign that at least they’re wanting to go a little further because I think that’s what the police oversight board was set up to do, to help with accountability and also have input from citizens and the community,” he said. “I don’t know what to expect, but yes, I’m always hopeful for anything we can do to continue to push for transparency, push for a change in policies, and really hold folks accountable.”
Gippin read a draft statement during the meeting: “If the actions of the officers who pursued Jayland Walker, and of those officers who fired at him, did not violate APD policy, should those policies be revised? In particular, should the use-of-force policy be revised as to what levels of force should be used under what circumstances, and as to the standard for assessing whether the policy has been violated? Was appropriate command and control exercised by APD in the Jayland Walker incident? If not, should the policies and procedures for incident command and control be revised?”
Gippin wanted to start investigating immediately and disagreed with Reed, who didn’t feel the board had the capacity to investigate yet.
“I think it’s important that the public understand that we do not currently have all of the pieces and parts to be able to best execute our objectives right now, and I just don’t want to put the cart before the horse,” Reed said. “It doesn’t mean I don’t agree with the draft and I don’t agree that we should move forward with an investigation, but I think that it’s going to take time until we’re fully staffed and fully trained.”
Reed told Signal Akron the board is still in the process of hiring an independent auditor and deputy auditor, the full-time staffers who will lead investigations for the board. The city’s current auditor, Phillip Young, has been on sick leave since the spring, and the board voted at the Wednesday meeting to let go of the contracted interim auditor. The part-time, volunteer board just can’t take it up yet, she said.
“I hope this is not offensive, but I feel like there is a sentiment on the board with some of our members where we like to move fast, and I think there are some spaces where that’s called for, but this needs to be done right, and it has to be done well, and it does not need to be done fast,” she said.
“I concur,” Anuszkiewicz said.
“I’m comfortable with beginning the process of investigation,” Gippin said. “I do not think there is any good reason not to begin. I think the community would be surprised if we did not begin, and indeed we have now voted to begin, so it’s only a question of how do we do it.”
Editor’s note: Kemp Boyd is a member of the Signal Akron Local Advisory Board.