At its regular meeting Nov. 8, the Police Accountability Board, or PAB, was confronted with questions concerning the extent of their authority under the City Charter following a policy complaint about an allegedly racist and physically violent off-duty police officer.

PAB board member Joshua Cayetano noted that although the board does not have the authority to investigate a specific incident, they could work with the Berkeley Police Department, or BPD, to review the reporting, investigation and subsequent disciplinary measures taken for off-duty misconduct.

“Policies (concerning off-duty conduct) are comprehensive,” Cayetano said during the meeting. “But the nature of off-duty conduct, especially off-duty conduct involving bias, is that it is more likely to be underreported, dismissed as unfounded and under-disciplined.”

When requesting aggregate data from BPD to look into incidents of off-duty misconduct, the board was only sent data already publicly available in annual reports — the listed categories reporting instances of harassment and discrimination, Cayetano noted, do not specify if they occurred on or off-duty.

PAB board member Kitty Calavita also recommended a subcommittee to investigate the implementation of BPD policy specifically as they relate to off-duty conduct, but PAB board member Leah Wilson added that the City Charter, in her view, does not give the board explicit authority to go beyond “setting and reviewing” policy to evaluate its implementation.

The charter specifies that the PAB’s role is to review BPD policies and practices and provide “means for prompt, impartial, and fair investigation” of public complaints against BPD.

In terms of policy review, however, Cayetano said other jurisdictions can also audit police departments’ implementation of policy.

He argued that audits of policy implementations should be PAB’s responsibility as well.

“We are policy, we are practice, we are procedure,” said PAB chair John Moore during the meeting, similarly stressing the importance of policy and practice. “All of those things are important because (in the real world) it’s not just policy. It’s practice and procedure.”

The discussion moved towards what a policy review would entail, and what exactly falls under the board’s subpoena power granted to them by the charter.

The charter details the powers of the PAB, stating that one of their duties is “to access records of City Departments, compel attendance of sworn employees of the Police Department, and exercise the power of subpoena as necessary to carry out its functions.”

The board said they never had a specific discussion as to when to use their subpoena power, but the general consensus is to use “when appropriate.”

During the Chief of Police report, Calavita said she was dissatisfied with the City Attorney’s Office current interpretation of the charter, which allegedly limits PAB’s oversight in accessing confidential information.

“There have been a number of critical incidents over the last year and more, that really underscore what could be an important function of this board,” Calavita said during the meeting. “It’s very frustrating to only be able to read in the newspaper the information the public has.”

Expressing frustrations in accessing information, Calavita noted that the board has had multiple experiences where requested records have taken longer than the enumerated time, a maximum of forty days, to obtain.

The board noted that other police office commissions, however, do have access to the confidential records the PAB is requesting.

Additionally, during the meeting, deputy city manager Anne Cardwell presented an overview of the budget process to PAB, as the city charter grants PAB the authority to review the police department’s budget.

According to Cardwell’s timeline, the police chief’s final budget is submitted to PAB for recommendations in April 2024 before the city council adopts it in June of 2024.

PAB board member Brent Blackaby said that he hopes to see the budget prior to April, in order for concerns and recommendations to be taken into account before the creation of the initial budget plan.

Wilson ultimately expressed concern with the board’s current state of operation, noting her support for a strategic planning process.

“There’s so many things we’re currently trying to do – investigate individual complaints, review policy, keep track of major initiatives in fair and impartial policing, review the budget,” Wilson said during the meeting. “It’s not that each issue is not legitimate, but it’s the impact of the way we’re operating that we may lose our effectiveness.”