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HomeMy WebLinkAboutAgenda 03-21-2017 - 8-b - 2016 Amendment to County Sheriff’s Office - Records Retention and Disposition Schedule 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: March 21, 2017 Action Agenda Item No. 8-b SUBJECT: 2017 Amendment to County Sheriffs Office: Records Retention and Disposition Schedule DEPARTMENT: Orange County Sheriff's Office ATTACHMENT(S): INFORMATION CONTACT: County Sheriff's Office Records Charles Blackwood, Orange County Retention Schedule Amendment Sheriff, 919.245.2900 Jennifer Galassi, Legal Advisor to the Proposed Standard-8. Program Sheriff, 919.245.2952 Operational Records: Sheriff Records, Item #10 Current Standard-8. Program Operational Records: Sheriff Records, Item #10 Excerpt from October 6, 2016 BOCC Work Session Minutes UNDER SEPARATE COVER-ONLY AVAILABLE ONLINE Records Retention and Disposition Schedule, dated November 15, 2015 http://archives.ncdcr.qov/Portals/26/PDF/ schedules/schedules revised/County S heriff 11-15-2015.pdf PURPOSE: To approve an amendment to the County Sheriff's Office: Records Retention and Disposition Schedule dated November 15, 2015 to reflect changes in North Carolina law concerning law enforcement audio and visual recordings, which went into effect on October 1, 2016. BACKGROUND: On April 7, 2015 the Board of Commissioners approved the County Sheriff's Office: Records Retention and Disposition Schedule. The Schedule determines the disposition schedule and retention periods that govern Sheriff's Office records. On October 1, 2016 the Department of Cultural Resources issued an amendment to Standard-8. Program Operational Records: Sheriff Records Item #10. The amendment responds to newly enacted legislation, House Bill 972, Law Enforcement Recordings/No Public Record, regarding law enforcement recordings, including recordings captured by body-worn and dashboard cameras. 2 Previously, recordings involving a citizen complaint or internal investigations were governed by confidentiality provisions in NCGS §§ 132-1.1(a) and 153A-98, respectively, and separate retention and disposition periods applied. The amendment updates the confidentiality citation for these recordings, which are governed by § 132-1.4A, et. seq and establishes a 30 day retention period for audio and video recordings. The retention period is longer if the recordings are made part of a criminal case file. These retentions periods are consistent with the Sheriff's comments during the October 6, 2016 work session on body camera recordings. The Sheriff's Office recommends approval of the amendment. FINANCIAL IMPACT: There is no financial impact related to the retention schedule amendment. SOCIAL JUSTICE IMPACT: The following Social Justice Goal is applicable to this agenda item: • GOAL: FOSTER A COMMUNITY CULTURE THAT REJECTS OPPRESSION AND INEQUITY The fair treatment and meaningful involvement of all people regardless of race or color; religious or philosophical beliefs; sex, gender or sexual orientation; national origin or ethnic background; age; military service; disability; and familial, residential or economic status. Compliance with the County Sheriffs Office: Records Retention and Disposition Schedule furthers the above Goal. RECOMMENDATION(S): The Manager recommends that the Board: • approve the County Sheriffs Office: Records Retention Schedule Amendment, dated October 1, 2016; and • authorize the Chair to sign the Amendment. 3 County Sheriff's Office Records Retention Schedule Amendment Amending the County Sheriff's Office Records Retention and Disposition Schedule published November 15, 2015. STANDARD 8. PROGRAM OPERATIONAL RECORDS: SHERIFF RECORDS Amending Item 10, Audio and Video Recordings, as shown on substitute page 57. APPROVAL RECOMMENDED County Sheriff Sarah iE. Koonts Director, �*� .��� "� Division of Archives and Records APPROVED y Chairman, Bd. of County Commissioners Sus'nVV. Kluttz, Secretary ^� Department of Natural and Cultural Resources County: October 1, 2016 8 — Sheriff Records o n u 48 Q ri 73 r i Q +-' CJ 0 0 O v -a `a) -a ,o., 0 v c N c N oC 0 U C7 U C7 T Z CL 11000 VIII ) 0 VIII c v o(NI — Z u °v) '" Q o v m O v c � �^ U as cu O O. O. 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COUNTY COMMISSIONERS PRESENT: Chair McKee and Commissioners Mia Burroughs, Mark Dorosin, Barry Jacobs, Bernadette Pelissier, Renee Price and Penny Rich COUNTY COMMISSIONERS ABSENT: COUNTY ATTORNEYS PRESENT: John Roberts COUNTY STAFF PRESENT: County Manager Bonnie Hammersley, Deputy Manager Travis Myren and Clerk to the Board Donna Baker (All other staff members will be identified appropriately below). Chair McKee called the meeting to order at 8:52 p.m. 1. Detention Center: Update on Project Schedule and Discussion of Potential Scope Expansion to Include Law Enforcement Center/Sheriff's Offices BACKGROUND: After authorizing the Manager to engage Moseley Architects as the designer for the Detention Center project in the summer of 2015, initial project vision planning, comprehensive stakeholder input sessions, the jail population profile, and projections for future growth were conducted in the fall of 2015. Subsequent schematic programming and planning activities were halted in the fall of 2015 in order to process an amendment to the County's Ground Lease with the State of North Carolina enabling the County to provide the built detention facility as collateral for standard project debt financing. This amendment was successfully achieved through enabling legislation approved by the State Legislature in the summer of 2016. The County is currently awaiting an executed lease amendment from the State and will fully resume planning and design efforts once this fully executed amendment is returned to the County. Based upon the receipt of the executed Lease Agreement Amendment in October 2016, the projected timeline for this project is as follows: Activity Estimated Date Range BOCC: Construction Manager at October-November, 2016 Risk Award Schematic and Developmental Fall-Winter, 2016-2017 Design Preparations with Board and Stakeholder Review/Feedback 10 2 2. Discussion of Body-Worn Cameras BACKGROUND: At the May 5, 2016 Board of Orange County Commissioners meeting, Commissioner Mark Dorosin submitted a petition requesting that the Board discuss, with Orange County Sheriff Charles S. Blackwood, adopting a policy to institute the use of body-worn cameras by Deputies. Body-worn camera usage is a topic that has been in the national spotlight in recent years due to officer-involved shootings. Although believed to be a panacea for reducing distrust of law enforcement and incidents of unnecessary use of force, the use of body-worn cameras is surrounded by a number of outstanding questions. Unfortunately, little research exists to assist law enforcement leaders to decide whether to join a growing minority of agencies that are implementing use of body-worn cameras. Commissioner Dorosin said this has become a critical issue in our society as of late, and there were some discussions about a year ago at the Rogers-Eubanks Neighborhood Association (RENA) center about community and police relations. He said as these conversations continue this issue of body cameras keeps coming up. Commissioner Dorosin said Carrboro was about to adopt a body camera policy, but a state law was passed, which has not completely pre-empted the use of body cameras, but has put some limitations on the use. Commissioner Dorosin said the first step is to have a philosophical discussion about the value of having body cameras as pertains to what takes place between law enforcement and citizens. He said he would like to pursue the issue of wearing body cameras, and he is interested in the Sheriff's opinion, and how the State law impacts this analysis. Sheriff Blackwood said he is aware of what is going on in many communities, and, in large part, the community that would benefit from increased trust is not the community that causes the uproar when shootings occur. He said his philosophical approach to this topic is based in Graham v. Conner, which happened in Charlotte, NC. He said this case guaranteed that an officer will be judged by the "officer-on-the-scene" standard and not 20/20 hindsight, with the reasonable objectiveness that the officer has to make split decisions where circumstances are tense, uncertain and rapidly evolving. He said this perspective evaporates when a camera comes into play, as it allows for 20/20 hindsight. He said this discussion has gone up and down with sheriffs all over the State. He said he does not have the answer to what should be done. He said the legislation was poorly written, despite having been drafted by two former members of law enforcement, but it is a starting point. He said if the shooting in Charlotte had happened today the video would not be released, due to the new State law. He said this is weighing heavy on him. He said in order to do this right the County should wait to see the final legislation on body cams. He said the cost of the equipment is becoming more affordable, but the cost for storage is huge. Sheriff Blackwood said he wanted to do the right thing with body cameras, and the purchase and use of them. Chair McKee asked if the Sheriff's office has any equipment now. Sheriff Blackwood said there are in-car video cameras, and if the Board funds one, then it should fund both cameras. He said the two cameras do different jobs, and to get the best footage both cameras must be present. He said his department is blessed to be in Orange County, and they are one of the only Departments in the State that has standards in place for their deputies. 11 3 Sheriff Blackwood said he is not ready to accept body cameras yet, but he will continue to talk and work with the BOCC. Chair McKee asked if the in-car cameras are forward or forward and rear looking, and if the body cameras are on the vest. Sheriff Blackwood said there are many configurations, and the body camera can be on the eyepiece, which is the most optimal location for a body camera. He said the car cameras are forward looking, but can also view someone being transported in the back of a vehicle. Commissioner Burroughs said she wanted to know more about costs. Sheriff Blackwood said the costs of the cameras are between $20 and $60 each, with packaging including 5-year warranties and replacement cameras. He said 20 cameras would be $44,588, and 60 cameras would be $134,660. Sheriff Blackwood said unlimited cloud is very expensive, with a retention schedule from 30 days up to 20 years. He said the Sheriff Association is undecided as to whether the State should be allowed to set standards regarding the issue of equipment. He said this is not done with firearms, uniforms, cars, etc. Sheriff Blackwood said the camera issue is a big one, and the legislation has to be re- written. Commissioner Burroughs asked if the retention timeframes are best practices only. Sheriff Blackwood said yes. He said the cost for unlimited cloud for 20 cameras, for one year would be $105,800, and for 60 cameras would be $315,560. Commissioner Burroughs said the first year would be about $500,000, and the most costs come with the storage. Sheriff Blackwood said yes. Commissioner Jacobs thanked the Sheriff for sharing his honest thoughts. He said the issue of cost is more troubling than the actual concept of the body cameras, and it is probably too late since the public will expect law enforcement to have body cameras. Commissioner Jacobs said he would encourage the Sheriff to think this through, but he believes it is likely unavoidable. Sheriff Blackwood said he knows the legislation will probably require body cameras. Commissioner Jacobs said long term it will be to the benefit for law enforcement to have body cameras. Sheriff Blackwood said there are more reasons to have them than not. Commissioner Pelissier asked if anything else is being considered to build and/or keep trust between the community and law enforcement. Sheriff Blackwood said that is the purpose of the community discussions. Commissioner Rich said she is conflicted with the General Assembly saying what can and cannot be done. Sheriff Blackwood said the mechanism is there to have footage released, it just requires a court order. Commissioner Rich said if and when cameras are used, she wanted to make sure the best equipment is secured. Commissioner Price said she respected the Sheriff and his point of view, but there is always the potential for an officer(s) that probably should never have been hired. She said for the safety of citizens, and to protect their own officers, body cameras are needed. Commissioner Dorosin said this is a national issue of trust/distrust. He said it is critical to have body cameras/video as another evidentiary tool. He said there is a racial component to this discussion as well. He wanted to know if it is the will of this Board to have these cameras, and what needs to be done to address the Sheriff's concerns. 12 4 Sheriff Blackwood said he would like the BOCC to commit to him that his department will not have to give up the car cameras, that each officer receives a body camera, and that he will not get crucified if he does not release a video, per the legislation. Commissioner Dorosin said these requests seem eminently reasonable to him. Commissioner Burroughs said she felt that costs should not be a barrier to purchasing and implementing body cameras. She is in favor of moving forward. Commissioner Rich said as the issue moves forward, she asked Sheriff Blackwood to continue to share his concerns if any come up. She said there must be mutual trust. Commissioner Jacobs said he supported the conversation thus far, and he suggested the Sheriff come back with a more concrete cost proposal. Sheriff Blackwood said he has reached out to other sheriffs and has been in touch with vendors. Commissioner Jacobs said with the issue of releasing videos, they should come up with a policy together on this topic, if the law remains the same. He said the Board may want the Sheriff to request a Judge's permission to release a video. He said the Sheriff has more knowledge than any attorney about law enforcement. Commissioner Price said it is important that all understand she is coming from a different perspective. She said she has been stopped for walking twice in Orange County, and once in Charlotte. She said something needs to be done, and the body cameras will help. She is supportive of the usage of these sooner rather than later. Chair McKee asked if Sheriff Blackwood would work with management about pricing, and get figures back to the BOCC to make a decision with him, not for him. Commissioner Dorosin said the hour is late. 3. Written Consent to Search Requirement for Law Enforcement BACKGROUND: At the September 6, 2016 Board of Commissioners' ("BOCC") meeting, Commissioner Mark Dorosin submitted a petition that the topic of written consent to search be discussed at an upcoming BOCC work session. Some law enforcement agencies in North Carolina, including the Durham, Greensboro, and Fayetteville Police Departments have adopted policies requiring police to obtain written consent to search. Both federal and State law, however, allow consent to be provided in writing, orally, or by other means, as long as the expression of consent communicates its meaning clearly. Proponents of requiring use of written consent to search forms assert that this measure is necessary given statistics that seem to indicate that minorities are disproportionately more likely to be stopped and searched than white drivers. Meanwhile, concern has been voiced from law enforcement that such a requirement would negatively affect their ability to engage in efforts to combat crime and ensure public safety. Commissioner Dorosin said this is an important tool they should adopt. He said this goes a long way to building trust and a tool in the service of law enforcement. He urged the Sheriff's Department to adopt this and his peers to support it. Sheriff Blackwood said written consent to search was used in the 1980s, but it went away because attorneys started instructing law enforcement that written or verbal consent can be used to search, as long as the consent was clear. He talked to retired law enforcement, who said they would feel less safe if this was implemented. He said he would not adopt the policy, but when feasible, he would require his deputies to use the written consent form. He said if this practice is abused, there will be camera records to show it. He said if there are complaints to searches, he would address them. 13 5 Chair McKee asked Commissioner Dorosin if there is probable cause to search, then the written consent is not used, or necessary. Commissioner Dorosin said the written consent is for when there is not probable cause to search. Jennifer Galassi, Legal Advisor to the Sheriff's Office, said that is not necessarily always the case, as sometimes written consent is received even when there is probable cause. She said getting the consent facilitates law enforcement's ability to things more expeditiously. She said if consent is received, the interaction tends to be more cooperative. She said law enforcement does not have to inform the person in question that there is the right to give written consent, and the prosecution does not have to prove the person in question knew that written consent existed. Commissioner Dorosin said if people know they can say no, they will say no, and while the right exists, law enforcement does not want them to say no. He feels law enforcement should inform the person in question that they can give written consent or refuse the search. Jennifer Galassi said there is a notion that the idea of consent is being substituted for the idea of reasonableness, which is the touchstone of the fourth amendment. Commissioner Jacobs asked if one does not give consent, can an officer say there is probable cause to search, or does the refusal to consent halt the interaction. Jennifer Galassi said if there is truly no probable cause, then yes the interaction should end upon refusal to consent. Commissioner Jacobs said watching TV and movies have polluted his view of all of this. He said the question for him is how well do people know their rights, and how obligated is law enforcement to inform them. Commissioner Jacobs said this is a more difficult issue than the body cameras for him. He told Commissioner Dorosin that he appreciated the topic being brought up and suggested re-visiting this. He said he thought body cameras would help, and would like to check back with the Sheriff to see how his proposed practice is working. He would also like to hear updates from those working in the civil rights movement. Commissioner Jacobs said he wanted to respect the Sheriff's prerogatives and his staff. Sheriff Blackwood said he will provide the BOCC with a breakdown of the searches that have consent and those that do not. Chair McKee agreed with Commissioner Jacobs. Commissioner Dorosin said the Board should review the data from Bumgarner and have this discussion. Commissioner Jacobs said to ask Sheriff to analyze the stops. Sheriff Blackwood said they met with Mr. Bumgarner to ask him to analyze their searches since Sheriff Blackwood has been in office, as well as searches broken down by officer. He said the collection of data is confusing and complicated. Jennifer Galassi presented the data from the period of two years prior to December 2014, and the 20 months since then. Commissioner Rich asked if this data should be weighted due to the larger white population, as compared to the black population. Jennifer Galassi said that is difficult because the people being ticketed are not even residents. Sheriff Blackwood said they are trying to correlate better data sets to be collected, including where people live, the race of the officer, etc. He said they have been challenged to come up with four categories to check, which are currently not being checked. He said these are interesting numbers, but this is not indicative of what is really going on, as all stops do not require documentation. He would support changing this practice, and collecting data on every 14 6 interaction: who was stopped, why they were stopped, what was the outcome, was there a bias involved in the stop, etc. Commissioner Jacobs asked if data for Hispanics could be collected as well. Chair McKee said this all boils down to having trust in the Orange County Sheriff's office, and he does trust them. Commissioner Jacobs suggested bringing this information back at the February 16th work session. Sheriff Blackwood said he does care about civil liberties, and his department has to use the law that is given to it, and keep working together towards a better place. The meeting was adjourned at 10:47 p.m. Earl McKee, Chair Donna Baker Clerk to the Board