By Thomas P. Caldwell, InDepthNH.org

CONCORD — The independence of a new state entity to review complaints of officer misconduct has been slowly diminished as the commission to develop legislative recommendations works toward the completion of its report, due at the end of the month.

By the Oct. 13 commission meeting, it was only complaints that local police chiefs determined to be valid that could be considered, under the current draft proposal.

The commission came about in the wake of the murder of George Floyd in Minneapolis and the resulting Black Lives Matter movement and a growing public mistrust of the nation’s police. In an effort to restore public confidence in the integrity of police departments, Gov. Chris Sununu created the Law Enforcement Commission on Accountability, Community, and Transparency (LEACT) which came up with 48 recommendations, among them an independent complaint review process.

Through legislation and executive order, most of the other recommendations were dealt with. Officer complaints and an official definition of what constitutes officer misconduct were placed in the hands of the study commission.

Initial discussions centered on whether the new entity should be totally independent of existing state agencies. The commission’s consensus was that the complaint review committee could be administratively attached to either the N.H. Police Standards and Training Council or the Office of Professional Licensure and Certification, both of which already have investigative abilities. There was some concern that the public would not have confidence in the impartiality of a committee housed in the same quarters as Police Standards and Training.

The draft proposal released last week, developed by John Scippa, the director of Police Standards and Training, placed the new entity within his agency. In previous comments, he said, “From a fiscal point of view and from an efficiency point of view, it would certainly be advantageous to leave it at Police Standards and Training; leave this regulatory authority that already exists, and with a very responsible increase in resources and training, we will be able to, in my opinion, move this forward in a way that speaks to the spirit of what the LEACT Commission was attempting to correct.”

He went further on Wednesday, declaring, “In support of Sen. [Sharon] Carson’s position and I think a lot of the chiefs that spoke to me about it, is this process can’t in any way step in the way of a police chief to run their own organization and be responsible for the people that work under them.”

He proposed that, upon receipt of a “valid” complaint or grievance, the local police chief would refer the complaint to the review committee. If the committee felt it needed to be investigated, the complaint would be referred back the home agency for an investigation or referred back to the home agency to ask another agency to conduct the investigation, or Police Standards and Training could conduct the investigation.

“At the end of the day,” Scippa said, “it would be up to the chief law enforcement officer to determine that, and I think that protects the integrity of the chief and does not in any way take away any of their authority.”

Once the investigation is completed, he continued, it would go to Police Standards and Training, which would determine whether the investigation was valid, whether it was complete, and whether it needed followup. A complaint then could go to a hearing before the Police Standards and Training Council, which would make the final determination of whether to sustain or dismiss the complaint, and to take appropriate action.

As originally discussed, complaints would first come to the review committee, which would determine whether they were valid complaints meriting further investigation. The home department and Police Standards and Training would be notified of the complaint, but the review committee would determine whether to investigate the complaint on its own, or refer the complaint back to the home department or Police Standards and Training. The result of the investigation and any recommendations for action would go to the other entities.

Most of Wednesday’s discussion focused on the definitions of police misconduct. Once again, it was the members in law enforcement who drove the discussion.

Lt. Mark Morrison of the Londonderry Police Department objected to the use of the phrase “including but not limited to” in listing specific crimes that would constitute misconduct, saying that the definitions should be objective, with no room for subjective decisions.

Rep. David Welch, R-Kingston, agreed, saying he did not like lists because something is always left off.

Senior Assistant Attorney General Matthew Broadhead, who served as chair of the meeting, pointed out that established law says that anything not included in a list could only be considered if it is in line with other items on the list. They cannot conflict with the rest of the statute, he said.

Morrison also wanted to exclude off-duty behavior that does not rise to the level of a felony or misdemeanor. He said that such things as offensive or discriminatory behavior while off-duty could be addressed under decertification procedures by Police Standards, but they should not be defined as official misconduct.

Joseph Lascaze of the ACLU and Assistant Safety Commissioner Eddie Edwards disagreed, saying any racist or biased conduct by a police officer, whether on duty or not, reflect on his ability to fulfill the duties of his or her job. Edwards suggested that comments made at home or with friends in a private setting would not count as misconduct, but if they are made in public, they should count.

“We can’t have a policy that says conduct while off-duty does not matter,” he said.

Scippa suggested that, by adding the phrase “racist or biased conduct in public,” those concerns would be addressed.

To avoid long lists of offenses, they agreed that felony or misdemeanor convictions would qualify as misconduct, and that references to moral turpitude and moral character could be replaced with actions bringing into question an officer’s ability to serve.

A great deal of time was spent on the question of whether definitions of misconduct should include the word “sustained.” Those from law enforcement objected to omitting the word, saying it would allow allegations of misconduct. Broadhead had a hard time explaining that it was the investigation that would determine whether a complaint of misconduct is sustained. Ultimately, he said he would include in the procedural part of the recommendation that only sustained allegations would be subject to discipline.

The commission will meet again on Thursday at 2 p.m., with updated drafts of definitions and a review of the proposed procedures for hearing complaints.

T.P. Caldwell is a writer, editor, photographer, and videographer who formed and serves as project manager of the Liberty Independent Media Project. Contact him at liberty18@me.com.