By Chris Van Buskirk
masslive.com
BOSTON — Lawyers representing police groups are pushing back on a set of proposed regulations guiding the state’s police officer recertification process that they say unfairly holds police to a “Boy-Scout standard” with no policy in place and less than a month to go before the first deadline for some officers to recertify.
Commissioners voted 3-4 on Wednesday against proposed draft regulations with two abstentions ahead of a June 15 deadline the Peace Officer Standards and Training Commission imposed to receive certification packets, a timeline commission staff have said places urgency on adopting regulations for officer recertifications.
Commissioners were looking to adopt the draft regulations on a temporary basis with internal and statutory deadlines quickly approaching later this month. The POST Commission would have then accepted additional public comment and considered further revisions before adopting the regulations permanently.
Concerns in part focused on a section of the regulations dealing with assessing an officer’s “good character and fitness for employment” that draws language from attorneys’ admission to the bar.
“An employing agency shall take into account whether an officer promotes public confidence in law enforcement and whether the officer presently exhibits morality, integrity, candor, forthrightness, trustworthiness, attention to duty, self-restraint, and an appreciation of the distinctions between right and wrong in the conduct of people toward each other,” the proposed regulations read.
Attorney Alan Shapiro of Sandulli Grace questioned how determining good moral character and fitness for employment in law enforcement morphed into “the officer has to promote public confidence in law enforcement.”
“It seems to me that if you’re going beyond good moral character and fit for employment to a kind of Boy-Scout standard, that exceeds the statutory authority,” Shapiro said. “If I’m a police officer, I go to work. I show up every day, I do my job. If I get a call, I go on the call. I’m not biased. If I have to make an arrest, I make an arrest. Isn’t that enough? I mean, why do I have to promote public confidence in law enforcement? Where do all these things come from?”
The police reform law that introduced a certification system for Massachusetts police officers — a first in the state — passed the Legislature and was signed into law by Gov. Charlie Baker in 2020. The policies pushing for greater police accountability, spearheaded by state Sen. Sonia Chang-Diaz, a Democratic candidate for governor, came about in the upheaval following the murder of George Floyd at the hands of Minneapolis police.
In response to Shapiro’s comments, Commission Chair Margaret Hinkle asked if changing the words “shall” to “may” in the section would alleviate his concerns. Hinkle sought to make the change effective Wednesday but since the proposed regulations were voted down, the change could take place at a subsequent POST meeting.
Shapiro said “it would certainly help.”
“If you’re comparing it to what the bar requires when we go every year in order to renew our bar application, we’re not required to show that we did all these things. We’re supposed to not do bad things,” Shapiro said. “If we just go about representing people, and we don’t steal their money, and we do a good job representing them, that satisfies the requirements.”
Commissioner Dr. Hanya Bluestone, who serves as CEO of Holden-based Labyrinth Psychological Services, said she was “stumbling” on the issue of good character and fitness as set out in the regulations and suggested amending the language.
“I’m wondering if we could take it one step further and just leave it as whether an officer promotes public confidence in law enforcement and continue to work on the definition,” she said. “Because I am concerned that we’re taking a standard from the bar. And I think attorney Shapiro’s comments were convincing for me.”
Commissioner Kimberly West, a partner at Boston-based Ashcroft Law Firm, pushed back on suggested edits to language dealing with an officer’s good character and moral fitness, arguing the standard should be higher for law enforcement personnel.
“The standard for police officers, in fact, should be higher than the standard for attorneys who don’t interact with the public,” West said. “So I am very comfortable with those listings.”
Commissioner Larry Ellison, a detective in the Boston Police Department’s School Unit, said the language in question is “very standard” for police officers and agencies.
“I understand what [Shapiro] was meaning when he said if I come in and do my job, and I go home, is that sufficient? That is not the case. Because my behavior on and off duty is also promulgated and regulated by my employer, the police department,” Ellison said.
After the vote, POST Commission Executive Director Enrique Zuniga said the body should schedule a meeting as soon as possible to consider revisions to the proposed recertification regulations ahead of the July 1 deadline for officers with last names starting with the letters A through H to recertify.
“If we waited until the currently tentatively scheduled meeting of June 15, there might simply be virtually almost no time to address some of the concerns raised, additional edits to the regulations, and any potential modification to the questionnaire,” Zuniga said. “I would strongly recommend that we consider having a meeting next week to essentially continue these discussions.”
A POST Commission staff member confirmed to MassLive that the group scheduled a hearing next week on June 8 at 3 p.m.
Law enforcement personnel and lawyers representing police groups in Massachusetts also pointed to what they described as broad inquiries on a questionnaire an officer must complete as part of the recertification process.
Attorney John Solis Scheft, who represents the Massachusetts Police Association, testified at Wednesday’s meeting and told MassLive afterward that the questionnaire could be “edited significantly.”
Scheft pointed to one question that asks officers, “thinking broadly,” if they have information concerning character, temperament, habits, employment, education, criminal records, traffic violations, residence, or otherwise that is relevant to recertification.
“That is just a kitchen sink question that has no place in a professional recertification document,” Scheft said. “Should you have a personal questionnaire for officers that basically asks vague, over-broad questions? No. There’s a point where the process just creates defensiveness among officers.”
The state law creating the POST Commission, the certification, and recertification processes requires POST to administer an interview process for officers as part of certification. The commission has delegated that process to police agencies to fulfill the statutory responsibility.
The commission’s general counsel, Randall Ravitz, said the questionnaire was created to aid oral interviews and assessments of an officer’s good character and moral fitness for service.
A longer version was created last year and approved by the commission in January in connection with new officers coming up for certification for the first time. That version was pared down “with an eye towards choosing questions that maybe wouldn’t come up in another context,” Ravitz said.
“At the same time, it provides that no answer is necessarily going to be a disqualifier for recertification,” Ravitz said. “It provides that if an officer believes in good faith that answering a certain question would result in a waiver of a privilege or protection recognized by law, or right recognized by law, the officer can state that in lieu of answering.”
Yarmouth Police Chief Frank Frederickson said the POST Commission is an “interesting concept” that will be good for the profession in the long run but said the questionnaire is “deep diving.”
“Basically, some of the questions don’t really have the ability to be evaluated,” Frederickson said. “I think POST could do everybody a big favor by looking at some of those odd questions and remove them.”
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