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Tucson Mayor Regina Romero is pushing for a review of the city charter and for immediate training for members of a civilian board that handles appeals by police officers who鈥檝e been disciplined or fired after several 鈥渦nacceptable鈥� decisions the board has made to rehire officers that were terminated for excessive force or domestic violence.

The five-member Civil Service Commission is operated under the city charter. They are each appointed by the mayor and council to six-year terms and must be appointed based on their political affiliation. Currently, there are only four members. The primary duty is to review appeals of discipline by city employees, including police officers, and decide if the punishment meted out by city leaders is appropriate.

In September, the commission reinstated Officer Alfred Anaya, who was terminated in 2019 after he fired six rounds into a car though he could not clearly see inside because of its deeply tinted windows. During the department鈥檚 internal probe, he told investigators he did not believe the suspect in the car posed an immediate lethal threat after the car crashed and came to a stop until he saw someone moving inside. Anaya admitted to investigators that he had no idea if the backseat of the car was occupied.

After a nearly two-hour executive session at the end of Anaya鈥檚 four day-hearing, the commission spent 21 minutes deliberating before voting to reinstate Anaya to the force with full back pay.

After the decision, Tucson Police Chief Chris Magnus issued a statement saying he believed the decision undermined his duty to hold officers accountable for violating department policies.

Anaya鈥檚 reinstatement is the most recent in a series of decisions by the commission, including ordering five other officers to be rehired who had been fired for matters like domestic violence, excessive force and dishonesty.

鈥淭hey鈥檙e going based off emotion鈥�

Magnus has said multiple times that he will not be putting officers who are dishonest or commit crimes back on patrol because they pose an unacceptable risk to the community when it comes to handling complaints or investigations.

Magnus says he thinks the commission members are well-intentioned. But, he says, their job is not to substitute their own judgment when it comes to department rules, regulations and policies.

鈥淚t鈥檚 a problem. I don鈥檛 think there should be three more chiefs of the Tucson Police Department,鈥� Magnus said, referencing the three commission members who must be present during an appeal hearing. 鈥淚t is not within their scope of responsibility to substitute their judgment about what the rules and regulations and policies of the police department should be.鈥�

In the case of Anaya and the other reinstated officers, the commission overruled the department鈥檚 policy regarding presumptive termination for certain offenses and said that the punishment was too severe.

Magnus and Romero both say this is not the commission鈥檚 job.

鈥淚t鈥檚 unacceptable to reinstate an employee 鈥� it doesn鈥檛 matter if it鈥檚 in the Police Department or other departments 鈥� that is not following protocol or that has a domestic violence incidence on record,鈥� Romero told the Star on Thursday. 鈥淭hese policies are to help the community not have police officers use excessive force, and if someone does, they have to be terminated. That鈥檚 what we expect.鈥�

Romero said Magnus has been working hard over the last five years to make important changes to the department鈥檚 rules and regulations involving use of force. It鈥檚 an issue many Tucsonans, like people in communities across the U.S., are concerned about.

鈥淥ur Civil Service Commission seems to be disconnected from what the goals and vision that the mayor and council have established in the last year with the (Carlos Adrian) Ingram-Lopez and (Damien) Alvarado cases,鈥� Romero said, citing recent in-custody deaths here. 鈥淭he mayor and council are very clear about not accepting excessive force. We鈥檙e very clear about being transparent and holding officers accountable for their actions.鈥�

Ingram-Lopez, 27, and Alvarado, 29, both died this year while being restrained and in custody of Tucson police.

Romero said that in the months following, she and Magnus have had conversations about how to best align the commission with what it鈥檚 supposed to be doing, which is determining if there was just cause for the punishment.

There鈥檚 a list of actions that can lead to discipline and termination, in the city code and civil service rules. Fireable infractions includes infractions such as dishonesty, violation of department rules and regulations and conduct that would cause 鈥渢he city or the department to question an employee鈥檚 reliability, judgment and trustworthiness in carrying out assigned responsibilities.鈥�

鈥淭hey鈥檙e supposed to be looking at facts and seeing if policies, rules or procedures were violated. If they were, they have to take action and agree with the department decision,鈥� Romero said. 鈥淭hey can only ratify the decision made by the department based upon the facts. Unfortunately, that鈥檚 not happening. They鈥檙e going based off emotion and non-facts.鈥�

Because the commission was created by the city charter, a list of ordinances and codes for the city would have to be changed to alter the commission鈥檚 role, which Romero said has been done before. But it is not easy.

鈥淔or now, we put together a task force or committee to review the charter. I think there鈥檚 some good government changes that need to pass,鈥� Romero said. 鈥淚 believe that one of conversations we鈥檝e had as a community and mayor and council is that we revamp and reimagine our committees that oversee our police department and the city of Tucson.鈥�

Magnus and Romero have both suggested the use of an administrative law judge to conduct judicial reviews of police disciplinary appeals based solely on the facts.

But the process to change the charter is slow. Romero says interim steps will be taken to make sure the commission does not continue to run astray of its duties.

鈥淧art of that revamping ... is either training or retraining the current commissioners that are there and making sure that they鈥檙e aware of implicit bias and excessive use of force and these things that could potentially help them while we find a longer term solution,鈥� Romero said.

What that training will look like for commission members is unclear.

Public safety 鈥渉angs in the balance鈥�

A 135-page document relating to appeal hearings that contains information about the city charter, law enforcement discipline statutes, procedures and duties on appeals and more is provided to help guide commission members, according to documents obtained by the Star through a public-records request. There鈥檚 also a 69-page rules and regulations document that鈥檚 available online. It鈥檚 unclear if commissioners receive any formal training beyond being asked to read these documents.

In addition to the guides, commissioners also have access to their own legal counsel, which is hired and paid by the city. 鈥淭hey need outside counsel, and they can鈥檛 be represented by someone within the City Attorney鈥檚 Office,鈥� said Donna Aversa, the commission鈥檚 legal counsel. 鈥淭he city provides me as a resource to give them legal advice. Under open-meeting law, they have to say why they are going into executive session and for the commission, it鈥檚 always legal advice.鈥�

Aversa said she was unable to speak further on the issue.

Over the past 15 years, there have been 19 members of the commission, with most serving only one six-year term, according to a list provided by a city. Several members were approved for a second term but resigned before it was over.

The Star also requested the r茅sum茅s and other application material for current commission members Thomas Palomares, Paul Fimbres, Rebecca Monta帽o and Carol West.

The city provided materials for Palomares, Fimbres and Monta帽o. They city said it was unable to locate materials for West鈥檚 2014 appointment, as they鈥檇 been destroyed per the City Clerk鈥檚 Office documentation schedule. The city鈥檚 list shows that West, a former city councilwoman, was appointed in March 2019.

Palomares, the commission chair, was recommended for appointment in October 2018 by former Councilwoman Shirley Scott, to fill a vacant Republican seat. The commission is meant to be made up of two Republicans, two Democrats and one member of a third party, but Palomares is currently the commission鈥檚 only Republican member. He works as a strategic manager specializing in client engagement, relationship management and business development, according to his r茅sum茅. He has a bachelor鈥檚 degree in political science and criminal justice and a master鈥檚 in business administration. He has served on the commission since December 2018.

Fimbres, one of two Democrats on the commission, was recommended for the position in June 2017 by former chairman Max Parks, who served from 2014 to 2019. Fimbres was appointed a month later, with Parks鈥� recommendation letter saying that Fimbres 鈥渉as a deep understanding of policy and administrative directives and their application.鈥� The former Raytheon employee said that with the knowledge he gained from being a 34-year member of the defense industry, he believes he 鈥渃an contribute an understanding to the questions that arise and are brought to the Civil Service Commission,鈥� according to his application.

Monta帽o, a Democrat who has served since March 2017, applied to the commission the month before and was recommended for the appointment by Romero. Monta帽o spent 35 years working as an educator, climbing the ranks from teacher up to deputy superintendent at the Tucson Unified School District. Monta帽o鈥檚 application said her r茅sum茅 listed a 鈥渧ariety of skills鈥� she鈥檇 be able to utilize on the commission, and that she has previously served on boards that involve employment issues. Monta帽o said she also had experiences at the national and state level that involved development, implementation and accountability.

Magnus said that one of his biggest responsibilities as chief is to create policy for the department, which includes rules, regulations, expectations and training. Because of that and other factors, the vetting process to become chief is extremely extensive.

He said he doesn鈥檛 believe commission members have undergone the necessary training or vetting process to be making their own judgments on policy issues, which has happened multiple times over the past several years.

鈥淚 don鈥檛 think it鈥檚 really an overstatement to say that when we鈥檙e talking about this, public safety literally hangs in the balance here,鈥� Magnus said. 鈥淭o have the Civil Service Commission members, regardless of their intentionality, substituting their judgment for the expectations we have associated with public safety is a recipe for disaster.鈥�

鈥淧roblematic and concerning鈥�

Commission members should undergo new training before they hear any more appeals, Magnus said.

鈥淭he public has some pretty significant concerns about how cops use force and make decisions on a range of things. What kind of chaos are we creating when this kind of confusion is sowed over what鈥檚 allowed?鈥� he said. 鈥淭hese folks need to understand that just because information is presented to them by an advocate representing an employee, it does not mean it鈥檚 either relevant or even deserves any kind of consideration whatsoever.鈥�

The rules for hearings are much different than a criminal case, with no objections and no rules about what can and cannot be presented in the case. Many times, attorneys for officers accused of excessive force will point to the county attorney鈥檚 decision to not file criminal charges as a reason why the punishment is too severe.

The justification statute to file criminal charges is based on a completely different standard and has nothing to do with if an officer violated a department policy, Magnus said.

Still, the comparison continues to come up in hearings and even more problematic, in the letters the County Attorney鈥檚 Office issues when they decline to file charges, Magnus said.

On Dec. 1, David Berkman, the chief criminal deputy county attorney, said in a second review of a use-of-force allegation against Officer Colin Klingler that the 鈥渏ustification statutes and TPD鈥檚 use-of-force and justification policies are basically the same.鈥�

鈥淭his is patently false,鈥� said Assistant Chief Mike Silva, the city鈥檚 former legal adviser for TPD who worked as a prosecutor and in private practice before joining TPD.

Klingler鈥檚 case will be appearing before the commission sometime in 2021, having been rescheduled twice already. Klingler was fired earlier this year for a February incident in which he was accused of using excessive force, failing to render medical aid, 鈥渃allous disregard for an injured person鈥� and 鈥渄eliberate indifference鈥� toward the injured man鈥檚 personal property.

On Feb. 13, Officer Crystal Martinez, who resigned during the investigation, conducted a traffic stop after observing a man on a bicycle make a traffic violation, according to the Police Department鈥檚 executive review of the incident.

The man, who had two outstanding felony warrants, fled but was detained a short distance away, after which Klingler arrived to assist in the arrest.

The man was not complying with Martinez鈥檚 commands to give her his hands and rolled onto his stomach, pulling his hands under his chest. Klingler approached the man over his right shoulder and delivered four to five elbow strikes to the man鈥檚 head and face.

Klingler told the man to put his hands behind his back before delivering four more strikes to the man鈥檚 head. The man screamed, then Klingler struck him three more times. The man stopped talking and screaming and his 鈥渂ody stops moving and his breathing is labored,鈥� the review said.

At that point, the man appeared to be unconscious with his body 鈥渃ompletely limp,鈥� but Klingler moved to the other side of his body and delivered a knee strike to the head, several more elbow strikes and then transitioned to 鈥渉ammer fist strikes鈥� to the man鈥檚 head and face, while Martinez put him in handcuffs.

The man remained limp as officers shined a flashlight in his face to see if he was conscious, the review said.

鈥淗e might need meds; I rocked him,鈥� said Klingler before he was seen in body camera footage smiling and laughing.

Paramedics arrived, but the man, who had regained consciousness, refused treatment and was taken to jail. When he arrived, he was medically rejected for booking and was sent to a hospital. An exam revealed fractures to his face and head, some of which required surgery to repair, the review said.

The review noted that Klingler and Martinez lived together and were involved in a romantic relationship at the time of the incident. During his interview with investigators, Klingler had no recollection of how many times he hit the man. The review found that while some of the initial strikes were proportional to the suspect鈥檚 actions, the final seven were not and that Klingler鈥檚 鈥渓ack of recollection and inability to articulate his justification ... is problematic and concerning.鈥�

The review found that Klingler鈥檚 actions fell into the 鈥渟erious misconduct鈥� category of the department鈥檚 discipline guide, for which the corresponding discipline is presumptive termination.

鈥淪ubstituting their judgment for mine鈥�

In the case of Anaya, one commission member said that because the suspect whom he fired upon was 鈥渁 very dangerous person,鈥� the use of force was justified. Magnus says he is concerned similar logic will be applied in Klingler鈥檚 hearing before the commission.

In June, Daniel Oates, a former police chief, wrote an opinion piece for the New York Times about why it鈥檚 so hard to fire cops who break the rules.

鈥淭he arguments are always the same: The chief鈥檚 investigation was shoddy; the chief had a vendetta against this particular cop; other cops did this before and weren鈥檛 fired; the alleged misconduct really wasn鈥檛 that bad,鈥� Oates wrote. 鈥淭oo often, (decision-makers) feel the pressure to 鈥榮plit the baby鈥� in their decisions. Perhaps the cop is docked pay or promoted; otherwise he鈥檚 back on patrol.鈥�

Oates鈥� words echo a situation that has played out in Tucson a half-dozen times in recent years.

鈥淭hese are dedicated, conscientious people who haven鈥檛 been given training on the scope of their job,鈥� Magnus said, adding that the solution isn鈥檛 clear-cut.

Magnus says the commission needs to undergo training, be held to a greater standard of accountability and have a process for transparency where a summary of hearings and their decisions are presented to the mayor and council, similar to other city boards.

Magnus also said he鈥檇 like to see a selection process with greater scrutiny, but he wonders if the commission will ever attract diverse members representative of the community when hearings are held on weekdays during business hours, eliminating most people who have a full-time job.

鈥淭hey鈥檙e really dealing with critical issues particular as they relate to public safety鈥� Magnus said. 鈥淚t seems very unfair that as a department, and frankly me specifically as the chief, I am held responsible for the idea that when you have a bad police officer, they shouldn鈥檛 be working here. I don鈥檛 have control over that. I have a commission substituting their judgment for mine.鈥�