Will civilian police auditor survive?
Zisser faces call for him to resign over questions of judgment; advocates wonder if oversight office will lose credibility in wake of controversy
When San Jose established the Office of the Independent Police Auditor a quarter-century ago, it put the city at the forefront of civilian oversight in the United States.
But now the office finds itself in crisis, with the police union calling on the current auditor Aaron Zisser to resign and the mayor and police chief questioning his judgment after a string of recent controversies.
Community advocacy groups and police watchdog experts supportive of Zisser, however, worry that his ouster could adversely affect the independence of the office and its credibility to the disenfranchised populations the city had in mind when creating the position.
“It is an existential threat on oversight,” said Samuel Walker, a professor at the University of Nebraska, Omaha and a preeminent police oversight expert. “It would be very damaging if he were removed assuming no official misconduct. (The city) will have a difficult time finding someone qualified and independent minded.”
Paul Kelly, president of the San Jose Police Officers’ Association, believes the integrity of the office can be preserved even after such an unceremo-
nious departure.
“There is no moving forward with Aaron in the position,” Kelly said. “The sooner he makes the decision to leave, the better for that office. The only path forward to protecting that office is getting a new IPA.”
Zisser — who has been on the job less than one year — said at issue is a fundamental disagreement over what “independent” means in his job title.
“The office’s ‘independence’ is from the police department. I don’t advocate for the community, I advocate for positions,” he said. “We have plenty of disagreements with community groups. The path forward is that I’m going to keep listening. I would challenge them to take the same path.”
Zisser recently came under fire for visiting a rally where demonstrators lambasted police over the fatal 2016 officer-involved shooting of a suicidal man in the East San Jose hills. Critics seized on a photo in which Zisser posed with demonstrators. But Zisser says he did not participate in any demonstration and was there only to show that he is listening to the community he serves.
“You want an auditor out there in the streets talking to individuals, from those who are the most angry, to the most uninvolved, to the police rank and file,” said Roy Austin, a former Deputy Assistant Attorney General in the Justice Department’s civil rights division and Zisser’s former supervisor. “That’s part of how he gains trust.”
But even then, minding optics is a political reality even for a position that is meant to be apolitical, said LaDoris Cordell, the San Jose IPA who served from 2010 to 2015.
“Appearances are part of the work. There is no rule that Aaron broke, but you always have to think, how is something going to be received by stakeholders?” Cordell said. “He was probably well intentioned, but the POA makes heyday out of it, and it’s a major distraction. There’s a reason why in five years I didn’t show up at rallies.”
Cordell added: “That’s not always appropriate for an IPA. It’s appropriate for a civil-rights advocate. You have to be strategic to be effective.”
Zisser said he now realizes that, like much of the current criticism he faces, it was avoidable. But he also believes that he should be afforded an opportunity to “recalibrate” himself to the sensibilities of the job.
“I should have been confident enough to know they would understand I can’t show up to an event like that,” he said. “I understand there are things I do to exacerbate tensions unnecessarily. I would hope that, given the hard work of this office, that there would be an opportunity to make whatever adjustments I need to make.”
Straining matters was that the rally came on the heels of two high-profile errors that put Zisser on the hot seat with the union, police brass and members of the city council. The first was an IPA audit report that suggested racial disparities in a segment of use-of-force cases based on minuscule data, and a failure to promptly notify the department about a man who in a police complaint threatened to shoot officers the next time he was stopped.
Zisser was initially defensive but ultimately relented on the report discrepancy, and was contrite about the threat episode after it surfaced, though he initially appeared to blame it on a lapse by his staff. Police have been unforgiving, even as Zisser asserts that his office disagreed with just two Internal Affairs investigations in 2017, and the audit report was supportive of SJPD overall.
Garcia says that does not reflect conflicts over other parts of the report, including segments on use of force data and juvenile arrests.
“He’s in the wrong line of work. For this process to work, it has to be impartial,” said Garcia, who has been critical of Zisser but stopped short of calling for him to go. “I have to be able to come to my rank and file and sell (reforms). Other IPA’s were critical but not disrespectful. How do I tell them this guy respects their sacrifices?”
Zisser said he is hurt by that rhetoric, saying a big inspiration for him to get into his field was the attentiveness police showed while investigating his cousin’s slaying in Albuquerque over two decades ago. But he also does not plan to let the current pressure make him timid in his role.
“You want to be able to have oversight that is willing to take risks, willing to push envelopes,” he said. “There has to be room for mistakes … not a POA looking to seize on your every misstep.”
Zisser asserts that opposition to him predates the three major controversies of the past two months. Multiple sources acknowledged to this news organization that the union conducted the equivalent of opposition research on Zisser earlier this year, but found nothing that could immediately disqualify him. But then Zisser stumbled publicly, fueling the past two covers of the monthly SJPOA magazine that featured cover stories about Zisser, with prominent images of Pinocchio anchoring them.
He has been treated with suspicion by critics because part of his background involves advocacy work, even as he points out the bulk of his career revolved around conducting investigations as a federal civil rights attorney. He objects to portrayals of him spearheading a community campaign to expand police oversight that began prior to his appointment.
Frank Richardson, a leader for the faith-based civil-rights group People Acting in Community Together, laments how the opposition to Zisser is muddying the broader cause of adding teeth to an oversight position that currently has no authority to enforce reforms.
“This is a distraction about the real issue at hand, which is the expansion of the IPA office, regardless of who holds the position,” Richardson said. “It’s important to separate the individual from the role. People come and go, what we’re talking about is systemic change.”
But like a host of community advocacy groups, which includes the Black Leadership Kitchen Cabinet, local NAACP, Silicon Valley De-Bug, the Asian Law Alliance and the Human Rights Institute at San Jose State, Richardson believes Zisser still can thrive.
“I am not going to defend or condemn his conduct,” he said. “But I find him to be a high-integrity individual.”
The union countered the idea its criticism of Zisser is a result of opposition to oversight expansion, saying it is in the midst of supporting the IPA’s office getting new access to records about officer-involved shootings and the department-initiated investigations that historically have resulted in stronger and more frequent discipline of officers. But they’re against handing Zisser the keys to that new authority.
“There’s no coming back from the errors we would call malicious and on purpose,” Kelly said.
As it stands, the police union is the only entity that is explicitly calling for Zisser’s departure, either by his resignation or his removal by a 10-of-11 vote by the council. While several council members have chided Zisser, particularly for the IPA report, there does not appear to be significant momentum toward the ultra-majority needed to remove him.
Zisser, for his part, has been introspective and retreated from previously more recalcitrant stances. But he believes he should get a chance to establish himself in the job before he is subject to a full evaluation.
“With time, distance and hard work, these relationships can be mended,” he said. “I will find that balance.”