Update tonight on SROs in Hayward

UPDATE: Here’s the latest on SROs. It appears the idea to go with something other than an HPD presence on campus is no longer on the table.

Some information that didn’t make it to the story:

This was a murky situation. There was no information available from the district about the incident that prompted the discussions of revisions to the SRO contract, which in turn was the basis for looking at alternatives to using HPD officers. At the December school board meeting, the item was pulled from the consent calendar for discussion and the agenda had no indication that there were revisions in the works. Legally, there’s no problem there. The board wasn’t set to vote on any changes to the contract or make any kind of decision. It was pulled for discussion and direction.

At that meeting, available for viewing below, staff was directed to look at alternatives to using HPD officers.  From Reynoso’s comments, it appeared to be a budget issue. Gonzales talked about student rights in regard to search and seizure and interrogation,  and the need for the district to have a say in selecting SROs — something that HPD has since said has always been the case.

Heredia and Frumkin — the board members on the committee that has been meeting with police — both spoke about the contract negotiations, but neither specified what the alterations are or why they are being sought.

Heredia declined to comment about the matter on Wednesday and deferred it to administration.

“The only comment I have is that the district wants a resolution that is favorable to both parties,” she said. “We as a district care about the safety of children.”

The new interim superintendent — on the job since Monday — did not want to comment Wednesday on the April 2009 matter because it happened long before she took the reins.

The April 2009 matter was brought before the public by Police Chief Ron Ace, who responded to the district to explain why the revisions are unacceptable in the letter available below. He reiterated his comments at this week’s City Council meeting.

For decades, Hayward police officers have served as School Resource Officers on high school and jr. high campuses, something that “has been highly successful in improving safety of students,” according to City Manager Greg Jones.

However, at a HUSD meeting last month, trustees asked administrators to review the current arrangement and come back with a “Option B,” possibly utilizing more security hired by, and who would answer to, the school district.

That idea didn’t sit well with some parents, who don’t want HUSD to be in charge of overseeing the safety of their kids. They have said that the cost of the SROs is well worth it, to have an HPD presence on campuses.

Trustees raised other issues, including the selection of SROs. Board member Sarah Gonzales said they should have some say in selecting school officers, looking for ones “with more of a propensity for working with youth” and also wanted clearer language to ensure the Educational Code is followed regarding search and seizure and rules pertaining to the interrogation of youth.

You can watch the recorded meeting here. The issue begins at the 44 minute mark.

The City Manager recently backed statements by Police Chief Ron Ace, who sent HUSD a letter in November. At tonight’s Council meeting, Ace will be giving an update on what’s going on with the agreement. HUSD is supposed to go over alternatives at its Jan. 13 board meeting.

Read on for the full text of Ace’s letter to the district. We’ll have an update on the update after tonight’s meeting.

 November 25, 2009

Dear Dr. Vigil:

The Hayward Police Department is in receipt of a draft renewal of the annual service agreement pertaining to services provided to the Hayward Unified School District by the City of Hayward’s Police Department School Resource Officers (SROs). We are concerned by both the content and rationale of the proposed changes.

These proposed changes come as a surprise to us. We were unaware there was an issue with the contract until your staff informed us a contract delay was prompted by controversial reaction to the arrest of a man during an incident at Tennyson High School last school year in April, 2009. During the incident, a School Resource Officer intervened in what appeared to be a man accosting a young female student. While investigating the situation, the officer learned there was a felony immigration warrant in the system for the man’s arrest. While the officer was taking the man into custody in obedience to the warrant, the girl physically charged the officer multiple times and was arrested on misdemeanor interference charges. Tennyson High School staff had to physically restrain another student – the girl’s boyfriend—who was also arrested for interfering. The man arrested for the felony warrant was ultimately determined to be the girl’s father.

Following the incident, our school resource program staff amply communicated with the family and debriefed with your staff, as uninvolved family members raised speculation to the School District that the arrest was capricious or biased.

For the past 30 years, the Hayward Police Department and the Hayward Unified School District have enjoyed a strong partnership in providing School Resource Officers to Hayward school campuses. While we have always welcomed and exercised open dialogue between our two agencies as a means to continually improve the quality of services we provide, we feel it is inappropriate to use a standard Service Agreement as a vehicle to assuage controversy or speculation that has arisen out of this specific incident.

It is undeniable that the presence of School Resource Officers is critical to the safety of your schools. As you are aware, safety is essential to a child’s learning environment, and as we understand it, safety is a top priority for the school district. Our City Council has established public safety as a top priority, and continues to support the placement of School Resource Officers and the associated share of the cost of these officers at your schools to further both agencies’ goals related to safety. We at the City certainly do not want to see any degradation in our ability to support safety in our schools, and despite the fiscal challenges we face, the City Council and City Manager continue to make the SRO program a priority. However, we have some significant concerns regarding recent proposed changes in our services agreement that require further discussion and consideration.

The following outlines my primary objections to changes in Service Agreement language proposed by the School District:

Section A, Proposed Paragraph 2:

Issue: “Upon written request of the DISTRICT, the CITY will replace any particular officer assigned to the SRO Program that the DISTRICT reasonably determines, in its sole discretion, is not a good fit for the DISTRICT.”

Objection: As the Chief of Police I will not relinquish my authority to assign officers to specialized positions in accordance with Hayward Police Department Policies and Procedures. While input from the DISTRICT will always be considered, I will not agree to the DISTRICT having the “sole discretion” to remove a SRO from his/her assignment.

Section A, Proposed Paragraph 9:

Issue: This proposed language outlines a concept where the School Principal or his/her designee shall have unilateral and final authority to determine whether or not a person can be present on campus, pursuant to Education Code 32211.

Objection: While it is certainly prudent for the School Resource Officer to operate under the spirit and guidance of the school principal’s administration, public safety and campus safety is the officer’s primary responsibility. No rule or Code abridges a peace officer’s obligation and authority to remove someone from a school campus who commits a misdemeanor by interfering or disrupting the peaceful conduct of the activities of the school or its pupils. In most cases it is reasonable for a peace officer to communicate with a site administrator before taking action on a school campus to handle a misdemeanor, but actually mandating the school principal as the final authority for the peace officer to act or not to act is neither legal nor prudent in cases when a peace officer should take action based on the responsibility and authority of law (Penal Code 626.8). It is also important to note that Education Code 32211 does not apply to most after-school activities (games, dances, etc). Enforcement of Education Code 32211 is limited to “school hours”, defined as the period commencing one hour before classes begin and one hour after classes conclude for the day, or as otherwise defined by the governing board of the School District. Officers taking action to deal with unruly disruptive behavior during after school events must generally rely on Penal Code Section 626.8, which specifies their authority as peace officers. Given the existence of laws that provide authority and guidance for all parties in such situations, this language is not appropriate for inclusion in a service contract.

Section A, Proposed Paragraph 10:

Issue: This proposed language asserts the School District’s opinion about the chilling effect on undocumented students and their families if and when representatives of the Immigration and Customs Enforcement (ICE) Agency are present on any school campus. Prompted by those concerns, the proposed language informs School Resource Officers that under no circumstances will ICE representatives be allowed to enter any campus. The implication of the language is that School Resource Officers are obliged to enforce such a ban.

Objection: While we take no issue with the District’s concerns about the chilling impact undocumented students and families may experience by the presence of federal government immigration officials on campus, it is highly inappropriate to include this language as a provision of a service contract. Hayward Police Department policy (Policy 428) clearly articulates that our officers do not independently conduct sweeps or other concentrated efforts to detain undocumented persons; it clearly lays out our edict that the immigration status of individuals shall not be the sole basis for contacting or detaining someone. We clearly understand the chilling effect of random enforcement and we maintain it would be contrary to our policy for our School Resource Officers to arbitrarily arrange for the presence of ICE agents at a school site for random enforcement. A federal law enforcement agency’s interest in entering a school campus is an issue between that agency and the School District. It is inappropriate to infer in this language that a School Resource Officer, being duly sworn, would forcibly or by some other means obstruct a federal law enforcement agency’s entry to a campus. This language is not appropriate for inclusion in a service contract.

Section A, Proposed Paragraph 14:

Issue: This proposed language would require the Police Department to remove its officers from any presence at District campuses until such time as an outcome is reached for an investigation of a complaint about the officer’s performance.

Objection: This proposed language seeks to regulate the internal personnel disciplinary processes set forth by Hayward Police Department policy (Policy 1028) and by State law. Our department is and always has been attentive and sensitive to whether it is prudent and necessary to reassign its officers while an administrative investigation is being conducted. This proposed language threatens to abdicate the legal protections of the Peace Officer Bill of Rights (Government Code 3300, et. Seq.). Our disciplinary policy ensures that complaints against officers be handled thoroughly and fairly for all parties. Suggesting School Resource Officers be unconditionally transferred from their assignments based on complaint criteria is impractical. If such a transfer were necessary, it would be so ordered based on the circumstances and merits of the complaint. This language is not appropriate for inclusion in a service contract.

Exhibit A – School Resource Officer Description of Duties (Attached Addendum):

Issue: Included as Exhibit A (attachment) to the service contract is a description of the SRO’s basic job function and representative duties. First, the proposed language for the final two paragraphs of the description of representative duties seeks to severely limit peace officers’ duty to question or interview students during the course of investigation. Under this provision officers could interview students only if the matter actually relates to the school. Second, the proposed language intends to mandate that SROs forego handling any and all illegal misdemeanant behavior as violations of law in favor of unilaterally deferring such matters to the principle for decision and action. Third, the proposed language seeks to assert that SROs are not deemed school officials for the purpose of conducting investigations or searches of students and therefore must base any such searches or investigations strictly upon probable cause, or pursuant to a search warrant, but not based on the lower legal threshold afforded to school officials.

Objection: Regarding the proposed limitations on when officers can interview students, we strongly take issue. There are a myriad of circumstances, child victim privacy laws, and other circumstances that regulate interviews or interrogations of minors. Officers must know these provisions and they are expected to exercise reason in contacting juveniles at school facilities. We do recognize the importance of fluid communication with school officials, the need to minimize disruption of school functions, and the need to maintain a low profile police presence when contacting a student. Our own Hayward Police Department policy (Policy 324.5) already prescribes these precautions. There are numerous circumstances under which an officer might need to interview a student regarding an issue that has nothing to do with the school but everything to do with the student’s safety, victimization or other exigent circumstance. Officers already exercise prudence in these matters and they are bound to existing policies and laws. There is no viable reason for this language to be included in a service contract.

Regarding the proposed language about peace officers’ authority to search, the proposal attempts to reach way beyond practicality, discretion and case law. California case law (ironically stemming from a 2001 City of Hayward case handled by a SRO at Hayward High School) clearly states that a peace officer, although employed by a municipal police department, need only meet the reasonable suspicion standard applicable to searches by school officials when the officer is acting in his on-campus capacity. A State Appellate Court recognized that school officials may conduct warrantless searches on no more than a reasonable suspicion and that the same rules apply to the school resource officer as well. The court found that attempting to apply a probable cause standard to a school resource officer merely because of who pays his salary ignores the importance of the governmental interests in maintaining order on school campuses and the officer’s purpose in being there. It is our intent to follow the law and exercise reasonable prudence while doing so according to policy. This language is not appropriate for inclusion in a service contract.

In conclusion, I am somewhat mystified by the District’s attempts to change/modify the existing Agreement that has, in my opinion worked quite well. During my short term as the Chief of Police in the City of Hayward I’ve seen a significant improvement in the collaboration and cooperation between our two agencies. This effort to modify the existing Agreement, to include many unnecessary and/or objectionable changes, seems quite counter-productive. The Hayward Police Department and the HUSD have had a model School Resource Officer Program, replicated by many other cities for many years and I’m quite concerned about the erosion of our program.

I look forward to the meeting between our two agencies scheduled for Wednesday, December 2, 2009. Hopefully we will be able to resolve these concerns and move forward with the SRO Program.


Ron Ace

Chief of Police

Eric Kurhi