LETTER: Open Letter to the Madison County Board of Supervisors

LETTER: Open Letter to the Madison County Board of Supervisors

To the Editor:

I would like to respectfully submit this letter containing my concerns, questions, and recommendations pertaining to Resolution No. 8, “Authorizing The Chairman To Enter Into An Agreement”, for your upcoming Board of Supervisors meeting on May 8, 2018. I am in general opposed to the proposed agreement between Madison County and the Oneida Indian Nation (OIN), in part because of the way it was introduced, and in part because of elements of the proposed agreement itself. Many of these are the same concerns I brought to the Criminal Justice Committee when a deputization agreement was discussed there a year ago.

Unless all these questions have been considered, answered, discussed with all the Supervisors, and made open for public comment, I urge you not to approve the resolution at this time.

Concerns with the way the proposed Agreement was introduced.

1. Lack of public discussion.
2. Lack of transparency in the resolution on the agenda.

Concerns with the proposed Agreement itself:

3. Discretion for deputization is controlled by OIN Police, not Madison County Sheriff.
4. Ability of OIN police to make arrests.
5. Public knowledge of which properties are subject Nation lands (OIN properties).
6. Area of non‐OIN properties where vehicular pursuit would be allowed.
7. Lack of remedy by public for adverse interactions with OIN police
8. “Lessons learned” from existing deputization agreement between Oneida County and the OIN Police
9. Lack of comparability to Oneida Count/OIN Police Agreement
10. Training compatibility.
11. Directing traffic on non‐Nation land
12. Accountability.
13. Significance of cost savings.
14. Forced arbitration.

Details of all concerns listed above:

1. Lack of public discussion.

The proposed agreement was not discussed with the public prior to being put on the agenda for a vote. This raises several problems:

• If the agreement passes, people are less likely to be aware that they are subject to vehicular pursuit and arrest by Oneida Nation Police.
• It is unknown whether there is currently a sufficient level of trust between the Oneida Nation Police and the non‐Nation community members for such an agreement to be successful. Given recent and historical lawsuits between the OIN and various levels of local government, it is likely that there is not a relationship of trust. A community must trust any entity policing them to have a healthy community.
• This trust relationship must be built before any deputization should be considered.

2. Lack of transparency in the resolution on the agenda.

The proposed Agreement was introduced in a way that seems to have been designed to minimize public awareness:

• The fact that the Agreement was to be voted on was difficult for the public to ascertain. Meeting agendas are only available on the County website and are not otherwise distributed to the press prior to meetings. The title of the resolution in the meeting Agenda is vague and doesn’t state the topic of the resolution. The text of the resolution lets the reader know that the agreement has something to do with the OIN and law enforcement, but doesn’t state that the Agreement is for deputization. The proposed Agreement itself was not included in the original public version of the agenda, and a member of the public had to email the County staff to get a copy of it, to even know what the Agreement was for. The proposed Agreement was only added to the publicly‐available version of the agenda after questions were raised on Friday morning.
• From what I saw during my time last year on the Board of Supervisors, this is atypical. When an Agreement is not provided in agendas themselves, it is usually clear what the agreement is for in the text of the resolution, and it is usually for non‐controversial topics.
• It is not clear that any other Supervisors other than those on the Government Operations committee were told that this Agreement would be on the agenda beforehand.
• It is not clear whether any other local government entities (e.g., City of Oneida) or local police were told that this Agreement was being proposed, or given the opportunity to provide input.

Concerns with the proposed Agreement itself:

3. Discretion for deputization is controlled by OIN Police, not Madison County Sheriff.

The language in the proposed agreement states, “The Madison County Sheriff will provide a letter specially deputizing qualified officers of the Nation Police upon a request in writing from the Nation’s Chief of Police” (page 2). I am concerned that this language gives all the discretion for whether a specific OIN officer will be deputized to the OIN Police Chief, and removes any discretion for the same from the Madison County Sheriff. Although the proposed agreement later gives the Madison County Sheriff the ability to terminate the deputization of an officer, it must be done for cause after the deputization has been implemented.

This could be remedied by amending the language to, “The Madison County Sheriff may provide a letter…”

4. Ability of OIN police to make arrests.

Unlike the existing agreement between Oneida County and the OIN Police, the proposed agreement allows OIN police to make arrests in Madison County (page 3). (The Oneida County/OIN Police agreement only allows OIN police to detain a person for arrest by Oneida County Sheriff’s deputies.)

This is an unnecessary amount of power for OIN police to have, especially given the additional concerns below.

5. Public knowledge of which properties are subject Nation lands (OIN properties).

The OIN owns a patchwork of properties throughout Madison County, and currently it is impossible for the public to know when they are on Nation lands or not. While some properties are well‐known by locals to be Nation lands (the casinos, Maple Leaf Markets, Sav‐On gas stations), these are the minority; the majority of Nation lands include vacant farmland and roadside parcels. They are not marked with signs as being Nation lands. Furthermore, visitors to the area will likely be unaware that any of these are Nation lands and if the Agreement passes, that they would be subject to being arrested by OIN police.

6. Area of non‐OIN properties where vehicular pursuit would be allowed.

The proposed Agreement allows OIN police to engage in vehicular pursuit up to five miles off of Nation land, if the suspected criminal activity occurs on Nation land. It does not require that the vehicular pursuit itself be initiated on Nation Land. Because Nation Lands are a patchwork across the county, the area within 5 miles off of Nation Lands likely includes the majority of Madison County.

This agreement allows OIN police to initiate vehicular pursuit and make arrests in large portions of non‐Nation lands in Madison County.

Has Madison County:

• Prepared a map showing these five‐mile boundaries,
• Made it publicly available on the website, and
• Calculated the areal percentage of the county that it includes?

7. Lack of remedy by public for adverse interactions with OIN police

The proposed agreement states, “The Nation expressly does not waive sovereign immunity as against any dispute other than a dispute arising under this Agreement or as against any other persons or entities other than the County of Madison and the Madison County Sheriff. As to all other persons or entities and all other claims, the Nation expressly reserves sovereign immunity” (page 5).

Does this mean that if a member of the public has an adverse interaction where an OIN officer broke the law, the member of the public could not sue the OIN police officer or the OIN? They would have to convince Madison County or the Madison County Sheriff to sue on their behalf?

8. “Lessons learned” from existing deputization agreement between Oneida County and the OIN Police

There is an existing deputization agreement between Oneida County and the OIN Police that was part of the 2013 Settlement Agreement.

Has Madison County done a formal study of the effects of that agreement (or obtained copies of such a study performed by Oneida County), in terms of:

• Any cost savings to Oneida County,
• Number of detainments by OIN police and percentage of total detainments in that county,
• Location of detainments by OIN police (ie, only at Turning Stone Casino, or other OIN properties also),
• Any disputes and lawsuits, and
• Whether the Oneida County Sheriff’s Department has had to revoke the deputization of any of the OIN police officers, and if so, under what circumstances?

This should be done and should not only be made publicly available, but should be submitted to the press and discussed in the public forum.

It should also recognize that the perspective of law enforcement community on whether a program has been a success is sometimes different than the perspective of the public, and the perspective of the public should also be sought out and considered. Not doing this is missing an opportunity for “lessons learned” and to build trust with the public.

9. Lack of comparability to Oneida Count/OIN Police Agreement

My understanding is that the majority of OIN property in Oneida County is outside of population centers (e.g., Turning Stone Casino). In contrast, much of OIN property in Madison County is within population centers. For example, Yellow Brick Road Casino is within the Village of Chittenango. The 5-mile pursuit distance from Yellow Brick Road Casino alone includes the entire village of Chittenango and much farther.

Madison County should determine the impact of the location of casinos being within population centers in Madison County, and keep it in mind with any comparisons with the existing Oneida County/OIN Police agreement.

10. Training compatibility.

Recognizing that the OIN police are a well‐qualified professional police force, does their training include the same elements as Madison County Sheriff’s deputies and training on the same policies, which often vary from one police force to another? The specific policies that OIN police are trained for is not available to the public. In particular, policies pertaining to:

• De‐escalation,
• Use of force, and
• Other interactions with the public.

11. Directing traffic on non‐Nation land

The proposed agreement states, “Specially deputized Nation Police officers may direct traffic at locations adjacent to Nation Land during special events or incidents that may reasonably result in unusual traffic congestion…,” including a five‐mile radius off of Nation land (page 2).

There is no stated:

• Requirement for prior arrangement with other local non‐OIN police forces, or
• Cost estimate for having traffic direction services provided by non‐OIN police forces, or
• Definition of what constitutes “incidents that may reasonably result in unusual traffic congestion.”

The lack of requirement for communication and lack of definition of unusual traffic congestion is too lenient and increases the possibility of adverse interactions.

12. Accountability.

An essential element of policing in the United States is the civilian oversight of the police force and accountability to voters. This is vital to the stability and success of communities. The public must have, and additionally feel that they have, the ability to:

• Control policing policies, and
• Remedy situations (e.g., via lawsuit) when police have violated policies and laws.

Because OIN police are under the direction of the OIN and the Nation representative Ray Halbritter, not a person elected by and accountable to the general public, the general public will not have, and additionally will not feel they have, control over these police.

13. Significance of cost savings.

One of the stated goals of the proposed Agreement is to “increase the availability of trained police officers at no expense to the taxpayers.” Neither the resolution nor the proposed agreement states what the cost has been of policing OIN properties that are visited by non‐OIN people.

Has Madison County estimated the costs that:

• have already been incurred by Madison County Sheriff’s Office policing OIN properties,
• are expected to be incurred in the future for the same?

Has Madison County determined that the residents of Madison County would prefer the proposed deputizing agreement rather than paying the costs for Madison County Sheriff’s personnel?

14. Forced Arbitration.

The proposed agreement contains a mandatory arbitration clause (page 6).

• Is this clause necessary, and
• Is this clause beneficial to Madison County?

Thank you for your consideration of these matters.

Sincerely, Margaret S. Milman‐Barris