New police contract hits a landmine: the CPC

This morning the Community Police Commission signaled their unhappiness with the tentative labor contract with Seattle’s police officers, voting unanimously to urge the City Council to reject the contract and to investigate asking the judge overseeing the consent decree to enjoin the city from implementing it.

The CPC, an organization established (in its current form) under the police accountability ordinance passed by the City Council last year, spent two hours reviewing the collective bargaining agreement (CBA) and concerns it has. The commissioners made clear that the increase in wages for officers was not an issue — even the 2% wage bump specifically tied to the requirement for body-worn video cameras. The issue, they said, was that the CBA rolls back hard-won reforms that had been codified in the police accountability ordinance.

Their concerns echoed several points I listed in my review of the contract, including that the CBA specifies that in any place where it conflicts with the ordinance, the CBA takes precedence. Under that regime, it becomes essential to do a line-by-line crawl through the CBA looking for every single place where the two conflict as possible sources of retreat on police reform. The CPC did just that, and has released it along with a summary chart of the most salient concerns.

Another overarching issue with the CBA is that the city and SPOG chose to use the previous CBA, which expired in 2014, as the starting point for drafting the new version. That predates the police accountability ordinance, so anything that was revised in the ordinance would need to be changed in the old CBA — and any oversights in doing so would roll back reforms because the CBA takes precedence. Reading the new CBA, there are many signs that it wasn’t carefully written: there are drafting errors (many pointed out in a separate review by the CPC) and places where obsoleted references were left in place. Several CPC members mentioned today that they expected the CBA would diverge from the police accountability ordinance in some place, but using the CBA as the precedential document and writing it from a pre-reform version does seem like a dangerous approach.

Among the specific rollbacks of police reforms they claim are buried in the details of the 100-page CBA:

  • Raising the bar of proof for a variety of misconduct charges that could lead to termination, including dishonesty. The police accountability ordinance lowered the bar to a “preponderance of the evidence,” and Judge James Robart, who oversees the consent decree implementation, has previously agreed that the lower bar is the appropriate one. But the CBA says that an “elevated” standard should apply, though it provides no details on what that elevated standard is.
  • Eliminating OPA’s oversight of criminal investigations. The CBA states that OPA shall not conduct criminal investigations. Further, the 180-day timeline for OPA investigations (which starts when OPA initiates or receives a complaint) is only paused while a prosecutor is reviewing and/or prosecuting a possible criminal case, not for all the time that a criminal investigation is proceeding before it’s handed off to a prosecutor — despite the fact that the criminal investigation must complete before OPA can look at the case. That means that a substantial portion of the 180-day period could be exhausted before OPA can get involved. The ordinance fixed these problems; the CBA rolls it back.
  • Pre-ordinance, if OPA didn’t complete an investigation within 180 days, discipline could not be imposed. Under the ordinance imposition of discipline is no longer tied to the 180-day clock. The CBA rolls this back to pre-ordinance.
  • The statute of limitations for investigations of complaints, pre-ordinance, was three years. The ordinance changed it to five years, and removed it entirely for misconduct involving criminal violations, dishonesty, the most severe uses of force, and cases where misconduct was concealed. The CBA rolls it back to four years except for criminal conduct or where misconduct is concealed.
  • The process and standard of review for disciplinary appeals is changed. Prior to the accountability legislation, there were multiple paths of appeals (the Public Safety Civil Service Commission (PSCSC), the Disciplinary Review Board,  arbitration, and the union grievance process), and officers could “venue shop” to find the one that would be most favorable to them. The legislation mostly reduced it to a single path for appeals, through the PSCSC though reprimands, findings without disciplinary measures, and alleged procedural violations can be processed through the grievance procedure. The CBA mostly gets rid of the DRB but has provision for it to stick around if necessary. It also keeps arbitration, and expands the availability of the grievance procedure. The legislation also opened up hearings to the public, but the CBA closes them again.

CPC consultant and former OPA auditor Anne Levinson also gave brief mention of several other rollbacks in the CBA of important reforms codified in the police accountability legislation:

  • how many civilians can be employed and in what positions;
  • when the Chief can put an officer on leave without pay;
  • whether officers can use accrued vacation/leave for a suspension;
  • the length of retention for disciplinary/OPA records;
  • when the Chief needs to disclose publicly that a disciplinary decision has been changed;
  • giving the Chief more unilateral discretion on who is allowed to serve in specialty units;
  • allowing officers to watch body-worn video footage before writing their incident reports;
  • prohibiting the disclosure of officer names in reports, which undercuts the ability to see whether individual officers have a history of misconduct.

The Mayor’s Office and the CPC give conflicting accounts of the CPC’s role throughout the contract negotiations. A spokesperson for the Mayor’s Office said today, “The OPA, CPC and IG were all regularly consulted throughout the process. The CPC declined to be briefed on the contract. The contract was sent to the CPC on October 1st and there were no issues raised.”   The CPC, however, said that the OPA Director was in the room when issues were discussed, but the CPC was not in the room and was not involved in the bargaining. They noted one case where a “trial balloon” on one minor issue was run by one CPC member, but that was the extent of the consultation. The CPC was given a copy of the contract on October 1st, but claims it asked for it earlier; they also note that the contract is 100 pages of complex language, that needed to be compared and contrasted with the police accountability language — a difficult and time-consuming task for which they were given little time, and had to rush to complete it even for their meeting this morning. UPDATE 10/18/18 11:45am: the Mayor’s Office sent a clarification:

“The Mayor’s Office consulted with the CPC on multiple occasions during the bargaining process. The proposed contract documents were shared with the CPC on October 1, and the Mayor’s Counsel Ian Warner briefed the CPC on the contract at a meeting on October 9. At that meeting, the CPC declined to give specific feedback. After the meeting, we did not receive a response to our offers to answer any additional questions and remained unaware of any specific critiques until they sent the long-form documents on Monday afternoon, following the transmittal.  “

An angry and frustrated CPC spent far less time debating what action to take, quickly coming to unanimous votes on three actions:

  1. Communicate out to the public their findings that the SPOG contract rolls back several important and hard-won reforms that were in last year’s police accountability legislation. Part of that communication plan will include a public meeting on the evening of October 25.
  2. Urge the City Council to reject the SPOG contract. This turns out to be trickier than it seems. Five of the City Council members (Harrell, Bagshaw, Gonzalez, Mosqueda and O’Brien) sit on the city’s Labor Relations Policy Committee (LRPC), which sets the parameters for labor negotiations that the city undertakes. The intent is to ensure that the city doesn’t march down a long path to negotiate a contract that in the end won’t be approved by the Mayor and City Council. The LRPC met last week to review the contract before it was transmitted to the City Council, but with a majority of the Council members on the LRPC, we can assume they have already signaled their approval. In fact, it was pointed out to the CPC today that if the City Council voted down the contract, SPOG would have the right to file an unfair labor practice complaint against the city for negotiating in bad faith. Arguably, two years ago when SPOG’s membership voted down a tentative contract the city had the same right to file a complaint, but chose not to. But in their discussion, some CPC members argued that unfair labor practice complaints happen all the time and are hardly catastrophic.  But there’s another twist: the budget to pay for the new contract requires approval of 3/4 of the City Council, so even if the CBA itself passes, the Council may run into trouble trying to fund it if there isn’t broad consensus. Council member Sawant is all but assured to oppose the CBA and related funding; that leaves little margin to pass the budget, and if one or more Council members take a principled stand we might just see another 11th-hour budget meltdown next month.
  3. Discuss with their legal counsel whether to ask Judge Robart to enjoin the city from implementing the CBA. At first, they were tempted to jump straight to asking Robart, but upon reflection they decided to consult in private with their legal counsel first to understand the legal issues and implications. But they intend to have that conversation quickly. Assuming the Council approves the CBA, the city will need to schedule a status conference with Robart to explain the terms of the CBA and what it means for the police accountability ordinance and the consent decree; Robart so far has refused to approve the ordinance in its entirety until the CBA was done for fear of conflicts (and he was clearly right to do so).  The CPC has regularly provided briefs and commentary as part of those status conferences, as has the DOJ; both the city and the CPC are speaking with the DOJ, and it will be interesting to see what the feds’ take is on the CBA. At the moment, there is no status conference scheduled with Robart.

Mayor Durkan issued a terse statement this afternoon in response to the CPC’s move:

I respectfully disagree with the Community Police Commission. This contract advances both police reform and public safety. A failure to enact the contract jeopardizes both. The contract is also a question of fairness for the men and women of the Seattle Police Department who have been working without a contact or a raise since 2014. During that time, the cost of living in Seattle has skyrocketed, and the job we have asked them to do has gotten tougher. And they still showed up every day, instituted every reform, and as a result, the federal judge found them in full and effective compliance.

As U.S. Attorney, I led the investigation into the Seattle Police Department, and crafted and signed the Consent Decree. We pushed to have the Seattle Police Department lead the country, and they did. I have made clear we will not go backwards.

Three principles guided the negotiation of this contract:  1) protecting and advancing reform, 2) advancing public safety and 3) treating our officers fairly. This contract does all three.

 

So far this week, the City Council has been silent on the CBA. No Council members were present at the Mayor’s press conference on Monday when she announced that the CBA had been transmitted to the Council. They have not announced a deliberation process or timeline for approving it, and none of the Council members have issued any public statements this week on the topic.  The CBA was formally introduced into their legislative process on Monday afternoon and referred directly to the full Council, so it could be voted on as soon as next Monday.

This has become another hot potato for the Mayor and Council akin to the search process for a new Chief of Police earlier this year. In that case, the CPC objected to the elimination of Carmen Best from consideration; Mayor Durkan tried to push forward anyway but eventually succumbed to public pressure and was forced to backtrack and add Best to the list of finalists. Now the Mayor is once again in a stare-down with the CPC, but the decision is out of her hands: it’s up to the City Council, and ultimately Judge Robart, to decide the fate of the CBA.


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