OPA, OIG, CPC , City, and DOJ weigh in on SPOG contract debate

(this article has been heavily modified since it was first published earlier this evening)

This afternoon was the deadline for briefs to be filed by the City of Seattle, the DOJ, the CPC, and other relevant parties related to the tentative labor contract with SPOG, the police officers’ union. Instead, the parties asked Judge Robart to give them until November 2, since he already agreed last week to move a scheduled status conference out to November 5. Robart didn’t respond, so the parties burned the midnight oil and got their briefs in anyway.  Also,  Inspector General for Public Safety Lisa Judge and OPA Director Andrew Myerberg both sent letters last Friday to the City Council with their feedback on the tentative contract.

The CPC brief echoes its critiques over the past several weeks, highlighting several places in which the contract contradicts the police accountability ordinance passed by the City Council last year. It doesn’t, however, provide any details on where the agreement might violate the terms and purpose of the Consent Decree, other than a general assertion that the ordinance (and the CPC) were intended to promote “public confidence in the Seattle Police Department (‘SPD’) and its officers,” a stated purpose of the Consent Decree. So to the extent that the contract undermines the police accountability ordinance, the CPC argues, it “compromise[s] the core values and objectives of the Consent Decree.”

The CPC highlights one issue in particular: the elevated standard of review for termination of SPD employees where the termination is on grounds that could be stigmatizing to officers. It points out that Judge Robart had earlier ruled on the appropriate standard of review, and claims that he had rejected any standard above “preponderance of the evidence” for cases of termination due to dishonesty.

Actually, that’s not entirely true. Robart’s ruling does in fact discuss the appropriateness of “preponderance of the evidence” at length (pages 6-8). But it does it in the context of evaluating three possible standards that had been proposed for his evaluation:

Robart begins his evaluation as such:

And he concludes it thusly:

Robart rejected the second and third options, leaving the first — which does not require “preponderance of the evidence.” Rather, it requires using the same evidentiary standard as for all other misconduct allegations. The first option was incorporated verbatim into the accountability ordinance.

The SPOG contract says the following (emphasis mine):

The parties agree that discipline is a command function, and that the Department may institute a disciplinary procedure. So much of said procedure that relates to the right of an employee to a hearing and the mechanics thereof are outlined in this Article; provided, however, that it is understood that if deemed appropriate by the
Chief of the Police Department, discipline or discharge may be implemented immediately consistent with the employee’s constitutional rights. Disciplinary action shall be for just cause. The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. – more than preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.

In the case of an officer receiving a sustained complaint involving dishonesty in the course of the officer’s official duties or relating to the administration of justice, a presumption of termination shall apply.

So Robart required “the same evidentiary standard as for any other allegation of misconduct,” and the agreement says that standard is “consistent with established principles of labor arbitration.” This is more than just semantic nonsense; just as judges are required to follow precedential case law, arbitrators are also required to follow precedential arbitration cases. What’s clear is that the judge’s ruling doesn’t require “preponderance of the evidence” to be the standard, and the contract doesn’t mandate the “clear and convincing evidence” that he prohibited. What isn’t clear, though, is whether Robart will find a deference to “established principles of labor arbitration” to be acceptable.

The CPC suggests that a potential path forward is to let the contract go into effect while immediately re-opening for further negotiations all matters touching on the accountability system. That would allow the officers’ years-overdue pay raise to go into effect immediately.

Finally, the CPC gives a nod to the “strong leadership now in place at SPD, OPA, and the OIG,” while arguing that the entire point of legislating the reforms is to ensure that they can “stand the test of less inspired leadership” at some future point in time.

The OIG and OPA briefs take a more conciliatory tone, and reserve most of their remarks for the question of whether the contract would inhibit their ability to fulfill their roles in the accountability structure. Inspector General Judge begins by noting positive aspects of the contract with regard to her office: it “legitimizes OIG authority within the labor structure, and solidifies the ability to function effectively, since the terms of the [agreement[ acknowledge OIG authority and unfettered access to SPD and OPA operations, as contemplated by the accountability ordinance.”

She does however raise some specific concerns:

• The word “operations” is vague; if construed broadly, things are great. But if it’s narrowly defined, then that undermines the intent of “unfettered” access.
• The agreement potentially restricts the OIG’s participation in Force Review Board meetings to that of an observer. She argues that “significantly limits the ability of the OIG to effectively review serious incidents.”
• The agreement’s restrictions on subpoena power as applied to officers and their family members. Echoing the CPC’s anticipation of a future when SPD leadership is not as cooperative, she suggests that a subpoena may be “the only alternative resource to obtain critical information” if SPD declines to provide information.
• Some of the nuances of the “180-day clock” for investigations are troublesome.
• While OPA is allowed to hire two civilian investigators, any cases that could lead to termination of an officers must have an OPA sworn officer assigned to investigate. That “appears to relegate civilian investigators to only investigations of less serious allegations, and would potentially conflict with OIG’s obligation to conduct investigations when OPA has a conflict of interest.
• On the standard of review issue described above, OIG notes that it’s unclear exactly which forms of misconduct are potentially stigmatizing, and suggests that all cases requiring termination might be such and therefore require an “elevated” standard of review.
• There is confusion about how retaliation claims should be investigated — and by whom.
• Unlike the ordinance, the contract doesn’t require OIG to be receive notice when changes in findings or discipline are made.
• The requirement that OIG remove names from records of unsustained findings “would hamper OIG ability to look at trends involving individual officer behavior over time.”

The OPA brief is more concise, beginning with a clear positive statement:

I do not believe that implementation of this TA would prevent OPA from fulfilling its legislated purpose as set forth in the Accountability Ordinance. I further do not believe that it would prevent OPA from
carrying out its specific duties and responsibilities, such as holding officers accountable when appropriate; conducting objective, fair, thorough, and timely investigations; and recommending needed
improvements to Department policies, tactics, and training.

It highlights several improvements from the previous contract, though it also lists some concerns about terms where the new contract deviates from the accountability ordinance, including those that:

• Limit OPA’s authority to coordinate criminal investigations;
• Add elements of complexity to the 180-day timeline and make it more restrictive than the language set forth in the Seattle Police Management Association contract;
• Remove the automatic tolling of the 180-day timeline when a case is criminally investigated within SPD;
• Allow for new evidence to be raised at due process hearings without a mandatory extension to the 180-day timeline; and
• Constrain OPA’s ability to allocate staffing and resources as it sees fit.

OPA Director Myerberg praises the CPC for its thoughtful analysis of the agreement, saying that he agrees with many — but not all — of the CPC’s concerns. He also argues that the police officers deserve a contract, shares concerns that department morale is low, and worries that if the contract is rejected “it could undermine the oversight system and further erode the trust and buy-in that OPA has been working hard to build.” Myerberg notes that these concerns must be balanced against the city’s “prerogative to negotiate lasting reforms.”

The DOJ brief actually addresses the question that Judge Robart asked: whether the contract is consistent with the Consent Decree. Their answer: yes, with the possible exception of one provision, the “standard of review” that we’ve already discussed.

The DOJ actually does a turnaround from the position they held in early 2017 when Robart was considering the standard of review question. At the time, the DOJ was convinced that the city was introducing a higher “clear and convincing evidence” standard than had been in place before that time. But upon further review of the previous SPG contract, they now realize that “clear and convincing evidence” was in fact the codified standard in effect, and codifying that in the accountability legislation was not raising the bar. However, the DOJ argues that they don’t fully understand the implications of the replacement language in the new contract; they say that they require more information before they can determine whether it conflicts with the Consent Decree.

The DOJ also weighs in on timing, suggesting that Robart wait until the City Council approves the contract before he reviews it for compliance.

Finally, there’s the City of Seattle’s brief. As one might expect, it doesn’t do a full evaluation of the ordinance, preferring instead to declare that the contract is fully consistent with the Consent Decree and highlighting a handful of its gains over the previous contract. It points out that Judge Robart declared the city to be in full and complete compliance with the Consent Decree while the previous contract, so it would be hard to argue that a new contract that doesn’t backtrack on any issues could be inconsistent with the Consent Decree.

It does, however, take a moment to defend and contextualize the “standard of review” issue. It reads:

One provision of the [tentative agreement] that represents a bargained for compromise addresses the standard of proof applicable to police officers in a disciplinary appeal. The CBA currently in effect, as well as the previous version, provide that when an officer’s conduct involves
dishonesty, termination of employment is presumed to be the appropriate discipline and that the City must prove its case by clear and convincing evidence. As the Court previously noted… that provision singled out dishonesty and treated it differently than all other forms of misconduct. The TA removes that clause. In its place, the City and Guild agreed that the burden of proof in a disciplinary appeal will be determined using the same evidentiary standards that arbitrators apply to other types of misconduct.
The City seeks to correct any misunderstanding regarding the evidentiary standards used in arbitration. First, under all twenty-eight of the collective bargaining contracts to which the City is a party, employees have the ability to challenge discipline through arbitration. The arbitrator in a disciplinary appeal must decide whether to apply the preponderance of the evidence standard or an elevated standard, such as clear and convincing evidence. As is noted in the TA, and as is true for all City employees who belong to a collective bargaining unit, one factor that arbitrators consider is the severity of the discipline and the potential for the discipline
to have a stigmatizing impact on the employee; the greater the severity and stigma, the greater the likelihood that an elevated standard of proof will apply. Consistent with the determination  made by the Court, under the TA, police officers no longer will be singled out for special or different treatment in the appeal of discipline.

The city’s brief also addresses timing and procedural issues moving forward:

• It says that the Council is planning to vote on approval of the contract on November 13th. Further, it says that the Council has no authority to change the contract; it may either approve or reject it.
• It lays out what would likely happen if the Council rejects the contract.  First, the parties would need to return to the bargaining table, and most likely carry on three simultaneous negotiations: a new 2015-2018 agreement, bargaining on body-worn video, and bargaining on the accountability ordinance. The SPOG contract under consideration now rolled all three of those topics into one. If separated out, they may take very different paths, including direct negotiation, mediation, and arbitration. Second, the city would also need to address SPOG’s pending unfair labor practice claims, and the Council’s failure to ratify the contract may in fact constitute another unfair labor practice that SPOG could assert.
• It says that it welcomes Robart’s guidance on aspects of the contract at any time, but points out that if the City Council rejects the contract then the issue is moot — suggesting that the city is happy to have Robart wait until after that date to weigh in.

 

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Judge Robart now has a week to take this all in before next Monday’s status conference. Keep in mind that at the end of the day, the test remains whether the SPOG contract is consistent with the Consent Decree, not with the police accountability ordinance.  Clearly there is ongoing debate and disagreement on the standard of review provision in the contract; expect Robart to focus time on that issue in his status conference next Monday. And don’t be surprised if the Council, the Mayor’s Office, and SPOG revise (or at least clarify) that part before the Council approves the contract and sends it on to Robart.