As directed by Judge James Robart, who oversees the city’s 2012 consent decree over biased policing, the Community Police Commission and the City of Seattle have both filed their final briefs on the new contract with SPOG, the police officers’ union, and on the recent arbitrator’s reversal of the termination of Adley Shepherd for excessive use of force. And neither side is backing down.
This series of legal briefs was intended to be complete by the end of December, but the federal government shutdown, the winter storms in Seattle, and then the sheer length of the CPC brief led to several extensions of the schedule. But now, finally, they are all filed. For the record, here is:
- the city’s original brief;
- the DOJ’s brief, and my analysis of it;
- The CPC’s brief, and an accompanying lengthy declaration by retired Judge Anne Levinson, former OPA Auditor and a consultant to the CPC;
- The city’s reply, filed earlier this week.
There are four documents in front of Judge Robart at the moment:
- The original Consent Decree, signed in 2012, which Robart has been overseeing since. Last year Robart declared the city to be in “full and effective compliance” with the consent decree, moving it into a second phase where the city must sustain compliance for two consecutive years before Robart can entertain a motion to terminate the consent decree. If at any point in those two years Robart finds the city has fallen out of compliance, the clock gets reset to zero and the two-year period begins anew whenever the city can show it has regained compliance.
- The Police Accountability Ordinance passed by the City Council in early 2017, which implemented several reforms recommended in a review conducted by the CPC. However, most of the ordinance has not gone into effect as it was conditioned on the completion of collective bargaining with the two police unions, SPOG (officers and Sergeants) and SPMA (Lieutenants and Captains), and on Robart’s approval. The collective bargaining is done, but Robart has yet to approve the ordinance as he was waiting for collective bargaining to be completed. That approval is part of the process playing out now.
- The collective bargaining agreements (CBAs) with SPOG and SPMA. SPMA’s was completed in 2017 with little fanfare; SPOG’s finished last fall.
This process has become messy because the SPOG contract rolls back some of the hard-earned accountability reforms written into the police accountability ordinance. None of the parties contest that it does. But that ordinance codified many rules that are topics subject to collective bargaining with the unions under state law; in fact, SPOG filed an unfair-labor-practices complaint against the city for doing so, and only agreed to withdraw that complaint once their CBA was signed.
For its part, the city contends:
- The police accountability ordinance explicitly states that it doesn’t go into effect until provisions it contains that are mandatory subjects for collective bargaining have been negotiated with the union. Also, the CBAs were adopted by legislative action. Thus the ordinance and the two CBAs should be thought of as a package deal, not separate pieces to be compared and contrasted.
- The consent decree doesn’t mandate that the city must update its police accountability system. Rather, it only requests the CPC to study the issue and make recommendations to the city.
- The question in front of the judge is whether the city is fulfilling the requirements of the consent decree, not whether it has maximized the accountability reforms. In fact, because the consent decree doesn’t require accountability reforms, their only relevance is whether the ones that are implemented are consistent with the consent decree’s goals and mandates.
- The combined package of the accountability ordinance and the two CBAs are consistent with the consent decree, and on top of that make significant reforms in accountability — even if they don’t reach everything that is in the original accountability ordinance.
And the CPC contends:
- Two of the stated purposes of the consent decree are to ensure constitutional and effective policing, and to instill public confidence in SPD.
- The CBAs’ perceived rollback of reforms written into the accountability ordinance undermines public confidence, and thus it is in conflict with the Consent Decree.
- Judge Robart should tell the city that fully implementing the accountability reforms in the ordinance is a necessary precondition for sustained compliance.
- The SPOG CBA undermines the authority of the Chief of Police and the OPA, in conflict with the Consent Decree.
- The reinstatement of arbitration as a path for appealing a disciplinary ruling, which was eliminated in the accountability ordinance, is in conflict with the Consent Decree.
- The changes to the standard of review for misconduct charges also is in conflict with the Consent Decree.
- A long laundry list of differences between the accountability ordinance and the CBAs, as detailed in Judge Levinson’s declaration, are in conflict with the Consent Decree.
It’s notable that the CPC’s argument rarely calls out specific mandated provisions in the Consent Decree that the CBAs violate. Rather, they appeal to the consent decree’s general statements of purpose: ensuring constitutional and effective policing, and instilling public confidence in the police. The CPC frequently complains that “xxx will undermine public confidence.” It’s an interesting catch-all; it’s not clear whether it will be a compelling argument with Robart, however. Part of the context of why the CPC is employing this line of argument is that there is fairly broad agreement Robart doesn’t have the legal authority to approve, reject, or modify the CBAs. His only tool is indirect: his power to decide whether the city is still in compliance with the Consent Decree. Robart has made statements in the past alluding to his willingness to use “constitutional policing” as a platform on which to base his rulings. He hasn’t been as explicit on whether he is willing to do the same for “instilling public confidence,” but clearly the CPC is hoping he takes the bait.
At a technical level, the CPC’s story hasn’t changed much from what it submitted at the beginning of December: some fine parsing of contractual language around the major issues (arbitration, standard of review, how broadly the CBAs preempt the accountability ordinance) and some lesser ones (e.g. secondary employment, where OPA holds interviews). Again, it justifies the comparisons between the CBAs and the accountability ordinance by arguing that it undermines constitutional policing, or public confidence.
The city’s closing brief, however, hits back harder than it has earlier in this debate. First, it points out that much of Judge Levinson’s 143-page declaration+exhibits consists of legal analysis and opinion testimony, which by the rules of civil procedure is not allowed; declarations are “set forth facts as would be admissible in evidence,” not legal analysis and opinion testimony or as a tool to circumvent the page-limit lengths on legal briefs. The city didn’t go as far as to move to have her declaration stricken from the record, but it did note that it was declining to respond to those parts that weren’t incorporated into the CPC’s mainline brief.
It then attempts to undercut the CPC’s push for the accountability measures in the ordinance by emphasizing that the Consent Decree does not mandate accountability reforms beyond the CPC’s study and recommendations. To the extent that changes to the accountability system need to be judged as to their impact, it argues that the reference point is the current system of accountability, not what was proposed in the 2017 ordinance. And the current system should be compared with the combined result of the ordinance and the CBAs, rather than pulling them apart.
It also doubles down on the city’s requirement under state law to engage in good-faith collective bargaining, starting from the status quo — not from scratch, or from the accountability ordinance as a “take it or leave it” proposition. It even cites case law from the 9th Circuit ruling that a consent decree can’t preempt state law unless there is a specific federal law that conflicts with the state law (which, it argues, the CPC hasn’t suggested). The city maintains that the CBAs don’t violate either federal law or the constitution.
Finally, it dives into the specific assertions by the CPC around secondary employment, arbitration, and the standard of review.
- On secondary employment, the city argues that it is still designing a new system, and it listed the topic as a “re-opener” in the SPOG contract, so it’s inaccurate for the CPC to simply say that the contract left the old system intact.
- As for the CPC’s argument that the city should not have allowed arbitration to be reintroduced as another path for disciplinary appeals since it will undermine public confidence and the authority of the Chief of Police, and ultimately allow more officers to escape discipline, the city cites statistics showing that historically the Public Safety Civil Service Commission (PSCSC), the one path left for appeals under the accountability ordinance, has been more lenient than arbitrators. The city also asserts that neither arbitrators nor the PSCSC are required to give deference to the Chief of Police’s disciplinary decisions: the PSCSC uses a “good faith for cause” standard and arbitration uses a “just cause” standard, but the two are defined nearly identically.
- The city pushes back on the CPC’s assertion that all charges that might lead to termination would potentially be “stigmatizing” to an officer. The SPOG CBA states that the burden of proof in arbitration will be “consistent with established principles of labor arbitration.” It then calls out as a specific example that arbitration for discipline that would be stigmatizing to an officer would have an elevated standard of review. The city argues that “stigmatizing” has a specific, narrow meaning in this context, and that it is well established that termination for absenteeism is not stigmatizing. Beyond that, it continues a reiteration by both sides of their entrenched positions on this question.
The city and the CPC also disagree on the significance of the Adley Shepherd arbitration decision. The city argues that it is a one-off anomalous decision by an arbitrator, which it is fighting in court to overturn. The CPC, however, asserts that it demonstrates many of the reasons why the CBA’s rollbacks undermine public confidence (arbitration versus the PSCSC, the standard of review, deference to the Chief of Police’s decisions, and openness of the appeals hearings).
Now that all the filings are complete, we should expect Judge Robart to schedule a hearing so he can question the city, the DOJ, and the CPC on their respective views before he issues a ruling. He will likely have challenging questions for all three of them.