Robart issues written order on compliance with consent decree, but leaves big questions unanswered

As he promised last week, this afternoon Judge James Robart issued his written ruling finding that the City of Seattle has fallen partially out of compliance with the 2012 Consent Decree on biased policing practices.

In so doing, he clarified some questions raised by his bench ruling last week, but left other important ones unanswered.

The ruling is a messy and sometimes maddeningly vague one, which is uncharacteristic for the detail-oriented Robart.

 

Here are some of the matters that it cleared up:

  • Robart effectively split the current two-year “sustainment period” into two independent threads: one for the ten-point sustainment plan that is already more than halfway complete and wraps up in January, and one for the accountability issue that he had set aside while he waited for the city and SPOG to finish negotiating their collective bargaining agreement (CBA).
  • He is allowing the sustainment plan to continue on, and if it is successfully completed he will contemplate “discharging” those ten areas from further oversight through the terms of the Consent Decree.
  • He found that the city has fallen out of compliance with regard to accountability. The city must come into compliance in that area, and then sustain it for a full two years thereafter before the Consent Decree can be fully terminated.
  • He is explicitly NOT ruling that the full terms of the accountability ordinance must be reinstated; he recognizes that there may be other paths to reach full compliance on accountability.
  • He has ordered the city and the DOJ, with the assistance of the CPC and the police monitor, to “formulate a methodology (1) for assessing the present accountability regime, and (2) for how the City proposes to achieve compliance.” He gave them a deadline of July 15 to jointly file that methodology.

The rest of the ruling is more problematic. At least in theory, the heart of it is Robart’s explanation as to why he found the city out of compliance on accountability. As a precursor, though, he needed to explain why he has the authority to do so, even though accountability isn’t one of the areas subject to reform under the Consent Decree. Robart gave a two-part answer:

  1. The Consent Decree defines its purposes as ensuring that police services are delivered in a manner that fully complies with the U.S. Constitution, ensures public and officer safety, and promotes public confidence in SPD and its officers. In today’s ruling, Robart wrote, “The court concludes that any provision that implicates officer discipline related to use-of-force inherently implicates all three of the Consent Decree’s purposes and thus, must be consistent with them.”
  2.  Robart states that the city and DOJ have already acquiesced to the court’s jursidiction over accountability in their previous filings (from which he quotes heavily). He also points out that both the city and the DOJ have admitted that the accountability system needs reform.

That out of the way, Robart explained that his main concern with the current state of police accountability is the disciplinary appeals system, and most notably the use of arbitration to appeal a disciplinary finding imposed by the Chief of Police.

State law guarantees public employees the right to binding arbitration over labor issues, in large part because many of them (including police officers) are prohibited from striking. Thus arbitration has long been a feature of SPD contracts, as negotiated by SPOG, the SPD officers’ union. However, based on the recommendations of the CPC, the 2017 police accountability ordinance passed by the City Council did away with arbitration in favor of appeals to the Public Safety Civil Service Commission. But the new SPOG contract announced last fall reintroduced arbitration — just as an arbitrator caused an uproar by reversing the termination of Officer Adley Shepherd.

Robart clearly found fault with the arbitrator’s decision — and by extension, that an arbitrator had the authority to overturn a decision by the Chief of Police. But he went further in his ruling:

But as the CPC points out, the issue is not just that an arbitrator reinstated this officer, but that the CBA (1) retains significant attributes of the old appeals system that the parties admit needs reform, and (2) abrogates critical reforms in the Accountability Ordinance that the parties put in place.

What Robart didn’t do is specify exactly what is broken and needs to be fixed. Rather, he relied on the statements from the city and DOJ that the old accountability system needed reform, and a quote from the DOJ’s brief:

In its response to the court’s order to show cause, the United States notes that the terms of SPOG’s CBA related to the use of arbitration in an appeal and the burden of proof applied therein “are materially unchanged from the time period in which DOJ investigated SPD and the Consent Decree was entered.”

Putting those together, he concluded that the current state of affairs is a pre-reform arbitration system that the parties have admitted needs to be changed.

By their conduct and statements in these proceedings, the parties have acknowledged that the old accountability system is inadequate for purposes of compliance with the Consent Decree. Because the CBA eliminates reforms instituted by the Accountability Ordinance and leaves the old arbitration regime “materially unchanged” (see U.S. Resp. at 3), the court finds that the City and SPD have fallen out of full and effective compliance with the Consent Decree concerning SPD discipline and accountability.

That is the full extent to which Robart explains exactly what he finds unacceptable, which unfortunately provides little guidance for the city to know what it would take to actually come into compliance. Beyond arbitration, Robart mentions that the CBA “eliminates reforms instituted by the Accountability Ordinance,” but provides no details about which ones concern him. This is even less detail than last week’s bench ruling, when he noted that he took issue with the standard of review for discipline and the implementation of a 180-day limit on OPA investigations into police misconduct.

Robart’s lack of guidance is particularly troublesome because he left a key legal issue unanswered: whether he believes that allowing arbitration for police officers is incompatible with constitutional policing. Unless SPOG chooses to negotiate it away in return for other concessions, the city is bound under state law to provide for arbitration. But the U.S. Constitution trumps state law, and if Robart rules that the state-mandated right to arbitration is unconstitutional, then the city is free of that obligation. The judge implies strongly that he finds arbitration incompatible with constitutional policing, but he neither affirms nor denies that; nor does he offer any hints as to how an alternative arbitration regime might be structured that would pass muster in his court.

That puts the city in an impossible  negotiating position with SPOG: it’s required to make changes to what is currently in the CBA, but it doesn’t know whether state law still applies, and it doesn’t know what it can offer as an alternative that will make Robart happy. The only sure-fire way to satisfy Robart (and the CPC) is to eliminate arbitration entirely, but that gives SPOG all the leverage — the union can ask for anything in return. Robart has made it clear in past hearings that he will not allow SPOG to hold the city’s accountability reforms hostage, and yet he just gave them the ability to do precisely that.

Nevertheless, Robart sent the parties off to come up with a new plan over the next two months:

Finally, the court also is not ruling today that—to be in full and effective compliance—the City must necessarily return to the provisions of the Accountability Ordinance referenced herein as those provisions existed prior to collective bargaining. With the assistance of the Monitor, the United States and the City are free to find other methods that will bring the City into compliance with the Consent Decree on accountability. To this end, the court ORDERS the City and the United States, with the assistance of the Monitor and the CPC, to formulate a methodology (1) for assessing the present accountability regime, and (2) for how the City proposes to achieve compliance. The court further ORDERS the parties to jointly file their methodology no later than July 15, 2019.

The City Attorney’s Office declined to comment on Robart’s ruling this evening, saying that they are still studying it. Mayor Durkan’s office issued this statement on her behalf:

“I am grateful that Judge Robart again acknowledges the significant reforms that SPD has accomplished in the seven years that the Consent Decree has been in place, and that the City remains in full and effective compliance in every one of the areas required by the Consent Decree and set forth by the sustainment order. We agree with the Court that we remain on track to meet all aspects of this order by January 2020 and are fully committed to working with DOJ, the Monitor and the community to ensure we do so.”

“The Judge acknowledges that our police officers have done everything that the Court and the Consent Decree have required that we are now a national model on use of force, de-escalation and dealing with individuals in crisis, and that the growth in public confidence is ‘remarkable.’ Both Chief Best and I know that trust is earned every day and we will continuously work to improve and build trust with the community.

“It is notable that the judge did not strike down the Collective Bargaining Agreement, or any specific provision in the CBA. Together with the Department of Justice, we are evaluating the Court’s order regarding the accountability regime and its relationship to the Consent Decree. But regardless of the next legal steps, we have made clear that we will continuously assess and improve as a Department. The Judge has ordered an assessment of the present accountability regime. Given the reforms and the changes made to the entire accountability system since the Consent Decree was entered, an assessment of the accountability regime, how it compares to other models across the nation, functions as a system and its impact on officers, policing and community confidence can only benefit our city.”

The CPC had this to say:

“While the Community Police Commission is still reviewing the Court’s order, we’re ready to work with city leaders to make sure Seattle has a strong police accountability system.

Judge Robart agreed with the CPC’s position and, in doing so, is sending a strong message that the recent police contracts undermine accountability and must be improved.

Over the coming weeks, the CPC looks forward to working with city leaders, the Department of Justice, and the monitoring team to come up with a methodology to assess the present accountability system and how the city can improve it, as the court has ordered.”

Don’t be surprised if the city requests another hearing with Robart in the coming days to try to clarify these issues so that it can go back to the negotiating table with SPOG. And of course don’t expect the Consent Decree to be fully lifted any time soon: Robart’s ruling today extends its end date to the summer of 2021 at the earliest.

 


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