One week before Court deadline, CPC rejects Mayor’s police accountability proposal

With a rapidly approaching August 15th deadline for the city to submit to Judge James Robart the plan for how it intends to evaluate its police accountability system, the Community Police Commission has reiterated its rejection of Mayor Durkan’s proposed plan.

Yesterday the CPC sent a letter to the Mayor’s chosen consultant on the effort, Chicago-based 21CP Solutions, saying that it believes the Mayor’s proposal “would not be responsive to the Court’s order.”

The draft proposal that 21CP developed after discussions with a number of stakeholders was circulated by email on July 29 to the CPC, Inspector General Lisa Judge, OPA Director Andrew Myerberg, the court-appointed police monitor, and the DOJ.

It proposes two efforts:

1. A survey and assessment of the police accountability and disciplinary appeals processes in twenty other U.S. cities, gathering information on:

– Whether jurisdiction of agency allows for peace officer collective bargaining.
– Type of process (e.g. arbitration, civil service board, circuit or similar court review) – including any limitations on reviewable classes of discipline (suspension, demotion, termination).
– Adjudicator selection process.
–  Term limits, if any, of adjudicator.
–  Qualifications/requirements of adjudicator(s).
–  Selection process of any hearing officers (who, in turn, submit factual findings or recommendations to final adjudicators).
–  Quantum of proof necessary for initial disciplinary decision and whether it elevates with the seriousness of the allegation or discipline.
–  Standard of appellate review.
–  Quantum of proof necessary to uphold Chief’s decision and the applicability of national arbitration rules for jurisdictions that rely on arbitration (specifically insofar as the standard elevates with the seriousness of allegation or potential discipline).
–  If arbitration is used as appeals process, whether American Arbitration Association rules are used.
–  Whether appellant is prohibited from presenting new evidence during appeals process (in other words, is the subject of investigation required to disclose defenses to the charge during the pendency of the investigation rather than raising it during the appeal?)
– Transparency of appeals process: Are hearings open to the public? Are transcripts or recordings of hearings made available to the public? Length of time record of appeals are retained.
– Data of three years of discipline appeal results.
– Retention time of disciplinary files.
– Calculation, extension and/or recalculation of investigatory timelines based on circumstances of notice and other factors.
– Subpoena power of external accountability agencies.
– The extent of the use of civilian investigators of alleged officer misconduct.
– Whether accountability system rules are applied consistently to all ranks.
– Data for three years of initiated complaints and outcomes of such investigations.

The survey would be followed up with 2-3 site visits to “sites that utilize successful or promising accountability practices related to  discipline appeals processes… to gain a deeper understanding of the appeals process in establishing benchmarks for the subsequent analysis.”

2. Conduct a multi-phase analysis of Seattle’s present accountability system, specifically focusing on discipline appeals and arbitration, in order to answer:

a. Is the system, as it is presently, consistent with the intended design and goals?
b. Does the current system result in levels of accountability that ensure constitutional policing?
c. Does the system conflict with public and officer safety?
Does the system appear to achieve the legitimacy necessary to achieve its goals (in terms of objectivity, certainty, perceived fairness, and transparency) as opposed to viable, alternative solutions?
e. Is the current mission of each respective component of the accountability system consistent with what was designed? Is there any overlap of missions in the current system?
f. Do the entities of the accountability communicate necessary information so that each component of the system can adequately fulfill their respective missions?

21CP will conclude the effort by delivering a report and recommendations. The draft proposal doesn’t specify a timeline for the effort (though we can assume that the final proposal submitted to the Court next week will).

The CPC’s letter yesterday echoes its comments from last month when it first became public that the Mayor intended to hire a consultant to do the evaluation, essentially that the CPC and other community stakeholders already did that work over a number of years, the results formed the basis of the 2017 police accountability legislation passed by the City Council, and that Durkan should focus on renegotiating the SPOG contract to align it with the accountability legislation.

“With regard to the proposed multi-jurisdictional survey, comparing Seattle’s disciplinary and appeals system to those of other cities—while an interesting exercise—is not particularly helpful or on-point right now. Through a years-long process, Seattle stakeholders identified, advocated for, and then secured in the accountability law many essential elements to a fair and legitimate system. Other cities may have some or none of those essential elements, but equivalency to other cities is not the metric to which the Court or community aspire. Indeed, one of the observations which drove the CPC’s recommendations on accountability reform in 2014 was that no jurisdiction nationally had arrived at a set of best practices that deliver public legitimacy and satisfaction on accountability. Seattle needed to do better.”

The CPC also asserts that the Mayor’s proposal “will mean months of additional delay,” and it could be another year before SPOG and the city return to the negotiating table to hammer out changes to the contract. And that means that the Consent Decree will be in place for “at least several more years.”

As an alternative to the Mayor’s proposal, the CPC lays out what it believes will be responsive to Robart’s order:

1. Provide the Court information responsive to its previous orders so that the Court can assess whether the City’s proposed remedies are sufficient to cure the problems. That includes a full list of accountability ordinance provisions that are subject to collective bargaining (the CPC argues that the prior list the city submitted did not align with what was actually negotiated with SPOG). It also includes a complete list of all disciplinary decisions made during the Consent Decree, and the terms of the separate agreements incorporated by reference into the SPOG contract.
2. Confirm that the City understands what needs to be fixed in the SPOG contract, and why. Robart’s ruling was vague on this point. The CPC has its list of problems with the contract, and since Robart’s ruling it has maintained that the judge sided with them and therefore their list should prevail. The letter lists sixteen separate issues, essentially a full restatement of the CPC’s prior briefs to the court on the SPOG contract — a list that extends far beyond the concerns that Robart raised in his order. And that is a key point driving the disagreement over the process: the CPC wants its full list addressed, which is more than what Robart asked for. Robart, for his part, didn’t specify what any particular terms of the contract should be; rather, he listed some specific outcomes (such as the reinstatement of Adley Shepherd through the arbitration process) that he found inconsistent with constitutional policing, and told the city that it needed an accountability system that didn’t allow for those outcomes.
3. Describe how the city intends to “cure” the problems that the CPC identified — mostly involving changes to the SPOG contract.

That last issue is a particularly tricky one that has split the community. Last month, three City Council members (Gonzalez, Mosqueda and Herbold), with the support of many community advocates, called on the Mayor and SPOG to re-open the SPOG contract immediately. The contract itself contains a short list of “re-opener” topics that can be taken up at any time, but re-negotiating other parts of the contract requires a drawn-out process involving several week of public notice and comment before negotiations may begin. And SPOG itself has remained silent on the notion of returning to the bargaining table. In the meantime, last month the Coalition of City Unions and its member unions sent a letter to the City Council expressing their disagreement with any attempts to force a reopening of SPOG’s contract in fear that it sets the unsettling precedent that any contract between the City of Seattle and a union representing city workers could be re-opened at any time.

The Seattle Firefighters Union sent an equally strongly-worded letter on its own, saying:

“The members of Local 27 want to make it perfectly clear that we strongly disagree with any unilateral attempts to reopen this agreement which was bargained in good faith over the course of several years and signed by the Mayor and Seattle City Council. Any and all efforts to put undue pressure on SPOG to reopen this agreement are inappropriate. The members of SPOG have the right to determine, on their own terms, what course of action they want to pursue.”

In its letter, the CPC attempts to wiggle around the legal and political difficulties of trying to get SPOG to the table to re-negotiate the contract by offering a four-part path forward:

1. Rather than re-open the SPOG contract itself, the city and SPOG can enter into a Memorandum of Agreement (MOA) to clarify the interpretation of specific items in the contract where the CPC and the city have disagreed on the meaning. An MOA would be legally binding while not changing a word of the actual contract, and the CPC suggests its terms could be rolled into the next SPOG contract.
2.  The city should promptly exercise the re-openers listed in the SPOG contract.
3.  The city should ask SPOG to extend the list of re-openers to additional items — and confirm to the Court that it has made such an ask. SPOG is not a party to the Consent Decree, so Judge Robart can’t force it to return to the bargaining table. But at least the city can show good faith in asking for further negotiations.
4.  the city should immediately start the process of negotiating the next SPOG contract. The current one expires at the end of 2020, so this is something that will need to happen fairly soon in any event, given the public notice and comment requirements. Though the CPC’s letter also notes that under 21CP’s proposed plan, its final report would most likely be delivered in the fall of 2020 — too late to be incorporated into the city’s bargaining agenda.

Next week when the city submits its proposed plan to Judge Robart, it will be accompanied by briefs from the DOJ, the police monitor, and the CPC, and perhaps other stakeholders. We know what the CPC’s brief will say: a resounding “no.” So far, the DOJ and the city have been in lockstep in their support for the SPOG contract, while the CPC has consistently opposed it. That is a strange setup for a court case: the two opposing parties say one thing, an involved third party says another, and the judge agrees with the third party. It’s reasonable to expect that the DOJ will once again be in the city’s camp next week, not because it’s being particularly lenient on the city, but rather because the city is unlikely to submit a proposal that the DOJ hadn’t pre-approved (the DOJ has been in the loop in the process of developing the proposal this summer). So this is shaping up to be a repeat of the last round. However, Robart didn’t ask for a list of changes to the SPOG contract; rather, he asked for a “methodology” to assess the city’s accountability system. That’s what the Mayor is delivering, over the loud objections of the CPC. I suspect we’ll find out quickly whether it meets Robart’s expectations.

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