City submits plan to evaluate police accountability, DOJ on board

This evening the City of Seattle submitted its proposed methodology for evaluating the city’s police accountability system, as required by U.S. District Court Judge James Robart who oversees the SPD consent decree.

Here’s a link to my post from last week looking at the draft proposal that the city had been developing with its external consultant, 21CP.

Tonight’s filing fills in more details (from the city’s perspective) on the process of hiring the consultant and gathering input and feedback. It notes that the CPC objects to the proposal to do a comparative assessment since it believes it and other stakeholders did that work in the run-up to the passing of the 2017 police accountability ordinance. The city does its best to inoculate itself against the protests of the CPC by detailing all the ways it claims to have included CPC members in the process and all the pertinent feedback that it has incorporated into its final proposal; among those, it required 21CP to hire an additional consultant to add more civilian-oversight-friendly expertise to the consultant team, who then spent time interacting with the CPC and other community stakeholders. It also notes that both the Department of Justice and the court-appointed police monitor were involved in the development of the proposal, and the DOJ filed its own response today saying that it has “no objection” to the proposal.

The proposal itself has changed since the draft version. The first part is a “focused evaluation of issues particularly noted by the Court”:

  1. The attributes contributing to the outcome of the Adley Shepherd arbitration case, whether those attributes were altered by the SPOG contract, and whether those issues have or could be addressed through changes in the disciplinary appeals process.
  2. The effectiveness of the acountability regime: mapping the existing system, looking at whether the current system “results in levels of accountability that ensure fair and proportional discipline for force-related misconduct,” assessing whether it conflicts with public and officer safety, seeing whether it appear to achieve legitimacy necessary to promote public confidence, and checking whether the oversight entities of the system effectively work together.
  3. A comparative analysis between the former and current discipline, grievance and arbitration structures and procedures.
  4. Three specific elements highlighted by both the City Council and udge Robart as areas of concern: the calculation of the 180-day timeline for investigations; the quantum of proof and standard of review for disciplinary appeals; and the lack of subpoena authority for the OIG and OPA.

The second part is still a survey of other jurisdictions’ police accountability systems, collecting data on a long list of elements. The survey will be followed by 3-day site visits to 2 or 3 of the jurisdictions with “promising” systems for a deeper dive. The city notes in its brief that this information will be useful not only for assessing how to get back into compliance with the Consent Decree, but also for future rounds of contract negotiations with SPOG.

The full report, including both parts, would be completed and delivered by November 29, 2019 — an aggressive schedule. The timeline is being driven by the recognition that addressing many of the concerns will involve negotiating changes in the SPOG contract, so the information must be in hand before those negotiations begin.

Contract negotiations could happen in two parts: first, work on the successor contract to the new SPOG collective bargaining agreement (CBA), which was retroactive back to 2014 and expires in December 2020. As the city’s brief details, the timeline for negotiations (or more to the point, everything that must happen before the parties meet at the negotiating table) is driven by state and local laws. State law says that negotiations must commence at least five months prior to submission of the city’s budget in the same year of the CBA’s expiration; the Mayor submits the budget in September 2020, so negotiations must start by April.  And under Seattle Municipal Code, the city’s Labor Relations director must notify the City Council at least 180 days before the beginning of negotiations; for its part, the City Council must hold at least one hearing “on the effectiveness of the City’s police accountability system” at least 90 days prior to the start of negotiations. The Labor Relations Director has already notified the City Council that it intends to begin negotiations no later than April 2020, and hopefully in March.

Second, the city can return immediately to the table to negotiate any or all of the topics listed as “re-openers” in the SPOG CBA. Those include:

  • promotional examinations;
  • patrol shift schedules;
  • secondary employment;
  • gender and race equity efforts;
  • subpoena authority for OPA and OIG;
  • opening arbitrations to the public.

However, the city questions whether it makes more sense to spend time trying to reopen those in advance of March 2020, when in reality it’s unlikely that negotiations will successfully conclude by then -and then the city would find itself concurrently negotiating both the old and new contracts.

In addition to filing a methodology for evaluating the police accountability system, Robart also ordered the city and DOJ to explain how the city proposes to achieve compliance. On this point, the proposal is light on details, mostly punting until after the report is done since it can’t predict what the report will say. Rather, the proposal states:

Once the Accountability Assessment is complete, the City will—with the input of the Monitor, CPC, OIG, OPA, DOJ, and other key stakeholders—develop a plan setting forth the City’s proposed next steps for accountability. The City will submit the assessment and plan to the Court.

That plan will be based on the results of the Accountability Assessment and—critically—it will be based on how its findings are evaluated by the City’s democratically elected leaders, their constituents, and other key City stakeholders. Depending on those factors, the City’s proposed plan to the Court could include revisions to the SPD Police Manual or a legislative proposal before the City Council.

In addition, it is a near certainty that the findings of the assessment will implicate the current CBAs between the City and the police officer unions. That is because, under state law, changes to the disciplinary process will affect mandatory subjects of bargaining.

Accordingly, part of the City’s response to part (2) of the Court’s order—“how the City proposes to achieve compliance”—is that the findings, observations, and policy alternatives contained in the Accountability Assessment will influence and inform the City’s collective bargaining priorities.

The DOJ’s filing this evening says that it has “no objection” to the city’s plan. It also follows up on an issue from earlier this year, another lingering question from the Adley Shepherd case. The DOJ questioned whether the city’s Defensive Tactics officer training course encouraged the kind of use-of-force that Shepherd used on a restrained suspect, and the department and police monitor wanted to reassess the training to ensure that the training was appropriate. In tonight’s filing the DOJ and monitor report that they have reviewed the class again — both presentation and written materials — and concluded that what was being taught was appropriate and not consistent with Shepherd’s actions (i.e. the city doesn’t train officers to do what Shepherd did).

The CPC will no doubt file its own response to the city’s proposal in the coming days, setting up Judge Robart to decide which of the parties interpreted his vague order correctly. No hearing has been scheduled yet; if Robart’s past practice continues, he will read the filings then schedule a hearing if he has questions he wants to ask directly of the parties. If he has no questions, he may just issue a ruling directly.

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