Friday afternoon, the City of Seattle submitted to the court its consultant assessment of the police department’s accountability system. The consultant found “not the need for wholesale change but for additional fine-tuning and refinement.” The issues it raises echo those voiced by the city’s Community Police Commission, with disagreement on only a few of the major points.
To recap how we got here: in May, Judge James Robart found that the city continues to be in compliance with the Consent Decree as reflected in the two- year sustainment plan that ends in January. But he also decided that it had fallen out of compliance with regard to its police accountability system, which is not an explicitly-named item in the Consent Decree but in Robart’s eyes speaks to the public’s confidence in the police department and thus is fair game for him to regulate. The judge ordered the city to come up with a plan for a detailed assessment of the police accountability system, as well as for how it will come back into compliance with the Consent Decree. At the end of the summer, the city proposed its assessment plan, but said that it couldn’t deliver a plan for regaining compliance until it had the actual assessment in hand. Over the objections of the CPC (which asserted that it had already assessed the accountability system and the city should just do what it recommended), Judge Robart approved the city’s assessment plan, and ordered the city to file the assessment and the plan for coming back into compliance by November 29th. The city has been granted two short extensions: one because of the Thanksgiving holiday, and one because its consultants got stuck in incement weather on the East Coast. The revised deadline was today, and the city delivered as promised… sort of.
The city filed a 58-page assessment report, as written by its consultant, 21CP. But it didn’t deliver the plan for how to come back into compliance. Instead, it explained to the court that the city and the Police Monitor have not had sufficient time to fully digest the report in order to develop a plan. It said that it would first prefer to finish out the two-year sustainment plan and ask Judge Robart to rule that the city has successfully completed that phase of the Consent Decree and release the city from further responsibilities related to the areas it covers. That would leave police accountability as the only remaining issue to be resolved; the city said that it would submit its plan for coming back into compliance concurrent with its motion to certfy the end to the two-year sustainment plan — if everything continues on schedule, sometime in February.
With 21CP’s report in hand, the City can now turn to developing a framework to address the Court’s concerns and 21CP’s findings. The parties and the Monitor, however, have not yet had an opportunity to analyze 21CP’s report in depth or to collectively discuss next steps. Now that the report has been completed, the City will get input from internal City stakeholders (SPD, City Council, OPA, OIG, and the Community Police Commission) and engage members of the community, all of whom represent diverse interests and goals. The City will then develop a path forward that addresses the Court’s concerns, reflects 21CP’s findings, and incorporates key City stakeholders’ feedback to 21CP’s report.
Currently the City is working with DOJ and the Monitor to complete the final outcome reports and reviews under the Sustainment Plan. The City is on track to complete these remaining requirements successfully and on time. Once the Sustainment Plan is concluded, the City anticipates that the parties will move the Court to find that the City has maintained full and effective compliance with the Sustainment Plan and present a proposed plan to address the Court’s concerns, improve the City’s accountability system, and further promote public confidence.
It’s unclear how Robart will respond to the fact that the city has missed its deadline to deliver the plan for coming back into compliance.
Now turning to the assessment report: the city, in its scope of work for the assessment, commissioned 21CP to investigate four topics in the city’s current police accountability system, which is comprised of the 2017 police accountability legislation and the 2018 SPOG contract. The four topic areas are:
1. The calculation of the 180-day timeline for investigations, and how the terms of the labor agreement with SPOG muddy the waters;
2. Subpoena authority for the Office of Police Acccountability (OPA) and Office of the Inspector General for Public Safety (OIG);
3. The process for officer discipline appeals, the use and selection of arbitrators;
4. The standard of review and quantum of proof in adjudicating disciplinary appeals.
In its report, 21CP made eight findings. Many, but not all, validate complaints about the SPOG labor agreement that the CPC raised a year ago.
Before diving in the four areas, the assessment team made a general observation about the use of force by SPD. It’s not clear why they went there, since that wasn’t one of the areas they were asked to assess.
Finding 1: SPD officers continue to use force infrequently and when force is used, findings of out of policy force are rare.
For topic 1, the 180-day timeline, 21CP made two findings:
Finding 2: While OPA has not formally sought an extension under
the current contract because of an ongoing criminal investigation, the requirements for an investigation extension request by OPA to the Guild due to a criminal investigation lack precise definitions that could create a risk that serious misconduct could be held unaccountable.
They found that while OPA can ask for an extension to the 180-day timeline in the case of a criminal investigation, the rules for when it will be granted are vague. For example, the investigation must be “complex,” and it must take “an unusually long time.” This was one of the CPC’s areas of concern in the SPOG contract.
Finding 3: The prosecution review process creates a risk that when
an administrative investigation is paused by OPA during a prosecutor’s review of the same matter for consideration of criminal prosecution, time could restart without OPA being aware of the change in status.
21CP found that SPD doesn’t have a bullet-proof communication protocol for when it refers disciplinary matters for potential criminal prosecution. So OPA will put its own investigation on hold if a matter is referred to the King County Prosecutor’s Office, but if they decline to prosecute, notification of that decision doesn’t reliably make it all the way back to OPA so that it can restart its investigation — and the 180-day deadline can run out before an OPA investigation can be completed.
For topic 2, the subpoena authority for OPA and OIG, it had one finding.
Finding 4: There is uncertainty about the tools available to OPA and OIG to obtain evidence. The breadth of subpoena authority of OPA and OIG, including regarding officers, their family members, and personal records of officers and family members is unclear.
It noted that while the labor agreement with SPOG compels officers to cooperate with investigations, it limits the ability of OPA and SPOG to issue subpoenas to officers, their families, and third parties. The agreement reserves this as a potential “re-opener” topic for subsequent negotiations. This was a major area of concern for the CPC.
For topic 3, the disciplinary appeals process and use of arbitrators, they made three findings:
Finding 5: The City and SPOG agreed to an efficient arbitration selection process that is consistent with the terms of the labor agreement. It is too soon to establish whether concerns raised about the impartiality of arbitrators have been satisfied.
The CPC has raised several criticisms over the use of arbitration for resolving disciplinary appeals, and Judge Robart agreed — especially when the Adley Shepherd case highlighted the ability of a single arbitrator to cause a spurious outcome. Robart highlighted questions of whether arbitrators’ rulings would be influenced by their desire to continue getting future arbitration jobs, and whether arbitrators have enough depth of experience in law enforcement to be empowered to overrule the disciplinary decisions of the Chief of Police. 21CP said in its report that there is not enough empirical data yet to determine whether those concerns are valid. The assessors also cast doubt on the idea that the arbitrators would adjust their decisions in order to assure future work, noting that none of them were likely to get a lot of work from SPD: “With the limited number of cases that each arbitrator is anticipated to hear, the assessment team cannot draw a conclusion that any particular arbitrator will be beholden to either party to assure continued arbitration engagements.”
Finding 6: The current selection process creates a pool of eligible arbitrators drawn from American Arbitrator Association members on the Pacific Northwest panels. While the process does appear to have been a fair one, the pool drawn from, and the ultimate panel, lacks racial and ethnic diversity and the depth of experience that could be provided by additional requirements.
The SPOG contract left the details of how arbitrators would be chosen to follow-up negotiations. That discusson concluded in mid-November, as documented in a letter that the city attached to its filing. The city and SPOG have mutually agreed upon a list of sixteen arbitrators and the process of assigning them to cases, which together is intended to prevent either side from gaming the system to get an arbitrator favorable to their side. All sixteen arbitrators have met qualifications of either the AAA or FMCS. According to the assessment report, 21CP audited the background and qualifications of the auditors: “All the arbitrators appeared experienced with a variety of issued arbitration awards.” It doesn’t specified how much experience, if any, they have with law-enforcement related arbitration cases.
That said, 21CP found that the sixteen arbitrators collectively lack racial and ethnic diversity. It also suggested that the city could set an even higher bar for the experience level of arbitrators than the AAA/FMCS qualifications.
A spokesperson for the Mayor’s Office provided additional details on how the city developed its list of arbitrators:
“The AAA has general panels for labor and employment. The City sought to identify arbitrators with law enforcement experience through a number of sources, including–
- Biographical information from AAA
- Information from arbitrators’ individual websites
- Arbitration decisions published in the Bloomberg arbitration case database
The City studied these sources (and others) to prioritize both law enforcement experience and arbitrator approach to issues.”
Finding 8: It is difficult for the public to track the status of sustained discipline cases through the grievance and appeals process and have access to information about the outcomes of grievances and appeals.
The assessment team found that while SPD publishes information to the public about discipline cases as they are being investigated within the department and by OPA, there is a lack of public transparency for the status of cases through the appeals process.
For topic 4, the standard of review and quantum of proof for adjudicating appeals, the assessment team had one finding:
Finding 7: Quantum of Proof – Of the benchmark labor agreements the assessment reviewed, Seattle is unique in that its labor agreement includes specific language regarding the quantum of proof used during arbitration, however there have been no use of force arbitration cases heard in the current accountability system to draw a conclusion that an elevated standard will be used when an allegation of Force-Use is sustained and the officer is discharged.
This topic was perhaps the most significant point of disagreement between the city and the CPC regarding the SPOG contract. Whereas the police accountability legislation established that the standard for upholding a disciplinary finding is a “preponderance of the evidence,” the SPOG contract said that the standard of review would be based upon standard principles of arbitration. One of those principles is that a higher standard of review may apply to disciplinary measures when the punishment is more serious and potentially stigmatizing to the officer(s), and the SPOG contract calls out some examples where that might be true.
In its assessment, 21CP noted that applying the standard practices of arbitration in choosing the standard of review is common in other jurisdictions — but that it was unusual to call out specific examples as the SPOG contract does. However, the assessment won’t satisfy the CPC, and it might not satisfy Judge Robart either. The CPC has already asserted (in arguing that 21CP should not waste its time surveying other jursdictions as part of its assessment) that whether a specific practice is common in other jurisdictions is irrelevant to whether it meets the bar of constitutional policing in Seattle. The assessment doesn’t render judgment as to whether the the standard of review is acceptable; in fact, it says that there isn’t enough data yet to even establish a pattern of how often a higher standard of review is applied now, let alone how it might be applied in the future.
The DOJ and the CPC will file their responses to the assessment report by January 6th. Expect the CPC to emphasize that the report supports many of the major critiques it raised, and to argue that the assessment of the standard of review was insufficient and misguided. Then we will see how Judge Robart responds to the assessment and to the city’s desire to wait until after it completes the two-year sustainment period before it moves forward with a plan to come back into compliance.
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