Yesterday’s acknowledgement by the city that the Council’s ban on “less lethal” weapons violated the terms of the 2012 Consent Decree points to a much larger issue: efforts to “defund” and re-imagine the Seattle Police Department will face a complex web of legal, labor, and contractual impediments that will drag out the process for several months or possibly years.
Earlier this week a pair of advocacy organizations, Decriminalize Seattle and King County Equity Now, presented their proposed “blueprint” of how to reduce SPD’s footprint and redirect funds to a variety of community-led organizations that could eventually take over response to 911 calls and other community responses that SPD is currently handling — often by default. Their proposal’s strength is in the detail of programs they want to fund, as well as in identifying key success factors such as building organizational and growth capacities in organizations that have been running on shoestring budgets for years. But the weakness of their proposal is in their laundry list of recommendations for cuts to make to SPD:
- Freeze hiring. Any planned hiring, including for individuals in the training pipeline,
should be cancelled. - Eliminate funds for recruitment and retention, including bonuses for new hires.
- Remove the Office of Collaborative Policing, including Navigation Team. While some
programs of this office, along with their administrative infrastructure, should be
eliminated altogether, others could be moved to a civilian-controlled city agency. - Eliminate: Navigation Team, Community Outreach Administration
- Transfer out of SPD control: Crisis Intervention Response, Community Service Officers
- Eliminate spending on new equipment
- Eliminate Data-driven policing
- Eliminate spending on North Precinct Capital Project
- Eliminate Professional Services -Including:
- Photo Enforcement
- Sworn Hiring in HR
- Recruitment and Retention
- Community Outreach
- Implicit Bias Training
- Communications
- Cut SPD’s spending on Homeland Security (a misnamed unit that is mostly assigned to
large events like Bumbershoot) - Eliminate SWAT Team funding
- End contracts with private firms that defend SPD and the City against police misconduct
lawsuits - Eliminate SPD’s travel and training budget
- End overtime pay, including for Emphasis Patrols
- Reduce patrol staffing, with corresponding reduction in administrative staffing
- Transfer 911 dispatch out of Seattle Police Department to civilian control.
- Transfer traffic/parking enforcement out of SPD control.
- Transfer Office of Police Accountability out of SPD control.
- Transfer Office of Emergency Management out of SPD control.
- Reduce administrative costs in line with the above cuts, including corresponding cuts to
the office of the Chief of Police, Leadership and Administration, and Administrative
Operations.
While it’s a delightful wish-list, doing many of these things currently runs afoul of local and state laws, not to mention the Consent Decree and the several labor contracts covering groups of employees within SPD. Let’s review.
The City Charter
The Charter of the City of Seattle is the founding law of the city, much as the State Constitution and the U.S. Constitution are respectively for the state and nation. changing it requires approval of the City Council, the Mayor, and the voters of the city in an election.
Article VI, Section 1 states:
The Police Department shall consist of a Chief of Police and as many subordinate officers and employees as may by ordinance be prescribed. There shall be maintained adequate police protection in each district of the City.
While the Charter does not define “adequate police protection,” any major cuts to SPD — such as a 50% cut to sworn officers — would require the city to show that the police presence is still “adequate.” And that determination would likely end up being reviewed in court by legal challenges to the defunding plan.
Article XVI, Section 9 reads:
The right of City employees to bargain collectively, through representatives of their own choosing, shall not be abrogated by the City, but no collectively bargained contract shall become effective without ratification by the City Council. The City Council shall not ratify any contract which is inconsistent with this Charter.
The City cannot simply skip over the requirement to engage in collective bargaining with unions representing employees in SPD, on any topics that are mandatory for collective bargaining. State law, as we will see, has similar language, and details the mandatory topics.
Seattle Municipal Code
The Seattle Municipal Code is under the Council’s direct control, so ordinances here can get addressed; but there are a lot of them that are relevant to SPD, and many of those — particularly personnel-related ones — also apply to other City employees so untangling how they apply to SPD may not be easy.
Chapter 3.28 relates to the Police Department. Chapter 3.29 is the police accountability legislation passed in 2017 that is still somewhat in legal limbo as it reads on provisions of the Consent Decree.
SMC 3.28.100 says that parking meter enforcement is the responsibility of SPD.
SMC 3.28.420 authorizes the Community Service Officer Program within SPD. If the program were to be moved elsewhere, this would need to be revised.
SMC 4.08 is the rules for the public safety civil service system, governing most personnel functions related to sworn police officers (not civilians), as well as to fire department personnel.
SMC 4.08.020 states:
All appointments and promotions to Police and Fire Department positions, retention therein and removal therefrom shall be based on merit and according to the policies and procedures hereinafter specified or according to the procedures regarding the promotions of police officers and sergeants set forth in the collective bargaining agreement between the City and the exclusive bargaining agent of such employees, as approved by ordinance, to the extent such procedures are inconsistent with those set forth herein.
SMC 4.08.140 (C) further reads:
Employees shall not be demoted, suspended, or discharged except only for cause, and they may appeal such adverse actions as specified in this chapter.
while SMC 4.08.180 says:
The adoption of this chapter shall not affect the provisions of any existing collective bargaining agreement.
(in other words: terms in legally negotiated collective bargaining agreements take precedence over the text of SMC 4.08)
The 2017 police accountability legislation also has some relevant passages. SMC 3.29.105 explicitly says that OPA is organized with the Seattle Police Department to ensure that it has full access to SPD-controlled information under state law (we’ll revisit this point later).
Also, SMC 3.29.120 and 3.29.430 relate to the OPA Director supervising sworn officers working in OPA; that becomes more difficult (though not impossible) if OPA is outside of SPD. There are good arguments on both sides as to whether OPA should continue to have sworn officers serving as investigators; this whole area will need to be debated at length.
State law
The Revised Code of Washington (aka RCW) has several laws that pertain to how cities are run, and specifically to law enforcement agencies and personnel.
RCW 10.97 is the Criminal Records Privacy Act. It restricts information on arrests, pending charges, and criminal records that police departments can disseminate out and sets strict confidentiality rules. There are exceptions that may allow the city to move OPA out of SPD yet still preserve full and complete access to records, but it will be much more difficult. Any other groups spun out of SPD that might require access to that information will have similar challenges. To the extent that private community-led organizations are dispatched instead of public employees, access to information becomes even more problematic.
RCW 41.56 is the collection of laws governing collective bargaining for all public employees in the state. There are sections that refer specifically to public-safety public employees, including the police.
RCW 41.56.030 includes the list of topics that for which collective bargaining is required, i.e. the city can’t just impose its own rules. They include “wages, hours and working conditions.” That includes a wide swath of topics, including reorganizations, moving groups out of the department, layoffs, reducing pay, overtime rules, and more.
RCW 41.20 defines the police pension system for first-class cities such as Seattle. This is an incredibly important benefit for police officers that many have spent years paying into, hoping to get to the magic 25 years. What happens to the pension benefits for anyone laid off from SPD, or reorg’ed out of the department, will be an important issue to resolve.
Collective bargaining agreements
There are several CBA’s that apply to groups of SPD employees. That includes police officers up through sergeant (SPOG), police management (SPMA), parking enforcement officers (SPEOG), and 911 call center employees who also have their own agreement. Other classes of civilian employees within SPD are represented by different unions, who negotiate separate contracts. According to a spokesperson for the Mayor’s Office, the city has already received a demand from SPEOG “to bargain on all mandatory and permissive subjects of bargaining that would be impacted by the move of SPEOG to SDOT. Failure to bargain will result in a [unfair labor practice complaint].”
Making significant changes to SPD will probably require negotiating with all of these unions — and that will take at least months. the Mayor’s spokesperson said, “By starting the conversation now, we do think many of these can be accomplished in late 2020/early 2021.” Making legislative or administrative changes before those negotiations are complete could result in more unfair labor practice charges, as we saw in 2017 with the passage of the police accountability legislation, and eventually might require backtracking on changes if the negotiations are not successful.
As an example, here are provisions in the SPOG collective bargaining agreement that will be relevant:
Section 4.2.A does not give explicit access to personnel files to OPA. It’s possible to interpret it such that the city has that discretion, but it is debatable. They currently have full access because they are within SPD — moving them out calls into question their authorization.
Section 4.6 specifies that each officer will be provided with a minimum 32 hours per year of in-service training. If the training group is eliminated, as the Decriminalize Seattle blueprint proposes, that cannot happen.
Section 4.11 states the requirements for patrol staffing levels:
The Department is responsible for setting patrol staffing levels. Staffing levels will be based upon the shared objectives of addressing average workload, providing for reasonable safety and backup for patrol officers, and providing the highest level of public safety. Setting staffing levels for the purpose of meeting the City’s service needs is not grievable pursuant to this agreement. The Department shall maintain, or assign as provided below, sufficient shift staffing in each precinct during all hours to ensure that officers have sufficient back up and other personnel resources to safely perform their job duties. Staffing levels for average workload are not presumptive evidence of minimum levels for reasonable safety.
Patrol shift supervisors shall make every reasonable and necessary effort to ensure that safe patrol staffing levels are met during their assigned shifts. In the event that safe patrol staffing levels cannot be met during an assigned shift, on- duty patrol supervisors may utilize other on-duty uniformed resources, utilize ACT/CPT personnel, draw uniformed personnel from other precincts with available resources,and if those measures are unsuccessful, with approval of the appropriate lieutenant or precinct commander, utilize officers on an overtime basis.
If patrol staff is significantly cut, the Department will still need to ensure that the contractual requirements are met. That becomes even more difficult if overtime is eliminated, as the blueprint proposes.
Section 5 specifies the hours of duty and overtime rules. Overtime figures heavily into it as the basis for staffing many kinds of events, and if it is eliminated this section will need to be re-negotiated.
Section 6.1 specifies officer salaries. Any attempt to reduce officer compensation will require re-negotiating this section.
Section 7.1 reads:
Notification of Changes – The Employer agrees to notify the Guild in advance of significant anticipated departmental changes or hearings affecting working conditions of employees covered by this Agreement, and conferences in good faith shall be held thereon before such changes are placed in effect. For illustrative purposes, such changes would include but are not limited to changes in working hours, expansion or reduction of major services, and community relations programs. Transfers, reassignments, and emergency situations shall be excepted from this provision.
So SPOG will need to be consulted as changes are proposed.
Section 7.4 specifies the rules for involuntary transfer, “a permanent change in unit of assignment not requested by the employee.” It’s a long set of rules, involving advance notice, opportunities to see all the other openings available, meetings with the Bureau Chief, etc. It also specifies the rules for involuntary transfers because of staffing reductions:
D. When an involuntary transfer is required as a result of a reduction in the number of available positions within a unit, it shall be accomplished by inverse unit seniority. If two or more employees are displaced and wish to transfer to the same available position, the employee with the most Department seniority will be transferred to the position.
E. Any exceptions to the above shall be made by a Bureau Chief, who shall inform the involved employee(s) in writing. The exception must be necessary for bona fide operational reasons or to meet a specific Department need for special, bona fide qualifications or experience. In instances where more than one employee has the needed qualifications or experience, the least senior employee, as defined by subsection 7.4E above, shall be transferred.
Section 7.10 specifies that criminal investigations may only be performed by sworn personnel:
It is agreed that non-sworn personnel shall neither be dispatched to, nor assigned as a primary unit to, investigate any criminal activity.
The Consent Decree
The 2012 consent decree defined a series of structural changes that needed to be made in the department, and laid out requirements for a number of operational procedures such as data collection, discipline, supervision, and training. Several policies needed to be written, reviewed by the DOJ and the court-appointed police monitor, and ultimately approved by the U.S. District Court before being implemented.
Paragraphs 130 through 139 deal with crisis intervention. Paragraphs 131 and 132 read:
131. SPD will maintain its program of dispatching CI trained officers to incidents or calls involving individuals in crisis.
132. CI trained officers will take the lead, when appropriate, in interacting with individuals in crisis. If a supervisor has assumed responsibility for the scene, the supervisor will seek the input of CI trained officers on strategies for resolving the crisis event where it is reasonable and practical to do so.
Moving crisis response out of SPD into a separate organization that can be dispatched is probably a very good idea, but it will involve changing the consent decree since SPD’s current approach is mandated therein.
Paragraph 135 states:
SPD, in conjunction with the CIC, will evaluate its current training for dispatchers on identifying calls for service that involve individuals in crisis. SPD will ensure that all dispatchers are appropriately trained to identify calls for service involving individuals in crisis and dispatch CI trained officers to the crisis event.
If 911 dispatch is moved out of SPD, then it no longer has control over their training or who they dispatch. And if crisis response becomes a separate group outside of SPD, then the requirements for dispatchers’ training and direction will need to change here too.
Paragraphs 164 through 168 specify requirements for OPA.
Paragraphs 176 through 181 specify the process for developing and modifying procedures and training. Paragraph 177 requires policy changes to be reviewed by the DOJ and the police monitor:
SPD will submit the policies, procedures, training curricula, and training manuals required to be written, revised, or maintained by the Settlement Agreement to the Monitor and DOJ for review and comment prior to publication and implementation. The Parties will meet and confer regarding any comments on the policies, procedures, training curricula, and training manuals within 45 days of submission if necessary. The Monitor will approve the materials unless the Monitor determines that they conflict with the terms of the Settlement Agreement. If the Monitor disapproves, he or she will state the reasons for the decision in writing.
Training requirements are scattered throughout the Consent Decree, including:
- paragraphs 73, 113, 120 and 121 require there to be a Training Section;
- paragraph 76 requires weapons training and certification;
- paragraph 84 requires OC spray training;
- paragraph 111 requires training concerns to be resolved after use-of-force incidents;
- paragraph 115 requires SPD to created a training curriculum for the Force Investigation Team; and paragraph 121 requires a minimum of eight annual hours of training for members of SPD’s “Use of Force Committee”;
- paragraphs 127 through 129 lay out the detailed requirements for use-of-force training;
- paragraphs 130 and 133-134 specify the requirements for officers’ crisis intervention training;
- paragraph 135 references training for dispatchers.
The Consent Decree can be changed — in fact it specifies a process for annual reviews and updates — but that requires negotiating with the DOJ and eventually the Court’s approval.
Earlier this week, Mayor Durkan sent a letter to Seattle’s state delegation advocating for changes in state law that will assist with police reform. Some of the ideas she proposed:
- creating a uniform licensing and review system for law enforcement officers across the state, similar to the existing one for health professionals;
- creating an independent statewide entity to investigate and prosecute police officers;
- creating uniform statewide inquest procedures;
- reform of state labor laws related to officer discipline, including giving deference to the police chief on termination and other disciplinary decisions;
- granting local jurisdictions authority to issue administrative subpoenas to aid civilian oversight agencies in their investigations of police departments’ policies and practices. OPA and OIG do not currently have subpoena authority — an ongoing sticking point in labor negotiations;
- consistent policies and training for police officers and departments, including use of force, training, body cams, displaying badge numbers, crowd management, and reporting.
However, many of these issues are important yet tangential to the core issues being discussed within the realm of “defunding” the police.
The irony here is that the rule of law is the tool we invoked to assert civilian control over armed police, to codify restrictions on police behavior, and to protect workers in critical functions — including police officers — from abusive practices by their employers. Now the same rule of law will be the thing that slows down necessary reform. There is nothing above that can’t be changed (state law will be the most difficult as it is entirely out of the hands of the city, and at this point it seems unlikely that the state legislature will hold a special session this year), but even if the City Council and the Mayor act with urgency it will take time. Even some of the things that look simple, like moving the 911 call center and parking enforcement out of SPD, can’t be done without collective bargaining and possibly some changes to the laws. Advocates for immediate police reform and “defunding” of SPD by 50% won’t like facing this reality, but they too will need to be patient. The rule of law feels like an impediment sometimes, but we need it; just ask state Attorney General Bob Ferguson, who has an impressive record of using the rule of law to block Trump’s worst abuses. We don’t get to rely on the rule of law when we need it to stop others, then ignore it on the days where it’s inconvenient to our purposes.
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