Durkan, Herbold announce bill to strengthen subpoena power of OPA and OIG

This morning Mayor Durkan and Councilmember Herbold announced a bill that would revise the subpoena powers that the Office of Police Accountability (OPA) and Office of the Inspector General for Public Safety (OIG) wield under the 2017 police accountability legislation.

Here’s what the new legislation does:

  • It slightly strengthens the OPA and OIG subpoena authority: the original text says that they may seek a court order if the recipient of a subpoena “does not respond in a timely manner,” while the new version says that they may do so if the recipient “fails to comply with the subpoena issued”.
  • It also clarifies that the Inspector General may issue subpoenas when performing duties in lieu of the OPA Director (e.g. when the OPA Director has a conflict of interest on a specific investigation).
  • It denotes that their subpoena authority “is subject to collective bargaining agreement limitations.”
  • It requires a written notice to be attached to the subpoena when delivered, detailing the purpose of the subpoena and the basis for seeking the information requested; a statement acknowledging the opportunity to contest the subpoena in court; a statement acknowledging that a person responding to the subpoena has “the same privileges and immunities as are extended to witnesses in the courts of this state”; and a statement acknowledging that the evidence produced in response to the subpoena cannot be used in a separate criminal proceeding against the individual without a search warrant or court-authorized search or seizure. A copy of the written notice must also be sent to “the individual whose information is the subject of the subpoena” if it isn’t the actual person to whom the subpoena is served.

The intent is to tighten up the explicit authority of the OPA and OIG to issue subpoenas to civilians in the course of pursuing investigations into police officer misconduct, while also ensuring that those receiving subpoenas understand their rights to due process and to avoid self-incrimination. The OPA and OIG separately have the power to force SPD officers to appear and testify as part of an investigation, so the subpoena power is directed more at making sure that they can compel testimony from civilians who may have knowledge of potential misconduct, or may have witnessed misconduct.

However the current SPOG contract, which was signed after the police accountability legislation, includes an agreement by the city not to implement the subpoena authority as it relates to SPD officers, their family members, and the personal records of SPD employees and their family members:

The City agrees that these sections of the Ordinance will not be implemented at this time with regard to bargaining unit employees and their family members, and third party subpoenas seeking personal records of such employees and their family members. After the City further reviews questions raised concerning the authority and potential need for OPA and the OIG to issue such subpoenas, the City may re-open the Agreement for the purpose of bargaining over these sections of the Ordinance and the parties will complete bargaining prior to the OIG or OPA issuing subpoenas to bargaining unit employees and their family members, or a third party subpoena seeking the personal records of such employees and their family members.

The SPOG contract also says that where the contract and city ordinance conflict, the contract is the controlling authority, so even if the Council passes this new legislation, it will still be subject to this restriction until the city and SPOG renegotiate the contract. The current contract expires at the end of the year, and the city’s labor negotiators are gearing up for a new round of negotiations starting early next year.

In the meantime, U.S. District Court James Robart, who oversees the SPD consent decree, has not approved the police accountability legislation (other than the hiring of the OPA Director and the Inspector General). Robart observed that many portions of it were subject to collective bargaining, and refused to approve it until that bargaining was complete and it was clear how much of the accountability legislation would actually go into effect. Then, when the new SPOG contract was negotiated and approved in 2018, Robart didn’t like the effect it had on police accountability — in fact he disliked it so much that he declared the city to be out of compliance with the consent decree until it could fix the police accountability system. The city was on a slow, contentious path to making that happen going into last summer, when the violent police response to protests called into question SPD’s compliance with several other facets of the consent decree. Now fixing the police accountability system is only one of many items on SPD’s to-do list.

What this means is that the DOJ and the police monitor will need to review this new subpoena legislation since it affects the police accountability system, and ultimately Judge Robart will need to approve it — but Robart will likely once again refuse to do so until the next round of SPOG contract negotiations are complete, since it is still subject to collective bargaining.  And it will need to get in line behind the fixes to SPD’s use-of-force and crowd-control policies, both in need of major overhauls right now.

In a press release issued by Durkan and Herbold this morning, they say that the bill will be taken up in Herbold’s public safety committee next Tuesday (December 8). But depending on how she intends to pursue the required review by the police monitor and DOJ, it may not get final approval by the Council for weeks — or possibly months. And it’s anyone’s guess as to when it will end up in front of Judge Robart, as that may need to wait until after contract negotiations conclude.


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