Council and City Attorney-elect get off to a rocky start, with diversion programs center stage

This week the relationship between the City Council and City Attorney-elect Ann Davison started out on the wrong foot, as the Council rushed a bill through to address its fears that Davison won’t embrace pre-filing diversion programs.

Pre-filing diversion, in which those facing prosecution by the city for certain low-level misdemeanors are instead enrolled in a program run by a community organization outside the traditional criminal justice program to get them on a better track, began in Seattle in 2017 for individuals aged 18 to 24. That program was expanded in 2018 to include an additional class of misdemeanor, and then again in 2021 to include some domestic violence misdemeanors. A report from the Seattle Re-entry Workgroup in 2018 recommended that the pre-filing diversion program be expanded to include adults over the age of 24 as well. In 2020 a Racial Equity Toolkit evaluation of the program identified a need to adequately staff the program.

In response, in the Mayor’s proposed 2022 budget the City Attorney’s Office received 1.5 additional FTEs to staff pre-filing diversion: converting a part-time paralegal to full-time, and adding an additional staff person. The Council made two changes of its own. The first amendment fully staffed the program to allow it to enroll adults 24 and older by adding three more attorneys and a systems analyst while removing the additional staff person in the Mayor’s proposed budget.

The second amendment, proposed by Gonzalez and co-sponsored by Herbold and Lewis, addressing the Councilmembers’ voiced concerns that Davison might win the November election and move away from pre-filing diversion, put a proviso on the funds in the City Attorney’s Office budget allocated for diversion programs so that they may not be redirected for other purposes. That budget amendment also contained the following language, further documenting their concerns:

The Council also intends to consider legislation to codify pre-filing diversion, pre-trial diversion, and LEAD, as well as require reporting about data such as the number of cases diverted through these programs and associated cost savings, as part of LAW’s duties in the Seattle Municipal Code. These programs are all currently supported through prosecutors and other staff in LAW as well as through contracts with community-based organizations partnering with LAW. However, because these programs are not required by ordinance, the City Attorney has the discretion to move funding away from the programs or discontinue staffing. Adding these programs as LAW duties in the Seattle Municipal Code would add permanence to these programs as efforts the City is committed to continuing. Central Staff is working to draft this legislation for the Council’s consideration in early December.

So while the Council was finishing up the 2022 budget, staff were already at work trying to “codify” pre-filing diversion as a required program for the City Attorney. But they ran into a problem: the Seattle City Charter.  It specifies:

The City Attorney shall have full supervisory control of all of the litigation of the City, or in which the City of any of its departments are interested, and shall perform such other duties as are or shall be prescribed by ordinance.

It originally was the Council’s hope, as expressed in the budget proviso above, that the pre-filing programs could be added as new “duties” of the City Attorney through an ordinance. However, doing so would interfere with the first part of the above sentence in the Charter: it would effectively usurp “full supervisory control” of litigation by mandating that certain misdemeanors not be prosecuted, thus robbing the City Attorney of “prosecutorial discretion.”

As a fallback, Lewis and Gonzalez have introduced a bill that would add several new annual and quarterly reporting “duties” to the City Attorney’s Office related to statistics and outcomes of the pre-filing diversion program. That bill came up for consideration in yesterday’s Public Safety and Human Services Committee meeting. In the meeting Gonzalez proposed an additional “duty” beyond reporting, requiring the City Attorney to notify the City Council at least ninety days in advance of any material change to the implementation of pre-filing diversion programs run by the City Attorney’s Office.

The reporting requirements seem to fit clearly within the realm of “additional duties” and stay clear of infringing upon the City Attorney’s Charter-granted authority. But Gonzalez’s amendment, which the Council committee adopted, gets much closer to the line and perhaps crosses it: it doesn’t place limits on the content of the City Attorney’s decisions about pre-filing diversion, but it mandates that such a decision can’t be rolled out in fewer than ninety days. Anticipating that the ice was a bit thin beneath them — especially with the amendment — Gonzalez, Lewis and Herbold took great pains to emphasize at the committee meeting that neither the ordinance nor the amendment “impedes, impinges upon or modifies any portion of the Charter that vests prosecutorial discretion upon any City Attorney elected to that position,” nor “prevents any City Attorney from making changes or proposing changes to the program; it simply requires notice to the City Council if those changes are about to be implemented.” Instead, they stressed that their goal was to exercise the Council’s Charter-given budget and oversight authorities to ensure that Council-appropriated funds are being used as the Council intended and to force transparency on the programs through data-driven reporting. Which is all well and good, except that they never asked Pete Holmes to do any of that.

And that brings us to Davison, who is busy working with her transition team and the current City Attorney to prepare to take over next month. According to Scott Lindsay, a member of her transition team (also former candidate for City Attorney and contributor to both the “Seattle is Dying” documentary and the “Prolific Offenders” report), Davison was first made aware of the bill last Thursday, December 2, in a meeting with the City Attorney’s Office as part of the transition planning. The bill was officially published on the weekly Introduction and Referral Calendar the next day: last Friday.

Earlier this week, Davison had her first meeting with a Councilmember since wining the election: a thirty-minute introduction with Lewis, which he described as “cordial.” During that meeting, Davison asked Lewis to delay deliberations on the bill. In an email to SCC Insight, Lewis described the interaction:

We did briefly discuss the bill among a number of topics and City Attorney-Elect Davison expressed that she wanted the bill to be held. I indicated I would discuss with the co-sponsor and we would make a decision about whether to move forward. I also asked if she had any substantive changes she wanted us to consider and she did not identify any. However, she did indicate that additional analysis might yield substantive changes she would want to see; and she alluded to errors her and her team had perceived in some data provided by the Holmes administration. She did not elaborate on the errors.

Obviously the bill was not held, and deliberations proceeded forward at yesterday’s meeting. According to Lindsay, Davison was not given an advance copy of Gonzalez’s amendment adding the 90-day notice requirement, and she and her staff first became aware of it when it was presented at the committee meeting.

According to Herbold and Lewis, on Wednesday they extended an invitation for Davison to attend and participate in yesterday’s meeting; Davison did not respond to the request, and did not join the meeting.  Instead, yesterday morning she fired off a long early-morning email to the nine Councilmembers, accusing them of trying to “rush through” the bill and calling it a “preemptive move by Council to establish additional reporting requirements and restrictions on operations” that none of her male predecessors had ever experienced. Davison also related that during the transition planning she discovered that the City Attorney’s Office has a backlog of 3,885 unfiled criminal cases from the past two years, and said that she plans to “re-center the victims in our city’s public safety conversation” without explaining in practice what that means. It’s also unclear how much of the current backlog is due to long-term policy choices and how much stems from the recent loss of several attorneys from the criminal litigation division of the City Attorney’s Office; it’s probably a bit of both.

Click to access Davison-email-to-council-12-9-21.pdf

During yesterday’s meeting Councilmember Pedersen, who was filling in as an alternate on the committee for an absent member and thus had less time to prepare in advance, questioned whether an ordinance was the appropriate means for requesting additional reporting from the City Attorney’s Office, when the Council often makes such requests through budget provisos, Statements of Legislative Intent, or resolutions — or simply by picking up the phone. Gonzalez, Herbold and Lewis responded by pointing out that those requests were often for one-time reports or at least bounded by a budget year, whereas their intent with this request was for ongoing reports over multiple years; and that there are multiple precedents for reporting requirements — and notice requirements placed on the City Attorney — within the Seattle Municipal Code.

Pedersen also offered a motion to hold the bill in committee until mid-January so that they could confer with Davison and her team about the bill and how it would be implemented. Lewis, Herbold and Gonzalez all shot that down, saying nice words about how they generally support colleagues’ requests to hold bills in such circumstances, but in this case they didn’t think it was warranted and because Davison had not raised any specific issues with the bill or suggested any substantive changes (despite the fact that she had only received it a week before, and hadn’t seen Gonzalez’s amendment at all). With that, they adopted Gonzalez’s amendment, and passed the bill out of committee by a 3-1 vote with Pedersen voting “no”.

As one last signal of their desire to push the bill through quickly, Herbold (the committee chair) and Gonzalez (the Council President) have exercised their joint authority to override the Council’s customary practice of holding a bill for an extra week when it is passed out of committee with a non-unanimous vote in order to allow other Councilmembers to catch up on the areas of disagreement. Instead they scheduled it for final vote this coming Monday. Since Monday’s Full Council meeting is the last one scheduled for 2021 before the Council takes its December recess, allowing for the traditional extra week would have pushed it out to the first week of January — after Gonzalez leaves office.

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Davison has not yet taken her oath of office, but already both sides are digging in for some extended trench warfare between the City Attorney’s Office and the City Council. We have our first passive-aggressive memo (showing that Davison will fit in nicely with the prevailing culture in City Hall), and both sides are trying to say pleasant things while ceding no ground. Davison makes clear in her email that she intends to step up prosecutions, while the Council is as committed as ever to diversion programs — and doesn’t seem inclined to entertain much discussion of their merits.

Welcome to Seattle City Hall 2022; it’s a lot like Seattle City Hall 2021.

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