Over the past two weeks there has been much confusion and concern raised about findings of police misconduct made by the Office of Police Accountability (OPA) being overturned by Interim Police Chief Harry Bailey. After I inquired in a letter dated February 20, the Chief initially explained that it was his intention to change only the discipline resulting from a high-profile complaint against an officer, but not the finding of misconduct, referred to as a “sustained finding.” The Chief said he intended to exchange a one day suspension for a training requirement, and keep the sustained finding. Only after it was explained that it is not possible to keep the misconduct finding while reducing the misconduct to training, and with the Mayor’s direction, did the Chief agree to restore both the original discipline of a one day suspension and the sustained finding of misconduct. There are six other cases that the Chief reversed with a signed order on February 14. In response to the public concern and the Council’s questions, the Mayor has said they also will be reviewed before a final decision is made.
This entire incident has shed light on a very troubling pattern that has effectively trumped the Office of Professional Accountability’s (OPA’s) investigations and recommendations for findings by later changing decisions, without any civilian oversight or knowledge, after the Chief has made them during the disciplinary process. Civilian oversight, with a civilian Director, a civilian Auditor, and a civilian Review Board, is the very purpose for the existence of the OPA.
As a result of a number of meetings among SPD, the Mayor’s Office, the Law Department, OPA, and Councilmembers, we have learned that there may have been a practice for some time of using the grievance and appeals processes to reverse misconduct findings without notice to the public, the OPA, the City Council and conceivably not even the Mayor. It has occurred separate and apart from the OPA process, after most people were led to understand the cases were closed. We are still learning who took these actions and under what authority, but the outcomes nevertheless reflect the influence of the Seattle Police Officers Guild (SPOG) in a way that makes not only discipline of these officers more difficult, but potentially for all other officers as well.
Under ordinary circumstances, when the Chief disagrees with the OPA finding, SMC 3.28.812 must be followed. This law results from a bill that I led the Council to pass in 2007. It says:
“If the Chief of Police decides not to follow the OPA’s written recommendation on the disposition of an OPA complaint, the Chief shall make a written statement of the material reasons for the decision.”
It appears that reversals that are the result of a grievance or an appeal, not the outcome of the OPA process, do not adhere to this requirement. As a result, we don’t know how many “sustained” decisions have been, basically, negotiated away and not recorded in the corresponding officer’s personnel files. This is an important point, since an officer’s promotion to levels of higher authority and responsibility is based upon the information contained in their personnel files. For example, one of these seven cases for which the OPA Director recommended, with the Police Chief agreeing, a sustained finding, involved mishandling a domestic violence case, resulting in that the victim sleeping in her car. If that misconduct decision is overturned, there will be no record of it either for early intervention, which is based on patterns of misconduct or other issues, or for future disciplinary decisions should that officer be found to have violated policy in another case in the future. The OPA Auditor has asked for a full accounting of all cases that may have been changed as a result of the Guild or the Seattle Police Management Association filing a grievance or an appeal. I have asked the City Auditor to assist her in collecting and analyzing this data.
How has this occurred for so long without being exposed? I believe it can be traced back to how the City has not prioritized in its negotiation of the collective bargaining agreements [ here ] critically important aspects of the management and disciplinary process. Former City Councilmember Tina Podlodowski, currently serving as one of Mayor Murray’s Senior Policy Advisors and in charge of police reform, produced the OPA Complaint Handling Flowchart below. I’ve added the black bar and the designations on the side distinguishing the process above and below that bar as being open and closed. This division is at the core of our current problems and must be addressed in future legislation, which I intend to write.
At a Council Public Safety, Civil Rights and Technology committee meeting that Chair Bruce Harrell called to discuss these cases, Podlodowski, staff from the Mayor’s office, SPD, and the City Attorney’s office were present. I pointed out that the process occurring below the bar has corrupted the intent of OPA to be transparent. No one disputed that conclusion. We have been told that between 2010 and 2012, there were 72 misconduct cases with “sustained” findings. We don’t know how many sustained findings have disappeared due to SPOG pressure on the City though these “settlement negotiations”.
The OPA process is complete after the OPA reports its findings and recommendation to the Police Chief. If he sustains a finding of misconduct, the employee has a right to a due process hearing (referred to as a Loudermill Hearing, in reference to a court decision protecting employee rights). After the hearing, the Police Chief makes a final decision. If he changes the recommendation of the OPA, as explained above, he must state his material reasons in writing to the Mayor and the City Council. At this point the OPA process is over and the case is closed.
Now we enter the twilight zone. SPOG, representing the employee, may appeal this decision to either the Public Safety Civil Service Commission or the Disciplinary Review Board, but not both. The SPOG contract agreement clearly states that disciplinary actions ” . . . cannot be challenged through the grievance procedure.” Unless the discipline imposed is only a written reprimand. (see Section 3.5 H.) However, in the case of a transfer (and only a transfer) if the SPOG believes that a transfer, NOT identified as disciplinary, is in fact disciplinary then SPOG may use the grievance procedure. This is important because the “grievance” procedure exists to contest “contract violations;” it is not intended to allow officers to appeal their misconduct findings.
This means that, by contract, an OPA finding is not subject to the grievance procedure. This is critical. Many of the initial news articles had both journalists and City officials talking about the grievance procedure being used to challenge the OPA decision. If that’s what has been occurring, it’s a violation of the contract as well as a circumvention of the appeal process intended for use in OPA cases.
To make matters worse, I believe the City has been using the grievance procedure for a number of years, allowing OPA decisions to be negotiated away. Appendix A – Grievance Procedure in the Agreement specifically states that in matters of ” . . . discipline in the form of suspension, demotion, termination or transfer identified by the Employer (City) as disciplinary in nature shall be subject to challenge through the process provided in Section 3.5″ – which clearly states that the grievance procedure does not apply.
So what happens in the grievance and appeals procedure that is so terrible? First and most importantly neither is subject to public scrutiny. Secondly, the grievance system is supposed to be about contract violations, which means it falls into labor relations, for which settlement negotiations are a routine way of proceeding. But these are disciplinary investigations that have been reviewed by the Director and Auditor for thoroughness and objectivity, the employee has had an opportunity to be heard and the Chief has made a decision after hearing from both OPA and the command staff. If the employee or the union wishes to challenge these, then they should have to make their case in front of an appellate body, and the City should argue to uphold the Chief’s decision.
One cause of the problem seems to be that the Guild declines to agree to certain arbitrators and declines to go before the Public Safety Civil Service Commission, so that these cases pile up. They then encourage SPD to resolve the backlog by settling the cases. SPD’s attorney, Renni Bispham, said in the Public Safety Committee that, “We had a litigation or a legal challenge matter, so it was open from the perspective that if we don’t do anything we’ll be sitting in front of an arbitrator or a Disciplinary Review Board panel and have a third party decide and tell us what to do. So, as with most litigation matters, you try and settle as many as you could. That was the approach.” The point of having a right to an appeal is not for SPD to “settle as many as [they] could.” SPD’s priority should be on following the OPA’s recommended findings and, when warranted, imposing appropriate discipline, then working to uphold the Chief’s decisions, not bargaining them away in the name of ‘clearing a backlog.’ Our next round of labor negotiations is just about to begin and I will be asking the Mayor to make sure that the City’s negotiating team understands all of the problems with the current contract and makes it a priority to fix them.
One thing has become readily apparent, as the March 2nd Seattle Times editorial stated, “SPD discipline must be made coherent, accountable and transparent. And timely.” The Times got it right when they concluded that “the Seattle City Council and Seattle residents (should receive) a full accounting of how many cases have been reopened. Make the proceedings subject to state open-records laws.” Until these steps are legislated, we will continue to have a civilian oversight of our police department that can be trumped by undisclosed negotiations with SPOG.