Urban Politics #247: Police Accountability in 2008


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By City Councilmember Nick Licata.

Urban Politics (UP) blends my insights and information on current public policy developments and personal experiences with the intent of helping citizens shape Seattle’s future.

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This could be the pivotal year for determining if Seattle can have an effective and fair police accountability system. Before the end of the first month of the year these major developments are unfolding: previous Council legislation allowing the citizen’s review board on police conduct to look at the names of officers on closed Office of Professional Accountability (OPA) cases was struck down by a State administrative hearing officer; the Mayor’s advisory panel on police accountability is releasing their recommendations; and Council’s legislation on requiring a public hearing before future negotiations begin will be introduced.

These developments are all taking place while the current contract with the Seattle Police Officers Guild (SPOG) is going into its second year of negotiations. SPOG accuses the City of not wanting to settle but simultaneously refuses to trigger automatic, mandatory arbitration which would mandate settlement. Consequently both sides remain at the bargaining table trying to reach an agreement that best meets their own objectives.

In this issue of UP I will limit my remarks to the recent Public Employees Relation Commission (PERC) decision. I will be writing later about the Mayor’s Police Accountability Review Panel (PARP) and my legislation establishing public hearings before negotiations begin with police unions.

Raising public accountability issues at any time is a touchy issue. If legislative action is taken, more often than not SPOG will accuse the City of committing an Unfair Labor Practice (ULP) and file a complaint with PERC, which is the state agency having oversight of all public employee labor relations. That agency then decides whether the public accountability measure should have been negotiated with SPOG.

SPOG interprets most any attempt to have citizens review their members’ actions as subject to bargaining, and has consistently opposed public accountability measures at the bargaining table. This brings us to the first of the three developments mentioned above – the PERC decision voiding Council’s legislation authorizing the citizens’ police review board, formally known as the Office of Professional Accountability Review Board (OPARB), to review complete, unredacted investigatory files into alleged Seattle police misconduct.

By way of background, complaints of misconduct against Seattle police officers are investigated by fellow police in the Office of Professional Accountability (OPA)-the Seattle Police Department’s version of “Internal Affairs”. Once an investigation is closed, OPA’s file may be requested for review by OPARB. From its inception, OPARB could only review closed files after all officer-identifying information had been removed, or “redacted”. All current and former OPARB members (including two with prior law enforcement experience) have asked repeatedly for an end to the redaction requirement for the closed cases they review. For five years this procedure proved to be a heavy burden for OPA personnel; it greatly delayed the transmittal of closed OPA cases to OPARB; and it made transcripts and other documents difficult simply to read. Eliminating officer identities also made it impossible for OPARB to track officers with multiple complaints, or other trends or patterns of behavior that would allow OPARB to make policy recommendations to the Council, Mayor or the Police Chief.

OPARB, however, never makes any recommendation with regard to the particular officers in the cases reviewed; the Police Chief has already imposed any discipline in these cases. By City ordinance, OPARB plays no role whatsoever in individual officer discipline. Members of OPARB have also signed a confidentiality agreement binding them to secrecy, which they have never violated. Thus, the core of my position and that of the City’s attorneys is that OPARB’s access to unredacted, closed OPA files is not (in the technical language of labor lawyers) “a mandatory subject of bargaining” because it does not affect police officers’ working conditions. SPOG nonetheless filed a ULP with PERC when the City Council passed legislation that I sponsored, allowing OPARB to review unredacted files.

PERC was set up by the State to protect the rights of public employees. Its task is first and foremost to look at contracts to assure that those rights are observed. The adoption of mechanisms for civilian oversight of police is a relatively recent phenomenon across the nation in the past ten years. What I believe we have here is a clash between an established system of protecting employee rights from abuse from management and establishing a new system to protecting citizens’ civil rights from abuse from police officers. PERC was never intended to review nor weigh the importance of this second area of concern. Consequently their limited track record is focused on whether a government agency needs to bargain some change in the “working environment” without much consideration as to whether it is “a mandatory subject of bargaining”.

This is exactly what happened when the PERC Examiner made the ruling that voided ordinance 122126 which SPOG refers to as the “Licata” ordinance, and which I gladly acknowledge as an  a honorable recognition. PERC further ordered the City to purge all OPARB “findings” based on unredacted files and to return all unredacted files back to the OPA.

The PERC Examiner’s unfamiliarity with our system shows through in this order since OPARB does not make “findings” on individual cases but rather makes general policy recommendations. Consequently, there are no OPARB “findings” to purge. I see the Examiner’s language as a tell-tale sign that PERC may be unprepared to acknowledge the need to protect civil rights through civilian oversight mechanisms.

The City Attorney makes the decision of whether to appeal this Examiner’s decision directly to the three-member PERC. He will make that decision in consultation with the Mayor and the City Council. The City has until February 12, 2008, to appeal the examiner’s order to the Commission.  If the City appeals the decision, the order does not become final and we are not bound by it until the Commission rules.

I believe that the City should appeal the decision. It may also be necessary for the City to appeal a final PERC decision to the Superior Court if PERC proves to be incapable of weighing public concerns that go beyond those of the police guild’s membership.

The struggle that goes on in Seattle between the Police Guild and the City in defining a workable and fair citizen oversight mechanism is one that is taking place in city after city across the U.S. At a recent conference of the National Association of Civilian Oversight of Law Enforcement (NACOLE), a speaker noted that European police unions were the easiest to work with on establishing police accountability functions; while Canadian police unions were more difficult; and that those in the U.S. were the hardest. If true, that would mean where unions have the most political influence and the best compensation packages, the acceptance of civilian oversight is easiest. Perhaps it is so difficult in the U.S. because police unions feel that they have so little of each.

In any case SPOG has filed more ULPs than any other union with the City of Seattle, and their willingness to file them does not seem to be slowing down. SPOG President Rich O’Neill told the Seattle Times that the police guild expects to file another complaint with PERC on another ordinance (122513) that I sponsored and that was passed unanimously by the Council. It requires that the Chief of Police and the OPA Director provide written explanations when they disagree on the final disposition of a complaint investigation, and to require that the OPA Director provide a written explanation when his or her recommendation to sustain a misconduct complaint results in no discipline because the complaint investigation was not completed within the time period specified in the applicable union contract.

SPOG’s attitude has been consistent. They insist on bargaining almost any oversight of police officers. But they have also consistently opposed such measures – although a recent quote in the Seattle P.I. from O’Neill suggests that if their union receives a high enough payment then civilians can have an oversight function to promote greater police accountability:

“I’m not saying it’s impossible to get it. All I’m saying is let’s see how serious they are about wanting it.”

Which brings this discussion back to the bargaining table or the courts to determine: “What is a mandatory subject of bargaining?” That is what this fight is about in legal terms. In practical terms it’s about protecting civilians from police abuse and promoting fair and accountable policing in a manner that is respects employee rights.

I will continue this pursuit and I hope the Council, the Mayor and the public does as well.

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