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Checking in on the police accountability legislation
09/11/2017 Kevin Schofield
When last I reported on the police accountability legislation, it was firmly stuck in the mud. Time to check in again, as much has happened since then.
In mid-July, US District Court Judge James Robart told both sides that he didn't want to approve the legislation since an undefined portion of it was subject to collective bargaining. He asked for clarification from the City of Seattle as to which parts were subject to bargaining, and which were independent and might be approved now.
Two days later, on July 20, SPMA, the union representing police management, sent a letter to the city identifying the body-cams as an issue requiring collective bargaining and demanding that the city cease and desist from implementing the Mayor's executive order deploying them. On July 24, SPOG, the union representing police officers and sergeants, followed suit with a formal complaint to the state Public Employment Relations Commission over deployment of body cams. That complaint will be heard later this year.
On July 28, Seattle City Attorney Pete Holmes sent a letter to Robart in response to his request for more information on what parts of the legislation are subject to collective bargaining. Here's what Holmes told him: to the extent that the union has the right to assert that any provision is subject to bargaining, and if the city disagrees it requires "case by case adjudication," the entire legislation could potentially be subject to the collective bargaining process. Nevertheless, Holmes provided a list of those provision that the city intends to implement without waiting for collective bargaining, and those it will bargain first.
On August 18, the City submitted a brief that asked Robart to approve the portions of the ordinance that it intends to implement before collective bargaining, i.e. the list they had submitted. Further it suggested that if Robart refuses to do that, he should at least approve the selection and appointment process for the OPA Director and the Inspector General, since those two processes are expected to take several months and delaying the start would substantially delay the rollout of the legislation.
Last Thursday, Robart responded in a written order. He said:
"The court has reviewed the lists but is not reassured," noting that the city admits that no part of the legislation is categorically exempt from collective bargaining and the unions may disagree with the city on which parts are exempt. "Until the collective bargaining process is complete, the court cannot be assured that the Ordinance, as it stands today, is a final product. The court declines to rule on a variant of the Ordinance, but will await the final version that is ultimately implemented following collective bargaining."
However, the judge did not prohibit the city from implementing parts of the ordinance, or from entering into collective bargaining related to the ordinance. He was super clear, though, that he would have the final word, and "the United States Constitution and the right of the City's citizens to have constitutional policing ultimately trumps all other concerns at issue here."
Robart doesn't want to delay more than necessary the implementation of the legislation, and was sympathetic to the city's desire to start the long process of hiring the OPA Director and Inspector General. "Thus, to the extent that the City believes the court's approval is necessary before it can engage in those selection processes, the court grants that approval." However, his approval is conditional: "If these provisions change in any way, as a result of the collective bargaining process or otherwise, the parties must so inform the court and resubmit the provisions to the court for further review."
He went even further: "Indeed the court is willing to review other specific provisions of the Ordinance in the future should the parties believe such review is necessary to keep the reform process moving forward.
Where does that leave the city, and the legislation? It can move forward now with selecting the OPA Director and IG, assuming the unions don't object. But for the moment, everything else is on hold until the collective bargaining process is resolved, since Robart won't give his final approval until after that is done.
Last Friday, the police monitor released another periodic report on SPD's compliance with the consent decree. The question on the forefront of everyone's mind at this point is when the monitor — and eventually Robart — declare that the city is in "full and effective compliance." When that happens, the countdown begins until the consent decree expires. This report summarized the status of each of the areas of analysis, in an attempt to measure how close the department is to reaching that crucial "full and effective compliance" status. Recognizing that in some ways compliance is a journey and a process rather than a specific destination, the monitor has found SPD to be in "initial compliance" in several areas and making "adequate progress" in others. He did, however, identify some areas of concern, including:
The Force Review Board: the board and its processes are still not adequate;
Community confidence is still lacking, and there is a significant disparity between the community's view of the department and SPD staff's view of its relationship with the community;
Use of force: he noted much progress, but was still evaluating the use of force then officers are confronted with someone having a behavioral crisis, and particularly in light of the shooting of Charleena Lyles he has not reached any conclusion yet;
Search and seizure, particularly in disparate impacts on people of color. He is still awaiting analysis of data that has been collected.
So while there has been "a great deal of progress," there is clearly still a distance to go before SPD achieves full and effective compliance and can start to get itself out from under the consent decree.
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