Police discipline: The making of a crisis
by Bill Lucia
Mayor Ed Murray as Police Chief Harry Bailey, center, listens during a press conference Feb. 21. Credit: Mayor's Office/Flickr
First of a two-part series
On Friday Feb. 14, Valentine's Day, Interim Chief of Police Harry C. Bailey scrawled his name in blue ink on the signature line of seven “settlement agreements.” Each one-page document rescinded a misconduct finding against a Seattle police officer.
Bailey’s pen-stroke on one of the agreements ignited the first big controversy of Mayor Ed Murray’s administration. It would unfold the following week. That misconduct case involved officer John Marion, who had threatened to harass local newspaper journalist Dominic Holden. While the imbroglio began with the reversal of Marion’s one-day suspension, questions quickly arose about how the other six cases had moved through the department’s murky disciplinary appeals process — and whether that system needs to be reformed.
More than a month after the misconduct reversals first came to light, some of those questions have remained unanswered. It is also unclear when the mayor and his staff first knew about the seven settlement agreements. Murray, his staff and Bailey have all suggested that responsibility for six of the agreements rests with former interim chief Jim Pugel, who staunchly denies approving the settlements.
Crosscut has reviewed documents, hundreds of emails, memos and statements that preceded and followed Bailey’s decision to sign the agreements. The goal was to take a closer look at some of the events that surrounded the chief’s decision to reverse the findings in these cases of misconduct against the department's officers.
Six of the settlements applied to cases that dated back to 2010 and 2011. The misconduct involved both minor slip-ups and more serious infractions, according to a Jan. 13 memo from the City Attorney’s Office. Two patrol cars, for example, collided while escorting a truckload of streetcar rails. The officers who were driving received one-day suspensions for not reporting the accident immediately. Their sergeant was also reprimanded for failing to fully report the accident. Another case involved an officer who did not detain a trespass suspect, who claimed he was taking medication and thought he'd walked into his sister’s house. There was also a canine officer who lost 15.6 grams of cocaine used to train drug-sniffing dogs, and a sergeant who failed to arrest a domestic violence suspect after an incident “involving a gun and threats.”
The seventh case was the one involving Marion and Holden, a staff member at The Stranger. Last July, Holden photographed Marion and other officers as they were surrounded and talked loudly at a man outside the International District Chinatown transit station. Marion and another officer confronted Holden. "I'll tell you what,” Marion said. “I'm going to come to the Stranger, I'm going to bother you at work and see how you like it.”
Holden filed a complaint against Marion and then wrote about it in The Stranger.
It's worth pausing here to explain how the Seattle Police Department handles misconduct complaints. The Marion case is an example of a complaint that originated from outside the department — with a member of the public. Complaints can also originate internally, from employees or supervisors, or from the Use of Force Review Board, Force Investigations Team or Traffic Collision Investigation Squad. Misconduct includes violations of laws and of police department policies.
After a complaint is filed, the department’s Office of Professional Accountability (OPA) typically spends about two weeks gathering and reviewing evidence before deciding whether to launch a full investigation into the incident. The OPA is staffed by sworn police officers, but run by Pierce Murphy, a civilian director. Murphy and a civilian auditor, retired judge Anne Levinson, review each complaint the OPA receives. According to a recent memo interim-Chief Bailey sent to Levinson, the office investigated 605 complaints from 2011 to 2013.
At the end of each investigation, the OPA director recommends a “finding” to the Chief of Police. If an officer engaged in wrongdoing, the director can recommend either a “training referral” or a “sustained” finding. Training referrals tend to be meted out for lesser infractions. Unlike sustained findings, they are not noted as misconduct in an officer’s personnel record.
In cases where a finding is sustained, the offending officer’s captain and bureau chief review the OPA findings and decide whether to support the OPA director's recommendation. The officer also gets to make his or her case to the chief in a meeting called a “Loudermill hearing.”
It’s then up to the police chief to decide whether or not to go along with the OPA director’s recommendation and how to dole out discipline. Between 2011 and 2013, SPD chiefs issued 128 sustained misconduct findings, according to Bailey. After the chief makes a decision, the department notifies the person who lodged the complaint about the outcome of the case.
At that point the OPA process is finished. But officers have one more chance to change or reverse their misconduct finding.
Police officers can use one of two methods. Both have been criticized for their lack of transparency and documentation.
One option is for the officer or his or her union to appeal the chief’s decision, requesting a hearing before either the Public Safety Civil Service Commission or a Disciplinary Review Board. Officers or their unions can also “grieve” the chief’s decision, arguing that it is a violation of collective bargaining rights.
Thirty-seven cases were appealed or grieved between 2011 and 2013, but only two made it to the commission or the board, according to Bailey. Twenty-four cases were resolved with settlement agreements like the ones Bailey signed in mid-February, 10 cases are still pending and one employee resigned.
Information in a spreadsheet attached to Bailey's memo to Levinson shows that six of the cases appealed to the Public Safety Civil Service Commission or a Disciplinary Review Board ended with settlements that changed sustained findings to training referrals.
Sixteen of the 37 appealed cases were grievances, according to Bailey's memo. Thirteen of those grieved cases were settled. In eight settlements, the department and the union agreed to reverse sustained misconduct findings. At least two of the settlements Bailey signed arose from grievances.
In total 14 of the 24 settlements reversed misconduct findings, saying they were unfounded, or changing them to training referrals. When an appeal or grievance results in a reversed disciplinary finding, the department is not required to notify the civilian complainants in the case. Any record of misconduct is removed from the officer’s personnel record.
Information about how these settlements are negotiated is scant. “It is not clear that there are any clearly defined criteria for which cases should be settled and which should not,” Mayor Murray's police consultant, Bernard Melekian, wrote in a March 14 review. Murray asked Melekian to write the review after the media and the City Council learned of the seven disciplinary reversals.
The mayor has since asked Melekian, a former Pasadena, Calif. police chief, to come up with a "work plan" that includes recommendations for reforming the complaint system.
In comments to the City Council last month, former Seattle Police Officer’s Guild President Rich O’Neil defended the settlement process, arguing that labor arbitration hearings were costly and time consuming for the city and the union. “Every single chief of police in my 34 years on SPD,” he said, “has settled grievances and discipline appeals prior to an actual arbitration hearing.”
Until the fracas erupted over Bailey and the seven reversed misconduct cases, the City Council did not know sustained findings were being overturned, according to Councilmember Nick Licata, who is concerned that the appeals and grievances undermine the OPA process. “It’s unfortunate,” he said, “that we take those [OPA] outcomes and treat them as bargaining chips if that’s what’s happening.”
Last December, OPA auditor Levinson in her semi-annual report cautioned that a "pattern of overturned or lessened discipline can erode the deterrent value of the disciplinary process and have a corrosive effect on public trust and confidence.” Levinson is now gathering information for a forthcoming report that will look at disciplinary appeals and grievances.
Six of the settlements Bailey signed emerged on Sunday, Sept. 15 2013, according to Melekian. Police and union officials met to review 16 appealed or grieved misconduct cases. In his review, Melekian said that the mediation meeting took place “under the direction of interim chief Jim Pugel” and “the decision was made that six of these cases should be settled.”
City Council members Licata, Bruce Harrell and Mike O'Brien in a March 25 memo pressed Melekian on his vague language.
“You do not say who was at the meeting,” the memo states. “Nor do you say who made the decision” that the cases be settled.
“We infer from this that Chief Pugel was neither at the meeting, nor did he make the decision to settle those cases,” the memo continued. “Is this correct?”
Melekian replied in writing the next day: “Whether Chief Pugel physically attended the meeting, I cannot say.”
According to sources familiar with the matter, Jim Pugel was not present at the mediation meeting, but assistant chief Nick Metz, along with other department staff, was.
Crosscut sent Metz a list of questions about the meeting through a police department spokesperson on Wednesday morning. Later in the day, the spokesperson replied: “The questions and responses are at the Mayor’s office. It’s out of our hands at this point.” The mayor's office did not respond.
Pugel did not reply to a request for comment about the meeting and the settlements. But he did discuss the cases in a written statement sent originally to The Seattle Times in mid-March. “It is true that the Union proposed lessening or even eliminating some discipline,” he wrote. “But I concluded the proposal was not in the best interest of the City, or the Seattle community”
Since the controversy surrounding the seven settlement agreements began, Murray, his staff and Bailey have indicated that Pugel played some role in overturning disciplinary findings for the six officers involved in the older cases. “Six cases in consultation with the City Attorney’s Office were already decided by the previous chief for settlement before January of this year,” Murray said at a hastily called 5 p.m. press conference on Friday, Feb. 21, one day after news of the Marion settlement began appearing in media reports. “The current chief Bailey had signed off on a decision that was made as a result of a day-long process that involved our predecessors.”
Pugel disagrees, insisting in his statement: “Any claim that I ‘tentatively’ or otherwise reversed any of the disciplinary decisions that I made, before the current Interim-Chief was appointed, is not true.”
Neither the mayor’s office, Melekian nor the police department has produced evidence to show that Pugel gave any sort of approval for the settlements. “If the interim-Chief, the Mayor’s staff or their investigator wanted to know whether I settled or retracted discipline decisions, they could have asked me,” Pugel said in his statement. “To this day none of them have contacted me.”
In response to questions from Crosscut this week Bailey continued to imply that Pugel was involved in brokering the settlements. “Our legal adviser indicated he briefed Pugel,” Bailey said in an email. “It would be very unusual for such cases to be proposed for settlement without the chief’s concurrence.”
Again, Pugel disagrees. “I did not approve any settlements,” he said in his statement. “There would have been a record.”
At least one other disciplinary settlement took place without a clear paper trail in recent years. Asked for information about all misconduct findings the department reversed between Jan. 1, 2012 and Feb. 25, 2014, the City Attorney’s office provided 12 documents. Eleven were settlement agreements clearly signed by police chiefs, union representatives and employees. The other settlement was confirmed through a string of emails, even though department and union officials could not find any written records.
The series of emails was exchanged between the police department’s legal advisor, Rennison Bispham, former Seattle Police Officer’s Guild president O’Neil and Assistant Chief Metz in early February 2012.
Bispham to O’Neil: “Did you ever get anything in writing about Smith’s settlement?”
O'Neil: “Yes your email.”
Bispham: “When you have a chance can you just forward it back my way? I cannot seem to find it anywhere I would usually keep such things.”
O’Neil: “I can’t seem to locate it either. On or about 1-18-12 D/Chief Metz informed me by phone call that he had spoken to the Chief and they decided to change Ofc Eric Smith’s finding from Sustained to SI-Training Referral.”
Bispham forwards O’Neil’s email to Metz, asking: “Accurate?”
Bispham then instructs a legal assistant to remove the "DAR," or disciplinary action report from Smith’s file.
Seven of the 12 agreements Crosscut received from the City Attorney’s office were the ones Bailey signed. Two were signed by former police chief John Diaz. Two were approved under Pugel’s watch. Assistant Chief Clark Kimerer signed one of those agreements last July. Pugel himself signed the other one last October, reversing an officer’s 12-day suspension.
Pugel took over as interim chief in April 2013. He had expressed interest in the permanent job. When Murray took office in January he said that finding a permanent police chief and moving forward with the city’s federally mandated police reforms were among his top priorities. Only eight days into his term, Murray announced that Bailey would replace Pugel. A former assistant chief, Bailey had also been Seattle Police Officer's Guild vice president in the 1990s. He came out of retirement to take the interim position.
The mayor explained that moving Pugel to the rank of assistant chief would eliminate any conflicts of interest that might arise if the 31-year police department veteran did choose to apply for the permanent post. But in the weeks that followed, according to people familiar with the matter, Bailey gave Pugel an ultimatum: Step down to the rank of captain, or retire. Pugel retired on Monday.
Last November when he was still serving as chief, Pugel had demoted Metz and Dick Reid, another assistant chief, to the rank of captain. The demotions followed a critical report from the monitor who is overseeing the federal police reforms. The report said that the department’s top-ranking officers weren't moving the reform process along quickly enough.
In one of his first moves as interim chief, Bailey returned Metz to his old rank and placed him in charge of the department’s Field Support Bureau. That bureau oversees computer technology and personnel issues considered integral to the federal reforms.
“My intent was to clean up and resolve lingering disciplinary cases so that a new permanent chief could focus on moving forward with reform,” Bailey said when asked this week why he did not leave the settlements for the next permanent chief to sign. “They simply needed to be resolved for everyone involved.”
After the Sept. 15, 2013 mediation meeting, the City Attorney’s Office reviewed the cases that Bailey would eventually reverse. One of the cases was the patrol car collision, which involved two cops. So there was actually the possibility of seven officers getting disciplinary changes.
The City Attorney’s Office did not review the case involving officer John Marion and Dominic Holden. The City Attorney’s Office sent Bispham, the police department’s legal advisor, a memo dated Jan. 13. According to Melekian, the memo was meant to provide legal input about the possible settlements, not formal recommendations.
For the two officers involved in the patrol car collision, the canine officer who lost the cocaine and the officer who released the medicated trespass suspect, the City Attorney’s Office staff said the department should “consider” downgrading misconduct findings to training referrals. They said a training referral was “harder to justify” for the sergeant who improperly filed the report about the patrol car accident. For the officer who did not arrest the domestic violence suspect, the staff said a referral was “difficult to justify.”
The memo did not recommend changing the finding in a sexual harassment case that involved an officer who had shown a photo of himself in bodybuilding briefs to a co-worker and talked about his sex life to a civilian employee.
In his email answering questions from Crosscut, Bailey indicated that he saw the memo from the City Attorney's office as a nod of approval for the settlement agreements. The memo “was presented to me with the understanding that the previous administration had agreed to the settlements with concurrence from the [City Attorney’s Office],” he said.
On Jan. 17, four days after Bispham received the City Attorney’s Office memo, visitor logs show that former Seattle Police Officer’s Guild president Rich O’Neil was at the mayor’s office. The sheets have no place for noting the purpose of a visit. The Mayor’s Office did not reply to questions about whether Murray or his staff discussed the settlement agreements during O’Neil’s visit.
(Updated April 3, 5:30 p.m. – After this story was published Murray's communications director, Jeff Reading provided additional responses to some of Crosscut's questions. According to Reading, the mayor did meet with Rich O’Neil on Jan. 17, but not about the settled cases.)
The union leader would sign his name on the agreements several weeks later on Feb. 11.
Officers with union ties also visited Murray’s office on Feb. 13. Visitors logs show that Eric Sano, president of the Seattle Police Managers Association and detective Ron Smith, who became president of the guild in late February, both signed in at 3:55 p.m. The Police Managers Association represents captains and lieutenants. All the officers in the settlements were lower ranking officers. Both Sano and Smith also serve on Murray's police chief search committee. Murray’s office did not reply to questions about whether the settlement agreements were discussed during this visit. Smith did not return an email asking for comment on what was discussed.
(Updated April 3, 5:30 p.m. – Reading said the mayor did not meet with Sano or Smith on Feb. 13, but he did not say who the officers met with or what they discussed.)
On Feb. 14, the day after Sano and Smith visited the mayor's office, Bailey signed six settlement agreements that had originated in the Sept. 15, 2013 mediation meeting. He did not sign an agreement for the officer involved in the sexual harassment case that the City Attorney's Office had reviewed. After Bailey approved the agreements, Bispham, the legal advisor presented him with a seventh agreement — for John Marion, the subject of Dominic Holden's complaint. The settlement would change the sustained finding in Marion's case — which was accompanied by a one-day suspension — to a training referral.
In his review, Melekian wrote: "It was the opinion of the Legal Advisor that this case should be settled as well."
The following Thursday, Feb. 20, news of Marion's disciplinary reversal appeared in media reports and on Facebook.
A mayor's office spokesperson said on Tuesday that Murray did not know about the seven settlement agreements until Friday, Feb. 21. "The Mayor’s special advisor on public safety may have been aware earlier," the spokesperson said, "but she is currently on vacation so I cannot be specific about that."
Records obtained through a public disclosure request show that the mayor was looped into at least two staff emails about the fallout from the Marion case on Thursday Feb. 20. One email had the subject line: "Bailey's reversal of discipline."
"Here’s what Dom just posted about the disciplinary action on Marion," Communications Director Jeff Reading wrote in an email to the mayor, Bailey and Tina Podlodowski, Murray's senior policy advisor on police reform. A Facebook post written by Holden about Marion's disciplinary reversal is then pasted in the body of the message.
The disclosure request did not return any emails sent by Murray on Feb. 20. But Crosscut pointed out the other emails to the mayor's office spokesperson and asked her to verify that Murray did not know about the settlement agreements before Feb. 21. She did not reply.
(Updated April 3, 5:30 p.m. – The Mayor became aware of the Marion settlement, Reading said, on Feb. 20 and learned about the other six settlements the next day after an inquiry from The Seattle Times' Steve Miletich. Reading was unable to confirm when Murray's staff first knew about the settlements.)
Podlodowski, in another Feb. 20 email, defended Bailey's decision to rescind Marion's sustained misconduct finding.
"Officer could have taken one day suspension as a vacation day and instead is being retrained and going to all the roll calls at his precinct to explain what he did wrong and use as a teaching moment for other officers," she said.
That outcome, she continued, is "far more powerful and effective and reform minded — no one is getting a 'pass here.'"â¨â¨â¨â¨
Next: The mayor's office moves to quell the uproar.
Correction: An earlier version of this story misstated the total number of reversed misconduct findings between 2011 and 2013. The number of reversed cases was 14 not 32.
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