Police discipline: Trying to quell a crisis
by Bill Lucia
Mayor Ed Murray and Interim Police Chief Harry Bailey at a Feb. 21 press conference recorded by Seattle Channel.
Second of a two-part series
As Mayor Ed Murray has learned more about the Seattle Police Department his views about hiring a new police chief have changed. "I would not have said in the campaign that we could consider an inside person [for the job], knowing what I know now,” Murray said in an interview this week.
One of the mayor's first lessons about the department began unfolding in mid-February after interim police chief Harry C. Bailey signed so-called "settlement agreements" which rescinded misconduct findings for seven Seattle police officers. The fallout over those disciplinary cases gave Murray and his staff a taste of the police department's byzantine policies and politics.
Murray took office with the search for a new chief and the city’s federally mandated police reforms at the top of his to-do list. The controversy over the disciplinary cases, which has ties to both items, hit the mayor less than two months into his term.
The seven settled cases surfaced through a process that allows officers and their unions to contest disciplinary findings handed down by the Chief of Police in misconduct cases. These appeals and "grievances" take place outside of the department’s Office of Professional Accountability, which handles investigations into misconduct complaints. A successful challenge by an officer or their union results in a settlement agreement, which can either reduce or eliminate the original discipline the chief has imposed in the case.
When Bailey signed settlement agreements for seven officers in mid-February he downgraded their “sustained” findings to less severe “training referrals.” (A sustained finding is imposed when an officer is found to have engaged in misconduct, and can result in a reprimand, a suspension, a demotion or firing. A training referral is typically imposed for lesser infractions, or when an officer violates a department policy unintentionally.)
One of the seven cases involved The Stranger editor Dominic Holden and officer John Marion, who, according to the Mayor's Office, has an otherwise clean record. The publicity around the Marion case shed light on the other six settlement agreements Bailey had signed. Those agreements stemmed from older misconduct cases involving a range of department policy violations — a collision between two patrol cars, a lost container of cocaine, an officer who failed to make an arrest in an alleged domestic violence incident, and another who did not detain a trespassing suspect.
Mayor Ed Murray and Interim Police Chief Harry Bailey at a Feb. 21 press conference recorded by Seattle Channel.
After news of the agreements leaked, the Mayor’s Office moved assertively to quell the emerging controversy. One of their first steps was to call a press conference late on Friday, Feb. 21. In his remarks that day, Murray supported Bailey’s decision to change the misconduct findings. But the following day, the mayor reconsidered. After a meeting at his home with key staff members, Murray decided that the disciplinary finding in the Marion case should be reinstated. His staff and consultants worked through the weekend to craft a statement that Bailey read the following Monday.
Emails obtained through a public disclosure request, and an interview with the mayor, offer a glimpse into this turbulent early chapter in his term. Crosscut has also pressed the police department and the Mayor’s Office to clarify conflicting details about the rescinded misconduct findings, particularly about the role of former interim Chief of Police Jim Pugel in the six older settlement agreements. Some of the answers they provided offer new insight into the events surrounding the cases. But gaps remain, particularly in how exactly those six cases moved through the system that allows officers and their unions to challenge disciplinary findings.
The mayor and other officials have since criticized that process and called for reforms. “It's an issue,” Murray said, “I now understand to be extremely flawed.”
Altering the system that led to the settlement agreements promises to be arduous. The mayor believes it could require a new ordinance, or changes to the city's bargaining agreement with the hard-nosed Seattle Police Officer's Guild. Murray also questions whether he has enough staff to deal with the federal police reforms on top of Seattle's day-to-day public safety issues.
The Mayor’s Office waded into the police discipline fray on Thursday Feb. 20 when a staffer spotted a Facebook post by Holden, the journalist complainant in the case against officer Marion. “I just got a call from Seattle Times reporter Steve Miletich confirming a rumor I'd heard," wrote Holden. "Seattle police chief Harry Bailey just overturned the disciplinary one-day suspension for Officer John Marion, the cop who threatened to harass me at work.”
The harassment incident Holden describes in his post happened last July near the International District transit station, shortly after he photographed a group of police officers surrounding and, according to Holden, "speaking loudly" to a man.
“Chief Bailey,” Holden wrote, “is demonstrating that he's putting the agenda of bad cops and the conservative police union over citizens who have been mistreated by police.”
After seeing the post, Mayor’s Office communications director, Jeff Reading, alerted Murray. The mayor says this was the first time he learned that Bailey had reversed the disciplinary finding in the Marion case.
Tina Podlodowski, Murray’s public safety advisor, panned Holden’s post. “Sadly he is just plain wrong,” she wrote in an email with unspecified recipients. Later in the email, she defended Bailey’s decision to downgrade the discipline in Marion’s case, saying retraining and using the incident as a teaching moment for other officers was “far more powerful and effective and reform minded” than the original one-day suspension that accompanied the sustained finding.
Murray would later make similar arguments about why that change in discipline made sense.
Podlodowski did not note that the switch to a training referral would also remove any record of the original sustained misconduct finding from Officer Marion’s personnel file. Currently on leave due to health issues, she was unavailable to provide comment for this story.
The following day, Friday Feb. 21, Pierce Murphy, the civilian director of the police department’s Office of Professional Accountability emailed Bailey and Podlodowski. He said that Seattle Times reporter Miletich and Holden had asked if his office knew of any changed findings in closed misconduct cases.
“Because transparency and independence are crucial to OPA’s mission I felt obligated to answer this question,” Murphy wrote. He told the two journalists that between Tuesday and Wednesday of that week his office received notification that seven misconduct findings had been changed to “something other than sustained.”
Bailey signed each of the seven settlement agreements for these cases on Feb. 14. Seattle Police Officer’s Guild President Rich O’Neil signed the one-page documents three days earlier on Feb. 11.
The mayor said this week that the first time he learned of the six older cases was on that Friday, Feb. 21. But neither Murray, nor his communications director, Reading, could confirm whether any Mayor’s Office staff knew about the six settlements before that time.
On Feb. 13, one day before Bailey signed the settlement agreements, Captain Eric Sano, president of the Seattle Police Managers Association and detective Ron Smith, who became president of the police officer's guild in late February, both signed in to the Mayor's Office, according to visitor logs. The Managers Association represents captains and lieutenants. All the officers in the settled cases were lower ranking. Both Sano and Smith also serve on Murray's police chief search committee. Asked twice last week, the Mayor's Office said that the two officers did not meet with the mayor that day, but could not confirm who Sano and Smith did meet with or whether they discussed the disciplinary cases.
Chief Bailey takes some of the questions at a press conference with the mayor Mayor's Flickr Account
At 4:18 p.m. that Friday the Mayor’s Office announced a press conference to "discuss disciplinary decisions in the Seattle Police Department.” It was held 42 minutes later (at 5 p.m.) in a briefing room on the seventh floor of City Hall.
Flanked by Bailey, Murray delivered a prepared statement that lasted about four minutes. Before delving into the details of the misconduct cases, Murray said, “I think it’s important to remember that this story originated with a leak, which is the first mistake made.” He then indicated that his administration had inherited six of the rescinded misconduct cases, which “were already decided by the previous chief for settlement.” Bailey, he said, had simply "signed-off on a decision that was made as a result of a day-long process that involved our predecessors.”
The mayor then defended Bailey’s decision in the Marion case. Echoing earlier emails sent by Podlodowski, the mayor said that “a day of training and education” might be considered a “lesser punishment under the current legal framework.” But, he said, Chief Bailey believed, and he agreed, that it was a more effective option than the one-day suspension that had accompanied the original sustained misconduct finding. An officer, he suggested, could easily have turned that unpaid suspension into a paid vacation day.
Dominic Holden was at the press conference. After the Mayor wrapped up his statement, Holden was the first journalist to chime in with a question. “Why,” he asked, “would you need to change the suspension discipline in order to provide more training?”
Bailey stepped up to the microphone. “It was my decision to make that change,” the chief replied. “I thought that, again, having the officer go out and talk to his fellow officers about what he could do better, and to abort those kinds of situations made a lot more sense than not doing that or just taking a day off.”
“That doesn’t really answer the question,” Holden shot back. “Is there anything that prevents you from saying—”
“None, Dominic, none,” the mayor snapped. “The point is what is the best way to proceed with a disciplinary action. Is it always a day off? Is it always a day off with pay? Is that discipline? I think that’s a point you’ve ignored in your stories.”
Bailey said that he thought training made a lot more sense in the Marion case. But Marion’s training was already underway when Bailey took the department's helm in January. According to a memo sent to chief Bailey from a lieutenant in the south precinct on March 7, “Officer Marion immediately volunteered to do presentations for his fellow officers," after the Holden incident, which took place on July 30, 2013.
Marion's roughly 10-minute presentations took place during officer roll calls in December 2013, January and February, according to the lieutenant's memo. Marion started each presentation with a photo of the 1999 World Trade Organization protests in Seattle and also discussed his own run-in with Holden. “He admitted that his behavior was not in keeping with SPD standards,” the memo says. “He explained that police interactions could fall under intense public scrutiny and be found on the Internet years later, causing issues for all other officers.”
City Council member Nick Licata wrote a strongly worded letter to Bailey on March 21, after he learned the details of Marion's training regimen. The description of the training, Licata said, raised "concerns about the accuracy of information provided to the Council and the public." Attached to Licata's letter was a list of quotes from the chief, the mayor and the mayor's staff, which Licata said indicated the training would happen in the future, and that it was the result of actions Bailey had taken. (One of the quotes was from Murray's Feb. 21 press conference comments. "[Marion] will have an opportunity to be retrained, to go to roll calls in his precinct to explain what he did wrong and use it as a teaching moment for other officers," the mayor said.)
"I also have concerns," Licata wrote, "about the impact of allowing an officer to effectively choose his or her own punishment and to 'train' others without vetting from the training section."
The Office of Professional Accountability’s civilian auditor, retired Judge Anne Levinson, also drew attention to the rationale that a sustained misconduct finding and training are somehow mutually exclusive. “There is no prohibition against requiring training along with discipline as part of a sustained finding, and therefore no need to rescind a sustained finding in order for training to occur,” she wrote in a review of the department’s disciplinary procedures, which was issued last week.
Asked later in the press conference if all the settlement agreements changed sustained misconduct findings to training referrals, Murray said he didn’t know. Bailey, standing behind him, did not speak up, even though the agreements he had signed clearly stated that each case “shall be reclassified with a finding of Training Referral.”
The only mistake Murray acknowledged during the press conference was that news of the changed misconduct findings had leaked. “I reviewed these decisions, and under the current structure,” he said, “I believe that we have made the right decision.”
Before the end of the following day, Murray’s beliefs about the Marion case would change.
“Who should call Chief Bailey to inform him of the new game plan,” Deputy Mayor Hyeok Kim wrote in an email on Saturday, Feb. 22 at 8:27 p.m. “Does the Mayor need to call him tomorrow?”
The email was sent to Podlodowski, Reading, personnel director Susan Coskey and Deputy Mayor Andrea Riniker, as well as Melekian and Pramila Jayapal, who is helping lead Murray’s police chief search. Also included was Sandeep Kaushik, a political consultant who played a key role in the mayor’s election campaign and helped with his transition into office and Christian Sinderman, another political operative who was involved in Murray’s election effort.
Tina Podlodowski is at the far right listening with Chief Bailey as Mayor Ed Murray talks to the press Feb. 21. Mayor's Flickr Account
The “game plan,” was that Bailey would reinstate the original misconduct finding in the Marion case. Earlier that day the mayor met with his staff members, at his home, to discuss the disciplinary cases. “The Marion decision clearly fell outside of the normal process,” Reading said in a recent email. The mayor, he said, felt comfortable directing Bailey to reinstate the decision because the City Attorney’s Office had not reviewed the case.
City Attorney’s Office staff had reviewed the six other appealed or grieved cases, which were settled by the agreements Bailey signed. But according to a report from Melekian, the office’s intent was only to provide input to police department management, and not to make a recommendation about whether the cases should be approved. A spokesperson for the City Attorney’s Office confirmed that this was the office’s position.
A draft statement for the chief’s announcement was attached to an email Reading sent to the group the next morning, Sunday, Feb 23, around 10 a.m. Bailey was not included as a recipient on the email. Reading asked the group for suggestions and edits. Kaushik sent comments at 11:50 a.m.
Coskey sent an email to Podlodowski and Reading at 11:59 a.m. "Tina and I have been talking with SPD – she will be sending you another draft with their comments working on Sandeep's draft," she wrote. "A couple thoughts off the bat – will want him to say the Conduct totally unacceptable -"
At 1 p.m., Jayapal sent her feedback saying, “here are mine on top of Sandeep’s for the bailey statement.”
“Just sent you something from Bailey,” Podlodowski wrote at 2:42 p.m. The recipients of that email are not identified.
Kaushik sent another round of suggested edits at 4:26 p.m. for "Chief Bailey's version of the statement." His intent was to "bring it in line with the latest developments."
The attached versions of Bailey's statement were not included with the email records the Mayor's Office returned in response to a public disclosure request, so it was not possible to see each person's comments and edits.
Melekian weighed in at 4:51 p.m. It’s unclear if he’s referring to Bailey's statement, or one for the mayor.
“This looks good, but we should also include a listing of Chief Bailey’s accomplishments that have been compressed into a very short period of time,” he wrote. “There is no need to emphasize the apologetic aspects of this case. It represents an unfortunate and unnecessary distraction from the work of the Mayor and of Chief Bailey.”
In a follow up email sent three minutes later Melekian makes a suggestion regarding Holden.
“One other thought; the journalist in this case has stepped over a line of journalistic ethics – he has allowed himself to become the story he is covering,” he wrote. “While we should not attack him on that point, we should find a way to work it into the conversation with other journalists.”
Several weeks later, Melekian would issue a review, which Murray requested, looking at how the department handled the six older disciplinary cases. "There is nothing to indicate that the actions taken in these cases was an attempt to circumvent the disciplinary process," he wrote. "Rather these actions were in keeping with the standard process, however flawed that process might be."
At 6:05 p.m., Reading sent out a copy of the final statement, which he said the group had produced “in consultation with Chief Bailey's team.”
Bailey responded at 6:44 p.m.
“Hi, I like,” he wrote.
Writing from his iPhone about an hour later, Murray commended the group on a job well done. “Very good work on everyone's part,” he wrote. “I am so sorry the good intentions of the chief were slammed. We move on towards reform.”
The chief delivered his statement the following day at Police Headquarters. “Overturning the finding of misconduct was a mistake and sent the wrong message to our officers and the public,” he said. “I deeply regret the confusion and misunderstanding that this matter may have caused and I personally apologize for that.”
Murray also took responsibility for the back-and-forth in the Marion case. “I've admitted this is my mistake and I'll continue to own it,” the mayor said in an interview with Crosscut this week. He still believes that Bailey's decision to reverse the disciplinary finding was well intended and says that the chief is one of the most honest people he knows.
As for any suggestion that Bailey, a former Seattle Police Officer’s Guild vice president, is taking orders from the union, Murray said bluntly: “It's a complete myth.”
A mystery about the rescinded findings remains: Who in the police department originally proposed that the dispositions in the six older cases be changed from sustained findings to training referrals? Murray and Bailey implied that former interim chief Jim Pugel supported settlement agreements that would change the findings. But Pugel disputes this claim in a written statement included in the recent review by OPA's Levinson.
“No, I did not approve nor give direction to anyone to approve a settlement on any of the cases,” the former chief wrote.
Last month, Melekian issued his report that examined how the department handled the six older cases. He referred to a Sept. 15, 2013 mediation meeting that took place “under the direction of the Interim Chief Pugel” where an unidentified group reviewed 16 disciplinary decisions that police officers or their unions had either appealed or grieved.
“The decision was made," wrote Melekian, "that six of these cases should be settled.”
Pugel (shown at right) acknowledges the “September 15 meeting” in his statement, but said that it was a scheduled mediation and he did not attend. “I understand that a representative from the City Attorney/Employment Section, possibly the department legal advisor (Renni Bispham) and [Assistant] Chief [Nick] Metz were present for our ‘side’,” Pugel wrote. “At the end of the day, which was a 5 to 7 hour mediation as I recall, the SPOG [Seattle Police Officers Guild] was unwilling to ‘give’ on anything but still wanted some or all of the cases that concerned them reduced or otherwise mitigated.”
In no uncertain terms, he wrote: “I instructed our ‘side’ to decline.”
Even last week, in an email, Bailey suggested that Pugel was aware of the settlement agreements. “Our legal adviser [Rennison Bispham] indicated he briefed Pugel on these matters,” Bailey wrote, “and it would be very unusual for such cases to be proposed for settlement without the chief’s concurrence.”
Deputy Mayor Kim acknowledged the "lack of documentation" and "transparency" for the six cases during a Feb. 26 City Council hearing. "We have not been able to, to the mayor's satisfaction," she said, "determine at what point during this past fall, the SPD leadership gave clear and concise signals and the manner in which they gave that signal that those settlements ought to be approved."
Crosscut asked the department for more details about the meeting and the settlements.
As it turns out, the meeting in question took place on Sept. 18, 2013, not Sept. 15, according to information provided by police department spokesperson Andrew Garber. (Oddly, Murray initially said at the Feb. 21 press conference that the mediation meeting took place on Sept. 18. The Sept. 15 date emerged later in Melekian's report.) The department confirmed that Assistant Chief Metz and the department’s legal advisor Bispham were present, along with Assistant City Attorney Jennifer Schubert, mediator Ronald Knox and an unspecified representative for the police officers’ guild.
Pugel attended a “preparatory meeting” on Sept. 17, Garber said in an email, and Metz attended the mediation “as his representative.” No agreement was reached at the mediation meeting, according to Garber, not even a tentative agreement.
But in December, somebody in the department asked the City Attorney’s Office to review six of the cases that were discussed in the mediation meeting. Melekian also notes this in his recent report. Neither the department nor Melekian have specified who within the department made the decision to send the cases to the City Attorney’s Office for review. The misconduct findings in six of these cases would eventually be changed by the settlement agreements Bailey signed.
On Jan. 13 the City Attorney’s Office responded with a memo, providing input on the cases. At some point thereafter, somebody in the police department showed Bailey the memo, “with the understanding,” the chief said in an email, “that the previous administration had agreed to the settlements with concurrence from [the City Attorney’s Office].”
The discipline crisis developed less than two months after the mayoral inauguration. Allyce Andrew
In the memo, City Attorney’s Office staff said the department should “consider” changing misconduct findings to training referrals in four of the cases. For two other cases, they said the referrals were “harder to justify” and “difficult to justify.” The memo also recommend against changing the finding in the seventh reviewed case, which involved sexual harassment allegations. The original finding in that case would remain unchanged. Despite the mixed justifications for the other cases, Bailey signed all six settlement agreements.
“Based on the documents presented to me when I took over as interim chief, and my knowledge of the appeals process,” Bailey said, “it was my understanding that the prior administration was willing to settle the cases based on the terms described in the summary.” The chief said he was unaware that Pugel had advised against a request to change the misconduct findings. As for why he did not reach out to his predecessor to discuss the cases, Bailey said: “It was my decision to make.”
“As the new interim chief,” he added, “It was my responsibility.”
If he had known that Pugel opposed the disciplinary changes, Bailey said he would have “reached out” to him to discuss the matter.
How did Murray come to believe that Pugel decided the six cases should be settled? This is, after all, what he said at the Feb. 21 press conference. The mayor said that after a conversation with the police department’s legal advisor, Bispham, he was left with the impression that Pugel endorsed the settlements. The police department did not reply to questions sent on Tuesday asking about what Bispham told Murray.
Murray, Bailey and Pugel are all involved in a police department drama that ended, for now at least, last week, when Pugel retired after 31 years on the force. During his second week in office, Murray announced that Bailey would replace Pugel. The ex-interim chief had expressed interest in the permanent chief position. And at the time, Murray said that moving him to the rank of assistant chief would eliminate any conflicts of interest if he chose to apply. But sources familiar with the matter say that after Bailey took the reins, he gave Pugel an ultimatum to either step down to the rank of captain or retire.
"I do not make those decisions,” the mayor said, when asked about Bailey's involvement in the downward trajectory of Pugel's career. He was also quick to mention that “police reform in 2013 was moving at a glacial pace,” and that the monitor overseeing the federal reforms and U.S. Department of Justice officials have said recently that the process is improving.
“I don't believe Chief Pugel is a victim,” the mayor added.
Going forward, the mayor said that he has the right staff in place to handle the city’s police issues, pointing to Podlodowski’s experience chairing the committee that oversees public safety during her time as a City Council member. But he would like reinforcements. He notes that Podlodowski’s portfolio not only includes the police department, but also the fire department and the Office of Emergency Management. He also said that his office planned to hire a lawyer who would check on information provided by attorneys from city departments and noted that in recent years police department expertise in the City Budget Office has dwindled.
“We have great people up here,” the mayor said. “We don’t have enough people.”
There is an upside, Murray believes, to the recent stir kicked up by the rescinded findings: It has shed light on some of the problems ingrained in the police department’s disciplinary system. “This thing," Murray said, "was waiting to happen at some point.”
Levinson, the OPA auditor, has already outlined a raft of recommendations for improving the process in her recent review. And Melekian is developing a work plan due in late April to reform the system; it's expected to incorporate Levinson’s ideas as well as recommendations from the Community Police Commission, which provides input on the department's reforms.
As Murray noted, changing the disciplinary system will likely involve modifying the city's bargaining agreement with the Seattle Police Officer's Guild. If comments by former union President Rich O'Neil — at the Feb. 26 City Council meeting — are any indication, that will be an uphill battle.
"Who in their right mind will want to apply for the Seattle job if they have to check with eight different people and check the 'political winds' before making a decision on administrative issues?" O'Neil said. "The events of the last few days are nothing but a power grab by some who want to wrestle authority away from the Chief of Police." He added: "If they want to run the police department, let them apply for job."
Photo credits: Nick Licata by Luke McGuff/Flickr. Jim Pugel by John Stang/Crosscut.