Seattle Mayor Greg Nickels may come to regret the high quality of the people he named to the Mayor's Police Accountability Review Panel, which took more testimony at a meeting at City Hall this past Monday, Aug. 20. These folks look capable of prying the well-guarded truth out of the people involved in oversight of police behavior. Whether the system they are scrutinizing will be changed much is another question. It appears to be broken, but not in ways that the panel, or this mayor or chief, can fix.
The cat-and-mouse questioning almost needed a simultaneous translation to follow. Chief Gil Kerlikowske, first up before the panel, was guarded and moderately defensive. Asked by former mayor Norm Rice if the chief had ever recommended to the mayor any improvements to the oversight policies, or had any to offer now, Kerlikowske was very non-committal, suggesting that any such information would have to be pried out of him. He said there was "some concern" about the quality of officers assigned to the Office of Professional Accountability (OPA), seemed slightly open to extending the 180-day cutoff for completing investigations (before they are automatically dismissed), and seemed open to a slight modification of the present system, whereby the chief does not have to put in writing his reasons for overturning recommendations for disciplining wayward officers. In that list, one probably saw the tweaks to the system that the panel will recommend.
For the most part, the chief seems to be sticking to his position that Seattle has a system that is among the best in the nation, that controversial cases are few, and that enough is enough. "The Seattle Police Department has more civilian oversight than any department in the United States," Kerlikowske declared in a written statement. He looks like he will only yield a few inches of ground, grudgingly. The panel was polite but seemed put off by his inflexibility.
The next person to address the panel, former OPA director Sam Pailca, was much more forthcoming. Pailca held the job, as a civilian in charge of the police investigative team (about 12 sergeants) reporting the the chief, for six difficult years. She likes the present system, for several reasons. It keeps the investigations in the police department, she said, noting that the work is "very complex, very technical, and with many nuances that would be lost on civilians." Having the civilian director on scene, full time, gives her or him real access to information, as well as "a healthy degree of political insulation," since the director serves a fixed term and can only be removed by a vote of the City Council. And she admired the checks and balances of the three tiers of review – the OPA itself, the OPA auditor (a civilian lawyer), and the OPA Review Board appointed by the council.
Then she turned, gingerly, to "what didn't work." The office has to compete with police officers for budget, and she says "we lost every time." (The City Council sometimes restored cut positions.) She can't decide what records should be released, and that costs the office in public trust. Officers in the OPA serve for only two years, so there isn't enough time to train them well. The OPA director is pretty much isolated, not welcome in making policy suggestions, and hears little back about what happens as cases move beyond the office to higher-up deliberations (from which the director is excluded).
What became clear, under questioning from the panel, is that officers under investigation by the OPA say as little as possible, sometimes holding back witnesses for the final hearing, known as a Loudermill hearing before the chief, at which additional facts and mitigating circumstances are brought up, and the OPA is not represented at that stage to refute them. Kate Pflaumer, the current OPA auditor and a former U.S. attorney, was particularly unhappy about this situation, saying it provided an incentive for officers to hold back evidence and then give it to the chief at the last minute, with no one to contest it.
For those who suspect that the Seattle Police do not have an effective way to remove rogue officers, because the impressive-seeming accountability system can be gamed in this (and other) ways, the Pailca testimony seemed to provide a glimpse of just that situation. Whether it is commonly or rarely abused in this way will become a key question. The system, said Pailca, "has fundamental limitations, and these are more a function of leadership and culture than of collective bargaining constraints with the [Seattle Police Officers] Guild." Whose leadership? That was not clear, though it would seem to be failures of the chief and perhaps Mayor Nickels and the council.
Pailca and Pflaumer are both impressive figures, deeply informed about how the system works. Whether they will reveal much more, at later hearings, is probably the critical factor in whether the panel decides to recommend deeper surgery for the present system.
Much less is known by the final people to testify on Monday, the three-member OPA Review Board. This is the group that precipitated the whole investigation by their allegations of the chief's interfering with an investigation of a controversial drug arrest. This board has seethed with frustration – ignored by the mayor (who considers them a creature of the council and therefore unworthy of his regard) and stonewalled by the cops. The review board's chair, Peter Holmes, gave rambling testimony, at one point prompting former Mayor Rice (no fan of civilian review boards when he was mayor) to ask impatiently, "What are you telling me?" It was never clear whether the OPA Review Board wants to modify the system or scrap it.
The drama will go on for a few more months and a few more hearings. Making matters more complicated, the panel is having ongoing negotiations with the City Attorney's Office over access to specific cases and whether its recommendations can even be enacted by the city, if the Police Guild declines to open up contract negotiations to include these issues in the present contract. An air of frustration hangs over the panel, particularly with its high-powered members not wanting to waste time in giving birth to tiny tweaks.
Yet, modest tweaks are probably what will happen. The Seattle system, on paper, does seem to be about as good as it gets. As with campaign finance reform, you can keep passing feel-better legilslation to soothe the anger of certain aggrieved parties, but it's almost always possible to wriggle out of the latest rules and regulations. For real change (assuming that it is needed), Kerlikowske and Nickels would have to possess far stiffer backbones in standing up to the police union. That seems unlikely in such a pro-labor town.
Kerlikowske, after his career-damaging experience in the Mardi Gras riots, where he held back the WTO-wary troops, suffered a vote of no-confidence from the cops. He has struck many since that vote as being a very chastened chief, too willing to do the bidding of the guild. (He's hardly alone in this. The late King County Prosecutor Norm Maleng was also known as "the cops' friend.") Police really do hold the trump cards in these issues. They can engage in "de-policing" (responding to few calls), zero-tolerance policing (issuing citations for every minor infraction), votes of no-confidence, or even recall elections (as was tried against Mayor Wes Uhlman). No mayor wants to initiate such hostilities, and the City Council, aside from Nick Licata, is likewise diving for cover on these issues.
The result, here as in many other cities, is a no-win dilemma. Instituting elaborate civilian oversight, as Seattle finally did in 2001, raises the hopes of the aggrieved citizenry, particularly minorities and the poor, that justice for misbehaving police officers will be swift and sharp, maybe including a few public hangings. But of course it doesn't work out that way. You end up, as we have, with a system that promises far more than it appears to deliver, frustrates the public and makes it more suspicious, and provokes the police into finding all kinds of clever and legalistic finesses of the system.
Maybe we'd all have been better off not knowing what this smart panel is learning.