A murky appeal procedure is creating flaws in the system used to take disciplinary action against cops accused of misconduct, Seattle City Council members and Mayor’s Office staff indicated on Wednesday.
The appeals are tacked onto the end of a process involving the department’s Office of Professional Accountability. That office handles investigations into misconduct complaints. At the end of each investigation, its civilian director recommends “findings” to the Chief of Police, who then decides whether to discipline the officer. The appeal gives cops an avenue to get their finding reversed after the OPA process is completed. As a result of getting the finding changed, the misconduct is not noted in their records.
Deputy Mayor Hyeok Kim told councilmembers that Bernard Melekian, a law enforcement consultant who advises Mayor Ed Murray, would oversee a broad review of the accountability system that guides complaints investigations and appeals.
Kim, Interim Chief of Police Harry Bailey and City Attorney Peter Holmes were among the high level city staff at a special meeting of the Public Safety, Civil Rights and Technology Committee on Wednesday. The meeting was the latest chapter in a simmering controversy that began last week over Bailey’s choice to change disciplinary action against a cop who threatened to harass a journalist last year.
Along with the case involving the journalist, Bailey reversed misconduct findings for six other officers. Those reversals will now be put on hold until Melekian and his team look into each case. The Mayor and Bailey have said the six reversals were worked out during former interim chief Jim Pugel’s tenure. Bailey, Murray has said, merely signed off on the reversals. But on Wednesday the Mayor’s staff said there was no paper trail to indicate when exactly the decision to reverse the disciplinary decisions took place.
The lack of documentation in the six cases “gave us pause and worry,” Kim said.
Councilmember Nick Licata pointed out that the council does not have information about the total number of misconduct cases that have been reversed. “We don’t know whether it’s a few, we don’t know if it’s half of them, we don’t know if it’s the majority of them,” he said.
Tina Podlodowski, Murray’s police adviser, noted that 85 percent of Seattle police officers have never received any complaints. A former councilmember, Podlodowski said during the meeting that she wrote the ordinance that created the current OPA process.
The fracas over the reversed cases has spotlighted the option for cops to appeal OPA findings. “It’s really corrupted the intent of OPA to be transparent,” Licata said. “We don’t know how many decisions have been, basically, negotiated away without the knowledge of either OPA or the council.”
The source of Licata's concerns are embedded in a series of steps that unfold after a complaint is filed. If an investigation determines that an officer engaged in wrongdoing, OPA’s civilian director can recommend either a “training referral” or “sustained” finding to the Chief of Police. A training referral typically denotes a lesser slip-up and unlike a sustained finding, does not show up as misconduct in an officer’s personnel record.
Between 2010 and 2012 the department received about 1,700 complaints. OPA chose to investigate around 600, of which 72 had sustained findings.
When the chief decides whether or not to go along with the director’s recommendation the OPA process is complete. But if the chief imposes any kind of discipline on the officer, they or their union can request a hearing with the Public Safety Civil Service Commission or the Disciplinary Review Board.
Prior to the appeal hearing, the department and the officer can reach a “settlement agreement.” These agreements are what Bailey signed-off on in the seven cases that surfaced last week. In addition to the appeal process, police unions can seek to change sustained findings through arbitration, by challenging, or "grieving," the disciplinary action as a collective bargaining agreement violation.
Chiefs have commonly used settlement agreements to avoid costly and time-consuming appeal hearings, Seattle Police Officer’s Guild President Lt. Rich O’Neil said during his public comments on Wednesday. On his last day in the position, after eight years as head of the union, he vigorously defended Bailey and the appeals.
“The chief of police alone has the authority to issue discipline and may change a sustained OPA finding after listening to the officer,” O’Neil said. “Let’s keep in mind just because the OPA recommends a particular finding that decision is not infallible.”
“Most of the time there is no appeal,” he added.
O'Neil also said the controversey was about more than the reversed cases.
"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 said, without clarifying who he was referring to. "If they want to run the police department, let them apply for the job."
Committee chair Bruce Harrell welcomed Melekian’s review but was also circumspect about piling more recommendations onto those already in play for the department, which is undergoing a federally mandated reform process. “We’re adding another layer,” he said. “We have recommendations coming out of our ears.”
Earlier this year, Harrell said he backed most of the recommendations in a semi-annual report issued by retired judge Anne Levinson, OPA’s civilian auditor. Among her suggestions was assessing past disciplinary decisions that were changed through labor arbitration.
"A pattern of overturned or lessened discipline can erode the deterrent value of the disciplinary process," Levinson wrote, "and have a corrosive effect on public trust and confidence."