SPD watchdog faults misconduct appeals system

The Office of Professional Accountability auditor proposes improvements for a disciplinary appeals system that has recently come under fire.
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Jim Pugel, the interim chief of police of the Seattle Police Department, meets with the media following a shooting that involved a King County Metro Bus driver on Aug. 12.

The Office of Professional Accountability auditor proposes improvements for a disciplinary appeals system that has recently come under fire.

The city's handling of a recent police department disciplinary decision threatens to damage public trust and create the impression that politics is influencing decisions about officer misconduct. That's one of the findings in a review issued Friday by a Seattle Police Department watchdog.

The review was conducted by retired judge Anne Levinson, who is the civilian auditor for the Office of Profssional Accountability. Her report found problems with a system that police officers and their unions can use to appeal disciplinary decisions in misconduct cases. The system has been criticized for lacking transparency and documentation. It was at the center of an uproar that began in mid-February when interim-Chief of Police Harry C. Bailey signed “settlement agreements” that reversed misconduct findings in seven cases.

The key case involved officer John Marion, who threatened to harass local newspaper journalist Dominic Holden. A settlement Bailey signed for Marion would have rescinded the officer’s one-day suspension and removed any record of misconduct from his personnel file. But after taking public heat for the decision, Bailey reversed the settlement and reinstated the original discipline. Bailey let the other six misconduct reversals stand.

In her review, Levinson said creating the impression that decisions about misconduct cases could be influenced by factors like media attention has the potential to not only erode public trust, but also could cause department employees to question whether the disciplinary system is fair.

Levinson’s report outlines a number of recommendations for improving the disciplinary appeals process that leads to settlement agreements. Among her suggestions: Creating an enforceable timeline for appeals (some of which remain unresolved for years), opening any hearings for disciplinary cases to the public and maintaining better records.

On the issue of recordkeeping, Levnison notes that the department does not enter information about disciplinary appeals into any kind of computer database.

Documentation for the appeals, she said, is “inconsistent, varies from person to person and from case to case, and is often incomplete, without even the basic information included in case files.”

Levinson also recommends routing all appeals to the Public Safety Civil Service Commission.

Officers and their unions can currently appeal cases to either the commission or the city's Disciplinary Review Board. The commission is required under state law and was formed by a city ordinance. The board was created by the city’s collective bargaining agreement with the Seattle Police Officer’s Guild. Both the commission and the board have three voting members. Under the terms of the bargaining agreement, two of the Disciplinary Review Board members must be police department employees.

The city ordinance that created the Public Safety Civil Service Commission says that appointed fire and police department employees must elect one of its members. Levinson recommends changing that rule and installing people with the "necessary expertise" on the panel, including a chairperson who is a city hearing examiner. The examiners conduct impartial administrative hearings for the city.

“Having active members of the Police Department hear disciplinary appeals," she said, "creates a real [sic], and the perception of a conflict of interest and does not reflect the values of fairness and public trust underlying the City’s police accountability system.” 

Levinson also proposes changing the municipal code so that it clearly requires the police department to report changed misconduct findings to the City Council and The Mayor.

The review included a footnoted statement from former interim-Chief of Police Jim Pugel. In the statement, Pugel said that he instructed department officials to decline a union request last year to change misconduct findings in six cases that were later settled by the agreements Bailey signed.

Bailey, Mayor Ed Murray and Bernard Melekian, a consultant who advises the mayor on police issues, have all suggested that Pugel bears responsiblity for those six settlement agreements. Bailey told Crosscut earlier this week that he “signed off” on the cases, and that they were “previously endorsed by my predecessor and city attorneys.”

Settling the cases was discussed by representatives from the police department, the police officer's guild and the City Attorney's Office during a meeting in September 2013 when Pugel was serving as interim-chief, Pugel and others have said. 

"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 said referring to the meeting in the statement given to Levinson.

During the meeting, which lasted five to seven hours, Pugel said the Seattle Police Officer’s Guild “was unwilling to ‘give’ on anything" but still wanted disciplinary findings reduced or "mitigated."

“I instructed our 'side' to decline,” Pugel said.

Information on appeals that Levinson requested from the police department was first sent to the mayor’s office for review and then released publicly. Some of that information was inaccurate. Levinson said there were 33 appealed misconduct cases that were certified between 2011 and 2013, while the information released by Murray's office and the police department said there were 37. Twenty-three of those cases were settled, according to her review. The Mayor's Office and the police department initially pegged that number at 24. 

“Normally I would have ensured that any information provided by the Department was correct before it was publicly released,” she wrote.

The auditor also distinguished between the appeals process and the separate Office of Professional Accountability, which handles misconduct complaint investigations. OPA cases are closed before the appeals process begins.

The mayor's police consultant, Melekian, said in a report in mid-March that the cases indicated that the complaint system was flawed. And in a March 19 letter, Murray wrote that the complaint, disciplinary and appeals process should be reformed.

“These cases are not 'illustrative of a flawed complaint process' as has been described by some,” Levinson wrote in a clear defense of OPA. “Settlement of cases is entirely unrelated to the complaint process.”

The original discipline in the Marion case was a one-day suspension without pay. Bailey said that he reversed the "sustained" misconducting finding that resulted in the suspension because he believed that training would be more effective.

But Levinson points out that "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." 

The training involved Marion speaking about his misconduct with officers at roll calls. It took place, Levinson notes, months before Bailey signed the settlement agreement.

A police department spokesperson said Bailey was out of town until Monday and not available for comment.

U.S. District Judge James Robart specifically mentioned the disciplinary reversals as he chided the police department during a court hearing on Thursday for its slow progress implementing federally mandated reforms.

Murray’s office released a statement saying that the mayor welcomed the review. 

“It is critically important for us to look ahead and move forward beyond the most recent disciplinary cases that have caused such confusion,” Murray said, “and instead focus on the broader systemic changes we need to make in the OPA process to instill the greatest public trust and accountability in that process.”

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