On June 30, U.S. District Court Judge James Robart dramatically scolded the civilian Community Police Commission (CPC), calling its efforts to advance police reform legislation a “power grab.” Judge Robart’s remarks were clearly a shock to members of the CPC, who had been working on this legislation since January 2014, and who have been regarded as important players in ensuring that the reforms take root. Members Lisa Daugaard and Jennifer Shaw, who correspond with the court through the monitor, could be overheard outside the courtroom afterward accusing police monitor Merrick J. Bobb and his staff of not properly communicating with Judge Robart.
Adding to the sense of shock, perhaps, is that two months before the court hearing, the CPC did send a report to monitor staff-member Matthew Barge, clearly informing him of its efforts to draft the legislation that set Robart off. “The Seattle Community Police Commission (CPC) has been working with the Mayor's Office to draft legislation codifying reforms to the City's police accountability system,” the communication said.
Barge responded, “This is very useful — many thanks.”
The CPC, it seems, interpreted this exchange as a tacit approval of its work and continued. The civilian board even briefly considered bring its own legislation directly to the council.
However, Judge Robart’s informal judgment reveals, three years into federally mandated police reform, an unwelcome misunderstanding between the court and the CPC and a bigger issue: The civilian review board may not be as powerful as it previously thought.
The conclusion riles former Mayor Mike McGinn, who played a key role in the commission's creation. The idea, however, appears to be less surprising to the mayor’s office and representatives of the Department of Justice, which handles the administrative side of the federal government's work on police reform.
In the days since the hearing, the CPC has done some serious soul searching, debating between questioning the court or biting the bullet and cooperating. For now, it seems, the commission has gone with collaboration.
The CPC has been working as the civilian advisory board to the federally mandated police reforms since July 2012, when then-Mayor McGinn signed off on its creation through an executive order. Made up of 15 members, the CPC is intended to represent the voice of the community as the City, the SPD, the DOJ and the independent police monitor wade through the settlement agreement – the deal struck between the City and the U.S. government to reform the police department and avoid drawn out legal battles.
Until recently, the CPC has essentially been a consulting board, advising the City for how to best change the Seattle Police Department. In the fall of 2014, the CPC sent 55 recommendations to the mayor’s office. The mayor agreed with a majority, but not all, promising that his office and the SPD would begin implementing many of the recommendations immediately. He also promised legislation codifying some of these changes – essentially to make them permanent and immune to political sea changes.
But it is this question of legislation where things get tricky. When you start talking about making permanent changes that could, depending on how you read it, alter the original settlement agreement, the narratives of what is allowed — and what isn’t — seem to veer in different directions. This is surprising considering it has been nearly three years since the agreement was signed.
The Memorandum of Understanding, the document that essentially connects the parties to one another, grants clear authority to the CPC to make “recommendations,” which they’ve been doing freely. So far, so good.
But when is a recommendation more than a recommendation? And is that a problem? According to an ordinance passed by the Seattle City Council in October of 2012, “The CPC may propose legislation to the City Council.” That seems clear enough.
However, in the recent hearing, Judge Robart said that language is not a part of the settlement agreement and is therefore invalid. “That is an amendment to the agreement,” he said. “And it is out of conformity with the settlement agreement. … You don’t get to unilaterally change the settlement agreement without bringing it back here.”
Robart pointed to paragraph 225 of the settlement agreement that reads, “No change, modification, or amendment to the Settlement Agreement will have any force or effect if not set forth in writing, signed by all the Parties to the Settlement Agreement, and approved by the Court.”
“I don’t know what agreement was reached last night,” he continued, referring to an agreement between the CPC and the mayor’s office to move forward together on legislation, “other than I read the Seattle Times. ... And it says, ‘setting in motion a proposal to make the CPC a permanent, independent, civilian board.’ "
The judge continued, "If you want to change that, you bring it back here. You don’t bring it to the city council.”
So, it seems, there’s been a discrepancy on the books since 2012 that is only now being addressed. Police monitor Bobb showed that he understood this when he quoted the above paragraph in a June 23 letter to Councilmember Bruce Harrell, asking him to delay any police reform legislation. Considering this, though, it raises questions about why Bobb or his office said nothing similar to the CPC after Director Fe Lopez sent the May 4 report to Bobb's staffer Barge. Repeated efforts to obtain a comment from Bobb, who has been traveling this week, or his team were not successful as of publication.
Asked about whether anyone had mentioned the 2012 ordinance before this last month, Harrell, who sponsored that ordinance, said, “There hasn’t really been any discussion around that because there hasn’t been any test. I think it caught all parties by surprise. If in fact it embraces reform, it was very surprising that the court showed such a strong-armed position.”
When the mayor’s office and the CPC agreed to work together on legislation to the council, each maintained, they always intended to clear legislation through the court, pointing to a joint press release that quoted the mayor as saying, “I now plan on consulting with Department of Justice.”
U.S. Attorney Mike Diaz does not doubt that they planned to consult the court, but said, “I don’t know that it was their plan to actually petition the court.” The difference may sound like semantics, but according to Diaz, the latter is much more formal.
The march toward fulfilling the settlement agreement has been hailed as a collaborative effort between all parties. But the CPC was alone after the June 30 hearing in its level of shock and anger. As representatives from the Seattle Police Department, the City Attorney’s Office, the Mayor’s Office, and the Office of Professional Accountability pledged a recommitted effort to work with the DOJ and police monitor Bobb, the wires at the CPC went quiet.
Members declined to comment and a statement was nowhere to be found.
Just-released minutes from a special meeting on July 1 show unanimous support from CPC members to respond directly to the court. They voted to allow Director Lopez, Daugaard and others to write an “amicus response” — essentially a letter expressing the perspective of an outside party’s perspective on a given court ruling.
They also voted to consider sending a “motion for clarification,” essentially asking Robart to explain himself. Finally, obviously conscious of ramifications of reaching out directly to the court might have on the settlement agreement, they voted to “talk to the DOJ about the impact of a motion for clarification.”
Following through on these motions would certainly have carried some risk. Remember, the other parties (the mayor’s office, City Attorney’s Office, Pierce Murphy of the Office of Professional Accountability) were quick to say they would continue to work with the Department of Justice and the police monitor. By engaging directly with the court, the CPC would have run the risk of pitting itself against not only the DOJ and the monitor, but virtually the entire city government.
Moreover, when the CPC momentarily considered sending its own legislation last month, there had been a thinly veiled anger on the part of the mayor’s office — “surprise” as both Mayor Murray and his communications team phrased it. “We felt we were 90 percent in agreement and just needed to hammer out the last 10 percent when they pulled out,” said Murray’s Communications Director Viet Shelton.
In other words, the stage had already been set for painting the CPC as the outlier in an otherwise cooperative process.
Former Mayor McGinn, whose signature is on the settlement agreement, does not necessarily see this as a bad thing. “As I look at their expertise and commitment to reform, I think they should be allowed to do their job,” he said.
“I trust the CPC more than the monitor and the judge to come up with robust reforms,” he said.
But on Wednesday, in a closed-door executive session, the CPC changed tack, rather dramatically considering the 11-0 vote just a week earlier, and dropped the amicus response and the motion for clarification. “For the time being,” CPC Co-chair Daugaard told Crosscut, “we are working together with our other city partners to finalize the proposed accountability legislation and to discuss it with the Justice Department and vet it with the monitor to ensure it doesn’t raise any concerns.”
She continued: “We’ll assess down the road whether there’s any need for the CPC to have any additional communication directly with the court.”
McGinn, upon hearing the CPC’s decision, sounded a bit disappointed, but acknowledged its practicality. “Their focus has to be what’s the most sensible way to get the best reforms possible,” he said. “They’re not going to get into a pissing match.”
When asked what would happen if the court rejects future legislation, CPC Director Lopez said, “We’re just taking it a day at a time right now.”
As the dust from the court hearing has settled, there are a few takeaways. For one, the CPC’s goal of getting legislation to the city council by July 15 has been blown out of the water. There isn’t any timeline on when that may happen or really any sense of how long it would take to properly clear legislation with the court. Mayor Murray did tell the Seattle Times in June, before the court hearing, that he hoped to have it ready by the time U.S. Attorney General Loretta Lynch come to town in the fall. But Shelton won't give any hard dates, saying the next step is to convene the parties and work something out.
As far as the court hearing, absent of any actual rulings, U.S. Attorney Diaz said Robart’s tone was more “a matter of making sure the CPC and the city shows enough deference to the court.” It was, said Diaz, essentially a strong reminder from a skeptical judge that they need to run their work through the process and they’ll be fine.
“The fundamental issue,” said McGinn, “is the CPC was doing exactly what the settlement agreement said it should and that is to develop recommendations.”
One irony in the shaming of the CPC is that member Jennifer Shaw of the ACLU was the first to write to the Department of Justice asking for federal involvement in addressing issues within the Seattle Police Department. In response, the Department of Justice launched its investigation, eventually finding patterns of biased policing and excessive force. Could anyone on the CPC be feeling a bit of buyer’s remorse over a process that now requires a federal judge's OK for any local legislation to carry out police reform?
For now, the CPC had no comment.