By Anne Levinson

In early June, as Seattle residents protesting police brutality were being met daily with disproportionate and seemingly indiscriminate force by law enforcement, several current and former elected officials reached out to me asking what state legislators could do in the next session to strengthen accountability in law enforcement.

It was a question I welcomed. During two terms providing independent oversight for Seattle’s police accountability system, I had reviewed thousands of misconduct complaints and investigations, observed dozens of police trainings, conducted a special review of Seattle’s police disciplinary system, issued reports highlighting needed accountability system reforms, identified for the city in detail the provisions in the police contracts that had tilted the system and were detrimental to the public, and helped draft and secure passage of the 2017 police accountability ordinance.

And when a new Seattle Police Officers Guild (SPOG) contract was ratified in the fall of 2018, over the unanimous objections of more than 30 community organizations, I provided expert witness testimony, explaining to the judge overseeing the federal consent decree the ways in which the contract threatened to corrode community trust and confidence. The judge agreed, finding the City partially out of compliance with the consent decree in May 2019 and directing the City to tell the court by that July how it planned to remedy the identified barriers to accountability.

A year later, in May 2020, the city had still not submitted its plan to the court and yet it asked the court to largely end the consent decree. Then the demonstrations began.

So when I was asked that question last June—with a governor, Senate and House leadership, committee chairs, and other legislators interested in police reform; many labor leaders no longer accepting the proposition that they couldn’t be both pro-police reform and pro-labor; and the city still out of compliance with the consent decree—it was clear that the time had come for the state to lead.

Several potential state-level reforms were already garnering public attention in our state and elsewhere, including truly independent investigations of deadly-force incidents; qualified immunity reform; demilitarization of police; reforms to the inquest process; elimination of no-knock warrants; and establishing a statewide public database on use of force.

But there are two other reforms I had  recommended that have not gotten much public attention until recently: (1) Removing police accountability from the collective bargaining process; and (2) Strengthening the law for officer decertification to address serious misconduct. Each is critically important and long overdue.

First, the state must clearly exempt police misconduct and disciplinary systems from Washington collective bargaining law so that every local and state law enforcement agency can establish strong, effective, and transparent accountability mechanisms that serve the public as they should, rather than continuing to provide only as much accountability as police unions will accept.

Police are not the same as other public sector employees. Others aren’t required to carry and use guns. They haven’t been given broad discretion to take your liberty and sometimes your life. It’s why there is a separate accountability system to address misconduct. And it’s why there is a consent decree. The provisions in police contracts can have very different impacts on the public than similar provisions in other public sector contracts.

Across the country, police contracts no longer just address wage, benefits, and other subjects traditionally thought of as “working conditions,” as other labor contracts do. Instead, police contracts have been used to shield officers from accountability when misconduct occurs, diminish transparency, and preclude or weaken civilian oversight. It’s why I so strongly opposed ratifying Seattle’s police contracts in 2017 and 2018 and weighed in on behalf of the community to the federal court.

Here are a few examples of provisions in Seattle’s police contracts that impede accountability and walk back reform efforts.

The contracts reinstated officers’ ability to appeal discipline through multiple routes, including to an outside arbitrator. (Eliminating this ability was a priority in the 2017 accountability ordinance). As reform advocates, chiefs, and local elected officials have seen in thousands of cases across the country, arbitrators routinely substitute their own judgment on discipline, overturning chiefs’ decisions, ordering officers who committed serious misconduct to be reinstated.

This weakens the chief’s power to hold officers accountable in line with public expectations, allowing arbitrators to overturn disciplinary decisions for any number of reasons, including minor procedural issues, even in cases where the chief’s decision is supported by a preponderance of evidence. It allows hearings to be closed to complainants, the public, and the media, and allows months, if not years, of delay before appeals are resolved. As of August, Seattle has 80 appeals pending, some going as far back as 2016.

What other barriers to accountability are buried in Seattle’s police contracts? If a complaint of misconduct involving dishonesty or excessive force is not made within a certain period of time, or if a complaint isn’t fully investigated within 180 days, the officer cannot be disciplined, regardless of the misconduct or the reason for the delay. How the days are counted is filled with vague conditions constantly subject to challenge.

There’s more. The burden of proof required to prove misconduct has been raised to an undefined “elevated” standard for any termination that results from misconduct that could be considered “stigmatizing” to the officer. Only certain misconduct complaint and investigation files are retained; others must be purged. Civilian oversight is limited when the alleged misconduct is criminal, even though these cases often involve the most serious types of misconduct. Civilian oversight subpoena authority has been narrowed. Officers are allowed to use vacation and sick leave when the discipline is supposed to be days without pay. Officers under investigation – and their union representatives – are allowed to withhold relevant information during the investigation and raise it later, as evidence to challenge discipline. Officers’ names must be redacted when case information is made available to the public.

And more. The long-recommended oversight of secondary employment (off-duty work as an officer) by independent, civilian management was never implemented. Instead, it was included in the SPOG  contract and then rolled back. There are limitations on the number of civilian investigators. Different ranks are treated differently. And there are even contract provisions that require the public to pay for a large part of the union president’s salary.

These barriers to accountability—and others—were brought to the attention of city officials, and many were addressed in the ordinance. And yet, unbeknownst to the public, the reforms never took effect because of what the city later agreed to in the police contracts.

In court filings, the city argued that all these types of police contract provisions are commonplace. The success of police unions in embedding structural barriers to accountability across the country is thus ironically used as a reason to stifle reforms. The city also argues that the public and the judge should understand that police contracts continue to have these provisions because the nature of bargaining requires give-and-take. That is exactly the problem.

Police, like all employees, deserve contracts that provide for fair wages, benefits, and good working conditions. But there is no reason to continue to accept the argument that standards and practices to address police misconduct must be considered “working conditions” that cannot be determined by police management and local government leaders outside the bargaining process.

Police have been granted extraordinary powers to use discretion in a range of ways that have enormous impact on the public, including taking away liberty and the use of deadly force. Legal and procedural safeguards against police abusing these powers in ways that undermine public trust should not be subject to the give and take of bargaining. Nor should the public have to pay so that their community can receive constitutional, effective, and respectful policing.

Second, the state must completely overhaul the law enforcement decertification law.

Washington is one of 45 states that require law enforcement officers to be trained and licensed (“certified”), with standards for revoking that license (“decertified”), as many other professionals must be

How and when decertification happens is fundamentally important to accountability. If an officer is fired or convicted of a crime, but not decertified, the officer can simply go to another law enforcement agency. Washington’s law for decertifying officers is limited in scope and riddled with loopholes that allow problematic officers to move from department to department with impunity or to avoid accountability if their agency does not act.

Back in early 2014, when providing independent oversight of Seattle’s police accountability system, I recommended that Seattle work with other cities and counties and the state legislature to overhaul the law. We also included reform of the decertification law in the city’s 2017 accountability ordinance. But the city never really took it on. So when asked what police reform the legislature should prioritize in the next session, significantly overhauling the decertification law was also at the top of my list. Senator Jamie Pedersen, Chair of the state Senate’s Law & Justice Committee agreed, and in early June offered to be the prime sponsor of a bill that will enact a wide range of reforms.

To really remedy the gaps and loopholes that make Washington’s law—and most all decertification laws in other states—so ineffective, improving one or two elements of the law is not enough. So I’ve recommended many changes, starting with making sure that the grounds for decertification cover the wide range of misconduct that should result in an officer losing their license.

Unlike licensing laws for other professions, the police decertification law doesn’t cover many types of serious misconduct unless that misconduct results in conviction or meets the grounds for prosecution. It excludes all sorts of criminal misconduct for which an officer might be fired, but not prosecuted, and can exclude excessive force and a wide range of other misconduct that diminishes, jeopardizes, or significantly undermines public trust and confidence. The law needs to detail the types of serious misconduct that must result in decertification and additional serious misconduct that may result in decertification, depending on the facts and history.

Washington’s law has still more loopholes involving the types of dishonesty that will result in loss of a license. One is that if the dishonesty is for knowingly making materially false statements during a disciplinary investigation, decertification can only occur if the false statements are the sole basis for the termination—not if there was also other misconduct. The law also doesn’t cover off-duty conduct, even if the law enforcement agency fired the officer because in their view the officer could no longer be trusted to serve the public.

Being prohibited from possessing a firearm by court order (such as an order to surrender weapons issued as part of a protection order) or other state or federal prohibitions, is not grounds for decertification unless it was as a result of a criminal conviction.

And to make matters worse, no matter how egregious the misconduct, if the officer has challenged the discipline, the state can’t decertify the officer until all available appeals and challenges are completed—which can take years. Meanwhile, the officer can keep moving with ease from department to department. The state also is precluded from decertifying an officer if an arbitrator ordered the officer to be reinstated. (As I mentioned above, another significant barrier to accountability is that arbitrators do this with some frequency, forcing chiefs to re-hire problem officers.)

Note that the issue is not just problem officers who go to other agencies. In some cases, the officer has had a pattern at a single agency, and if that agency hasn’t requested decertification, the state doesn’t intervene. You may have recently read about a current officer in Auburn who was involved in three fatal shootings since 2011 and has a history of other misconduct.

There are too many improvements I’ve recommended to the law to list them all, but here are a few of the other reforms you’ll see in Senator Pedersen’s bill:

If an officer resigns or retires in anticipation of discipline, or was laid off when disciplinary investigation or action was imminent or pending, the law enforcement agency must complete the misconduct investigation and provide all relevant information to the state just as if the officer were still employed by the agency. Officers leaving before being discharged is a not infrequent occurrence that then can result in agencies not moving forward with decertification.

Agencies, city attorneys, county prosecutors, local jurisdictions, unions, and individual officers must be prohibited from entering into any settlement or collective bargaining agreements that allow any misconduct and personnel records to be sealed, redacted, delayed, or otherwise limited.  Both local and state agencies must be required to retain all misconduct and personnel records for as long as the officer is employed plus six years.

Agencies and local jurisdictions must not enter into any agreement in exchange for allowing an officer to resign or retire or for any other reason that in any way precludes action by the state to suspend or revoke an officer’s certification (such as agreeing to delay or not to report misconduct, or to preclude disclosure of any relevant information, including a promise to not check the box on the state form that indicates the officer may have committed misconduct).

Hearings regarding revocation or denial of certification should take place more quickly, the standard of review should be a preponderance of the evidence, and public notice of the hearings should be posted on the Criminal Justice Training Commission (CJTC) website. (CJTC is the agency in charge of certification and decertification.)

The hearings panel should include only persons who are independent, arms-length, and without conflicts, and include individuals who are not and have not served as a police or correctional officer who have expertise and background in police accountability and can reflect community perspective. An administrative law judge who has requisite expertise should preside over the hearings.

All records related to the certification, suspension, and decertification should be public, and the CJTC required to maintain a publicly searchable database—as is done for other types of professions—describing the names of officers and their employers, the conduct investigated, final disposition, and the reasons. The dates for each material step of the process should be included.

Law enforcement agencies should also be required to maintain publicly searchable databases regarding misconduct complaints, discipline, appeals (including the reason for appeal, the result of the challenge, the length of time from the misconduct to the final resolution, demographics of the complainant and officer(s), any other resolution such as a settlement); action taken regarding suspension or decertification by the CJTC, criminal prosecutions, litigation (including cost to taxpayers), and any related settlements.

As policing is being redesigned and restructured, with resources invested instead in community-centered public safety approaches, and other work begins on repairing the harm that has been done to so many communities, it is also time for the legislature to set standards for police policies and practices on a statewide basis. Removing police department accountability practices from collective bargaining and overhauling the police decertification law will result in meaningful change across the state.

To be sure, ours is a state with a history of preferring local control—whether in policing or in education. But expecting the community to continue shouldering the burden of securing police reforms that ensure strong accountability city by city, county by county, and police contract by police contract, means decades more of real and continuing harm to public trust, to families, and to communities.

Judge Anne Levinson (Ret.) served as the independent oversight auditor for Seattle’s police accountability system from 2010 to 2016. She co-chaired a bi-partisan commission to recommend reforms to the state’s approach to child welfare and juvenile justice services, resulting in the state’s first agency focused on children, youth and families, and spearheaded regional system reform on firearms and domestic violence, resulting in the creation of a first-of-its-kind Regional DV Firearms Enforcement Unit. She has served as Chair of both the Washington Utilities & Transportation Commission and the Washington Public Disclosure Commission.