By Paul Kiefer

On Wednesday, Mayor Jenny Durkan and City Council member Lisa Herbold announced a pair of adjustments to the make-up of the bodies responsible for negotiating collective bargaining agreements with Seattle’s police unions. For the first time, all three of the city’s accountability partners—the Office of Police Accountability, the Office of the Inspector General (OIG), and the Community Policing Commission (CPC)—will formally advise the city in preparation for, and during, negotiations with the police unions, and they will be able to attend bargaining sessions when police accountability is on the agenda.

Previously, only the OPA advised the city. This will be the first time the CPC, which represents the interests of the public rather than any branch of city government, will have an official role in police contract negotiations.

Second, a member of the City Council’s central staff will now sit at the bargaining table itself; in the past, the bargaining team was composed entirely of the mayor’s staff and staff from departments indirectly under the mayor’s direction. The move was foreshadowed in a January 2020 council resolution “affirming the city’s good faith intent” to consider addressing community and oversight groups’ concerns about the police union collective bargaining process, but that resolution did not name any specific changes to the city’s bargaining strategy.

In comparison to the last round of contract negotiations, these changes mark some notable shift in Durkan’s approach to negotiations. During the end of the last bargaining process in 2018, both the council and the accountability partners relied on second-hand information provided by the mayor’s office to monitor negotiations and assess proposed contracts. This year, accountability advocates hope that these shake-ups will ensure that longstanding recommendations for improving accountability within SPD are finally enshrined within the police union contracts.

In the press release that accompanied the announcement, OPA director Andrew Myerberg cast the move as a step toward “ensuring public trust and confidence” in the city’s bargaining process with the police unions; he was echoed by Inspector General Lisa Judge, as well as by CPC co-chairs Rev. Harriet Walden and Prachi Dave, who wrote that the inclusion of the CPC in the negotiating process will be “an opportunity to help ensure the reforms in the landmark 2017 Police Accountability Ordinance are fully implemented.”

The 2018 Seattle Police Officers Guild (SPOG) contract—and Durkan’s approach to negotiations—drew widespread criticism from accountability experts, including retired judge and former OPA auditor Anne Levinson and the CPC,  who said that the contract undercut major improvements to accountability that were enacted in the historic 2017 accountability ordinance.

A key problem, Levinson told PubliCola, was that — as she understands — the Mayor’s Office’s goal during the negotiations was not to ensure that the reforms they promised to the public were fully realized. “At a minimum [the Mayor’s Office] should have been saying, ‘here is how a proposed provision is different than what the community was promised and what was adopted in the accountability ordinance,’ or, ‘here is how the proposal would lessen, rather than strengthen, accountability and not serve the public as well,” said Levinson. “There was an obvious lack of an independent voice for accountability reform and community perspective.”

Peter Nguyen, who represented the LR at the bargaining table with SPOG in 2018 (and worked as a legislative aide to council member Dan Strauss) but no longer works for the city, shares Levinson’s view. He was one of only five people on the city’s negotiating team that year, sitting beside then-counsel to the mayor Ian Warner, private attorney Otto Klein, and representatives from SPD’s Human Resources unit and SPD’s command staff.

Nguyen’s interview with PubliCola was the first time he’s gone on record to speak about the city’s labor negotiations strategies; it’s rare for labor negotiation professionals to give interviews on the subject. “The major failure of transparency when it comes to police bargaining in its current form in Seattle,” Nguyen told PubliCola before the mayor’s announcement, “is that negotiations can and essentially are driven by a single individual [the mayor] who cannot possibly reflect the collective interest of our entire city when it comes to public safety, and who is not subject to the proper checks and balances which would safeguard the public good.”

(The council has the ability to reject contracts but did not exercise it in 2018 at the mayor’s urging).

In theory, Nguyen said, his role as the LR representative was to represent the interests of the city, not the mayor, in the bargaining process. “Labor Relations was always neutral when it came to the mayor versus the council, meaning we were traditionally an equal and open resource to both branches of government,” he said. But the head of LR is chosen by a mayoral appointee, so the office can only remain neutral if the mayor treats it as such. “My recommendation is that experts on the city side should be equally accessible to the council and to the accountability offices, as they are to the mayor’s office,” Nguyen added. “There should not be any gatekeeping.”

Nguyen could not share exactly what transpired during bargaining itself; under state law, those discussions are always confidential. But the bargaining process does not solely take place at the bargaining table; the parameters for  bargaining —including the subjects of bargaining, the length of the contract, and the amount of money the city is willing to spend to meet the terms of the contract—are decided by the Labor Relations Policy Committee (LRPC), made up of five city council members, the mayor’s policy director, the Budget Office director, and the Human Resources Department director During the negotiations, the LRPC gives feedback to negotiators about the unions’ proposals and counter-proposals, drawing lines in the sand or considering concessions when necessary. At the end of the process, the LRPC has to approve the tentative contract before it can go to the full council.

In theory, Nguyen said, the LRPC is supposed to set the parameters for bargaining and the bargaining team itself is supposed to stick to them, or let the LRPC know why they are not doing so. But for this to work, the negotiating team has to be transparent with the LRPC, and that hasn’t always happened. “The weak point in the system is that it’s predicated upon internal transparency between the two branches of government and the neutrality of labor relations,” Nguyen said.

The changes announced on Wednesday are supposed to help provide a window for the council into the black box of contract negotiations, as well as to give accountability advocates a greater hand in shaping the city’s priorities and boundaries in negotiations. But Nguyen and Levinson say neither change is a panacea. “Just because you have a [council] representative at the table doesn’t mean that the bargaining process will proceed in a way that’s transparent to the public,” said Nguyen. “If [the council representative] reports back to the council at the LRPC, that’s a closed meeting—the public has no access to that. Council transparency and public transparency are not one and the same.”

Speaking about the inclusion of accountability partners as advisors to the LRPC, Myerberg noted that the CPC’s own recommendation, expressed in a letter to the council in 2019, was for the the city to appoint an external advisor, jointly recommended by the three accountability partners, to advise the city on negotiations, rather than members of the accountability groups themselves. “The CPC and others really wanted to have an independent community member to observe and report out on negotiations,” he said. “That’s not what this is, but I think this is a step forward.”

Nguyen suggested a more direct approach to ensuring accountability: “If you have a record [of the negotiations], whether it be a transcript, an audio recording, or a video,” he said, “you can call experts to interpret what went on.” But that, he acknowledges,  would mark a massive departure from the standard confidentiality of labor negotiations; it would also require a change to state labor law. “As a labor relations professional, I acknowledge it normally is better to have confidentiality in bargaining because that generally allows for more frank discussion between the parties and, hopefully, there’s less grandstanding,” he said. “But I think that police bargaining is an exception. There are no other public servants I know of who can take someone’s life under color of law. You can’t be special in one way and not in other ways.”

A simpler way for the city to improve the outcome of upcoming contract negotiations would be for the LRPC to make it clear that they will reject any agreement that goes outside the bargaining parameters they adopt. If that happened, he said, the negotiating team would either have to go back to the bargaining table or the contract would move to interest arbitration—a process in which a state-appointed arbitrator listens to both sides and decides the terms of a contract, based on the arguments from both sides and comparisons with other local and regional police contracts.

Myerberg says interest arbitration can be risky in a pro-labor state, but Nguyen argues that SPOG’s tone-deaf response to community demands for accountability could put the city in a stronger than usual bargaining position if the contract goes to arbitration. “The city has tremendous leverage this year,” he said.

If the city is unable to resolve an issue during bargaining, they have another option: Marking key issues as “reopeners” that can be negotiated later, if the mayor decides to do so, which would “reopen” that section of the contract and allow the city’s negotiating team to return to the table with the union while the contract is still in effect. SPOG’s 2018 contract reopeners included the composition of the city’s Public Safety Civil Service Commission, a quasi-judicial city body which oversees public safety employment decisions, and oversight of sworn officers’ off-duty work. The mayor’s office never triggered those reopeners, and time has run out; the contract expires at the end of December.

Meanwhile, the Seattle Police Management Association, which represents captains and lieutenants, has been working on an expired contract since 2019. According to Durkan spokesperson Kelsey Nyland, the LRPC is still developing the parameters for the negotiations with SPMA‚ now with the formal input of the CPC, OPA, and OIG. The LRPC has not begun the same process for negotiations with SPOG, but Nyland said “the City expects to bargain for all the provisions in the 2017 Accountability Ordinance be included in the SPOG contract,” though she added that “the City cannot guarantee the outcome of bargaining before it starts.”

Nguyen sees an opportunity for the ongoing SPMA negotiations to improve the outcome of the subsequent negotiations with SPOG. “The SPMA contract is further ahead of the SPOG contract in terms of accountability,” he told PubliCola. “My advice has been: go back to the table with SPMA, get more of the accountability ordinance bargained into the SPMA contract. Then, if you have to go to interest arbitration with SPOG, the arbitrator will look to the SPMA contract as persuasive authority regarding what should end up in the SPOG agreement.”

[This story has been corrected to reflect that the head of the Labor Relations unit is appointed by the city’s HR director, not the mayor.]