By Paul Kiefer

In May of 2017, serious changes to the Seattle Police Department’s oversight of its officers’ off-duty work appeared to be imminent.

For years, officers found off-duty work as security guards and traffic flaggers in Seattle through an opaque system rife with real and perceived conflicts of interest. Though officers leveraged the power of their department jobs to find high-paying work in their free time, SPD didn’t oversee how much its officers charged for their services, screen outside employers, or closely monitor officers’ adherence to department rules. The system was based on trust, and it often failed. As early as 2005, a Seattle Times investigation found that dozens of officers skirted department rules prohibiting them from working in bars and nightclubs, sometimes acting as bouncers, while supervisors looked the other way.

But even after some basic reforms, the world of off-duty employment remained a gray area in which officers’ duties to the public and loyalties to their employers were blurred. For a decade, police accountability experts, including the City Auditor and retired judge Anne Levinson, pushed the department and city council to intervene.

In June of 2017, the council passed a sweeping accountability ordinance that included the requirement—long championed by reform advocates—that SPD use civilians to independently manage and oversee its officers’ secondary employment in-house, with the goal of creating a transparent system that would give the city control over allocating contracts and setting prices at no cost to the public.

Four months later, then-police chief Kathleen O’Toole highlighted the urgency of those reforms by asking the FBI to investigate allegations that SPD officers, with the help of the Seattle Police Officers’ Guild (SPOG), conspired to inflate hourly prices and intimidated business and property owners to stave off competition. As the FBI launched its investigation, then-mayor Tim Burgess doubled down on the reforms in the accountability ordinance, signing an executive order directing SPD to create a timeline and work plan for taking over management of officers’ off-duty work.

But more than three years later, SPD has made almost no progress toward managing its officers’ off-duty work, and the windows for corruption that sparked the FBI investigation in 2017 remain wide open. The death of those reforms after a change in leadership and a rush to reach a labor agreement with SPOG in 2018 is a lesson in how quickly city leaders can forget or abandon a widely supported reform.

Peter Nguyen, the labor negotiator who represented the city’s labor relations unit during bargaining with SPOG in 2018, says that the death of secondary employment reforms deserved more outcry than it received. At its core, he argued, SPD officers’ secondary employment stems directly from their primary jobs as police officers; therefore, Nguyen believes the city has the right to oversee how its police officers use their role as cops to make money in the private sector.

At the very least, Nguyen says, “we need to be assured that a police officer is not working too many off-duty hours or coming off of an all-night security stint and directly patrolling our streets while armed, fatigued, and judgement-impaired,” he said. He also said the current system could also create opportunities for officers’ off-duty loyalties to seep into their on-duty responsibilities. “How do we know that an on-duty officer doesn’t happen to over-patrol a business which pays them after hours as a form of kick-back?” he asked.

Councilmember Lisa Herbold, who chairs the council’s public safety committee, echoed Nguyen’s and other police accountability advocates’ concerns about overworked officers and the potential for conflicts of interest. “Who is regulating and coordinating those off-duty jobs, essentially running a private, for-hire police department?” she said, alluding to past litigation about officers connecting their friends on the force to high-paying off-duty jobs, creating a power and income imbalance within the department.

Under current rules, an SPD officer who wants to find work needs the department’s permission, which they receive by applying for a permit from the department. When working off-duty, SPD now requires officers to enforce the law and follow department policies, and SPD policy forbids officers with records of misconduct from holding secondary jobs.

Despite that policy, the department approved secondary employment permits for at least two officers who appeared on the King County Prosecutor’s Brady list—a list of officers with sustained findings of dishonesty, evidence of racial bias, or criminal charges or convictions—in 2019. Detective Franklin Poblocki, who joined the county prosecutor’s Brady list for lying to Seattle’s Office of Police Accountability during a misconduct investigation in 2018, received department approval for 23 permits in 2019 alone, 11 of them after the county added him to their Brady list in June of that year. Officer Wade Murray, who also landed on the prosecutor’s Brady list in 2019 for lying to the OPA, received approval for three off-duty work permits later that year.

The absence of an oversight office in the department has left other problems unaddressed. Department policy forbids officers from working more than 64 hours a week, including off-duty hours, to ensure that officers don’t come on duty overworked. But without an oversight office, officers are left to self-report their hours to the department; SPD has no easy way to double-check to ensure that they’re telling the truth.

If an officer works too many hours in a week, or if they work an off-duty job without a permit from the department, they can be subject to an OPA investigation. However, according to OPA Director Andrew Myerberg, it’s hard for his office to catch violations of secondary employment policies. “If we’re going to come across secondary employment-related misconduct, it’s almost always tangentially,” he said. For example, the OPA sometimes discovers that an officer lacks a permit when a civilian complains about the officer’s behavior at an off-duty job.

Before the COVID-19 pandemic, opportunities for an officer seeking off-duty work were boundless. A list of secondary employment contracts from 2019-2020 shows more than 300 officers—nearly a quarter of the force—working for dozens of private and public employers, ranging from Seattle Public Utilities to Dick’s Drive-In and the Paramount Theater. Because Seattle only allows sworn police officers to take traffic control jobs, many officers find work directing traffic outside busy downtown garages or at construction sites.

SPOG, which represents SPD officers, detectives and sergeants, sets the minimum hourly rates for its members’ off-duty work. The guild didn’t respond to PubliCola’s request for updated hourly rates, but a public document from 2019 listed a minimum hourly rate of $52 for an off-duty officer or detective working as a security guard and $55 for an officer or detective working in traffic control. However, because police officers have exclusive domain over traffic control jobs and can negotiate even higher rates, several downtown garage owners told the Seattle Times in 2017 that an officer demanded and received as much as $120 an hour.

In November 2017, to follow up on Burgess’ executive order, a task force led by SPD’s then-chief operating officer Brian Maxey suggested that SPD should contract with a third-party vendor to automate the process of approving job listings, maintaining a list of eligible officers, and matching officers to employers. In their report, the task force set a timeline: By January 2018, SPD would publish a new draft policy on off-duty employment, a budget estimate for the new unit to manage off-duty work, and an interim solution in the form of a software through which officers could report their hours to the department.

Leaders in the city’s police accountability sphere who had pushed for secondary employment reforms for years weren’t satisfied with the task force’s recommendations. A group of accountability advocates, including the co-chairs of the Community Police Commission, the city auditor, and Levinson argued that the task force’s recommendations were too vague and failed to create a functional, independent unit to manage SPD officers’ off-duty employment.

At the end of their response to the task force’s recommendations, the group of accountability experts added a note: “If SPD and the City intend to bargain with the relevant unions regarding secondary employment (even though there is no contractual right to additional employment), it is even more important that the specifics of the new approach to secondary employment are clearly articulated and committed to.”

On December 31, 2017, O’Toole stepped down. Her interim replacement, SPD veteran Carmen Best, quickly made a crucial change to the team leading the charge on secondary employment reform: In early 2018, she replaced Maxey, a civilian and supporter of the reforms, with Assistant Chief Chris Fowler. Under Fowler, progress on the project stalled. When the city council asked for a progress report in the spring of 2018, SPD’s team hadn’t prepared a proposal for implementing the reforms.

They had, however begun requiring officers to log their off-duty hours in an application called Blue Team. SPD reviews their off-duty hours every month, but the system, like the old one, operates on trust; if officers work too many hours, the department has to rely on their colleagues to report them.

A few months earlier, new Mayor Jenny Durkan had taken over the city’s contract negotiations with SPOG. The guild’s previous contract had expired in 2014; as negotiations dragged out over the next four years, guild members worked without cost-of-living raises. Behind the scenes, the new administration and SPD leadership had decided that any new changes to the department’s secondary employment policies needed to be bargained with SPOG.

According to Durkan spokeswoman Kelsey Nyland, the mayor didn’t believe that the task force’s recommendations for bringing secondary employment management in-house were ready to present at the bargaining table. “While the task force made recommendations, the CPC’s review [of the recommended reforms] and response made clear that a lot of work remained to be done before we could bargain for their recommendations,” she said in an email.

Instead, the negotiating team produced a contract that kept a clause that has appeared in SPOG contracts for nearly three decades allowing guild members to “engage in off-duty employment subject to the same terms and conditions in effect on January 1, 1992.” The city and the guild also agreed to a “re-opener” that would allow the mayor to unilaterally bring SPOG back to the table at some point during the term of the contract to negotiate secondary employment reforms. Despite criticisms from the Community Police Commission and other accountability experts that the contract was a giveaway to SPOG, the city council approved the contract in November 2018.

The problem is, no one seems to know what the “terms and conditions in effect on January 1, 1992” are. Nyland acknowledged that “when the issue arose during the most recent negotiations, no one at the bargaining table (from either the City or SPOG) could detail the 1992 conditions for secondary employment.” Nevertheless, the bargaining team agreed to include the clause.

Nyland also acknowledges that Durkan’s office never returned to the negotiating table with SPOG to revisit the issue of secondary employment. She cited the need to develop a more concrete proposal and resolve some technical details—and, more recently, COVID-related pressures on city government—to explain why the mayor hasn’t revisited those placeholders.

Nguyen, who was at the table during the negotiations, told PubliCola that the city missed an opportunity to stand by secondary employment reforms, beginning with the decision to make those reforms a matter. “What is and is not bargainable evolves over the decades,” he said. He also noted that the city missed an opportunity to clarify and test the 1992 “terms and conditions” for secondary employment. “Because the [2018] contract referred to something that nobody understands,” he said, “the city should have been much more assertive in in either taking executive action, and then invite SPOG to file an unfair labor practice charge if they really thought it was unfair, or to bargain it directly.”

The 2018 SPOG contract expired at the end of last year. The city’s negotiation team, which now includes a member of the city council’s central staff, won’t begin bargaining a new contract with the guild until the Labor Relations Policy Committee (LRPC), which includes city council members and the heads of the city’s HR department and budget office, finishes preparing a bargaining agenda; the LRPC will likely finalize its agenda in the first half of 2021.

If SPD does get the opportunity to manage secondary employment contracts directly, it would not be alone. Police departments in Denver, Portland and Yakima manage their officers’ secondary employment, and the New Orleans Police Department created an internal office to manage secondary employment after it entered its own Consent Decree with the Department of Justice in 2012. The reforms are still a high priority for the CPC, which included city oversight of police officers’ off-duty employments in its list of 10 priorities for the city’s upcoming negotiations with SPOG. Myerberg also sees good reasons for the city to pursue the reforms again—among other benefits, he said, the change would make it easier for his office to spot off-duty misconduct.

But there are no signs that Durkan will lead a charge to implement secondary employment reforms during her final year in office. According to Nyland, SPD last briefed Durkan on secondary employment reforms in May 2019, though Durkan may have discussed the reforms informally with Best after that. When Herbold reached out to Interim SPD Chief Adrian Diaz about progress on secondary employment reforms in September, he maintained that “the current SPOG contract places limits on the changes that can be made to the off-duty process,” likely referring to the mysterious 1992 “terms and conditions.”