By Erica C. Barnett

On Tuesday, the Seattle City Council is expected to approve a contract between the city and the Seattle Police Management Association, which represents about 80 police lieutenants and captains.

The contract would establish new restrictions on arbitration (a process through which police can appeal disciplinary decisions for misconduct), make it harder for SPD to “run out the clock” on investigations, and implement other key provisions of the city’s landmark 2017 accountability ordinance. The city effectively abandoned the new law when it signed a contract with the Seattle Police Officers Guild, which represents officers and sergeants, the following year; that contract supersedes the 2017 law whenever there’s a conflict between the contract and the ordinance.

The SPMA contract only covers police managers, but has potential implications for the hundreds of police officers and sergeants who are represented by SPOG as well. SPOG is just beginning negotiations with the city for its own contract, which expired at the end of 2020.

Once the contract is signed, captains and lieutenants will receive retroactive wage increases of 2.7 percent in 2020, 1.9 percent in 2021, and 4 percent in 2022. (Retroactive increases are common in police contracts, in part because they generally take years to negotiate, which means police often operate under expired contracts.) In 2023, police managers would receive a pay bump equivalent to the consumer price index increase, up to 4 percent. Overall, the increase just for this relatively small group of employees will cost more than $6 million through the end of next year.

The most significant change in the contract—and the provision that could have the most direct impact on negotiations with SPOG, according to several people familiar with police contract negotiations who spoke to PubliCola on background—is in the section on arbitration.

Arbitration gives a police officer or commander who’s been accused of misconduct an opportunity to challenge the findings of the Office of Police Accountability and any discipline imposed by the police chief to an outside investigator. This process has been at the center of several controversial cases in recent years. In 2018, an arbitrator reinstated then-SPD officer Adley Shepherd, who was fired for punching a handcuffed woman who was sitting in the back of a police car; three years later, a state judge overturned the arbitrator’s decision, but such reversals are rare. Earlier this year, an arbitrator reinstated a parking enforcement officer (a position housed, at the time of the incident, in SPD) after Seattle Interim Police Chief Adrian Diaz fired him for telling a coworker that he supported lynching.

Federal Judge James Robart, who oversees the decade-old consent decree between the US Department of Justice and the city, ordered the city to fix its arbitration process when he ruled the city partly out of compliance with the agreement in 2019.

The new SPMA contract would put additional bumpers around the arbitration process when a captain or lieutenant appeals serious forms of discipline, such as firing and demotion. Currently, arbitration is a kind of secondary trial: Officers are allowed to bring in new evidence and witnesses that neither the OPA nor the police chief have seen, and the arbitrator can use any standard of proof they want to decide whether a cop is guilty of misconduct. For example, arbitrators can require the city to present “clear and convincing” evidence that an person is guilty of misconduct that justifies the punishment they received—a difficult hurdle.

Often, arbitrators’ decisions can seem arbitrary: In the case of the parking enforcement officer who was reinstated, the arbitrator found that the officer had no disciplinary record or complaints about similar comments in the past.

The contract attempts to directly address many of those issues. First, it would prohibit police managers accused of misconduct from introducing entirely new information, or witnesses, during arbitration. Second, it would change the standard for the police department to prove the officer was guilty of misconduct to a “preponderance of the evidence” requirement, meaning that it’s more likely than not that the misconduct occurred. And third, it would require outside arbitrators to decide whether the discipline the police chief imposed for misconduct was arbitrary or capricious; if it wasn’t, the arbitrator will have to uphold it.

“This agreement creates a new discipline review system that marks a sea change in how discipline appeals operate,” the city council’s public safety committee chair, Lisa Herbold, wrote in a recent letter to a constituent. “It will help slow that backlog from growing by ensuring cases aren’t being entirely relitigated during arbitration as they currently are (de novo review). It will also ensure arbitrators, who are not generally experts on policing, don’t substitute their judgement for the police chief’s, undermining accountability as happened in the Adley Shepherd case.”

Advocates have argued for getting rid of arbitration entirely; legislation that would have done away with arbitration failed last year in Olympia. The ACLU’s People Power Washington project has demanded five specific changes to the contract; some, including subpoena power for accountability agencies looking into officer misconduct, are already in place.

The new contract would also make it easier for the city to pause a 180-day “clock” that represents the maximum length of an investigation into potential criminal misconduct. (The OPA does not conduct criminal investigations itself, but the 180-day clock still applies. People Power Washington argues that OPA itself should have the authority to conduct these investigations.)

The 180-day clock is a controversial element of misconduct proceedings, because it gives officers and the police union an opportunity to “run out the clock” on misconduct investigations. If the OPA fails to reach a conclusion an investigation before the clock runs out, an officer facing potential discipline is essentially off the hook, although the OPA can request an extension to the 180-day deadline. In 2021, the OPA failed to issue findings on time in 12 of 285 investigations that were subject to this limitation, or about 5 percent.

Advocates also argue that the OPA should have the authority to conduct criminal investigations itself, rather than just communicate with investigators while an investigation is going on.

The contract for captains and lieutenants has historically been more reform-oriented than SPOG’s contracts with the city—an artifact, some say, of the fact that captains and lieutenants spend less time dealing directly with the public. As a result, most misconduct complaints against them involve internal issues within the department, such as sexual harassment, or off-duty behavior, such as domestic violence, rather than things like use of force against members of the public.

SPMA’s contract doesn’t directly impact SPOG or its ongoing negotiations with the city, but it does set precedents, of a sort, for the city to bring up during negotiations. For example, the current SPOG contract still allows arbitrators to conduct a new quasi-trial, with new evidence and witnesses, when the union challenges misconduct findings—abilities SPMA’s contract strips away. There are fewer restrictions on the 180-day timeline for investigations of SPOG members than SPMA’s contract establishes for captains and lieutenants. And arbitrators can choose whatever standard of proof they want when deciding whether to overturn decisions by the police chief about officer discipline—an issue that also came up when SPOG was negotiating its 2018 contract.

In theory, SPMA’s contract could serve as template for reforms in SPOG’s contract. In practice, the police union has historically been intransigent on reforms, presenting “all-or-nothing” contracts to the city and refusing to budge on proposals that would substantially increase officers’ liability for misconduct. Currently, SPOG’s contract proposal reportedly includes no concessions on accountability and is limited to requests for pay raises during a time of inflation and high officer attrition.

Arguably, the political landscape has shifted on accountability since 2018, when the city council adopted the SPOG contract on an 8 to one vote. On the other hand, pundits on the right and center have been pushing the narrative that police are fleeing Seattle because its accountability policies are too restrictive—and a recent poll found that nearly two-thirds of respondents thought hiring more police would address crime in Seattle.

One certainty is that the negotiations won’t be speedy: The last time SPOG’s contract expired, at the end of 2013, it took nearly five years before the city and union agreed on a new contract. Several longtime observers of SPOG’s contract negotiations said they expect this latest contract to go to interest arbitration, a process in which a state-appointed arbitrator decides the terms of a contract based on the from both sides and comparisons with other local and regional police contracts.

The city could use the SPMA contract to bolster its arguments during interest arbitration, arguing that if the captains and lieutenants agreed to specific concessions, so should SPOG. Currently, though, police enjoy a lot of public sympathy, and pushing back against their demands could be controversial. Earlier this year, despite a city report concluding that hiring bonuses were generally ineffective, the council decided to dedicate more than $1 million, out of $4.5 million left over from SPD’s 2022 hiring budget, for the bonuses. The council might have ended up spending all $4.5 million, but they to fund another police priority—the pay increases in SPMA’s contract.