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Anne Levinson: For Real Police Accountability, Here Are Two State Laws We Must Change

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.

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.

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.

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PubliCola is supported entirely by generous contributions from readers like you. If you enjoy breaking news, commentary, and deep dives on issues that matter to you, please support this work by donating a few bucks a month to keep this reader-supported site going—and expanding!

If you don’t wish to become a monthly contributor, you can always make a one-time donation via PayPal, Venmo (Erica-Barnett-7) or by mailing your contribution to P.O. Box 14328, Seattle, WA 98104. I’m truly grateful for your support.

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.

Continue reading “Anne Levinson: For Real Police Accountability, Here Are Two State Laws We Must Change”

Morning Fizz: Smoke Shelter Closes, HSD Apologizes, and City Ditches Gold-Plated Shower Vendor

Today’s Morning Fizz:

1. The onset of hazardous air quality conditions led King County to open up a little-known site in SoDo this week—not as a full-time homeless shelter, but as a temporary smoke shelter serving about 100 people. But demand was greater: The shelter, located inside a former Tesla dealership the county is leasing from developer Greg Smith, had to stop taking referrals on Monday, citing lack of staff to expand the site to its full capacity of around 300 beds. The shelter will close today and remain on call as a potential isolation and quarantine site should hospitals become overwhelmed by COVID-19 cases in the future.

According to King County Department of Community and Human Services director Leo Flor, staffing is a significant bottleneck at every current shelter, making it hard to increase the number of beds available even when there is plenty of room, as is the case at the massive former showroom in SoDo.

“Staffing has been one of the critical constraints on this system since February,” Flor said. One reason it’s hard for agencies to staff up to expand shelter capacity right now, Flor added, is that the federal money that pays for COVID-specific shelters is temporary—people would rather have jobs with some guaranteed longevity than a three-month gig that could be extended to six.

But the county’s conservative approach to COVID plays a role, too. The SoDo site was originally designed as an isolation and quarantine site (with HVAC and filtration systems that help prevent disease transmission as well as smoke inhalation) and could still be used for that purpose. So could a similar facility in Bellevue, which remained empty this week as smoke settled over the region. “We need a system that can flex, if we start to see increases in the prevalence of the virus, [to accommodate] that can’t be housed in their own homes,” DCHS housing and community development division director Mark Ellerbrook said.

The long-term purpose of the SoDo site is unknown, although the county has reportedly been working on plans to convert it to enhanced 24/7 shelter.

Support PubliCola
PubliCola is supported entirely by generous contributions from readers like you. If you enjoy breaking news, commentary, and deep dives on issues that matter to you, please support this work by donating a few bucks a month to keep this reader-supported site going—and expanding!

If you don’t wish to become a monthly contributor, you can always make a one-time donation via PayPal, Venmo (Erica-Barnett-7) or by mailing your contribution to P.O. Box 14328, Seattle, WA 98104. I’m truly grateful for your support.

2. The social media manager for the Seattle Human Services Department (whose name I am not printing, since he is not a public figure) was reprimanded and relieved of his Twitter and Facebook duties after posting a series of sarcastic, borderline hostile responses to people raising questions about the city’s response to homelessness.

For example, in response to someone who said the city should house people instead of relying on temporary shelters, @SeattleHSD responded that it was “reckless and irresponsible” of them to suggest that simply moving every single unsheltered person into an apartment would solve the problem” of homelessness.

When someone tweeting asked a question about the terminology HSD uses to refer to people experiencing homelessness, @SeattleHSD responded, “Unfortunately, there are people on Twitter and in the media who like to complain and spin misinformation when what we say to the public doesn’t match exactly with internal data or communications even when it is just making these kinds of distinctions.”

And when several people questioned the city’s relationship with the historically anti-LGBTQ Salvation Army, @SeattleHSD responded defensively, implying that the tweeters did not understand how shelter contracts work and snapping at one, “If you are aware of a local organization with trained staff that is prepared to operate a new 24/7 shelter, please go right ahead and share that information with us.”

This is the second time in less than four months that the HSD staffer behind the account has lashed out at critics. In late May, after a controversial homeless encampment removal, the staffer spent the better part of a day scrapping with random people who opposed the sweep, often dismissing criticism with sarcastic and heated language.

On Thursday afternoon, the Human Services Department tweeted out an apology for the “content/language/tone” of the tweets. The person who posted the apology tweet closed the replies, eliminating the public’s ability to comment directly (if not indirectly) on the outburst.

3. As we noted in Fizz on Tuesday, the city just ditched its high-cost mobile shower vendor, VIP Restrooms, for three new contracts —two with United Site Services, for two shower trailers at King Street Station and the Green Lake Community Center, and one with OK’s Cascade Company, for a trailer at Seattle Center.

While difficult to compare directly because different things are included in each contract (for example, two of the trailers don’t require daily pumpout services because they’re connected directly to the city’s sewer system), the two new contracts are both less expensive than VIP, which charged the city ultra-high prices when mobile showers were in high demand at the beginning of the pandemic.

According to Seattle Public Utilities, the United trailers—not counting pumpouts, staffing, and materials such as towels and toilet paper, which add significant costs to the flat rental fee—will cost between $6,000 and $7,000 a month, and the OK’s trailers (with all the same caveats) will cost just over $16,000. Altogether, the three contracts are providing 15 shower stalls. VIP’s bid to continue its existing contract was a little over $19,000 a month. For comparison, in March, as I reported, the city put nearly $30,000 on a credit card to rent two three-stall VIP trailers for just one week.

As a procurement agent for the city noted drily on the letter transmitting the United contract, “At the start of the COVID-19 emergency, we were only able to find shower trailers from VIP Restrooms due to high demand and short supply. The demand/supply issue still exists but we were able to obtain quotes from two other suppliers that offer the trailers at a lower price.”