Tag: police discipline

Narrow Election for Seat on Little-Known Commission Highlights Politics of Police Discipline

By Paul Kiefer

A day before Christmas, a tight election came to an end. The incumbent was Officer Joel Nark, who has worked for the Seattle Police Department for 34 years. His challenger was Doug Johnson, a 21-year veteran of the Seattle Fire Department. Both were after the only elected position on the Public Safety Civil Service Commission (PSCSC), a three-member body that hears certain appeals from police and firefighters who were fired, demoted or suspended. Nark, who currently chairs the PSCSC, has held the elected position since 2003; he ran unopposed in three of the past six elections.

When the City Clerk’s office counted the votes from public safety employees—the only people who can vote in the election—Nark was ahead by one vote. The small margin triggered a recount.

The campaigns for a little-known position in the city’s police accountability system never spilled into the public eye, but the race was a case study in the intersection of politics and police discipline.

In the candidate statement he published last fall, Johnson took a bland, non-confrontational approach, pointing to his record working on the fire department’s Race and Social Justice Team; his experience presenting before the PSCSC, city council and mayor; and his ability to be a “neutral party when making tough decisions.”

Nark chose a very different tone. “The Commission is under assault from the Mayor, City Council, [and] Civilian Police Commission [sic],” he wrote. “They want to take rights away from the four unions that the PSCSC serves.” Nark was referring to a clause in the 2017 Police Accountability Ordinance that would have prohibited city employees from serving on the commission, as well as recently-retired SPD officers. Though that clause would have eliminated Nark’s position and replaced it with an appointee, the city’s 2018 contract with Nark’s union, the Seattle Police Officers’ Guild (SPOG), prevented the city from changing the PSCSC’s makeup.

He then turned his attention to his two co-commissioners—a pair of attorneys, one appointed by the city council and the other by Mayor Jenny Durkan. “The other 2 Commissioners now serving are both attorneys who have no police/fire background [a]nd have been on the PSCSC for 1yr & 1mnth respectfully,” he wrote. “As of now, I Chair the PSCSC and am doing everything I can with my 20yrs of institutional knowledge to protect your rights given to you by the State of WA.” In a gesture to the fact that his opponent is a fire fighter, Nark concluded by naming endorsements from two retired fire fighters.

As chair of the PSCSC, Nark has the ability to make decisions about his colleagues’ disciplinary appeals. His role on the PSCSC raised eyebrows when an SPD Officer named Todd Novisedlak appealed his firing to the PSCSC last year. His appeal hearings began on Tuesday morning.

Retired SPD Chief Carmen Best fired Novisedlak after an Office of Police Accountability (OPA) investigation found that he had beaten his ex-girlfriend and repeatedly used racist, sexist and homophobic slurs, including calling his Black sergeant a “monkey,” calling a fellow officer a “lazy Mexican” and referring to a third officer as “that crazy SPD whore.” Nark was close friends with Novisedlak and served as a witness in the OPA’s investigation. In his statements to the OPA, he said his friend didn’t use racist slurs or abuse his female partners; instead, he claimed to have spoken to Novisedlak’s ex-girlfriend, who he alleged had set out to “ruin” his friend’s career.

After Best fired Novisedlak, he sought to appeal his case. His union, the Seattle Police Officers Guild, wasn’t willing to support his appeal by providing an attorney, which would have enabled Novisedlak to bring his case to a grievance arbitrator—a route favored by police unions because arbitrators support roughly half the appeals they hear. Instead, Novisedlak had to face the PSCSC, which turns down appeals more frequently.

Shortly before the commission began to hear Novisedlak’s appeal on January 19, Nark recused himself from the proceedings, leaving commission’s two newly appointed members to make a decision in the case. But his decision to recuse himself didn’t eliminate the opportunities for conflicts of interest that the city council sought to address in the police accountability ordinance; Nark also heard the appeals of his co-workers, including fellow SPOG members, for the past two decades.

Nark will also have input into the PSCSC’s potential rulings on out-of-order layoffs of SPD officers: a proposal promoted by several city council members last summer as a means to reduce the size of the police force without laying off the newest, most diverse class of SPD recruits. As Durkan and the council emphasized during last summer’s debates about police department staffing, any attempts to lay off senior officers—chosen either for their lengthy disciplinary records or their specialized training for a unit the council deems non-essential, like the mounted unit—need the PSCSC’s stamp of approval. SPOG strongly opposes out-of-order layoffs, giving Nark an important role as the guild’s voice in that decision.

On Monday, the clerk’s office released the new results. According to Janet Polata, an IT supervisor with the city clerk’s office who oversaw the vote, her office received a “significant number of timely-postmarked ballots” after the election officially ended on December 24; she attributed their late arrival to the mail delivery delays in December. When the clerk’s office tallied the votes, Nark remained the winner: His margin increased by 42 votes.

 

Police Accountability Is On the Agenda in the Upcoming Legislative Session

Washington State Capitol (Credit: Creative Commons)

By Paul Kiefer

On December 24, Washington State Reps. Debra Entenman (D-47) and Jesse Johnson (D-20) filed legislation that would set statewide restrictions on law enforcement tactics, including bans on chokeholds, tear gas and the use of unleashed police dogs for arrests. Less than a week later, state senators Manka Dhingra (D-45) and Jaime Pedersen (D-43) filed a related bill that would expand the jurisdiction of the state’s Criminal Justice Training Commission (CJTC), a group appointed by the governor that has the power to certify and decertify law enforcement officers—to give or revoke their license to work as a law enforcement officer in the state.

In the upcoming state legislative session, another half-dozen members of the house and senate Democratic caucuses plan to add their own bills to the pile of state-level reform proposals that, if passed, could dramatically reshape the role of the state government in law enforcement accountability.

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The Dhingra-Pedersen bill is the key to many of the proposed reforms. Under current state law, the CJTC has to wait until a law enforcement agency fires an officer before considering whether to decertify that officer, which allows officers facing misconduct charges to move to new jurisdictions before they can be fired. The proposed legislation would expand the commission’s powers, allowing it to decertify law enforcement officers at its own discretion, including officers who retire or resign in lieu of termination.

The bill would also require law enforcement agencies to report any serious use-of-force incidents to the commission, as well as any preliminary misconduct allegations or criminal charges of which their officers are found guilty. The commission would use that information to identify officers whose misconduct is bad enough to merit decertification.

“Tactical restrictions, a duty to intervene or report excessive force—those things become meaningful when you have a way to enforce a statewide standard.”—State Sen. Jamie Pedersen (D-43)

While the Washington Association of Sheriffs and Police Chiefs, the group representing the state’s law enforcement leadership, has not publicly opposed the expansion of the CJTC’s power, Pedersen told PubliCola that some in police leadership have argued that the proposal stifles their voice in police discipline. But Pedersen added that expanding the power of the CJTC might help break down some barriers to accountability posed by local police unions. “One of the big problems in the current system is that almost all policy enforcement happens on a local level, and therefore is subject to the collective bargaining process and the arbitration process,” he said. “But tactical restrictions, a duty to intervene or report excessive force—those things become meaningful when you have a way to enforce a statewide standard.”

The bill would also reduce those sheriffs’ and police chiefs’ roles in the CJTC itself, by increasing the number of commission seats reserved for community members from 2 to 5, while decreasing the number of seats reserved for law enforcement representatives from 10 to 6.

While some of the proposed restrictions, such as a ban on “hot pursuits” in police vehicles, could stir up resistance from SPD, the inclusion of a ban on tear gas could also place the department in a legal bind.

The police tactics legislation filed by Entenman and Johnson would create a new set of statewide standards that the CJTC could enforce. Three of the eight tactical and equipment restrictions included in the bill are already part of the Seattle Police Department’s manual—bans on neck restraints; firing at moving vehicles; and intentionally concealing a badge. But those policies have not spread to many other departments statewide, so the legislation would hold those departments to the same standards as SPD.

While some of the proposed restrictions, such as a ban on “hot pursuits” in police vehicles, could stir up resistance from SPD, the inclusion of a ban on tear gas could also place the department in a legal bind. In July, Judge James Robart, the federal district court judge who oversees police reform in Seattle for the Department of Justice in an arrangement called a consent decree, ruled that Seattle couldn’t forbid officers from using tear gas during protest response; if Entenman and Johnson’s bill is successful, Seattle could face a choice between following state law and following orders from a federal judge. Continue reading “Police Accountability Is On the Agenda in the Upcoming Legislative Session”

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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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”