For a time last year, Seattle Mayor Jenny Durkan, basking in the signing of a long-delayed police-union contract, looked ahead to January 2020 and hoped the halfway point of her term would coincide with the first opportunity for lifting federal oversight of the Police Department.
But that expectation quickly hit a bump when an outside arbitrator overturned the firing of an officer who had punched a handcuffed woman. That prompted the federal judge overseeing reforms to ultimately find the department had fallen partly out of compliance with a 2012 consent decree sought by the U.S. Justice Department to address allegations of excessive use of force and biased policing.
In a major blow to the city, U.S. District Judge James Robart cited deficiencies in the new contract, including the disciplinary appeal process, artificial time limits on internal investigations to avoid discipline and a lack of subpoena power to gather information on officers, that undermined public trust in the Police Department’s disciplinary system.
While Durkan didn’t attend the May court hearing in which Robart announced the setback, she painted the outcome as an overall victory because the judge had found the department in compliance with other key requirements of the consent decree.
She also resisted asking the Seattle Police Officers Guild (SPOG) to return to the bargaining table.
But in court papers filed Thursday night, the deadline to respond to Robart’s request for a blueprint to regain compliance, city attorneys informed the judge the mayor is willing to make changes in the disciplinary and appeal process “top priorities” — but not until the next round of negotiations begin early next year over a new contract in 2021.
In the meantime, the lawyers said, the city would conduct an in-depth, nationwide study of best police-accountability practices in 20 cities, guided by a Chicago-based consulting firm at an undisclosed cost.
“The City … believes that the assessment will benefit the Seattle Police Department (SPD) and increase public confidence,” they wrote, noting the review would be consistent with past assessments that helped shape other parts of the consent decree.
Whether Robart accepts that premise — which is strongly opposed by the city’s Community Police Commission (CPC) and others as unnecessary and redundant in light of years of local reform work — remains to be seen.
But what is clear now is that Durkan, after looking like she might preside over the end of the consent decree, finds herself the fifth mayor in a row, dating to 1999, to become ensnarled in police-accountability politics with no end in sight. In her case, it is particularly notable since Durkan spearheaded the consent decree in her previous job as U.S. attorney.
As mayor, Durkan came into office about the time Robart found in January 2018 that the department had reached “full and effective” compliance with the consent decree. His ruling triggered a two-year clock, whereby the city could be freed of federal oversight in January 2020 if it showed reforms had been locked in place.
The path appeared to be clear until the arbitrator’s ruling, which coincidentally was overturned by a King County judge Friday who, in a separate ruling, overturned the arbitrator at the city’s request and reinstated the firing of Officer Adley Shepherd.
Durkan found herself facing a powerful police union, with a long history of trading reforms for money, most recently with the backing of organized labor. Rather than seizing on perhaps a once-in-a-generation opportunity to fundamentally alter the police union’s power, Durkan, who has a past record of challenging the guild, has chosen to take what she regards as a more realistic approach.
“The City does not have the right unilaterally to impose changes to the accountability system or even to demand bargaining over such changes before the start of negotiations on a successor CBA,” the city’s attorneys wrote in Thursday’s filing, referring to the collective bargaining agreement.
Reform advocates and some city council members have called for the mayor to seek immediate talks with SPOG to address Robart’s request for remedies. Labor groups have made clear they would consider that a slap in the face.
The city also has received suggestions to quickly exercise so-called reopeners in the current contract, the city attorneys wrote of certain provisions SPOG must revisit at the city’s request.
“That can be a sound bargaining strategy,” the attorneys added. “However, the City must also weigh countervailing considerations, including the length of time that accomplishing negotiations under reopeners would take and whether it would be more productive to bargain holistically or piecemeal.”
Moreover, they wrote, it is unlikely that the issues subject to a reopener could be resolved by the time the city enters negotiations on the next SPOG contract in March 2020.
“From start to finish, the process of initiating bargaining on a reopener and proceeding to a final decision by an arbitrator would take at least nine to twelve months,” they said.
Prior to Thursday’s court filing, the ACLU of Washington and a coalition of more than 30 community organizations urged the city to abandon plans to hire “new, out-of-state consultants” and instead work with the CPC and Robart’s court-appointed monitor to resolve the issues.
“Hiring new consultants and diverting attention away from the Court’s directive serves to undermine, rather than build, community trust,” reform leader Diane Narasaki said in a news release this week.
The Justice Department, which initiated the reforms under President Barack Obama but has been resistant to such consent decrees since President Donald Trump took office in 2017, also filed court papers Thursday.
“The United States maintains its position that the choices and decisions the City makes with respect to its police accountability system (beyond those expressly stated in the Consent Decree) are outside the scope of the Consent Decree,” federal attorneys wrote.
Nevertheless, the Justice Department has no objection to the city’s proposed response, they wrote.
Opponents of Durkan’s approach say it will cause further delays, with one city official, who requested anonymity because of the sensitivity of the situation, suggesting that Durkan might benefit from consent-decree fatigue among some people. They instead want the city to build off landmark police-accountability legislation passed by the City Council in 2017, which included provisions to tighten appeal procedures for disciplined officers.
Those provisions were eliminated in the new union contract, enacted in November, in favor of the continued use of arbitrators with some modifications aimed at limiting manipulation of the process.
Robart, in his order, questioned the right to arbitration for disciplinary appeals, asking whether “a labor arbitrator whose livelihood is based on her continued selection, should have the ability to overturn the decision of a respected, trained, experienced chief of police.”
Durkan spokesperson Stephanie Formas said Friday that the mayor and Police Chief Carmen Best are “wholly committed to true community based policing, and a department that is accountable, effective and continuously improving.”
The mayor has helped push significant reforms, including many aspects of the police-accountability ordinance, Formas said. Included was the guild’s acceptance of body cameras on officers and the creation of an independent inspector general, with broad oversight powers and unfettered access to the department.
“Far from having ‘fatigue,’ both she and Chief Best understand that reform is never done,” Formas said.
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