Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 1 of 11

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THE HONORABLE JAMES L. ROBART

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE
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UNITED STATES OF AMERICA,
Plaintiff,

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v.

Case No. 2:12-cv-01282-JLR
THE COMMUNITY POLICE
COMMISSION’S RESPONSE TO
21CP’s ASSESSMENT OF POLICE
ACCOUNTABILITY

CITY OF SEATTLE,

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Defendant.

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Perkins Coie LLP

146743935.2

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 2 of 11

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I.
II.
III.

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IV.

INTRODUCTION ............................................................................................................. 1
BACKGROUND ............................................................................................................... 1
21CP’S ASSESSMENT UNDERSCORES THE NEED FOR REFORM ........................ 3
A.
Reforming the Calculation of the 180-Day Timeline for Disciplinary
Investigations. ........................................................................................................ 3
B.
Restoring Subpoena Authority to the OPA and OIG. ............................................ 5
C.
Pegging Burden of Proof at Preponderance for All Disciplinary Actions. ............ 6
D.
Reforming Features of the Disciplinary Process Affecting Public
Confidence. ............................................................................................................ 7
E.
Next Steps Concerning Compliance and the Monitor’s Ongoing Role ................. 7
CONCLUSION .................................................................................................................. 8

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – i
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 3 of 11

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I.

INTRODUCTION

Seven months ago, the Court ordered the City to provide (i) an assessment of the current

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accountability regime, (ii) a proposed methodology to achieve compliance, and (iii) a proposal

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concerning the Monitor’s ongoing role in assessing accountability. The City’s submission only

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addressed the first part of that order. The assessment itself is not a basis to reconsider the

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Court’s May 21 order; on the contrary, the report underscores the critical need for reform before

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the City can achieve compliance under the Consent Decree.

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The City recently invited the Community Police Commission (CPC) to collaborate on the

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methodology to achieve compliance. The CPC looks forward to working with the City. But

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unless the City is willing to craft a methodology that directly addresses the failings in the last

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round of contract negotiations with the police unions, the process will fall short once again.

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II.

BACKGROUND

In its May 21, 2019, order the Court emphasized that “the statements and conduct of the

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parties throughout these proceedings reveal the inadequacy of the past accountability regime,

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[and] the critical need for reform to that regime.” Dkt. # 562 at 7. Agreeing with the CPC, the

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Court explained that the City’s collective bargaining agreement (CBA) with the police union

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(SPOG) “(1) retains significant attributes of the old appeals system that the parties admit needs

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reform, and (2) abrogates critical reforms in the Accountability Ordinance that the parties put in

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place.” Id. at 11. Citing to the parties’ own statements and admissions, the Court made clear

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“that the old accountability system is inadequate for purposes of compliance with the Consent

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Decree.” Id. at 13.

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The Court therefore concluded that because “the CBA eliminates reforms instituted by

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the Accountability Ordinance and leaves the old arbitration regime ‘materially unchanged’ the

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City and SPD have fallen out of full and effective compliance with the Consent Decree

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concerning SPD discipline and accountability.” Id. at 13. Based on that conclusion, the Court

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 1
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 4 of 11

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ordered the City, “with the assistance of the Monitor and the CPC,” to (1) assess the present

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accountability regime, and (2) propose a methodology to achieve compliance. Id. at 13-14.

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In a subsequent order, the Court cautioned the City not to use its assessment “to justify its

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current accountability system,” because if so, “the exercise will be a failure, reform will be

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delayed, and full and effective compliance with the Consent Decree will recede further into the

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future.” Dkt. # 585 at 4. The Court further warned that because it “has already determined that

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the City is out of compliance with the Consent Decree on accountability,” the City should not try

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to use its assessment “as a stealth method of bringing an out-of-time motion for reconsideration

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of that ruling.” Id. at 7. Confident that the City would “heed this warning,” the Court authorized

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the City to proceed with its assessment. Id.
The City appears not have heeded the warning after all. The City submitted 21CP’s

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assessment on December 13, 2019, which only addressed the first part of the Court’s May 21,

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2019, order. Dkt. # 598-2 (“the 21CP Assessment”). With the 21CP Assessment completed, the

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City now intends to address the second part of the Court’s order: developing a methodology to

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address the Court’s concern that “the old accountability system is inadequate for purposes of

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compliance with the Consent Decree.” Dkt. # 562 at 13. Despite the Court’s warnings,

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however, the City is already using the assessment to justify the current accountability regime,

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which the Court has found to be inadequate. According to the City, the 21CP Assessment

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“concludes that Seattle’s disciplinary and oversight system is working as intended,” and that

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there may be some areas “in which the system could benefit from improvement.” Dkt. 598 at 1

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(emphasis added).

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The CPC disagrees. The City’s synopsis is contrary to the Court’s conclusion that there

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is a “critical need for reform to that [accountability] regime.” Dkt. # 562 at 7. For the

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accountability system to work “as intended” it must be transparent, fair, just, and instill public

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confidence. The current regime falls short. That is why the City fell out of compliance with the

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Consent Decree. Vaguely referencing that the system “could benefit” from improvements
CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 2
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 5 of 11

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suggests that the City does not appreciate the “critical need for reform,” and does not intend to

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submit a methodology strong enough to bring the City back into compliance. Any methodology

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should fully address the four areas the Court has highlighted: (1) calculation of the 180-day

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timeline for disciplinary investigations; (2) lack of subpoena authority for the Office of

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Professional Accountability (OPA) and Office of the Inspector General (OIG); (3) the standard

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of review and quantum of proof in disciplinary appeals; and (4) other areas affecting public

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confidence.

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The City recently invited the CPC and its counsel to meet in person to discuss how to
craft a methodology that would bring the City back into compliance on the issue of

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accountability. The CPC welcomes this opportunity, although significant time has already been

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lost as preparations for bargaining are already well underway. The CPC is confident that the

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City, the Monitor, OPA, OIG, and CPC are capable of working collaboratively to develop a

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robust methodology to bring about compliance, but at this time both the nature and depth of the

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collaboration the City has in mind and the outlines of a methodology remain undefined.

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III.
A.

21CP’s Assessment Underscores the Need for Reform
Reforming the Calculation of the 180-Day Timeline for Disciplinary Investigations.
On November 25, 2019, the CPC sent the City its recommendations concerning the

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City’s collective bargaining agenda with SPOG and the Seattle Police Management Association

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(SPMA). Declaration of David A. Perez, Ex. A (“CPC Bargaining Agenda Letter”). In that

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letter, the CPC urges the city to reform the calculation of the 180-day timeline for disciplinary

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investigations so that the start/end times are consistent, the timing is tolled under appropriate

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circumstances, and to remove the requirement that the union approve any extension. Id. at 2

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(Priority 2).

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The 21CP Assessment illustrates the need for reform. 21CP points out that “the

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requirements for an investigation extension request by OPA to the Guild due to a criminal

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investigation lack precise definitions that could create a risk that serious misconduct could be
CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 3
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 6 of 11

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held unaccountable.” 21CP Assessment at 35 (emphasis added). In fact, 21CP found that on this

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issue Seattle is an outlier: “[t]he calculation of time and extension request process appears to be a

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practice that is exclusive to Seattle.” Id. (emphasis added).

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First, 21CP found that Seattle appears to be the only jurisdiction that “require[s] the

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investigative agency [e.g., OPA] . . . to seek permission from a police union” to obtain an

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extension. Id. at 35-36. In most jurisdictions the union “has no role in determining or giving

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consent to tolling or extending an investigation.” Id. at 35. Giving the union the ability to veto

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an extension request “raises questions” about whether this provision can ensure “certainty,

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timeliness, and fairness” over the process. Id. at 38.

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Second, 21CP points out that the SPOG agreement allows for tolling when a “complex

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criminal investigation” is ongoing and the City has exercised due diligence during the

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investigation. Id. at 37. But what makes an investigation “complex” is unclear and undefined.

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Id. at 38. Limiting the tolling to “complex criminal investigations,” rather than all criminal

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investigations, makes no sense because any criminal investigation might take a long time, no

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matter its underlying complexity. That’s why other jurisdictions allow for tolling for any

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criminal investigation, without an inquiry into whether the investigation is complex enough to

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warrant such tolling. See id. at 38, n.65. In theory the unions in Seattle could exercise their

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unprecedented veto authority over an extension request based on their view that the underlying

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criminal investigation was not complex enough to warrant an extension.

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Third, 21CP cautions that the 180-day timeline might run out without a proper

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investigation because the clock restarted without OPA’s knowledge. Id. at 38-39. There

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currently is no formal process to ensure “that OPA receives prompt notification” that a criminal

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investigation has ended. Id. at 39. This creates a risk that OPA may be prevented “from taking

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any action” even if there was misconduct. Id.

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Taken together, the 180-day timeline must be reformed.

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 4
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 7 of 11

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B.

Restoring Subpoena Authority to the OPA and OIG.
The Accountability Ordinance made clear that OIG and OPA both had full subpoena

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authority to obtain relevant evidence and testimony. But the SPOG agreement drastically

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curtailed the authority by blocking OIG and OPA from issuing subpoenas “to bargaining unit

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employees and their family members, and third party subpoenas seeking personal records of such

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employees and their family members.” 21CP Assessment at 41 (citing SPOG CBA). In its

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November 25 letter, the CPC emphasized the need to restore full subpoena authority to OIG and

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OPA. CPC Bargaining Agenda Letter at 2 (Priority 3). 21CP’s report provides further support

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for the reforms that the CPC has identified.

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First, 21CP explains that there is “uncertainty about the tools available to OPA and OIG

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to obtain evidence.” 21CP Assessment at 40. This far into the Consent Decree process, it is

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unacceptable for the oversight agencies to have unclear and undefined authority to obtain the

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very evidence they need to do their job. The authority should be clear, transparent, precise, and

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effective. But right now it isn’t any of those things.

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Second, the report notes that the OPA may be “‘self-limit[ing]’ investigations knowing it

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can’t obtain certain records.” Id., at 41. That is a troubling finding. OPA should be robustly

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investigating all allegations of misconduct, and when necessary and appropriate seeking relevant

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evidence that can only be obtained through a subpoena.

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Third, far from leading on this issue, Seattle is backtracking relative to its peers.

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According to 21CP, the limitation on OPA and OIG’s subpoena authority “is clearly more

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restrictive as to officers, their families and records in the possession of officers or their families

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than found in the five benchmark cities that also have civilian-led oversight agencies with the

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authority to investigate alleged misconduct.” Id. at 45 (emphasis added). In fact, “[n]one of the

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five cities with investigative civilian agencies have restrictions on issuing subpoenas.” Id.

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(emphasis added).

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 5
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 8 of 11

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The City must make the restoration of full subpoena authority to OIG and OPA a priority

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in the next round of labor negotiations.

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C.

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Pegging Burden of Proof at Preponderance for All Disciplinary Actions.
In its November 25 letter, the CPC urged the City to return to the “preponderance

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standard for all allegations of misconduct.” CPC Bargaining Agenda Letter at 2 (priority 1).

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The SPOG agreement established an “elevated standard of review (i.e. – more than

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preponderance of the evidence)” for those cases where the discipline might be stigmatizing to the

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officer. 21CP Assessment at 47 (citing SPOG CBA). And for misconduct involving dishonesty,

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the CBAs further elevated the standard to “clear and convincing.” Id. The 21CP report

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illustrates the urgent need for reform on this issue.
First, Seattle is once again an outlier on this issue: the “majority” of departments who

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responded to 21CP’s survey indicated that they use “preponderance of evidence” as the standard

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in disciplinary appeals. Id. at 51. In fact, 77% of the agencies that responded to 21CP’s

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assessment indicated that the quantum of proof for the chief or sheriff to impose discipline is

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“preponderance of evidence.” 21CP Assessment at 28.

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Second, making matters worse, the CBAs do “not define alleged offenses that are

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stigmatizing.” 21CP Assessment at 16. As the CPC has pointed out, any serious allegation of

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misconduct can (and likely would) be viewed as stigmatizing; applying an “elevated standard of

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review” for such offenses makes it much more difficult to hold officers accountable for the most

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egregious instances of misconduct. By making the standard of review a moving (and elevated)

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target, “the quantum of proof is not certain or predictable and dependent on the norms of the

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individual arbitrator.” Id. at 52.

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Applying a standard higher than preponderance can significantly damage public

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confidence in the accountability system, and may even violate public policy. In fact, 21CP

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points out that applying higher burdens “does not always survive judicial scrutiny.” Id. at 53. If

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it is “more likely than not”—the preponderance standard—that an officer lied or committed
CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 6
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Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 9 of 11

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some other act of serious misconduct—it would be absurd to keep that officer on the force

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simply because there may be some residual doubt that would not pass muster under some

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elevated standard such as clear and convincing. See id. at 53, n.89.

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D.

Reforming Features of the Disciplinary Process Affecting Public Confidence.

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In its November 25 letter, the CPC also identified various other reforms to features of the

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disciplinary process that affect public confidence. CPC Bargaining Agenda Letter at 2 (priorities

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4 – 10). The 21CP report provides further support for several of the CPC’s recommendations.

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For instance, the Accountability Ordinance required that all disciplinary appeals be “open
to the public and shall be heard by the PSCSC.” SMC 3.29.420. As 21CP points out, “[t]he

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agreements eliminated the requirement in the accountability ordinance that disciplinary appeals

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be open to the public.” 21CP Assessment at 47. This ensures that the appeals remain shrouded

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in secrecy, eliminating the transparency key to public confidence. To some, the process is “like

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a ‘black box.’” Id. at 53. According to 21CP’s own analysis, closing these hearing off to the

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public makes it “difficult for the public to track the status of sustained discipline cases through

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the grievance and appeals process.” 21CP Assessment at 4 (Finding 8).

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The disciplinary process should be transparent. The Court well recalls the outrage that

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ensued when the decision to overturn the discipline in the Adley Shepherd case was withheld

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until after the City Council approved the latest CBA. See Lewis Kamb and Steve Miletich,

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Seattle, police union delayed release of ruling to reinstate fired officer until after labor contract

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was approved, Seattle Times (Jan. 14, 2019), available at https://www.seattletimes.com/seattle-

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news/city-police-union-delayed-release-of-ruling-to-reinstate-fired-officer-until-after-approval-

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of-contentious-new-police-contract/ (last visited: Dec. 31, 2019).

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E.

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Next Steps Concerning Compliance and the Monitor’s Ongoing Role
The Court ordered the City to “submit ‘a methodology . . . for how the City proposes to

achieve compliance’ on the issue of accountability.” Dkt. 585 at 8. That methodology should

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 7
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 10 of 11

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have been submitted at the same time as the assessment—but it wasn’t. The CPC intends to

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work with the City on this methodology to ensure it is responsive to the Court’s order.

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The Court also ordered the parties to submit joint or separate proposals “concerning the

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Monitor’s role in assessing accountability compliance.” Id. at 9. But the City omitted any

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mention of this issue in its filing. The CPC will respond to the parties’ proposal(s) when they are

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submitted. The CPC notes that the Monitor has been extremely effective (and efficient) in

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moving the City towards compliance with the Consent Decree. Retaining the Monitor could help

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in the overall efforts to reform the accountability regime in ways that bring the City into

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compliance with the Consent Decree. Unless and until the City get into compliance, and

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maintains that compliance for two years, it is critically important that the Court and the Monitor

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remain involved in this process.

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IV.

CONCLUSION

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Far from demonstrating that the current accountability regime is working “as intended,”

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the 21CP Assessment underscores the Court’s previous findings that there is a “critical need for

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reform.” The CPC is encouraged by the City’s overtures to collaborate on a methodology to

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achieve compliance. The CPC looks forward to working with the City, the Monitor, OIG, and

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OPA to put the City and SPD back into compliance on the issue of accountability.

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DATED: January 6, 2020

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/s/ David A. Perez
David A. Perez, WSBA No. 43959
DPerez@perkinscoie.com
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: 206.359.8000
Facsimile: 206.359.9000
Attorneys for Amicus Curiae Community
Police Commission

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CPC’S RESPONSE TO
21CP’s ASSESSMENT
(No. 2:12-cv-01282-JLR) – 8
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:12-cv-01282-JLR Document 602 Filed 01/06/20 Page 11 of 11

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CERTIFICATE OF SERVICE

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I certify under penalty of perjury that on January 6, 2020, I caused the foregoing

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document to be electronically filed with the Clerk of the Court using the CM/ECF system, which

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will send notification of such filing to all attorneys of record.

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DATED this 6th day of January, 2020.

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s/ David A. Perez
DPerez@perkinscoie.com

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CERTIFICATE OF SERVICE
(No. 2:12-cv-01282-JLR) – 1
146743935.2

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000