Following years of negotiation, Seattle has reached a tentative agreement with the Seattle Police Management Association (SPMA), one of two police unions. (The SPMA represents SPD lieutenants and captains). The agreement is a major linchpin of the police accountability legislation passed in May, and elicited approval from Mayor Tim Burgess and councilmember M. Lorena González last week. If approved by the full City Council, the contract would be retroactive to January 2014 and expire in 2019.
But for some community members, a provision in the contract allowing for “arbitration”—a common clause in police union contracts that allows officers to appeal disciplinary action—raises serious questions about accountability and is at odds with reforms in the legislation.
Designed to ensure checks and balances of SPD, this spring’s police accountability legislation created a trifecta of police oversight agencies. But for the legislation to be fully implemented, the city needs to enter collective bargaining agreements with both police unions—the SPMA as well as the Seattle Police Officers Guild (SPOG)—that accord with the legislation. Federal Judge James Robart, who supervises Seattle’s 2012 consent decree with the U.S. Department of Justice, will then consider final approval of the ordinance, according to a September written order.
As it stands, Seattle’s legislation will require that disciplinary appeals be reviewed by the Public Safety Civil Service Commission, an impartial three-member body whose meetings are open to the public. Commissioners serve three full-year terms and are appointed by the Mayor and the City Council. They are full-time civil servants who receive a small stipend for their hearings. Commissioners sometimes refer cases to a hearing examiner in the Seattle Office of the Hearing Examiner or hire an outside examiner if they lack the expertise for a certain case.
However, the temporary contract with the SPMA created last week proposed a second tract for officers to contest a disciplinary action. Under the temporary agreement, grievances will sometimes be reviewed by federally-accredited arbitrators from Washington or Oregon. Arbitrators are often lawyers or former judges who settle labor disputes; activists say that this is concerning because arbitrators get paid well for the work and want to be rehired, so they might not be completely objective and will side with the union.
If the City Council approves the tentative SPMA agreement, it’s likely that the city’s police accountability legislation would be amended to include this kind of arbitration.
This raised alarm bells for community activist Howard Gale, who was sitting in on a Community Police Commissioners meeting about the tentative SPMA agreement last week when he heard Ian Warner, Legal Counsel to the Mayor of Seattle, mention that arbitration would be available to Seattle police officers appealing disciplinary action.
The practice of arbitration has sparked nationwide debate. Some argue, like Gale, that the practice can provide corrupt cops with a method to appeal termination.
In an investigation published in August, for instance, the Washington Post found that the nation’s 55 largest municipal and county police departments have fired at least 1,881 officers for misconduct since 2006, but “departments have been forced to reinstate more than 450 officers after appeals required by union contracts.” The officers usually fought the firings through arbitrators, the investigation found, and arbitrators sometimes sided with the officers solely because police departments did not follow procedural rules. In one case, a D.C. officer who was fired for alleged forgery was reinstated after an arbitrator learned that the department missed the local law’s deadline to discipline the cop by six days. (In early September, the Seattle City Attorney’s office settled with Cynthia Whitlatch, a former SPD officer who was fired in 2015 over alleged racial bias, for more than $100,000 largely due to procedural issues with her dismissal and to avoid the possibility of her being reinstated by an arbitrator.)
Gale opposes the use of arbitration because he says that the process lacks accountability. For one thing, arbitrators would likely come from outside Seattle, he argues, while the commissioners come from within the community.
Since the City Council would need to change the police accountability legislation if it accepts the SPMA contract, Gale is also concerned that Judge Robart would react negatively to the change. Robart has been known to be heavy-handed in asserting his control over Seattle’s police reform process in the past; in 2016, he ordered the city to halt police accountability legislation until he had a chance to review it. And soon thereafter he threatened to override SPOG, Seattle’s largest police union, because its collective bargaining agreement obstructed constitutional reforms.
“It’s not justice and transparency to move on and accept arbitration,” Gale says. “And it’s also not expedient. The city’s arguing ‘let’s just move on,’ but we don’t know how the judge is going to take it.”
Although he says that Seattle’s police accountability legislation is far from perfect, Gale considers the arbitration clause a further erosion of police oversight. “It’s not like we’re starting with a full bag of marbles,” he quips. “We already gave away some marbles and now we’re starting to give away even more.”
For the city’s part, all unionized city employees have the right to arbitration; arbitration was even included in the last SPMA contract that expired at the end of 2013. If anything, the clause is a new and improved version because these arbitration hearings would be open to the public, unlike most. The tentative agreement also stipulates that arbitrators will be selected from a list arranged in random order that is provided by the Federal Mediation and Conciliation Service, an independent federal agency that offers mediation services.
Warner wrote in an email to Seattle Weekly that the SPMA tentative agreement “… improves current arbitration practices by creating a system that will be open to the public and allows SPMA’s voluntary acceptance of the accountability legislation and body cameras. These are important steps forward in our reform process.”
But for Gale, the arbitration process shouldn’t be accepted simply because it’s the norm. “The issue is that this is common practice,” Gale says. “That’s why we have to stop it.” He adds that the SPMA agreement’s arbitration clause would set a precedent, allowing SPOG to propose something very similar—a proposal that he believes would contradict the progress made in the police accountability legislation.
The City Council was expected to act on the tentative agreement on Monday, but instead accepted González’s amendment to postpone the vote until November 13 to allow for more time to thoroughly review it.
During the public comment period of Monday’s City Council meeting, Gale and two other concerned community members requested that City Council open up a public hearing about SPMA’s tentative contract, as they felt left in the dark about key provisions.
Public comments concluded on Craig Schwartz, a longtime resident of Seattle. He told councilmembers that allowing an arbitration system in police misconduct appeals on fatal shooting cases would “really fly in the face of justice.”