Tatum Report Depicts Bleak Conditions for Accountability at APD
Is meaningful reform to address bias, bigotry “aspirational at best”?
By Austin Sanders,
2:20PM, Wed. Apr. 22, 2020
While the specific allegations of bigotry that rocked Austin Police Department leadership in late 2019 could not be corroborated, the 46-page report of investigator Lisa Tatum’s findings documents a pattern of racism and sexism that has permeated the department for years, and that APD staffers did not expect to change.
“We listened to many anecdotes illustrating inappropriate comments over the years through which APD personnel expressed concern about racist behavior, but also sexist behavior, and dissimilar treatment in the handling of officer discipline and those who may be served by APD chaplain services with the denial of marital services to same sex couples,” page 44 of the report reads. “There are some real cultural issues that are in need of attention.”
But Tatum, a former Bexar County prosecutor now in private practice, did not find evidence to support the specific charges made in anonymous complaints against Police Chief Brian Manley and former Assistant Chief Justin Newsom. “At this investigation’s conclusion, we can say we have gathered a great deal of information and have a significantly increased knowledge about the culture at APD,” the report reads, “but have not gleaned a large number of answers to the questions asked at the start of this investigation.”
Allegations that Newsom regularly used racist language about Black people were first surfaced during a civil service arbitration hearing for another former APD leader, Jason Dusterhoft, who Manley demoted and then fired in 2018. Those claims prompted Newsom to resign abruptly in late October, and the report notes that some people interviewed for the investigation “indicated they were not surprised by the fact that these allegations were raised,” while others were.
Nor could Tatum’s investigation substantiate that Manley knew of Newsom’s alleged transgressions before the assistant chief retired with a generous benefits package. Sometime around Sept. 24, the report says, Newsom made Manley aware that “he was concerned about his text history becoming public” during the Dusterhoft hearing but did not specify why. Manley did not inquire further, referred Newsom to the city’s law department, and was on vacation when the specific complaints were filed with the Office of Police Oversight on Oct. 30. Newsom declined to be interviewed by Tatum for the investigation.
Manley’s inaction has been a focus of scrutiny by the City Council, at the Austin Police Association, and within APD leadership. On Monday, April 20, CMs Natasha Harper-Madison, Greg Casar, and Jimmy Flannigan and Mayor Pro Tem Delia Garza held a press conference at which their message was clear: Just because – and perhaps because – Tatum was unable to find smoking-gun evidence of APD racism in plain sight of its executive team doesn’t mean that the department is free of serious cultural problems.
“Even though no racist text messages were uncovered, the report says multiple interviewees confirmed the former assistant chief and several of his close friends on the force were well-known for their use of racist language,” Harper-Madison said. “It also finds fault in Chief Manley for the way he seemingly buried his head in the sand upon initially finding out about the existence of the problematic text messages.”
The charge to Tatum to find those texts, months after their existence had become public, was a fool’s errand (Tatum described it as “aspirational at best” in the report). But the timeline of events laid out by Tatum underscores the roles that both Manley and APA President Ken Casaday played in the Newsom saga.
By Oct. 25 Manley knew three key pieces of information: A complaint against Newsom had been emailed to him, which he shared with the Office of Police Oversight on Oct. 7; AC Troy Gay, who serves as Manley’s chief of staff, advised him to open an investigation into the allegations on Oct. 24; and Newsom himself had already acknowledged a month earlier that, at the time of the Dusterhoft hearing, that if his texting history became public, he would end his career. Still, Manley didn’t open an investigation and went on vacation instead, telling Gay he would make a decision upon his return.
While Manley was gone, another anonymous complaint was filed, restating and adding to the charges against Newsom as well as others, on Oct. 30. That one was also sent, presumably by its author, to Council members and to media outlets (including the Chronicle), whereupon reporters reached out to Casaday, the head of the police union, for information on the allegations. Casaday now says he didn’t know anything about the allegations at the time, so he declined to comment.
But what he did next has been interpreted by some as a clear betrayal of the investigative process, if not a violation of departmental policy, and by Casaday himself as standard practice for a union boss. Casaday called Newsom to warn him that reporters were asking about the allegations – both men, at this point, were unaware that a complaint about the allegations had already been sent to OPO.
Casaday claims he didn’t violate policy, because no investigation had at that point been initiated into Newsom’s behavior. He also says he wouldn’t have done anything differently, so long as the circumstances were the same: “Officers have the right to know if someone is asking pinpoint questions about them,” he explained to us, “because one of our officers’ biggest gripes is that the department will know something is going on but doesn’t notify them. Then, later that night, their family finds out about it on the news. I’ll continue to use this practice.”
As recounted in Tatum’s report, on the evening of Oct. 30, Gay was on the phone with OPO staff discussing the complaint against Newsom. While he was on the line with Bassil Ally, an attorney in the city’s legal department who works on APD labor issues, the AC received an incoming call from Newsom. Before Gay switched over, “Ally admonishes AC Gay NOT to mention Complaint 1 to AC Newsom until the procedures are followed to certify Complaint 1.”
The report goes on to say that Newsom was calling to discuss his retirement and to “inquire about his eligibility for benefits” – presumably after he spoke with Casaday and learned of the complaint against him. It’s unclear why exactly Ally warned Gay not to talk with Newsom about the complaint, but tipping off Newsom – as Casaday had apparently done – would give him the opportunity to retire before an investigation was opened, and thus retain access to his six-figure retirement package (a cash-out of his accrued sick time). At 6:21pm. on Oct. 30, that’s what Newsom did – just five hours after the complaint against Newsom was filed with OPO and shared with the media and Council.
For Casaday and some other observers, whether the APA boss violated any policy by tipping off Newsom is almost beside the point; what troubles them is the lack of substantive action taken by Manley in the weeks prior. “This is really a failure of the Chief,” Casaday told us. “I think he’s partially accepting responsibility, but something should have happened on Sept. 23.”
According to Tatum’s report, many members of APD’s executive staff were frustrated by the fact that Newsom was afforded the opportunity to retire with benefits, after Manley and other Assistant Chiefs knew about Newsom’s problematic texts for over a month, with little effort made to learn more about that text history. “The feeling of betrayal and an abuse of the system were quite prevalent” among some in that leadership, the report says. (The investigators interviewed more than 60 sworn and civilian employees who’d worked with APD’s “fifth floor” executive team since Manley became acting police chief in 2018; in the report, Tatum says “20%” of those interviewed – so, a dozen – expressed such frustrations.)
Manley declined an interview to discuss the report’s findings, but issued a statement saying, “The Austin Police Department remains committed to working within our department, as well as within the community, to address the issues brought forward in the Tatum Law Independent Investigation in a collaborative and solution based approach. It is important that we maintain the trust we have within the community and department, and build trust in those areas where it is lacking.”
Manley’s statement continued: “We will make all necessary changes to ensure our employees have a work environment and culture that promotes equity, fairness, and frees them from concerns of retaliation. The Department has put forth significant effort as an agency in the area of unconscious bias, racial and cultural sensitivity training, and we see the report as an opportunity to implement additional measures to ensure we are solidly on the path to improving as a Department.”
But those sentiments were not shared by individuals participating in the Monday press conference. Garza shared her own frustration with APD leadership. “I’ve seen APD fight us time and time again on reforms intended to achieve equity, and [not seen] APD leadership step up and become the partners the community needs [the city] to be.” Prominent criminal justice reform advocates said the report “speaks, in many ways, to a decade of scandals that have plagued APD,” and that the report illustrates “an unwillingness to acknowledge racism and sexism in the ranks” at the department.
A separate complaint involving AC Gay, who was alleged to have sought “conversion therapy” for a family member with the support of Manley, likewise yielded no results, with Tatum not being able to make contact with that original whistleblower. Tatum’s entire report highlights the difficulty she had tracking down information due to mismanagement of records, fear of retaliation from personnel, and what she describes as “quiet resistance” from some interview subjects, in the form of “evasiveness, misdirection and deflection.”
More troubling is the general lack of faith expressed to Tatum that Council, APD leaders, or the City Manager's office would actually do anything to change the culture within the department. The report describes as a “consistent subject of concern” the “extremely low degree of expectation, based upon past experience, that this independent investigation, or any investigation into the Department, will result in a substantive report, in the provision of any details learned or discovered or in disclosure of ‘the truth.’”
Tatum also highlights the limitations on APD accountability imposed by the “180-day rule” in the Meet and Confer agreement between the city and the police union, which essentially prohibits disciplinary action against officers once six months has passed from the time of the improper conduct – even if an investigation is launched immediately. This has been a provision of the city’s police contracts for several decades, and Tatum thinks little of it. “When used inappropriately, a violation of policy may be overlooked, left unattended, or disregarded until 180 days have passed, [thus] barring the more strict consequences from consideration,” the report reads. “Inappropriate use of discretion and the time limitation can lead to a complete avoidance of ... consequences for misconduct.”
Changing the rule would have to wait for a renegotiated police contract – a divisive process that took City Hall and the APA an extra year to resolve before agreeing to the current terms. The contract does not expire until September, 2022; opening up talks sooner seems unlikely. When those negotiations do begin, we’re likely in for another protracted battle over the 180-day rule, staffing, and provisions requiring more extensive anti-bias training. Casaday remains firm in his commitment to keeping the 180-day rule in the contract – unless it could be used as a bargaining chip, he told us, saying the rule could be changed “when our police department is properly staffed and officers are not working 60 hours a week.”
What happens now at APD is largely up to City Manager Spencer Cronk. Council has a clear will to institute departmental reform, but its faith has been shaken that current leadership is willing, or even able, to enact that change. Last December, Harper-Madison won Council support for a wider investigation into APD culture – to be completed after Tatum delivered her report – that would examine training materials and practices, hiring and promotion decisions, and use-of-force incidents, among other subjects. That resolution included milestones intended to track progress of the reform and could result in a delay of future APD cadet classes – an idea that CMs are still open to, given the findings in Tatum’s report as well as the impact of the COVID-19 pandemic on APD staffing and resources. (Whether the increase in police staffing called for in the Fiscal 2020 city budget, and demanded by the APA in return for heightened oversight, could happen amidst the coronavirus crisis is unclear.)
It’s possible Manley could face discipline or even be fired over the Newsom saga. (“The City Manager retains a variety of options regarding all of the City’s Senior Executives,” a city spokesperson says.) Assistant City Manager Rey Arellano has been tasked to work with Manley to identify any recommendations in the Tatum report that could be acted upon immediately. The work outlined in Harper-Madison’s December resolution is under way, with an update expected from Cronk in the coming weeks.
The challenges that lie ahead for the Austin community and its leaders are no doubt great. Police departments rarely give in to reform easily, and the division of power among police chiefs, city managers, and city elected officials that’s prescribed by Texas statute make it difficult to create meaningful and sustainable change. As the Tatum report’s consequences follow upon past failures to fix APD, against a backdrop of disparate treatment of Black and brown Austinites documented in the department’s own data, it’s clear why there is little faith among the rank and file and those they ostensibly serve that anything will actually change this time. “I believe Austin deserves a world-class police department,” Harper-Madison said on Monday, “that shares a mutual trust and respect with the community it serves and protects.”