Understanding Prop A & B and the Policing Paradigm Shift on the Ballot

May vote could revolutionize civilian oversight

Prop A and Prop B share the same name but, if approved, each would have very different effects on police oversight (Photo by John Anderson)

When Austin voters cast their ballots in the upcoming May 6 election, they will decide how the next phase of civilian oversight of the Austin Police Department should be structured.

But more than that, voters will have the opportunity to issue a definitive statement in the struggle for effective police oversight that has played out at City Hall for two decades.

Voters will decide between two ordinances, both known as the Austin Police Oversight Act (APOA). Prop A is backed by Austin’s leading justice advocacy organizations, united under the coalition group Equity Action, along with various other Democratic and progressive organizations. Prop B is backed by the Austin Police Association (APA) and their statewide counterpart, the Combined Law Enforcement Associations of Texas (CLEAT). The outcome of the election may not represent a definitive victory for either side, but if Prop A passes, and even if APA sues over it, the movement for stronger, more transparent police oversight would be shored up considerably. (Especially if Prop B also fails, because if both pass, we can expect an even more complicated court battle.)

The concept of civilian-led police oversight is fairly straightforward. Without it, the police department would control investigation of officer misconduct from end-to-end, beginning with what allegations are investigated in the first place, how those investigations are conducted, and then how the accused officer is disciplined if the allegations are substantiated. Civilian oversight allows another entity – critically, one not belonging to or influenced by the police chain-of-command – to participate in those investigations, to ensure members of the public that they are carried out thoroughly and fairly.

“We believe that after an election of people soundly supporting our ordinance, it’ll send a message to City Council that these are the new guardrails for police oversight in Austin.” – Equity Action’s Kathy Mitchell

Now some historical context. The first meet-and-confer agreement – the labor contract negotiated between city of Austin management and the APA, which represents most of the officers working at APD – was negotiated 20 years ago. It established a formal system of police oversight in Austin that was revolutionary for the city, but it left many accountability issues untouched. Ever since, advocates have pushed for more civilian oversight, while APA has pushed back in the opposite direction.

It’s mostly been a losing fight for advocates. But in 2017, they scored historic victories. First, they pressured City Council into rejecting the latest police contract, an unprecedented move that set the stage for building, in 2018, the strongest civilian oversight system the city had ever seen. The contract created the Office of Police Oversight, granted it new levels of access into police misconduct records, and allowed it to play a greater part in APD’s internal investigations of complaints. APA leadership hated it.

So they found a way to reduce OPO’s power: the contract grievance process. Late in 2021, APA filed dozens of grievances against the city, alleging that OPO was overstepping its authority and violating the terms of the 2018 labor contract. APA eventually won an arbitration hearing (an out-of-court method to solve contract disputes). As a result, nearly all of the oversight powers that advocates secured in the 2018 contract vanished.

This stinging defeat motivated advocates to write their version of the APOA. In some ways, passage of Prop A would just restore the system of civilian oversight lost in the 2021 arbitration ruling. But it would go further than that – Prop A would completely change the nature of the fight for robust police oversight that advocates and the APA have been locked in for two decades. Oversight could no longer be used as a bargaining chip in contract negotiations and APA would have a harder time unraveling the new system of oversight through contract grievances. Though, there’s no doubt they will try to undermine the new system somehow. The game of tug-of-war is one they’re comfortable with, and one they have become accustomed to winning.

While Prop A and Prop B share much of the same language, important omissions from Prop B render it much less impactful (Photo by The Austin Chronicle)

But what will the voters of Austin say? If they vote for Prop A and against Prop B, especially in a lopsided margin, the hope among advocates is that the message to city leaders will be clear: Stop playing the game by rules that benefit APA. For people like Kathy Mitchell, this is a vital aspect of the election. Mitchell is currently treasurer of Equity Action, but she’s better known as one of the bigger thorns in APA’s side, and one that has been present for most of the struggle for stronger oversight in Austin. “We believe that after an election of people soundly supporting our ordinance, it’ll send a message to City Council that these are the new guardrails for police oversight in Austin,” Mitchell told the Chronicle. “Prop A’s APOA is like a procurement rule for police contracts, which the city does all the time. We can still bargain with the police association, but we must do it with these rules.”

Who is backing each ballot proposition, and how they have gone about showing that support, is important to understanding what’s at stake in the election. The misleading tactics APA front group Voters for Oversight and Police Accountability used to place Prop B on the ballot tells us something about how law enforcement groups feel their version of police oversight will fare with Austin voters. APA’s support of a bill in the Texas Legislature that would preempt some of the most important aspects of Prop A is just as transparent. The bill in question is Senate Bill 2209, authored by Sen. Kelly Hancock, R-North Richland Hills. It would prohibit civilian oversight commissions – like Austin’s Community Police Review Commission, which would be greatly empowered by Prop A – from conducting investigations into alleged officer misconduct altogether, and it could limit the amount of information OPO would have access to during their “preliminary review” of complaints.

Why would APA go to such lengths to defeat Prop A? An April 3 hearing in the Texas Senate’s Committee on Local Government, which included discussion of SB 2209, sheds some light on that question. APA President Thomas Villareal was one of the few people (along with a CLEAT representative) to testify in support of the bill. State Sen. Sarah Eckhardt, D-Austin, in her second session serving on the committee, asked Villareal a straightforward question: “What role do you believe civilians should have in police oversight?”

“I wouldn’t necessarily say that I am a proponent of [civilian oversight] ... I live with the fact that I recognize that if I’m going to be a successful president in Austin, Texas, I have to engage in those conversations more than I embrace them.” – Thomas Villarreal, Austin Police Association President

Villareal’s answer, while not as straightforward, was even more illuminating. “I wouldn’t necessarily say that I am a proponent of it,” the association president responded. “It’s just the reality in Austin if I don’t want 350-400 people to come down and speak against the [police] contract.” Perhaps taken aback by Villareal’s candid admission that he, as a 17-year APD veteran and tenured leader at APA, viewed civilian oversight as an obstacle to overcome rather than a community benefit to provide, Eckhardt attempted to clarify her question. She was asking what role Villareal thought civilians should play in the oversight of alleged officer misconduct, not what role civilians should play in police contract negotiations.

Villareal, once again, answered candidly. “If I didn’t have to negotiate contracts, if that wasn’t a thing, I would say they have no role in that. I live with the fact that I recognize that if I’m going to be a successful president in Austin, Texas, I have to engage in those conversations more than I embrace them.”

There’s the whole election in a nutshell. APA does not want officer misconduct to be investigated by civilians. But it’s something their leadership – dating back all the way to the first meet-and-confer – has accepted as something the people of Austin want. APA, like other police associations, views civilian oversight as a unique burden for officers, so they might as well use that burden to extract better pay and benefits out of the public. (Context police associations often leave out of the “burdensome working conditions” frame is that law enforcement is the only career that allows individual employees to use state-sanctioned force, including lethal force, on the job.)

The language included within each ordinance is remarkably similar. Prop B is Prop A, minus all of the oversight authority that APA does not like. APA did not respond to requests for an interview, and they did not respond to questions submitted by email that attempted to clarify how and why they wrote the ordinance.

We know APA’s stated reason for placing Prop B on the ballot. The association is not against oversight, they say, they just feel that the way Prop A goes about establishing civilian oversight would violate state law. It’s true that cities interested in designing a police oversight system that is robust, transparent, and legally sound face an uphill battle. Police oversight in Texas is governed by a web of authority established by state law, the city manager, and the city’s police labor contract – Chapter 143 of the Local Government Code (state law) defines the baseline for oversight; the city manager, through a city’s charter and its ordinances, allows city staff to conduct some degree of oversight as they do with all city departments; and the police contract, which must be ratified by the rank-and-file members of a police association and City Council, supersedes state law and local ordinances.

APA contends that some of the oversight authority that Prop A would grant to OPO cannot be done by city ordinance; it must be bargained over in the contract process. One example is what happens when an officer is investigated for alleged misconduct: the allegation is substantiated, OPO recommends that the officer be formally disciplined, but the chief of police – who, under state law, holds sole authority to discipline officers – ignores OPO’s recommendation. In these cases, Prop A requires the chief to publish a written explanation for why they issued a different, usually lower-level, form of discipline – but Prop B removes that requirement. Public disclosure of that information is something APA thinks should be bargained over.

The differences between Prop A and Prop B are both broad and subtle, and too numerous to recount fully in one story. But the overall effect is that, by comparison, Prop B would create a system of oversight that is weaker and more opaque than Prop A’s – even if some provisions within Prop A must be negotiated in a contract.

Primarily, Prop B’s weakness comes from one of its subtle differences. Both props contain sections titled “ban on agreements that contradict police oversight policy.” Advocates wrote this section to prevent the city’s labor negotiations team from bringing a police contract to City Council for approval unless it fully adheres to every provision within the APOA. That is, if the city’s Law Department determines that state law prevents the city from enforcing a part of Prop A via ordinance, then the city’s labor negotiators should ensure that particular oversight authority is included in the contract.

The Prop A version of this section is clear: “City Council shall not recommend or approve any contract … unless such contract or agreement is consistent with and fulfills each provision of this Chapter,” (emphasis is ours). The Prop B version was modified to read, “City Council shall ensure that any contract … is consistent with provisions of this Chapter.” A small change, but one that advocates fear could give Council enough wiggle room to adopt a contract that is consistent with the APOA, but perhaps does not fulfill it faithfully.

Other changes in Prop B are less subtle. The kind of “serious misconduct” that OPO and the Community Police Review Commission would be allowed to review in Prop A is more expansive (it includes allegations of “discriminatory acts” and arrests or detentions “based on false criminal charges,” but Prop B eliminates those two).

In Prop A, OPO is allowed to receive anonymous complaints about alleged officer misconduct (and compliments toward officers) and publish redacted versions. Prop B does not include this specific language around receiving anonymous complaints; in bargaining sessions for the 2022 meet-and-confer agreement, APA pushed for a version of “anonymous” complaints that would require the complainant to sign a sworn affidavit that would be kept on file in an APD database before the complaint would be accepted. So, not really anonymous at all.

But the most important differences between Prop A and Prop B relate to APD records that OPO and the CPRC would have access to and how they would be allowed to use them. Prop A would ensure both oversight bodies have “unfettered access to all information necessary to conduct effective civilian oversight,” which includes video from body-worn and dashboard cameras. Another section would provide OPO with “direct access, without hindrance, to…department personnel records” relevant to misconduct investigations.

For OPO to have “unfettered” and “direct access without hindrance” to APD records relating to alleged officer misconduct is key to ensuring that APD’s Internal Affairs Division conducts investigations thoroughly and with transparency. Prop A would also allow OPO to actively participate in APD’s internal investigations. The office would still have power constraints under Prop A – they wouldn’t be able to compel officers to answer questions during an investigation, for example (only the chief can do that).

But at least, OPO could “participate in investigations of officer conduct … with the right to gather evidence and directly interview witnesses,” which is language excluded from Prop B. But to determine if an allegation of officer misconduct warrants a full investigation, Prop A would restore OPO’s ability to conduct “preliminary review” of “every complaint” brought to their office. During preliminary review, OPO could contact the complainant to ask follow up questions, review APD records and files related to the incident, and issue a recommendation on whether or not the allegations amount to violation of APD policy. The increased information access OPO is granted in Prop A would put the office in a better position to conduct preliminary reviews and actively participate in IAD investigations. Prop B does not include any of this language.

From a certain perspective, weakening oversight has been APA’s goal for the past 22 years of police contract negotiations. The first meet-and-confer agreement, negotiated by then-APA president Mike Sheffield and leaders of Austin’s political past (er, make that past and present, as two of of those leaders – Kirk Watson and Jesús Garza – are once again running City Hall), gave birth to Austin’s very first system of civilian oversight. It established a civilian review board of appointed volunteers (then known as the Police Review Panel; now the CPRC) and a municipal department managed by the city manager (then known as the Office of the Police Monitor; now known as the Office of Police Oversight) that was allowed to receive signed complaints and have limited participation in APD’s internal affairs investigations.

No one was really happy with the agreement. The police side felt that civilian oversight was unnecessary in the first place and that what justice advocates wanted was an abridgement of officer rights; the system was one that “our members could live with,” Sheffield told the Chronicle’s Mike Clark-Madison at the time. Advocates pushing for increased accountability felt the system didn’t go far enough. Clark-Madison characterized the response to the new system from some advocates as “worse than no oversight at all.”

Some of the issues that frustrated either side remain active parts of the APOA debate today. Who should be able to serve on the civilian review panel? What police records should the city’s police oversight office – and, by extension, the broader public – be allowed to access? How much participation should the oversight office have in APD’s internal misconduct investigations? Most fundamentally the groups argue over how many of these questions should be answered through the contract negotiation process versus how many of them should be settled in city ordinance, and thus separated from the give-and-take nature of contract negotiations.

On the last point, the city gave up the game entirely. Speaking to the deficiencies in the agreement identified by advocates, River del Llano (who, at the time, went by Ann del Llano) offered a prophetic vision of what future meet-and-confer negotiations would look like. “The saddest part is that the City Council signed away all of their authority over this forevermore,” del Llano said.

“The investigation has been biased towards exonerating the officers rather than bringing about justice for Rajan. In order to have a fair and just investigation, I strongly believe that civilians need to be involved in the process.” – Ruth Moonesinghe, mother of a man killed by an APD officer last year

APA leaders could focus on negotiating an oversight system their officers could “live with” and rest assured City Councils – which have become steadily more progressive over the past two decades – could not strengthen civilian oversight without paying for it (or, in the view of APA leadership, compensating officers for undergoing what they see as burdensome working conditions). And that’s the way the process has played out; the first meet-and-confer agreement made Austin Police officers the highest paid in Texas, a list that APD has hovered near the top of ever since.

And while APA tries to reduce the burden officers face from civilian oversight, others in our community feel bad policing places too much burden on the community. Take Ruth Moonesinghe, whose son Rajan was fatally shot by an Austin police officer outside his home on Nov. 15, 2022. By outward appearance, it is a case rife with systemic failure that deserves much public scrutiny. Rajan Moonesinghe was armed, but in defense of his home, which is both completely legal and ordinary in Texas. Why didn’t the 911 dispatcher communicate to responding officers that Moonesinghe lived at the home he had shot into? Why did Daniel Sanchez, the officer who killed Moonesinghe, open fire just seconds after issuing a command for Moonesinghe to drop his weapon? Why did Sanchez handcuff Moonesinghe while he lay dying on his front porch? Why did the official story of the incident provided by APD change once Moonesinghe’s brother, Johann, obtained Ring doorbell footage which recorded the tragic event?

Detectives within APD’s Internal Affairs Division are responsible for investigating these questions and others that may surface throughout the course of their work. The information they provide, and what APD Chief Joseph Chacon does with it, is vital. It can guide APD leadership and City Council members as they work to reduce police violence. More immediately, the internal misconduct investigation may bring answers and closure to the Moonesinghe family, who lost a beloved son and brother due to police violence.

Without effective and robust oversight of these investigations led by civilians, though, the Moonesinghe family will have to trust that whatever information APD decides to publish tells the whole story. Is that just? Ruth Moonesinghe told Texas Senators at the April 3 Committee on Local Government hearing, “The investigation has been biased towards exonerating the officers rather than bringing about justice for Rajan. In order to have a fair and just investigation, I strongly believe that civilians need to be involved in the process.”

“As a praying Mother, I have done what I know to do best,” Rajan’s mother concluded. “I have prayed for the Lord to give you wisdom and courage to pass laws that protect all lives and hold accountable those who wrongly take it.”

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