Authors of Police Oversight Act Sue City for Failing to Fully Implement Ordinance
Suit names interim police chief and city manager as defendants
By Austin Sanders,
11:32AM, Wed. Dec. 6, 2023
The battle between city leadership and advocates for a strong system of police oversight will now move to the courts.
A lawsuit filed in state district court names multiple city leaders as defendants because of “their shared failure to enforce essential provisions of the Austin Police Oversight Act.” Approved by a broad majority of voters in a May election and supported by nearly all of City Council in a September resolution urging implementation of the ordinance, the APOA would restore power to the Office of Police Oversight. That city agency is tasked with investigating police officers accused of misconduct, though it’s been hampered since 2021 following a successful campaign waged by the Austin Police Association to undermine the office.
But as the lawsuit – filed by Equity Action, the social justice advocacy organization that authored the APOA and propelled it to resounding electoral victory – contends, the oversight law has not been implemented. At least, defendants in the suit Interim City Manager Jesús Garza, interim Austin Police Chief Robin Henderson, and OPO Director Gail McCant have not done so in the ways that are most meaningful to truly accomplishing civilian oversight of the Austin Police Department.
“The level and control over the investigative process that APD currently has is unacceptable,” Equity Action Senior Advisor Kathy Mitchell said. “It defies the concept of an independent investigation.”
The plaintiffs seek an injunction from the court ordering the defendants to enact key elements of the APOA. Those include a provision requiring OPO to have “direct access, without hindrance” to internal APD records OPO needs to investigate alleged misconduct. Other unimplemented provisions deal with transparency: ensuring OPO is the central repository for misconduct records, allowing OPO to publicly release certain records, and allowing the agency to act as a liaison between those complaining about police misconduct and APD.
What’s Left to Implement
At a Nov. 21 meeting, city staff acknowledged that the ordinance hasn’t been fully implemented. Though they emphasized the city was in compliance with 82% of the APOA, McCant said her office was only conducting full investigations into complaints with APD approval. She said OPO wasn’t investigating anonymous complaints, unless the complainant chose to sign a sworn affidavit (revealing their name).
McCant confirmed that OPO also wasn’t doing its own fact-finding investigations, partly because they were still trying to hire two civilian investigators and a supervisor to conduct that work. Data shared at the meeting showed that between July and September, OPO referred a total of 24 complaints to APD for investigation (compared to about 18 referrals per month in 2021), half of which resulted in no disciplinary action.
“City employees, especially in the Office of Police Oversight, have been working diligently to implement all aspects of the new law. I am proud of their work, and while I always wish we moved faster to implement changes, the OPO staff are working hard to meet all new mandates of the Austin Police Oversight Act,” Garza told the Chronicle. “The outstanding question – regarding whether the historically confidential APD personnel files should be made public – is an important and delicate one. For that reason, we welcome the lawsuit. It will allow the courts to weigh in on this important issue."
The G File
Equity Action’s lawsuit draws attention to a provision of state law that has been at the center of the debate over the APOA’s legality since before it was even approved by voters. “Most flagrantly,” the suit states, Garza and Henderson “have refused to discontinue APD use” of the G file. Chapter 143 of the Texas Local Government Code permits departments to maintain a secret personnel file for officers accused of misconduct (known as the G file), which only the department can access. Departments can store records of misconduct investigations that did not result in disciplinary action; that can include unfounded allegations and allegations that were proven, but which the police chief – who has sole authority on disciplining sworn personnel – declined to discipline.
For decades, the G file has been viewed by advocates as an impediment to police oversight and, crucially, optional. The law says a police department “may maintain” such a file. For just as long, the city’s position has been that the G file is mandatory and that the only way to close it would be through negotiation with the police association in a labor contract. But the APA would never agree to shutting down the G file, because they believe its contents could be weaponized against officers wrongly accused of misconduct. So, the G file has largely been considered untouchable – that is, until passage of the APOA, which explicitly states the city “shall not” maintain one.
Through the campaign to approve the APOA, the city stuck to its guns, arguing Chapter 143 requires cities to maintain a G file and the APOA, as a city ordinance, is trumped by the state law. But that position began to shift in October, when the city argued (in court and in response to our questions) that, actually, the G file is optional – but only the police chief has the authority to close it down. The city’s new position was that the city manager, who manages the chief just like they do every other department head, does not have the authority to order the chief to close the G file.
Now, after decades, the G file question will be litigated in court – an inevitability that assistant city attorney Neal Falgoust seemingly alluded to at the Nov. 21 OPO meeting. “APD does still maintain a G file,” Falgoust said in response to one question. “We are evaluating some legal issues … that we need to address through the legal process.”
* Editor's note, Wednesday, Dec. 6, 12:54pm: This story has been updated to include a statement from Interim City Manager Jesús Garza.