City Attorney Report on Knee Calls for Changes at APD
City criticizes APD management, but Knee's fate unclear
On Feb. 10, City Attorney David Smith added his observations to the simmering controversy over how the Austin Police Department handles officer discipline, under the leadership of Chief Stan Knee. In response to the chief's request that the city review conflicting statements he made in connection with internal investigations into officers Timothy Little and Vernon Stevenson, Smith concluded in a three-page report that there are "significant management issues within APD which must be addressed immediately to clarify the applicable policies, procedures, and/or processes in this area." What that will mean for Knee, and what impact (if any) Smith's conclusion will have on the department's rank and file, remains to be seen. "It is difficult to say what will happen at this point," said Assistant City Manager Rudy Garza.
City Manager Toby Futrell asked Smith to review conflicting statements Knee made in a letter to state Attorney General Greg Abbott, and in sworn testimony which were highlighted during Little's arbitration hearing last month. The direct question is whether Knee intentionally lied in a letter to the AG concerning the department's investigation into Little's failure to properly report his handling of a 911 hang-up call made by Stevenson last spring. For entering false information related to that call into the department's computer-aided dispatch system, Little was fired; by contrast Stevenson was not disciplined, even though he reportedly made several conflicting statements about the incident to Internal Affairs investigators. (Late last month an independent arbitrator overturned Little's termination, concluding that Knee's punishment far outweighed Little's crime and that Little's punishment was far harsher than that given to other officers who'd committed similar infractions.)
Under civil service law, the department has a 180-day window from the date of an alleged offense to impose discipline on an officer. But the law allows the chief to request an extension in order to protect ongoing criminal inquiries that might otherwise be compromised by the premature imposition of administrative sanctions. In August, Knee signed two exemption requests on those grounds, claiming that he needed more time to discipline Little and Stevenson. In Stevenson's case, Knee wrote that "based on information available to me at this time, I intend to order an indefinite suspension of Officer Stevenson." Unfortunately, evidence and testimony presented during Little's arbitration hearing including Knee's own testimony contradict those claims. According to department investigators, the APD's criminal inquiry in each case was finished months before Knee requested the extensions.
In Little's case, Knee explained the disparity as a simple misunderstanding. Even if the direct criminal investigation was completed, Knee explained, he considers a case still technically open until the Travis Co. District Attorney's Office determines whether to pursue charges. But late last month Assistant DA Claire Dawson-Brown told the Chronicle that the DA's office avoids interfering with APD's internal work.
The Stevenson contradiction was even stronger. Knee was unable to explain why he told Abbott there was an ongoing criminal inquiry in Stevenson's case, or why he claimed that Stevenson would likely be fired. Department records reflect that investigators finished the criminal investigation of Stevenson in the spring, and by April 6, they knew that the DA's office wasn't interested in pursuing a case against the officer. In other words, by Knee's own definition, the criminal case against Stevenson was "closed" four months before he wrote to Abbott. When asked about the Stevenson letter while under oath, Knee admitted he'd had no reason to believe Stevenson would be fired. He signed the letter, he said, "because I wanted to extend the 180 days."
To his credit, it was Knee that, in the wake of his testimony, asked Futrell to initiate an independent review of his conduct. Futrell tapped Smith for the task. "As I began my review, I quickly discovered that the issue was more complex than it appeared at first blush," Smith wrote. "Rather than simply analyzing Chief Knee's statements in isolation it became apparent to me that there was a larger picture that had to be examined, in order to understand these events and to decide upon the appropriate course of action." That meant determining whether Knee had broken any laws (a query also made to the DA by Little's attorney, Tom Stribling) and then whether there was a "possible need for administrative action" including, presumably, not only whether there was a need for some tweaking of departmental policy or procedure, but also whether Knee should be disciplined i.e., fired, suspended, or censured. In addition to Knee's testimony and the two letters, Smith also reviewed "other situations in which similar letters were sent by the Chief," and the "applicable state laws."
According to Smith, APD "began invoking" the civil service time-limit exception "at least" a year and a half ago. While the department has asked for the exemption in order to protect ongoing inquiries, the "particular precipitating event" prompting the request has "varied." Further, Smith found "misunderstandings and/or miscommunications among and between individuals at APD and the [DA's] Office" concerning when an exemption should be sought. "My examination of other situations in which similar letters were sent demonstrates this confusion about when the time limit exception should be invoked, and also demonstrates that over time, the documentation involved tended to become standardized, including the description of the Chief's disciplinary intent," Smith wrote. "It was in this context that the Stevenson letter was prepared for, and later signed by Chief Knee."
Although there "is no doubt" that the description of Knee's "intent" was incorrect in the Stevenson letter, wrote Smith, his office concluded that while Knee may have made a "mistake," it "certainly was not a crime" of perjury or document tampering. (Under the law, what Knee did could be considered falsification of a government document generally a misdemeanor offense. But the DA has discretion in interpreting Knee's intentions and actions, and that has earned him a pass as it did Little, who was no-billed by a grand jury.) But Smith also concluded that "the totality of the circumstances" suggests that there are "significant" issues with the APD's disciplinary process that must be addressed.
That conclusion is hardly revelatory allegations that the APD's disciplinary process is erratic and disparate have long tugged at the chief's chevrons, and have, until now, been dismissed by the brass. Austin Police Association President Mike Sheffield said he is pleased with Smith's conclusion and hopes that this will lead to a retooling of the disciplinary process. "We've always said that there have been clear problems with the disciplinary process," Sheffield said. "It is not the union's job to decide what kind of punishment people get, but it is our job to ensure that the process is fair and consistent."
Still, what exactly needs to be done to ensure fairness is yet to be determined. According to Garza, that will be up to Knee. "Obviously, number one is making sure that everyone knows the clear and appropriate [circumstances under which the civil service] exception is used," he said. "The deeper question is how did we get to this point." And that, he said, is not something that can be "fixed" by the city manager's office. Instead, he said, "The chief will have to work with his staff and report back to the city manager exactly how we're going to avoid these situations." When Smith's report was issued, Chief Knee released a brief statement, saying, "I accept complete responsibility for the errors that have occurred. I will be accountable to the city manager, police officers, and this community to take immediate steps to rectify the policies and procedures that led to these errors."
Whether Knee will face any discipline for his transgression is also still unknown. That is Futrell's call but it seems there are four possible outcomes. Knee could be fired a result that no one seems to want. Even Knee's critics say they'd rather keep Knee, a known quantity, than undertake a search for a new chief who could prove less competent and undermine the progress Knee has made during his seven-year tenure. He could be left alone, or censured that is, chastised in writing which sources called a disastrous choice that would completely undermine his authority and would provide the quintessential example of disparate discipline for officers appealing disciplinary sanctions. Or, Knee could face official discipline a temporary suspension, similar to the discipline he routinely hands out when punishing the rank and file. That, sources tell the Chronicle, would likely be the best solution. "He'd come back stronger than ever," one source said. Fair is fair, the source said, which is exactly what Knee's subordinates have been asking for.