What Will It Take to Get More Police Oversight?

Illustration by Jeff Crosby

As City Council meetings go, the one held Thursday, April 20, was a rarity: a meeting with invited public testimony for a staff briefing on labor negotiations for the city's three public safety unions. That kind of Item doesn't tend to ever get scheduled. No Council vet or city staffer consulted could recall any past meeting in which the terms of a labor negotiation were raised in open forum. Council members in the past have generally received direction elsewhere from constituents, then taken that direction to the city manager for collective bargaining.

Members can tack public comment onto any agenda briefing, and Greg Casar, the Item's handler, thought it appropriate. "We [hold public comment] for every zoning case, every contract purchase," he explained later. "There hasn't been another Item on the Council agenda that was more appropriate for those sorts of comments." He checked with city staff, and despite ongoing negotiations, was advised to hold the briefing at that point – which is how a 30-minute PowerPoint on contract particularities turned into an 87-minute discussion that left interim labor relations officer and longtime contract wonk Tom Stribling, there to present the update, looking a little stunned.

Stribling was specifically invited to break down the current status of the meet-and-confer agreements (union-speak for "working contract") between the city and its three public safety labor organizations, and to advise Council on the unique terms of those agreements that would be rendered DOA should the city be unable to come to terms with the unions when their current contracts expire Sept. 30. These are macro issues like pay structures, promotions and hiring, and benefit deals such as sick leave and vacation time – all of which are negotiated between labor lawyers for both parties, for any contract provisions beyond the standards set by the laws of civil service.

As Stribling noted, if the city were to "go to impasse" with the Austin-Travis County Emergency Medical Services Employee Association – that is, fail to reach an agreement on a new contract and revert to state civil service law, thereby operating without a specific city-centric agreement – that association would lose its structure for step pay (increased wages as medics accrue more years of experience within the department) as well as Association Business Leave (the conditions that allow the Association's executive staff to get off the trucks and focus full-time on union matters). The city in turn would limit hiring and promotions to written testing only, a drawback for minority hiring, and lose its ability to appoint division chiefs (a formal rank in civil service).

There were other, more sexy issues discussed within Stribling's brief, particularly those relating to the contract that the city has with the Austin Police Association – and the fact that, should the city and APA reach impasse, the public would lose its previously negotiated arm of civilian oversight. Policing is perpetually hot, and very often in the news – in Austin alone recently, it's been David Joseph's death, Breaion King's arrest, and (two weeks before the Council briefing) Lawrence Parrish getting shot outside his home. During public comment, the focus shifted from Stribling's presentation to a long line of residents wanting to talk about that oversight.

Parrish's brother Cluren Williams was there; he's raised questions about his brother's shooting – the investigation remains ongoing, though interim Chief Brian Man­ley has already stated that initial reports that Parrish fired a semiautomatic rifle at officers were untrue; he'd only raised the firearm at them. Williams advocated for more body cameras, an initiative currently gummed up in a purchasing lawsuit. Kathy Mitchell of the Texas Criminal Justice Coalition suggested APD weigh more firmly the cases of past misconduct when considering officers' promotions, something that disciplinary memos suggest already happens – though without strengthening oversight, it's difficult for the public to know for certain (see "Brass Shuffle at APD," May 2, 2014).

Council also heard from the Austin Jus­tice Coalition: Mandy Blot and Chas Moore. Both championed an easier way to log officer complaints. Currently, to file a complaint against an APD officer, one prints out two forms (eight pages total), fills each out and gets one notarized, then faxes or re-scans and emails them to the Office of the Police Monitor, or drives to the OPM's Northeast Austin office and delivers it in person. That process should be simpler, and available online, they said. "It's a historically rough relationship between certain communities – more so black communities, more so black men," said Moore. "We want to file a complaint. We might not feel comfortable going to the police department." (APD has an office in the same complex as the OPM.) Reminded Blot: "In a day and age where official legal documents, such as those [for] buying and selling a property, could be completed ... on a smartphone, there's no reason why people should have to travel in person to a police department to make a complaint."

The most enduring recommendations had to do with the way information gets delivered to the public. And if you ask Greg Casar, it's that access that should prove the sticking point moving forward in negotiations. After nearly an hour of witness testimony from citizens who want more oversight, Casar made sure he was the first coun­cil member after the mayor to take the floor: "I just want my colleagues to know that at this point, I can't in good faith support the contract unless we have significant improvements to accountability and transparency."

Watching the Detectives

APD oversight runs through the Office of the Police Monitor, which was created under the city manager in 2001 during the second negotiation of the APA contract. Since that time, the OPM's civilian arm has been served via the Citizen Review Panel, a volunteer body of six city residents: two attorneys, one former tech executive, someone from the D.A.'s Office, a veteran of indigent defense, and someone who used to audit jails and prisons. (Members are identified by name on the city's website.)

Together, the two parties administer oversight, though it remains unclear how much that oversight ends up benefiting the greater public. The Police Monitor (former labor relations officer Deven Desai currently holds the role on an interim basis following Margo Frasier's February retirement) was designed to serve as auditor: providing statistical analysis and identifying patterns within APD that required systemic attention. The office produces a report each year – a hulking, 100-page review of the year's local policing trends – that rarely takes up more than one night's news cycle in local media. The people care more about the access the OPM has that the rest of city residents don't.

In principle, the Police Monitor has the chief's ear and keeps a close working relationship with a number of central figures within APD's system, and also receives "unfettered access" (says the contract) to Internal Affairs investigations. Desai may ask IA or APD's executive branch about the status of any pending internal investigation, but cannot initiate his own investigation or force IA to initiate one (unless a forwarded civilian complaint yields an investigation on its own). And in cases such as the spring of 2014, when the city had to apologize to the APA because Frasier posted a tweet advising South by Southwest attendees how to log a complaint if they're subject to "a problem with police," he could actually get in trouble for promoting a part of the OPM's function.

Rebecca Webber (Photo by Alan Pogue)

The Citizen Review Panel's function is more limited. Contract language states: "The Panel shall serve to make recommendations to the Chief ... and in addition to review individual cases of officer conduct." But how that's occurred has been under fire since the CRP's beginning, when panelists unanimously voted to recommend an independent investigation into the first critical incident they reviewed: the shooting death of Sophia King. Cops immediately recoiled, accusing the CRP of playing too investigatory a role. Since then, the term "political football" has become an understatement. Accountability activist Chris Harris called the CRP "toothless" at the Council meeting; current CRP member Rebecca Webber doesn't disagree.

"We do what we are mandated to do: We review the cases," Webber said. "But whether that benefits anything, I am sometimes skeptical. I guess 'in the dark' is more accurate. Chief Manley has a lot to do. We've written multiple times [to Manley's predecessor, Art Acevedo] about family members who call the police for help with a loved one who's having a mental crisis, and that person ends up dead. Maybe it's just that Chief Manley doesn't have time to let the public know about all the things he's doing to equip officers to handle these circumstances. If policies are being changed, or training is being changed based on the concerns that we've raised, I haven't seen it."

The CRP reviews departmental investigations into critical incidents, but in actuality most of the work – and most of the letters they send to chiefs – hinges on recommendations for systemic changes to departmental policies that panelists believe cause a strain on patrol officers. Webber, an attorney who also chairs the city's Public Safety Commission, believes there's great utility in those letters, and would on occasion receive "point-by-point" responses from former Chief Acevedo: "'I agree with what you're bringing up, as far as this trend,'" she echoed of the former chief. "'Here is the work I've done to address it. I don't agree with what happened here. Maybe you're right about this.'"

But very few actually know what's discussed within those letters from the CRP. Complainants don't even hear back about their own complaints unless a discipline is rendered. Letters were altogether confidential unless discipline was imposed until the most recent contract was signed in 2013, but now remain covered by certain statutes set by civil service. The police chief's responses – when they occur – are still not public.

Manley said Tuesday that he "takes into consideration as expected under meet-and-confer" any recommendations the CRP sends him. He thought it's right for responses from the chief to be kept from the public: Doing so allows for the back-and-forth between chief and CRP to flow a bit more freely. In cases where the allegations are unsustained, the nature of the case must remain confidential under civil service. And Manley reminded that when an allegation is sustained and a discipline is rendered, the relevant information gets disseminated via public memo (though only for suspensions lasting one day or more).

"The APA's membership might be interested to see that we very rarely recommend discipline," said Webber. "We much more often recommend better training, better equipping officers to deal with their hard job. We've written, I think, three times in the past two years, about how hard it is to serve Downtown, and asked the chief to think about whether he's asking too much of those officers. I wasn't around when [Sophia King] happened ... but I think they would not disagree with a lot of what we write."

Ante Up

Webber spoke at the April 20 Council meeting. She was the first public witness, there to speak about that oversight. One month beforehand, she had laid out her hopes for the next contract in an email to Desai, identifying 16 changes to the section of the APA's agreement that deals with civilian oversight. Among the recommendations, Webber advocated for making all panel recommendations public, making all of the chief's responses public, requiring the chief to respond in writing to every recommendation within 60 days, and allowing every complainant to be informed of the outcome of their complaint.

The list goes on and on. (See a copy of the recommendations, along with the section of the agreement that defines citizen oversight.) They're good ideas, and from this seat not particularly noxious to the APA's 2,000 members. APA President Ken Casaday wouldn't respond to specific recommendations while negotiations were ongoing, but offered the following: "The APA welcomes all input from community stakeholders. We feel it's most productive if these ideas flow to the council members for prioritization. Those priorities should be directed to the city manager. The APA will then negotiate the priorities at the bargaining table."

In order to accept any concessions in writing, Association members will likely bargain for more money or other benefits. Austin officers became the highest-paid in the state in 2001 when the APA agreed to initial terms of oversight. They received another hefty bump in 2013 after city management lobbied to make the CRP's letters public.

Ken Casaday (Photo by John Anderson)

But that could prove a problem this year. The city is about to step into somewhat uncertain financial times ("City Budget: Something's Gotta Give," May 12), with costs set to rise a bit more than revenue. APD expenses already consume nearly 40% of the general budget – an atrocity, according to a vocal faction, although annual surveys by the city and private organizations reflect that more people like cops and want to give APD more money than the activist chorus might suggest. Nevertheless, Casar is not the only one on the dais resisting a blank check for Austin police. During a work session on May 17, Mayor Steve Adler delivered a bit of a sermon on his hesitancy.

"I look at the needs assessment, and they all make sense to me," he said. "I also look at the budget here and see how far off it is to be anticipated in terms of revenue. I'm trying to figure out what it is that's the push-pull, for the choices we would need to make in order to make the budget work.

"One of those things will probably be to take a look at the relative priority with respect to safety and community of the base rates and step rates that we pay, relative to the needs to have the staffing and the coverage we have in the city in order to keep our first responders safe, as well as keeping the communities safe. ... It looks like we're in a place right now – it looks as if the base pay and step pay is where we're setting the standard. We appear to be at the top of the list. ... I'm trying to figure out, as we look at the relative properties ... what it would look like if we also set as a policy that we wanted to be among the best paid but not necessarily 20 percent higher than the median. What if we wanted to be tied for number one, or to set ourselves in the 90th percentile, or some other metric that could give us other revenue?"

You don't need to be a police officer to know that a cop ain't gonna like that.

Impasse-able

Among council members, only Casar stated plainly that he wants increased oversight. (Jimmy Flannigan said he wasn't "afraid of impasse," and that "transparency is key," but later clarified that he was talking about fire and EMS. Delia Garza offered less explicit support.) Speaking with the Chronicle in early May, Casar acknowledged that "impasse is not good," but noted: "I think if you're afraid to go to impasse that you've lost a significant amount of your negotiating ability."

Impasse remains a distant possibility. Council has until the end of the summer to vote on a new contract, and even then the city and APA can agree to extend the current agreement for a period of time if the two parties are still bargaining. The APA has never gone to impasse, but the Austin Firefighters Association did in 2013, during the last renewal cycle, didn't get a new contract until 2015, and they continue to deal with the fallout.

Greg Casar (Photo by John Anderson)

Casaday wrote: "The men and women of the Austin Police Department have carried out their duties for more than 100 years," well beyond the lifespan of any CBA. "Should the city and the APA fail to reach a new agreement and we have an impasse, we can guarantee that 100% of officers will work just as hard to protect the citizens as they did when they had a contract."

But he allowed that "recruiting is a national problem and APD is no exception" (APD currently runs 130 vacancies), and that a new agreement would help solve recruiting woes more than a department whose workforce is operating at impasse. Plus, the provisions lost could lead to a few new problems ...

The Association Loses

• Sick pay. The APA's collective bargaining agreement (CBA) allows officers to collect "sick pay" on up to 1,700 hours of unused allotted sick time upon retirement, meaning that officers who retire without having taken any sick days could be in line for a six-figure payout ("Six Figures of Sick Pay," Sept. 9, 2016). Under civil service law, officers can only collect on 900 hours maximum. Certain officers who already qualify for retirement (Stribling said 161 officers would qualify as of Sept. 30) may retire before civil service rules kick into effect, creating an even greater vacancy rate, distorting overtime costs, and lowering the number of officers patrolling on shifts.

• Certification pay. Right now certain pay stipends are baked into the contract for officers who a) speak multiple languages, b) hold college degrees, or c) are assigned to an evening or night shift (beginning after 2pm) for a 28-calendar day cycle. City Council enacted an ordinance setting those certification pays, so Council would have to repeal that ordinance in order for those stipends to be reduced or dropped altogether, which likely won't happen. That would be ... shortsighted.

• Association Business Leave. Officers each year donate a portion of their allotted sick time to a pool that Association members (in the APA's construction, Casaday as president, and two designees) use to pay their salaries while they attend to union business. Those members don't do direct police work, but rather focus full time on union matters.

The City Loses

• Civilian oversight. The CRP would be disbanded, but the OPM would continue under city management, likely with a different set of tasks and clearances.

• Hiring and promotions. The CBA allows for certain procedures, including oral assessments, to determine hiring and promotions. Under civil service law, APD would only be able to administer written tests to determine new hires and promotions, which has been determined to be a drawback for minority hiring and advancement.

The Chronicle reviewed each of these potential consequences with Casar when we spoke in early May. He recognized the impact: "Plan A: figure it out in contract negotiations. Plan B: figure it out after. With each of these things you're reading, plan A is better than plan B." He noted that he doesn't intend to target Webber's complete list of recommendations, or demand half of that and a revamp of the chief's 180-day statute of limitations for reopening an investigation. It would be "irresponsible" of him to do that, he said, "to lay down the law and say: 'This is how it's going to happen.'"

But he understands the city's leverage: "Outside of the politics of this thing, a lot of what these community members brought up are not extreme asks. When the Citizen Review Panel brought up that there are people who complain to the Police Monitor and then aren't allowed, because of our lack of transparency, to even know what happened to that complaint, it brings into question why we even have that in the first place.

"My hope is that everyone in the community recognizes that some of these changes are not extreme asks and should not require extreme measures to get."

The city and APA held two negotiation sessions in April. The next is set for Tuesday, May 30, at the City of Austin Rutherford Campus (1520 Rutherford), time TBA. The public is invited to attend the session, though there won’t be a public hearing.