Police Oversight: Starting From Scratch
Farah Muscadin's work in progress
At a City Council work session in late May, Police Monitor Farah Muscadin sat down to talk about her ongoing effort to revamp the city's system for police oversight. She was talking specifically about comparative systems, and how the city of Austin isn't the only major American metropolis undergoing an overhaul of its accountability framework. In fact, it's one of several, along with Denver, Seattle, Minneapolis, New Orleans, San Francisco, and San Jose.
Muscadin was there to brief Council on the ways in which Austin could learn from other cities – to study what they've learned and plan to implement. She cited the National Association for Civilian Oversight of Law Enforcement, which recognizes three general forms: the monitor-based system (like Austin's); the civilian-led investigative model; and the review-focused model, in which civilians directly monitor their police department's Internal Affairs investigations. Muscadin also noted the possibility of pursuing a hybrid model combining elements of all three. "It was pretty consistent – through the experts that I spoke to, the directors that I spoke to – that oversight is very specific to the community," she said. What works for one city may not go so well for another.
Austin has had five police monitors since it first created oversight in 2001, but no one's ever entered into the job on such unstable footing as Muscadin. The Chicago native and former Cook County public defender took over on an interim basis in January, just weeks after City Council rejected a new contract between the city and the Austin Police Association, and the APA decided to reject Council's subsequent offer to extend the expired contract.
Most of the city's oversight operates as part of that contract – the meet-and-confer agreement – so when it expired, and the police returned to employment under the state's archaic civil service law, that oversight went out the door with it. The Citizen Review Panel – the volunteer body designed to "serve as a link between APD and the community" – disbanded immediately. Its appointees could no longer monitor confidential APD documents or receive IA briefings. And within a month of Muscadin beginning the job, the APA came looking for her, filing an injunction against the Office of the Police Monitor over access to officers' personnel files during IA investigations. That case is still pending, an ongoing effort to curb Muscadin's ability to actually, you know, be a monitor to the police.
Undeterred, Muscadin, who shed her interim tag in June, has spent the first several months of her tenure putting together research on systems throughout the country. She's talked to 28 different agency directors, and assembled a stakeholder group to write a set of best practices for City Council's approval (see below). The group learned early that most cities don't have to deal with the quirks of the restrictive Texas Local Government Code. Whereas Austin's runs through meet-and-confer, most other systems are established by city charter. And many don't need to reconcile with our state's 180-day statute governing when a chief can impose discipline on an offending officer.
Such limitations balance the playing field between cops and civilian stakeholders, and make the matter of oversight part of negotiations – something to bargain for. If the last 20 years were any indication, agreeing on oversight is never easy, but that's especially true this year, when the two sides are trying to rewrite the whole thing.
Diversity of Opinion
The APA's contracts with the city run on multi-year terms – typically three, though in 2013, when the last agreement was ratified, the two sides signed off on a four-year term. That's a byproduct of a shared comfort in negotiations, but also a sign of the agreement's stability: Both sides were getting in essence what they wanted, making it easier to sit with for a longer period.
But a lot happened between 2013 and 2017, and much of it changed the face of oversight throughout the city. Austin got body cameras, and David Joseph, and the 10-1 City Council, creating new paths to access for reform activists up to the dais. So when labor negotiators went into 2017 looking for a five-year deal, they did so with new calls for increased oversight. With the budget tight and growing concerns about the way public safety sucked up two-thirds of city funding, the expectation was that city negotiators do that without giving police officers more money.
That proved quite a balancing act, and by last fall, when the agreed-to language was posted for City Council, neither reform activists nor budget hawks were happy with the result. For $80 million in benefit hikes, negotiators had worked out a few incremental expansions of oversight, including allowing for aggrieved citizens to submit anonymous complaints of officer misconduct (rather than a sworn affidavit), giving the OPM the authority to file complaints on its own, allowing "closeout" meetings (wherein complainants would learn the results of IA investigations, no matter the discipline), and providing the CRP with more privileged access to IA investigations. But reformers were unhappy that the APA had blocked subpoena power for the CRP, and negotiators couldn't agree to expanding the CRP's ability to recommend discipline. Council cited both oversight and budget concerns when it rejected the proposed contract, and the two sides went to impasse for the first time in their shared history. Negotiators have spent the nine months since working their way back to a contract.
With those negotiations ongoing, Muscadin continues with her group, reconciling police interests (who've been skeptical of oversight as a community benefit) with community forces (who question the motives of those interests). "The diversity of opinion and experience and perspectives is what's going to make this working group ... successful," Muscadin predicted. "We do have different views; we cover the spectrum. But we're there for a specific purpose: Come up with recommendations that make our structure better."
Oversight As We Knew It
Austin's structure was first introduced before it became a part of the union agreement, as part of former Police Chief Elizabeth Watson's "Chief's Forum" – 24 neighborhood representatives to advise her on her department's floundering community work. City Council's Police Oversight Focus Group first convened in 1999; that yielded the framework for the system we recognize today.
At the time, APA President Mike Sheffield was walking a slack tightrope to a second contract with the city. His membership wanted no part in meet-and-confer, and it took the promise of a huge payday to get such a concession. But the system got double-bargained: Sheffield and the focus group whittled down a set of terms on one end, then Sheffield took those to the city and bargained for more protections for his officers. That meant that the CRP would have a limited public face, and the results of its investigations would remain secret, a blow to the transparency that the group had recommended.
For the next 16 years, Austin operated in accordance of that system, but infighting over who was entitled to access that process began almost immediately, following the 2002 police shooting of 22-year-old Sophia King, for which the CRP recommended an independent review. State law prohibited that review's access to IA documents, rendering that independent report irrelevant.
The King shooting put relations between the OPM and APA on uneasy footing, and those relations further suffered in 2003, enough to force the resignation of PM Iris Jones. Jones' successor was Ashton Cumberbatch; he only lasted one year. After a few interim PMs, local prosecutor Cliff Brown took over, and served four years until he was elected to be a judge. That was in December of 2010, and after a lengthy search the city tapped former Travis County Sheriff Margo Frasier, whose credentials made activists uncomfortable. But she quickly endeared herself to them – alienating the APA in the process – when she recommended a review of Art Acevedo's own investigation into a shooting after only a few months.
The union's love for the OPM has never really existed, but at least the two parties have solidified a working relationship. Everybody involved gets their paycheck signed by someone at the city. The union's ire is more easily aimed at the CRP, whom officers tend to believe, through their limited and veiled review process, plays no effective role in oversight.
And that may be true, or at least it's one of the few components of the conversation that cops, activists, and even some CRP alums can agree on. So can the city auditor, whose report "Effectiveness of Citizen Police Oversight" brought into focus how much is lacking in the most recent process. Among the concerns: The OPM and APD never effectively communicated about CRP recommendations; those recommendations were never thoughtfully organized for public consumption; and the chief had no obligation to formally respond to any of the suggestions. They'd met every month for years and were bereft of any impact.
A New-Era OPM
Labor negotiators continue meeting to bang out a deal, now back to four years, and currently somewhere in the vicinity of $60 million. Much of the general framework has been passed on from previous contracts, though not surprisingly they're still hung up on wages and oversight.
The APA would like to get a deal done, and quickly. At its last bargaining session in August, union officials called it "silly" that the two sides have yet to come to an agreement, and proposed rather dramatically to eliminate oversight from the contract entirely – conceding any framework to activists who have advocated for an independent third-party system – in exchange for a salary bump. But Chief Labor Relations Officer Deven Desai denied that gambit. Muscadin's process will move forward, he said. It's her job to craft new oversight.
If anyone's equipped to shepherd the system through this time of restructuring, it might be Muscadin. She prides herself on building systems, whether during her time at Cook County, Chicago State University, or the mayor's office in Chicago. ("I'm known as 'the Fixer' in Chicago," she said.) Since coming to Austin, she's worked to obtain an understanding of how APD operates, whether by sitting in on IA interviews, shadowing patrolling officers on Sixth Street, or generally familiarizing herself with inner workings. The legwork has already earned kudos from both Chief Brian Manley and the notoriously temperamental union. "She, unlike any other monitor we've ever had, goes out and tries to familiarize herself with the department," said APA President Ken Casaday, who's still technically trying to legally remove her from her office. "Nobody has ever done that."
Muscadin told me she considers herself an "interpreter" between the community and APD, making neutrality in her position so important. "I can articulate things to the community that would be taken differently if it's articulated by law enforcement, and it would be received differently, and the reverse is true," she said. "Aspects of the community I can relate to the chain of command or patrol officers would be received differently if it was coming from the community. ... And I think that we're going to be able to do some great things collaboratively – but it shouldn't start and stop because people like me."
In fact, while oversight conditions continue to come into focus, taking the complete institutional onus off of Muscadin has been one thing she's already formalized. On Sept. 4, the Public Safety Commission recommended Council beef up the OPM with two additional staffers: a senior policy analyst and a community outreach specialist. Muscadin is seeking a more experienced data cruncher than the city had previously sought, because the office hasn't had an annual report since 2015, those reports are difficult for civilians to understand anyway, and residents want more numbers in a more digestible format. "We're going to be using technology," Muscadin said, referencing "dashboards, infographics, [and] different ways than a 60-page report once a year. That's the goal." Muscadin also plans to prioritize community engagement. She told commissioners, "The days of people not knowing about OPM and what we do, I hope those days are behind us."
Also at the PSC's Sept. 4 meeting, Muscadin produced the results of a complaint process analysis completed by the city's Office of Design & Delivery, covering much of the same issues that the auditor detailed in June. But the ODD and Muscadin plan to move on those recommendations, and have since put forth a list of 17 recommendations that they believe will help put new purpose in the police monitor (see below).
"Now, we have data about what the problems are in our complaint process," Muscadin told the commission. "I'm really excited about this, because it's an evolution of OPM. It's a different way of doing things, and I think it's definitely taking the office in the right direction."
Complaints About Complaints
The police monitor's complaint intake process is historically fraught and underused. Here's an example: One resident who filed a complaint and was interviewed for a study by the city's Office of Design & Delivery's Communications and Technology Management team said they never received a timeline or any updates on their case. "They just said to wait, and they would call back," said the complainant. And chances are they never did get that call back. Under the previous agreement, complainants weren't entitled to any update on their case unless discipline had been rendered on the offending officer.
The ODD found that's a common experience in an opaque system full of logistical hurdles, and in August issued a report called "What We Learned About the Complaint Process," which featured these 17 recommendations for reforming the process to make it more approachable and user-friendly:
• Rename the Office of the Police Monitor the Independent Office of Police Accountability
• Survey complainants every time they have an experience with the OPM
• Streamline complaint/feedback process so that it can be accessed by email, phone, or in-person
• "Demystify the process" to match public expectations, needs, and fears
• Reduce complaint types from three to one
• Create a "pizza-tracker"-style feature (like one you see on Domino's website when you order a pizza) so complainants know the status of their case
• Schedule consensus meetings between OPM and Internal Affairs to discuss particular issues with each case
• Institute a tool to better schedule those meetings
• Make OPM the main "touchpoint" for residents, replacing IA sergeants
• Hold investigation interviews in accessible areas, offer confidentiality and translation services
• Provide complainants with two written explanations (one from IA, one from the OPM) concerning the outcome of their case
• Send copies of investigation notes to the OPM and offending officers' chain of command
• Email complainants a review at investigation's conclusion
• Residents should also have the opportunity for a close-out meeting with the OPM
• Conduct a feedback survey about those close-out meetings
• Establish a public police accountability open data portal for the public, OPM, and community organizers
• Create "different forms and frequencies of reports," including infographics and quarterly reports
Read the ODD’s full report at www.austintexas.gov.
Who's Who in the Working Group?
Farah Muscadin: Office of the Police Monitor
Matt Simpson: ACLU
Dominic Gonzales: Former Citizen Review Panel
Alexis Gonzales: Former Citizen Review Panel
Nelson Linder: NAACP
Quincy Dunlap: Austin Urban League
Eric Jones: Austin Urban League
Yvonne Massey Davis: Task Force on Institutional Racism and Systemic Inequities
Amber Vasquez Bode: Austin Criminal Defense Bar
Chas Moore: Austin Justice Coalition
Chris Harris: Grassroots Leadership
Cary Roberts: Greater Austin Crime Commission
Rebecca Webber: Public Safety Commission
Noel Landuyt: Public Safety Commission
Kristian Cabello: Human Rights Commission
Sylvia Flores: Labor Relations Office
Brian Manley: Chief, Austin Police Department
Troy Gay: Chief of Staff, Austin Police Department
Chris Perkins: Austin Police Association
Scott Askew: Austin Police Association
Your Voice on Oversight
Got ideas about how police oversight should look in Austin? Farah Muscadin and her Police Oversight Advisory Working Group want to hear from you. They've scheduled three feedback forums over the next two weeks.
Wednesday, Sept. 19, 6-7pm: Our Lady of Guadalupe Parish, 1206 E. Ninth
Saturday, Sept. 22, 11am-noon: Gus Garcia Recreation Center, 1201 E. Rundberg
Tuesday, Sept. 25, 6-7pm: Greater Mount Zion Church, 4301 Tannehill