Pushing for Real Police Oversight in Contract and on the Ballot
What exactly is a G file?
Somewhere deep in the Austin Police Department's computer database sit the personnel files of each of its approximately 1,800 officers. Those files include their disciplinary histories, which may include details about unnecessary violence or unethical conduct, Internal Affairs investigations, and the punishments meted out for misconduct. Most officers won't have much or any disciplinary history. But some, almost certainly, have multiple instances of discipline in their files.
In cases where an officer is suspended, demoted, or fired, the specifics of the case can be obtained through a public information request. But if an officer is instead disciplined internally – counseled, reprimanded, and so on – the details remain secret. They go, metaphorically, into what in Texas is called a "G file."
That's a reference to Subsection (g) of Section 143.089 of the Texas Local Government Code, the snippet of state law establishing this confidential class of information: "the department may not release any information contained in the department file to any agency or person requesting information relating to a … police officer." The G files contain complaints by citizens, testimony from fellow officers, body-cam video, written reprimands and memos, and other details that justice advocates think should be accessible to the public.
Subsection (g) applies to Texas municipalities whose police officers (or firefighters) are civil service employees – that is, ones that don't have unions that negotiate the terms of officers' employment. Here, the city and the Austin Police Association, through what's called the "meet-and-confer" process, do hash out a contract that could preempt Subsection (g) should the parties so agree. Both APD and APA leadership insist the G file must remain secret – that it will contain frivolous accusations that officers can't defend themselves against, particularly under Austin's current procedures that allow such claims to be made anonymously. However, during this year's negotiations for a new police contract, the city's Labor Relations Office is proposing to do away with G files. (Neither the city nor APA wished to speak on the record about their positions in the upcoming talks.)
It's easy to guess why City Hall might want to do this, as our community is mired in a years-long police accountability crisis. Since 2019, officers have killed multiple people of color in often fraught circumstances, including Mauris DeSilva, Mike Ramos, and Alex Gonzales. There was also APD's disastrous response to the Black Lives Matter demonstrations of May 2020, when dozens of protesters in front of APD headquarters on Eighth Street were shot with "less lethal" crowd control munitions that nonetheless left many with life-altering injuries. It was the visceral reaction to the Eighth Street shootings that swayed a unanimous City Council to agree to (slightly) defund APD in the fiscal 2021 budget, cuts that had to be reversed a year later after the Texas Legislature intervened.
We only know what we do about most of APD's most troubling excessive-force cases because Travis County District Attorney José Garza has kept his campaign promise to bring them before a grand jury, which has issued an unprecedented stream of felony indictments against the officers involved – some more than once. Many of the survivors and families of those killed by police violence have also filed civil suits in which more details have been disclosed. As of this writing, the city has offered more than $13 million to settle lawsuits brought by Eighth Street shooting survivors, with more likely to come.
But most of what APD knows about these cases – from its Special Investigations Unit and Internal Affairs investigations of these incidents – remains locked up in the G files, because in most cases the department has yet to issue any formal or informal discipline, waiting for the civil and criminal courts to complete their work. The department knows, from the recent examinations of APD's culture by third-party investigators Kroll Associates and the Office of the City Auditor, that some small subset of the department's officers are more aggressive than their peers and are thus an ongoing liability for City Hall.
So the city seems to have come into alignment with justice advocates and against APD and APA brass, agreeing that opening up G files is necessary to change APD's culture. Civil rights activist Kathy Mitchell sums up the rationale: "If officers knew that their violent conduct would be public, and that they would be disciplined for conduct that violates their rules, maybe they would do it less."
Oversight's Brief History
Mitchell's organization Just Liberty advocates for criminal justice reform, mostly on a state level, but she's also on the board of Equity Action, a political action committee that came together last year with support from organized labor (other than APA, of course) to oppose the police staffing initiative put on the ballot by Save Austin Now; it has continued its work on local public safety issues. They're also currently directing citizen input about the city budget to City Manager Spencer Cronk before he releases his proposal for fiscal year 2023 later this week.
Equity Action's members are pleased with the city's negotiating position on G files, but they don't want to wait for the city to try – and probably fail – to get its way in contract talks. Instead, they're gathering signatures to put their own citizen initiative on this November's ballot that would put the fate of APD's G files in voters' hands.
"It's great that the city is proposing this through the current contract negotiation, but the ballot initiative would take that [need] off the table," said Alycia Castillo, Equity Action's treasurer. "So then, what's really a civil rights issue ends up being codified as an ordinance in the city. Then we will have access to police personnel records, even outside of those that are labeled disciplinary, so that the community really gets the transparency that they deserve."
Equity Action has been circulating its petitions since early June and has until September to get 20,000 valid signatures as determined by the city clerk, which it's confident it will. If the proposition does appear on the November ballot, and if it passes, and if it survives potential court challenges, and if it works as intended, it will be a major step toward changing Austin's relationship with its police force.
The city's first meet-and-confer agreement with APA was adopted in 1999, and before then there was no civilian oversight of APD at all. The city had the same reputation as many others in Texas – as a place where police brutalized poor communities with impunity. That 1999 contract exchanged substantial pay increases for Austin police officers, vaulting them from the lowest- to the highest-paid among Texas' major cities, for the creation of the Office of the Police Monitor and the associated Citizen Review Panel, which proved a disappointment to justice advocates. It had no dedicated funding, was housed within APD, and not only didn't accept anonymous complaints but also required citizens to swear out their affidavits in person.
Although a number of well-respected Austinites served as police monitor – including former City Attorney Iris Jones, now-District Judge Cliff Brown, former Sheriff Margo Frasier, and mayoral policy adviser (among many other things) Ashton Cumberbatch – their gravitas was not enough to transcend the inherent failings of the model, and it didn't avert a continued steady stream of questionable officer-involved shootings. Fast-forward to 2017, when in the wake of the police killings of David Joseph, Morgan Rankins, and Landon Nobles, advocates from many different civil rights organizations banded together – the Austin Justice Coalition, the ACLU of Texas, Just Liberty, Texas Criminal Justice Coalition, Texas Fair Defense Project, Texas Civil Rights Project, Communities of Color United, and Grassroots Leadership.
This coalition successfully pressured City Council to reject the meet-and-confer agreement that had just been negotiated with APA and hold out until the union agreed to real, meaningful citizen oversight. The subsequent city proposal created what is now the Office of Police Oversight, reporting directly to the city manager and designed to meet the needs of the community rather than the desires of APA leaders.
The union did not react well to this. "The Police Association got really upset and they did something foolish," said Chris Harris, director of policy for AJC and also an Equity Action Board member. "They walked away from the negotiations. That reverted them out of the contract" – meaning they defaulted back to regular civil-service rules – "and the result was that they lost millions and millions of dollars." Before the activists got involved, the city had agreed to a contract that increased officer compensation by $82 million over five years. APA wound up signing a contract 10 months later that gave them $44.6 million over four years, and still included the new OPO.
The office was charged with collecting complaints against officers, gathering additional information from complainants and witnesses, and deciding which complaints to forward to APD for investigation by Internal Affairs. The complaints, which could be filed anonymously, were published by OPO on its webpage, greatly increasing the transparency of officers' interactions with the community. Farah Muscadin, the very last person to serve as police monitor, became the director of OPO, reporting directly to Cronk.
"I think really the biggest thing that we got was the anonymous complaints," Harris said, referring to the powers given to OPO in the 2018 contract. "Almost everywhere else in the country, you have to go into a police department and sign a sworn affidavit under the threat of perjury that any complaint you're filing against an officer is true to the best of your knowledge. And of course, that means that there are very, very few complaints that ever get lodged, because people are very intimidated by this process and fear retaliation by police." (This was also true of the complaint process under the Police Monitor system.)
As soon as the OPO was established, APA began filing grievances against the city (which went to arbitration) for violating the terms of the contract, challenging how the office was set up and doing its work. In December 2021, after at least 20 grievances, the union found a challenge that stuck. It argued that OPO's analyses of the complaints – called "preliminary review" by the office – were in fact investigations, forbidden under the contract. To conduct their preliminary review, OPO employees contacted complainants to ask for additional information on their complaints, found and interviewed witnesses, and reviewed police investigative materials, like body-cam video and arrest reports. The arbitrator decided that OPO would no longer be allowed to do these things.
"They basically said that the OPO can't investigate," Mitchell said. "And because the word 'investigate' was not defined in the police contract, they applied their own broad, sweeping definition that essentially eliminated the key wins from the last round of contract negotiations. So things like being able to ask questions and get them answered during an IA investigation were eliminated. Or doing their preliminary review, which is really critical, because that's how the OPO is able to say, 'This complaint should be classified for investigation,' as opposed to what APD wants to do, which is always to classify everything to go back to the supervisor and not get investigated." That's how the details of these complaints, and about individual officers, get locked up in the G file.
"OPO is now very much a weakened entity, back to serving a powerless intake function for complainants, which was why we called for the city to reject the police contract in 2017," Mitchell said. "They can't have any part in investigating, as broadly defined as you can imagine. They can be a scribe. So I walk in and I say, 'This is what happened to me,' and they can transcribe my words into the computer and then ship it to IA. That's it."
The Ballot Initiative
The ballot language the advocates are using to gather signatures can be found at equityactionatx.org. It reads: "Shall the voters of Austin adopt an initiated ordinance" – that is, one placed on the ballot by citizens – "that will deter police misconduct and brutality by strengthening the City's system of independent and transparent police oversight?" Equity Action's website also includes the text of the ordinance that will go onto the books if a proposition passes.
Equity Action's members say the primary goal of the ordinance is to counter the damage done to OPO by the police union's grievances. "We're trying to really make clear that the Office of Police Oversight has the ability to gather evidence," Mitchell said. "We want to have civilians – who are city employees – who can really be involved in the investigation process to the point of even gathering evidence, if they need to, to ensure that something is investigated thoroughly."
Getting rid of G files is also very important. If the initiative is approved and the ordinance works, the public will begin to learn the disciplinary histories of officers like Chance Bretches and Christopher Taylor, both accused of misconduct on multiple occasions before being indicted for their use of excessive force. (Taylor, who killed both Mauris DeSilva and Mike Ramos, is the first APD officer to ever be indicted for murder.) Civil rights advocates are confident that when the public is able to see these disciplinary histories, it will begin to reverse the declining rate of discipline at APD that they've observed since the 2018 contract went into effect.
They say that after the establishment of OPO, as more complaints of officer misconduct rolled in, the type of discipline meted out that would require public disclosure – the suspensions, demotions, and fining of officers – did not rise. In fact, it fell. The advocates believe that police leadership is now finding fewer officers guilty of serious misconduct so that the data from investigations will be stored in G files, shielding the officers' conduct from public view.
"The worst part about G files is that they really incentivize not sustaining misconduct, because then you get to keep it secret," Harris said. "If you have a system set up where only when you find your people did something bad does it come out, it creates this perverse incentive to never find they did anything bad – because then nothing will come out."
To address this dynamic, Equity Action's proposed ordinance requires the chief of police to explain his or her decisions when going against the recommendations of OPO and clearing officers of misconduct. "If the OPO recommends discipline and the chief doesn't do it, the chief would write a memo saying why they disagree with the OPO's recommendation, and that memo would be public," Mitchell said. "So no longer will discipline simply kind of vanish because nobody wants to say out loud, 'What was that? What was going on?'"
The proposed ordinance will also give the chief 365 days to rule on allegations of officer misconduct from the day they come to light, instead of the current 180 days. That will help facilitate the work of a little-known police oversight group known as the Community Police Review Commission, which reviews cases of police violence that result in serious bodily injury or death but that go unindicted by the D.A and grand jury. The ballot measure would make the work of the CPRC's volunteer members easier by allowing them to study investigative materials on secure computers at home, instead of having to meet in city buildings during normal business hours.
Finally, the proposition declares that any police contract negotiated between the city and APA must implement the ordinance as written and that no contract or labor agreement may be made by the city that would allow the police union to file grievances contesting the new rules.
To Mitchell, these are incremental steps, ongoing strategic adjustments, made necessary by the maneuvering of the police union. "I don't want to say that this is some kind of radical transformation – it's not," she said. "This is just getting us back to having a system for change, a foundation and a staff and a process by which we can identify the things that need to change and then do them one at a time. So this is not radically transformative, it's not going to fix everything. This is a piece of a puzzle. But it's an important piece. That's why the police union grieved it to death. They went full-on attack because what we're building here is a foundation for continued and incremental change. And that's a threat to them."
Back to the Contract
The new police contract is supposed to be finalized by September. But negotiators have an additional six months to craft a deal if they need it, and observers expect they will. That means Equity Action's ordinance could be approved while talks continue.
According to reports from the negotiations now underway, APA is asking for significantly more money in the next contract. Attendees say the union wants a 20% pay increase for its officers, including a 5% increase each year for officers with four or more years of experience. APA also wants higher longevity pay and larger stipends for officers who develop expertise in particular areas of policing. Advocates estimate that APA is requesting $60 million to $80 million for the next four years.
At a recent Equity Action gathering, soon-to-be U.S. Rep. Greg Casar, who on Council led the charge to vote down the 2017 contract, addressed the issue. "The way these things work is the Police Association says, 'If you want some civil rights, you're gonna have to bargain for it.' And they're never going to give up the five or six things that most people want, even if you have 70% or 80% of people agreeing, even if you had the entire City Council agree. The way it's structured, the Police Association would be, 'Well, that's $10 million more, that's $20 million more.' And you eventually can't get it. So figuring out how to pay the Police Association for basic civil rights, it's just a messed-up system."
Casar is enthusiastic about Equity Action's ballot initiative because it turns this dynamic upside down. It gets police oversight into the contract by forbidding Council from approving any agreement that undermines it. So if voters approve the ordinance, it will set up a game of chicken between justice advocates and the police union. It will come down to which side can hold out longer; as long as the city and APA are unable to agree to a new contract, both sides will suffer. Police officers will go without the raises they want; advocates will be unable to move forward on oversight.
Harris said advocates are prepared to wait out APA, just as they did before, but don't really believe the union will make the same mistake twice. "We understand that the Police Association walking away from the contract process is a potential outcome," Harris said. "But we don't think it's likely because they gain a lot more funding with the contract. We think they lose more without it than we do."
Casar told his fellow justice advocates at the Equity Action gathering that the group's initiative is the only way to bring effective police oversight to Austin – that only the will of the voters can fix the broken system of police unions compelling citizens to bargain for civil rights. He said the strategy could be a template for other communities to follow.
"The most obvious reason we all do this work is it will help so many people in this community who never see justice," Casar said. "It will help their families. It will save lives that we don't even know we are saving. Because when there is accountability and transparency and oversight, then we know the things that are happening in our community, especially to the poorest people, who we may never hear from, who may never complain."