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Yesterday, attorney Edward Swanson filed his report on what he referred to as a “broken” police disciplinary process to Judge Thelton Henderson. The report is available here, and media reports are here (East Bay Express), here (Oakland Tribune) and here (San Francisco Chronicle).  In this post, we will talk about the background leading up to the investigation and report, where Swanson points his finger (and where he doesn’t), his recommendations, and what they mean for Oakland.

Background

Oakland and its police department have been under Court supervision under the “Negotiated Settlement Agreement” (or “NSA”) in the case of Delphine Allen, et al. v. City of Oakland since January, 2003.  For twelve years, the City has struggled to bring itself into compliance and end Court supervision.  Meanwhile, the Court-appointed monitor, Robert Warshaw, has continued to expand his reach, recommending many departmental changes that go far beyond the language of the NSA. The process of arbitrating police discipline matters arises both out of Section 9.10 of the City Charter (something Swanson did not mention) and the Memorandum of Understanding (or contract) between the City and the Oakland Police Officers Association. The results, although not the process itself, have been under Judge Henderson’s scrutiny for several years. The first time was in September of 2011, when Judge Henderson expressed the belief that something was not right with the arbitration process. An arbitrator had reinstated Officer Hector Jimenez, whom OPD terminated after he shot and killed an unarmed civilian. In response to the judge’s expressed concern, the City assured the Court that it was going to improve its representation and performance in arbitration proceedings. Three years later, an arbitrator ordered reinstatement of Officer Robert Roche, terminated for alleged wrongful use of force during the October, 2011 Occupy Oakland demonstrations. In response, the judge first ordered Warshaw to conduct an investigation, then ordered the City to contract with attorney (and former Judge Henderson law clerk) Edward Swanson. The Court stated that failure of the arbitration / discipline process “undermines the very objectives of the NSA: to promote police integrity … and to enhance the ability of the Oakland Police Department … [to] protect the lives, rights, dignity and property of the community it serves.”

Findings

These are Swanson’s primary findings:

• OPD has vague and inconsistent policies.  “A consistent theme …has been the Department’s failure to provide clear rules and policies that notify officers of (1) what conduct is prohibited, and (2) what the consequences are for a violation.  Arbitrators regularly decline to uphold discipline if the rule or policy at issue is vague or unclear . . .”
• Investigations have been inadequate in a number of respects, including failure to consider all relevant facts or witnesses and failure to examine supervisory responsibility.
• OPD’s execution of the disciplinary process has in multiple ways sabotaged its ability to prevail at arbitration. For example, once IA determines that an allegation is sustained, the sergeant, lieutenant, and captain in the officer’s chain of command prepare a “Pre‐ Discipline Report” stating their recommended level of discipline for the offense. The problem is that if the discipline imposed by the chief is greater than that recommended by one of the report authors, that disparity is used by the Union at arbitration to challenge the Chief’s discipline. Furthermore, Swanson cited instances where the Chief’s discipline was not adequately supported by the evidence, including an incident where the department awarded an officer a medal of commendation and sought the officer’s termination for the same event. Finally, he found that officers presiding at Skelly hearings — the proceeding during the disciplinary process where the  officer has the right to present mitigating or exculpatory evidence — used inconsistent standards, so that the outcome was often dependent on which officer presided.
• Through lack of preparation, poor (or in some instances no) criteria for selecting outside counsel, failure to call lay and expert witnesses and generalized neglect and indifference, the City Attorney’s office has done a poor job of representing the City’s interests at arbitration.
• The relationship between the City Attorney and OPD has been dysfunctional.
• There has not been a culture of accountability regarding police discipline. The Mayor, the City Administrator and the City Council have known for years that this is failing, but have “done nothing to demand or enforce an effective discipline system.”

In the past 5 years, OPD and the OPOA have held 26 police discipline arbitrations. Swanson reported that in 19 of them, or 73%, the proposed discipline was not upheld. Curiously, as a point of comparison he cited a quote from a Wall Street Journal article  (paywall) that “Police unions win reversals or modifications in more than 60% of disciplinary cases that go to arbitration nationwide.” But Swanson did not opine as to what percentage of success at arbitration for Oakland would be appropriate, or whether the difference between “more than 60%” and 73% is statistically significant with a sample size of only 26 arbitrations. He offered no opinion on whether arbitration was  an appropriate mechanism for addressing disciplinary disputes. On the other hand, he did discuss quite a number of arbitration cases in a way that does not inspire much confidence in their handling. Statistics notwithstanding, Swanson cites many anecdotal examples of poor preparation, failure to interview readily available witnesses, and poor investigation throughout the disciplinary process But while finding fault—and correctly so, in our view—with everyone in City government and the OPD, he makes no mention of any responsibility by the Court-appointed monitor and Compliance Director. Mr. Warshaw, has been the Court-appointed monitor since 2010, and the Compliance Director—effectively the head of the department—since March, 2014. Certainly he was aware of these issues. Swanson doesn’t include evidence that Warshaw has made any orders, or even any suggestions, about improving outcomes at arbitration.

The Recommendations

The Swanson recommendations:

• The Department and City Attorney must work much more closely in the investigation process, including the stationing of a Deputy City Attorney in the Department, specifically in Internal Affairs Division. The Deputy should assist with training of IA investigators, planning and executing investigations, identifying and correcting inconsistent rules and policies, drafting letters of intent to discipline (critical documents, presently drafted, and poorly, by administration personnel in OPD) and preparing in a timely and thorough manner to represent the City in arbitrations. For serious complaints, a Deputy City Attorney should be assigned at the outset, and stay with the investigation through the arbitration hearing.
• OPD’s investigative process should be revised and improved in a variety of ways.
• OPD should expedite the transition to up-to-date, specific rules and policies.
• OPD should change its Pre-Discipline Report and Skelly hearing processes.
• The City Attorney’s office should take steps to ensure a higher level of preparedness, more aggressive litigation, careful monitoring and a post-hearing review process.

What Does This Mean For Court Supervision and the NSA?

The Mayor and City Council have been optimistic that Oakland is close to putting the NSA behind it. While we would like to think so, this report—and the failure to assign any responsibility to the monitor / compliance director—give us much doubt. While Mr. Warshaw has lately found Oakland to be approaching full compliance with the NSA, he has frequently written of the need for “sustainability” as a prerequisite to ending court supervision. And in that regard, Swanson reports the following:

While we commend OPD and the OCA for the changes they have made in recent months, we note that none of these changes has been implemented in a sustainable way.  There have been no changes in Department General Orders or other written policies. Practices have changed, but they could just as easily revert back when the Court is no longer supervising these matters.  For the Court and the public to have confidence that OPD’s discipline process has been changed in a sustainable and lasting fashion, OPD, the OCA, and the City administration should implement reforms that are incorporated into the policies that govern their actions.

In our view, the City would be within its rights to fear that this “sustainability” observation, combined with examples of poor handling throughout the 43-page report, will be enough to keep Mr. Warshaw in charge for a number of years before court supervision finally ends.