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Shawn Vestal: Reform will require blocking police unions from impeding accountability

Feb. 11, 2021 Updated Thu., Feb. 11, 2021 at 8:44 p.m.

Mya Montgomery gives the Black Power sign as she peacefully protests in Riverfront Park's Lilac Bowl in Spokane, Wash. on Sunday, June 7, 2020. The protest was held to remember Breonna Taylor, an African American woman was fatally shot in Louisville, Ky., by police in her own home in March, as well as to call for change against systemic racism and police brutality. (Libby Kamrowski/The Spokesman-Review via AP) ORG XMIT: WASPO704  (Libby Kamrowski)
Mya Montgomery gives the Black Power sign as she peacefully protests in Riverfront Park's Lilac Bowl in Spokane, Wash. on Sunday, June 7, 2020. The protest was held to remember Breonna Taylor, an African American woman was fatally shot in Louisville, Ky., by police in her own home in March, as well as to call for change against systemic racism and police brutality. (Libby Kamrowski/The Spokesman-Review via AP) ORG XMIT: WASPO704 (Libby Kamrowski)

If you’re hoping to see shackles placed on the ability of police unions to hamper officer misconduct investigations, then I suggest you get to grips with an excellent slice of legislation: Section 3 of Senate Bill 5134.

Because it may not be long for this world. Or at least this legislative session.

In a Legislature overflowing with police reform proposals, that proposal, along with a narrower bill proposed by Spokane Sen. Andy Billig, takes aim at the unholy conflict between police unions and public accountability.

As it stands, police unions exert incredible control over misconduct investigations, terms of disciplinary action and the manner of citizen oversight or civilian review. Not only is it possible for them to make all such questions part of their labor contract, it is mandatory that such “working conditions” be bargained.

This, in combination with a secretive arbitration process tilted toward absolving officers, creates a system that makes bad cops astonishingly impervious to consequences and accountability.

As Alison Holcomb of the ACLU put it, the typical labor union contract sets terms between employers and employees.

“Police unions, on the other hand … have proven to be primarily focused on protecting members of the union from the public,” she said.

To begin addressing that problem, Sen. Jesse Salomon of Shoreline introduced SB 5134, which is unfortunately falling by the wayside as other police reform proposals gain steam. When you read what it would prohibit, you realize that what an incredible amount of authority police unions wield over their own accountability.

Among the mandatory subjects of collective bargaining are:

• The terms of how misconduct complaints are initiated, investigated and resolved;

• Terms and conditions of how much officers are required to cooperate, or not cooperate, with investigations;

• How much access accused officers have to videos and evidence before agreeing to interviews or giving statements;

• Terms of public disclosure of investigative and disciplinary information;

• The storage, handling and public release of body-camera footage;

• The composition of civilian oversight entities;

• Control whether the public can be informed of officer misconduct;

And so on.

It goes on for 2½ pages.

It defies belief. And that’s our status quo.

Salomon’s proposal was foreseeably opposed by labor groups and law enforcement representatives.

Salomon and the ACLU are now hoping to keep Section 3 alive as a narrower bill, although neither he nor others were terribly optimistic about its chances. That’s too bad; in a field full of reform ideas, none gets to the foundation of the problem as effectively as his proposal.

“This is an issue that’s going to keep coming back, even if we don’t pass this bill this year,” Salomon said.

‘You get public confidence’

Billig’s bill is a slimmer version of the same general idea – a “lighter touch” on the accountability, as he put it – and it’s aimed directly at a stubborn problem in Spokane.

It would remove two areas from mandatory bargaining: the process for selecting an ombudsman or ombudswoman to oversee civilian complaints and whether an ombuds is allowed to write closing reports about their findings, once department discipline is concluded.

Both of these issues have been significant obstacles to independent civilian oversight of the Spokane Police Department, which a large majority of voters said they wanted in 2013 and which remains a distant goal. Police unions now have significant presence on the Spokane board that hires an ombuds and staff, and they have blocked the ombudman’s ability to file reports by contract – as well as by putting up simple bad-faith obstacles in some individual cases.

Billig’s proposal would eliminate both categories from mandatory bargaining. It comes as the Spokane Police Guild is said to be nearing an agreement on a long-unresolved contract with the city. An earlier contract was rejected by the City Council because it failed to truly meet the city charter’s demand for independent oversight.

At a Zoom hearing Thursday morning, Council President Breean Beggs spoke in favor of the proposal.

“We are interested, like so many others in the Legislature, in reimagining public safety,” he said. “When you give freedom of selection of the ombuds and give them freedom to write a report, after it can no longer impact discipline in any way, that means you get public confidence. That’s what we need now more than ever, is confidence in police.”

This is not, unsurprisingly, how representatives of police unions see it. Teresa Taylor, executive director of the Washington Council of Police and Sheriffs, said that “maybe now more than ever” it’s important to provide strong labor protections to police officers.

“Our members do have substantial concerns with any measure that would reach in and inhibit the collective bargaining agreements in our state and would interfere with good faith negotiations,” she said.

Billig said he hopes the proposal does more than provide a fix for Spokane. He’d like to see it give the ombuds model more strength as an option for other communities.

“This is about giving the Spokane community the independent ombuds office that 70% of voters voted for,” he said in an interview. “But it’s also about smoothing out the rough edges of state law to allow this model to be adopted in other communities.”

‘The right direction’

These bills were part of a wave of proposed legislation that arose after the killing of George Floyd and the subsequent, sweeping calls for police reform.

One proposal, House Bill 1054, would ban or put significant limits on a range of police tactics and equipment, barring chokeholds, the use of large-caliber ammunition and militarized equipment, and unleashed police dogs.

Another seeks to create a statewide database of use of force incidents. Another would give the state training agency more authority to decertify and prevent the hiring of officers who engage in misconduct – including, crucially, a failure to report the misconduct of others. Still another would create a state office to investigate some uses of deadly force.

It’s far from certain what will make its way into law. But reform advocates are hopeful that some positive changes will become law this year.

“There are really big, meaty issues and there are a lot of them,” Holcomb said. “At a minimum, it seems really important to me that these meaty pieces of legislation about these important issues have been introduced and are even being discussed.”

Beggs is similarly optimistic. The system is built to maintain the status quo and move slowly, he said. Some good will come out of this session, he said, but it’s also likely that some positive proposals may not pass this time around. That doesn’t mean they won’t be back in future sessions – sometimes it takes two or three or more tries to get legislation passed.

“I feel like at this moment in the Washington State Legislature we’re going to see substantial improvement compared to past sessions,” Beggs said in an interview. “We’re going in the right direction and we’re not going backward. I’m feeling good about it.”

Competing proposals

Salomon’s original bill also focused on making changes to the arbitration system, which is a crucial link in the lack-of-accountability chain for officer misconduct.

When officers are disciplined for misconduct, they can appeal under the terms of their contract to a private arbitrator. The procedure takes place out of public view, and arbitrators are remarkably friendly to the complaints of appealing officers. Holcomb noted that more than half of all such appeals by officers disciplined by their chief or sheriff result in the punishment being overturned or reduced.

Because arbitrators rely on past arbitration decisions, the likelihood that an officer might slip out of a consequence for misconduct – based on the simply astonishing level of control they have over the process built into their employment contracts – is very high indeed.

Salomon’s bill was one of two Senate proposals that looked to reform or eliminate arbitration. The other one, SB 5055, makes certain changes to the process, but the ACLU has not supported that bill because it falls short in key areas, Holcomb said.

Her fear is that the bill will tinker around the edges of the issue, and make legislators feel, in passing it, that they’ve made significant changes when they haven’t.

“The real risk with 5055 is it purports to fix arbitration but it doesn’t,” she said.

It’s moving out of committee, however, while Salomon’s has languished. That’s why he’s going to try to bring forward a narrower bill focused only on Section 3; he and Holcomb will be trying to gain support and a sponsor this week.

Reading Section 3 is a sharp reminder of the incredible range of interference that police unions are allowed to have over their own accountability. We can do a lot to reform policing in this state. But it will be difficult, and perhaps impossible, to make lasting change until questions of misconduct and accountability are wrested completely from the hands of police unions.

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