The DOJ vs. the Mayor
Caffeinated News & Gossip: Did the mayor have to fight for the Community Police Commission? And if so, what'd he get?
Mayor Mike McGinn has irked the Department of Justice during this year's campaign season by repeatedly saying he had to "fight" for the Community Police Commission, the community based group that was created in the July 2012 federally mandated consent decree to oversee the Seattle Police Department.Last week, even after U.S. Attorney Jenny Durkan and DOJ Civil Rights Division Special Litigation Chief Jonathan Smith sent a letter to the CPC challenging the mayor's claim that the DOJ resisted the community oversight idea (or that McGinn even came up with the idea himself), McGinn, both in a letter of his own, and in a lengthy, compelling interview with PubliCola, stood by his statements.
Asked to explain his contention that he had to fight the DOJ, McGinn told PubliCola: "I wanted to carve out a separate agreement in which the community … would have ownership of important reform issues like bias and OPA reform [the Office of Professional Accountability oversees the SPD]. I had to work very hard to get our concerns heard."
In July 2012, when the Department of Justice and the city announced the consent decree agreement over the wayward Seattle Police Department, both U.S. Attorney Durkan and then-DOJ Civil Rights Division chief (now Obama's Secretary of Labor) Thomas Perez credited Mayor Mike McGinn with the CPC. Durkan credited the mayor for having "crafted" it and Perez went further, calling it "your idea, Mayor."
McGinn has run with the praise, going on to make the further claim that he fought for it.
The claim pissed off the DOJ—community engagement and oversight, they say, are priorities for the DOJ in these types of agreements in cities across the country—and that's why Durkan sent her letter to the CPC last week challenging the mayor's claim that the DOJ resisted the community oversight idea. She said the DOJ "actively supported" community oversight "from the start."
The paper trail Durkan pointed to (one that we'd noted prior to her her letter) showed that A) the DOJ was advocating for "community engagement" early on (the DOJ specifically identified community engagement principles in its initial March 30, 2012 letter) and B) it was the city that had initially fallen short on incorporating community engagement into the proposals (the DOJ sent a May 16, 2012 letter reprimanding the city for neglecting to include community engagement in its plan). Civil rights groups such as the ACLU trashed McGinn at the time for the city's reluctance to incorporate community oversight as well.
McGinn says the city's initial response did not address community engagement because there was not a formal finding about community engagement in the DOJ's original December, 2011 report on the SPD (true, though they flagged it generally). Additionally, McGinn's office points out, the DOJ's initial suggestions about community engagement were generalizations rather than specific recommendations for community oversight. Also true.
In their stern letter, which did give "City leaders" credit for "their role in crafting the final provision" Durkan and Smith also said:
… On March 30, 2012, the DOJ sent the City its first comprehensive settlement proposal, which included remedial measures for the SPD’s Use of Force, Biased-Free policing and Terry stop practices, as well as a section on Community Engagement, Outreach and Problem-Solving. The City’s initial response in May 2012 was so limited in scope that it nearly derailed the settlement process and prolonged negotiations. As we stated then in response to the city’s proposal: “We are particularly troubled and surprised that the City has not included any measures to respond to the issues of discriminatory policing, community engagement, or the City’s accountability system.” Each element was critical, and, throughout the process, we never deviated from the need to have a fully comprehensive, court-ordered and monitored agreement.
As the parties continued to negotiate in June and July 2012, the DOJ built on its initial proposals regarding community engagement by formally proposing a community-based entity—that we called the “Community Monitoring Board”—with a significant role in the reform process, somewhat modeled on similar successful endeavors in other cities. This group was envisioned as the public’s representatives working directly with the Monitor and the parties on reform efforts. During the course of negotiations, the concept was further developed and improved and, ultimately, became the CPC.
Additionally, challenging the basic premise that McGinn invented the CPC idea (despite praising McGinn at the July 27 agreement press conference for "crafting" the idea ) Durkan and Smith implied that the DOJ was responsible for coming up with the CPC, saying the DOJ was willing to release a document from the mediation process that was exempt from public disclosure laws that showed the "DOJ's proposal" for a "Community Monitoring Board" that became the CPC.
At a mayoral campaign debate that Tuesday night, immediately after Durkan's letter came to light, McGinn's opponent, state Sen. Ed Murray (D-43), seized on the latest kerfuffle in the tortured DOJ/SPD saga and challenged McGinn to waive the disclosure exemption as well and release the document.
McGinn's office promptly released the document with a note from McGinn spokesman Robert Cruickshank that said: "it was drafted by Jonathan Smith of the DOJ on June 27, 2012 after a very productive day of negotiations that included McGinn’s CPC proposal, described here as the 'Monitoring Board.'"
There's no evidence, other than Cruickshank's suggestion, though, that the community oversight piece in the DOJ document was actually McGinn's idea.
And, for what it's worth, the document wasn't written by Smith, one DOJ staffer McGinn has singled out as being supportive of the CPC idea. After we asked Cruickshank why he said the document was written by Smith or how he even knew when it was written—there were no names or dates on the document—he corrected his original email and told me: "You’re right. I was in error; we don't actually know if the ... PDF was drafted by Jonathan Smith. It's a document given to us by DOJ with no clear authorship. But it does reflect the initial stages of what became the CPC as it stood in mediation as of June 27, 2012."
Another DOJ attorney wrote the document. We are still trying to determine if there were any mediation negotiations on June 27.
The final agreement diverges in significant ways from the initial mediation outline for community oversight—scaling back many of those community oversight provisions.
The only thing the sides agree on about the document is that it is a DOJ summary of early joint discussions between the city and the DOJ during mediation and represents the original version of what would eventually become the CPC. There is clearly no agreement on whose ideas—McGinn's or the DOJ's—are being summarized.
Despite repeated requests, the DOJ would not go on record with me about this story. It is clear, though, that the early document about the "Community Monitoring Board" served as the precursor to the CPC that emerged in the final agreement a month later.
For example, the DOJ document describes the makeup of a community oversight group —members chosen from SPD rank and file, minority community groups, advocacy groups, and neighborhood groups—that ended up in the final agreement, and describes its authority: "The Monitoring Board shall review the reports and recommendations of the Monitor ... and may issue its own reports or recommendations to the Parties on the implementation of this Agreement."
Other specifics, such as a requirement to post CPC findings publicly and hold public meetings, are reiterated in the final agreements as well, although it's important to note this: The final agreement also diverges in significant ways from the initial mediation outline for community oversight, scaling back many of those community oversight provisions. One example: The language was changed in the final agreement from empowering the CPC to make "recommendations to the Parties," limiting it to making "recommendations to the City." This subtle change diminished the CPC's authority over the monitor.
While the very creation of and inclusion of the CPC in the final agreement with the feds is definitely a win for the city, the differences between what was first proposed in mediation and the final agreement raises another question about McGinn's supposed "fight." In addition to trying to determine whether or not McGinn had to push the DOJ, there's also the matter of trying to determine how successful his supposed fight for community oversight actually was in the first place.
"There was," says Native American community leader Chris Stearns, a member of the Minority Executive Directors Coalition Police Reform Task Force as well as the recent former chair of the Seattle Human Rights Commission, "disappointment that the CPC does not have any role in investigating or reviewing or participating in misconduct and disciplinary decisions." Stearns is referring to a police-union friendly provision that wasn't in the original outline we've seen, but was included in the final agreement that prohibits the CPC from having direct involvement in investigations of specific incidents of supposed police misconduct.
Indeed, the decrease in community oversight we've discovered between the set of provisions discussed during mediation outlined in the document released last week and the final agreement is a significant footnote to this story.
But first: What does the mayor have to say about the DOJ's recent contention that he didn't have to fight for the CPC and that, perhaps, it wasn't even his idea?
McGinn responded to Durkan's letter with a letter of his own last week stating that while he stands by his statements that he had to "fight" for the CPC, he did not mean to imply that the DOJ was against community involvement.
"I have said that I fought for inclusion of the Community Police Commission ... Those statements are true."
McGinn added, however: "I have not intended for those comments to sound as a criticism of DOJ, or a suggestion that DOJ does not believe the community should be involved in police reform. I believe and fully appreciate that everyone representing DOJ cares deeply about these issues. If DOJ felt they were under attack on that front, I hope they can rest assured that was not intended."
McGinn added coyly [italics his]: "I do not believe it would be fair to say that DOJ’s 'resistance' to the idea of the CPC, in particular, 'delayed or prolonged the consent decree negotiations.' I do believe that it took time ..."
Again: there is no public record of DOJ resistance; in fact, to the contrary, the public record shows DOJ enthusiasm for community involvement.
Pressed to produce evidence that the DOJ resisted the CPC idea and that McGinn had to fight for it, McGinn told PubliCola:
The starting point for the Department of Justice was that all of the requirements were monitored—all of the things they wanted us to accomplish—were under the direct supervision of a monitor and a judge. But to be responsive to the concerns of the many civil rights leaders that wanted to be at the table …I wanted to carve out separate agreement in which the community … would have ownership of important reform issues like bias and OPA reform. I had to work very hard to get our concerns heard.
Once we got into mediation, their starting point was generally that more things were under the control of the monitor and judge, and our starting point was to delegate as much as possible to the community police commission. And from there, we negotiated what was in the consent decree, and we negotiated what was in the MOU and the CPC. It was a productive dialogue, but we started from two different places.
As for whose idea it was, McGinn told us:
Tom Perez and Jenny Durkan were very generous with crediting me with the idea of the CPC. The idea of a CPC was real, and the authority was something that I worked for. They did want community engagement. Everyone wanted community engagement. The key difference was the level of authority that would be given to the CPC. That’s where you just have to look to what the civil rights leaders asked from me, and what the starting points were in our negotiations—and that’s just consistent with the nature of our discussions.
Despite some obvious frustration with the process (groups such as Stearns' Minority Executive Directors Coalition, along with the ACLU, blasted the mayor and the DOJ for excluding them from negotiations and held a press conference on June 21, 2012 calling the mayor's plans "vague" and inadequate), Stearns now tells PubliCola: "It is important to note that both DOJ and the city said that they heard our concerns and liked many of our recommendations. So, my sense was that many of the reforms that were finally rolled out reflected the wishes and the hard work of the community itself."
Stearns, who has given $45 to Murray after making a donation this weekend (he was originally a Harrell supporter), also praised the City Council: "One major point is that the MEDC Task Force had asked both DOJ and the mayor for a role in fleshing out the powers and duties of the CPC and I think that happened with the help of the City Council."
However, in the end, Stearns flags the same important footnote we mentioned above: In comparing the early snapshot of the CPC idea to the final plan, the final agreements are, if anything, weaker when it comes to community oversight than the earlier proposal made during mediation. This raises the question: What did McGinn actually achieve in his supposed "fight" for community oversight?
•For example, the final agreement added language preventing the CPC from having access to non-public police records or having a role in specific officer misconduct investigations or discipline.
Here's the language that was added to the final agreement that wasn't in the mediation document:
•Additionally, the final agreements excised an initial provision granting the CPC authority to "direct the Monitor to report on a specific aspect of the Parties’ compliance with this Agreement."
•And the final agreements changed the directive in the mediation document that the CPC shall have regular contact with "the Parties" (meaning the city, the judge, and the monitor), saying, rather, that the CPC shall have regular contact only with "the City."
Says Stearns: "One thing that the Seattle Human Rights Commission also had been asking for was for direct community meetings with the monitor on a regular basis so the monitor could get and even act on recommendations coming directly from the community. I think that the CPC is more or less acting as the interface instead."
To be fair, though, despite how diluted the community oversight provisions ended up being, the existence of the CPC is a net gain. Even Stearns acknowledges that the unfulfilled community demand for having the CPC directly involved in misconduct investigations and disciplinary decisions was "an uphill battle" due to the police union bargaining process). And as we noted above, the CPC does grant important powers to the community—for example, "the [Community Police] Commission will review the reports and recommendations of the Monitor ..." And one thing the final agreement added to strengthen the commission was giving it a role in helping define data collection on police stops.
Stearns probably has it right when he summarizes this way: "Ultimately, the CPC doesn’t have the same kind of powers that we really wanted, but it does have the confidence of the mayor and DOJ and, perhaps just as importantly, the federal monitor."