OPA May Have Misclassified These Complaints, Effectively Sweeping Them Under the Rug

by Carolyn Bick

Author's Note: This article is one of two released today that discuss issues related to the Office of Police Accountability's (OPA) contact log complaint classification. Complaints designated as "contact log" are not subject to investigation and are effectively "closed" according to the OPA manual.

This article addresses the OPA's misclassifications of what appear to be serious, investigation-worthy allegations as contact log complaints. Documents obtained by the Emerald show that these allegations include retaliation and bias, as well as more than 40 complaints against Seattle Police Officer Guild (SPOG) President Mike Solan, grouped together as one complaint and classified as a contact log.

Relatedly, the accompanying article addresses some of the content of a March 2022 meeting between a local lawyer and the federal monitor. In the meeting, the lawyer attempted to shine light on sexual abuse allegations against Seattle Police Department (SPD) officers. Based on the available evidence, it appears that allegations regarding officer sexual misconduct may exist as contact log complaints. However, the federal monitor appears to have dismissed this potential source of sexual abuse data without looking at any of the available contact log complaints. A third article reveals that the Community Police Commission apparently lost or destroyed survey data relating to sexual abuse by SPD officers.

The Emerald has obtained three official City documents relating to complaints filed with and allegedly misclassified by the OPA. One, a memo written by a now-former Office of Inspector General (OIG) staffer reveals that the OPA apparently continues to misclassify certain complaints as "contact log," meaning that they are closed without investigation. This memo shows that these misclassified complaints include allegations of retaliation, bias, fraud, and dishonesty. The concerns in the memo are also reflected in the OIG's most recent annual report.

The other two documents are from the OPA — specifically, former OPA Dir. Andrew Myerberg — disputing a handful of the misclassifications. Myerberg also rejects the idea that the OIG should go back to a case-by-case review of complaints classified as contact logs, despite the significant drop in the OIG's concurrence rate (i.e., number of complaints that the OIG believes are properly vs. improperly classified) with the OPA in the OIG's new (and still current) method of "checking" these classifications. It is notable that Myerberg's rejection and partial reasoning for dispute appear to rest largely on the OPA's point of view and perceived lack of rulebook guidance, rather than on analysis.

Moreover, the OIG memo supports the legitimacy of the concerns raised independently by another former OIG staffer during a meeting with federal monitor Antonio Oftelie and members of his team in March 2022. This former staffer attempted to bring Oftelie's attention to the possibility that the OPA's contact log file might, in fact, contain allegations regarding sexual assault by SPD officers. However, Oftelie appears to have summarily dismissed these concerns, apparently without looking comprehensively at the OPA's contact log file or even at OIG's own official, public-facing material.

The memo, written by now-former OIG staffer Lynn Erickson, is dated July 8, 2021, and addressed directly to Myerberg in response to "Supervisor Action and Contact Log non-concurrences … previously provided to the OPA."

According to the OPA Internal Operations and Training Manual, an OPA supervisor classifies all incoming complaints as Contact Log, Supervisor Action, Investigation, Expedited Investigation, Mediation, or Rapid Adjudication. For each officer involved in an OPA case, the OPA maintains a record called an "Officer Card" listing all case numbers relevant to that officer. But the OPA manual also states that "[c]omplaints classified as Contact Logs and Supervisor Actions do not appear on an employee's Officer Card." While Supervisor Action cases "generally [involve] minor policy violation or performance issue that is best addressed through training, communication, or coaching by the employee's supervisor," cases classified as Contact Logs are essentially closed.

A case may be classified as a Contact Log under the following circumstances: (1) The complaint does not involve a potential policy violation by an SPD employee; (2) there is insufficient information to proceed with further inquiry; (3) the complaint is time-barred under the contractual statute of limitations; (4) the complaint has already been reviewed or adjudicated by OPA and/or OIG; or (5) the complaint presents fact patterns that are clearly implausible or incredible, and there are no indicia of other potential misconduct.
— OPA Internal Operations and Training Manual, section 5.4(B)(i): Contact Log

In her memo, Erickson lists 27 contact log cases that the OIG identified as misclassified. One case, 2020OPA-0579, involved "Approximately 40 complaints alleging unprofessionalism and violation of constitutional freedom of press against SPOG president. Could not locate any OPA communication/correspondence to known Complainants."

Another case closed as a contact log, 2020OPA-0415, appears to point to OPA's own failing: "Allegations of use of force and professionalism. OPA closed stating insufficient info but did not provide reasonable time to Complainant's attorney to coordinate interview, also informed attorney investigation would proceed even without an interview. Additionally, OPA had BWV and GO# [General Offense Report Number]."

There are also multiple cases classified as contact logs that involve retaliation, bias, dishonesty, and even fraud. Many of these are fireable offenses.

According to the subsequent email and memo Myerberg sent the OIG on Aug. 2, 2021, the OPA disagreed with the OIG regarding six of the 27 complaints the OIG believed were misclassified as contact logs. Readers should note that these are noted in Myerberg's dispute memo as "CL" in parentheses.

However, in this memo, Myerberg notably avoids addressing the other 21 complaints Erickson flagged as misclassified — which appears to be an admission that the OPA did indeed misclassify them.

With regard to the handful of cases Myerberg did dispute, the Emerald specifically would like to point out two of them for readers.

In disputing 2020OPA-0551 as being misclassified, Myerberg writes, "OIG Auditor Finnell approved Contact Log classification in a routing." Readers may remember that Finnell is the auditor currently under investigation for his performance on the job and the fact that he did not appear to thoroughly review OPA investigations before certifying them. In some cases, he did not, according to internal tracking, open a single document before fully certifying an investigation.

In his dispute of 2020OPA-0579, which regarded the more than 40 complaints submitted against SPOG President Mike Solan, Myerberg writes that the "OPA classified this case for investigation. After conferring with the City Attorney's Office, OPA determined that it did not have the legal authority to investigate the SPOG President for making comments in the capacity of his union role. The case was shifted to a Contact Log."

It is unclear who, if anyone, will investigate this large number of complaints and their associated allegations if the OPA has deemed them to be out of its jurisdiction and essentially closed them out.

Myerberg also disputes the idea that the OIG should go back to a case-by-case review of complaints classified as contact logs. While the documentation the Emerald obtained provides no clear indication of where this idea originated, it seems, based on Myerberg's email, that it may have been discussed in a meeting prior to Myerberg writing the email and memo.

Myerberg writes in his email that the OPA does not believe a case-by-case review of complaints classified as contact log is necessary for the following reasons (included verbatim from Myerberg's email):

• OPA's analysis of the OIG's assessment indicates that the concurrence rate on classifications is higher than indicated in the report. In addition, the OIG has provided no guidance on what rate of disagreement is acceptable.

• The lack of two consecutive quarterly audits from the OIG prevented OPA from understanding some of the divergence and rectifying any outstanding issues in real-time.

• Both OPA and the OIG have just emerged from an incredibly busy period and having more time and resources moving forward will yield better classifications.

• We are finalizing the draft of the amended OPA Manual and will be providing it for OIG review imminently. The new Manual will rectify at least some of the issues identified by the OIG.

It is unclear what, if anything the OIG has since done to remedy the situation, such as make plans to go back to individual reviews in the near future. According to the agency's 2022 Work Plan, released in December 2021, the OIG still planned to continue quarterly sampling of classification decisions in 2022, despite the record of misclassifications documented in Erickson's and Myerberg's memos months prior.

The work plan also has this addition: "Classification review has an added focus on cases OPA has referred to the SPD chain of command to address."

This appears to indicate even less of a focus on contact log cases, despite the increase in contact log classification nonconcurrence the very same year the OIG published this work plan and what appears to be a high rate of acknowledged misclassifications.

It is also notable that even though the OIG was, at the time, apparently not reviewing individual contact log cases to check for misclassifications, the agency still found at least 21 misclassifications in a random sample — a red flag also supported by the OIG's official, public-facing material

Though the OPA told the Emerald in an email on May 19 that the OPA's "zero file" (more about this below) and contact log are one in the same and that language about the contact log could be found in its manual — "In general, OPA zero files (001, 002, 003, etc.) are a way of classifying points of contact that are not related to SPD employee misconduct" — this may not be the exact same "zero file" the former OIG staffer, lawyer Sarah Lippek was referring to in her meeting with Oftelie. Readers can find this related story linked above.

Lippek told the Emerald in a text message on June 1 that while she does not know how the OPA works now, when she was at the OIG, she was supposed to review every contact log "as individually numbered complaints." However, "there was also the bulk file, 'zero file,' which was one case number for multiple calls/complaints/contacts, which were supposedly hangup calls, or incomprehensible complaints, things that aren't even legible [etc.].

"In that file there should not have been any judgment calls, just non-complaints," Lippek explained. "But in looking through it, there were many examples of complaints that should have, in my opinion, been reviewed."

The zero file, she further explained later, was a subcategory of contact log.

Additionally, though the OPA originally wrote to the Emerald that "these files are subject to quarterly audits from the OIG," a former OIG staffer confirmed that the OIG does not review every contact log file. Instead, as noted above, it reviews a sampling of them.

When the Emerald asked the OPA for clarification regarding how many contact log cases the OIG reviews, OPA's Interim Dir. of Training and Operations Katelyn Wieliczkiewicz responded in a June 1 email that "[a]ll contact logs are reviewed by OPA staff before they are classified into one of the contact log categories. While I cannot speak to the full history of OPA, I can confirm that currently, and for the past several years, all points of contact are reviewed by OPA, and can always be audited by the OIG."

The Emerald asked Wieliczkiewicz again on June 1 for clarification regarding how many contact log case samples are audited by the OIG and also reached out that same day to Inspector General Lisa Judge and Deputy Inspector General Miroslava Meza to ask how many contact log cases are audited and how frequently OIG staff conducts such audits.

Wieliczkiewicz directed the Emerald to the OIG. The OIG did not respond to the Emerald until the Emerald had sent multiple emails in a row over a period of 10 days. However, when the OIG did respond, it did not answer a single one of the Emerald's questions — which, as outlined above would appear to be basic questions about contact log cases — and instead replied with an unsigned email.

"Currently, OIG performs semiannual and annual random sampling of all Contact Logs. OIG reviews and assesses the thoroughness, fairness, consistency, timeliness, and adherence to policy of OPA complaint-handling for contact logs. This review is published in the OPA Review section of the OIG annual reports. Information for 2019 and 2020 is available on the OIG website (links included)," the OIG wrote in its brief June 13 email.

"Data from last year will be included in the upcoming 2021 Annual Report OIG expects to publish in July. We will let you know when it is available. We anticipate moving to semiannually reporting of this information in the future," the OIG continued, before closing. "Thank you for inquiring about the review of OPA contact logs."

Though OIG failed to answer any of the Emerald's questions, the agency's annual report contains the following information in reference to contact logs. As with Erickson's 2021 memo, this annual report suggests that the problem Lippek identified during her time with the OIG has persisted (emphasis the Emerald's):

"Per OPA's website definition, this classification should be used for complaints that do not involve a policy violation by an SPD employee and for which OPA takes no other action than to document. Similarly, the definition of a Contact Log in the OPA Manual applies to the documentation of inquiries submitted to OPA that do not involve SPD employees or possible misconduct.

"However, in 2020, OPA increasingly used Contact Log classifications for complaints that alleged policy violations against SPD personnel, rather than Expedited Investigation, which would have been the appropriate classification. In most such cases, OPA investigators conducted a preliminary review and collected evidence to arrive at a determination that departmental policy was not violated. This included cases where a complaint alleged serious misconduct.

"This is problematic because OPA is required to investigate allegations of serious misconduct, including allegations of Bias and Use of Force. As noted above, if OPA determines allegations of serious misconduct are not supported after a preliminary review, they can apply a classification of Expedited Investigation. All Expedited Investigations are reviewed by OIG (see below). Thus, when allegations of serious misconduct are closed as Contact Logs, OIG does not have the opportunity to conduct an independent review. Moving forward, it would be helpful for OPA to update their classification criteria to align with their processes."

This last statement in the report suggests that the OIG did not recommend that OPA go back and revisit its entire contact log caseload, which would appear to mean that Oftelie and his team, if they chose to look, could potentially find several serious misconduct allegations within that have been misclassified as contact log cases. As Lippek's own experience demonstrates, some of these may contain sexual abuse allegations.

Additionally, the report itself noted that "[i]n the last six months of 2020, after OIG migrated to a quarterly retroactive sampling of Contact Log classifications, the concurrence rate decreased to 49%, resulting in an 81% overall average for the year."

There is no explanation given for the significant drop in concurrence rate, though it would seem concerning that such a drop should occur. Even though the OPA appears to have disagreed with Erickson regarding at least six of the cases she identified, given the scope of the kinds of cases the OIG believed were misclassified, it also suggests that the random sampling may have found only a fraction of misclassified cases.

Featured Image: Photo collage by Emerald team based on illustration by Jane Kelly/Shutterstock.com.