Top Officials at the OPA Appear to Ignore Complainant Asking for Basic Information About Her Own Case, Despite Apparent Lack of Legal Hurdles

by Carolyn Bick

Ever since she found out the Office of Police Accountability (OPA) had paused the investigation into her complaint, Aisling Cooney has been trying to get an estimate of when the office might once again resume the investigation.

Though Seattle Police Department (SPD) Sgt. Aaron Keating, the investigating officer on Cooney's case, finally answered her question just before 10 a.m. on Sept. 1, he said her investigation would not be resumed until April 2021, because one of the officers named in the complaint would not return from military service until then.

April 2021 is almost an entire year after the incident alleged in the complaint took place. The Seattle Police Officers' Guild (SPOG) contract prohibits remote interviews of officers, but notably does not do so for civilian complainant interviews. It is unclear why this provision has not changed, particularly in light of the novel coronavirus pandemic.

It also took Cooney making phone calls every day for more than a week and sending numerous emails. Nevertheless, during that time period. top officials at the OPA appear to have ignored her requests for such an estimate and officials at both the OPA and the Office of Inspector General (OIG) — the duties of which involve overseeing the OPA — seem to have skirted her questions as to why they won't give her an answer. The OPA appears to have barred Cooney from speaking on the phone with the civilian investigator who had previously been working as the intermediary between Cooney and the Seattle Police Department (SPD) officer in charge of her case, as Cooney had declined to speak directly with an SPD officer.

Moreover, there appear to be no legal barriers to answering Cooney's question regarding the resumption of her case. Based on an email Cooney received from the OIG, it's apparently up to the discretion of OPA Dir. Andrew Myerberg as to whether Cooney will be made privy to what she feels is basic information about her own case. OIG Deputy Inspector General Amy Tsai also said in an email to the Emerald on Aug. 31 that "OPA has the authority and responsibility to keep individual complainants apprised of the status of their cases."

Cooney said these issues started on Friday, Aug. 21, when she learned via the OPA's online Demonstration Complaint Dashboard that the OPA had tolled — paused — its investigation into her complaint regarding an incident at the June 7 Capitol Hill protest. The Emerald described the incident in this story about the OPA's mediation process.

Cooney said she was upset that no one from the OPA had contacted her to tell her this was the case, and she reached out to the OPA to try to figure out what was going on.

The civilian investigator, Chelsea Whittler, with whom Cooney was communicating at the time, explained to Cooney in a mid-morning Aug. 25 email that the OPA had put the investigation on hold because one officer named in the complaint was on medical leave, while the other was on military leave. She also said that the OPA investigator originally assigned to the case — SPD Sgt. Aaron Keating — would continue to be in charge of this particular case, and that any questions Whittler could not answer would be routed to Keating.

Cooney then wrote back, saying, "I don't accept a rolling [deadline] with no end date in sight. I was injured too. Please inform me when both officers will be back to work."

Whittler wrote back and only then explained that Keating was also on leave. However, she said that she would speak with Keating and get back to Cooney but that there would be a delay in her own responses as Keating would not be back from leave until Sept 1.

In her email back to Whittler, Cooney noted that "[m]ilitary leave has an end date, as well. Please let me know when that is so I can plan accordingly." She was referring to the officer named in her complaint who was on military leave.

Whittler appears to have written Cooney the same response as before, indicating that Keating was on leave until Sept. 1, but not addressing Cooney's outstanding question about when the officers named in her complaint were due to return.

In a phone call with Cooney in the late afternoon of Tuesday, Aug. 25, Inspector General Lisa Judge allegedly skirted Cooney's questions as to why Judge could not get an estimated date of resumption for the OPA's investigation into Cooney's complaint. As Cooney remembers it, Judge allegedly said that the date the officers get back "may be personal information."

When Cooney said she didn't want personal information, just a date of return — noting that she has a sister in the Navy, and "[t]hey would have an estimate of when they are returning to work like any other job" — Judge allegedly replied, "I can't tell you anymore [because] we don't know. You will have to ask OPA."

Cooney said she was becoming upset at this point, and said that the OPA was ignoring her requests for information. Judge then allegedly said, "Well, you asked today." Cooney explained that she had asked the previous Friday, after she saw that the OPA had tolled the investigation into her complaint. In the course of relaying this conversation to the Emerald, Cooney said she hadn't expected an answer right away.

She then tried to return to the subject at hand: "I just want to know when I can expect the officers to be back to work. Can you use your position to ask SPD for this information?" To which Judge replied, according to Cooney, "What if it is personal medical information? You probably wouldn't believe me if I called and they told me that."

"Well, [then] so be it," Cooney allegedly responded, "What about the military one? They must have an estimate of when they are returning. It is probably just summer drills."

Judge allegedly replied, "It could be confidential information."

At this point, Cooney said, she became frustrated. "I just want an estimate of when they will return to work and my case can continue. They could just do it remotely. My interview was over the phone," she said.

"SPOG union contract prohibits remote interviews. They have to be in person," Judge allegedly countered, suggesting that this requirement in the SPOG contract has not changed, despite the pandemic conditions. Cooney said Judge did not address her request that Judge ask SPD for the information about when the officers would return, a request she alleges to have repeated at this point.

Cooney said Judge then abruptly hung up on her, an act Judge later explained on Twitter, after Cooney tweeted about her experience. Because Cooney has set her tweets to automatically delete after a certain period of time, the thread is no longer available online. However, Cooney saved screenshots of the thread, which the Emerald has included below. Cooney's Twitter handle has been redacted at her request, due to privacy concerns.

Just before 8 a.m., earlier the same day as her fruitless phone conversation with Judge, Cooney had written to Deputy Inspector General Amy Tsai to tell Tsai that she hadn't received information about why her investigation had been tolled despite having requested this information from the OPA. Several hours later, just before 2 p.m. — a little less than two hours before Cooney's above-referenced phone call with Inspector General Judge — Tsai wrote back, saying, "OPA has indicated they are in contact with you so hopefully your question below has been answered. I will forward this detail about the information you are seeking to them. They are also updating their website to explain tolling in general, so thanks for that feedback as well."

Cooney replied immediately: "It is not resolved. My investigator is apparently out of town until September 1st and 2 officers cant be contacted indefinitely. It will be at least a week before I hear back about how long my case is frozen."

"I hoped they could do a phone interview like I did. Apparently, the union contract does not allow that, which is ridiculous. I should not be expected to wait two weeks since I found out my case was tolled to know how long I can expect it to be paused," Cooney's email to Tsai read. "I would like an estimate for the tolling ASAP."

According to the SPOG contract, the OPA may not do phone or video interviews with officers named in complaints. The contract says that the officer will be accompanied by "any member of the Guild's bargaining unit who has been determined to be a witness." The contract does not give a reason for this aspect of the interview process. There is no provision in the OPA guidelines or any other guiding document that requires complainants to have a witness of any kind.

According to Cooney, during a slightly earlier, shorter Aug. 25 phone call with Judge, Judge said that "we" — it was unclear to whom Judge was referring — had tried to get SPOG to change the requirements, given the pandemic conditions. SPOG allegedly refused. According to Cooney, Judge did not speak more on the matter during either of their calls. When the Emerald posed a question to Tsai via email as to why SPOG was not allowing alternate interview options during the pandemic, Tsai did not answer the question. The Emerald has reached out to the OPA and SPOG to ask about this requirement and why it was not changed.

But even putting aside the issue of the in-person interview requirement, the OIG telling Cooney that she needs to get the information from the OPA presents yet another problem. On the evening of Aug. 25, Tsai wrote back to Cooney to tell her that Cooney's concerns about feeling unsupported in the process, as well as her concerns about mediation — which the Emerald wrote about here — have been "shared with Director Myerberg, in addition to your desire to speak with him."

"I can't speak to how and when OPA might respond, because they are an independent agency. I've also posed your question to OPA regarding why and how long your case is being tolled," Tsai said.

The next day, on Aug. 26, Cooney wrote again to Whittler — the civilian OPA investigator serving as intermediary between Cooney and the investigating officer for her case, Sgt. Keating — to ask again when the two officers named in her complaint would return to work, and asked about their identities. Whittler replied that she still didn't have an answer for Cooney, and that Cooney should "direct any further inquiries regarding officer leave dates for Complainant 2020OPA-0439 to Deputy Director Grba."

Cooney replied, "I know you have identified the officers involved because that's how we know they are out on leave. Please provide me with their names & badge numbers." She then requested a phone call with Whittler..

Whittler replied about an hour later: "Moving forward, I would prefer that we communicate via email or in-person at the OPA office. Would you like to schedule a meeting with me at the office?"

Cooney wrote to Whittler the next day, Aug. 27, with a list of questions. In her first question, she repeated her request for a phone call, saying that "[i]t would be easier for me to communicate via a call. I cannot come into the office because it is a pandemic."

She then asked why she was being restricted from communicating with Whittler via phone calls, and iterated her questions about when the officers would return and their identities.

Whittler replied, "I am not the investigator assigned to this case. You can direct your questions to the assigned investigator, Sgt. Keating. Please note that I will no longer be responding to queries regarding 2020OPA-0439. Any concerns regarding this decision can be directed to Deputy Director Grba, who is copied on this email."

In an email to Tsai on Aug. 28, Cooney said that Judge told Cooney she would "have [Andrew Myerberg] the Director of OPA call me," but that she still hadn't heard from Myerberg or gotten any new info about her case.

"I was told I can no longer speak to my civilian investigator. I must talk to a cop. I have made it clear since June, I can't talk to law enforcement due to the trauma inflicted upon me by SPD. I was told OPA will not speak to me over the phone. I have to email or go in person during a pandemic," Cooney's email read. "I have reached out to [Mark Grba] the deputy director of OPA as advised by my civilian investigator and heard nothing. My case is still tolled indefinitely."

Tsai wrote back on Aug. 29, saying that though Judge had asked Myerberg to call Cooney, "[u]ltimately, it will be up to Dir. Myerberg how he chooses to respond."

"In regards to your investigator, the addition of civilian investigators was one of the achievements of the accountability ordinance, but there are very few of them. If you are referring to Deputy Director Grba, he is himself a civilian," Tsai wrote. Cooney was referring to Keating, not Grba.

Tsai's email continued, and explained that the OIG may oversee the OPA, but it does not direct day-to-day operations.

"However, and importantly, it is individual complaints like yours that help us to know where to focus our oversight efforts," the email read. "We are looking into how information is being conveyed by OPA to you and others about cases, thanks to your bringing your issues to our attention."

In the Twitter exchange between Cooney and Judge on Aug. 25, Judge said that "I and my office are doing our best to respond to your concerns but the system is currently limited by contracts, laws and authority limitations beyond our control." She did not say what specifically limited her office from getting this information for Cooney.

In her email to the Emerald, Tsai did not address the Emerald's specific question asking if there were any legal obstacles that could prevent Cooney from knowing this information. She also did not answer a host of other questions posed by the Emerald, including whether this was a situation that had come up before, how the system ensured investigations aren't harmed by delays like this, or if there are any other options for complainants if they are concerned about such delays.

The OIG's website says that "[t]he Inspector General has unfettered access to SPD operations in order to perform her duties, including being on-scene at investigation of serious uses of force by SPD and at administrative reviews of those incidents." Tsai did not address the question that the Emerald posed asking if this means Judge would have access to the information Cooney is seeking.

Cooney had previously sent two emails to Grba, one on Aug. 27 and one on Aug. 31. In both emails, she asked a list of questions, including one about an estimated date for the resumption of her case. Grba never replied.

The Emerald has reached out directly to OPA Dir. Andrew Myerberg, Deputy Dir. Mark Grba, and OPA Deputy Dir. of Public Affairs Anne Bettesworth about this matter, and will update this story if more information becomes available.

An earlier version of this story mistakenly stated that Cooney sent two emails to OPA Dir. Andrew Myerberg. She sent the emails to OPA Deputy Dir. Mark Grba.

Carolyn Bick is a journalist and photographer based in South Seattle. You can reach them here and here.

Featured image is attributed to Rootology and is licensed under a Creative Commons CC BY-SA 3.0 license.