Proposed Legislation Attempts to Clarify OPA's, OIG's Power to Subpoena in Police Misconduct Cases

by Carolyn Bick

The Office of the Mayor and Seattle City Councilmember Lisa Herbold have announced new legislation that is meant to clarify the Office of Police Accountability's and the Office of Inspector General's power to subpoena those involved in or who are witness to possible officer misconduct — including officers themselves.

The proposal clarifies legislation that was previously unclear due to language in both the City's 2017 Accountability Ordinance and the 2018 Seattle Police Officers Guild (SPOG) contract that appear to counter one another.

The proposed legislation, announced in a press release on the morning of Dec. 3, comes on the heels of the release of an OPA Case Closed Summary in which all allegations were sustained against an officer who ran into a woman's car and lied about it. In this particular case, the OPA was unable to secure the testimony of a witness officer, writing that "he had left the employ of SPD at that time and declined to participate in this investigation." However, OPA Dir. Andrew Myerberg told the Emerald in a Dec. 4 email that OPA didn't seek a subpoena, in that case.

"We felt that there was sufficient evidence in the file, including the statements made on [body-worn video]," Myerberg said.

However, it is unclear what power the office would have had to seek a subpoena, if it had wanted to do so. This is what the proposed legislation is meant to clarify.

According to the Dec. 3 press release, the proposed legislation is meant to strengthen the police oversight powers of both the Office of Police Accountability (OPA) and the Office of Inspector General (OIG), the City's civilian-led oversight agencies. If passed, the legislation would also grant both offices the ability to seek "a Court order should someone fail to comply with a subpoena for an investigation."

"The new legislation also codifies and makes clear that complainants and witnesses who may be subpoenaed have due process protections; this effort is intended to increase civilian compliance with subpoenas and mitigate any chilling effects of providing information that might later be used in separate proceedings," the announcement reads.

The Emerald also obtained a copy of the draft legislation, which a spokesperson for the Office of the Mayor said may undergo some "minor technical changes" and which has not yet been uploaded to the City's Legistar system. Though the word "misconduct" is only used twice, and the draft does not further narrow down the term's definition, it does not limit the kinds of misconduct cases for which the OPA and OIG may issue subpoenas.

The draft of the proposed legislation also grants the Inspector General power to issue a subpoena when that person "is performing duties under its authority to act in lieu of the OPA Director pursuant to subsection 3.29.240.D."

However, it says, "this authority is subject to any collective bargaining agreement limitations," which would appear to indicate that the SPOG agreement would supersede at least this portion of the proposed legislation, as it is currently drafted.

But this would only happen, Councilmember Lisa Herbold said, if they failed to "negotiate the terms of the contract to be consistent with the ordinance, and I don't think that's going to happen."

She said that the City's three accountability partners — the OPA, OIG, and Community Police Commission (CPC) — were unified, regarding the proposed legislation, and that there was strong public support for the top SPOG contract negotiation priorities identified in a public hearing last December, and memorialized in a resolution this past February.

"And we have our accountability partners working with us in negotiations. So, if you take all those things together, I think we are in pretty good shape," Herbold said.

According to the press release, the OPA and OIG have not had explicit subpoena power. The effort to grant that power was begun in earnest with the Accountability Ordinance, which the Seattle City Council passed in 2017. However, the press release said, "[w]hile officers must comply with OPA investigations," it was unclear whether the OPA could issue subpoenas.

"[T]his legislation clarifies the City's civilian oversight agencies' process to issue a subpoena, judicial oversight, and provides explicit powers to issue subpoenas for witnesses and records. Subpoena power was one of the issues raised by the federal court and by an assessment of the City's accountability system," the press release reads.

This official 2019 assessment of the City's police accountability system found that, among other issues, it was "unclear" what tools were available to the OPA and OIG to carry out their respective jobs. The assessment specifically pointed out that the "breadth of subpoena authority of OPA and OIG, including regarding officers, their family members, and personal records of officers and family members is unclear."

The assessment also noted that, along with the passage of the 2018 SPOG contract — which dictates OPA process — the Seattle City Council passed a resolution asking that the Seattle City Attorney's office petition for a review of some of SPOG's contract terms, because those terms run directly counter to the Accountability Ordinance.

The assessment said that the SPOG agreement involves a "[r]estriction on subpoena power for OPA and OIG" in SPOG Appendix E.12.

That section of the SPOG contract reads: "The City agrees that these sections of the Ordinance will not be implemented at this time with regard to bargaining unit employees and their family members, and third party subpoenas seeking personal records of such employees and their family members."

"After the City further reviews questions raised concerning the authority and potential need for OPA and the OIG to issue such subpoenas, the City may re-open the Agreement for the purpose of bargaining over these sections of the Ordinance and the parties will complete bargaining prior to the OIG or OPA issuing subpoenas to bargaining unit employees and their family members, or a third party subpoena seeking the personal records of such employees and their family members," the SPOG contract continues.

This, the assessment said, contradicts the Accountability Ordinance, which reads, "[w]hen necessary, the OPA Director may issue a subpoena at any stage in an investigation if evidence or testimony material to the investigation is not provided to OPA voluntarily, in order to compel witnesses to produce such evidence or testimony."

"If the subpoenaed individual or entity does not respond to the request in a timely manner, the OPA Director may ask for the assistance of the City Attorney to pursue enforcement of the subpoena through a court of competent jurisdiction," the Accountability Ordinance reads.

Towards the end of the press release, it states that "… thus far, OPA and OIG have not needed to issue a subpoena to officers to obtain records or secure testimony."

OIG Inspector General Lisa Judge told the Emerald in a brief email after initial publication of this story that she would "echo the comments from the other accountability partners in the press release."

Those comments focused mainly on the need for subpoena power and how it would strengthen the City's police accountability systems, despite the fact that the same press release noted that neither OPA nor OIG has ever felt the need to subpoena an officer for records or testimony, as indicated above.

Herbold said that the OPA has used subpoena power before, just not on officers, and that the "ordinance is broader than just subpoena power for officers and their private records."

"It could cover a situation in which OPA has used subpoena power before and had had difficulties in implementing it," Herbold said. She said she remembered an instance in which the OPA had done a subpoena of a phone company for phone records, and while they didn't have any issues in that instance, "you could imagine a situation where you would want to make sure in the use of subpoena power — even if it wasn't for officers or for officers' personal records — that you would want to have an ordinance that is very clear on people's rights to appeal."

Herbold also said that there will be forthcoming legislation that will address other issues memorialized in the resolution passed in February, and that the OPA, OIG, and CPC will be able to participate and advise in SPOG contract negotiations.

Carolyn Bick is a journalist and photographer based in South Seattle. You may reach them on Twitter, and check out more of their work here and here.

Featured image from The Blue Diamond Gallery by Nick Youngson under a Creative Commons license.