Fmr. Mayor May Have Pushed OPA to Delay Investigations Into Fmr. Police Chief

City hired outside firm to investigate; OPA currently reviewing documents.

by Carolyn Bick

Former Seattle Mayor Jenny Durkan appears to have had a hand in delaying investigations into former Seattle Chief of Police Carmen Best's handling of the 2020 Black Lives Matter protests.

The Emerald has also confirmed that the City hired an outside law firm to investigate Best, and that the Office of Police Accountability (OPA) currently has received and is reviewing the draft reports from these investigations, but has not specified a timeline for their completion. The OPA declined to release the name of the investigating law firm while the investigation's closure is pending. It also did not respond when the Emerald followed up to ask how long it has had the draft reports and how long the firm's investigation took.

Newly released documents the Emerald has obtained appear to show that Durkan's office pressed the OPA not to pursue certain investigations that involved former Seattle Police Department (SPD) Chief Best until the Office of Inspector General's (OIG) Sentinel Event Review (SER) had concluded. Durkan appears to have opted to hire an outside investigator to take on two of these cases, which include allegations regarding Best's involvement in SPD's use of tear gas and dishonest comments to the media.

Though the first message in the records the Emerald obtained is redacted, based on previous messages in that same thread, Durkan's office appears to have pushed for an outside investigator and, according to the OPA itself, did indeed go this route. The messages in the thread refer to three separate cases — 2020OPA-0345, 2020OPA-0354, and 2020OPA-0355 — one of which (2020OPA-0354) involved the abandonment of the East Precinct. The OPA handled this case, releasing the closed case summary in October 2021. The Emerald broke the news last year that Best appears to have been involved in the decision to abandon the East Precinct, despite claiming otherwise.

However, it remains immediately unclear why the City chose to hand just two of the three cases over to an outside law firm to investigate. While it is also unclear when the OPA will complete its review of these cases, the OPA told the Emerald that 2020OPA-0345 concerns Best allegedly improperly allowing the deployment of tear gas, and 2020OPA-0355 concerns allegations that Best's statements to the media regarding the Capitol Hill Autonomous Zone (CHAZ)/Capitol Hill Occupied Protest (CHOP) were dishonest.

In response to request for clarification on the decision to investigate only one of the three cases in-house, the OPA replied, "OPA has had three directors over the past year. The current OPA administration is not in position to explain the strategies and decision making of past directors."

If the OPA is waiting for the SER to conclude in order to resolve the other two cases involving Best — as suggested in the messages from Durkan's office — that could take years. The SER — which, according to the OIG's webpage on the undertaking, reviews "'critical incidents,' looking at SPD systems to determine how they can avoid future harmful outcomes and better serve the community" — is ongoing and has been broken out into "waves," or time periods encompassing significant events that occurred over the course of protests in 2020, each of which will apparently be examined separately. As it stands, it is unclear whether there will be any resolution in the near future and the OIG did not respond to request for comment.

Notably, the SER webpage also states that the SER's purpose "is different from that of the Office of Police Accountability, which investigates allegations of individual police employee misconduct. SER is not focused on individual actions or assigning blame, but strengthening system fail-safes to prevent harm." Given this, and in addition to the lengthy timeline, it is unclear why the mayor's office would recommend waiting to conduct investigations into Best until the SER concludes.

The first email in the documents has been almost entirely redacted due to attorney-client privilege, but the unredacted portion of the record reveals Durkan's former legal counsel, Michelle Chen, as the sender. The unredacted portion also shows that Chen addressed it to both Durkan and Durkan's former aide, Stephanie Formas. The email contains Chen's forwarded communications with former OPA Dir. Andrew Myerberg.

In her initial message to Myerberg, sent on the afternoon of July 22, 2020, Chen asks a series of questions, appearing to raise doubt about the wisdom of the OPA investigating Best. In addition to asking whether it was "necessary" for the OPA to investigate Best, Chen raises the possibility of waiting until the OIG has concluded the SER. Her messages appear to suggest that she believed discipline would be meted out in the SER, even though that is neither the purpose of the SER nor the OIG's role.

Regarding 2020OPA-0345 — one of two complaints mentioned in these records that remains open, and that apparently originated from OPA itself — Chen writes, "Given that the interim policy that went into effect that banned the CS gas unless authorized by the Chief, I'm not following what policy was violated since the Chief or her designee had discretion to authorize its use."

This is followed by a second bullet point: "Why did OPA think it was necessary to initiate a complaint on this issue and won't it be addressed in the OIG Sentinel Review?"

She continues, asking about the specific policies alleged to have been violated in the abandonment of the East Precinct.

"Likewise the decision to abandon the East Precinct, is that a specific allegation against the Chief or the department as a whole? If it is specific to the Chief, then what is the SPD policy that is alleged to have been violated?" Chen writes.

She then again raises the possibility that this would be addressed in the SER: "Won't this issue also be part of the OIG's sentinel review given that it was a key/ critical event in SPD's response to the mass protests? Not sure what we gain by having a separate investigation on something that I expect OIG to thoroughly cover."

Chen writes that she does not understand how a tweet could be classified as misinformation from Best. She is referring to allegations that SPD disseminated false information via social media. While it is unclear exactly what misinformation she is referring to, based on the OPA's response to the Emerald, it may in part concern the video Best released to officers (and that SPD released to the public) in which she apparently knowingly made several false statements about the events unfolding on Capitol Hill. The Emerald broke this story last year.

"The allegation about inaccurate statements made by the Chief via the SPD Twitter handle," Chen writes. "I don't understand how that is a complaint that can be directly attributed to the Chief given that the intake itself acknowledges that the SPD twitter handle is managed by SPD Comms staff."

"Finally," Chen closes, "is it your interpretation of the OPA manual that the OPA Director in consultation with the Mayor has discretion on whether an investigation is necessary? By doing an intake on these complainants has OPA determined that these investigations are necessary?"

Myerberg writes back to Chen, addressing each of her questions. He specifically states that "the sentinel event review has a different focus and is not disciplinary in nature."

He also writes, "I don't read the Manual as giving the Mayor the authority to determine whether investigations are to be completed. That decision is OPA's." He then appears to suggest an alternative: "The Mayor has the ability to decide who conducts the investigation."

Chen appears to use Myerberg's answers to justify waiting until the end of the SER to investigate Best, writing in an email two days later, "Based on some of your answers, it seems reasonable that perhaps we should wait until the OIG completes her sentinel review of the events to narrow in on the specific allegations of violations of law and/or policy directly attributable to the Chief.

"Since we are not subject to 180 days or any specific timeline, my recommendation is that we wait to refer these complaints to an outside investigator once we have the information from the sentinel review, and we can then hone in on the very specific scope of the potential misconduct alleged to have been committed by the Chief," Chen continues.

"I understand the sentinel review is not a disciplinary investigation, but it will cover many of the same issues and be helpful to the investigator to help narrow in on the specific events and actions attributable to the Chief, which will shed light on possible misconduct that needs to be separately investigated."

In his emailed reply the same day, Myerberg raises concern that delaying investigations into Best would have the knock-on effect of delaying investigations into, and therefore any appropriate discipline for, officers also involved in the incidents in which Best is also cited. However, he says, while he does not "personally … think this is the best course of action," he says the decision is "ultimately up to the Mayor's Office."

"My biggest concern is, while the Chief is not subject to 180-day deadlines, she could potentially provide information during the course of her investigation that implicates other officers," Myerberg writes.

"Those officers, unlike the Chief, would be subject to a 180-day deadline and holding the cases in abeyance for months would prevent discipline being imposed on those officers, if appropriate. It may also reduce public confidence and trust in the investigations if all of OPA's investigations are complete, even those that touch on issues that will be discussed as part of the sentinel event review, but the cases involving the Chief are indefinitely put on hold," Myerberg continues. "If you do go this route, our preference would be to refer the cases out now and allow the investigating body to make its decision, independent of OPA, concerning how it wants to proceed."

As mentioned earlier in this article, according to the OPA's Complaint Tracker, two of the investigations cited in the documents the Emerald obtained (2020OPA-0345 and 2020OPA-0355) remain open two-and-a-half years later, with no projected completion dates, though OPA says it is currently reviewing investigative reports. Again, the OPA declined to release the name of the investigating law firm while it reviews the draft reports.

When entered into the Complaint Tracker, the only information that appears for 2020OPA-0345 is a message dated Aug. 6, 2020, which reads, "The complaint has been classified and either involves an investigation, action by the employee's supervisor, or a combination of the two. The Complaint Tracker will be updated as the case develops."

Similarly, the Complaint Tracker returns the following message for 2020OPA-0355: "The OPA Director has classified the complaint for investigation. The investigation may include one or more of the following steps, depending on the nature of the complaint: conduct in-depth interviews with the Complainant and Involved officer(s), identify and interview independent witnesses, collect and review evidence (e.g. Body Worn Video, In-Car Video, 3rd party video), and obtain and review copies of police department reports related to the incident. Once the investigation is complete, the investigative file is given to the Director for their review and issuance of the case findings."

This message is dated Oct. 17, 2021.

The Emerald also reached out to the Mayor's Office to ask the name of the outside law firm investigating Best, as well as to the OIG to ask how long it expects the SER to take. Neither office responded.

The Emerald has also filed public disclosure requests with the Mayor's Office and the OPA for any records related to the investigation into allegations regarding Best.

Featured Image: Photos by Susan Fried; photo collage by the Emerald team.