Voters Want Strong Police Oversight. Will the City Deliver It?
Oversight undermined
By Austin Sanders, Fri., May 26, 2023
Austin voters overwhelmingly supported the Austin Police Oversight Act in the May 6 election. It could, as one City Council member put it, create one of the strongest systems of civilian police oversight in the nation. So, when's that going to happen?
It's a little complicated. As we've described in prior coverage, there are three overlapping sets of legal authority authorizing civilian police oversight in Texas cities: state law, as dictated in Chapter 143 of the Texas Local Government Code; municipal authority, as established in a city's charter and accompanying ordinances; and, if applicable, the meet and confer agreement (police contract) negotiated between a city and its police union (here, the Austin Police Association). There's an important hierarchy at play, too: State law supersedes municipal law, but the meet and confer agreement trumps both. So when APOA opponents inaccurately say the APOA is "illegal," what they mean is that some parts of the ordinance cannot be enacted unless they are negotiated in a police contract – a fact that APOA authors always knew and have never contested.
Ok, with that bit of civics out of the way, we can dig into the politics at play in Austin, specifically. There are three forces that present obstacles to creating the kind of robust and transparent oversight system promised by the APOA; one is located on the third floor of Austin City Hall, one is located under the pink dome of the Texas Capitol, and another lies within the courthouse.
The legislative threat, though, is officially dead (although a special session could make it undead). A bill we've written about before – Senate Bill 2209 – failed to get a vote in the Texas House before the midnight, May 24, deadline for the lower chamber to approve Senate bills. If SB 2209 had become law, it would have killed any form of true civilian oversight of police departments throughout Texas, including the kind Austin voters endorsed May 6. It's no understatement to say SB 2209 was an existential threat to the very concept of civilian oversight in Texas. The bill's timely death means that its supporters – primarily the Austin Police Association – may turn to the courts for relief. They could file a lawsuit against the city seeking to block its implementation of the APOA, but APA has not said publicly if they will commit to that route, so for now legal action remains a specter of a threat. Whether or not the police union seeks legal relief largely depends on on how the city's unelected leadership moves to actually implement the APOA.
Politicking and Policing
With SB 2209 dead, attention now turns to interim City Manager Jesús Garza, whose office sits on the third floor of City Hall. Garza is the chief executive of Austin city government; he's the boss of both Austin's police chief and the director of the Office of Police Oversight. The buck stops with Garza when it comes to implementing laws and policies adopted either by City Council or by the people of Austin directly, like the APOA. The city's Law Department will advise him and his deputies on what provisions of the APOA can be implemented without violating state law, but until Garza gives the order to the OPO director to go forth and oversee, and the order to Austin Police Department Chief Joseph Chacon to cooperate with that oversight, none of it is going to happen.
Here's where politics come into play. With implementation of the APOA's promised oversight authority so dependent on one person – Garza – you can be sure that the constituencies who have interest in how the ordinance is implemented will be lobbying the interim city manager to issue orders that benefit their side.
We know how the APA feels about the ordinance: They hate it. If the Lege doesn't preempt, they are certain to sue the city to stop implementation; so, APA will pressure Garza to back off on the APOA provisions that give more power to civilian oversight staff. Justice advocates will of course pressure Garza to implement the ordinance they wrote, campaigned for, and won an election over with as much fidelity as possible.
Chacon will also be consulted on APOA implementation. The chief is in a tough spot; it almost doesn't matter how much he really believes in the value of a robust system of civilian oversight, because his main constituency – the rank-and-file members of the Austin Police Department – don't like it. They see it as an abridgment of their rights. But Garza is his boss, and Garza's bosses are Mayor Kirk Watson and the 10 City Council members, who, ostensibly, were elected to enact the will of Austin voters, which was clearly demonstrated May 6. Chacon, then, will have to walk the fine line that meets Council expectations while agitating APD officers as little as possible.
What about the OPO director? The fundamentals of their job revolve around how the ordinance is implemented. But leadership in the office has been a revolving door as of late. Deven Desai, who was the city's Labor Relations Officer before taking a human resources job at the University of California, Santa Cruz, last summer, was brought back to Austin to serve as interim OPO director. But he left the office May 5 due to "unforeseen family issues," according to a memo from Assistant City Manager Bruce Mills, Garza's man overseeing the city's three public safety agencies. (Mills adds another wrinkle to the politics of police oversight; he's former APD, from the 1990s, and has been described to us as an old-school cop. What does he think of civilian oversight, and what advice is he lending Garza?)
Before Desai, OPO was led by another temporary director – Sylvia Hardman – who took over from Farah Muscadin, appointed as the first leader of the newly constituted OPO when the office was formed in 2018. Muscadin was a force to be reckoned with, someone who fiercely advocated behind the scenes for her office to be empowered to carry out civilian oversight effectively. She became something of a bogeyman for APA leadership, and her leadership at OPO played a big role in why the union worked so hard to undermine civilian oversight through the contract grievance process (a campaign that, in late 2021, effectively neutered OPO).
But Hardman was no Muscadin and Desai was not around long enough to take up the mantle. Since Muscadin left OPO in September 2022, also due to family commitments, the office has been in various states of rudderlessness. Gail McCant has been appointed the new interim OPO director; she will start the job Monday, June 5. McCant is returning to City Hall following a stint working as the employee relations partner for Travis County, according to a May 23 Garza memo. The memo says McCant has 25 years of experience "enforcing civil rights, human rights, and employee rights," with six of those years spent in the city's Civil Rights Office where she helped administer the Fair Chance Hiring Ordinance adopted by Council in 2016. It's too early to tell if McCant will be a forceful, passionate leader at OPO who is willing to play the political game and fight for the strong system of oversight Austin voters emphatically supported.
Council Members have thus far shown little fortitude in standing up to the interim city manager, who has moved swiftly to make aggressive and sweeping changes to the city's bureaucracy. A city spokesperson said on May 18 that Garza does not intend to clarify how APOA changes OPO operations; in a follow up statement, May 24, the spokesperson said the APOA is "in effect" and that the city is "working to implement those portions that can be done without a contract." They are still watching the Lege for other bills that could affect OPO.
Mayor Kirk Watson, probably, is the one person who could exert much influence over Garza and how he implements the APOA. Watson would not have been elected without the support of Austin voters who likely voted against Prop A, but the mayor is also described as an adept reader of political trends. Before Prop A, the Austin electorate was already moving to embrace stronger police oversight, but a 4:1 election victory in support of that movement should send a message to Watson that his electoral future is, to some extent, tied to the interests of the voters who delivered that victory.
“Independent and Unfettered”
OK, that's enough politics. Let's turn to the legal documents actually governing police oversight in Austin. What oversight authority does OPO currently have, within the bounds of state law and without an active meet and confer agreement? There are a few documents at play: Chapter 143 itself, an ordinance adopted by Council on Feb. 23; the APOA; and two memos from Garza issued before the May 6 election that outline his view on OPO authority.
Broadly speaking, Ch. 143 provides the baseline for how cities can empower civilian staff to investigate sworn police officers (and firefighters). It defines what a complainant is, what an investigator is, and how those investigators can go about conducting investigations into complaints of misconduct stemming from complainants.
The law is crystal clear on some aspects of civilian oversight, including two provisions within the APOA. OPO cannot publish most internal records related to disciplinary investigations unless that authority was granted via negotiations in a meet and confer agreement (as it was in the 2018 police contract). Likewise the "180 day rule," which, like a statute of limitations, prohibits police chiefs from disciplining officers accused of misconduct – even if the accusations are proven true – if 180 days or more have elapsed since the department became aware of the incident. The APOA increases that time frame to 365 days, but unless that provision is negotiated, it won't become APD policy.
But as is the case with every law, what Ch. 143 doesn't say is almost as important as what it does say. If a certain aspect of oversight is not explicitly prohibited in the statute, then cities can reasonably expect to enact it (or, at least, argue in court that they are allowed to). Enter a new ordinance (which Council adopted unanimously) authored by Council Member Ryan Alter shortly after APA walked away from negotiations over a new four-year contract with the city.
At the time, most of the focus on Alter's ordinance was on the pay package it offered to Austin police officers, which ultimately resulted in a 4% pay increase along with incentive bonuses for new cadets and retention packages for officers considering leaving the department. But the ordinance also granted key powers to OPO that, thus far, have not been fully harnessed. The key language is tucked away in Part 5 of the seven-part ordinance.
"The Director of OPO and such other OPO personnel as identified by the Director are designated as investigators under Section 143.312 of the Texas Local Government Code," the ordinance reads (emphasis is ours). The ordinance also provides OPO with "independent and unfettered access" to APD records "necessary to carry out the functions and responsibilities" of civilian oversight. Now, from Ch. 143 itself: "'Investigator' means an agent or employee of the municipality who is assigned to conduct an investigation," and "investigation" means one conducted by the municipality of alleged misconduct by a police officer.
There you have it. Thanks to Alter's ordinance (and a careful read of state law – unsurprising from a former legislative staffer) OPO staff are empowered to carry out investigations into alleged officer misconduct. But, for now, they're not doing that. Why?
We must circle back to Garza, because OPO staff are directly subordinate to him. Two memos Garza issued in March and April outlining OPO authority show he has a much more conservative view of OPO's powers than Council and Austin voters. The first memo, a brisk two-pager issued March 30, was so badly received that less than three weeks later Garza issued another on April 18, clarifying his stance.
But even under that clarifying memo, Garza shows a more constrained view of allowable civilian oversight in Austin. "To clarify, the [first] memo was not intended to be an exclusive list of the OPO's responsibilities," he wrote as a way of introduction, "but instead addressed several specific areas where OPO operations have direct interface with APD operations. Similarly, this memorandum does not list all of OPO's duties now that the labor contract has expired, but focuses on some of the topics that are of interest to the Council and likely to be of interest to the public."
Key among those topics of interest to the public is OPO access to APD records. From one perspective, it's the whole ball game. If OPO cannot access APD's internal records on alleged misconduct, their civilian investigators cannot be expected to perform thorough, robust oversight of APD's internal investigations into misconduct. On the records question, Garza writes, "OPO staff may continue to make inquiries" (emphasis ours) to the Internal Affairs Division commander or the chief of police. Make inquiries? That sounds different from the "independent and unfettered access" guaranteed in Alter's ordinance and the APOA (even the 2018 ordinance establishing the OPO provides that the office should have "direct" access to these records).
A plain reading of that language is that, for certain misconduct records, OPO staff should have access whenever they want, not have to ask permission. But OPO does not currently have direct access to those records – though Garza could grant it, first by appointing an interim director at OPO, then empowering them to access those records, and then ordering Chacon to comply.
Bear in mind, "unfettered access" to records by OPO does not mean unlimited right to publish those records for public consumption. That's an entirely different area of authority, which Ch. 143 is clear on; OPO would not be able to publish most internal records (including those proving misconduct by an officer whom the chief declines to discipline). Creating rules to allow publication would have to be negotiated in a meet and confer agreement.
Who’s Asking?
Beyond records access, Garza's memo puts constraints on OPO's process for accepting anonymous complaints and how OPO staff can participate in investigative interviews conducted between officers accused of misconduct and APD's Internal Affairs Division detectives. Per Garza, only one IAD investigator and subject officer will be in the room for the interview, but OPO staff and a second IAD investigator will be given access to a live video feed of the interview. The officers union rep will not be given access to the room nor to the live feed.
Under Garza's interpretation, OPO staff can suggest questions for the IAD investigator to ask, but the IAD detective will decide what and when to ask. Disputes between the two will be mediated up the chain of command, perhaps even by the chief, if necessary.
A ProPublica investigation published May 11 shows why police having ultimate control of internal investigations can be problematic. ProPublica obtained the body-cam footage New York Police Department detectives reviewed as they investigated whether a fellow officer violated department policy when he fatally shot Kawaski Trawick. Video showed a veteran officer at the scene instructing the officer who ultimately shot Trawick not to shoot, even going so far as to physically lower the officer's firearm. NYPD investigators never asked either officer about the exchange. "That's huge, they intentionally did that," former NYPD Detective John Baeza told ProPublica's reporters. The "NYPD never even tried to do a real investigation," Trawick's mother, Ellen, said. If a civilian investigator was in the room alongside a police detective, maybe those questions would have been asked. Deaths like Trawick's are part of what effective civilian oversight is designed to properly investigate, so such deaths can ultimately be avoided.
The APOA would place OPO staff in the room, asking questions of APD officers directly (although officers could remain quiet; only the chief could compel them to answer). To ask informed questions, they need to have "unfettered" access to APD's internal investigative records. Being able to accept truly anonymous complaints from the people of Austin – i.e., not in the presence of a law enforcement official, which is the current process as set forth by Garza – is also important, because it would increase the breadth of potential misconduct OPO could investigate.
But Garza has, thus far, declined to extend these powers to OPO. Yet he has been urged to do so – by former OPO interim Director Sylvia Hardman, as a kind of outgoing message outlining what she thought the office should be able to do without a contract and without violating state law.
"The expiration of the contract will not significantly limit OPO's operations or functions as most of its responsibilities and functions are authorized in the city charter and applicable ordinances," Hardman wrote in her email to Garza. The email provides a detailed explanation for what authority OPO should have without a contract, citing relevant sections of Ch. 143 and city ordinance to defend her positions. In summary, Hardman offers three bullet points explaining what actions OPO intends to carry out:
"Participate in witness and subject officer interviews with Internal Affairs; ask direct questions to all witnesses, at OPO's discretion as an investigator; and designate staff to become notaries to allow staff to verify [anonymous] complaints in accordance with Ch. 143."
Garza, apparently, disagreed with all of these suggestions, because OPO is not engaging in any of these oversight activities. Until the needle moves, the office is reduced to little more than a receptacle for complaints against officers where rigorous follow-up – the heart of effective civilian oversight – is all but impossible.
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