Updated: Court-Appointed Investigator Slams Oakland’s “Broken” Process for Dealing with Bad Cops

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BERT JOHNSON
  • Bert Johnson
A federal court-appointed investigator released a scathing report today that called the City of Oakland’s process for disciplining police officers accused of wrongdoing “a broken and inadequate system that has evaded the public’s scrutiny for too long.”

Edward Swanson, a private attorney appointed by Judge Thelton Henderson to conduct an investigation of the city’s disciplinary process for officers accused of misconduct, reviewed thousands of pages of emails, case files, and transcripts, related to 150 disciplinary hearings and 26 arbitrations involving Oakland police officers.

“There has not been a culture of accountability regarding police discipline in Oakland,” concluded Swanson. “The Oakland City administration – the Mayor, the City Administrator, and the City Council – has not held anyone to account for these failures. The City administration has done nothing to demand or enforce an effective discipline system.”

Swanson’s report references multiple problems with Oakland’s police officer disciplinary system covered by Express contributor Ali Winston.

See also: Why Oakland Can’t Fire Bad Cops
See also: Oakland Police Department Could Take a Hit


Court-appointed investigator and attorney Edward Swanson. - COURTESY OF SWANSON & MCNAMERA LLP
  • Courtesy of Swanson & McNamera LLP
  • Court-appointed investigator and attorney Edward Swanson.
Swanson's investigation singled out the Oakland City Attorney (OCA) for extra criticism, stating that the City Attorney has “demonstrated neglect and indifference in its handling of OPD disciplinary cases and arbitrations.”

The report states:

“[The] OCA has generally done a poor job of representing the City’s interest. For years, the OCA handled disciplinary arbitrations haphazardly, often waiting until the last minute to prepare for hearings or to assign cases to outside counsel, and showing little regard for the importance of police arbitration to the integrity of the entire police discipline process. While there have been notable improvements in the OCA’s handling of arbitrations in recent months, there is little evidence the OCA was taking action to address its poor record in arbitrations before the Court ordered this investigation.”

Swanson also leveled serious criticism at the Oakland Police Department’s commanders. For example, the report notes that lower-level officers are often subjected to harsh discipline, even when their actions were approved by, or ordered by their commanding officers.

“In several cases, arbitrators have concluded that the Department focused its discipline on lower-level officers to the exclusion of their peers and superiors. In these cases, the arbitrators found the Department appeared more intent on demonstrating that it took some action in response to misconduct than on seeking to identify how widespread the misconduct actually was or how high up in the Department it reached.”
“The principal finding of our investigation is that the City has not shown a sense of urgency or concern about its handling of police discipline cases,” concluded Swanson.

Swanson’s report includes nineteen recommendations for the city to improve investigations of officer misconduct, the discipline process, preparation for arbitration when officers contest disciplinary action, and recommendations to improve the arbitration process so that the city can improve its performance record.

Oakland’s record in arbitrations is dismal, with arbitrators substantively reversing discipline against officers in a majority of cases. Swanson noted that in the 26 arbitrations covering the past five years he investigated, the city prevailed in only seven cases. According to Swanson’s review of the city’s record in arbitration:

“Of 19 cases where discipline wasn’t upheld, arbitrators threw out the disciplines entirely in 11 cases. In four of the remaining eight cases, the arbitrators reduced the discipline to a counseling memorandum or written reprimand. Thus, 15 of the 26 cases that went to arbitration in the past five years saw the discipline of suspension, demotion, or termination reduced to written reprimands or no discipline at all.”
Civil rights attorney Jim Chanin. - BERT JOHNSON
  • Bert Johnson
  • Civil rights attorney Jim Chanin.
“The bigger picture here is exactly the overwhelming nature of the indictment at hand,” said Jim Chanin, one of the attorneys representing plaintiffs in the Allen v. Oakland case that brought about federal oversight of OPD.

“The problem is that the department has come a long way, but even if they’ve come a long way on discipline, there’s still no real progress if in fact the discipline is not upheld under arbitration,” said Chanin. “Basically what’s happening is that when you do something really bad in Oakland, you’re more likely to get a paid a vacation than actual discipline.”

Chanin said the problem is ultimately a systemic one, with the entire city government at fault. “I do not blame the police union for this. I believe that everyone has a right to defense. That’s how our country works. The issue is not how good a job the union did in defending its members. The issue is, why hasn’t the city done its job?”

Update: 5:40 pm

Oakland City Attorney Barbara Parker issued the following comment regarding Swanson's report.

We are wholeheartedly committed to continuing to work with the Court to achieve our mutual goal of Constitutional policing, and that includes a disciplinary process that is fair, effective and holds officers accountable for violations.

We recognize police discipline has been a difficult issue for the City over the years. We agree with many of the investigator’s recommendations, a number of which we implemented or addressed prior to the Court’s investigation, and appreciate the investigator’s acknowledgment of some of the work that we have done to address issues in the police discipline process.

Before the Court ordered its investigation, I conducted my own internal review of my Office’s handling of police arbitration cases when issues came to my attention including the timing of assignments of attorneys to police arbitrations.

As City Attorney I am responsible for the performance of the OCA, good or bad, and as we reported to the Court, I have taken steps to address the concerns that we identified regarding the handling of certain police arbitrations. These include reinstituting the Labor & Employment Unit, which has direct oversight of police arbitration cases; establishing a policy requiring retention of outside counsel well in advance of hearing dates; assigning additional in-house personnel budgeted by the Council this year to handle arbitration cases; formalizing an assessment process for each arbitration case after decisions are issued; and using additional personnel to closely track and coordinate police arbitration cases with the urgency they deserve
Update: 5:54

Oakland Police Chief Sean Whent issued the following comment regarding Swanson's report.

In response to the Report of the Court‐Appointed Investigator in Delphine Allen v. City of Oakland, which was released Thursday, April 16, 2015: we have reviewed the report and appreciate the seriousness of the shortcomings in the police disciplinary process that it has identified. We take police accountability very seriously. We agree with many of the recommendations for change made in the report and have implemented or are implementing several at this time. Some of the recommendations will require the approval of the Compliance Director before we can move forward. Our working relationship with the City Attorney’s Office has improved significantly in recent months and we believe the closer partnership will result in better arbitration results.
See related PDF 1054-main.pdf

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