Judge approves settlement agreement, new compliance director in OPD takeover dispute

OPD

OPD officers arrest a protester during the Occupy Oakland encampment eviction on October 25, 2011. OPD's actions during this and other Occupy-related protests have been criticized by the independent monitor. Photo by Brittany Schell.

Nine years after the Oakland Police Department was ordered to comply with a series of court orders or be put into receivership, a federal judge approved a settlement agreement Wednesday between city officials and civil rights attorneys that avoids a takeover of the department by a federal monitor. Instead, the agreement will establish a court-appointed “compliance director” who will have the power to enforce remaining reforms and the authority to remove the police chief.

Wednesday’s decision supplants a hearing scheduled to take place Thursday, which would have allowed U.S. District Judge Thelton Henderson to hear arguments for and against receivership.

The idea of a compliance director came from a settlement agreement released last week, which was discussed and agreed upon by city officials, OPD brass, the Oakland Police Officers’ Association (OPOA) and civil rights attorneys John Burris and Jim Chanin. It includes the city and department’s consent that the compliance director has the authority to remove the police chief or demote deputy and assistant chiefs.

“It’s an agreement that we, of course, were in favor of because the former agreement had proved so spectacularly unsuccessful and the OPD would not listen to us or the monitor,” Chanin said in a phone interview Wednesday afternoon. “It became clear after so many years that they were not going to listen … and that they needed to be ordered to comply rather than asked to comply.”

According to Burris, who was one of the plaintiffs’ lawyers in the 2000 Riders case and has been involved in receivership negotiations, the compliance director will function as a federal receiver in every way but the name. He said in a phone interview last week that the city balked at the title “federal receiver” because of the stigma that came with the name.

In his court order, Henderson wrote, “The Court is hopeful that the appointment of an independent Compliance Director with significant control over the OPD will succeed – where City and OPD leaders have failed in helping OPD finally achieve compliance with the NSA and, in the process, become more reflective of contemporary standards for professional policing.”

City officials also lauded the settlement agreement as a better alternative to federal receivership. Mayor Jean Quan, City Administrator Deanna Santana and OPD Chief Howard Jordan released a joint statement Wednesday evening, saying, “Judge Henderson has granted us the support for which we asked, and in turn we reiterate and renew our commitment to reform, and to sustaining and improving strong relationships between the Oakland Police Department and the communities it proudly serves. With this signed order we look forward to continued and enhanced collaboration with the court in accelerating our compliance with the tasks that remain. It is hugely important, and reflects the spirit of the reforms themselves, that we are moving forward together.”

Quan added, “As we look toward the new year, we are encouraged and reenergized in our efforts to improve public safety while building greater trust between the community and the police department.”

Councilmember At-Large Rebecca Kaplan also expressed her approval of the settlement agreement and Henderson’s decision in a statement released Wednesday evening. “I’m very pleased that the plaintiffs, city leaders and judge have reached a healthy agreement to avoid a federal receivership of the police department,” she said in the press release. “This is a positive step for our city.  It marks a new kind of progress and the healthy, collaborative relationships that I believe will be a key theme of the new year to come.”

Henderson’s decision closes a 12-year-long legal battle stemming from the 2000 lawsuit that accused four OPD officers, who called themselves the “Riders,” of planting evidence on suspects, beating suspects and making false reports. The lawsuit included more than a hundred plaintiffs and the city eventually settled, paying plaintiffs $10.9 million in damages and lawyers’ fees. It also included a promise of reform from the OPD, an agreement known as the Negotiated Settlement Agreement, or NSA. Out of 51 original reforms, the department now has 10 left to make. Their progress is being tracked by an independent monitoring team that is headed by Robert Warshaw and answers to Henderson.

Similarly, the compliance director will answer only to the court. The parties will either jointly recommend people to fill the position, or if they cannot come to an agreement, they can each submit their own suggestions by December 21. The ultimate decision lies with Henderson, who can also choose someone outside of the submitted recommendations, according to court documents. The compliance director will be in Oakland for at least one year, until all of the reforms mandated by the NSA are made.

The city has agreed to foot the bill for the compliance director’s salary. Henderson’s court order specifies that the director will receive benefits equal to those of the city administrator or chief of police—positions to which the role of compliance director is comparable. The court will set a salary when someone is appointed.

According to court documents, the duties and powers of the compliance director are extensive. Within 30 days of appointment, the director will file a remedial action plan addressing the deficiencies within the department that led to noncompliance and an explanation of how the director will achieve compliance by December 2013 or sooner. The plan will be developed with consultation from city officials, Burris and Chanin, Jordan and the police union.

The plan will also include a proposed budget for OPD task compliance expenditures that must be mutually agreed upon by city and department officials. Henderson also mandated that the plan address specific NSA reforms, like improving the computerized personal assessment program that logs information about each OPD officer, such as amount of sick leave taken and whether he or she has been in an officer-involved shooting. The system is the department’s attempt to identify at-risk officers and get them help before a problem arises. The court order also mandates that the plan include strategies to ensure that citizen allegations against the OPD are fairly investigated and that police misconduct complaints, claims and lawsuits are reduced.

Within 60 days of the compliance director’s appointment, he or she will also be required to file a list of benchmarks separate from the NSA for the OPD to address, including resolving and reducing incidents of racial profiling and high-speed pursuits.

Burris said he was especially satisfied with this aspect of the settlement agreement. “It allows the compliance director to do some real time assessment at reducing some of the problematic issues with the police department in the community,” he said in a phone interview Wednesday afternoon.

Meanwhile, monitor Warshaw’s work will be continued and his quarterly reports will still be released. While the monitor and the compliance director are expected to work collaboratively, Wednesday’s court documents emphasize that the two positions do not answer to each other, but to the court. The compliance director will also submit monthly reports about the department’s progress.

But this may not be the end of this long legal process for the OPD. If the compliance director and the remedial action plan are unsuccessful, the court could impose monetary sanctions, an expansion of the compliance director’s powers or even a full federal receivership.

A meeting has been scheduled for June 6, 2013 to discuss progress toward compliance.

2 Comments

  1. Ben

    I’ll repeat what I said previously:

    I think this is an unfortunate turn of events. It is not “essentially the same thing as a federal receiver.”

    On the plus side, Quan gets to call the person “compliance director” instead of “receiver”.

    On the downside:

    * We’re on the hook for paying this person’s salary, unlike if it was a fed takeover.
    * The City and Burris get to meddle in the choice of receiver as well as this person’s ongoing efforts. Look how successful they’ve been so far.
    * Police unions apparently won the right to avoid loss of binding arbitration. This is their attempt to keep salaries high and avoid bad apples getting tossed out.

    The latter is the biggest loss in what could have been a chance to turn our police dept around. I’m very sad.

    • Ben, we can’t rely on any Federal Judge or private attorneys to do what the residents have to do: collect enough signatures to repeal binding arbitration and then work to repeal it at the polls.

      Len Raphael

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