Saturday, April 18, 2020

Austin PD racism, local media's lapdog nature, all exposed by one report

Grits has said many times that the local press in Austin reside, in large part, in the breast pocket of their law enforcement sources and generally do more to cover up problems than expose them. That was certainly true of initial coverage of a just-published report commissioned by the City Council regarding allegations of racism among Austin PD command staff. Headlines included:
These summations wholly misstate what the investigation actually found. They did find evidence of racist remarks, did corroborate claims of bigotry, and definitely identified policy violations, although departmental policies forbid punishing them if they happened more than 180 days ago. Frankly, media coverage of this report amounted to an embarrassing coverup. Or maybe all the reporters are just incredibly lazy. Or, perhaps most likely, both things may be true.

The report emphasized repeatedly that the investigation was launched after a great deal of publicity around the incidents so that everyone had plenty of time to scrub all their phones and communications. "I can't recall" appears to have been the most common response to all specific questions. Attorney Lisa Tatum herself described her task as akin to "being named an honorary detective who was assigned to investigate an outdoor crime scene after it had already rained — twice." So take all the "no racism found" memes in the local media with a massive grain of salt.

The nearly 50-page document is frankly repetitive, poorly written, leaves out many relevant details (often from its frustrating overuse of the passive voice), and was very hard to follow. Honestly, I've read more artfully written probable-cause affidavits!  So Grits went through to pull quotes regarding some of the highlights. Otherwise, I fear even stakeholders won't read all the details because the document is so hard to get through. Separating the wheat from the chaff, though, there's definitely some important detail in there which was mostly ignored by the press coverage so far.

Racism well-known, tolerated at highest levels of the department
Let's start with the racism allegations.  The Tatum Law Firm was hired to investigate several specific allegations, including an assistant chief allegedly using the N-word in text messages. While they could not confirm that specific usage, they discovered plenty of evidence of racism, and in particular many people corroborated such attitudes by Assistant Chief Justin Newsom.

They received reports from "several" people alleging "that AC Newsom has used inappropriate language or made blatantly biased statements." Among APD employees interviewed, "By several accounts, AC Newsom's use of racist language was well known throughout the Department as was the use of such language by other officers who were known to be close friends with AC Newsom and used such language openly and often."

Further, "there are those who believe the alleged behavior to be true based on past accounts and the close circle of colleagues known to associate with AC Newsom who have reputations for making such comments."

"Reports came to us, from different ranks, races and genders, advising of the fact that the racist and sexist name calling and use of derogatory terms associated with race and sex persists. Anecdotal history indicated that even members of the executive staff over the years had been known to use racist and sexist language, particularly when around the lower ranks or other subordinates."

"We listened to many anecdotes illustrating inappropriate comments over the years through which APD personnel expressed concern about racist behavior, but also sexist behavior, and dissimilar treatment in the handling of officer discipline and those who may be served by APD chaplain services with the denial of marital services to same sex couples. There are some real cultural issues that are in need of attention."

The investigators were left with an impression that APD brass simply didn't want to know the truth about racism in the department. "In addressing issues of race," they opined toward the end, "it is difficult to see what cannot be seen and is often more difficult to get recognition from those who do not want to see." Isn't it, though?

Manley, the un-investigator
Another recurring theme in the report was Chief Brian Manley seeking to avoid investigating serious allegations of misconduct. In September 2019, weeks before any of this became public:
AC Newsom told Chief Manley that he was concerned about his text history becoming public at the arbitration, so much so, AC Newsom stated to Chief Manley if the texts became public he would leave the Department. There was not discussion regarding the nature of the text messages. Chief Manley did not ask about the text messages. Chief Manley advised AC Newsom to speak to the Law Department if he had concerns about his testimony.
The investigators believed Manley should have intervened at that point, but he did not. "AC Newsom’s self-report, the email complaint and Complaint 1 suggest that AC Newsom was in violation of policy with sufficient information to review or investigate AC Newsom’s behavior. Chief Manley did not send these allegations for review or investigation." Later, they added:
Tatum Law was able to establish that Chief Manley had reason to inquire as to AC Newsom’s conduct based on a self-report of text messages that were troublesome, about which AC Newsom indicated he would leave the Department if they became public, and two separate allegations of racist text messages and comments occurring about one month apart. The October 7, 2019, email received by Chief Manley alleging similar facts to those later alleged in the October 30, 2019 complaint about AC Newsom’s use of the derogatory term “nigger” in text messages to refer to African Americans provided sufficient information to suggest that AC Newsom was in violation of policy for review or investigation. Chief Manley did not send these allegations for review or investigation.
In the end, if the city council had not commissioned Tatum's review, the issue would never have been investigated. "At the conclusion of the collaboration with Internal Affairs," according to the report, "we learned there were no reports leading to any investigation or review of AC Newsom’s alleged use of racist language by Chief Manley, Internal Affairs or OPO." This failure upset quite a few people among APD brass:
Frustration was expressed by some 20% of the executive floor with the fact that apparently no questions were asked of AC Newsom about the text messages. Who received the text messages and why had the text messages caused such concern? What did the text messages say? When were the text messages sent? If questions were asked, the answers apparently were not shared or acted upon back when AC Newsom was talking about them.
It's worth mentioning, though, that this attitude of ignoring serious alleged misconduct reportedly extends beyond this one episode. Former Commander Jason Dusterhoft, who admittedly comes to this exercise with sour grapes after he was fired for an off-duty episode of "rough sex," provided an example about a sergeant, who was later promoted to Commander, who allegedly made false statements to Internal Affairs about falsified time sheets. Dusterhoft believed this episode justified felony evidence tampering charges, but "Commander Dusterhoft reports that Chief Manley agreed with his determination but later asked him to sign off on the case with no finding of wrongdoing."

The department apparently has had a significant problem with officers "double dipping" by working overtime jobs when they're supposed to be putting in hours for APD. The memo says policy changes were made in the latest meet-and-confer agreement to address this, but no details were supplied and it's not at all clear from this document the issue has been rectified.

Dusterhoft also alleged Manley ordered him to stop looking into problems at Austin's DNA lab, which months later had to be completely shut down because of incompetence and bad forensic practices.
Dusterhoft alleged he informed Chief Manley on a number of occasions that the Forensic Division/DNA Lab was in need of reform. Discussions with personnel and our investigation revealed that there were significant issues in the recent past involving the Forensic Division/DNA Lab, much of which were covered by the media. According to Chief Manley, this matter was addressed. He described some of the concerns as a clash of personalities between the Director of the Forensic Division and Commander Dusterhoft, who was supervising the division. Chief Manley advised that leadership did report that there were issues about people in the division but that there were no issues with evidence. Media coverage and updates, as recent as February of 2019, provided to City Council from the City Manager’s Office suggest there was subsequently much more involved. The information gathered was sufficient to address the purposes of this report.  
Commander Dusterhoft’s written responses report that this incident occurred in the last few months of Director’s tenure with the Austin Police Department. By his account, he presented a number of concerns to Chief Manley several months prior to Director’s departure and was advised by Chief Manley “to leave it alone.” Dusterhoft’s concerns include mismanagement and the Director’s direct attempts to undermine his efforts to reform the Forensic Division.
As it turns out, the DNA lab had serious problems and telling the commander in charge of the division to back off of oversight was a severe disservice to the department and the public.

Missing reprimand letters, Occupy Austin docs
Another recurring theme was documents missing - particularly related to officer discipline - that by any reasonable standard should have been maintained, particularly "letters of reprimand" issued for misconduct. This turned out to be a significant hindrance to their investigation.
There were several occasions when Tatum Law learned about the existence of documents and those documents could not be located. As part of the investigation, a series of document requests were made working with the City of Austin and the Austin Police Department. We were told by complainants and witnesses that certain documents were seen, delivered and, in some instances signed. It was their understanding that those documents were placed in case files or personnel records where such records are to be maintained in compliance with policy and statute. Some of those documents could not be located and, in our opinion, should have been able to be retrieved for review. Other documents Tatum Law learned about are documents generated and maintained in the course of regular business operations. Some of those documents were also not able to be produced. On the occasions when such documents were not produced, no explanation was provided as to the absence of a record or document. [Emphasis added.] Tatum Law cannot say whether a document in question was lost, damaged, destroyed, destroyed pursuant to a record retention policy or otherwise.
Reprimand letters in particular seem to vanish into thin air with remarkable frequency. They appear to be kept on file for some people, but disappear whenever APD brass gets them.
We learned that some documents that should be maintained are not maintained. An example is the Letter of Reprimand of a Commander regarding Use of Force review, who should have been provided with a signed copy and the signed copy should have been in the personnel file. Since the reprimand was part of a larger policy and/or performance review, then there should be a copy in the review file or an IA file. Another example is AC Gay’s Letter of Reprimand. Neither the Law Department nor Internal Affairs were able to locate this document. Tatum Law learned several managers were issued Letters of Reprimand for the same incident and we were able to obtain a copy of the letter from someone else involved in the reprimand process.
In the case of Assistant Chief Gay, whose reprimand was issued over misbehavior by undercover operatives who infiltrated the activist group Occupy Austin, his case was the subject of a full-blown "tribunal." But somehow, the records fell off the back of a truck on their way to the file room and can no longer be found.

The report specifically recommended that the city implement full-blown audits of Internal Affairs documentation and strengthen policies on file maintenance and record retention. I hope the city council picks up on that and follows through, it's important.

Union boss circumvented disciplinary process by informing investigation target
Notoriously, Assistant Chief Newsom found out about the complaints against him prematurely and resigned before his alleged racist texts could be investigated. This created tremendous consternation within the department.
Interviews with other witnesses, particularly other active and separated sworn employees, consistently shared their concern over AC Newsom’s departure with full benefits and no review of the allegations raised against him. There seemed to be an understanding of policy; however, the feeling of betrayal and an abuse of the system were quite prevalent. 
For months, everyone watching this clusterf*#k has wondered, how did Newsom learn of the allegations before an investigation was implemented? Turns out it was union boss Ken Casaday who told Newsom what was coming in time for Newsom to resign, clear out his things, and get out of Dodge before any formal investigation started. The Austin Police Association president admitted this directly to investigators.

As a result, Newsom got a nice payday, and Ken Casaday got to call for Manley's head in the press for it as though he hadn't set the whole situation up. This would be a significant policy violation that could be punished as misconduct, except for the 180 day rule (see below). By the time Casaday (almost gleefully, from the report) fessed up, he could no longer be punished.

(CLARIFICATION (4/21): Casaday claims to have snuck through a loophole on this question, saying his actions wouldn't formally constitute a violation unless a formal investigation had launched. However, Art. 16, Sec. 8 of the police contract, says "Information concerning the administrative review of complaints against officers, including but not limited to Internal Affairs Division files and all contents thereof, are intended solely for the department's use pursuant to Sec. 143.089(g) of the Texas Local Government Code."  That's the provision Grits believes he violated. Regardless, by leaking this information to Newsom prematurely, Casaday prevented an investigation from occurring. So if it was not a policy violation, it remains a "betrayal and an abuse of the system.")

180-day rule prevents adequate oversight
Casaday did what he did understanding full well how this department avoids punishing certain officers. A provision in the meet-and-confer contract forbids APD from punishing officers beyond an oral reprimand for behavior which occurred more than 180 days prior, even if it takes longer than that to investigate. This lets many offending cops off the hook and is occasionally manipulated strategically by brass to avoid punishing favored officers.
Administrative Policies and procedures allow for a degree of discretion in investigations which, when used appropriately, enables leadership to address employment concerns and policy violations as part of a scale of disciplinary options based upon the facts at hand. When used inappropriately, a violation of policy may be overlooked, left unattended or disregarded until 180 days have passed barring the more strict consequences from consideration or recommendation when addressing behavior in a complaint. An argument can be made that inappropriate use of discretion and the time limitation can lead to a complete avoidance of a review or an investigation and the potential consequences for misconduct. Misuse of the same policies can also lead to a higher standard of scrutiny being used and adverse employment action for some officers and not others.
Among officers interviewed, "There was a high level of frustration expressed because complaints of discrimination are often known to fall on deaf ears, sit in files without action in excess of 180 days, then are discounted or disregarded." 

Advocates have complained about this problem for at least two decades, so it's nice to see the problem confirmed by an independent reviewer.

Fears of retaliation, failures to investigate
Finally, I'd be remiss not to mention the sentiment repeated throughout the document that officers who want the department to improve fear speaking up because of "almost certain" retaliation.
[T]here have been reports of complaints, race-based or otherwise, made against officers to include executive staff that have been seemingly placed on hold or otherwise delayed and even swept under the rug and disregarded. It has been shared that on more than one occasion multiple complaints were made about a certain individual’s behavior. Some accounts led only to informal verbal counseling repeatedly. Other accounts advise that the complaint goes under review and then seems to disappear without redress. Still others are discounted and never acted upon. Officer testimony, from all races, ages and ranks, suggests the outcome depends upon both the subject and the audience. Some officers complain that the outcome may have been different if the information actually made it to the Chief of Police. Still other officers are doubtful anything will change.
Whether it is about a grievance or misconduct there is an overwhelming sentiment among officers, at or previously involved with the Austin Police Department, and regardless of rank, that an officer, or even civilian staff member, who wishes to right a wrong, complain about improper conduct, or participate in an investigation such as this one, must be prepared in the present climate and culture to face almost certain retaliation, and not necessarily from Chief Manley, directly or solely. The wariness has been frequently attributed to networks of officers within the Department and is dependent upon the circumstances and the network of officers involved. These accounts of retaliation span almost thirty years of officer careers up to and as recently as February 2020.
There's more, but your correspondent still isn't 100% back on my feet, so Grits will leave it there for now. However, with the local press in virtual unison doing their "Move along, nothing to see here" Officer Barbrady homage, I felt like somebody needed to mention what the report actually found, instead of focusing only on what it didn't. So now you know.

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