Tuesday, April 21, 2020

More on union chief thwarting investigation into Austin PD racism complaints

Grits' post on the recently released report analyzing racism allegations at Austin PD deserves a followup. I won't restate all that was written there, but go read it if you haven't.

The Austin Police Association issued a press release yesterday deflecting blame from their president, Ken Casaday, whom the report revealed had informed Assistant Chief Justin Newsom of a confidential complaint against him, allowing him to retire before an investigation could be launched. According to the release, "The conversation regarding whether or not APA President Casaday can or should be punished for having a conversation with a dues paying member is laughable," and they "struggle to find a relevant general order that prohibits conversations between an association member and the association president."

Since they're struggling, let's help them out.

First, to review the issue, here's how Casaday's actions were described in the Tatum report:
In discussions with Detective Casaday, he commented on the fact that everyone in the Department keeps talking about “who snitched” and told AC Newsom about the complaint against him (Complaint 1), alleging racist behavior using text messages, enabling him to retire with a significant amount of accumulated leave pay. Detective Casaday acknowledged he became aware of Complaint 1 against AC Newsom and admitted he told AC Newsom about the anonymous complaint. Detective Casaday did not state how or when he became aware of Complaint 1 or exactly when he discussed Complaint 1 with AC Newsom. However, the consequence of the notification allowed AC Newsom to make the decision to leave the Department before an investigation could be initiated, making AC Newsom eligible to receive his full leave pay upon retirement.
According to the Tatum report, many current and former officers viewed this as improper:
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.
Grits suggested that Casaday violated departmental rules because of Art. 16, Sec. 8 of the police contract, which 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." I interpret that to include information about complaints, not just investigations.

As for the general orders, Sec. 900.3.1c may be the most on point: "Employees will not attempt to conceal, divert, or mitigate their true culpability in a situation, nor will they engage in efforts to thwart, influence, or interfere with an internal or criminal investigation." IMO, Casaday definitely thwarted and interfered with an internal investigation. By informing Newsom about the confidential complaint before the department could act, Casaday directly prevented an investigation from occurring.

To be clear, if Newsom had already been told about the complaint, he was allowed to consult with the union under Art. 17, Sec. 6 of the contract. But Casaday finding out through gossip channels and sharing information about a complaint with its target, by my reading, violates Art. 16, Sec. 8 of the contract and Sec. 900.3.1c of the general orders. I'm not an attorney (and neither is Casaday), but the plain language of those provisions seems clear.

More generally, Casaday had a duty not to tell Newsom under the Law Enforcement Code of Ethics, General Orders, p. 2, in which officers must swear "Whatever I see or hear of a confidential nature or that is confided to me in my official capacity, will be kept ever secret unless revelation is necessary in the performance of my duty." The code also states that an officer "shall guard against the use of his office or person, whether knowingly or unknowingly, in any improper or illegal action."

To the extent Casaday's actions were "a betrayal and an abuse of the system," as it was characterized by officers per the Tatum report, arguably both those provisions apply. With hindsight, it's hard not to describe what happened as "improper," since it thwarted the formal departmental investigation process.

Then, under Sec. 900.3.2a of the general orders (Acts bringing discredit on the department), we find a rule stating, "Employees will not commit any act which tends to destroy public confidence in, and respect for, the department or which is prejudicial to the good order, efficiency, or discipline of the department." Helping Newsom avoid a formal investigation by revealing confidential complaint information surely falls into that category.

Finally, the press release insisted, "if the department wished to investigate APA President Casaday, we are still within the 180-day period to suspend him for his conversation with then Asst Chief Newsom." Grits had written that we were past the 180-day point, but if not, perhaps this should be (quickly) considered?

APA is right that Chief Brian Manley is uniquely culpable for Newsom not being investigated and punished. Honestly, I wouldn't be surprised or disappointed if Manley lost his job over it. But that doesn't change the fact that it was improper for Casaday to do what he did and his actions made the situation worse.

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