The Negotiated Settlement Agreement, two years & millions of dollars later

Paula Hawthorn

Two years ago, in a document dated Jan. 26, 2012, I wrote this about the Negotiated Settlement Agreement:

I have reviewed the fourth, sixth, seventh and eighth (current) Quarterly Reports of the Independent Monitor. ... In the four reports that I reviewed, there were six tasks that OPD is always in “partial compliance”: tasks 5, 20, 24, 34, 41 and 45. They were in partial compliance, I maintain that they will remain in partial compliance in future reports, and thus OPD will end up in receivership.

In fact, we did wind up in “receivership light” with a Compliance Monitor (in addition to the Independent Monitor assigned to monitor the NSA) who is tasked with bringing OPD into compliance with the NSA. The Independent Monitor for the NSA is Robert S. Warshaw, Police Performance Solutions LLC. The Compliance Director is Thomas C. Frazier. Frazier has the right, as our Compliance Director, to direct that money be spent to bring OPD into compliance with the NSA. Frazier’s Remedial Action Plan Budget Addendum calls for $3,605,000 to be spent on the police department itself. In addition the City of Oakland pays the Compliance Director’s salary ($270,000) and pays the Independent Monitor, whose contract is for $1.78M for two years Frazier was hired March 11, 2013, so we have almost a year of his time; therefore the cost of the combined NSA & compliance director to this point is $1,160.000 for the last year, not counting the $3,605,000 that Fraizer has ordered be spent on OPD

And what do we have to show for this? How closer is OPD to being in compliance with the NSA after this amount of time & money? Surprise! No Closer!

Why are we no closer? Because, as I said in Jan. 2012, the evaluation process is fundamentally flawed. When they keep moving the goal posts, you cannot win the game. In the sections below I’ll discuss what the current tasks are where OPD is out of compliance in the last (16th) quarterly report of the Independent Monitor. But I think the issue is not his findings, as the fact that he has no incentive to ever allow OPD to be in full compliance. In fact, Warshaw’s lucrative contract goes away if OPD is ever declared to be in full compliance.

Why do we care? An argument can be made that all police departments should have an Independent Monitor, watching everything they do, making sure they are respecting the citizen’s rights, and that Oakland in particular has such a bad history that we may need to always have an outside, Independent Monitor. An argument also can be made that having a Compliance Director, not associated with either the Independent Monitor or with the City of Oakland bureaucracy, is ideal to make sure that OPD is well-run and well-resourced, and that keeping OPD out of compliance in perpetuity means we will always have these two levels of supervision, and what is wrong with that? There are two problems with keeping OPD out of compliance: the first is the perception that “you can’t trust the Oakland cops”. The headline every 3 months when the Independent Monitor’s report comes out is that OPD failed again, and the subtext is, well, they are not trustworthy. If you don’t trust the police, you don’t tell them when you have information about a crime, and you don’t trust them to solve crimes that occur. So you get our current culture of secrecy & of retributions. We must increase the trust in the police. The second problem is money, of course: over a million dollars a year. For year after year…

Now, for the current Monitors Report: According to his last, that is the 16th report OPD is not in full compliance in Tasks 20, 26, 30, 33, 34, 37, 40 and 41. As I discuss each Task, I’ll reference what the Compliance Director has said it will take to come into full compliance on that Task. This is not easy: the Compliance Director’s monthly reports all reference his initial report, so you have to have both in hand. The initial report is here: and the last one filed, for December 2013 is here:

Task 20. This is my summary from Jan, 2012: Task 20. Span of Control of Supervisors

The Consent Decree establishes that there should be a 1:8 span of control of supervisors: officers, and that the supervisor should be the officers’ regular supervisor (not back-filled, substituted for, etc) 85% of the time. The panel/monitor found that to be true only 83% of the time in this time period – the percentage varies across the 4 reports that I reviewed, but OPD is always out of compliance by some small amount. With the twin problems of budget cuts and Occupy Oakland, the amount of overtime, scrambling to back-fill when people go on sick leave or vacation or quit, etc will only increase. OPD is not going to be able to meet this, ever, just as they never have.

Yup, same thing this time. The Compliance Director says they are hiring & training & hope to be in compliance sometime….

Task 26. OPD was “in compliance” with this one 2 years ago, now is judged to be out of compliance. This Task has to do with how OPD’s Force Review Board (FRB) is run. The sub-task that OPD is out of compliance on merely requires that the FRB make a recommendation in a timely manner; the Monitor’s Report says that indeed the FRB did make the timely recommendations, but in 2 cases came to a different conclusion than IAD did, so something is amiss & they are judged to be out of compliance. The Compliance Director addresses this task along with the one below, the Executive Force Review Board.

Task 30. Executive Force Review Board. This is convened for cases of officer-involved shootings. This is exactly what is said in the Monitor’s Report (page 50):

We reviewed the reports that were prepared for the two incidents that were heard by the board during the current reporting period. The required attendees were present in both cases. After review and deliberations, the board determined that the subject officers’ actions in all four cases were in compliance with Departmental policy. The Chief endorsed the EFRB findings within 60 days of the board’s decision. The board identified the adequacy of equipment, tactics, an analysis of each application of force, investigative concerns, and training issues that required the appropriate corrective action. However, despite the Department’s technical adherence to these provisions, we have observed during our recent site visits and technical assistance visits that the board’s informality and lack of structure is not consistent with the conduct of a review process of this nature. We intend to continue discussions with the Department regarding the necessity to improve the conduct of these boards. OPD is currently revising DGO K-4.1, Force Review Boards, and has sought the input of the Monitor. The policy revisions are still pending at this time. Accordingly, OPD is not in compliance with this subtask.”

So: they don’t like the way the EFRB is conducted. The Compliance Monitor addresses this & the FRB issues by stating that he & the Independent Monitor & OPD are working on a new set of policies & procedures that will improve the structure of the EFRM & the FRB. Note, please that is another of those “how will we know when we are done?” issues.

Task 33, Reporting of Misconduct. This is the conclusion:

We removed OPD from Phase 2 compliance due to the failure of its officers to report misconduct during the Occupy Oakland events. OPD management is making progress in this area through training and efforts to secure use of PDRDs by its officers. The Department is in compliance with confidential reporting requirements and, accordingly, remains in partial Phase 2 compliance”

They removed OPD from compliance because in the Occupy Oakland incidents, some officers turned off their Personal Digital Recording Devices – the so-called vest cameras. It is hard to tell how the Independent Monitor will ever decide they are back in compliance; will it take another Occupy Oakland? The Compliance Director addresses this task by calling for more training.

Task 34 This is what I wrote two years ago:

Task 34. Vehicle Stops, Field Investigations, and Detentions

[The NSA requirement] is a requirement for documentation, and the requirement is straightforward: for every vehicle stop, the officer must file a “stop report” that says why the stop was done. Always, OPD is judged to be out of compliance with this task not because the officers are not entering the data, but because the monitor/panel don’t like the data. The monitor/panel have extended this task to include pedestrian stops, so that every time an officer stops anyone for any reason, they have to file a report saying why – once again oversight overreach, once again not relying on citizen complaints but on the monitor/panel’s getting the officer-entered data, analyzing it, and finding that people are being stopped when they should not have, in a completely subjective and non-transparent process. This is an attempt to avoid racial profiling, and God love them for that – racial profiling is not ever a good thing – but in Oakland, where almost all of our violent crime is committed on Black or Hispanic people, and appears to be committed by Black or Hispanic people, the subject of most of these stops will in fact very often probably be Black or Hispanic. We will not ever be in compliance with this.

In the current Monitor’s Report, the issue is with the reports of the data about the stops:

While OPD has not produced an official report that documents a summary of the data collected or analysis of data, the data described above is indicative of OPD progress with this requirement reflected provided in the November 15, 2004 policy. That policy requires that the Racial Profiling Manager shall produce a written report to the Chief of Police at least twice per year that includes an analysis of the data collected, and appropriate policy recommendations. Based on our knowledge, while OPD has not prepared such a report in the last three years, we are hopeful that, even though such a report may be preliminary, this will occur during prior the close of the next reporting period. Although we are encouraged with the progress made during recent reporting periods, OPD is not in full compliance with Task 34.3.1.

The Compliance Director addresses this by ordering the Chief of Police to provide the report.

Task 37. Retaliation against employees. This task requires that OPD respond to & stop any retaliation against an employee for reporting misconduct, etc. This is the conclusion of the Independent Monitor:

Inasmuch as OPD failed to respond fully to the most serious allegation of retaliation that we observed during the past year, but has handled the routine allegations of retaliation appropriately, the Department remains in partial Phase 2 compliance with Task 37. There has been no evidence that OPD has made any changes to address the serious transgressions that we noted; we will continue to monitor this issue closely in future reporting periods. 

Compliance Status:

Phase 1: In compliance

Phase 2: Partial compliance

The Compliance Director addresses this by asking for all data about any retaliation claims over the last year, and says he will discuss with OPD & the Independent Monitor. This again looks like a never-ending process.

Task 40. This is what I wrote 2 years ago: Task 40. Use of Personnel Assessment System (PAS)

The Personal Assessment System is a database that includes all the statistics about the officers: per officer, how many arrests, how many sick days, how many complaints whether or not substantiated, etc. This database is used as a risk management system, to identify which officers are likely to become out of control. OPD has not ever been in compliance with this task, and I believe that is because OPD has never had the computer staff to implement the database & keep it running correctly. In this last report, there was a bug that double-counted arrests because the OPD database is not properly interfacing to the Alameda Database, and so OPD was out of compliance again. But let us all understand: when, as in the budget crisis of today, OPD’s budget is slashed but “no uniformed officers will be cut”, IT tends to be the first to go. Well, second, administrative help goes first. This is just the way that organizations need to work; in any downsizing organization, the support staff are the first to be released. This computer system would be great, but it will not happen in the current budget situation. It will be interesting to see what happens with this task under receivership.

What is happening now is that the “old” PAS system has been improved to the point where it is usable, and the “new” PAS2 is being developed – the new system appears to be more flexible in flagging various behaviors as worthy of being flagged, so that the “offending” officer can be dealt with.

This task actually does have a hope of ending, now that the Compliance Director has, and is using, independent budget authority.

Task 41 is the Use of the PAS. That is, once such a system is in place, how well is it being used to monitor “at risk” officers. The Independent Monitor is awaiting PAS2. PAS2 is also a major focus of the Compliance Director.

Conclusion: I don’t really have one, except to say that we need a way to bring this NSA to an end, and the Compliance Director does not appear to be it.

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