With a stymied watchdog agency, who monitors police oversight?

Tony Plohetski Ryan Autullo
Austin American-Statesman

In late 2019, Austin police officer Michael Hewitt became the target of a complaint to the Office of Police Oversight by a Black man claiming that the veteran officer harassed him while ticketing him for trespassing in a 7-Eleven parking lot.

Officials in the newly rebooted police watchdog agency reviewed Hewitt’s body camera videos, and when they saw that he had not cited a white driver for what they considered similar behavior, they accused Hewitt of racial bias and lacking an impartial attitude.

In a subsequent internal affairs investigation, Hewitt said that he cited the Black man because he had seen him previously loitering in the parking lot, that he was blocking customers from using the fuel pumps and had not bought anything in the store. He said he did not ticket the white man, who Hewitt said he had never seen before, after the man told him he was an Uber driver waiting on his next fare.

Hewitt faced no discipline.

More than two years later, Austin's police union relied upon that case as Exhibit A in what became their successful effort to weaken – at least for now – the influence of the oversight office, which was designed to provide a neutral option for citizens to file complaints against police officers and an official channel for the community to give feedback to the Police Department.

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Leaders of the Austin Police Association say the oversight office has shown a flagrant disregard for the terms of a 2018 labor contract with the city, which established the authority of the office. Their grievance that led to a recent arbitration hearing is one of about 15 complaints the union has filed in the past three years.

Austin Police Association President Ken Casady talks to attendees at an election watch party in downtown Austin.  Supporters of Proposition A gathered at Micheladas Cafe y Cantina downtown to wait as the results rolled in on Nov. 2. The proposition was not passed.

“They have trampled officers’ rights right and left,” said Ken Casaday, president of the Austin Police Association. “If you have a contract, you have to follow it, and if you don't follow it, there are consequences.”

The dispute has added to the local debate over police reform, as community activists say they view what happened as an effort by police to dilute a system designed to foster trust through transparency and to hold police accountable.

Austin City Council Member Greg Casar, who will leave the council this year and is currently running for a congressional seat, accused the police union of working to tie the hands of the office.

"The police association continues to undermine basic oversight and accountability," he said. "If we want both safety and civil rights, then we must ensure future contracts with the police association do not allow them to get around the rules through legal maneuvers like this."

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“I found it very unfortunate,” said Chris Harris, policy director for the Austin Justice Coalition, which has pushed for greater police oversight. "I think the idea is one to weaken the office, and keep officers continuing to not face consequences for their conduct and brutality."

According to the contract between police and the city, the oversight office was established to “assure timely, fair, impartial and objective administrative review of complaints against police officers while protecting the individual rights of officers and civilians.”

Austin City Manager Spencer Cronk talks to Austin Police Chief Joseph Chacon on July 9, before Cronk presented next year's budget. Austin police, with the help of Cronk's office, will review the Office of Police Oversight's recommended changes to police policy.

The union contends the oversight office overstepped by investigating citizens’ complaints, contacting witnesses and demanding that internal affairs detectives ask certain questions during officer interviews. The city said that officials believed the office was operating properly through a 2018 memorandum from City Manager Spencer Cronk and a City Council resolution that sought to bolster the office’s power.

The Dec. 28 arbitration ruling — from Houston lawyer Lynne M. Gomez — appears to have reined in the city's efforts to expand civilian oversight of the police force. Notably, Gomez made clear that the labor union agreement trumps Cronk’s memo and the City Council's resolution. It also clarified that, while the office could accept citizen complaints and refer them to the Police Department, it cannot collect evidence or interview witnesses.

The ruling comes as the current contract between the city and the police union is set to expire this year. Both sides are expected to begin negotiating the terms of a new deal starting this month, and the issue involving the oversight office is likely to again be contentious.

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In a written statement, the city said it is committed to civilian oversight of police officers. 

“As the city analyzes the case and its next steps, the parties will continue to operate under the terms of the contract, and will comply with the requirements outlined in the arbitration decision,” the city’s statement said.

Farah Muscadin is the director of the Office of Police Oversight.  She is re-building the Office of the Police Monitor under the new name.

Discord at arbitration hearing

The July arbitration hearing revealed a degree of discord that had largely been out of the public eye as the city grappled with other policing issues such as budget cuts, staffing and hiring a new police chief.

A copy of the ruling included excerpts of testimony from Detective Thomas Villarreal, vice president of the labor union. According to the arbitrator, Villarreal said Farah Muscadin, director of the Office of Police Oversight, was more open to collaborating with the union when she first arrived in Austin but said that now her willingness is “less than 5 percent.”

Muscadin, who started her role in 2018, when the office was called the police monitor, did not respond to emails sent by the American-Statesman seeking comment.

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Lt. Sheldon Scott Askew, a former internal affairs supervisor with the Austin Police Department, accused the oversight office of improperly interviewing witnesses by demanding that certain questions be asked, and by requiring investigators to forward prepared questions 72 hours in advance of an interview with an officer. The labor union contract says the oversight office can recommend questions to be asked during a break in questioning but that investigators are under no obligation to ask them.

The city, through its lawyers, said the police union had become “disenchanted” by the oversight office’s increased involvement and took the position that the actions of the office are allowed through increased power obtained in the 2018 contract.

The city pointed to a provision added to the contract that states one of the purposes of the office is to provide “transparency in policing and thereby fostering trust between the community and the police department.” That addition, the city reasoned, necessarily means the office was granted more authority.

Austin Police Department cadets rehearse before being commissioned as Austin police officers at a graduation ceremony for the Austin Police Department?s 143rd Cadet Class at Great Hills Baptist Church on Friday October 23, 2020.  APD commissioned 42 new officers who completed a 32-week training program that  included legal issues, driving, crisis intervention training, community policing, leadership, defensive tactics and physical fitness.   [JAY JANNER/AMERICAN-STATESMAN]

But Gomez ruled otherwise, stating that the added language does not equal added authority. She also rejected the city’s position that Muscadin’s office, even without that added provision, received additional authority from a 2018 memorandum by Cronk.

“The city manager, too, is bound by (the contract) and violates the agreement by directing or permitting Director Muscadin to ignore its provisions,” the ruling stated. 

Gomez directed the city to cease and desist from permitting further violations of the agreement.

Muscadin was admonished for her interference in the investigation into Hewitt, the officer accused of unfair treatment against the Black man at the convenience store. 

After learning Hewitt would not be disciplined, Muscadin sent an email to Hewitt’s then-commander, Jason Staniszewski, asserting that some sort of violation should have been sustained against him. 

“As a result, Stan, you are now on notice that OPO will be closely monitoring Ofc. Hewitt’s behavior,” she wrote. 

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Copied on the email was Assistant Chief Robin Henderson. Muscadin wrote: “AC Henderson, I also ask that you intervene, if necessary, in how Stan addresses these concerning and ongoing issues with Ofc. Hewitt.” 

The arbitrator found that Muscadin had improperly investigated the matter with an “in-depth review” that identified a number of alleged policy violations beyond what the complainant had brought forward. 

“OPO far exceeded those contractual limitations to the scope of its investigation authority,” Gomez wrote. 

An Austin police officer participates in an active attack training exercise at Vulcan Gas Company on East 6th Street on Tuesday August 17, 2021.  About 40 police officers, along with firefighters and Austin-Travis County EMS personnel, trained to respond to an active shooter in the downtown entertainment district.  The exercise was conducted two months after a mass shooting in the area left one dead and 13 injured.

The future of police oversight 

Austin has had civilian oversight of police for about two decades and established the original police monitor’s office through a contract agreement with officers.

Casaday, the police union chief, said officers for years have agreed with the need for civilian oversight.

"We have had issues over the past 20 years, and we have always been able to sit down with the city manager,” he said. "We have always been able to work this out. In this situation, our pleas were ignored.”

The 2018 police contract modified aspects of the office and allowed for the filing of anonymous complaints against officers and allows for office staff to conduct meetings with complainants to explain the outcome of a case.

Historically, the city has contended that operations of the oversight office needed to be established in a contract because of state laws prohibiting access to certain investigative records involving allegations against officers. A contract was thought to be the only way to grant such access to civilians not working in the Police Department, the city said.

However, Harris, of the Austin Justice Coalition, said he and other activists are increasingly of the opinion that a contract might not be necessary for the office to oversee the police. Instead, they argue, the office should be able to operate solely under the purview of the city manager with unfettered access to investigative records.

That issue has not been fully litigated in Texas.

“It is an outstanding legal item, no question,” Harris said. 

After receiving the arbitrator’s opinion, the city has the option of appealing in state District Court. At the same time, Casaday said, the union is looking at previous discipline cases to determine whether an officer’s rights might have been violated by the office and will consider future appeals.

Both sides also have to determine how they will address about 15 pending grievances the police union has filed against the oversight office, which include allegations similar to those made in the grievance that resulted in the recent arbitration.

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Meanwhile, neither city officials nor the union are publicly discussing their strategy for the office or for upcoming contract negotiations other than to say that they support civilian oversight.

In a statement, Mayor Steve Adler echoed that sentiment.

“I would anticipate this topic will be discussed during the upcoming contract negotiations with the police union,” Adler said. “Appropriate public oversight over APD is important to both the community and our officers.”