Councilmember Herbold has introduced a bill that would make several updates to the Community Police Commission in the hopes of reducing the perennial strife that the CPC seems to be suffering under the past few years. Most notably, the bill:
- reduces the number of CPC members from 21 to 15;
- changes the CPC Executive Director position so that it is hired by the CPC and fired by the CPC co-chairs;
- creates a new CPC Deputy Director position.
There is, however, a problem with the bill: the change to the reporting structure for the Executive Director is most likely illegal under the City Charter.
Article V, Section 2 of the City Charter states:
The Mayor shall see that the laws in the City are enforced, and shall direct and control all subordinate officers of the City, except in so far as such enforcement, direction and control is by this Charter reposed in some other officer or board
Article III, Section 1 says:
The Legislative Authority of the City may by ordinance create, consolidate and reorganize the departments, divisions and offices of the City for the conduct of municipal functions except as such creation, consolidation or reorganization shall be precluded by other provisions of this Charter.
And Article III, Section 3 states:
The Mayor shall head the Executive Department; the President of the City Council, the Legislative Department; the Librarian, the Library Department, and the members of the commissions or boards created by this Charter, and the principal unsubordinated officers in departments wherein there is no commission or board shall head their respective departments, but no head of department shall have or exercise any power or authority not provided for elsewhere in this Charter.
Finally, Article IV, Section 14 says that the City Council’s powers include:
To ordain, establish, modify and abrogate from time to time, as the needs of the City shall require, all proper offices and bureaus, subordinate and auxiliary to the departments and heads thereof constituted by this Charter, and to provide for the conduct and government thereof, and the duties and compensation of officers and employees to fill the same, except as in this Charter otherwise provided.
Together, these passages say that all city department heads report to the Mayor unless otherwise specified in the City Charter. The City Council can re-org existing departments and create new ones, but any new department it creates must report to the Mayor. There is great logic to this: if it were otherwise, the City Council could take power away from the Mayor and could even arrogate it to itself by creating new departments and making them report directly to the Council. The City Charter establishes the balance of power between the City Council and the Mayor, and it wisely assures that adjusting that balance of power requires a vote of the people.
The net effect is that the City Council can’t unilaterally change the reporting structure for the CPC Executive Director to report to the CPC co-chairs. It’s possible to set up such an arrangement, but it requires a Charter Amendment to be approved by the voters of Seattle — a step that the Council apparently would rather not bother with.
This isn’t the first time that the Council has done this: under its establishing ordinance, the Seattle Ethics and Elections Commission (SEEC) Executive Director reports to the Commission and can be hired and fired by them; but the SEEC is not mentioned in the City Charter at all, let alone does it specify that the SEEC is its own independent department. More recently in a fit of pique at Mayor Durkan, the Council created the new Office of Economic and Revenue Forecasts, stripping out responsibilities and staff from the Budget Office (which reports to the Mayor) and moving them into a new department that has shared reporting between the Mayor and Council. Again, without a Charter Amendment.
At some point in the future, someone will get fined by the SEEC and will fight it in court by challenging the Commission’s legal existence — and likely win. However, it’s unclear who has legal standing to challenge the City Council’s other actions removing department heads from reporting to the Mayor. Theoretically a Seattle voter could sue, claiming that the Council has disenfranchised them by denying their right to vote to approve any changes to the power balance between the Council and Mayor as guaranteed by the City Charter.
It actually makes a lot of sense to have the CPC Executive Director report to the CPC co-chairs, especially for an organization such as the CPC that relies on political independence to function well. And it seems likely that Seattle voters would understand the logic and approve such a Charter Amendment if put before them. It’s unclear, then why the Council is choosing to violate the City Charter and try to push this through by ordinance instead.
There is one other nagging issue with this bill: it’s unclear whether it needs to be approved by U.S. District Court Judge James Robart, who oversees the SPD consent decree. You may recall that the original police accountability ordinance that established the current version of the CPC was submitted to Robart for his approval, and to-date he has not actually approved it — though he said that he would not block parts of its implementation. Robart observed that parts of the police accountability ordinance were subject to collective bargaining with SPG, the police officers’ union, and he understandably withheld his approval of the ordinance because it was unclear what terms he was actually approving. Nothing has improved there: the subsequent SPOG contract did in fact supersede terms in the police accountability ordinance, and to-date the ordinance has not been updated to square it with the SPOG contract (which has since expired and bargaining for the next contract is underway). So Herbold’s new bill modifies an ordinance that has still not been approved by Judge Robart, further complicating the legal mess surrounding the CPC and the other parts of the accountability system.