Office of Police Oversight Puts Its Difficulties With APD Leadership in Writing

Farah Muscadin (Photo by Jana Birchum)

The city of Austin Office of Police Oversight's first annual report, released June 16, covers much of its work since it was created in 2018 to replace the Office of the Police Monitor, for two decades a part of the city's contract with the Austin Police Association. The last person to fill that role, Farah Muscadin, is now the founding director of OPO, designed to be more independent of the Austin Police Department and reporting directly to the city manager; voters on May 1 approved a charter amendment that gives City Council the authority to change how OPO is structured.

The report includes data you'd expect to see: the number of times OPO was contacted by community members (1,353 in 2019 and 2,809 in 2020), outside complaints against APD officers filed with OPO, how many of those complaints were investigated by APD's Internal Affairs Division, how many investigations led to disciplinary action (200 in 2019 and 159 in 2020), and what recommended policy changes OPO offered to police leadership that would align APD more closely with Austin values. But a closer read offers insight into the limitations OPO faces in doing its work.

The department, with backing from the police union, has quietly resisted cooperation with OPO ever since it was created. For example, the report shows that in 2019, about 62% (33) of external complaints forwarded to APD from OPO led to IA probes. In 2020, that percentage declined to 51%, even as the number of complaints spiked, with more than 300 related to officer conduct during the 2020 Black Lives Matter protests against police violence. That still left 189 other complaints, of which only 96 were investigated.

Muscadin sees this as a major problem; she believes APD should presume that every complaint made against an actual APD officer stemming from a documented incident deserves investigation. (Some complaints are filed with OPO against law enforcement from other agencies, and some involve encounters that can't be proven to have happened.) In an interview with the Chronicle, Muscadin told us that is what Austinites fought for in 2017 when they successfully demanded that Council, for the first time in 20 years of "meet-and-confer" negotiations, reject the proposed police contract. A new one, reflecting OPO's enhanced oversight, was approved a year later. "The rate of investigations should be in the 90% range," she said. "We didn't fight to change oversight to have fewer complaints investigated. That battle was fought to have more complaints investigated."

The external complaint process was revised by OPO to make it easier and safer for the public to speak out when they felt they'd experienced or witnessed officer misconduct. Complaints made to the Police Monitor had to be sworn and signed in person at an office colocated with an APD substation; now, complainants can file either by name or anonymously online, over the phone, via mail or email, and even by fax. This has led to more contacts and complaints, but OPO has no authority to order that they be investigated; it can only refer complaints to APD.

When an investigation is opened, OPO has an active role in it, including reviewing information gathered by IA, participating in interviews, and recommending disciplinary action if warranted. But all this power is soft; APD leadership has sole authority over whether, which, and how officers are investigated or disciplined. Some of those limitations are enshrined in the police meet-and-confer agreement; for example, OPO is prohibited from conducting any kind of independent investigation of officer misconduct. But some of them reflect resistance from APD leadership under former Chief Brian Manley, who was publicly uncooperative and obstinate even with Council when he felt his authority was under threat. It's unsurprising he'd approach OPO the same way.

The report describes one example in which APD made changes to the matrix used to evaluate potential disciplinary options without consulting OPO. Last year, Manley lessened the penalty for repeat violators of department policy regarding body-worn cameras. "An officer may violate [video recording] policies three times and still never receive 'formal' discipline," OPO noted in a formal objection documented in the report. It was not notified of this change until the day it took effect.

Manley is now gone, and Muscadin is more hopeful. "I feel optimistic about leadership under interim Chief [Joseph] Chacon, which I did not feel [as much] under previous leaders," Muscadin told us. One example of why: Chacon has committed to ensuring complaints referred by OPO are presumed worthy of investigation by IA. Other changes could occur in the coming year as a new police contract is negotiated; the current one expires in September 2022 but includes a six-month extension option if the parties can't agree to terms. Now that advocates and Council have shown they're willing to say no to APD and the union, and as the APA in particular fights back at the Legislature and the ballot box, that outcome seems more likely than ever before.

Muscadin hopes to see oversight authority continue to move away from the politics of the union contract and Council election cycle and from the ebb and flow of activist energy, and be safeguarded in the City Charter and code. The history of meet-and-confer, even after the last contract rejection and creation of OPO, has led the department and the union to believe "they have authority over my office that they don't have," Muscadin said. "They shouldn't have power over the entity that's supposed to oversee them."