Mayor Durkan and Councilmember Herbold Announce Legislation to Strengthen Subpoena Power of Office of Police Accountability and Office of Inspector General

New Legislation Makes Explicit OPA and OIG’s Subpoena Powers in Investigations and Creates Process to Enforce Subpoenas

SEATTLE (December 3, 2020) – Mayor Jenny A. Durkan and Councilmember Lisa Herbold today announced new legislation to strengthen the Office of Police Accountability (OPA) and Office of Inspector General’s (OIG) power to subpoena those who may have been involved in or witnessed incidents of potential officer misconduct. In addition, OPA and OIG can seek a Court order should someone fail to comply with a subpoena for an investigation. The new legislation also codifies and makes clear that complainants and witnesses who may be subpoenaed have due process protections; this effort is intended to increase civilian compliance with subpoenas and mitigate any chilling effects of providing information that might later be used in separate proceedings.

“This new legislation is critical to promoting public confidence in our police oversight entities and advancing police accountability. Passing this bill will set the City on better footing to pursue stronger accountability measures in our collective bargaining agenda for the next round of negotiations with SPOG. Ultimately, we also must pass critical reforms in Olympia regarding police discipline and other key accountability components,” said Mayor Durkan. “This is real progress, and it represents strong collaboration between my office, the City Council, civil rights groups, and the accountability partners. I’m grateful to Councilmember Herbold’s partnership in our ongoing effort to advance and strengthen police accountability and oversight.”

“You don’t have to be an attorney to know how important subpoenas are in investigations – that includes investigations into police misconduct too. This legislation gives explicit authority to our civilian-led police accountability system to issue administrative subpoenas when gathering information critical to their investigations,” said Councilmember Lisa Herbold (District 1, West Seattle/South Park).

The intent behind the legislation is to empower OPA and OIG with the explicit legal authority to issue administrative subpoenas to assist in their investigations, with the  goal of strengthening and enhancing Seattle’s civilian-led police accountability system. The effort to grant subpoena powers to the OPA and OIG was initially introduced in the 2017 Accountability Ordinance (AO) passed by the City Council. While officers must comply with OPA investigations, this legislation clarifies the City’s civilian oversight agencies’ process to issue a subpoena, judicial oversight, and provides explicit powers to issue subpoenas for witnesses and records. Subpoena power was one of the issues raised by the federal court and by an assessment of the City’s accountability system.

This new legislation codifies and affirms the City’s stance that the OPA and OIG can seek subpoenas of those who may have witnessed or been involved in potential misconduct incidents. In addition, the legislation creates a process for OPA and OIG to directly issue the subpoena and enforce them by seeking a Court order should the subject of the subpoena fail to comply. The new legislation also requires that individuals and third party-record holders served with a subpoena are provided a written notice of their right to due process. This protection was not codified previously, and this addition is intended to increase civilian participation in OPA investigations and OIG audits and reviews.

“By codifying the subpoena power held by OPA and OIG, the City has taken one more important step towards realizing the goals set forth in the 2017 Accountability Ordinance,” said OPA Director Andrew Myerberg. “Importantly, this new legislation goes further by ensuring procedural due process for the subjects of the subpoenas. OPA thanks Mayor Durkan, Councilmember Herbold, and the OIG for their collaborative efforts.”

“Although SPD has been very cooperative with OIG’s work, it is undeniable that meaningful oversight must include the ability to obtain information that may be critical to an investigation or audit. True oversight, and the ability to ensure transparency, requires a full understanding of SPD operations—which cannot always depend on voluntary participation,” said Inspector General Lisa Judge. “The subpoena authority provided to OIG and OPA in the 2017 legislation was a vital step in the right direction, but has not been fully realized. The collective effort of the Mayor, Councilmember Herbold, and the accountability partners to codify this important process continues to move Seattle’s accountability system forward.”  

“The CPC has prioritized robust civilian-led investigations of police misconduct since its inception. This is why the CPC pushed for increased subpoena powers for OPA and OIG in the 2017 Accountability Ordinance and have continued to advocate for those reforms since. We are hopeful this legislation will bring the City of Seattle one step closer toward full implementation of that ordinance and remove another barrier on the road to police accountability,” said the Community Police Commission Co-Chairs Rev. Aaron Williams, Rev. Harriett Walden, and Prachi Dave.

The OPA and OIG can issue subpoenas when conducting investigations into potential officer misconduct. Seattle Police Department (SPD) officers are mandated – per SPD policy – to comply with OPA investigations, and thus far, OPA and OIG have not needed to issue a subpoena to officers to obtain records or secure testimony. However, subpoena power will be available to OPA or OIG should it be necessary. In addition, the City will be required to bargain subpoena authority regarding the personal records of employees or family members as part of upcoming Seattle Police Officers’ Guild (SPOG) negotiations.

This legislation will be considered at the Public Safety and Human Services Committee meeting at 9:30 a.m. on December 8.