The police union loses in court

A judge rules against the city on police oversight

In May of 2023, voters overwhelmingly approved the Austin Police Oversight Act (APOA) establishing new rules for civilian oversight of the police department. The city, however, has refused to implement many of the ordinance's key measures, reasoning that they are at odds with state law.

Last week a Travis County judge rejected the city's arguments over a key bone of contention: the notorious "G-File."

The G-File is where misconduct allegations against police officers that were not "substantiated" by the police chief remain for eternity. The police union argues there is no reason for complaints that did not result in discipline to be public record –– that it impugns an officer's reputation and incentivizes frivolous complaints. Oversight advocates argue the existence of the G-File incentivizes police chiefs to dismiss complaints that might embarrass the department, since dismissing the complaint ensures there will be no public record of it.

Austin Sanders reports for the Chronicle:

“[City Manager T.C.] Broadnax and [Police Chief Lisa] Davis have unlawfully failed to perform their mandatory duty to end the City of Austin’s use of the ‘g file’ in violation” of the APOA, District Judge Maria Cantú Hexsel wrote in a hotly anticipated ruling issued late Friday afternoon, Aug. 30. The ruling followed a hearing in the lawsuit filed by Equity Action, the justice advocacy organization that wrote the APOA and sued the city over failure to fully implement it, before Cantú Hexsel in June.

The ruling is unprecedented in Texas and a major victory for police accountability and transparency, Equity Action said. Police accountability advocates have maintained, for years, that Texas cities opting to maintain a G file do so at their discretion. Now, a court has agreed. “This is a momentous day for Austin,” Alycia Castillo, Equity Action board chair, said. “We hope the sunlight offered through the full, forthcoming implementation of the APOA will bring about the meaningful deterrent to police misconduct and brutality our city voted for back in 2023.”

So impenetrable is the G-File that even District Attorney José Garza has been unable to acquire records related to officers under indictment for their actions during the 2020 George Floyd protests.

The police union and the city have maintained that state law requires the police department to maintain a G-File, regardless of what a local voter-approved ordinance says. They have both argued that other provisions of the ordinance that empower the Office of Police Oversight to investigate misconduct are unenforceable due to state law.

There was at least one strong indiction that the police union didn't really believe what it was saying. The union spent nearly $300,000 trying to defeat the APOA with a deceptive campaign to get a competing ordinance on the ballot. That measure was also called the Austin Police Oversight Act but it wouldn't increase oversight, of course. It was soundly defeated.

One thing that is rarely acknowledged in this debate is that many –– if not most –– law enforcement agencies in Texas do not have G-Files. For instance: Sheriff Departments, Constables, DPS, and the police departments of cities that operate under a different section of state civil service law, including Dallas.

The elimination of the G-File hardly gives the public unrestricted access to records related to police misconduct investigations. There are still numerous exceptions that allow police departments to deny access. For instance: if the city or an officer is a party to ongoing litigation or if the information relates to ongoing criminal investigation or prosecution.

Kathy Mitchell, a policy adviser at Equity Action, notes that hardly any records related to the officers involved in the response to the Uvalde massacre have been released due to both of those exceptions.

Will the city appeal?

The city, the defendant in this case, could appeal. Technically the city manager makes the determination regardless of what City Council wants.

"We appreciate the court’s time and attention to this matter," said a city spokesperson. "We are currently reviewing the decision and will have discussions with City leaders on potential next steps in the coming days."

In a text message, CM Ryan Alter said it would be "shocking" for the city to appeal in spite of Council's opposition.

But wait...wasn't the city just in court defending a position that most of Council opposed? Well...that was different for a number of reasons. It was former City Manager Jesus Garza –– Kirk Watson's right-hand man –– and former City Attorney Anne Morgan who basically refused to implement the APOA. Both of them had made clear they didn't care what Council said and both were on their way out anyway (Garza left in May, Morgan retired in July). Their departures offered an opportunity to turn over a new leaf; the resolution Council passed supporting the implementation of the APOA in June was widely viewed as a message to incoming City Manager TC Broadnax that the era of obstruction must end.

From the perspective of APOA supporters, the city's reportedly meek defense of the G-File in court may have been for the best. There was likely going to be litigation either way. Had the city begun to faithfully implement the ordinance, the police association likely would have sued. Either way, there is now a ruling from a judge that offers little room for interpretation.

Consider the response today of Watson, who has been playing both sides of this issue from the get-go, saying that the voters' will must be respected while allowing his homeboy Garza to undermine it at every turn.

"I do not see reason to appeal," the mayor wrote in his newsletter today.

This suit is just getting started

The G-File is only one of several practices that Equity Action's suit against the city seeks to end. It also accuses the city of failing to implement other key provisions of the APOA.

1. Contrary to the APOA, the Office of Police Oversight is not conducting independent investigations of complaints against the police. It is simply forwarding the complaints to APD.
2. Contrary to the APOA, the OPO is not making independent determinations about whether a complaint warrants an investigation.
3. Contrary to the APOA, the OPO is not the repository for all records related to complaints against the police.

"We don't know what the OPO is currently doing," Mitchell told me. "Our lawsuit will allow us to learn more about that. What we do know is that no officers are getting suspensions, which is the only public piece of information we're getting about this."

For three years, the OPO was empowered by a clause negotiated in the 2018 police union contract to gather its own evidence following complaints and to make recommendations to the police chief about whether an officer should be disciplined. The union had agreed to that clause only after a lengthy stalemate in which Council refused to approve a contract that didn't include increased civilian oversight.

However, the APA eventually filed a grievance challenging the OPO's investigative powers and got a favorable ruling from an arbitrator that effectively defanged the OPO. Even after the APOA made explicit the OPO's investigative powers, the city law department and former City Manager Jesus Garza insisted that the OPO was essentially powerless.

Contract negotiations

Even before the ruling, the police association had for the first time ever indicated it was willing to give up the G-File as part of the contract it is negotiating with the city. Specifically, it said it was willing to eliminate any future records from going into the G-File, but that any past confidential records must remain so. The court ruling should eliminate this as an issue of bargaining.

Furthermore, the union has been pretty explicit that surrendering its position on oversight should come with a big pay raise. In theory, the court ruling significantly undermined their leverage. Then again, the ruling will not eliminate the political pressure on city management (particularly from the mayor) to do whatever it takes to get the police to agree to a contract.

And there's also the chance the APA will try to get the Legislature to change the law next year. It would be supremely hypocritical to quash oversight measures for APD that are allowed in many other jurisdictions, including the state's own police force, but hypocrisy is the defining feature of our state's political leaders.