In a 31-page decision, Lynn Gomez, the arbitrator, ruled that Muscadin and the OPO violated Article 16 of the Austin Police Department’s employment contract that was negotiated in 2018. Article 16 governs the parameters of civilian oversight of the department, which progressive groups lobbied hard for during the labor standoff.
“Contrary to the city’s claim, Director Muscadin was not acting within the scope of her authority…[she] clearly was seeking to dictate some future outcome rather than simply making a recommendation as Art. 16 permits,” Gomez ruled.
“[T]he evidence and arguments raise[d] by the city indicate that the city does not consider itself or OPO bound by Article 16’s provisions.”
This Office of Police Oversight emerged from the ashes of its former Office of the Police Monitor, with more supervision authority. Those augmented powers include the ability to field complaints against officers and a role in reviewing cases.
The dispute in question centers on that new role.
Officer Michael Hewitt responded to an October 9, 2019, call for a subject loitering on a gas station’s property and blocking a pump from being used. According to the filing, the gas station, located in a high crime area, was known to be the site of drug dealing and miscellaneous violent crime. Hewitt issued the individual, who is black, a Criminal Trespass Notice (CTN) and “advised him not to loiter at the gas station anymore.”
That gas station had previously been approved for a “blanket CTN” because of so many trespassing problems.
After the interaction, a complaint against Hewitt was filed alleging that the officer harassed the caller. That same day, Hewitt had another interaction at the same gas station with a white individual, to whom he did not issue a CTN after being informed the person was an Uber driver “waiting for his next fare.”
On January 13, 2020, the OPO issued a formal complaint against Hewitt alleging a possible violation of department policy after viewing footage from both interactions. “Your actions during these contacts do not appear consistent with treating all persons fairly and equally, and performing these contacts do not appear consistent with treating all persons fairly and equally,” the complaint read.
After an Internal Affairs review, Hewitt’s superiors neither sustained any policy violations nor disciplined the officer.
Later, the arbitration petition states, Muscadin emailed Commander Jason Staniszewski contending that Hewitt should have been found in violation and copied Assistant Chief Robin Henderson.
She then wrote, “As a result, Stan, you are now on notice that OPO will be closely monitoring Ofc. Hewitt’s behavior,” and asked Henderson to monitor Staniszewski’s handling of the situation going forward.
The city argued it has the authority to conduct preliminary interviews that entail investigating complaints and collecting evidence — none of which is permitted within Article 16.
In fact, the article reads “Except as specifically permitted in this Article, the Civilian Oversight process, regardless of its name or structure, shall not be used or permitted to gather evidence, contact or interview witnesses, or otherwise independently investigate a complaint of misconduct by an Officer.”
The only evidence the OPO is permitted to handle under the labor contract is receiving the complaint — which entails the nature of the complaint; witness information; the incident location, date, and time; and the officer involved.
Other than that, the OPO has access to interviews and other evidence for review after they have been conducted by Internal Affairs.
Additionally, the city claimed that as a home-rule municipality — a chartered entity rather than one subject to only general state law — it possesses broad authority over its own affairs. But this dispute is a matter of the labor contract’s parameters, not one of local versus state control.
The arbitration ruling ordered the OPO to cease and desist from:
- Investigating complaints
- Interviewing or contacting witnesses
- Following up with a complainant for clarification purposes
- Tampering with interview questions
- Demanding certain interview questions be asked
- Influencing whether a complaint is investigated
- Threatening individual officers
Ken Casaday, president of the Austin Police Association (APA), told The Texan, “This is a massive decision because we’ve been seeing this type of behavior from the city for a long period of time.”
Hewitt also testified that “he was blindsided by his chain of command informing him” of the investigation and that “he broke down and was sent home because he was so upset.”
According to the filing, Detective Thomas Villareal, the APA vice president, testified that while back in 2018 Muscadin was “far more open to collaboration” with APA, now her “willingness to collaborate is ‘less than 5 percent.’”
In granting the APA’s remedial requests, Gomez concluded, “[B]oth are ‘losing’ parties and, along with the entire Austin community, will continue to lose as long as the antagonistic relationship described by the evidence is allowed to persist.”
This current contract is nearing its end and negotiations for another will begin between the city and the APA in a few weeks.
Asked for comment on the ruling and its process moving forward, a spokeswoman for the City of Austin told The Texan, “The City received the arbitrator’s decision on Wednesday and is reviewing it.”
“The City is committed to a strong system of civilian police oversight and is evaluating all options as it moves forward.”
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.