Public needs access to police discipline records — Legislature needs to end “coaching” loophole

And that means all of them

February 16, 2023 6:00 am

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The most important police reform issue right now isn’t being debated in any police precinct or city hall or legislative hearing room. The debate is taking place in Hennepin County District Court, where Judge Karen Janisch has been considering the definition of “disciplinary action” as defined in the Minnesota Government Data Practices Act.  The case is called Minnesota Coalition on Government Information v. City of Minneapolis, et. al. 

Some background: Minnesota law makes final discipline files against police officers public data that must be made available to the public upon request, and for good reason: Transparency and the scrutiny that comes with it is our best chance at cleaning up police misconduct. 

But more than a decade ago, the city of Minneapolis contrived a way to conceal police misconduct from the public by calling it “coaching” instead of “discipline.” 

The plaintiffs are seeking to tear off this shroud of secrecy that currently envelops a whole lot of police misconduct in Minneapolis.

Since 2010 the nearly exclusive consequence for a “sustained” complaint against a Minneapolis police officer has been “coaching.” I.e., the officer is “coached” after the misconduct to improve his performance. 

City leaders claim that a sustained violation resulting in coaching is not a “disciplinary action,” and, therefore, any records about the misconduct allegations are nonpublic. 

This is not an esoteric legal question. By defining “coaching” as “not discipline” Minneapolis Mayor Jacob Frey and his police administration keep secret most sustained police misconduct complaints.

The magnitude of this loophole is breathtaking. It was reported in 2013 that during the first two years following its implementation, no Minneapolis cops were disciplined after 439 complaints. 

According to data in the MNCOGI litigation, for the past decade, approximately 90% of sustained violations result in coaching and are therefore nonpublic, i.e., secret. 

The only time MPD seems to publicly discipline officers is for violating the wall of silence that surrounds the department. Hence the public discipline in 2020 and 2021 of officers who spoke with media outlets about elements of homophobia and racism within the department. 

The perverse incentive to protect the department from criticism by “coaching” rather than imposing “discipline” is obvious. By choosing to “coach” for a violation, a mayor or police chief may conveniently keep misconduct from the public. 

Legal counsel for the Minneapolis Federation of Police claimed at oral argument that the city has the unchecked authority to define “discipline.”  Based upon the interpretation of state law from the city attorney and counsel for the union, a city has total discretion over whether any public records of police misconduct are available to the public regardless of the severity of the violation. 

Sadly, and remarkably, neither the Minneapolis City Council nor legislative proposals following the murder of George Floyd have sought to significantly address the secrecy of police complaint data. A 2021 report from the Institute of Public Service Reporting summarized local responses to the call for greater transparency. 

Similarly, Memphis — under scrutiny after the brutal police killing of Tyree Nichols — adopted weak reforms in 2021 that included few specifics as to any excessive force complaints. 

Meanwhile, 130 law enforcement agencies are participating in a Police Data Initiative to promote “enhanced understanding, and accountability.”  (Neither Minneapolis nor Memphis is participating.) New York City began publishing partial disciplinary records dating back to 2014 and the New York Legislature repealed a law in 2020 that shielded most police discipline records. In Seattle, residents can review itemized incident data on Excel spreadsheets. 

By contrast, when Reformer contributor Tony Webster filed a request to see Minneapolis police discipline records, he was met with protracted litigation from the city. 

On Feb. 6, Judge Janisch issued her order concluding that the statutory definition of “disciplinary action” is ambiguous. The court sought to determine “legislative intent” from state laws enacted over 40 years ago.  The court gave primary weight to the legislative history of the Public Employees Labor Relations Act and to rights established in the collective bargaining agreement between the city and the police union.  The court appears to agree with arguments from the city attorney and the union that coaching is “not discipline under the terms of the collective bargaining contract.”

In the end, the court opted for a definition that raises as many questions as it answers. Disciplinary action is defined as an action imposed through the decision of a government to punish or penalize that is consistent with “rights and obligations as established by law and/or collective bargaining.” 

While next steps in the litigation are not clear, the court’s ruling is a defeat for the proponents of transparency.  The power of police chiefs and mayors to make nonpublic any police complaints — so long as the chosen remedy is “coaching”or “not discipline” — continues unabated.   The authority  to hide sustained police misconduct through provisions in the collective bargaining  is similarly uninterrupted.  

Neither the Legislature nor the Minneapolis City Council are powerless, however.  

The Legislature should not rely on a district court to determine its intent based on legislative actions taken two generations ago. There should be a public debate and public vote on whether this lack of transparency serves the public.

Minnesota Section 13.43 requires a remarkably simple amendment designating as public any “complaint data” when a complaint is sustained, regardless of the nature of the corrective or disciplinary action taken. 

If Gov. Tim  Walz and the Legislature are serious about fixing the problem rather than mere political messaging, a bill opening up police complaint data will be introduced and passed.  

Similarly, the City Council should meet as soon as possible to review the decision, direct their legal counsel to change course in the litigation, and insist this issue be addressed in the next collective bargaining agreement. The council should add the amendment to the Data Practices Act to its legislative agenda.

Incredibly, there has not been a City Council briefing on the litigation — and it’s not clear who is directing the city attorney to oppose transparency in policing.   

While public officials deliberate, they should consider the eerie parallel between the failures of the Minneapolis Police Department and the failure of the Memphis Police Department to hold accountable and remove officers who betrayed their badge. 

Derek Chauvin had 18 misconduct complaints and nearly killed a 14-year-old child and was never “disciplined” (he was “coached”) prior to the murder of George Floyd. We are hearing numerous accounts of police violence by those charged in the murder of Nichols, including the failure to report the use of force. In both cases a functioning, transparent and accountable system of discipline might have avoided these tragedies.

For all the talk of policy changes, one thing we know is that these police murders may have been prevented if the officers had been properly and publicly held accountable for their behavior prior to these murders.

There is only one way out of our mess in which police and communities both feel under attack. Police officers can no longer operate effectively in communities that unfairly judge them by the actions of other officers. Large segments of our community will not trust any police officers unless they are confident that officers will be publicly held accountable for misconduct. 

Those most opposed to sunlight are political leaders, police chiefs and unions who fear the fallout. They all do a disservice to the good men and women who serve in law enforcement. By lifting the veil from policing we can build support for dedicated officers and put meaning into the pledges of “never again.” 

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Paul Ostrow
Paul Ostrow

Paul Ostrow, chair of Fentanyl Free Communities, has been assistant Anoka County attorney for 12 years and previously served as Minneapolis City Council president.