The Tucson Police Department’s handling of internal investigations, officer reassignments and a decision to promote a civilian to a command staff post are the focus of three grievances filed by the police union within the last month.
Tucson Police Chief Chris Magnus, however, says some of the claims are overstated and one, in the best interest of the community, is not negotiable.
That non-negotiable, in Magnus’ eyes, relates to four officers who were reassigned to work the front desk of police stations after they were placed on the Law Enforcement Activity Disclosure, or Brady, list.
The LEAD list is composed of officers whose conduct could be used by defense attorneys to call into question the credibility of an officer’s testimony. Officers placed on the list have been disciplined or sometimes fired for allegedly committing a crime or lying to investigators, and the department has a legal requirement to turn over all evidence that could be incriminating to any individual involved in an investigation.
The evidence of an officer’s behavior can then be used to impeach his or her credibility during a trial, which Magnus said isn’t a risk he’s willing to take.
While officers can appeal their terminations to a civil service commission, if an officer fired under Magnus’ tenure comes back as a result of an appeal, the chief said he won’t put them back on the street to investigate cases.
By keeping the officers away from investigations, the department is adhering to its obligation to put together rock-solid cases on victims’ behalf to present to the County Attorney’s Office, Magnus said.
“I’ve been very straightforward about the fact that folks who are dishonest or commit crimes pose an unacceptable risk to the community in terms of receiving complaints and investigating crimes where they might have to testify later on,” Magnus said. “I get it, there are circumstances nationwide where people on a Brady List have been rehabilitated on the stand and their testimony is still viable, but it’s a risk I’m not willing to take.”
TPOA, however, argues that such a stance could be considered retaliation.
“Officers can continue to do their jobs after being placed on the list,” TPOA argues in the grievance. “The department being concerned where these officers are assigned is wise, but they have to be allowed to continue their careers as police officers.”
The reassignments also represent a misuse of taxpayer money by having “intentionally limited police officers,” TPOA argues.
The four officers referenced in the grievance were identified through a public records request as Jose Olivares, Charles Foley, Luis Ruiz and Vince Valenzuela.
The officers started their new assignments at the end of March, but haven’t been given a specific list of how to handle calls or situations, given the special circumstances placed on them that limit their ability to fully respond, TPOA President Tony Archibald said Friday.
All four of the officers were disciplined for their actions, so for Magnus to limit their duty seems like sour grapes, Archibald said.
Officers who have come back from terminations have left the department because of the way they’ve been treated, Archibald said, adding that the officers should be allowed to go back to providing the service that citizens are paying for and return to patrol.
“The department is not getting what the city needs out of them,” Archibald said.
There are 96 current and former TPD officers on the LEAD list and 158 officers from other law enforcement agencies in Pima County.
Another grievance addressed the extended period of time that a handful of internal investigations have taken to work their way through the department’s Critical Incident Review Board, a panel that evaluates major incidents within the department, including officer-involved shootings and use-of-force situations. The board’s goal is to see if the agency’s training, supervision, policies, equipment and tactics were appropriate for the incident in question.
The TPOA letter said there are 14 active incidents, three of which have been open for more than 650 days. It also said that employees involved in the incidents have to disclose to the courts as well as any potential employer that they’re under an active investigation for a major incident. The letter also said that the board-reviewed incidents are “open discipline packages” and will forever show that the officers were investigated for an extended period of time.
“The inability to conduct a review in a reasonable amount of time has resulted in added stress in several of our members,” TPOA said. “The goals of fostering transparency and promoting trust within our community are unattainable with the current length of time these investigations are taking.”
Magnus said that while he agrees that the investigations have taken longer than the department would like, officers do not have to make any such disclosures to future employers or in court. The case is considered closed before it even reaches the board.
Incident boards do not make decisions about whether officers violated policies during the incident, but are used to determine if changes are needed in policies, training or supervision. TPD’s Office of Professional Standards makes the decision on whether department policies have been violated before the incident goes to a board, Magnus said.
The investigations are modeled after the National Institute of Justice’s sentinel event review, which evaluates significant, unexpected negative outcomes. The sentinel event model is also used by hospitals and the transportation industry, and in a variety of other fields.
“The thought with sentinel event review is to get away from the idea of sort of the shame and blame of one person and instead, ‘OK, we get it there may be some responsibility by individual actors, but perhaps there’s a much bigger framework of issues and challenges that need to be addressed,’” Magnus said.
Among the incidents that have been reviewed are pursuits that resulted in injuries or death, a 2017 protest on Congress Street in which an elderly woman was pushed by an officer, and other use-of-force incidents.
“Sometimes these are picked not just because it’s a typical critical incident in terms of a shooting or pursuit, but actually because we want to look at did we make the best choices here, were there other resources that could have been utilized or other things we could take away from this?” Magnus said.
With so many stakeholders involved with the board, the process has taken longer than expected. There’s also time required to prepare for the meetings, discussions during the meetings and interviewing people involved in the incident. When the review is complete, the report has to be written up, then brought back to the board for review and approval.
“We have been very inclusive in involving the union in helping us build and improve this process,” Magnus said. “We share their frustration about the time. None of us like that we had so many incidents back to back to back to back in a process that is still a bit of a work in progress, as well as a lack of dedicated staff that could just focus on that.
“We’re convinced this is a really good process,” Magnus said. “We have the ability as findings are rendered to update our policies and training and we’ve done that in almost all of these cases immediately.”
As a result of the review of the Congress Street protest, the department implemented a new way of dealing with crowds and civil unrest.
“We’ve told (the union) we can’t produce a totality of finished products any faster than what we can do,” Magnus said.
Three incident investigations are expected to be released next week and the results will be posted on TPD’s website.
The union understands that these are complicated investigations, but would like to see the department establish clear guidelines regarding how much time the reviews will take, Archibald said.
Investigations that drag on for years can take a mental toll on the involved officers and their families, Archibald said, adding that an officer not having presence of mind can lead to deadly mistakes.
“The department owes it to employees to resolve any personnel issues as quickly as it can,” Archibald said.
TPOA’s third grievance addressed Chief of Staff Mike Silva’s upcoming promotion to assistant chief, which is to take effect at the end of the month.
Silva was promoted to chief of staff in January 2017 after working as the city’s legal advisor for TPD. A noncommissioned employee, Silva has worked as a prosecutor and in private practice and is also is a former military police officer.
Silva will be filling an assistant chief position that’s been vacant since late 2016 due to budge cuts, but TPOA has taken issue with Silva’s noncommissioned status within the department.
The “unprecedented move” has several ramifications for union members, including a member on the list waiting for promotion to lieutenant, for which the assistant chief spot is considered, the letter said.
“TPOA understands it has no say in who is selected for these positions, but we have an absolute interest in the sworn ranks remaining sworn positions,” the letter said, adding that Silva’s promotion as a noncommissioned member of the department is in direct conflict with general orders regarding non-sworn members’ authority over sworn members.
Almost everybody in the department will say the issue isn’t about Silva personally, Magnus said.
“(The union) almost goes out of its way to convey that people have a high degree of confidence in Mike Silva. They think he’s a strong member of the executive team, they like working with him and they believe he’s highly qualified,” Magnus said, adding that it’s interesting to try to follow the logic of the grievance.
Other departments across the country have had non-sworn assistant chiefs or equivalents for years, Magnus said, adding that there seems to be a lack of understanding that many of the skills needed at an executive level in a police department are not the same skills involved in arresting a suspect, handling a pursuit or making tactical decisions about field operations.
“There are a whole range of things that, in fact, sworn police officers typically do not do all that well in police agencies,” Magnus said. “I haven’t put Mike in charge of field services, he’s not in charge of investigations, but I believe the areas he will be in charge of ... are areas where he has a high level of knowledge and skill.”
Silva will likely oversee the department’s Office of Professional Standards, audit and best practices, crime analysis and public information, Magnus said.
“Really, no one has questioned his qualifications. What I hear more of is, ‘This is culture and tradition.’ I can remember not that long ago that people said that about women coming into police departments, when people of color or LGBT people came in. All these things were supposed to be the end of one tradition or another,” Magnus said. “Well, maybe some traditions need to change.”
The grievance feels to Magnus like an emotional reaction, which he says is unfortunate.
“This shouldn’t threaten anyone in the agency,” Magnus said. Prior to making the decision to promote Silva, Magnus consulted with the city manager, who authorized the move.
Archibald said the union fully supports Silva and believes that he’s been given a rank he can carry. They take issue with the fact that he was given a rank, rather than the department creating a new title to accompany his job.
“Titles are given, but ranks are earned,” Archibald said.
Silva’s promotion not only violates the department’s general orders, which Archibald said Magnus should have changed prior to promoting Silva rather than breaking them, but it also violates a Civil Service Commission rule.
The union doesn’t like to take issues outside the department and didn’t file the grievances without receiving a “tremendous amount of input” from its members, Archibald said.
“When we bring concerns to the chief’s attention, we expect him to be receptive,” Archibald said. “When we’re shut down, we have to go above his head.”
Archibald has a meeting scheduled with the city manager in early May to discuss the grievances.