Is your police chief or elected sheriff doing a good job of keeping their department's employees, whom your taxes pay for, accountable to laws and policies?
Trick question. There is no way for you to know.
While Minnesota legislators this session have pushed various proposals that intend to improve police accountability, there is one critical area they have intentionally ignored: that state data practices law contributes to poor police management. The problem with the law is a design defect that provides huge incentive for any politically sensitive government department — not just police — to inadequately respond to the misconduct of its problem employees.
Under the Minnesota Government Data Practices Act, when a public employee — police or otherwise — is subject to a complaint, virtually all information beyond the fact that the complaint has been filed stays private. The blackout on information includes: the basis of the complaint, what facts were found when investigated, what conclusions were reached based on employment policies or laws, and what actions (if any) happened as a result.
Not accessible to the public. Not accessible to the media. And — unlike virtually all other formal complaint processes — not even accessible to the person who made the complaint!
The big exception is that if the complaint results in formal employee discipline (as defined through union contract), the blackout is completely reversed: All information about the complaint becomes public (other than a few minor or uncommon elements subject to a separate requirement of confidentiality).
Consider then the choice from the perspective of any police chief or elected sheriff. An officer in my department has committed an inappropriate and/or violent act that is contrary to policy and professional expectations. If I discipline, the media may find out, and/or it may spread on social media, and cause reputational harm to me, my department and perhaps the mayor whom I am loyal to. And all future criminal defendants arrested by this officer, through their lawyers, will easily find out about this situation, harming this officer's usefulness if all future reports and testimony get attacked as unreliable. If I try to solve the lack of usefulness by firing this officer, it may not be easy to have the action upheld by an arbitrator. Significant staff time may be wasted on the case. But even if successful, I'm in a difficult hiring environment and there's political pressure to limit or reduce my staffing budget, which could result in greater challenges to cover shifts.
With all such disincentives to effectively hold employees accountable to policy and law as would happen in the private sector, is it any mystery why former Minneapolis police officer Derek Chauvin had a long track record of complaints that did not result in discipline?
Because current law encouraged Minneapolis Police Department management to prioritize privacy over intervention, this newspaper cannot find out for us whether one of those complaints for which Chauvin was not held accountable by police leaders concerned his violent encounter with a juvenile that is now part of the federal criminal prosecution against him. Nor can we learn how many involved the same harmful acts cited by state prosecutors in court filings to demonstrate Chauvin's long pattern of misconduct.
A public relations workaround Minneapolis leaders have encouraged in recent years is to substitute "coaching" for discipline, which fully preserves the nonpublic nature of bad employee conduct while giving an unverifiable impression of a meaningful consequence. The misuse of coaching to subvert transparency has been taken on by the Minnesota ACLU in a lawsuit against the city.
The necessary reform is to require increased public transparency about complaints against government employees, such as police, that do not end in discipline. This allows scrutiny not only of public workers but their managers as well. How well did your government department heads respond to public complaints, enforce employee adherence to policy and take necessary actions to improve overall performance quality?
Creating transparency for non-disciplined complaints might reasonably remove the all-or-nothing nature of data practices law. One could alternatively, in certain circumstances, make public not the entire file but a summary that must describe the nature of the complaint, the pertinent facts uncovered, analysis of the key facts through the lens of law and policy, and the discipline decision.
Given problems of general distrust of government and specific distrust of police, there's no good basis to find that non-discipline scenarios have less benefit of public scrutiny than those involving discipline. Publicly sharing why managers determined that an alleged problem was not employee misconduct helps restore the perception that active supervision is functioning, and that complaints are not routinely ignored. It certainly helps the person who filed the complaint to receive information about why no action was taken. Such transparency may educate the public about possible shortcomings in laws and policies guiding police, defusing anger against police as individuals while allowing reform discussions to become better targeted.
With the media's helpful ability to play a watchdog role, the employee supervision provided by police chiefs, sheriffs and all government department heads can be reviewed, helping you to know if you are the beneficiary of well-managed public services.
You might ask why government instead prefers that you remain in the dark.
Michael Friedman is the former board chair of the Minneapolis Civilian Police Review Authority and the former executive director of the Legal Rights Center.