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In the wake of the Trump administration abandoning a federal police reform agreement, a debate at Minneapolis City Hall over the best path forward continues in front of the city council Tuesday afternoon.
The point of contention over how the city can include those federal provisions with a similar reform agreement with the state has puzzled attorneys watching from the outside, including a former city attorney, and raised concerns for some within the city.
City leaders, from Mayor Jacob Frey and Chief Brian O’Hara to the city council, have all expressed support for having the city move ahead in implementing provisions unique to the dismissed federal agreement. They all acknowledge the importance in a city traumatized by the police murder of George Floyd and what both a state and federal investigation concluded was a pattern of racist policing with excessive force.
But that’s where the consensus grows murky.
The mayor signed an executive order in June directing the city attorney to identify provisions in the federal agreement that aren’t covered by the state agreement and for the city to go forward with implementing those provisions.
Members of the Minneapolis City Council — who had been inquiring about legally modifying the state agreement to include those provisions — said that was a promising move, but one that could mean nothing if the mayor or future mayors changed their minds.
They moved ahead with a plan to direct the city attorney to reopen negotiations with the Minnesota Department of Human Rights — whose commissioner, Rebecca Lucero, had said she was open to doing so and offered to meet with the city.
Some council members complained that after months of hearing that modification could be a path forward, City Attorney Kristyn Anderson changed course without a clear explanation.
“That is the baseline of why there is a need for some transparency,” council member Robin Wonsley said at a recent meeting. “Six months have transpired for the city attorney to give a basis for why they don’t believe we should proceed. Instead of just saying no, no, no we are looking to pursue the how.”
Anderson said in a statement that her office has spent months exploring whether that was a viable option.
“But this is not something that we can do on our own; it would require a legal basis to request and receive Court approval,” she wrote in a statement. “At this point, we have not found a legal pathway forward.”
But it’s unclear what the barrier is, as the settlement agreement lays out a clear pathway for modification: if both parties agree to a change and a judge signs off on it, the agreement can be modified. It’s happened twice before, both related to extending timelines in the agreement.
At a meeting last month, the council voted to have the attorney — against her wishes — waive client-attorney privilege and make public a memo that laid out why the council would be overstepping their authority if they directed her to try and modify the agreement.
Those in favor said they hoped it would allow the debate over the best path forward to play out at the dais, instead of during a closed-door briefing.
The memo — now public — explains that neither the mayor nor the council may direct the city attorney to reach a “specific result” — in this case, an incorporation of the federal consent decree into the state settlement agreement — regardless of the city attorney’s professional judgement.
It also says that because the charter grants the mayor sole authority over the police department, the council cannot seek to “control” the police department in this way, and that it’s up to the mayor to direct contract negotiations — which would include the settlement agreement.
Former Minneapolis City Attorney Jim Rowader said that would then seem to shift the question of how to proceed to the mayor.
Rowader said he could not think of a legal barrier to modifying the consent decree, unless that barrier refers to not being able to act on the council’s request.
“They could all decide we’re not interested in changing the agreement, and that would be an impediment — but that’s not necessarily a legal [impediment],” Rowader said. “That’s just the stance that the city has as one side of the equation.”
“Then the question just shifts to the mayor: OK, so you’re the one that gets to make this call, at least in terms of whether we go down this road, and either you want to go down the road or you don’t. And you can choose to explain yourself one way or the other,” he said.
The mayor has not publicly advocated for this path.
When asked for the mayor’s response to the council’s pressure to legally modify the state agreement, a spokesperson for the mayor pointed MPR to a line in the mayor’s executive order that directs the City Attorney’s Office to look into finding a way for ELEFA to monitor the reforms unique to the federal consent decree.
It’s unclear how this could happen outside of legally modifying the settlement agreement, as the document bars the independent monitor from entering into any contracts with the city outside of the agreement.
Other legal experts have noted that the notion that there is no legal pathway forward to amending the agreement does not make sense.
“The parties have wide latitude to add whatever provisions they both want to include, so long as both parties agree and the judge approves,” said Jim Hilbert, a professor of law at Mitchell Hamline School of Law and ad hoc counsel for the state NAACP. “Maybe there’s more that the attorney is aware of than I am, but from where I stand, it seems like a pretty straightforward matter.”
ACLU Minnesota attorney Alicia Granse also said that “it’s not a really complicated legal thing.”
“The federal consent decree is a little more particular about things,” she noted. “I don’t see them as being very distinct documents in many ways, but definitely it is vital that all of the things that were reported on by the DOJ that were in the consent decree, those reforms do need to get made, too.”
One of the parties — the Minnesota Department of Human Rights — has again been open to negotiating new changes, and has offered to meet with the city to discuss adding provisions from the federal agreement into the state consent decree, according to a statement from the department.
The statement emphasizes that the state agreement “already contains most of the guiding principles, overarching terms, and even specific provisions” that were in the DOJ agreement and the state court will hold the city accountable to those changes, but that there may be benefit to folding in some of the unique terms.
“To bring about the transformational changes needed in the City and MPD, modifying the terms of the state consent decree may be helpful at times, including in this moment when a federal court has dismissed the proposed federal consent decree.”
David Douglass, an attorney who co-leads ELEFA, was questioned on the feasibility during a June council meeting. Though he was hesitant to issue his opinion, he said “under the right circumstances, I’m sure it could be achieved.”
“We think it would be the preferred path if it’s achievable,” he said, noting that he still believes enforcing the unique terms of the DOJ agreement would be possible without court oversight.
“But clearly, judicial oversight is better,” he said. “And it’s particularly better in this community where there is so much distrust.”
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