Austin Police Oversight: What you need to know heading into Election Day

Austin will vote on two individual police oversight measures Saturday.

AUSTIN (KXAN) -- Austin will vote on two individual police oversight measures Saturday. The two measures, one backed by a political action committee that focuses on public safety and the other by the police association, have very similar language but oppose each other.

The propositions are expected to be decided by less than 10 percent of voters, said Brian Smith, a professor of political sciences at St. Edward's. He also noted people in Leander that also fall within Austin city limits could impact the results.

"They have a bond election that affects people's taxes, that affects how much they're paying, that affects their schools. So that part of the city has more incentive to come and vote because not only are they voting on police oversight, but on the future of their school district," Smith said.

Breaking down the ballot measures

One petition was put forth by the advocacy group Equity Action. It calls for, among other things, the Office of Police Oversight to have more access to certain police files.

After City Council moved to send that measure to voters, Equity Action claims canvassers “fraudulently” tried to get people to sign a “weaker” oversight petition.

KXAN uncovered that The Voters for Oversight and Police Accountability (VOPA), a group backed by the Austin Police Association (APA), was behind that petition. VOPA said it put forth its own measure that will go on the same ballot that doesn’t include components that would violate Texas law.

Both ballot items have the same name: The Austin Police Oversight Act. They begin with language differences written in the “Caption” and “Ordinance” sections, as seen below. Equity Action’s features more direct mention of police “misconduct.”

While both petitions contain many of the same points regarding the role of the Office of Police Oversight (OPO), Equity Action’s version has more provisions that give OPO more power.

Below are items and/or pieces of items that are in Equity Action’s measure but not VOPA’s.

Equity Action:

• (5) Participate in investigations of officer conduct, including those stemming from anonymous complaints, with the right to gather evidence and directly interview witnesses as determined by the Director.
• (10) Conduct, at minimum, a preliminary investigation of every complaint, determine whether a full investigation is warranted.
• (11) Conduct random assessments of department use of force reviews
• (13) Determine training requirements for members of the [Community Police Review] Commission

Both measures also have different provisions when it comes to the type of access OPO has to police files during internal investigations.

You can read more about the differences between the measures here.

Will there be legal challenges?

It's something backers of Prop B have noted, and something legal consultants acknowledged in front of the council while discussing labor negotiations earlier this year: There are parts of Prop A that don't jive with state law.

The workaround is that the parts which are unenforceable would have to be included in a labor contract with the union. In general, anything mapped out in an APD contract would overrule a city ordinance.

The labor negotiations team that worked with APD and the city on the contract told city council earlier this year that, “the legal effect of the Equity Action petition, whether it’s in effect, if there is no contract, many of those provisions and the will of the voters quite frankly will not come to pass.”

Rebecca Hayward, who spoke on behalf of the negotiators, said that is because certain aspects of that measure would be trumped by Texas law. Previously, APA president Thomas Villarreal said the provision regarding access to department and personnel files “without hindrance” is the component that conflicts with the state law.

"The thought is that whichever proposition wins, the other side will mount a legal challenge. And this isn't really election law, this is really just based on...it would be a challenge to the validity of the ordinance," said Roger Borgelt, who specializes in administrative law including election law.

"I think the most interesting thing would be is if both propositions do pass, A and B, then what does the City of Austin do?" said Smith.